The music industry has been struggling to stem illegal downloads of songs and albums since Napster hit the internet in the late 1990s, and as dial-up internet (look it up) gave way to faster broadband, Hollywood studios joined in the fight. Suing college kids and suburban moms for illegal downloads as a sort of public warning mostly just earned the Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA) villainous reputations. This week, those trade groups, and the five major U.S. internet service providers (ISPs), launched a new mechanism, the six-strikes Copyright Alert System.
Here's how the new system works: The MPAA and RIAA will monitor peer-to-peer (i.e. torrent) file-sharing sites, and if they catch people uploading or downloading TV shows, movies, or songs, they'll record the user's IP address and send it on to the user's internet provider. The ISPs — AT&T, Verizon, Comcast, Time Warner, and Cablevision, so far — will send their customer a series of up to six escalating warnings, in three categories. (Ars Technica has examples of the warnings from Comcast. Watch two cheery explainer videos from the Center for Copyright Information (CCI) below.)
The first "strike" is a simple notice that you have been observed pirating content, probably through a pop-up window on your computer screen. Next comes the "acknowledgment" phase, where you have to confirm that you've been warned. This phase is "a kind of mini copyright jail where you have to actually click through to say I've seen this," New York University law professor James Grimmelmann tells NPR News. It's at least partly about "building a record so that people can't say, I had no idea what was going on." Finally comes the "mitigation" phase, where the ISPs dole out punishments. Each ISP has its own final phase, from throttling your internet speed to temporarily cutting off your service. But none of them will terminate your account — the ISPs "still want your money," notes Hayden Manders at Refinery 29 — and they will only hand over your personal information if the MPAA or RIAA decide to sue you. If you feel you've been wrongly accused, you can file an appeal for $35.
Unlike last year's legislative attempts to curb illegal downloads — the little-missed Stop Online Piracy Act (SOPA) and soon-to-be-resurrected Cyber Intelligence Sharing and Protection Act (CISPA) — the Copyright Alert System is a private endeavor between the ISPs and trade associations.
The Copyright Alert System has its critics. Some warn that the mere threat of trouble will stop coffee shops and other public places from offering Wi-Fi (the CCI says it won't harass shops providing public wireless access). Privacy advocates are mostly worried about "due process... the presumption that the person who was targeted actually was doing something illegal," and about "misidentification," says NYU's Grimmelmann. "There's a concern that some of these uses might be fair uses and legal. There is a concern that it might be just somebody else was using my wireless network and it wasn't me at all." The whole six-strikes system "is fundamentally flawed," University of Arizona tech law professor Derek Bambauer tells Ars Technica. If somebody downloads an entire movie or song, even if it's copyrighted, "if it's fair use, I am not an infringer — and yet, the private law of six strikes treats me as one."
Part of the reason is that users were never at the table: the bargaining parties were content owners and ISPs. And ISPs have very limited incentives to defend free speech or protect against mistakes — especially if all of their major competitors are in the system, too. No way to vote against the system with your feet. [Ars Technica]
Still, even most critics agree that the new system is better than the immediate lawsuits and legislative efforts like SOPA. The big question is: Will it work? "This all sounds great in theory — and we're big supporters of anything that gets people sued less — but we'll have to wait and see if this actually does any good," says Mario Aguilar at Gizmodo. "It's not like anything else has." There's pretty widespread agreement that "the crackdown they tried... didn't work so well," Grimmelmann tells NPR News. They're pitching this as an education campaign. "I don't think education about copyright will do that much, but the sense of you are being watched might." In other words, says Refinery 29's Manders, the Copyright Alert System "wants to insinuate a Big Brother type of internet environment to scare people away from illegal file-sharing platforms and steer them in the direction of legal downloading sites (we remember the iTunes Store — really, we do!). Torrenting won't stop, though; it'll just get more aggravating."
"Officials involved in the effort acknowledge it's unlikely to stop the biggest violators," says Anne Flaherty of The Associated Press. "There are ways to disguise an IP address or use a neighbor's connection that is unlocked." But it could stem file-sharing from casual pirates. The thing is, casual piracy is already on the decline. According to a new report from NPD Group, 40 percent of people who said they had illegally downloaded music through a peer-to-peer (P2P) service in 2011 ceased (or at least greatly decreased) their piracy in 2012, and after peaking in 2005, P2P music piracy overall dropped 17 percent by user, and 26 percent by volume, from 2011 to 2012.
Why? NPD lists several factors — the RIAA has forced some big P2P services to close, notably Limewire, and other P2P sites are so sketchy that people steer clear — but the biggest reason by far is "the availability of free music via streaming services like Spotify," says Alex Knapp at Forbes. Half of those who stopped pirating music cited free and legal music-streaming programs as the reason. "Stepped-up enforcement" didn't kill the Napster era, but Spotify and its competitors just might.
What's interesting to me is that streaming isn't just killing downloads. Forty-four percent of the survey respondents indicated that they'd also stopped ripping CDs from friends and family. Which makes sense. Why bother if you have on-demand access?... I suspect that as streaming services become more prevalent and as even more music becomes available on them, piracy will continue to decline. This will also likely be the case for movies and TV shows going forward, as they continue to be made more widely available. The only real question for the industry is whether the revenues from those streaming services will be enough for them to survive. [Forbes]
A more detailed look at the Copyright Alert System process: