Behind Closed Doors: ISPs Set to Implement Six-Strikes Policy

-- By AndrewHarmeyer - 16 Oct 2012

Background

Last year several major U.S. Internet Service Providers (“ISPs”) joined with the major Hollywood studios and record companies to create the Center for Copyright Information (“CCI”), whose purpose it is to implement a system to “warn” Internet users when they are infringing copyrighted works. That system is now known as “six-strikes” and will be implemented as early as November 28th of this year (so far it looks like AT&T will be the first ISP to implement six-strikes, according to leaked documents from the company). According to the CCI the goal is to provide education instead of just simply punishment. However, the program’s “mitigation measures” are entirely punitive in nature.

How It Works

Content owners will forward the IP addresses of suspected infringers to the respective ISPs. The ISPs will not share the users identity or address without a court order (although leaked AT&T implementation documents suggest this may happen around the fifth warning). In the first and second instance of suspected infringement, the user will receive an alert that their account “appears to have been used for online content theft.” The third and forth times create pop-up notifications requiring the Internet user to click a box acknowledging he or she has read the warning (if prosecution results, could this be used as evidence of willful infringement?). The fifth and sixth instance is really where the “mitigation measures” lose their “educational” character and become what you or I would call a punishment, a stick but not a carrot, or quite possibly an un-just dessert. The user may be subjected to reductions in bandwidth or Internet speeds, blocking of certain websites until the user takes an online anti-piracy course, or blocking of access entirely until the user actually contacts their ISP (and if speaking to an actual person at your cable or internet company is like my experience with Time Warner, this can take upwards of an hour waiting on the phone).

So What's the Big Deal?

Lack of Transparency, Exclusion of the Public, and Fairness Concerns

First, there is a total lack of transparency. Details of the program, for example the process by which content owners determine an IP address is infringing in the first place, are largely unknown by the public. This is due to the entirely closed door bargaining process that left the public in the dark while the content owners and the ISPs reached an agreement. This is despite that while the agreement is a private contract it affects the public at large and raises serious fairness concerns. For example, the normal presumption of innocence inherent in our legal system is completely turned on its head: evidence of infringement, which is collected by the content owners themselves, is accepted as true and the burden is then on the innocently accused user to pay $35 to receive independent review by an arbitrator (or ignore the warnings and face punishment). Due to the lack of transparency about six-strikes’ details, it is unclear what discovery, if any, is available or whether defenses such as fair use can be used. Further, there is always the possibility that the arbitrators may be biased (the backers behind CCI are repeat players in the arbitration process and the $35 filing fee is likely a drop in the bucket towards financing the total cost of the arbitration / appeal process).

Can I Still Leave My Wi-Fi Unrestricted (If I Ever Did)?

The program provides for a one-time-only “freebie” if a user claims someone else is using his or her Wi-Fi to infringe copyrighted works. After that, I suppose it is the users responsibility to password protect his or her Wi-Fi, or eventually suffer reduced Internet speeds if the 3rd party infringement continues (an alternative may be to pay the $35 fee and seek independent review but it seems unlikely having an open WiFi? signal is a defense under that process). Thus, while it may be difficult as a legal matter to prove you are in fact the alleged infringer on an open network, as a practical matter there may be repercussions in the form of reduced Internet capabilities (although not as severe as legal liability) after the program takes effect.

The Cost of the Six-Strikes

And then there is the cost . . . again, the $35 filing fee will be merely a drop in the bucket towards financing an “independent” arbitrator. How will the costs of six-strikes be allocated (i.e. between content producers and ISPs)? Again, due to the lack of transparency and lack of public involvement with six-strikes, we do not know. In either case, the costs will be shifted to consumers in one form or another. Either content will become more expensive or the cost of Internet service will increase.

In the end I wonder if the CCI and its backers have any clue what six-strikes will cost, or if they really care. Between the cost of arbitrators and search costs for alleged infringers – six-strikes will not be cheap. Notably, Hadopi – a publicly administered and more draconian three-strikes policy implemented by the French agency – has come under fire for its excessive costs and is being re-examined by the French government (for now, the French Minister of Culture has significantly reduced its budget for the rest of the year).

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