Peer-to-Peer File Sharing Targeted by Copyright Alert System

By: Robert M. Palumbi, attorney at Picadio Sneath Miller & Norton, P.C.

Efforts to combat internet piracy and protect a copyright in the digital environment are certainly not a new concept. Less than a year ago we were all made aware of the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA), two federal anti-piracy proposals which were met with hostility and backlash from both users and providers.

Based on the backlash of SOPA and PIPA, a new system appears to be on the horizon. The Copyright Alert System (CAS) is part of a new approach by ISP’s and Intellectual Property Organizations to help users understand the significance of protecting copyright in the digital environment. This is a significant change from the punitive nature of SOPA and PIPA and a shift to a more educational method. The CAS focuses on advising subscribers about the importance of avoiding inadvertent or intentional online distribution of copyrighted content and to suggest legal ways to obtain such content.

The CAS is intended to target the infringement of peer-to-peer file sharing of copyrighted works. This type of infringement is easily detectable, as IP addresses of internet customers usually reveal themselves during the transfer of files. Regardless, the rights of a copyright owner won’t change. The Copyright Act allows damages of up to $150,000 per infringement of a work registered with the Copyright Office. It should be no surprise that the CAS was heavily lobbied for by the Recording Industry Association of America and the Motion Picture Association of America, the two industries that have been hit the hardest but digital copyright infringement.

The CSA will use a unique “six alert” process that will be progressive in nature. Owners will notify a participating ISP when they believe that their copyrights are being misused online by a specific computer which can be identified by the IP address. The ISP will then send the first alert; perhaps an email that notifies the subscriber that their account has been involved in a copyright infringement. This first alert will also direct the subscriber to educational resources which will provide an explanation of the law violated, how to avoid copyright infringement, and provide legal ways to obtain content. If the activity persists, a second alert is sent which reiterates the warnings and provides the resources of the first alert.

The third and fourth alerts are very similar in nature. Not only will the subscriber receive an alert, but they will be forced acknowledge receipt of the warnings that they are violating a copyright. The fifth alert allows the ISP some leeway in what steps are taken to stop future copyright infringement. The ISP may temporarily reduce the speed of the subscriber’s internet; redirect the user to web page until the user calls the ISP to discuss the matter, or any other measures that the ISP deems necessary. The sixth alert will involve more harsh mitigation measures at the discretion of the ISP.

The CAS represents a compromise between internet users and the movie and music industry, who were seeking much harsher measures. Those industries were seeking a plan that would cut off internet service to the subscriber after the sixth alert, or even fine the ISP provider for each transgression after the sixth alert, which would then be passed down to the subscriber. A similar system has been implemented in France. The CAS alerts do not alter the rights of the copyright holder, who can still treat each alert as a separate infringement for purposes of damages under the Copyright Act. The Center for Copyright Information expects this system to be launched by the end of 2012.

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