(photo: Michael Kwan)

The Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA) and several Internet service providers (ISPs) announced an agreement to create a copyright alert system that would make it possible for the entertainment industry to further crack down on online copyright infringement. The agreement announces the establishment of a Center for Copyright Information (CCI) that would combat the illegal distribution of copyrighted work and also deter users from engaging in Peer-to-Peer (P2P) file exchanges and illegally sharing content through file hosting or streaming.

The industry interest groups are even promoting the launch of a grassroots or “astroturf” organization called Creative America, that will educate the public on how “content theft” impacts jobs and creativity.

The proposed regime would use a combination of education and deterrence to combat online infringement. It establishes an “independent review” process that would make it possible for users to challenge the review. The entertainment industry interest groups involved acknowledge that fair use, “any copying of copyrighted material done for a limited and ‘transformative’ purpose, such as to comment upon, criticize, or parody a copyrighted work,” done without consent or permission from the copyright owner, would not be prohibited. However, there exists great potential for these industries in the world of Big Media to violate users’ Internet freedom.

The agreement claims the “copyright alert system” would be “consumer-focused.” It would identify and notify “residential wired Internet access service customers of the Participating ISPs who receive multiple notification of allegations of online infringement made via P2P networks and applications.” The system would aim to “educate consumers, deter online infringement and direct consumers to lawful online legitimate sources of content.”

The following are all listed as “Participating ISPs.” It is highly likely most users in America get their Internet from one of these entities:

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, and BellSouth Telecommunications, Inc. (the AT&T Inc. companies); Verizon Online LLC, Verizon Online LLC – Maryland, and Verizon Online Pennsylvania Partnership (the Verizon companies); Comcast Cable Communications Management, LLC; CSC Holdings, LLC (solely with respect to its cable systems operating in New York, New Jersey, and Connecticut) (the Cablevision systems); and Time Warner Cable Inc.

Walt Disney Studios Motion Pictures, Paramount Pictures Corporation, Sony Pictures Entertainment Inc., Twentieth Century Fox Film Corporation, Universal City Studios LLC, and Warner Bros. Entertainment Inc. and UMG Recordings, Inc., Warner Music Group, Sony Music Entertainment, and EMI Music North America would also be supporting and cooperating with the proposed alert system.

In so many details, to shield those involved in the administration of this “copyright alert program” for “subscribers” from liability for abuse, a six-strikes program would be set up. There would initially be an educational step. The “subscriber” would be notified of the alleged infringement. It would inform the “subscriber” that infringement is illegal, in case a “subscriber” does not understand that owners own the rights to the content they create, or rather, have what’s called “intellectual property rights.”

Next will be an “acknowledgment step. “Subscribers” will have to acknowledge receiving two “copyright alerts.” This will require agreeing to cease to commit infringement. It will also say subscriber information may be provided to “third parties,” such as “Content Owner Representatives,” who will then know copyright is allegedly being infringed.

Following that step would be the “mitigation measures step.” At this point, in addition to acknowledging infringement has taken place, the “subscriber” would be notified that some sort of punishment or consequence would be applied to the “subscriber’s” account. The measures available would include: temporary reduction in uploading and/or downloading transmission speeds” or “temporary step-down in the Subscriber’s service tier to (1) the lowest tier of Internet access service above dial-up service that the Participating ISP makes widely available to residential customers in the Subscriber’s community, or (2) an alternative bandwidth throughput rate low enough to significantly impact a Subscriber’s broadband Internet access service (e.g., 256 -640 kbps).” The ISP may also just choose to piss off a “subscriber” and keep redirecting the “subscriber” to a “Landing Page” until the “subscriber” gets a hint and calls a customer service representative angry and then is forced to discuss the “Copyright Alerts.” Finally, there may be an educational program a “subscriber” has to complete, a kind of rehab, and then privileges would be restored.

A “post mitigation measures step” could take place following the previous step, and, if infringement is happening then, ISPs would likely bring the force of the Digital Millennium Copyright Act (DMCA) down on the “subscriber.” “Subscribers” reaching this point would have received six alerts.

As mentioned, this system would have an “independent review” process. “Subscribers” could get a review under these circumstances:

(i) Misidentification of Account – that the ISP account has been incorrectly identified as one through which acts of alleged copyright infringement have occurred.

(ii) Unauthorized Use of Account – that the alleged activity was the result of the unauthorized use of the Subscriber’s account of which the Subscriber was unaware and that the Subscriber could not reasonably have prevented.

(iii) Authorization – that the use of the work made by the Subscriber was authorized by its Copyright Owner.

(iv) Fair Use – that the Subscriber’s reproducing the copyrighted work(s) and distributing it/them over a P2P network is defensible as a fair use.

(vi) Misidentification of File – that the file in question does not consist primarily of the alleged copyrighted work at issue.

(vii) Work Published Before 1923 – that the alleged copyrighted work was published prior to 1923

[Note: It is not an error that (v) is skipped. That's how it appears in the document.]

Outrageously, a “subscriber” would have to pay $35 to initiate a review and get their Internet access back to normal. A “subscriber” would have to pay the interest groups backing this board when they improperly allege copyright infringement. When you think about what it might cost to operate an independent review board, this may be how they intend to cover administration costs—by shaking down consumers improperly accused of copyright infringement. (It seems highly unlikely that anyone would initiate a review if they couldn’t prove they didn’t infringe copyright.)

The “Unauthorized Use” defense would only be allowed to be invoked once, which is great for Internet service providers, who may want to deter “subscribers” from sharing a wireless router with others in a building. If “subscribers” are intimidated into being cautious, that means more profit for ISPs.

Records of subscribers’ history of invoking independent review would be kept. These records could be used to evaluate disputes during an independent review. It seems highly likely that one could argue fair use in some cases and lose or argue the file was misidentified and lose and in some cases make these same arguments and win. Could there be people who have to defend themselves against having their Internet access altered multiple times and would they be treated as “repeat offenders” with the board increasingly dreading having to listen to cases brought by these “subscribers”?

Finally, how would fair use claims really be handled? The proposal says “an accepted, independent expert on copyright law, who is approved by the CCI Executive Committee, to outline prevailing legal principles of fair use for purposes of deciding defenses of fair use, and any other legal principles necessary for resolution of issues within the scope of this Independent Review process.” How independent? If selected by these industry interest groups, won’t this person be someone who has likely litigated on their behalf before, someone who dines and goes to the same country clubs and wines and dines at the same restaurants these industry executives do? Isn’t he or she likely to be seen as someone of the same status as those at the top, who want this system in place to maximize profits?

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I graduated from Columbia College Chicago with a Film/Video degree and, while at Columbia College Chicago, I studied documentary filmmaking. I took a great interest in the “Documentary Filmmakers’ Statement for Best Practices in Fair Use” that the Center for Social Media helped put together. If you really want to know how fair use works or is supposed to work, check out the array of resources they have, which educate people on fair use.

Documentary filmmakers have asserted their right to fair use because of the constraints and demands that complying with copyright have placed on filmmaking throughout the past decades. Having to select only material that “copyright holders approve and make available at reasonable prices” means the public loses out and may not get certain knowledge or perspectives in a documentary. And, they have established that if copyrighted material is used for a different purpose than in the original and if they only used a small portion of the work courts are likely to find the content is covered by fair use.

How would the alert system impact online video creators? The Center for Social Media has a “Code of Best Practices in Fair Use for Online Video.” As they point out, makers of video have created mashups of work like with “Ten Things I Hate about Commandments,” which mashes together The Ten Commandment, Ben-Hur and 10 Things I Hate About You. NBC Universal and Viacom, along with online platforms like MySpace and Veoh, have previously crafted agreements that disappear content, which gets rid of videos that mashup copyrighted works. They have perverted the rights of creators by discouraging fair use.

Indiana University law professor Ken Crews points out that fair use is one of the “most hopelessly vague of legal standards, requiring complex and often subjective interpretation.” In the same manner that the political and wealthy elites might deride a whistleblower, copyright proprietors have regarded those who claim fair use as “scoundrels.”

Congress had the opportunity to define fair use when it updated the Copyright Act in 1976. But, to this day, it has done little to clearly outline what constitutes legal fair use and what doesn’t. In its revision, it did establish “the effect of the use upon the potential market for or value of the copyrighted work” could be considered when determining if something was protected under fair use, which creators or makers might find to be a provision that can easily be used against work they produce.

The problem this “copyright alert system” has is it is a top-down proposal. It is not bottom-up. It treats citizens who use the Internet as “subscribers” and not “makers,” “creators,” or “users.” “Subscribers” or “consumers” are paying for a service. They are consistently valued because they are providing payment and the value of the “subscriber” depends on the ability of the “subscriber” to pay up on time and use the array of services offered. A “user” uses and may not necessarily be interested in paying all that much. He or she may look to minimize costs. But, a “user” will claim rights to use the Internet, such as privacy and freedom. A “user” may also see his or her self as a “creator” or “maker.” A “creator” or “maker” will put content on the Internet that may make one value the fact that they have Internet service in the first place but an ISP would never suggest that they owe their existence and ability to sell services to the “users,” who on a daily basis populate the networked public sphere that ISPs commodify. They would never admit “users” are the market or that those who commit infringement are probably people who most use the services they offer.

When you consider this alongside the PROTECT IP Act, which the entertainment industry has been pushing Congress to pass, which would allow ISPs and server operators to “refuse to recognize Internet domains” courts deem “dedicated to infringing activities,” and allow courts to give sites the “death penalty” and order ISPs to stop recognizing sites through temporary restraining orders or preliminary injunctions—When you consider both PROTECT IP and the alert system proposal, it is clear freedom of expression is under attack from Big Media.

There may be a silver lining in this for people, who are totally disgusted by this move. This excerpt from the agreement indicates ISPs may stop processing ISP notices:

Each Participating ISP may temporarily cease processing ISP Notices or reduce the number of ISP Notices being processed if, in the sole discretion of the Participating ISP, (i) the Participating ISP receives more ISP Notices than its business processes and systems can reasonably address, (ii) the Participating ISP receives more calls from Subscribers regarding Copyright Alerts than its designated customer service representatives can reasonably address (taking into account the other demands on Participating ISP customer service representatives for unrelated purposes), or (iii) other demands on the Participating ISP’s business processes and systems, such as requests from law enforcement, must be given precedence.  If the Participating ISP temporarily ceases processing ISP Notices for any of the foregoing reasons, the Participating ISP shall promptly notify the Content Owner Representatives, subject to any limitations on such notice as may be imposed in law or regulation, and shall work cooperatively with the Content Owner Representatives and, if agreed by all affected Parties, the Independent Expert, to resolve any issues relating to the over-provisioning of ISP Notices. [emphasis added]

Users, who find this system would force them to change their Internet habits (because it essentially appears to make all P2P activity illicit), could just all go about their business and keep doing what they are doing. The success of the system will come from its ability to intimidate people into believing they will be threatened if they continue to do what they do. But, if handling “copyright infringement” becomes like herding cats, it’s back to square one, back to how things have always been—because for the longest time users who download and remix content have been able to enjoy the fact that because so many people are doing it Big Media cannot stop them.

To celebrate fair use and the makers and creators of the Internet, here’s a fair use classic, that might under the proposed “copyright alert system” be discouraged, depending on which industry executive you consult: