Dr. Geek: The Corporate Coup Over Copyright Infringement

Because they were not getting their way with the government, the major communication corporations that serve as the primary Internet Service Providers (ISPs) in the country have taken matters into their own hands to curtail the spread of pirated content.  In a move that flies in the face of net neutrality, and is a response to the life and death of SOPA and PIPA, the major ISPs have enacted a policy they call the Copyright Alert System (CAS) to monitor and punish copyright infringement over their physical systems.

Early this week, after being in the works since 2011, the five largest ISPs in the country — AT&T, Comcast, Time Warner, Cablevision and Verizon — began a program that has been dubbed “Six Strikes” because of the new graduated warning and punishment policies initiated to monitor your online behavior for actions deemed as piracy, such as filesharing of copyrighted material via peer-to-peer (P2P) networks.

What happens if the ISP spots such filesharing occurring and links it to you via your IP address?  Well, here is where the notion of six strikes come in.  According to the breakdown from the Daily Dot, this is a gradual warning system.  First, you will be alerted about your infringement activities: with strikes one and two, you could receive messages indicating that this behavior has been detected.  Second, you will be required to acknowledge these warnings, should you continue such behavior: for strikes three and four, you could be made to watch a video and indicate your understanding of it before you are allowed to move on (and, yes, it is as murky as that sounds).  Finally, should you continue on in these behaviors, the ISPs will engage in some form of mitigation: with strikes five and six, your connection to the Internet could be slowed down by your ISP.

Each ISP has indicated that they will handle the warning and punishment system differently, so I encourage you to check out Mashable’s coverage of the story to learn how your ISP will behave.  Additionally, this program is only applicable to wired networks the ISP controls, and not the 3G or 4G networks for wireless-only devices.  However, your wireless router at home would be subject to the CAS, and if you have an unprotected router through which others are surfing and filesharing, you would get the alerts, not them.

But Jill Lesser, Executive Director of theCenter for Copyright Information (CCI), the organization of ISPs, Motion Picture Association of America, Recording Industry Association of America the Independent Film and Television Alliance, and the American Association of Independent Music behind this program, appears to indicate that should you get more than six strikes, you will no longer be within the purview of this program, meaning you will receive no more warnings and punishments from the ISP.  Now being sued by the content producer, that’s a different story…

Wait, you mean, you can get free movies online if you know how to do it?

Let me just reiterate, this is not a government-mandated policy; no law has been passed in the country requiring the ISPs engage in this “educational program,” and no government body has legalized this form of warning and punishment system.  This is the corporations and private organizations acting in concert  to devise, implement and enact a policy that could impact how people can access online content.  And while the policy is intended to target and thus affect only those who knowingly and repeatedly pirate copyrighted material, there is no guarantee that people who are innocent of such acts will not be flagged by their ISP and have their Internet access affected.  While the ISPs and CCI have said that there are fail-safes in place to allow a person to challenge being treated this way, this does not mean it will be an easy, cheap, or timely process.  Rarely is anything combining mitigation and bureaucracy easy, cheap or timely.

Why are the ISPs doing this?  Well, largely, because they have not been able to coerce the government into enacting tougher penalties for copyright infringement.  SOPA and PIPA both went down, and the advocates for net neutrality and an open net are continually blocking their attempts to enact similar legislation.  And why do the ISPs care so much about the issue of copyright infringement?  Because, outside of AT&T and Verizon, the ISPs are component companies of larger multinational corporations that are responsible for the production of the content that they say is being pirated.  In order to maintain their hold on the market, and thus maintain or increase their revenue generating potential, they need to make certain that their content cannot be easily obtained for free via filesharing.  Tracking users’ activities, and having a record of warnings, would allow the content producers to have more legal ground upon which to file lawsuits, should they deem it necessary to do so.

The CCI, tasked with being the lobbying group for CAS, has been doing what it can to mitigate people’s fears and criticisms by stressing how this new policy is intended primarily to be educational.  The video embedded below, produced and distributed by CCI as part of their outreach campaign, stresses that, you know, sometimes people are not aware that their filesharing is actually copyright infringement, and thus illegal, so we of the CCI just want to tell them so that they are aware.

See?  The calming, soothing voice is meant to indicate that this is all for your own good, you ignorant criminal you.

Now, this all begs the question: just who do they think the CAS will actually affect?

In speaking with On the Media‘s Brooke Gladstone,  Gladstone asked Lesser about how this will impact the more hardcore infringer, who could use virtual private networks (VPNs) for their P2P filesharing.  Lesser seemingly acknowledged that they will not be able to go after those who are the most knowledgeable, and thus engaging in most of the piracy, when she said the hope for this program is to target the “casual infringer“.  Now, I don’t know about you, but I do not know many people who would be casually engaging in P2P filesharing, given the technical knowledge required to do so — it’s not like you can just Stumble Upon a P2P and immediately get to pirating.  A good torrenting network is not as easy to access and use as YouTube, which we can all agree can be used in a more casual manner.  People who do not know how to fileshare are already going to the Hulus and iTunes of the online world to get their media, and thus these people will not be targeted and influenced by CAS.  And those who do know how to use the P2Ps, well, they know ways around CAS, and even if they didn’t, they can find them out, thanks to the online community.

Lesser goes on to say that this educational program is intended to let people know what they are doing that is illegal, and why it is so.  But the “why it is so” is akin to those commercials intended as guilt trips to make you feel bad that you are taking money from union workers every time you watch or listen to pirated material.  Or those that equate the piracy of media content — which online is purely digital, electronic, ethereal — with the theft of physical goods. Why should you not pirate? Because not spending money on the media means less profits, so less pay to those making the media, and because Stealing Is Wrong!

But groups like the CCI miss the point: the question is not why people should not pirate, it is why people do pirate.  And, sure, one reason is that some do not want to have to pay the cost required to have access to the content — there are people out there who will game the system any time they can. But other times it is because they just cannot have access to the content in a way that is timely and at a price that seems to match the material. People around the world who are fans of the same media would like to have access to that media at the time of its release: filesharing makes this possible.

The corporations and organizations behind the CAS would learn well from this reason for piracy: if they just made their material more easily accessible on a global scale, at a cost that seems fair given the material, then there would be less of a desire and then a need to pirate the material.  Instead of putting their resources into monitoring and punishing copyright infringement, they should be investing in ways to give us this copyrighted material in a more user-friendly manner. Until they do that, no amount of convoluted educational programs are going to matter — people will find a way around the policies, or they will just turn away from the copyrighted content all together. And if the corporations as content producers are concerned now about diminished profits, then wait until the people get fed up and go elsewhere.