Six Strikes Plan Finally Set to Arrive?

I gave a CLE presentation to the Orange County Bar Association’s IP Committee earlier this week.  The topic included showing how the adult entertainment industry has been using techniques first used by the mainstream recording and movie industries to combat online copyright infringement.  You can see an edited version of that presentation HERE.  The first part of the presentation showed how the RIAA abandoned its litigation strategy of suing large volumes of “John Doe” defendants.  By the RIAA’s own admission, the technique was ineffective, and it resulted in negative press and public backlash.

As this 2008 Wall Street Journal article explained, the RIAA abandoned the mass-Doe litigation strategy in favor of partnering directly with ISP’s in a quid pro quo arrangement that essentially bypasses the Notice and Takedown protocol established by the DMCA.  The plan will allow copyright owners to interface directly with the participating ISP’s, who will then undertake the burden of issuing “strikes” or “copyright alerts” to customers.  The plan is based around a 6-strikes protocol wherein each strike against a customer will trigger increasingly more severe penalties.  There has already been a LOT written about the details of the plan, so I won’t repeat that commentary here.  The important thing to know is that the strikes start with “education” as the goal and then progressively move to “mitigation” measures, such as throttling a customer’s bandwidth or terminating their account with the ISP.  You can review the entire “Memorandum of Understanding” between the participating ISP’s and content owners here: Six Strikes-Memorandum of Understanding.

It’s now the end of 2012, and the plan may finally be implemented after long periods of delay.

There has been a lot of criticism over how the plan was devised – i.e. little public involvement and closed-door meetings with government officials.  There is also valid criticism regarding how the plan presumes guilt over innocence.  However, even with these valid concerns, the plan does not seem that bad.  In fact, the plan seems like a decent implementation of something the DMCA requires of service providers anyway; namely, that the service provider “has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers.”  See 17 U.S.C. § 512(i).  This “repeat infringer policy” requirement is not well-defined in the DMCA.  The only guidance within the statute is the quote that I just pasted in from section 512(1).  Since this is a threshold requirement for a service provider to take advantage of the DMCA safe harbors, there are many cases wherein a court has had to determine whether or not the service provider has reasonably implemented a repeat infringer termination policy.  The cases show that this is a case- and fact-specific determination that depends on the technology used by the service provider and other factors that may not be uniform from case-to-case.

The Six Strikes plan seems to create some uniformity among the participating ISP’s in implementing (or creating) a repeat infringer policy.  While the plan does not mandate that a service provider terminate a user’s account after the 6th strike, I believe that is the unwritten goal.  But, frankly, presuming that the “strikes” or “copyright alerts” are based on good faith allegations infringement, then the plan is actually less oppressive than other repeat infringer policies that I have seen.  Maybe I’m being naive, but I just don’t see this as the evil scheme some media outlets are painting it to be.  It’s essentially “forcing” (by voluntary agreement) ISP’s to do what they already have to do if they want safe harbor under the DMCA.

Good recent article describing the plan and the upcoming roll-out: http://www.wired.com/threatlevel/2012/10/isp-file-sharing-monitoring/

UPDATE:  TorrentFreak just posted information regarding how AT&T will implement the plan.

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