The question of how best to respond to the unauthorised dissemination of copyright-protected expression over the internet has long troubled copyright owners. But the proposed solution of a Copyright Alert could potentially erode free speech, writes Graham Reynolds.
In July 2011, the Center for Copyright Information (CCI), “formed as part of a collaborative effort between [United States] content creators in the movie and music industries and leading internet service providers (ISPs) to help educate the public and deter copyright infringement and offer information about legal content options” announced the creation of a Copyright Alert System (CAS), described by CCI as “a progressive system aimed at educating internet subscribers about digital copyright and the potential consequences of inadvertent or purposeful copyright violations through peer-to-peer networks”. Funded by participating ISPs and participating content owners, the CAS will be initially employed only in the United States. If deemed successful, the system could be replicated in other countries.
CAS has been described as a “six strikes” system. While the exact details of the CAS will vary depending on the ISP that employs it, the system is broadly structured as follows. Alleged infringing activity will be identified through an analysis system called MarkMonitor, which uses “both trained professionals and automated processes to identify illegal downloading of whole movies, TV shows and musical recordings”. Once the alleged infringing activity has been identified, notice is sent to the appropriate ISP informing them of the activity and, among other information, the Internet Protocol (IP) address connected to the alleged infringement. The ISP will then take action. The nature of the response will vary depending on whether the subscriber whose account is associated with the IP address has previously had action taken against them under the CAS (that has not been successfully challenged on review).
CCI describes the CAS as follows: “Educational alerts will come first, followed by acknowledgement alerts that require the recipients to let their ISP know they have received the notices. For accounts where alleged infringing activity continues, enhanced alerts that contain ‘mitigation measures’ will follow. These mitigation measures will vary by ISP and range from requiring the subscriber to review educational materials, to a temporary slow-down of internet access speed”. CCI states that “[t]he progressive series of alerts is designed to make consumers aware of activity that has occurred using their internet accounts, educate them on how they can prevent such activity from happening again (for example, by securing home wireless networks or removing peer-to-peer software), and provide information about the growing number of ways to access digital content legally”. CCI emphasizes that “termination of a consumer’s internet service is not part of any ISPs’ Copyright Alert System program”. As explained by CCI, “contrary to many erroneous reports, this is not a ‘six-strikes-and-you’re-out’ system that would result in termination. There’s no ‘strikeout’ in this program”.
Desiring to “set up a program that is accurate, fair, and protects consumer interests at every step in the process”, CCI has taken several steps to protect consumers. First, CCI “retained a recognized technology expert, Stroz Friedberg, to both evaluate the methodologies used by MarkMonitor to identify allegedly infringing activity, and to “review the technical processes used by each ISP to match subscriber accounts with IP addresses forwarded by the content owners”.
Second, CCI created a review system through which consumers can “seek review of alerts they believe were sent in error”. This review system is to be operated by the American Arbitration Association (AAA). As noted by CCI, “[t]he review system will allow consumers to ask a trained, impartial professional at AAA to review alerts fairly and confidentially, while honouring their expectation of privacy”. It has been reported that in order to initiate a review procedure, consumers will have to pay $35 to the CAS. It was also reported that this amount would be “refunded if the consumer wins the review”.
Free Speech Debate’s 10th draft principle states that “We must be free to challenge all limits to freedom of expression and information justified on such grounds as national security, public order, morality and the protection of intellectual property.” The CAS must be scrutinized to ensure that it does not unduly burden freedom of expression in pursuit of the important goal of combating copyright infringement online. If not properly implemented, the CAS could prove to be a significant burden on freedom of expression. For instance, it is conceivable that the CAS could be constructed in such a manner as to flag not just downloads of whole works, but downloads of partial works, even if these works are embedded in new expression. This could have a significant impact on the dissemination of transformative works such as parodies, satire, mashups or machinima (among other types of works).
Justice Souter J., in the case Campbell v. Acuff-Rose Music, Inc., in 1994, defines transformative use as “add[ing] something new, with a further purpose or different character, altering the first with new expression, meaning, or message”. Souter J. states that transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space within the confines of copyright”. Given that in Eldred v. Ashcroft, fair use was described as a “First Amendment safeguard”, an intimate connection can be said to exist between transformative works and freedom of speech. Should the CAS be structured in such a way to restrict the dissemination of transformative works, free speech itself would be unduly burdened.
Furthermore, given that the CAS attributes responsibility for allegedly infringing activities to the subscriber whose information is attached to the IP address that has been used to allegedly infringe copyright, it is conceivable that subscribers who have themselves not engaged in any allegedly infringing activity could have measures taken against them, such as “a temporary slow-down of internet access speed”. By impeding their ability to access the internet in response to something they themselves did not do (or may not have authorised), such a measure can be seen as inappropriately impacting upon these individuals’ freedom of information and freedom of expression.
In seeking to ensure that the CAS does not unduly burden freedom of expression, I offer the following suggestions. First, the CAS should be monitored carefully to ensure it does not create alerts based on the dissemination of transformative works (or other works that contain parts of copyright-protected material embedded within non-infringing material). While a court could find that the use in question is not sufficiently transformative as to be considered fair use, and that it ultimately infringes copyright, this ought to be a determination made by a court and not by MarkMonitor or the CAS more generally.
To this end, the CAS should only be triggered when works are downloaded in their entirety. This appears to be the way in which the system is currently configured. One blog post from CCI indicates that MarkMonitor is structured so as to identify when whole works are downloaded. Additionally, in a 2011 Memorandum of Understanding it is noted that “[f]or purposes of generating ISP Notices, the Content Owner Representatives further agree to focus on instances of P2P [peer to peer] Online Infringement involving files or data consisting primarily of infringing material or containing unauthorized copyrighted works in complete or substantially complete form and to avoid instances of P2P activity in which de minimis amounts of allegedly infringing material are incorporated”.
Second, the CAS should be configured in such a manner as to distinguish between the distribution of whole works that are protected by copyright, and whole works that are not protected by copyright. Copyright is time-limited. After the period of copyright expires, individuals are permitted to disseminate full copies of formerly copyright-protected works without having to first seek the authorization of the copyright owner. The CAS should be scrutinized to ensure that the dissemination of works that are no longer protected by copyright does not result in alerts being sent to subscribers.
Third, careful attention should be paid to the content of educational alerts and educational materials to ensure they present an accurate picture of copyright law. For instance, educational materials should be reviewed to ensure that they discuss fair use and other defences to copyright infringement, and do not simply claim that each unauthorized reproduction of a work (or a part of a work) constitutes copyright infringement. As well, both the rhetoric used in the materials and any claims about the harm caused by copyright infringement should be carefully analysed. To this end, I suggest that all educational materials and alerts should be published online on CCI’s website or in a separate “online information center” (the creation of which appears to be mandated in the 2011 Memorandum of Understanding).
Fourth, care must be taken to ensure that the methods used by MarkMonitor to identify allegedly infringing activity and the processes used by ISPs to match IP addresses to subscriber accounts are accurate, that they are not overbroad, and that they do not infringe on individuals’ privacy rights. The decision by CCI to retain Stroz Friedberg to evaluate these methods and processes can be seen as a recognition, on the part of CCI, that these issues are important and need to be taken seriously.
Concerns have been raised, however, as to Stroz Friedberg’s impartiality. As CCI noted in a blog post dated 30 October 2012, it was reported that “a former employee of Stroz Friedberg lobbied several years ago on behalf of [the Recording Industry Association of America] on matters unrelated to CCI”. In response to these reports, CCI, while reiterating its confidence “in the Stroz team’s skill and ability to deliver an independent review of the content community’s methodologies as they relate to CCI and the CAS”, took two additional steps in order to restore faith in the impartiality of Stroz Friedberg and in the CAS. First, it “decided to have another expert review Stroz’s initial evaluation of the content community’s processes”. Second, it announced that it would be releasing, to the public, the report prepared by Stroz Friedberg “to enable interested parties to review it for themselves”. CCI also reiterated its previous commitment to “periodically review the content community’s methodologies to ensure that they operate with the accuracy and quality we expect and that consumers deserve”.
While these steps are laudable, I urge CCI to go further. Specifically, I suggest that CCI publish, on its website, the methodologies used by MarkMonitor, the technological processes employed by ISPs, and the reports resulting from CCI’s periodic reviews, to allow for public scrutiny and review.
Fifth, I suggest that detailed data should be collected, by an independent body, with respect to the operation of the CAS. This data should be made public on CCI’s website and should be regularly updated (potentially in “real time”). Information that might be collected could include the number of alerts issued at each stage; the number of reviews that are heard; the time taken to hear and decide a review; and the extent to which individuals received erroneous alerts.
This open approach to the collection and dissemination of data would differ significantly from the process contemplated in the 2011 Memorandum of Understanding, which noted that “[n]one of the records and data relating to the Notice Process and Copyright Alert Programs shall be made publicly available by CCI without prior approval by a majority of the Executive Committee”.
CAS has the potential to serve an educative function and may play a positive role in reducing the amount of copyright infringement online. However, while it is important to protect copyright, it is also important to ensure that any protection does not unduly burden freedom of expression. As noted in the Memorandum of Understanding, efforts to deter copyright infringement “must respect the legitimate interests of internet users and subscribers in protecting their … freedom of speech”.
Graham Reynolds is an Assistant Professor at the Schulich School of Law at Dalhousie University in Halifax, Nova Scotia, Canada. He teaches and researches in the areas of copyright law, intellectual property law, property law, and the intersection of intellectual property and human rights.