Jenna Harris, 26, of Brooklyn, New York, got an internet-freezing pop-up alert a few months ago from her cable company, Time Warner, after downloading an episode of the HBO show “Homeland.”
She didn’t save the message, but Comcast’s Copyright Alert! #1, published by Ars Technica, a technology news and information Web site, reads: “A copyright owner has sent Comcast a notice claiming your Internet service from Comcast was used to copy or share a movie, television program or song improperly.”
Her browser locked, “like when you call IT and they take over your computer.” The message didn’t go away until she restarted her computer and modem. She erased all her downloaded music and movies, and at the time of our conversation, hadn’t downloaded anything since.
“I felt like people were watching me. They had caught me and I was going to jail,” said Harris. “I’m really scared,” she said.
She need not be.
Compared to the film and recording industry’s first attempt at combating file-sharing — suing a handful of sharers for six-figure damages — the Copyright Alerts System (CAS),also known as“six strikes,”which went live throughout the United States in February, is remarkably mild.
Customers of the five largest Internet service providers (ISPs) in the country — Comcast, Cablevision, AT&T, Verizon, and Time Warner — can receive six alerts in all.
The first two work like Harris’s: click a box and reboot. The third and fourth alert are the same, except they also require a sign-in to the user’s account with the ISP. The fifth and sixth are the ‘mitigation’ stage. The provider drastically reduces the speed of the user’s connection, to the point that it’s only useful for tasks like e-mail and basic browsing. The fifth alert comes with a two-day slowdown, and the sixth, three.
After that, nothing.
“The goal here is education, not punishment,” said Jill Lesser, Executive Director of the Center for Copyright Information (CCI), the partnership between ISPs and media companies responsible for the “six strikes” system, to a Congressional panel in March.
The new system isn’t meant to stop committed fire sharers. Rather, Lesser said, it tries to inspire respect for copyright among “the vast majority” of well-meaning downloaders who are “either engaging in this behavior inadvertently or they don’t really understand the implications of it or its illegal nature.”
The messages are also designed to guide users to legal alternatives. Comcast’s “Copy Alert! #2″ informs the user that “The Internet offers many ways to access content online properly” and links to a page on CCI’s Web site, titled “A Better Way to Find Movies, TV & Music.”
Backers of the CAS have adopted this less confrontational approach in part to avoid comparison to a similar French initiative started in 2009, called HADOPI – which in English translates to “law promoting the distribution and protection of creative works on the Internet” – also known as “Three Strikes.” Under that system, getting all three strikes meant fines and an Internet shutdown. In practice, very few people made it that far (as of September 2012, 340 people compared to 3 million who got the first strike). The system was unpopular and, in July, the law that created it was revoked.
The creators of the Copyright Alerts System have rejected the name “six strikes” because a ”strike” hints at punishment. Instead, users receive “alerts.” There are six instead of three to avoid the association with ‘three strikes and you’re out’. In the CAS, no one is ever out.
For the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA), who led the push to create CAS, the kinder, gentler attitude is a departure. From 2003 to 2008, the groups launched copyright infringement lawsuits against about 35,000 individual file sharers.
Accused copyright violators received subpoenas that claimed damages far greater than the cost of the media, typically $750 per song or movie but sometimes as much as $9,250. The industry would then offer to settle for a comparatively lower sum, usually between $3,000 to $4,000 in total.
Most people settled. As time went on though, the strategy proved ineffective and deeply alienating. Peer-to-peer file sharing has grown exponentially since its emergence. The industry, in a few infamous cases, sued children and even dead people. The Electronic Frontier Foundation (EFF) and other consumer advocacy groups denounced the lawsuits, calling them “spamigation” designed to intimidate the accused.
Legal action also placed media companies at odds with ISPs, who were being asked to police and punish their paying customers on the content industry’s behalf.
It was an attempt to correct these mistakes that led to the current approach. The system’s architects invited prominent consumer groups to send representatives to sit on the CCI’s board. Their criticisms led to softer language, milder punishments and an anonymized appeals process.
Still, critics say the system still goes too far.
Jessica Litman, John J. Nickoll Professor of Law at the University of Michigan and author of Digital Copyright, said that while slowing down users’ Internet might be less harsh than suing people or cutting off their service, doing so will affect “all sorts of applications that have nothing to do with enjoying unlicensed copyrighted material.”
Then, she said, there’s privacy. “It’s been possible forever to spy on what people are looking at,” said Litman, “but it doesn’t mean they did it and it doesn’t mean they kept records.”
Indeed, the ISPs hold on to all the sharing information even for users who receive all six alerts and “graduate” from the system, preserving their right to take legal action in the future. “I find that creepy,” Litman said.
She identified the private, self-regulating nature of the system as its fundamental flaw with respect to user rights. The appeals process, for example, requires a fee to be paid and is overseen by the ISPs themselves, not by judges.
The notion that the ISPs will defend the interests of their customers is belied, she pointed out, by the fact that several of those participating also run content creation companies. Comcast Corporation, for example, owns the National Broadcasting Company (NBC), and Time Warner Inc. owns CNN and HBO, among many other media properties.
This concern was borne out last October when the CCI was forced to replace their initial choice appeals agent, Stroz Friedberg, because the group had previously lobbied for the RIAA.
Andrew Bridges, a top intellectual property litigator and partner at Fenwick & West LLP in San Francisco, took an even tougher line. He called the alerts system “security theater” and said it was “largely a publicity stunt” meant to “intimidate individual users.”
The political power of the content industry, he said, has pushed the discussion over copyright enforcement to an absurd extreme.
He offered the following comparison: “What if I sign up for Time magazine. I get 3-4 issues in the mail and I don’t pay the bill. I get a few more and still don’t pay. What should they do? Should they cut me off from using first class mail and force me to use parcel post?”
Bridges emphasized his belief that current law and practice strongly favor the copyright establishment and “only works to screw the small fry.”
He brought up the fact that record labels are notorious for failing to pay royalties to artists. If they fail to do so on six occasions, he suggested, they might be “sent to reeducation camp and be forced to take royalty accounting classes,” referencing an earlier proposal that users be required to watch 10-minute ‘copyright information’ videos.
In Bridges’ view, there’s nothing fundamentally wrong with the content industry suing file sharers. It’s just that the dollar amounts are out of all proportion. “The statutory damages make [the United States] the laughing stock of the world” when it comes to copyright enforcement, he said.
Likely, he said, we’ll see more of the same. The defeat of the sweeping SOPA and PIPA bills in Congress, he argued, prove that the media industry’s political power is limited only by public outcry. That outcry may have softened the industry’s tone, but, said Bridges, it hasn’t changed their way of thinking.
This article will appear in the TMP Magazine Fall 2013.