Following the lead of several other countries, including New Zealand, France, South Korea, and Ireland, the United States has now implemented a Copyright Alert System (CAS). The CAS is not a new copyright law, instead it is a voluntary agreement between major content owners and major internet service providers (ISPs) to educate Internet users regarding copyright and to deter copyright infringement on peer-to-peer networks. Some of the parties who have signed on to the agreement are the Recording Industry Association of America, the Motion Picture Association of America, independent film, television, and music producers, and five ISPs — AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon (which together provide 85% of Internet access in the United States). The CAS is operated by the Center for Copyright Information (CCI).

The Copyright Alert System consists of a series of escalated warnings, or “strikes.” The premise of the CAS is that when a copyright owner detects copyright infringement on a peer-to-peer network (e.g., uTorrent, Frostwire, or BitTorrent), they may report the infringement to the ISP. The ISP then identifies the account that is responsible for the alleged infringement, and sends the account owner a warning or “strike.” The initial warnings are designed to be educational in nature. For example, it is reported that Comcast’s first warning is a pop-up box that reads:

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The subsequent warnings escalate in severity, as the ISPs make it more difficult to remove the pop-up message from the computer screen (e.g. you may have to call the ISP or log-in to your account to have the pop-up removed). After five or six warnings to the same account (hence the nickname the “six-strike program”), the ISP will implement a “mitigation measure.” Far short of terminating the account, however, the mitigation measure is temporary in nature and amounts to more of an inconvenience rather than a serious disruption of service. Potential mitigation measures include:

  • A temporary reduction in Internet speed;
  • A temporary downgrade in Internet service tier; or
  • Redirection to a landing page for a set period of time, until a subscriber contacts the ISP or until the subscriber completes an online copyright education program.

The CAS launched in late February 2013, so it remains to be seen how effective it will be in combating online copyright infringement. While it may prove beneficial as an educational tool for individuals who are either unaware that their actions are illegal or are unaware of the consequences of their infringement, it is unclear if it will provide a serious deterrent to willful copyright infringers.

For example, under the Digital Millennium Copyright Act (DMCA), an ISP is required to remove infringing content “expeditiously” (in the absence of a counter-notice, this can occur in a matter of hours or days) if it wishes to utilize the DMCA’s “safe harbor” defense against claims of copyright infringement based upon the infringing conduct of its customers. The CAS system obviously does not operate in such a timely or immediate fashion. Instead, the infringer gets up to six warnings before a temporary mitigation measure is implemented. Furthermore, the DMCA requires ISPs to disable willful or repeat infringers’ accounts, and ISPs themselves may lose the benefits of the DMCA “safe harbor” if they ignore notices of repeat infringement from copyright owners regarding particular infringing customers. By contrast, the mitigation measures under the CAS do not even provide for the termination of customers’ accounts.

In addition, the CAS is limited to infringements on peer-to-peer networks, not the Internet generally. Finally, it is noteworthy that under the CAS a copyright owner is unable to learn the identity of an infringer. Thus, if an infringer creates a new account to avoid the mitigation measures of the CAS, a content owner would be unable to determine that the same infringer is operating the new account. On the other hand, the DMCA does provide for the issuance of subpoenas to ISPs to learn infringers’ identities for the purpose of protecting copyrighted material.