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6-Strike Copyright Warning System: Can You Hear Us Now?

6-Strike Copyright Warning System: Can You Hear Us Now?

If you shrug off a warning to quit sharing copyrighted content the first time, you'll get five more chances to shape up -- or your ISP may begin to slow you down or even kick you offline. That's the promise of a new six-strike copyright alert system set to take effect in the U.S. by the end of this year. What recourse you have if you're unfairly targeted, though, is not clear.

By Erika Morphy E-Commerce Times ECT News Network
09/13/12 11:55 AM PT

A new chapter is beginning in the antipiracy wars: A so-called six-strike warning scheme will be put into action by the end of this year, Jill Lesser of the Center for Copyright Information told Ars Technica.

The CCI was born as a result of widespread revulsion over the ham-handed tactics deployed in the 2000s by the Recording Industry Association of America and, to a lesser extent, the Motion Picture Association of America. The trade groups would scour the Internet for signs of illegal content trading and then sue, or threaten to sue, file-sharers -- for hundreds of thousands of dollars, in some cases. Almost always, alleged perpetrators agreed to settle, unwilling to duke it out against such formidable legal firepower.

The outcry against those tactics was huge, though, and the RIAA's reputation took a serious hit. The organization quietly abandoned its litigious strategy a few years ago in favor of a softer approach.

It and other like-minded associations decided to link up with Internet service providers, which agreed to serve warnings to customers that were deemed to be illegally downloading content. If the customers should refuse to heed the warnings -- six successively sterner warnings -- then the ISP would have the option to slow down -- or even cut off -- their access to the Internet.

CCI members include the Recording Industry Association of America, the Motion Picture Association of America, AT&T, Cablevision, Comcast, Time Warner Cable and Verizon.

CCI did not respond to our request to comment for this story.

Dismal Failure

The earlier tactics tried by the RIAA and MPAA were dismal failures, Peter S. Vogel, partner with Gardere Wynne Sewell, told the E-Commerce Times.

"The RIAA filed over 35,000 lawsuits and only two went to trial. Even though those trials were high visibility and the defendants were ordered to pay very high fines, they didn't appear to dissuade people from downloading music," he noted.

This new strategy could work though, Vogel continued. "You have all the major players represented by the association, including the ISPs. You give fair warning to users and give them the opportunity to do something about their activities."

Good Idea?

Whether this is a good approach, however, is another question, Vogel said. There could be the possibility that the wrong person is identified -- indeed, the RIAA was known to have filed suit against at least one deceased person for illegally downloading content.

The legal recourse an accused person might have is unclear and would probably have to be tested.

It's likely, though, that the terms of service will cover most eventualities -- including the scenario in which someone is clearly illegally trading copyrighted content.

"All terms of service say that is prohibited," Vogel said.

In that respect, this approach is a better deal for consumers, he added. Whereas before their service could just be turned off, with this system, they have six attempts to get it right.

CCI is making some accommodations with respect to this issue.

For example, "content owner representatives" will develop written methodologies for identifying instances of P2P online infringement, according to a memorandum of understanding put out earlier by the organization.

Also, CCI will retain an "impartial technical expert" to carry out an ongoing review of methodologies "with the goal of ensuring and maintaining confidence on the part of the content owner representatives, the participating ISPs, and the public in the accuracy and security of the methodologies."

Details, Details

Still, the ultimate success or failure of the initiative will rely on details and execution about which little is still known, noted Peter Toren, an attorney with Weisbrod Matteis & Copley.

"I would be troubled if the ISPs and RIAA and other members share information among themselves about the accused person, because any time groups are sharing information there is a possibility for errors to be compounded, and the wrong person is misidentified," he told the E-Commerce Times.

Also, would the group be sharing this information outside of their membership?

"This could, theoretically, help solve the problem of online piracy," Toren concluded, "but we need to know more about the details."


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