Six strikes and you’re…? New US approach to reducing online copyright infringement

The Copyright Alert System (CAS), more commonly referred to by its ‘six strikes’ moniker, began operation in late February in the US. Under the CAS, internet subscribers whose accounts are used illegally to share copyright material may receive one or more alerts from their internet service provider (ISP).  If the subscriber receives five or six alerts (a.k.a strikes), their account may be subject to the application of a ‘mitigation measure’ such as temporarily slowing down the connection speed.The CAS follows on from the ‘graduated’ response schemes aimed at reducing internet-facilitated copyright infringements that have been introduced in other countries, including New Zealand, France, South Korea and Ireland.  Our previous blog on New Zealand’s ‘three strikes’ copyright infringement law can be found here.  Australia does not have an equivalent scheme to the CAS.

The CAS is coordinated by the Centre for Copyright Information (CCI), which was formed as a collaboration between the content community – including the Recording Industry Association of America, the Motion Picture Association of America, the American Association of Independent Music and the Independent Film and Television Alliance – and five ISPs: AT&T, Cablevision, Comcast, Time Warner Cable and Verizon. These ISPs cover an estimated 85% of US residential customers.

CCI’s stated objectives are to “educate consumers about the importance of copyright protection” and to “alleviate confusion and help Internet users find legal ways to enjoy the digital content they love”.

CCI’s website contains links to legal sources for downloading content and links to information about copyright.  The website also details the operation of the CAS. Let’s take a look at how it works.

The process that gives rise to an alert is simple enough:

  1. Content owners monitor content being made available on peer-to-peer networks.
  2. A content owner notices that a file that is subject to copyright is being shared illegally by an internet user and notifies the appropriate ISP.
  3. The ISP in turn passes on that notice to their internet subscriber in the form of an alert.

According to CCI, the alert should:

  • make subscribers aware that unlawful content sharing may have happened using their internet account;
  • educate subscribers on how they can prevent copyright infringement from happening again; and
  • provide subscribers with information about ways to access digital content legally.

The initial alerts are intended to be educational in nature.  However, if copyright infringement continues on a subscriber’s account after multiple alerts (generally five or six depending on the ISP), the ISP may take steps that, according to CCI, “temporarily affect that subscriber’s internet experience”.  This is referred to as the mitigation stage.

Steps to be taken in the mitigation stage vary across the different ISPs.  For example:

  • Cablevision will suspend a subscriber’s internet access for 24 hours;
  • Comcast will place a persistent, in-browser alert that will only be removed if a customer contacts Comcast;
  • Time Warner will direct the subscriber to a landing page requiring the subscriber to agree not to engage in illegal activity before having internet access restored and, if that does not work, will use a pop up which includes a phone number that the subscriber must call before internet access is restored; and
  • Verizon will reduce the dial-up speeds of the subscriber for a few days to approximately 256 Kbps.

CCI has said that any consequences under the mitigation stage are designed to protect a subscriber’s ability to access important services, such as medical-monitoring or home security services.

Subscribers may only challenge previous alerts once they have entered the mitigation stage.  A challenge may be based on one or more of the following grounds: misidentification of account; unauthorised use of account; use authorised by copyright owner; fair use; misidentification of file and work published before 1923 (and therefore not subject to copyright under US law).  Such challenges occur under the Independent Review Process, which provides recipients of alerts with an impartial review implemented by the American Arbitration Association.  A request for a review requires payment of a filing fee of US$35, although a waiver based on hardship may be granted.

A subscriber’s request for an Independent Review must be made within 14 calendar days of receiving an alert detailing the mitigation measure.  If this occurs, the mitigation measure will be suspended pending the outcome of the Independent Review. If the subscriber is successful, the mitigation measure will not be applied, the $35 filing fee will be refunded and the applicable previous alerts will not be associated with the subscriber’s account.  If the subscriber is unsuccessful, the mitigation measure chosen by the ISP will be applied.

It will be interesting to see if the CAS proves to be effective in reducing online copyright infringement in the US.

‘Internet Schema’, Davide Capasso, Open Clip Art Library, (CC0 1.0)