Piracy Alert System Raises Concerns About Fair Use, Misidentification

Feb 27, 2013
Originally published on February 27, 2013 5:57 pm
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Now, a new tool in the anti-piracy toolbox. This week, half a dozen Internet service providers - from Verizon to AT&T, along with entertainment industry trade groups - launched the Copyright Alert System.

It's a program to help deter online piracy. When they see movies or TV shows getting swapped illegally, they will trace that back to the person who's doing it, using the IP address. And then - well, here to tell us what happens next is New York Law School professor James Grimmelmann.

And James, what happens next?

JAMES GRIMMELMANN: So it starts off very mildly. All they do is throw up a pop-up window to say, hey, we saw what you're doing there. You know, there's this thing, copyright law, you really should be aware of it.

CORNISH: So you just get a nice wrap on the wrist, a warning. And what exactly is behavior that's considered bad behavior under this system?

GRIMMELMANN: So they're looking for people who are downloading or uploading really complete copies of works. They're looking for somebody who's sharing a complete movie or something like that.

CORNISH: And so there are actually six steps, right, in all. It's called the six strikes system. Walk us through some of those later warnings. What happens if you're a repeat offender?

GRIMMELMANN: So after you get past the first two steps, they make it a little more serious by making sure they have your attention. So now they need you to acknowledge that you've actually seen the warnings. So you go to a kind of mini copyright jail where you have to actually click through to say I've seen this. It's kind of like when you're at the airport using the WiFi there, you have to click through the terms and conditions before you can get online. And part of this is building a record so that people can't say, I had no idea what was going on.

CORNISH: So just how serious a penalty can the Internet service provider levy against people? I mean, can they yank their service altogether?

GRIMMELMANN: So Time Warner has said that, yes, if he gets to the sixth step and you haven't shown any signs of changing your ways, yes, they will cut you off. The others are going to take milder steps. They might slow down your connection a bit to make it harder to download. They might block you from sites that are known to be sources of a lot of infringing files. It's a variety of approaches.

CORNISH: So we should be clear that this is not run by the government in any way. I mean, this is a voluntary program between all these, the companies and the Internet service providers. But what's in it for the Internet service providers? Why would they take part in this?

GRIMMELMANN: So some of them, like Comcast, are also in the entertainment business. They produce and sell entertainment content. So they're copyright owners, too, and it's in their interest. The others are probably doing it to avoid trouble. That is an area on which they don't want to be accused of shielding infringers, so they see this as a way to hold off the pressure that might try to hold them liable for infringements by finding a compromised middle ground.

CORNISH: Now Internet privacy groups cannot be happy with this. Outline some of their concerns.

GRIMMELMANN: So one of the concerns has to do with due process, that there's just this list of IP addresses and it comes with the presumption that person who was targeted actually was doing something illegal. But there's a concern about misidentification. There's a concern that some of these uses might be fair uses and legal. There is a concern that it might be just somebody else was using my wireless network and it wasn't me at all.

CORNISH: When you look at the online video promoting this or kind of materials from the copyright alert system, it's very couched in terms of this is education. This is educating the public about copyright law. I mean, is this education or is this them cracking down?

GRIMMELMANN: This is an alternative to the crackdown they tried that didn't work so well. And they are hoping that an educational campaign will help. I don't think education about copyright will do that much, but the sense of you are being watched might.

CORNISH: James Grimmelmann is professor of law at New York Law School. James, thank you for coming in to talk to us.

GRIMMELMANN: It's been my pleasure. Thank you.


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