News

A Shot Across The Bow

‘Six Strikes’ Aims to Scare Digital Thieves Straight, But Can It Work? 2/10/2013 7:00 PM Eastern

America’s entertainment industry is about to kick off a massive six-step rehab program aimed at steering Internet pirates toward legitimate sources of digital content.

Nobody knows for sure how many illicit downloaders may change their behavior because of the re-education campaign, which is the first coordinated effort between media companies and service providers in the U.S. to crack down on piracy.

By the end of March, a coalition of media companies and five large Internet-service providers expects to launch the Copyright Alert System. The group, the Center for Copyright Information, describes this as a consumer-friendly, “educational” program aimed at those who engage in illegal file sharing over peer-to-peer networks. One specific category it expects to hit: parents who may be unaware they’re harboring media-pirating teenagers.

Their mission is to show people that there are a multitude of legitimate avenues for digital content, CCI executive director Jill Lesser said.

“What hasn’t been working is saying to consumers, ‘You’re breaking the law.’ We need to show people their options,” she said. “I don’t think copyright is something the regular Joe on the street has an understanding of.”

Even the initiative’s supporters acknowledged that it won’t singlehandedly reverse the global epidemic of online piracy, though. And critics have said it will at best have only a marginal effect on piracy rates and at worst could create technical problems and open the door to unwarranted spying on consumers.

The Center for Copyright Information was announced in July 2011 by the Motion Picture Association of America, the Recording Industry Association of America, music labels, and TV and movie producers in conjunction with five ISPs: AT&T, Cablevision Systems, Comcast, Time Warner Cable and Verizon Communications.

Originally, the CCI hoped to launch before the end of 2012. “This thing has taken a while to launch for a variety of reasons, political and technical,” said Public Knowledge president and CEO Gigi Sohn, who is on CCI’s advisory board.

Lesser wouldn’t predict how much the Copyright Alert System will curb piracy. But if the CCI program is successful, she said, it will show two things: “One, that with the right approach piracy can decrease significantly; and two, with the right partners and constituents, a voluntary approach can work and is hopefully less static than government-mandated solutions.”

PENALTY BOX

The CCI’s so-called “six strikes” effort at first simply warns offenders that illegal file-sharing has been detected on their account and points them to different sources of legitimate online content — say, Apple’s iTunes Store, Netflix, Amazon or Spotify.

With the fifth incidence of detected piracy, though, ISPs may start to take more serious actions. Verizon, for example, will begin throttling the user’s Internet connection to a maximum speed of 256 Kilobits per second for up to three days (the telco says the details are subject to change). Time Warner Cable, for its part, plans to suspend accused infringers’ accounts, starting 14 days after acknowledgement of a fifth-strike notice, until the user calls TWC and speaks with a customer-service representative to walk through legal sources of media.

Broadband users who get slapped with a copyright-infringement notice are bound to sit up and take notice, according to the CCI’s backers.

“I think it’s a little more of a stick than we’ve had in the past,” said a senior lawyer at one major entertainment company, who requested anonymity because CCI officials are handling public comments on the program. “There’s value in letting people know that the ISPs are aware of what they’re doing, and that these are laws that actually will get enforced.”

Besides, the lawyer added: “It’s relatively lightweight to change your behavior. An $8 Netflix subscription covers an awful lot of TV viewing.”

What’s noteworthy about the CCI program is that ISPs are now integrated with — and committed to — a multiple-strike system to target repeat infringers. Internet-service providers aren’t eager to discuss the effort: Each of the five ISPs contacted for this article either issued short statements or declined to comment.

The ISPs agreed to work with movie, TV and music companies to reduce the chance their broadband networks could become subject to legislation mandating certain anti-piracy measures, according to industry observers.

“This makes the ISPs, who have been profiting from people using [peer-to-peer software], part of the solution,” Miles Feldman, a copyright litigator who is a partner with Los Angeles-based Raines Feldman LP, said. “Previously the ISPs said, ‘It’s not our problem.’ ”

The Copyright Alert System will have “a material effect” on reducing piracy, Feldman predicted.

But critics of the CCI program argue that it will cause more problems than it purports to solve. “We think it’s going to have a pretty negative effect,” Mitch Stoltz, a staff attorney at the Electronic Frontier Foundation who specializes in intellectual property issues, said.

For starters, if ISPs redirect users who are accused of piracy to a “catchand- release” captive portal, devices without a Web browser interface — such as smart TVs or Internet-based telephones — will stop functioning; a user would need to use a computer or another device with a standard browser to reactivate the connection.

WI-FI FALLOUT

In addition, the CCI program will have a chilling effect on open Wi- Fi nodes, which users keep open to let anyone in the local area use their Internet connection for free, Stoltz said. (According to Lesser, open Wi-Fi connections in commercial locations such as coffee shops are not subject to the CCI’s monitoring system.)

More to the point, the Copyright Alert System won’t do anything to stop hard-core pirates, in part because it targets only peer-to-peer applications, he said: “People who are determined to deal in infringing material are not even using BitTorrent anymore. The center of gravity moved to file-locker sites.”

Media executives acknowledge that there is no silver bullet for stopping piracy completely — and that there never will be, just as there’s no way to fully prevent other kinds of crime. But stopping infringing activity wherever possible is a necessary step that reinforces their businesses, they said.

“Each time there is a significant enforcement against a major illegal source of material, we’ve seen an impact on the consumer end and the building of legal alternatives,” RIAA executive vice president of communications Jonathan Lamy said. “No single strategy is going to end piracy, but each development makes it tougher for pirates to steal content, and encourages the usage of legal alternatives.”

Backers of the CCI approach point to France’s experience with the HADOPI law. Enacted in 2009, HADOPI gives copyright-infringers just three warnings — and, with the third strike, the ISP must cut them off and the individual is blacklisted for up to a year.

According to a survey released by the agency that administers HADOPI, 7% of French Internet users said they or someone they knew had received a warning letter; of those people, 72% said that as a result they stopped or reduced their illegal file-sharing.

Meanwhile, a March 2012 study from researchers at Carnegie Mellon University and Wellesley College found that “increased consumer awareness” of HADOPI caused iTunes song and album sales in France to increase by 22.5% and 25%, respectively, relative to other European countries.

Various studies have claimed to find a positive correlation between piracy and media sales, but a CMU report from August 2012 concluded that nearly all studies on the topic in peerreviewed journals found “statistically significant harm to sales of recently released content as a result of illegal file-sharing.”

“The preponderance of the academic evidence shows that piracy harms sales,” MPAA vice president of corporate communications Howard Gantman said. In the U.S., Internet-service providers have stopped short of following the French model of cutting off access. The companies involved in the CCI insist that cancelling a customer’s Internet account is not part of the plan, even though at least on paper all of the ISPs have explicitly reserved the right to give pirates the boot for years.

“Termination is at one end of the spectrum, and it’s something we are not doing,” Lesser said. “It’s not clear that saying, ‘If you do this again, we’re going to shut of your Internet access,’ is a deterrent.”

Lesser, who was named head of CCI in April 2012, previously was senior vice president of domestic public policy for AOL Time Warner and worked for civil-liberties lobbying group People for the American Way (see “ISPs, Studios Target Peer-to-Peer Pirates,” Oct. 29, 2012).

CULTURE SHIFT

Ideally, what the CCI’s Copyright Alert System will do is “start a conversation among casual file sharers,” Public Knowledge’s Sohn said. “It’s not about stopping the hardcore uploader/downloader. It’s about educating a new generation of music and TV fans.”

More than that, she said, media companies need to start mending the “trust gap” they have with consumers. Content- rights holders are perceived as being overly aggressive in pursuing copyright claims, by issuing “takedown” notices for user-generated content that is covered under fair-use provisions, according to Sohn.

“People are starting to realize we live in an absurd world with respect to copyright protection,” she said.

For their part, media companies have seen public sentiment grow more accepting of piracy over the last decade. They’re hoping the CCI program helps swing it back in the other direction.

Downloading pirated music has become socially acceptable, and now Hollywood wants to avoid seeing the same massive-scale piracy for movies and television shows, which require much larger investments to produce.

“You have an entire generation used to acquiring content for free over the Internet, who are quite knowledgeable about how to circumvent copyright controls,” George Ford, chief economist for the Phoenix Center for Advanced Legal & Economic Public Policy Studies, said.

There’s a clear generational difference in attitudes toward piracy. Seventy percent of U.S. adults 18 to 30 copy, share or download media for free, compared with 46% of all adults, according to a Google-funded study released last month by The American Assembly, a think tank affiliated with Columbia University. About 27% of 18-to-30-year-olds said they’ve acquired most or all of their digital music and video collections by copying or stealing, versus 14% of all adults.

“People ask me, ‘Aren’t you just fighting a social norm?’ ” Lesser said. “In part, yes. But you have to start somewhere.”

PIRATE NATION

Online copyright infringement by the numbers:

13% of U.S. adult Internet users have used peer-topeer file-sharing services (and 20% under 30 have).1

52%of American consumers support penalties for unauthorized downloading; 34% oppose them.1

13.3 million: Number of links Google removed from its search results in January 2013 after receiving copyright-removal requests.2

4.28 million: Number of times an episode of HBO ’s Game of Thrones was illegally downloaded on P2P networks in 2012, making it the most-pirated TV show of the year.3

Sources: 1 American Assembly/Columbia University; 2 Google; 3 TorrentFreak; 4 Creative America, a coalition of media companies; 5 U.S. Department of Commerce

Six Strikes: How It Works

Users suspected of accessing pirated content on peer-to-peer networks will receive increasingly aggressive notifications and eventually be subject to punitive measures:

Alerts 1-2:

In response to notices from a copyright owner, an Internet-service provider will send online alerts to subscribers that their account may have been misused or involved in copyright infringement and will provide information about legal sources of music, film and TV content.

Alerts 3-4:

Similar to the first two alerts, with the addition of a “conspicuous mechanism” such as a clickthrough popup notice or landing page requiring the subscriber to acknowledge receipt of the alert.

Alerts 5-6 and beyond:

At this point, ISPs may resort to more punitive “mitigation measures” that may include temporarily throttling Internet speeds or blocking access until a subscriber contacts the provider to review copyright laws and how to obtain digital content legitimately.

SOURCES : Center for Copyright Information, Multichannel News research

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