Copyright and Copywrong: Comcast Implements "Six Strikes"

Copyright and Copywrong: Comcast Implements "Six Strikes"

As part of a nationwide initiative among Internet Service Providers (ISP), Comcast this week implemented the "Copyright Alert System" (CAS), a system it says is intended to educate users about copyright infringement and legal ways to obtain music and video. Despite the carefully phrased descriptions that are meant to highlight the purported fairness of this system, copyright activists are quick to point out the ways in which it sidesteps the legal system, provides no true due process, and promotes a view of copyright that goes beyond what the laws actually say.

Even before the success of the pioneering file sharing service Napster in 1999, content industry representatives - The Recording Institute of American (RIAA) and the Motion Picture Association of America (MPAA) - warned of vast economic harms from copyright infringement ("piracy") and have lobbied Congress for increasingly strict technical and legal means to prevent it. In 1998 Congress passed the Digital Millenium Copyright Act (DMCA) as well as the Copyright Term Extension Act(also known as the Sonny Bono Act) which extended the lengths of copyrights to the life of the artist plus 70 years, and provided mechanisms for the RIAA and the MPAA to identify suspected infringers, seek redress through the legal system, yet immunize ISPs - who may have no idea of the activity on their network - through "safe harbor" provisions. In 2012, the industry attempts to further strengthen copyright enforcement through the Stop Online Privacy Act (SOPA) was met with unexpectedly strong backlash from the internet users and corporations and failed to pass Congress.

Despite repeated industry warnings, study after study have failed to find the economic damage the RIAA and the MPAA say exists. Some have called online piracy a customer service problem, suggesting that much so-called piracy results from music and films not being easily available on line. One study released this week seems to bear that out, showing a 26% reduction of file sharing, resulting not from increased enforcement, but from services like Spotify, that make the streaming of music easier.

Not satisfied by the remedies afforded them under current law, the content industries have joined with ISPs to create the CAS, dubbed "Six Strikes and You're Out."

Similar to current enforcement, Comcast will receive from the content owner a notice stating that it believes that copyright infringement has occurred. Under the DMCA, the copyright owner supboena Comcast for identifying information and then take the alleged infringer to court. Under the CAS, on receipt of notices, Comcast will start sending you alerts that apparent copyright infringement had taken place on your connection. After the fourth alert, Comcast will engage in "mitigation measures". Comcast does not specify on its web site what its mitigation measures are, except to assure customers that no account will be terminated. Mitigation measures used by other ISPs include things like progressively slowing your connection speed, or blocking your connection to the web until you contact their security staff.

It is only after the 4th alert that customers are allowed an "independent review", not by any legal entity, but to an arbitration service hired by the Copyright Information Center, the industry group administering the CAS. Independent review requires the payment of a $35 fee, which it says can be waived in cases of proven financial hardship and is refunded should the customer prevail. And "independent review" limits the grounds under which you can appeal.

The Electronic Freedom Foundation, a legal advocacy group focused on online rights, notes a number of problems with this structure. Sharing of even copyrighted material is not necessarily illegal, as fair-use promotes sharing for certain purposes. And the notion of ISP account holder being legally responsible for everything that occurs with that account isn't valid unless a series of other conditions are met.

But the problems run deeper than this. Comcast, on its web pages, carefully notes that they will never identify you to content owners, implying a protection of privacy via an arms-length relationship. Comcast, however, with its controversial purchase of NBC/Universal in 2011, is itself a major content owner. Thus Comcast is trying to assure you that it won't tell itself who you are. These assurances aside, Comcast is still obligated to respond to subpoenas from content owners demanding identifying information.


If one is unhappy with a service provider, the free market should offer competitive alternatives. In Part II of this series, we'll explain how Comcast came to have monopoly in Cambridge and what remedies are available to address this problem.

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The Center For Copyright Information's explanatory video of the CAS: