Internet Service Providers in the United States have agreed recently to voluntary new rules in an effort to help enforce intellectual property laws and prevent piracy. The new rules have been agreed to by some of the nation’s largest ISPs including Verizon, AT&T, Comcast, and Time Warner Cable. The cooperation of ISPs in protecting content owners from piracy is an incredible step and one that will have far-reaching implications legally and ethically. Much of the agreement simply expands on what Internet Service providers do already when they are presented with complaints from intellectual property owners. There is, however, one key difference. Before the agreement to new rules, ISPs merely notified subscribers that they were suspected of IP theft; however, now ISPs can slow, block, or completely shut off an offender’s access to the internet.
The new system has six different levels of escalation based on the number of times the subscriber has been accused of an infraction against an IP holder. After receiving a complaint, ISPs will notify the subscriber of the infringement, though they will not share the subscriber’s information with the IP holder… yet. The six different levels are described below.
First Notification: The subscriber receives an e-mail from their ISP letting them know that there is a problem relating to intellectual property theft and there will be information and educational material about copyright infringement along with the e-mail.
Second Notification: A second e-mail is sent with educational materials on intellectual property theft.
Third Notification: The third notification will require the subscriber to click through and acknowledge that they have received the previous warnings about copyright infringement associated with the account.
Fourth Notification: The fourth e-mail requires that the subscriber acknowledge directly that their account has been flagged for IP violations by phone, written e-mail acknowledgement, or other forms of communication.
Fifth Notification: After a fifth notification, the ISP is allowed to start taking mitigation measures that are “reasonably calculated to stop future content theft.” These “reasonable” measures include throttling connection speeds or requiring the subscriber to call their provider and discuss the violations. The ISP is not allowed, however, to disrupt voice or e-mail services and taking these “mitigation measures” is entirely at the discretion of the ISP.
Sixth Notification: The sixth notification requires the ISP to take action against the subscriber including any of the mitigation measures they could voluntarily have taken after the fifth notification. Additionally, the ISP could completely cut off service or be compelled by the IP holder to do so.
The best part for people who find themselves targeted for piracy – legitimate or otherwise – is the fact that they are forced to submit the issue to an independent reviewer in order to reverse or contest the measures taken against them. Naturally, this independent review costs the subscriber $35. Completely disregarding whether or not a subscriber is guilty, an intellectual property owner put a throttle an individual’s internet access or get them completely disconnected with the only method of review is for the victim – or infringer – to pay $35… or go to court.
While this may not seem like the most onerous anti-consumer agreement on the books, it does bring up the question of whether broadband access is a protected fundamental human right. Numerous countries have made broadband access a fundamental component of free speech and any attempt to disconnect someone from the internet is a direct infringement on their basic human right to free speech. Considering that the agreement is entirely between private companies, if a law were passed in the United States affirming broadband as a fundamental right – something that has happened in numerous countries – the agreement between broadband companies and major IP groups would run afoul of the law.
The fact that IP holders are incredibly overzealous about protecting themselves against infringement – the 15-year-old kids being sued for tens of thousands of dollars for downloading one CD come to mind – makes the possibility of abuse extraordinarily high. Combine the overzealousness with a lack of understanding of fair-use laws and copyright exceptions, and it is easy to see people getting strong-armed by the MPAA, RIAA, and others. Not surprisingly, a statement by the FCC provided a far from vigorous defense of freedom of speech.
“Today’s announcement of a voluntary, cooperative effort to combat online copyright infringement is a positive development. As the Commission has recognized, copyright infringement has serious adverse consequences for the economy, and efforts to address this issue can and must co-exist with robust protections for Internet freedom and openness. We look forward to the recommendations of the organization that will be created as part of this effort.”
Clearly, the FCC has no intention of taking a stand to protect consumers from the corporate abuse; however, the agreement between IP holders and the major broadband providers will certainly be brought before the courts. It is very likely that the Supreme Court will be addressing such a case in the near future with huge implications on freedom of speech and the power of corporations to deprive American citizens of broadband access.
