ISPs become copyright enforcers

This week the entertainment industry finally is getting a version of something it has been craving since the original Napster transformed online piracy into a mass-market phenomenon: a new Copyright Alert System that turns Internet service providers into anti-piracy enforcers. It’s not as powerful as the major record companies and Hollywood studios have proposed, and it ignores many sources of bootlegged music and movie files online. But it’s a start. And if the industry’s assumptions are correct, it could make a dent in the problem.

The system is the work of the Center for Copyright Information, a joint effort by five large ISPs -- AT&T;, Cablevision, Comcast, Time Warner Cable and Verizon -- and four trade associations representing major and independent film and music companies. It calls for ISPs to notify customers of alleged infringements that the trade associations’ members have detected on their broadband accounts, and to inform them of authorized sources of music and movies online. If more infringements occur after the initial “educational” notice, the ISPs will ratchet up the pressure on a customer through a graduated series of warnings and limitations on that person’s Internet connection.

The most severe “mitigation” steps, which would come after the fifth and sixth detected infringement, could reduce the customer’s bandwidth or redirect that person’s browsing automatically to an anti-piracy information page. Notably, the ISPs haven’t been willing to go as far as the major studios and labels have sought, which would be to cut off someone’s Internet access after multiple alleged offenses.

It’s worth noting here that the monitoring will be done by copyright owners (typically through anti-piracy specialists, such as MarkMonitor), not the ISPs. Still, the Internet providers will be responsible for taking the IP addresses provided by the copyright owners and matching them -- accurately -- to the customers who had those addresses at the time the alleged infringements occurred.

Jill Lesser, executive director of the center, said the five ISPs would send notices only about illegal file-sharing, even though much of the piracy online has shifted to unauthorized streaming sites and locker services. “It is certainly not the most innovative form of piracy,” Lesser said of file-sharing, “but it’s still among the biggest.” For the first iteration of the system, she added, the center members wanted “to bite off what they could chew.” Once they’ve shown they can make the system work, she said, “we can find ways to expand it.”

Similarly, the only copyright holders that will be using the system are the movie studios and music companies that belong to the four participating trade associations. But that could change after it’s up and running effectively. “We really hope that this will be the model for the way to move forward,” Lesser said.

As limited and circumventable as it seems, the new system can still accomplish something important for copyright holders. The experience of France, which requires ISPs to suspend customers’ Internet access after three infringements, suggests that a single notice is enough to deter further incidents of piracy in most cases. That’s consistent with the entertainment industry’s argument that consumers don’t really understand what’s legal and illegal online, and that many don’t use legal music and movie services online because they don’t know about them.

The notices also prod people with wireless connections to stop making their bandwidth freely available to their neighbors, and parents to pay more attention to what their kids are doing online.

Opponents of such alert systems warn that they lay the groundwork for more invasive monitoring by ISPs, and that they threaten to hold people responsible for fair uses of copyrighted works (for example, sharing a home video that has a snippet of a copyrighted song playing in the background) or infringements done by others (for example, by neighbors who surreptitiously use their bandwidth). The center has tried to address the latter concern by retaining an independent arbitrator to hear appeals from people who received notices they believe are unjustified. Nevertheless, the burden is on the ISP’s customer to establish that the notice was improper, as opposed to the other way around. And the arbitrator’s decision cannot be appealed.

That’s troubling. Nevertheless, the point of the effort is the right one: to focus responsibility for infringements on the individuals who commit them rather than on the multi-purpose technologies that can be used to infringe.

Even if the system works, people who are determined to obtain movies and music for free online will find ways to get them. And if that group is large enough, don’t be surprised if the entertainment industry pushes Congress to require ISPs to take more aggressive steps. But one of the assumptions driving this effort is that simply telling people to stop will be enough to transform much of the public into paying customers, or at least willing to use one of the free services that pays for the music and movies it streams. That’s an assumption worth testing.

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