By Nate Anderson
Pop quiz: what organization recently provided the following quotes on "graduated response" to the White House's Intellectual Property Enforcement Coordinator, Victoria Espinel?
"Private entities are not created or meant to conduct the law enforcement and judicial balancing act that would be required; they are not charged with sitting in judgment of facts; and they are not empowered to punish alleged criminals without a court order or other government sanction. Indeed, the liability implications of ISPs acting as a quasi-law-enforcement/judicial branch could be enormous."
"There are instances in which such [infringement] notices [from rightsholders] may be misdirected against non-infringing members of the household, against persons who have valid defenses, or against persons who are victims of unauthorized access to their home networks."
"It should give the government pause that a third-party allegation, alone, without any sanction by government or order by a court, could cause an entire family to be deprived of communications, access to financial or medical information, the ability to access government services, or even the ability of children to do their school work or interact with their teachers."
It sounds like something right from the Electronic Frontier Foundation's playbook, but in fact all of these concerns were mooted by AT&T. The company simply refuses to play the role of a voluntary Internet cop, dishing out penalties on behalf of rightsholders, and we couldn't agree more with the problems that AT&T highlighted.
But that doesn't mean AT&T is opposed to various forms of "three strikes" or "graduated response" programs meant to deter online copyright infringement; it just wants someone else to implement them. If the government wants to get into the enforcement business, AT&T would be fine with that. Actually, the company would be more than fine with the proposal—it suggests that the government get into the business of adjudicating such cases and dishing out penalties.
This might sound like a role for the courts, but AT&T and rightsholders argue that the current legal process AT&T. AT&T proposes a "streamlined and reasonable adjudication system for rights holders to resolve civil infringement claims against end users." Call it "court lite."
If you're thinking to yourself, "Self, isn't this exactly what they have in France?" you're on the right track. France has gone this route, creating an official tribunal called HADOPI to oversee the graduated response system (after constitutional concerns, a judge now has to oversee the final step in the process). In France, the ultimate penalty is Internet disconnection; AT&T says nothing about what penalties it prefers in the US.
Such a system "would provide a meaningful deterrent by heightening end-users' understanding that infringement activities are being monitored by the content industry and that there are material consequences associated with their actions."
Also, AT&T thinks that getting the US government into website blocking would be a pretty terrific idea. AT&T suggests that the Department of Justice "create and maintain a list of international websites known to host and traffic in infringed copyrighted works."
After "thorough investigation and governmental due process," the Department of Justice could simply require ISPs to block all access to those sites.
Warnings work
The odd thing about these proposals is how little they seem to be needed. AT&T has been forwarding infringement notices to subscribers for some time. It has developed an "Automatic Customer Notification Service" to automate this process, though it will not share user data with rightsholders unless it gets a court order.
One might suspect that simple warnings would do no good, but AT&T says that "in our experience, the automated notice-forwarding systems that ISPs have established are highly effective at deterring the offending behavior."
Verizon makes the same observation. In a separate letter, Verizon tells the government that it has "implemented a notice forwarding program as part of our commercial relationships with several content owners that we believe strikes an appropriate balance between the legitimate interests of rights holders in protecting their copyrights and the important privacy and other interests of our wireline Internet access customers."
The voluntary program was in place for all of 2009, and it has "proven very effective in not only notifying customers about allegations of infringing behavior involving their Internet connection, but also, importantly, at educating customers about copyrights and the importance of stopping any potentially infringing behavior, all with minimal adverse customer reaction." (Verizon also refuses to pass subscriber information to rightsholders without a court order, so this is merely an informational notice.)
The program has been hugely successful. "In 2009, the first full year for which we have data, roughly 70 percent of the notices we processed were for customers receiving their first notice," said Verizon. "As customers progress through our multi-step process we see the number of notices processed declining rapidly at each stage, which demonstrates that the Verizon notice forwarding system is having the intended effect of decreasing dramatically the number of customers who receive multiple notices of alleged infringement. And importantly, the program is working with minimal customer complaints."
Critics of such warning-only schemes often charge that they can't possibly work without a serious deterrent, such as Internet disconnection. But warning letters are a serious deterrent, for two reasons. First, you can already be sued by rightsholders, and if you don't think this is a big deal, look at the $675,000 judgment against Joel Tenenbaum.
Second, there's the "dad factor." A pretty high percentage of these notices probably go to families in which widespread P2P activity is frowned upon, especially when it puts a family member at risk of a federal lawsuit. Simply alerting parents to the issue is enough, in many cases, to bring an end to it in the household.
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