A Copyright Alert about a Copyright Alert: Internet Service Providers Undertake a New Program

It’s good to be an Internet Service Provider. While content owners worry about piracy and erosion of copyright, and thus revenue, ISP’s (the companies that provide us with Internet access) do not have substantial copyright worries. They are considered, in effect, common carriers and as a result are generally no more liable for copyright infringement by its customers than the telephone company would be liable if you slander someone during a phone call. The concern is the copyright misbehavior of ISP customers, namely people like us.

The copyright community has long sought to bring ISP’s to the copyright table and be active, rather than passive copyright enforcement participants. On February 25, The Center for Copyright Information (the “CCI”) announced that several of the most prominent ISPs would roll out on a voluntary basis a standardized Copyright Alert System. http://www.copyrightinformation.org/uncategorized/copyright-alert-system-set-to-begin/

The CCI says, “Practically speaking, this means our content partners will begin sending notices of alleged P2P copyright infringement to ISPs, and the ISPs will begin forwarding those notices in the form of Copyright Alerts to consumers. Most consumers will never receive Alerts under the program. Consumers whose accounts have been used to share copyrighted content over P2P networks illegally (or without authority) will receive Alerts that are meant to educate rather than punish, and direct them to legal alternatives. And for those consumers who believe they received Alerts in error, an easy to use process will be in place for them to seek independent review of the Alerts they received.”

Each ISP is free to establish any remedies (or none at all) for a customer who does not comply with the Alerts. Such remedies may include mandatory customer copyright education programs, throttling down bandwidth, terminating accounts, etc.

The Electronic Freedom Foundation opposes this Alert effort for a variety of reasons, suggesting among other things that the Alert system is too broad in its sweep. https://www.eff.org/deeplinks/2013/02/copyright-propaganda-machine-gets-new-agent-your-isp

Will the new Alert system be a breakthrough or at least a speed bump in combatting unauthorized file uploading and downloading? There’s much more to come in the long fight of copyright owners to deal with the revolutions in technology and content.

In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.