ISPs Agree to Six Strikes System Warning Users of Suspected Online Piracy

The movie and music industry have come to an accord about how ISPs will work with them to notify suspected pirates of downloading and using pirated content.

Several ISPs signed a voluntary agreement with the music and movie businesses to crack down on online copyright infringement.

Most major ISPs in the United States, including AT&T, Verizon, Comcast, Cablevision and Time Warner Cable, have signed on to help shut down copyright violators, but they won't do the filtering or monitoring themselves, according to representatives of the alliance, which includes music record labels, movie studios and ISPs. Nor will the ISPs be required to disclose subscriber information without a court order.

Under the new system, the copyright holders would continue to search for instances of infringement on their own and track down suspect IP addresses. They would then send the ISP holding that IP address a message instructing the user to stop the pirated activity. The ISP is committed to forward those notices to the subscriber associated with the IP address, possibly as an email.

"We anticipate that very few subscribers, after having received multiple alerts, will persist (or allow others to persist) in the content theft," the group said on its CFCI (Center For Copyright Information) Website.

Major entertainment companies are betting that the new process could reduce illegal file sharing by as much as 70 percent. The industry claimed in a 2007 study that online piracy costs the U.S. economy $58 billion in losses every year.

"We believe it will have a significant impact on reducing online piracy," wrote Victoria Espinel, U.S. intellectual property enforcement coordinator, in support of the CFCI on The White House blog.

The outlined system is not all that different from what many Internet providers already do. The newly created Copyright Alert System just standardized the approach that ISPs will use when notifying users they are suspected of illegally downloading music, TV shows or movies.

The "copyright alerts" are a series of messages warning users that allegedly illegal activity has been detected and that penalties could be imposed if they do not stop. The alerts will be sent repeatedly as part of a "six strikes" alert system.

ISPs will possibly take action after the fifth or sixth message, such as "temporary reductions of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss the matter or reviews and responds to some educational information about copyright, or other measures that the ISP may deem necessary to help resolve the matter," according to the CFCI guidelines.

The ISPs are not required to disconnect a user, and most providers have said they will not cut off a user's phone or email service. The new system is intended to be different from Europe's "three strikes" laws.

"This creates no new laws or formal legal procedures, and it does not require account suspension or termination," the coalition said.

However, the coalition asserted that the Digital Millennium Copyright Act requires ISPs to have a "termination policy" for repeat offenders or run the risk of being sued for harboring criminals. This implies that the industry will claim ISPs that don't terminate subscribers after the fifth or sixth alert will lose their DMCA protection, wrote the Electronic Frontier Foundation's Abigail Phillips.

"We believe it would be wrong for any ISP to cut off subscribers, even temporarily, based on allegations that have not been tested in court," The Center for Democracy & Technology, along with Public Knowledge, said in a joint statement.

Users can appeal the alert messages, as they can request an independent review by paying a $35 filing fee. While it's clear the courts will not be involved, the agreement is vague as to who will handle the appeal. Subscribers can always still sue their ISP in court.

Phillips flagged other potential issues in the appeals process, noting that users who want to apply the fair-use defense must be willing to have their personal information sent to the copyright holder. The appeals process also has very narrow grounds for review, such as the account was incorrectly identified or that someone else had done the activity without the user's permission.

Individual privacy is protected throughout the whole process because the providers will "never provide any personally identifiable information to copyright holders," such as names or addresses without a court order or subpoena, the group promised.

The goal is to "educate and stop the alleged content theft in question, not to punish," according to the group. The alert system ensures users are informed multiple times that downloading content online could have copyright consequences.

In many cases, it could even be a way to let the parents know their children are getting pirated materials off peer-to-peer networks, the group said. ISPs don't want to lose customers or for their customers to have legal problems, so the system provides "every opportunity" to stop engaging in illegal behavior, the alliance said.

The copyright holders in the coalition include EMI, Sony Music, Sony Pictures, Twentieth Century Fox, Universal Music, Universal Studios, Walt Disney Studios, Warner Music and Warner Bros.