Let’s Get Real: Broad Coalition of ISPs and Rights Holders Adopt Voluntary Plan
[Editor Charlie sez: This was first posted on July 7, 2011.]
We all have to be grateful to President Obama and New York Governor Andrew Cuomo for nurturing a process that has produced the first major cooperative breakthrough in the US that gives property rights a chance to flourish online. A broad coalition including AT&T, Verizon, Cablevision, Comcast and Time-Warner, major and independent record companies, movie studios, independent film makers and television producers have agreed to work together to bring professionalism and sanity to the Internet ecosystem.
Rich Bengloff, President of A2IM, summed it up: “The American Association of Independent Music joins our music community creator colleagues and their artists in thanking and applauding the Internet Service Providers who have agreed to participate in the Copyright Alert Program. This is a pro-consumer and a pro-music creator solution to the issue of how you protect copyright on the Internet.”
This positive coalition will no doubt be called all manner of names (like the inevitable “copyright cops” insult) by the usual suspects, but the fact is that all involved in the coalition know that the massive theft online is killing American jobs and undermining the professional creative community.
It’s time to stop playing games and start getting serious about the problems–unless you believe the absurd “positive effects of crime” theory of the unaccountable Government Accountability Office and their ridiculous position paper.
The coalition has adopted a multi-tiered system of education and notification that respects both the intelligence and rights of users while protecting the jobs of workers and respecting the rights of creators. While there will no doubt be much gnashing of teeth in the Fear Uncertainty and Doubt sector as well as the “Hate Creators First” sector, the inescapable truth is that everyone knows there’s a problem and what needs to be done. And now it will be done. We’re still working our way through the detail, but here are some highlights:
First and foremost, the coalition is establishing the Copyright Information Center to help inform the public about legal alternatives to unauthorized copies of works. The center will also help educate the public about how trafficking in illegal copies of works harms the U.S. economy by killing jobs and denying artists the opportunity to be compensated for their creative labor.
Best Practices for Protecting the User’s Right to Know
If you were at my presentation at the Global Forum a few years ago, you will remember my emphasis on the importance of developing best practices that rights holders could expect from everyone in the distribution chain. You’ll also remember the other keynote from Serge Sasseville of Canadian communications giant Quebecor that public companies answer not only to CEOs, shareholders and creditors, but as “a good corporate citizen, [we] cannot remain insensitive to the piracy problems affecting the survival of content producers and rights holders.” This agreement is exactly the kind of thing Serge was thinking of. The agreement has less to do with ISPs being “copyright cops” and everything to do with recognizing evil when you see it.
The Copyright Information Center plans to develop best practices for the coalition’s new Copyright Alert system. Copyright Alerts will be the form of communication between ISPs and users to let them know that someone is using their account to engage in curious activities. This respects the user’s right to know when their account is detected, and at the same time informs users of what is expected of them.
The coalition intends to develop a standardized framework for Copyright Alerts, which will be a great benefit to all concerned. ISPs no longer are in the middle and have a clear course of action to follow when they encounter potential repeat infringers. Users can avoid violating the terms and conditions applicable to their ISP accounts and the corresponding liability. As we saw with the recent report from Kaspersky Labs, there is a strong correlation between the most trafficked infringing sites and the distribution of the TDL4 bot—increasing the risk to users of their computer or network being infected with malware and other Internet pollution. Users—especially parents and other joint users of Internet accounts—should be informed if their account is being used in ways that could expose them to legal liability or data loss. Copyright Alerts help accomplish this notification.
The coalition have agreed to send at least 5 or 6 alerts to users suspected of infringing activity.
Alert 1: User is notified of apparent infringing activity on their account, and is provided with ways to get smart about preserving the integrity of their computer and network (like a WiFi network) and how to avoid future infringing activity along with choices of legal services for content.
Alert 2: User is notified that the activity continues and also that the ISP may take further action.
Alert 3: User is again notified that the activity persists, but the notice requires some confirmation of receipt and emphasizes that the user could be subject to more serious consequences for violating the user agreement.
Alert 4: More or less the same as Alert 3, except additional confirmation of receipt.
Alert 5: At this point, the ISP can voluntarily take steps to curtail usage of the account short of cutoff (the “Mitigation Measures”). Suggested voluntary Mitigation Measures could redirect the user to a page until the user contacts their ISP to discuss the usage (my favorite) or temporarily reduces Internet speeds on the account. No Mitigation Measure would cut off voice telephone or 911 service, email, or a health or home security service. Users will have a right to request an independent review before the ISP takes a Mitigation Measure and the user may always challenge any Mitigation Measure in court (and rights holders retain their right to go to court as well).
Alert 6: ISPs will send another alert and will implement a Mitigation Measure (subject to independent review and legal challenge).
It seems very unlikely that any user with a legitimate need that results in a false positive—what appears to be illegitimate activity that is actually legitimate due to special circumstances—would ever get to Alert 4, much less 5 or 6.
Repeat Infringer Policy: The alerts and the Mitigation Measures do not require an ISP to terminate any users. Of course, as any student of the YouTube case can tell you, in order for an ISP to enjoy the DMCA safe harbor, the ISP must have a termination policy for repeat offenders–which is a course of action separate and apart from the Mitigation Measures.
What The Coalition Has Not Done
Not Three Strikes: It is almost certain that the FUDmeisters will label this agreement as “three strikes” (a common way to refer to “graduated response” measures) or the even more disingenous “six strikes” which has been adopted by the Amen Chorus.
It clearly is not. Copyright Alerts are not “strikes” and there is no set number.
Nothing to do with the Protect IP Act: No matter how they try to spin it, don’t believe this has anything to do with Protect IP.
Nothing to do with the DMCA: The Copyright Alert system operates outside of the DMCA and has nothing to do with the DMCA.
No Mandatory Termination of User Accounts: Not only is it not “three strikes”, it is not a termination based system. The agreement does not require a change in the law, and users, ISPs and rights holders still have all the legal rights and remedies they ever did under U.S. law. (Note that the Wired story on the coalition features a headline image “Access Denied” and later goes on to contractict its own headline in the body of the piece that focuses on interrupting access despite the fact that nothing–and I mean nothing– in the agreement requires termination. But interruption is the sensationalized story the Wired writer clearly wanted to write and that’s the story he wrote.)
No Copyright Cops: Almost as surely as the FUDmeisters will go on about “three strikes”, they will also probably refer to someone in the chain as a “copyright cop”. Not true—the ISP is simply acting in a responsible way to prevent free riding on bandwidth and other people’s property and to protect their right to a safe harbor, which actually helps consumers by reducing the ISPs operating risk (which was the point of the DMCA—a little latitude to reasonable people acting reasonably).
No Invasion of Privacy: ISPs protect their users’ privacy, and no personally identifiable information is passed to rights holders. Google knows more about the users than the rights holders will. (See “No Copyright Cops”.)
No Incursion on Due Process: Users, ISPs and rights holders maintain all legal rights, and users have the ability to request an independent review of their situation. (See “No Copyright Cops”.)
No Cut Off of Other Services: The coalition expressly agrees to maintain 911, health and security services as well as voice service in bundled Internet service packages.
Let’s Get Real It is becoming increasingly apparent that the massive online theft of intellectual property will not stand. The coalition’s agreement is a major event in the evolution of the Internet ecosystem—for users, ISPs and rights holders. The coalition agreement also demonstrates that technology companies and rights holders can work together in a cooperative environment to develop a healthy online atmosphere where new business models can flourish with mutual respect.
So everyone involved has to ask themselves if they are prepared to stand by and watch the crash or do they feel any responsibility to head it off? Do they want to stand on the sidelines and talk about “copyright cops” and the other choice names, do they want to engage in the Metallica-ization of artists who dare to speak up, or are they going to recognize that this problem will not go away and that responsible parties involved have joined together to do the right thing?
There is little doubt that anyone who gets more than a few alerts is very likely a bad actor who knows exactly what they are doing. As a friend of mine once said sarcastically, nothing says “freedom” like getting away with it.
As Officer Malone said in The Untouchables, everyone knows where the booze is. The question is, what are you prepared to do?