ISPs join the copyright fight, put broadband on the line

A new voluntary effort by the major U.S. Internet service providers to help enforce copyright restrictions and protect content owners from pirates, parodists and cheap teens who are sharing files could result in some folks losing access to their broadband. The effort — which is dubbed the “Copyright Alert System” — includes Comcast (s cmcsa), AT&T (s t), Time Warner Cable (s twc) and Verizon (s vz).

The agreement codifies much of what ISPs do now when faced with complaints from content owners. But instead of a mere notification system for broadband subscribers, it also gives ISPs a chance to slow, block or cut off a misbehaving subscriber’s broadband access. This document describes the alert system and details of the plan.

If a content owner complains, the ISP will provide notifications to the subscriber that they may be hosting infringing content. The ISPs won’t share the subscriber’s name with the content owner, which is good. However, the ISPs have agreed to punish repeat offenders at their discretion using a six-strike system. The escalation looks like this:

  • First Alert: You get an email saying there’s a problem with your account or a user of your account and some educational materials about copyright infringement.
  • Second Alert: Another email with educational information and the ISP may escalate you straight to the third alert.
  • Third Alert: An email that will force the user to click-through to acknowledge that he has received the emails noting the copyright problems.
  • Fourth Alert: The subscriber gets another email that forces him to acknowledge that the ISP has flagged the account for copyright abuse.
  • Fifth Alert: This is where the ISP can start taking “mitigation measures” that are “reasonably calculated to stop future content theft.” Those include reducing broadband speeds or forcing the consumer to a landing page that directs the user to call the ISP to discuss the content theft. It cannot include disrupting a person’s voice or email connectivity. The ISP doesn’t have to implement any of these.
  • Sixth Alert: Now the ISP must take some kind of mitigation measure described above. The ISP doesn’t have to cut off service but they could, or the copyright owner could try to force them to.

The kicker for all of this is that a customer who finds themselves at the latter stages of this process would have to go before an independent reviewer to halt or contest the mitigation, and that review comes at a cost of $35. The bottom line is that if a copyright owner takes it into his or her head to go after a subscriber, they can — and now your ISP has promised to help (although there is some foot-dragging here on the part of ISPs who don’t want to become enforcers). And if you want to contest the issue it’s go to court or pay a $35 fee so your case can be reviewed.

As it stands, this could be less anti-consumer than other three-strikes laws, but it does bring up a somewhat existential question about broadband access — namely, does your provider have the right to cut it off? Costa Rica and other countries have named broadband as a fundamental human right. One might argue in the U.S. it’s an important element of having true freedom of speech. And since this is a voluntary consortium of private companies that would be taking action here, placing broadband access under some kind of legal protection throws the legitimacy of any effort to cut it off into doubt.

Many content companies are known to be overly vigorous in protecting their rights to music, movies and whatnot, while consumers can be confused by fair-use, personal use and other exceptions to the copyright rules. It’s not hard to imagine something like this person’s video of her baby dancing to a Prince song resulting in a draconian response. In that case she fought, but when faced with a series of emails, acknowledgments and eventual mitigation measures — that also come with a $35 fee just to contest the issue — how many people are going to fight to keep their video online?

Meanwhile, the FCC had its usual non-committal response to the effort. Hopefully the courts won’t prove so tepid if cases are brought before them. The FCC response:

“Today’s announcement of a voluntary, cooperative effort to combat online copyright infringement is a positive development. As the Commission has recognized, copyright infringement has serious adverse consequences for the economy, and efforts to address this issue can and must co-exist with robust protections for Internet freedom and openness. We look forward to the recommendations of the organization that will be created as part of this effort.”

Image courtesy of Flickr user peasap.