Major internet service providers in the US, including AT&T, Cablevision Systems, Comcast, Time Warner and Verizon, have agreed to limit the services of repeat copyright offenders. Unsurprisingly, the agreement was welcomed by both RIAA (Recording Industry Association of America) and MPAA (Motion Picture Association of America). Cary Sherman, the RIAA’s president, hailed the pact as groundbreakingclaimed that it ushers in a new day and a fresh approach to addressing the digital theft of copyrighted works.
The pact comes after RIAA and MPAA’s scaremongering tactics failed to have a significant effect on piracy. The new “Copyright Alert System” takes a more nuanced approach and focuses strongly on educating the subscribers. The process highlighted by the mitigation measures document is as follows:
First Infringement: An ISP, in response to a notice from a copyright holder, will send an alert to a subscriber notifying the subscriber that his/her account may have been misused for online content theft, that content theft is illegal and a violation of the published policies of the ISP, and that consequences could result from any such conduct.
Second Infringement: If the alleged content theft persists despite the receipt of the first alert, the subscriber may get a second similar alert that will underscore the educational messages, or the ISP may in its discretion proceed to the next alert.
Third Infringement: If the alleged content theft persists after educational alerts are sent, then an additional alert will be sent which will include a conspicuous mechanism (such as a click-through pop-up notice, landing page, or other mechanism) asking the subscriber to acknowledge receipt of the alert.
Fourth Infringement: If, after this alert asking for acknowledgment, the subscriber’s account again appears to have been used in connection with online content theft, the subscriber will be sent yet another alert that again will require the subscriber to acknowledge receipt.
Fifth Infringement: If, after these educational and acknowledgment alerts, the subscriber’s account still appears to be engaged in content theft, the ISP will send yet another alert. At this time, the ISP may take one of several steps, referred to as Mitigation Measuresreasonably calculated to stop future content theft. These Mitigation Measures may include, 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 (as specified in published policies) that the ISP may deem necessary to help resolve the matter. ISPs are not required to impose any Mitigation Measure which would disable or be reasonably likely to disable the subscriber’s voice telephone service (including the ability to call 911), e-mail account, or any security or health service (such as home security or medical monitoring). The ISP may also waive the Mitigation Measure. Any and all steps an ISP may take will be specified by their published policies.
Sixth Infringement: If, after this latest alert, the subscriber’s account still appears to be engaged in content theft, the ISP will send yet another alert and will implement a Mitigation Measure as described above. We anticipate that very few subscribers, after repeated alerts, will persist (or allow others to persist) in the content theft.
Before any of the mitigation measures are imposed, the subscriber can request an independent review, which has a waivable $35 filing fee. The subscriber can also take up the matter in a court of law.
Crucially, this pact “does not, in any circumstance, require the ISP to terminate a subscriber account”. Neither does it create any formal legal procedures or new laws. Consequently, it also doesn’t protect subscribers from being directly sued by the right holders.