Copyright Alert System's Demise Doesn't End Voluntary Anti-Piracy Efforts, Stakeholders Say
The demise of the Copyright Alert System doesn’t spell the end of voluntary cooperation between internet service providers and content rightsholders to combat online piracy -- just to one iteration of it, copyright stakeholders said in interviews. CAS operator Center for Copyright Information said Friday that the system's backers chose not to extend the pact that created the voluntary effort in 2013. CAS, which aimed to curb online piracy through penalties after more than six ISP-delivered warnings, remained troubled despite some backers highlighting it as recently as last year as a positive example of voluntary collaboration fostered under Digital Millennium Copyright Act Section 512 (see 1604010057 and 1605040064).
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CAS “demonstrated that real progress is possible when content creators, Internet innovators and consumer advocates come together in a collaborative and consensus-driven process,” CCI said. “CAS succeeded in educating many people about the availability of legal content, as well as about issues associated with online infringement. ... The parties remain committed to voluntary and cooperative efforts to address these issues."
MPAA believes the system “was a ground-breaking voluntary initiative to reduce piracy on peer-to-peer networks by educating consumers about its harmful impact on creators and the availability of legal alternatives,” said Global General Counsel Steve Fabrizio in a statement. But CAS was also “simply not set up to deal with the hard-core repeat infringer problem,” Fabrizio said: “These persistent infringers must be addressed by ISPs under their ‘repeat infringer’ policies” under Section 512.
A range of stakeholders echoed CCI’s belief that the voluntary cooperation on combating online piracy will continue. “It was an interesting effort but I don’t think it will be the last,” said Tom Sydnor, visiting scholar at the American Enterprise Institute's Center for Internet, Communications and Technology. CAS’ main problem was that its six-strike warning system didn’t account for “hardcore infringers who weren’t going to listen to warnings,” he said. “There’s always been an issue of what you do with people who just aren’t going to stop.” Participating ISPs agreed to institute measures like bandwidth throttling and temporary service disconnections after repeated warnings that their connections were being used to download infringing content. The system didn’t allow for more severe punishments like permanent disconnections. “If the parties can cooperate, I think they’ll get” a replacement program that results in firmer consequences, Sydnor said.
CAS should be considered a “success because it brought the big ISPs to the table in a cooperative manner” on online piracy, said music industry lawyer Chris Castle: “They set an example to the industry by cooperating” with rightsholders and their willingness to participate made it clear that some major internet companies are the real “problem” in online piracy. ISPs are clearly now “more mindful” about piracy because of their participation in CAS and because of the legal implications of the BMG Rights Management v. Cox Communications case, Castle said. The 4th U.S. Circuit Court of Appeals is currently considering a Cox-led appeal of a $25 million torrent piracy verdict in the case (see 1701300034, 1608090047, 1611150049 and 1701090012).
CAS’ dissolution “doesn’t mean those relationships have ended,” Castle said. “You won’t have the same structure of educating customers on piracy issues, but the real purpose of getting the ISPs focused on combatting piracy will continue.” It may ultimately be a “matter of resources” in which the program’s main backers felt “they can use their money better” on other anti-piracy efforts that don’t rely as heavily on the informal education model that CAS used, said Jay Rosenthal, a Mitchell Silberberg lawyer who represents music industry content owners. A shift away from multi-industry collaboration toward “more of a focus on industry-by-industry” efforts could “certainly be a next step” post-CAS, Rosenthal said. Stakeholders may also focus more on lobbying to strengthen DMCA anti-piracy language as part of the House Judiciary Committee’s copyright legislation work, he said.
Killing CAS comes amid the Copyright Office’s study on Section 512’s notice-and-takedown process and the section's safe harbors. Conclusions of the CO’s study are unlikely to be affected, said Sydnor and others. The original CAS agreement “explicitly stated that the parties agreed it had no bearing” on Section 512, said Computer & Communications Industry Association Vice President-Law and Policy Matthew Schruers. CAS “applied largely to broadband provider functions,” while “available empirical data indicates that the vast majority of notice processing” related to Section 512 pertains to parties other than ISPs, he said. The CCI announcement’s timing is “interesting” given the CO study but many stakeholders “anticipated this would happen at some point,” Castle said.