UA Law Professor Explains New '6-Strikes' Copyright Alert System

Alexis Blue
March 20, 2013

In late February, a new Copyright Alert System known colloquially as "6-Strikes" was launched by a number of major Internet service providers in an effort to crack down on online piracy.

The new system applies to most Internet users, but unless you keep up with tech news, you may not have heard of it.

The graduated alert system, which targets activity like illegal downloading and sharing of music and movies, has come under fire by some copyright experts for its format and for the way it was developed and implemented. Also, some have questioned the degree to which the federal government may have been involved in establishing the policy.

We talked with copyright law expert Derek Bambauer, associate professor in the UA's James E. Rogers College of Law, to learn how the system affects the average Internet user.

Q: How does the Copyright Alert System work?

Bambauer: The system is run by the nonprofit Center for Copyright Information (CCI), which was essentially set up as the result of a grand bargain between most major Internet service providers and a set of content owner companies, such as movie studios and record labels. The two sides arrived at a formal legal agreement – a memorandum of understanding – that sets up the Copyright Alert System.

The way the system works is that content owners monitor peer-to-peer file sharing networks – BitTorrent and the like – and when they detect that somebody is downloading or sharing an infringing copy, they figure out the address of the computer that’s downloading or sharing it, then they check which ISP the address belongs to, then they send the ISP a notification. The ISP passes that on to the user and then imposes one of the "six strikes."

CCI calls this an education system, and the education gets more and more strident as time goes on. In the beginning, it's just a pop-up alert saying that somebody on your computer has been sharing files unlawfully; please stop. You get two alerts that are intended as initial education, then it escalates to the point where you actually have to sign in to get rid of the pop-up, and in some cases you actually have to watch a short video educating you about copyright. The last two strikes are what's called mitigation. CCI says that mitigation is intended to really get your attention by doing things like slowing down your bandwidth, or the amount of speed you have connecting to the Internet. After the sixth strike, nobody really knows what happens. Most ISPS have been careful to say that they are not going to kick anybody off the network. They could, but that's not really a good business decision for them.

Q: How do you know if your ISP is using the system?

Bambauer: If you belong to a major ISP, chances are good that it is. If you really want to know, you can do something that no one does, which is to actually read the Terms of Service. All the ISPs have updated the agreement to reflect this, so you basically agreed to it even though nobody is aware of it.

If your ISP is using the system and you disagree with that, in theory you could say, "Well forget it, I'm going to vote with my feet. I'll go to an ISP that doesn’t have this system." The problem is you don’t often have that choice. America has really bad choices in terms of broadband. Most people have two or fewer broadband providers.

Q: What are some examples of the type of activities this will crack down on? And is it possible some people are doing these things unknowingly?

Bambauer: I think many people are doing it unknowingly. Let's imagine you have six people living in an apartment; one person is paying Comcast to get the pipe in there and they’ve got a wireless access point, and a roommate is downloading something illegally. The account holder has no idea; they're all just using the wireless access point, they're sharing the bandwidth. It's also possible – although I think it's a lot less likely these days – that somebody's downloading something copyrighted and doesn’t think it's illegal.

The types of things that the system is really worried about is people who are using file sharing programs to share copyrighted content. The biggest pieces are things like movies, sound recordings, TV shows, sporting events and so forth.

Q: What advice do you have for people to avoid getting into trouble?

Bambauer: The most important thing is to use common sense. If it seems too good to be true, it is. For most of the things that we want to do and content we want to consume, there are cheap, lawful ways to do it – iTunes, Amazon, Emusic, Netflix. I think most people are savvy enough to know that if it's content that costs something to produce, you're going to have to pay in some way to consume it. And if you are one of those people living with five other folks in an apartment, talk to your roommates about what they're doing and make sure they kind of understand the basics.

Q: Are there any resources you would recommend for people interested in learning more about online copyright law?

Bambauer: A great website is Chilling Effects. It does a great job of explaining the basics of copyright law in a really user friendly way.

Media contact: Derek Bambauer, James E. Rogers College of Law, at 520-621-5499 or derekbambauer@email.arizona.edu.

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