Copyright Alert System Launching Today

The long-discussed Copyright Alert System (CAS) is launching today — but don’t expect any immediate fireworks.  It’s going to take some time to see how the system operates in practice; all that will happen this week is that some Internet users may receive initial informational alerts.

Under the CAS, ISPs will send warning notices to subscribers that copyright holders have identified as engaging in copyright infringement on peer-to-peer networks.  In the optimistic scenario, this notification-centric approach will serve a largely educational purpose, informing users that their file sharing activity may be both illegal and observable by rightsholders.  Some users may not have been fully aware of that.  And in some cases, notices may clue parents in to illegal behavior they weren’t aware of, such as file sharing by the household teenager.  This is why CDT has said that the CAS has the potential to help reduce peer-to-peer copyright infringement while sidestepping the serious concerns raised by approaches that involve (for example) government mandates or the adoption of new snooping or filtering technologies.

There are risks, however.  The CAS also involves sanctions (labeled “mitigation measures”) for subscribers who keep receiving notices.  If users are mistakenly swept into the system, and if sanctions are imposed unfairly or in a disproportionate manner, the system could trigger substantial hassles and problems for Internet users.

The preliminary indications are reasonably positive.  For example, the 2011 agreement to establish the CAS includes account suspension as a possible remedy, but the Center for Copyright Information (CCI), the organization set up to coordinate the CAS, has stated publicly that ISPs will not be suspending the Internet accounts of suspected infringers.  That’s crucial; CDT is strongly opposed to the idea of cutting off subscribers, even temporarily, based on allegations that have not been tested in court.  In addition, CCI’s initial choices of advisors and personnel includes consumer advocates and appears to reflect a genuine effort to get some balance and diversity in the oversight of the system.

So what questions remain?  Well, there are a number of things that will bear close scrutiny as implementation unfolds.  For example:

• Will the system be successful at ensuring the responsible account holder receives and reads the notices? Many Internet users have overloaded email inboxes, and any notice that pops up on the screen may be just as likely to be seen by a teenage file sharer as the parent.
• How effective will the system be at avoiding mistakes?  The CAS contains safeguards aimed at ensuring the methods used to identify infringers are fully reliable.  And the CAS expressly targets file sharers swapping complete works, rather than files containing short excerpts.  But will these safeguards and limitations be effective in practice?  Will some Internet users be wrongly accused?  How often?  Will accusations end up getting leveled at users sharing documentaries or other items making “fair use” of portions of copyrighted works, despite initial assurances to the contrary?
• If and when mistakes do occur, how effectively will the system remedy them?  Will the appeal process prove simple and practical enough for consumers to use when needed?  Will the system effectively track and learn from any mistakes that occur, so that any problems can be identified and fixed?
• How often will “mitigation measures” end up getting imposed, and how serious will their impact be for affected users?  Ideally, sanctions would be sufficient to get users’ attention, but not so burdensome as to impose major hardship.  Taking account suspension off the table as a possible sanction was a key first step in making sure the system is appropriately calibrated. Extreme versions of bandwidth throttling could pose analogous concerns, depending on how severely users’ connections are slowed and for how long.
• Will the education provided by the CCI paint a fair and balanced picture of copyright law?  Many areas of copyright law are subject to interpretation and debate; if CCI takes a one-sided approach to hotly debated issues, it won’t have much credibility and its ability to play its intended educational role will suffer.

The bottom line is, the practical results of CAS implementation will take time to play out.  There’s potential for the system to play a positive, education-focused role.  There are positive indications that this is what it aims to do.  But the real test for any system is not how it looks on paper, but what its real-world consequences turn out to be in practice.  We’ll be watching with interest.