ISPs and Big Content

Last week, when the ‘six-strikes’ policy was put in place, I spoke about some of the challenges Internet service providers (ISPs) would face in implementation and why I thought that robots policing the Internet was an unholy concept.

Since then, however, much more information has come out regarding the penalties copyright infringers may face, and who exactly is behind this idea. Of particular note are the legal intricacies of this whole arrangement, which will ultimately force ISPs to terminate their customers’ service or lose legal protection against copyright infringement under the Digital Millennium Copyright Act’s (DMCA’s) safe-harbor provisions.

On October 12, 1998, Congress unanimously approved, and Bill Clinton signed into law, the Digital Millennium Copyright Act, which limited the liability of Internet service providers and online services for illegal activities provided they weren’t complicit in them. It is analogous to granting the U.S. Postal Service immunity for transporting drugs through the postal system; they cannot very well be held liable for some miscreant’s mailing illegal materials. While there are many clauses to the DMCA, it is one of the foundations of the “Free Internet” and allows most user-driven online services to continue operating.

Thanks to the popular information “leaking” site publicintelligence.net, we now know exactly who is involved in the six-strikes law. This document is a statement of understanding between all the parties involved in the creation of the Center for Copyright Information (CCI) and outlines how six-strikes funding, enforcement, and information will be shared among interested parties. Of note is the equal sharing of costs associated with the center between approximately 21 Internet service providers and 10 content creators. While it is clear that big content has an economic interest in protecting intellectual property and therefore would be willing to fund this center, it is a mystery why these 21 Internet providers would take on this burden.

In the litany of articles and press releases regarding the “mitigation procedures” that ISPs will take against users that have been flagged by the Copyright Alert System (CAS), there is one very important omission. Internet Service Providers are legally bound to a service termination response if they would like to maintain a DMCA Safe Harbor defense for illegal activity on their network. According to section C1A of section 512 of the Digital Millennium Copyright Act, the service providers cannot be held liable for illegal activity provided they do “not have actual knowledge that the material or an activity using the material on the system or network is infringing” and “upon obtaining such knowledge or awareness, acts expeditiously to remove, or disable access to, the material.”

Considering ISPs are now splitting the costs of a copyright monitoring system, it will be difficult for them to use the ignorance defense, since they do indeed have knowledge of infringement activities. As far as the mitigation measures go, the ISPs have claimed they will simply notify customers of suspect activity and after repeated offenses throttle down network speeds or force users to complete a copyright re-education course. These processes, however, do not fulfill the requirements of “removing or disabling access to, the material” and clearly leave the providers open to legal liabilities regarding what their networks are used for, unless they take the additional step of terminating service.

The question of why Internet service providers would give up these legal protections and spend so much money on big content is truly perplexing. They stand to loose credibility and customers should these issues come up — and trust me, they will. So here is what I propose. Let’s get out in front of this — look for local Internet service providers who aren’t paying or playing nice with the Center for Copyright Information (see list of participants at the bottom of this column) and switch over your service. Tell the ISP that you don’t want to pay a corporation that in turn uses its profits to monitor your online activities, even if it’s via a proxy organization like the CCI. This will be the first step toward freeing yourself from the grip of overzealous corporations and send will send a strong message — hands off our Internet!

The List of Known CCI Conspirators

Participating ISPs

SBC Internet Services, Inc.

BellSouth Telecommunications, Inc.

Southwestern Bell Telephone Company

Pacific Bell Telephone Company

Illinois Bell Telephone Company

Indiana Bell Telephone Company Incorporated

Michigan Bell Telephone Company

Nevada Bell Telephone Company

The Ohio Bell Telephone Company

Wisconsin Bell, Inc.

The Southern New England Telephone Company

BellSouth Telecommunications, Inc.

AT&T Inc.

Verizon Online LLC

Verizon Online LLC – Maryland

Verizon Online

Pennsylvania Partnership

Comcast Cable Communications

Management, LLC

CSC Holdings, LLC (Cablevision systems)

Time Warner Cable Inc.

Participating Big Content

MPAA Members

Walt Disney Studios Motion Pictures

Paramount Pictures Corporation

Sony Pictures Entertainment Inc.

Twentieth Century Fox Film Corporation

Universal City Studios LLC

Warner Bros. Entertainment Inc.

RIAA members

UMG Recordings, Inc.

Warner Music Group

Sony Music Entertainment

EMI Music North America