Should You Fear the 'Six Strikes' Anti-Piracy Rule?

Do new rules on Internet piracy infringe on First Amendment rights? Photograph by Lin Chunyang

A new system designed to combat copyright infringement was launched in the U.S. on Monday, a joint venture between content companies and internet service providers known as the Copyright Alert System. The name sounds harmless enough, and supporters argue that it’s an appropriate balance between copyright and an open Internet, but critics argue that the so-called “six strikes” process is the thin edge of an ever-broader wedge that copyright holders are trying to drive between consumers and digital content.

The new rules, which have been in the works for over a year and have been repeatedly delayed, are being administered by the Center For Copyright Information, a nonprofit entity made up of theoretically independent representatives from such agencies as the Internet Education Foundation and the Future of Privacy Forum. It includes Jerry Berman, a former director of the Electronic Frontier Foundation, as well as Gigi Sohn of Public Knowledge. They have teamed up with five of the largest ISPs, including Verizon and Comcast.

Part of what makes this new strategy difficult to understand is that each service provider’s method for implementing the rules is different. Verizon says that after several warnings via e-mail and pop-up messages, users who are downloading or sharing copyrighted content will be given several options, including a temporary reduction in their Internet speed. AT&T’s policy seems to say that after several warnings, users’ ability to access popular websites will be blocked until they complete a course in understanding piracy and copyright infringement.

Should you be afraid of these new rules? That depends. Are you are worried only about how they might affect you directly, or are you concerned about the ways in which private corporations are seeking to snoop on and limit your behavior? Let’s break each viewpoint down:

Why you shouldn’t worry:

Not all internet service providers are affected. Although providers such as Comcast and Verizon are huge, they don’t cover all Internet users in the United States, so it’s possible that you might not be affected by the new restrictions, even if you download a lot of copyrighted content.

Six strikes is probably more than you need. Copyright owners and the Center for Copyright Information say that the intent of these new rules is to go after the most egregious downloaders and sharers of content, not people who occasionally download a new song or movie. If you don’t do a lot of peer-to-peer file-sharing, you probably won’t be affected.

You won’t get cut off, just lectured and inconvenienced. Even if you do get flagged for something, the worst most ISPs say they’ll do is limit your download speeds, show you pop-up warnings, and send annoying e-mails. Some carriers have said that even if you ignore them, nothing will happen—although they can always change policies.

There are lots of ways around restrictions. One critique of such rules isn’t that they are too invasive, but that they won’t work against really hard-core file-sharers—allegedly the target of this strategy—because virtual private networks, proxy addresses, cloaking software, and other tools can make it almost impossible to detect infringing downloads.

Why you should worry:

Your ISP will be doing some heavy snooping. One of the broader risks that groups such as the EFF point to in criticizing these new restrictions is that they rely on ISPs snooping on their users to an almost unprecedented degree, and this raises issues about privacy that are comparable to the debates around such technologies as “deep packet inspection.” The potential downside is fairly significant.

The new rules don’t take fair use into account. Much of the material produced by the Center for Copyright Information makes it sound as though anyone downloading or sharing copyrighted content is breaking the law, but that’s not the case at all. There are many instances in which the principle of fair use applies, and these rules don’t take it into account.

Copyright holders are unlikely to stop here. One complaint about the six-strikes process is that it’s just the latest move in an ongoing attempt by copyright holders and content companies to exert more and more control over what users can do and that allowing it to proceed only encourages them to pursue even harsher measures such as SOPA and PIPA.

This puts commercial entities in place of laws. One of the biggest criticisms from free speech and open-Web advocates is that the six-strikes rules essentially allow private corporations—movie studios, music labels, and large telecom providers—to set up a quasi-legal process to pursue copyright claims when in fact the legal system is the appropriate venue for those arguments.

While these procedures may not affect you directly—or may amount to a minor irritation in your daily life—they mark a further attempt by content owners to exert their influence in areas that should belong to the courts and should in principle be protected by things such as the First Amendment and the principle of fair use, neither of which are even mentioned by the promoters of this process.

Moreover, as my colleague Jeff Roberts notes, focusing on such efforts feels a lot like what the music industry did while trying not to innovate as the Web grew bigger and bigger. Copyright owners are taking a risk by relying on these kinds of measures instead of working to create a market and digital ecosystem that foster the creation, sale, and distribution of content in ways that work with the Web—instead of against it.

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