July 13, 2011
Intellectual Property, Internet & E-Commerce, Telecommunications Alerts

Six Strikes and You’re Out – ISPs Join the Fight Against Online Copyright Infringement
by Cyrus Wadia

Six major U.S. Internet service providers are teaming up with the film, music and television industries to develop a standardized “Copyright Alert System” to help protect against online copyright infringement by their subscribers.
 
The Copyright Alert System is an attempt to standardize the major ISPs’ systems for dealing with claims of copyright infringement by the entertainment industry, and will be implemented by participating ISPs in 2011 to 2012. Under the Digital Millennium Copyright Act (17 U.S.C. § 512), ISPs may qualify for a limitation of liability “safe harbor” from claims of copyright infringement by their subscribers if they adopt and implement measures designed to prevent repeat copyright infringement and provide for termination in appropriate circumstances. The terms of such copyright abuse policies have generally been left to the discretion of the ISPs, with minimal – and sometimes differing – guidance from the courts.
 
The Copyright Alert System is a voluntary effort to standardize that copyright abuse policy into a “best practices” six-strike system with escalating remedies if the activity persists:

  • Strike 1: After receiving a notice from a copyright owner, the ISP sends an online alert its subscriber, such as an email containing some educational resources about copyright infringement.
  • Strike 2: The subscriber receives a second similar alert, or the ISP may proceed straight to the process for Strike 3.
  • Strike 3: The subscriber receives a third alert, but this time the alert requires the subscriber to acknowledge receipt, and to warn them that content theft can lead to consequences under the law and the ISPs' policies.
  • Strike 4: The subscriber receives a fourth alert with similar admonitions, again requiring the subscriber to acknowledge receipt.
  • Strike 5: The subscriber receives a fifth alert, but this time the ISP may take “Mitigation Measures” to stop future content theft, including, for example, “temporary reductions of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss the matter or reviews and responds to some educational information about copyright, or other measures that the ISP may deem necessary to help resolve the matter.”
  • Strike 6: The subscriber receives a sixth alert, and will implement one of the above Mitigation Measures.

There are several important flexibilities built into this notification system. First, there is no requirement of termination. Second, subscribers may request independent review of the facts in order to invalidate a copyright alert and avoid any Mitigation Measure. Third, the system will not enable Content Owners to determine the identity of subscribers. And fourth, the ISPs are not required to impose any Mitigation Measure that will disable essential services (such as voice telephone, email, or health or security services). It is yet to be seen whether this six-strike system will be sufficient to constitute a safe harbor under the Digital Millennium Copyright Act.

The system will be administered by a new “Center for Copyright Information”, which is a joint effort of the ISPs (AT&T, Cablevision Systems Corp., Comcast Corp., Time Warner Cable, and Verizon), Motion Picture Association of America and its members, the Independent Film and Television Alliance, the Recording Industry Association of America and its member companies, and the American Association of Independent Music.

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