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Major ISPs Sign Off on New Copyright Enforcement Plan
May Include Throttling of Connection And Walled Education Garden
by Karl Bode 01:33PM Thursday Jul 07 2011
Last month, reports emerged that major ISPs like Comcast, AT&T and Verizon were in talks with both the RIAA and MPAA over a new copyright enforcement plan that included a number of punishments for offenses, including filtering offender access to websites, throttling connections, or severing connectivity entirely. Follow up reports suggested that the punishment doled out would be up to the individual ISP, disconnection would not be involved, and that there would be a heavy emphasis on "education." Today that plan was made official.

Comcast, AT&T, Verizon, Cablevision and others have signed a deal with the entertainment industry to strengthen their enforcement of copyright infringement. As we've noted previously, ISPs have been forwarding copyright offense notices for many years, but more recent claims that users could find their accounts terminated often wound up being bluffs by the ISP. This new plan (pdf) doesn't require ISPs filter content flowing via P2P networks, but it does involve using "graduated response" to warn users, repeatedly. In fact, this plan reads more like a "handful of strikes" plan, with users getting ample warning before more serious action is taken:
What happens if the subscriber’s account again appears to have been used for online content theft after being sent educational alerts?
• If the alleged content theft persists after educational alerts are sent, then an additional alert will be sent which will include a conspicuous mechanism (such as a click-through pop-up notice, landing page, or other mechanism) asking the subscriber to acknowledge receipt of the alert. This is designed to ensure that the subscriber is aware of the copyright alert – and reminds the subscriber that content theft conducted through their account could lead to consequences under the law and published policies.
• If, after this alert asking for acknowledgment, the subscriber’s account again appears to have been used in connection with online content theft, the subscriber will be sent yet another alert that again will require the subscriber to acknowledge receipt
After the users receive four such alerts, the plan calls for ISPs to impose "mitigation measures." According to the plan, such mitigation measures are up to the discretion of each ISP, and can include a temporary reductions of Internet speeds, or redirection to a landing page until the subscriber contacts the ISP to discuss their "education" on copyright issues. Note that the plan makes it clear that terminating subscriber accounts is not part of the equation. Users who feel they're falsely accused can pay a $35 fee to have a supposedly (we'll see) independent review take place:
A qualified, independent entity, separate from the Center for Copyright Information, will be engaged to establish and operate the Independent Review mechanism. Under this system, before a Mitigation Measure is imposed, a subscriber may request independent review to invalidate the alert and avoid any Mitigation Measure on the basis that the online activity in question is lawful (e.g. protected by fair use or authorized by the owner of the copyrighted material) or that the subscriber’s account was identified in error. This is a non-exclusive alternative, and subscribers retain the right to challenge any action in a court of law. An independent reviewer will have access to expert advice on copyright law.
In short this plan doesn't change a lot (outside of throttling and walled warning gardens) -- it simply creates a "best practices" framework out there for ISPs to follow. ISPs likely feared legal liability for disconnecting users in addition to the lost revenue, which is why it's omitted from this plan. We'll have to wait and see which ISPs really decide to throttle connections or impose filters until their subscribers engage in what will likely be fairly one-sided copyright education campaigns. The RIAA told attendees of a conference call today that they won't rule out taking legal action against repeat offenders, and it seems fairly obvious that the data collected during these warning processes will be used against the user as evidence they acknowledged copyright infringement and ignored warnings.

Will any of this stop piracy? Unlikely. Users interested in piracy can still spend a few bucks a month for a proxy or VPN service that will keep their ISP from noticing them. While such programs may scare a few offenders initially, piracy has shown itself to be resilient to every single effort so far to thwart it, from mass lawsuits to threats of disconnection. Alternatives will obviously be developed that will help file traders fly under the ISP radar. What all users will likely see is even higher broadband prices, as ISPs pass on costs related to helping the entertainment industry play whac a mole.

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