Ulterior motives behind the Copyright Alert System

End The Lie
By Adam B. Levine

The Copyright Alert Systemannounced last year – went into effect this week for all AT&T, Cablevision, Comcast, Time Warner, and Verizon subscribers.

The particular implementation varies between carriers, but the basics of the program are:

  • All P2P traffic on participating networks will be scanned for copyright infringements
  • Infringing content will generate an escalating “alert” to the IP correlated account holder
  • Early alerts are automated phone calls, mandatory “educational videos,” and receipt-confirmation-required notifications
  • Later alerts range from heavily throttled connection speeds (256k), inability to visit “certain websites” to the inability to visit whatever websites you most frequently visit.
  • You are guilty until proven innocent.  You may appeal, it costs $35 per appeal in advance and they kindly refund it if they agree they were wrong
  • Offenders who refuse to change their habits after 8 warnings will no longer receive “Copyright Alerts”

Wait… what?

Brooke Gladstone of OnTheMedia interviewed Jill Lesser, Executive Director of the industry group Center for Copyright Information earlier this month:

Brooke: What happens if you get 7, 8 and 9 strikes?

Jill: We hope by the time people get to alerts 5 or 6, they’ll stop.  Once they’ve been mitigated, once they received several alerts, we’re just not going to send them any more alerts because they’re not the kind of customer we’re going to reach with this program

B: So what happens to them?

J: Nothing, under this program

B: So either they get sued by someone, or you stop mitigating and walk away?

J: Exactly.

Now, that doesn’t appear to make sense – but looking a little deeper the picture becomes more clear.

From the Memorandum of Understanding that created the Center for Copyright Information in 2011 program:

Post Mitigation Measures Step:

In the event that a Participating ISP receives a further ISP Notice determined to be associated with a Subscriber’s account after a Mitigation Measure has been applied on that Subscriber’s account, the Participating ISP shall direct a further Mitigation Measure Copyright Alert to the account holder and after ten (10) business days or fourteen (14) calendar days, as applicable, either re-apply the previous Mitigation Measure or apply a different Mitigation Measure, unless the Subscriber requests review under one of the dispute resolution mechanisms specified in Section 4(H). The Mitigation Measure Copyright Alert at this step shall also inform the Subscriber that the Subscriber may be subject to a lawsuit for copyright infringement by the Copyright Owners and that continued infringement may, inappropriate circumstances, result in the imposition of action consistent with section 512 of the DMCA and/or actions specifically provided for in the Participating ISP’s AUP and/or TOS including temporary suspension or termination.

Upon completion of the Post Mitigation Measures Step, a Participating ISP may elect voluntarily to continue forwarding ISP Notices received for that Subscriber account, but is not obligated to do so. The Participating ISP will, however, continue to track and report the number of ISP Notices the Participating ISP receives for that Subscriber’s account, so that information is available to a Content Owner Representative if it elects to initiate a copyright infringement action against that Subscriber.

So even though the “Alerts” stop being sent to the IP address holder, they’re can be sued, and the data collection and distribution to the “Content Owner Representatives” (The RIAA And MPAA) continues indefinitely whether they sue or not.

A brief explanation of the alert system can be seen below:

In years past there would be a somewhat difficult process to prove knowing and willful infringement thanks to the “I am not my IP Address” reality, but the steps taken under the Copyright Alert System seem well positioned to speed things up.

On the one hand, the system is about scaring away casual “pirates,” while on the other standardizing a model of establishing willful, continuous infringement where “I didn’t know it was occurring” is ruled out by the mandatory signed acknowledgements.

An unauthorized user performing the infringement is ruled out by the mandatory class on securing your wireless networkCopyright infringement is against the law, and you knew it is demonstrated in the mandatory educational videos.

People are going to get sued for what their kids download, and they’re going to lose in droves with evidence like this.

The counterargument here is, “Most P2P traffic is encrypted, how can you scan encrypted traffic for infringement?” To which I say, it’s not the efficacy of the program, so much as the visibility and normalizing of the program that is the purpose.

Really though, I think this is the ground floor of a multi-story structure. Once they make it normal for peer to peer traffic, educating everyone and “going after the worst offenders,” it’s easy to transpose the model onto other classes of internet traffic or just everything.

Similar things have been tried before by individual companies, but acting alone they’re vulnerable once exposed.

The silence about this project immediately leading up to launch is unusual given the fervor over SOPA and PIPA. The fact that this program is run by a telecom cartel instead of government means we have even less transparency than usual.

One thing that’s clear is this is a dangerous precedent, and meant as a beachhead, not the invasion.

Via End The Lie