The music and movie industries have been waging war against file-sharing for years, asserting this popular activity has produced an epidemic of online copyright infringement. The war, however, has not gone well. The content industries have spent vast sums of money in repeated legal attacks without putting any real dent in the amount of allegedly infringing file-sharing.
Now, however, these content industries are trying a new, less confrontational strategy. And this time, the industry may finally succeed in suppressing infringing file-sharing.
The war began more than a decade ago, with a series of direct attacks. The content industries filed infringement suits against companies such as Napster and Grokster that enabled users to share files of copyrighted materials. The content industries won these lawsuits and put the defendants out of business. Nevertheless, file-sharing continued to grow.
Then the content industries filed thousands of lawsuits against individual file-sharers. That was a resounding failure. File-sharing continued unabated, and the lawsuits savaged the industries’ reputation, causing much of the public to see the large movie and music companies as greedy bullies.
The Kinder Side
In late February, the content industries initiated a kinder, gentler approach. The Copyright Alert System (CAS) is a joint effort by the content industries and five major Internet service providers (ISPs)—AT&T, Cablevision, Comcast, Time-Warner and Verizon. The CAS makes content industries responsible for determining if a copyrighted file is being downloaded without authorization and to which Internet protocol (IP) address. If a copyright owner finds such infringing file-sharing, the owner sends the details to the relevant ISP, and the ISP passes along a notice of infringement to the customer using that IP address at the time of the alleged infringement.
If the customer continues to share infringing files, the ISP sends out additional notices to the customer using more forceful language, and the notices progressively become harder to ignore. Different ISPs have different notification policies, but in general, when an ISP sends out a fifth or sixth notice of infringement, the customer’s Internet access is disrupted until the customer calls the ISP.
The goal is not to punish the customer, but to ensure that the notices are reaching the intended recipient. “We are just making sure the primary account holder is aware this [infringement] is happening so they can have a conversation with the rest of their household,” says Charlie Douglas, a spokesperson for Comcast.
One ISP, however, does punish allegedly infringing customers. After it sends a fifth notice of infringement, Verizon slashes the customer’s broadband speed down to a mere dial-up connection (i.e., from 25 megabytes per second to a pokey 256 kilobytes per second). This slowdown lasts for two days. If Verizon sends a sixth notice, the slowdown lasts three days.
One large ISP, Cox Comm- unications, is not participating in CAS; nor are any small ISPs. So customers of these ISPs can continue to engage in file-sharing, untroubled by CAS.
These customers, however, constitute only a small fraction of U.S. broadband consumers. And because there is little competition among ISPs, few customers will be able to escape CAS by switching ISPs.
But there are plenty of other ways for individuals to get around CAS. Because this system applies only to peer-to-peer file-sharing, it won’t hinder individuals who download infringing content from online file lockers (e.g., the notorious Megaupload) or who directly share files with their friends. People also can avoid CAS scrutiny by using proxy servers or virtual private networks to hide their activity. Or they can simply upload and download files on usenet groups.
“People who are determined to infringe will do so,” says Professor Annemarie Bridy of University of Idaho Law School. “The copyright owners hope CAS will swat out a lot of casual infringement by kids.”
That may well occur, if other nations’ experience is any guide. France and Ireland have systems akin to CAS, and preliminary data indicates that these systems discourage a significant number of people who share infringing files, according to Bridy. “A very high percentage of people who get one notice don’t receive a second notice,” she says.
The French and Irish systems are tougher than CAS, however, with customers given just three notices before they are fined or have their Internet access shut down for a minimum of three months. Customers who receive notices could be changing their behavior largely to avoid sanctions. If so, the experience in these two countries would have little relevance to CAS, which has few, if any, sanctions.
Canada’s system is more like CAS, imposing no sanctions on those receiving notices. This pure notice system, which has been in place for several years, seems to significantly discourage infringing file-sharing. “The evidence suggests [this] regime has been working,” says Professor Jeremy de Beer of University of Ottawa Law School. “The vast majority of people will change their behavior when they are notified that what they are doing is illegal and their behavior is not anonymous.”
Yet even if CAS dramatically slashes peer-to-peer copyright infringements, it is unclear whether such a reduction would significantly help movie and music companies. “Repression reduces file-sharing, but I have yet to see it increase revenues for content companies,” says Professor Daniel Gervais of Vanderbilt University Law School.
In order to boost their income, content companies may need to do a better job of giving customers easy access to songs, movies and TV shows. “If you can move people to a paid, open system like Spotify, the need to file-share will go away,” Gervais says.