Monday, July 11, 2011

Copyright Alerts aka Graduated Response USA

I have been waiting for the dust to settle on the recently announced graduated response program for the United States so that I might bring you accurate information. Of course its not called a graduated response program, rather a Copyright Alerts scheme.

In essence this voluntary agreement sees ISPs begin to warn users of illegal copyright infringement. There are six steps to the program which begins with a simple warning and develops into throttling of speeds and restrictions to web access - those on the content industry side a keen to point out that this does not result in the disconnection of internet accounts but realistically speaking the restriction in web access, which allows only for email and a very limited set of emergency service websites to remain open to a user is, in effect, the equivalent of disconnecting an account. Indeed the content industry appear to be asserting that any ISP that does not implement a web access restriction penalty is likely to lose their DMCA safe harbour protection - something that has not yet been tested in the courts in the USA.

Other negative points include the provision for "independent" review. On the fifth notification a user may pay $35 to have a case reviewed - this review is to be conducted by a service set up and funded by ISPs and the content industry and the onus is on the user to establish one of six grounds on which the mitigation measures - throttling and web access restriction - can be disputed. There is no option of seeking judicial review and the presumption is of infringement rather than of innocence.

The grounds on which a notification with a mitigation measure penalty can be disputed include:

(i) Misidentification of Account - that the ISP account has been incorrectly identified as one through which acts of alleged copyright infringement have occurred.

(ii) Unauthorized Use of Account - that the alleged activity was the result of the unauthorized use of the Subscriber’s account of which the Subscriber was unaware and that the Subscriber could not reasonably have prevented. (This includes open wifi but can only be used once as a defense creating problems for cafes and other commercial venues that allow open use of their networks.)

(iii) Authorization - that the use of the work made by the Subscriber was authorized by its Copyright Owner.

(iv) Fair Use - that the Subscriber’s reproducing the copyrighted work(s) and distributing it/them over a P2P network is defensible as a fair use.

(vi) Misidentification of File - that the file in question does not consist primarily of the alleged copyrighted work at issue.

(vii) Work Published Before 1923 - that the alleged copyrighted work was published prior to 1923.

The up side is that ISPs will not be handing out user contact details, rather passing on the notifications that they receive from the content industry. Another good point is that the notifications only last for 12 months after which a users record is wiped clean.

Participants include AT&T, Comcast, Time Warner Cable and Verizon. They will begin implementing the scheme in 2011 and 2012.

Further Reading
Center for Copyright Information Press Release, Music, Movie, TV and Broadband Leaders Team to Curb Online Content Theft Announce Common Framework for “Copyright Alerts” (7 July 2011) < > at 11 July 2011

EFF Deeplinks, The Content Industry and ISPs Announce a “Common Framework for Copyright Alerts”: What Does it Mean for Users? (7 July 2011) < > at 11 July 2011

TechDirt, Did The Entertainment Industry Backdoor In Forcing ISPs To Kick People Offline, While Claiming It Did Not? (8 July 2011) < > at 11 July 2011

TechDirt, Major US ISPs Agree To Five Strikes Plan, Rather Than Three (7 July 2011) < > at 11 July 2011

TechDirt, Get Accused Of Copyright Infringement Under New Five Strikes Plan? It'll Cost You To Challenge (7 July 2011) < > at 11 July 2011

ArsTechnica, Major ISPs agree to "six strikes" copyright enforcement plan (7 July 2011) < > at 11 July 2011

ArsTechnica, White House: we "win the future" by making ISPs into copyright cops (7 July 2011) < > at 1 July 2011

ArsTechnica, The six ways you can appeal new copyright "mitigation measures" (8 July 2011) < > at 11 July 2011

Digital Music News, Fuhgeddaboudit: ISPs Agree to 'Endless Strikes' Enforcement Plan... (8 July 2011) < > at 11 July 2011

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