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How a Few Quick Downloads Could Bring Your Internet Browsing to a Crawl

By: Lena Mualla *

RIAA and MPAA representatives have been eager to roll out its latest attempt at curtailing rampant (to say the least) illegal downloading on the internet. Since the plan has been in the works for at least one year and will be rolled out over the next two months, it remains an open question whether this will be the latest in a string of failures in the entertainment industry’s quest to stamp out illegal downloading over the last thirteen or so years. In fact, this new approach of progressive penalties is a noteworthy departure from the industry’s old strategy of filing attention-grabbing, big-ticket lawsuits against random downloaders, with the intention of frightening ordinary downloaders by example.

The new progressive penalty plan, dubbed the Copyright Alert System (CAS), was first announced in July 2011, by the Center for Copyright Information (CCI). In that initial announcement, NYT had reported that the CCI asserted that the plan might involve having internet service providers (ISPs) terminate a user’s access to the internet. However, CCI emphasizes that this is inaccurate; termination of service is not a part of the current plan. The plan entails the following, in CCI’s own words:

“Educational alerts will come first, followed by acknowledgement alerts that require the recipients to let their ISP know they have received the notices. For accounts where alleged infringing activity continues, enhanced alerts that contain “mitigation measures” will follow. These mitigation measures will vary by ISP and range from requiring the subscriber to review educational materials, to a temporary slow-down of Internet access speed. However, termination of a consumer’s Internet service is not a part of any ISP’s Copyright Alert System program. Contrary to many erroneous reports, this is not a “six-strikes-and-you’re-out” system that would result in termination. There’s no “strikeout” in this program.”

The CAS is presented via the CCI site as a rather innocuous solution focused on the rights of “consumers” rather than punitive and compensatory measures. The press release on implementation emphasized that the ISP information would derive from the user information found on the peer-to-peer (P2P) network and other publicly available sources. In addition, the CCI emphasizes that education is key in reaching out to users interested in legally purchasing their entertainment, but unsure how to do so. By promising to guard users’ privacy rights, abandoning the “termination of service” option, and seemingly setting the focus of the plan to education, CCI has positioned itself as a friend, rather than an enemy, of the user. A brief distillation of the plan’s steps:

• Educational alerts
• Follow-up notice requiring acknowledgement of receipt
Mandatory review of educational material
• Temporary slow-down internet speed

With these tools available and major ISPs willing to comply with the CCI plan (including Time Warner Cable, Verizon, and Comcast), MarkMonitor would run automated searches for infringing content, including whole movies, TV shows, and music recordings. MarkMonitor has been criticized in the past for its inexperience regarding BitTorrent. Users wishing to contest allegations of infringement would have the option of appealing to the American Arbitration Association for a fee of $35. While some remain skeptical about the implantation of the CAS, the entertainment industry is refusing to ignore its perceived revenue loss. As RIAA claims on its site, since 1999 music sales have been cut almost in half, dropping from $14.6 billion to $7.7 billion. However, other research has undermined the claim that a causal link between downloading and music sales exists. Even assuming that music sales have taken a hit, this progressive penalty plan may not prove successful in combating illegal downloading, widely practiced as it is.

* Lena Mualla is a third-year law student at Wake Forest University School of Law. She holds a Bachelor of Arts in Government and International Politics from George Mason University. Ms. Mualla was awarded a Fulbright ETA award to teach in Indonesia following undergrad. She is interested in the areas of banking law and IP law.