For years the entertainment cartel has been nipping at the heels of the large internet service providers (ISPs) — AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon — to join in their war against copyright infringement. This week, the parties agreed to a “graduated response” process that will likely be implemented in early 2012.
For my lifetime, US law has shifted dramatically to solely benefit corporations. Now these corporations are bypassing the US legislative and executive branches completely and making their own agreements that carry the force of law; law for which no one has voted.
The “graduated response” process defines a series of six warnings by which an internet service provider will notify its customers of allegations of infringing behavior. “Graduated response” is, by definition, an escalating mechanism, starting with email notification and intensifying to “mitigation measures” including possible disconnection. Other “mitigation measures” include throttling a subscriber’s internet connection and redirecting all of an individual’s internet requests to a re-education website.
Nate Anderson, writing for Ars Technica, reports that the agreement is not substantially different that what internet service providers do now. When copyright holders discover IP addresses from file-sharing networks, they research the location where the IP address resolves, and then send an infringement notice to the internet service provider. The internet service providers have committed to forward such notices to subscribers — though, crucially, they won’t turn over actual subscriber names or addresses without a court order,” Anderson writes.
When I ran an open Wi-Fi network that was usable by anyone in the neighborhood (I live on the edge of a university campus and within metaphorical rock-throwing distance of five or six others), I got a couple of these notices from my internet service provider.
Anderson writes that this is the sanest approach yet employed by the entertainment cartel, but I’m not so sure. The cartel’s “mitigation measures” are taken as a result of unverified accusations from a party with a vested interest in the matter and are not adjudicated in a court. The only recourse available to the accused is to request an independent review for a US$35 filing fee. But the entertainment cartel and internet service providers haven’t specified who conducts the review. And as Anderson reports in another article for Ars Technica, there are only six permissible defenses the independent reviewer is allowed to consider:
- Wrong account;
- Unauthorized use of account;
- Authorized use of the work;
- Fair use;
- File misidentification;
- Work was published prior to 1923.
David Kravets, writing for Wired, quotes Corynne McSherry, the Electronic Frontier Foundation’s (EFF) intellectual property director, as saying EFF was “pretty disappointed that ISPs have agreed to serve as a propaganda agent for big media.” And that’s exactly what’s happened. Internet service providers should be once again relegated to mere common carriers who run the networks and are not responsible for the uses of those networks.
Meanwhile, the entertainment cartel continues to press its legislative agenda. The Digital Millennium Copyright Act (DMCA), signed into law in 1998, requires an internet service provider to disconnect infringing publishers upon direction from a copyright holder. Last year, the Immigration and Customs Enforcement (ICE) division of the US Department of Homeland Security began seizing domains suspected of infringement. And a modified version of the failed Combating Online Infringement and Counterfeits Act (COICA) — the Protect IP Act — is working its way through the US Congress, having passed the Senate Judiciary Committee.
Just this week, Peter Walker, writing for the Guardian, reports that non-US website owners could face extradition to the US to face copyright infringement charges even if their websites are not located in the US.
“As long as a website’s address ends in .com or .net, if it is implicated in the spread of pirated US-made films, TV or other media it is a legitimate target to be closed down or targeted for prosecution,” Erik Barnett, the US Immigration and Customs Enforcement assistant deputy director, told Walker. Barnett is betting the farm that because all .com and .net internet traffic is routed through Virginia-based Verisign, that’s enough for him and his agency.