‘Copyright Alerts’ against ‘Content Theft’: Three Strikes through the Backdoor of Private Regulation?

Yesterday, as is reported by the 1709 Blog, the Recording Industry Association of America (RIAA) announced that “Music, Movie, TV and Broadband Leaders Team to Curb Online Content Theft“. The press release not only obtrusively evidences the change in wording from “piracy” to “content theft” (see “Too Sexy for Being an Insult: Framing Piracy“), but also advertised two remarkable initiatives: the introduction of a common framework for so-called “Copyright Alerts” and the foundation of a “Center for Copyright Information“. Taken together, these initiatives constitute the most comprehensive attempt of private regulation in the field of copyright since the (failed) attempt of establishing all-encompassing Digital Rights Management (DRM) systems at the end of the 1990s and the early 2000s (see also “DRM in the Music Industry: Revival or Retreat?“).

According to the RIAA, the “Copyright Alerts System” will address (alleged) online copyright infringement

with a series of early alerts — up to six — in electronic form, notifying the subscriber that his or her account may have been misused for online content theft of film, TV shows or music. It will also put in place a system of “mitigation measures” intended to stop online content theft on those accounts that appear persistently to fail to respond to repeated Copyright Alerts.

Such alerts are not completely new. Even today, the RIAA states, many Internet Service Providers (ISPs) forward to subscribers notifications that they receive from content owners about alleged content theft. What is new, however, are the proposed consequences. The press release stays silent about details of these measures and only assures that “[t]ermination of a subscriber’s account is not part of this agreement“.

What is, indeed, part of the agreement can be read at the Center for Copyright Information’s FAQ-page, which provides the following list of potential “mitigation matters”:

Failure to respond to these alerts will lead to additional steps designed to ensure that the account comes into compliance.   These steps, referred to as “Mitigation Measures,” might include, for example: temporary reductions of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss the matter or reviews and responds to some educational information about copyright, or other measures that the ISP may deem necessary to help resolve the matter.

In the light of this catalogue of enforcement measures, it sounds quite odd that the RIAA argues in its press release that “[t]here are no new laws or regulations established as a part of this voluntary agreement“. What if not private regulatory measures are the very essence of this agreement? Furthermore, the agreement between ISPs and the content industry may be voluntary but definitely not voluntary from the perspective of the affected Internet user.

In its proposed form, the ‘Copyright Alerts System’ is as close as one might get to a private version of the much debated “Three Strikes/Graduated Response” laws. The proponents of this system seem to be very well aware of that and try to pre-emptively defy any such accusation, for example in point 14 of the FAQ-page quoted above:

Contrary to some press reports, this program is unlike so-called “three strikes” as it creates no new laws or formal legal procedures, nor does this system require account suspension or termination.  Rather, it is a voluntary cooperative effort among ISPs and leading U.S. content providers. Neither the copyright owners nor the ISPs will take any new actions that are not already authorized under existing law.

Of course, this agreement does not create new laws in a narrow legal sense because this is the privilege of democratically elected legislatures. For Internet users, however, this agreement could manifest in law-like consequences. If most ISPs abide by the Copyright Alerts System, users will have little choice but to abide, as well. That is why even private regulation, which is often referred to as “soft law” (see Abbott and Snidal 2000, PDF), potentially bears hard consequences given widespread adoption and enforcement.

What we are observing in the US right now – and one need not be a prophet to predict that Europe will follow suit – is the introduction of an Internet traffic surveillance and copyright enforcement infrastructure through the backdoor of private regulation. For civil society organizations, which have been quite successful in many European countries such as Germany in mobilizing against the introduction of such an infrastructure by national legislatures, these private regulatory initiatives constitute a difficult new challenge.

(leonhard)