In July last year, several of the USA's major ISPs launched a collaborative bid to combat online copyright infringement. AT&T, Cablevision Systems, Time Warner and others, together with the Motion Picture Association of America (MPAA, whose UK arm has been involved in the high-profile Newzbin litigation) and other film, TV and music industry representatives, devised a voluntary system based on "alerts" to ISPs' subscribers which would educate them on copyright and notify them of online content theft on their accounts.
The memorandum of understanding committed the ISPs to implement this plan, the system was due to be in place by July 2012. However, the Centre for Copyright Information (CCI), formed by the signatories to the MOU last year, has just announced that this may be delayed to ensure that all ISPs have sufficient time to prepare their software and alerts, and to be confident that the system is "consumer friendly and able to be implemented in a manner consistent with all the goals of the MOU". Implementation is now likely to begin later this year.
The plan which is similar to the "graduated response" systems in place in other countries (such as France with its controversial HADOPI law) includes six steps of notification, hence the "6 strikes" nickname. The steps are as follows:
(a) A copyright owner notifies an ISP of an alleged infringement, such as illegal file-sharing, by one of the ISP's subscribers; the ISP sends a first alert to the subscriber, with advice on how to secure wireless networks, how to avoid copyright violation and how to lawfully obtain content.
(b) If the infringement persists, the ISP may send second, third and fourth alerts, with the third and fourth including pop-up notices or browser landing pages to ensure that the subscriber receives the alert.
(c) The fifth alert may be accompanied by the ISP taking action to temporarily reduce the subscriber's connection speed (known as "throttling") or requiring the user to read and respond to educational materials about copyright.
(d) If a sixth alert is required, it will in all cases be accompanied by either throttling or compulsory copyright education. However, in no cases will a subscriber's account be disconnected.
On the one hand, this process with its focus on educating internet users could be considered rather lenient by rights holders. However, representatives of the ISPs have defended the plan, commenting that it respects subscribers' privacy and ensures they are always kept informed, as well as helping them discover ways to find content which is legally available online, about which they might not have been aware. Frances Moore, CEO of the International Federation of the Phonographic Industry, has commented that the plan "sends an important signal internationally" and "adds to the momentum already created by initiatives such as graduated response and blocking of infringing websites in other countries, and is the latest mark of recognition that ISP cooperation is the most effective way of addressing online piracy".
On the other hand, with ISPs assuming the role of policing the internet in this way, care must be taken to ensure that their subscribers are not disproportionately or illegitimately penalised. The risk of subscribers being falsely accused of infringement cannot be ignored, and is arguably not properly mitigated by the number of alerts provided or by the subscriber's right to request an independent review of their claims (at a cost of USD 35).
Over the coming months, content providers and ISPs in other countries will keenly observe how this system works, in particular in the UK, where government plans for a mandatory ISPs' code under the Digital Economy Act are still being debated and where a balance must be achieved between graduated response systems and the injunctions against ISPs such as those recently obtained in relation to Newzbin and the Pirate Bay.