Last Friday, the Center for Copyright Information quietly issued a brief statement that the Copyright Alert System (CAS), the American ISP copyright monitoring scheme that started in 2013, is ceasing operations.
The CAS was a graduated response scheme of a different sort from the ones that launched in countries like France, South Korea, and New Zealand. First, it wasn’t run by the government; it was a private agreement set up by the video and music industries (through trade associations like the MPAA and RIAA) on the one hand and five of the U.S.’s largest ISPs on the other. Many ISPs didn’t participate in the CAS, including large ones like CenturyLink, Charter, Cox, and Frontier.
(The scheme was brokered by Andrew Cuomo, then Attorney General (now Governor) of New York State, who got the parties negotiating — presumably under threat of legal action if they didn’t come to an agreement. All of the participating ISPs offer service in New York.)
The entities engaged the copyright monitoring service MarkMonitor to detect potential infringements on file-sharing networks and send notices to participating ISPs that included IP addresses of the alleged infringers’ devices. MarkMonitor used Audible Magic’s fingerprinting technology to identify content that it found being shared. ISPs would receive the notices from MarkMonitor, look up the identities of the accounts using those IP addresses at the time in question, and send them a series of escalating warning messages (hence the term “graduated response”).
Another difference: while other graduated response schemes have three levels, the CAS defined six levels of alerts. The first four were email warning messages. The fifth and sixth were intended to be punitive, but their specifics were left up to each ISP, and they weren’t very punitive. Only one ISP — Cablevision (Optimum Online), the smallest of the participating ISPs — actually suspended Internet service on the sixth alert, and only for 24 hours. There were no fines. Other so-called mitigation measures included placing alerts in users’ web browsers until they call the ISP, requiring users to watch videos about copyright, and temporary bandwidth throttling. After the sixth alert, no further action would be taken (by any ISP).
This put the CAS on the “educational” end of the spectrum of graduated response programs, like the proposed Creative Content UK (f/k/a VCAP) system, and as opposed to the more punitive programs in South Korea and New Zealand, whose processes could lead to long-term suspension or termination of users’ Internet service. (France’s HADOPI no longer suspends Internet service for repeat offenders, but it still issues fines that typically amount to a few hundred Euro.)
Graduated response systems had a vogue starting in 2009 (when HADOPI launched) that lasted a few years. The general consensus, from various studies done by the organizations themselves as well as independent researchers, is that they worked for a while to reduce file-sharing on the P2P networks that they monitored and to boost sales of content through legal channels.
But then so-called piracy migrated from the file-sharing networks to other venues, such as direct download sites and unauthorized streaming. And graduated response was never going to be able to stop determined large-scale infringers, who aren’t bothered by warning messages and use various techniques to avoid having their IP addresses traced to them.
The CAS had other issues that were peculiar to its relationship to U.S. copyright law. The Digital Millennium Copyright Act (DMCA) is best known as a law that offers online service providers “safe harbor” from liability from their users’ infringements if they remove content in response to takedown notices. But a lesser-known provision of the DMCA also requires service providers to “terminat[e] in appropriate circumstances … subscribers and account holders … who are repeat infringers[.]”
All American ISPs, as well as many other kinds of online service providers, have repeat infringer termination policies posted on their websites. CAS-participating ISPs had separate language about the CAS. The relationship between the CAS and the repeat infringer termination language in the DMCA was never really clear; for example, it was ambiguous whether or not participation in the CAS “counted towards” a DMCA-compliant repeat infringer policy. And the repeat infringer clause itself wasn’t clear either, as it didn’t define “repeat” (how many times?), “infringer” (found by a court, or just alleged?), or “appropriate circumstances.”
Although that part of the DMCA had been tested in court against other types of service providers, it hadn’t been tested against ISPs. That changed just over a year ago. Cox, a major ISP that didn’t participate in the CAS, had been sued by BMG and Round Hill Music, two music publishers that worked with the copyright monitoring service Rightscorp. In December 2015, the court found that Cox’s repeat infringer termination process wasn’t stringent enough to qualify for the DMCA safe harbor, and it hit Cox with $25 million in damages.
The verdict caught many in the industry off guard. The legal battle is not over: Cox is appealing the case, and two smaller ISPs (RCN and Windstream) have filed for declaratory judgments against BMG and Rightscorp, proactively asking courts not to hold them responsible for any infringements by their subscribers. Yet it’s likely that the BMG v Cox decision caused other ISPs to strengthen their DMCA notice handling processes to help them avoid the same fate as Cox. And that may have helped lead the content industry associations to decide that the Copyright Alert System was no longer necessary. In other words, the media industry may have decided that they now have more leverage with ISPs against infringements than they did through the CAS.
For their part, ISPs are probably happy not to have to send out warning messages, make users watch videos, put alert notices in their web browsers, or throttle users’ bandwidth. The lesson to be learned from the graduated response experience in the United States is that a real threat of losing Internet access is probably a more persuasive argument against piracy than a few slaps on the wrist with an email message.