June 13, 2013
Earlier this year, the major U.S. Internet service providers (ISPs) implemented a more vigorous and coordinated system for identifying and blocking pirates of copyrighted material. They call the anti-piracy system the “six strikes” process or “Copyright Alert System.” Under this system, all of the leading ISPs are, for the first time, applying essentially the same process for dealing with suspected copyright pirates.
The Copyright Alert System applies warnings and sanctions that become progressively more severe as the number of incidents of suspected piracy by an individual user increases. It is called the six strike system because it involves six warnings to each suspected pirate. The warnings may be issued through written letters or electronic mail messages. Users who receive warnings are provided with processes through which they can challenge and appeal those warnings.
If a user does not respond adequately to a warning penalties can be applied by the ISP. Different ISPs apply different penalties at different times. For example, Comcast indicated that it will require all repeat offenders to view a video instructing them on copyrights and piracy. Verizon published plans to reduce the speed of Internet access for users who receive a sixth notice of copyright violations. Time Warner noted that it plans to “lock down” the Internet browsers of pirates after they have received four violation notices.
Under the six strike system, all ISPs reserve the right to cease providing service to any user who receives six violation notices. Industry observers note that the system appears to be primarily aimed at influencing the behavior of individual Internet users. It seems likely to have greater impact on inadvertent pirates (“casual infringers”), and significantly less impact on major pirates.
The Copyright Alert System seems to provide an example of the increasingly active role ISPs are playing in the online community. Instead of viewing themselves as access gateways to content, ISPs appear to be assuming the role of influencers of online behavior and conduct.
There is little doubt that actions intended to reduce the level of online copyright piracy are helpful and constructive. There is, however, room for doubt as to the appropriateness of ISPs performing the function of “Big Brother,” regulating the online conduct of individuals.
ISPs seem to be increasingly willing to assume the role of online rights enforcers. Instead of relying on courts and regulatory agencies to resolve disputes and order specific remedial actions, ISPs are stepping into a far more activist role. They are intentionally acting on their volition to enforce rights and to resolve disputes.
ISP cooperation and participation are essential for effective management of critical online issues including intellectual property rights enforcement, privacy protection, consumer rights enforcement, and preservation of civil liberties. As ISPs assume a more active role influencing the online conduct of individuals, it is important to recognize, however, that the primary motivation behind ISP action is commercial advantage, not the public interest.
ISP involvement is necessary to facilitate effective management of the most critical issues facing the online community. That involvement is not, however, sufficient to ensure that the rights and interests of all stakeholders in the online community will be effectively protected. ISP participation in dealing with key online policy issues should be welcomed, but should also be monitored to ensure that ISP actions remain consistent with broader public interest requirements.