Be prepared for a series of virtual hand slaps if your ISP is saying that you downloaded copyrighted or infringing material or files. A “graduated response” program, aimed at cutting down on illegally downloaded files, was rolled out at the beginning of July and has drawn widespread criticism for both its intent, and execution, as well as putting the burden of proof on those accused of illegal download. Recording Industry Association of America (RIAA) CEO, Cary Sherman, is at the helm of a new initiative that aims to punish those accused of illegal downloading.
According to a published Memorandum of Understanding, which details the new program, a rights-holder can accuse an ISP subscriber of infringement. Once accused, the ISP will issue what they are calling “mitigation measures” and what others are calling plain old punishment. This is where the accused has ten days to put together a defending response. The RIAA and ISPs maintain that these measures are purely for the purposes of re-educating the masses about illegal downloading, yet as the warnings increase, so do the so-called mitigation measures:
Alert #1: After receiving a complaint from a copyright owner, the ISP will send its subscriber an email alert, letting the subscriber know that their account was used for content theft. It goes on to tell them that content theft is illegal and violates published policies. The subscriber will then be led to educational resources which will help them check the security of their computer and WiFi, offer information about how to avoid content theft, and provide resources for ways to legally obtain films, TV and music.
Alert #2: If after the first alert the perceived content thefts continue, the subscriber will receive a second alert, much like first, that will further emphasize the educational message. If they choose, the ISP can bypass this step and go straight to the next.
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Alert #3: If the perceived activity continues, a third alert will be sent, but this time the subscriber will be asked to acknowledge that they received the alert so that the ISP has that acknowledgement of laws and consequences on record.
Alert #4: This is much like the third alert, and the subscriber will again be asked to again acknowledge receipt of the warning.
Alert #5: This is the point where the ISP may opt to begin the mitigation measures. Mitigation measures may include continued redirection to a landing page until the subscriber gets in touch with the ISP to further discuss the issue, or a temporary reduction in speed of Internet. Mitigation measures, at this point, are solely up to the ISP.
Alert #6: At this point, no matter what, the ISP will impose a mitigation measure. The two named above are examples of what the ISP may do, but it at the discretion of the ISP, so other measures may be taken.
The problem with this new program, say critics, is that the burden of proof falls on the accused rather than the accuser. The subscriber is the one who has to prove that they *weren’t* stealing content, and on top of that, they only have ten days from the alert to do so. Additionally, they must choose their defense from a set of six pre-set options, and, should the accusation be found to be false, there are no consequences levied against the accuser. Critics also point out that the so-called educational material for the accused is written by those with an interest at stake, and so may tend towards scaring rather than educating.
For now, participation in this program is voluntary, with some ISPs refusing to take part. After all, punishing their subscribers puts them at risk for loss of business. The major ISPs taking part in this agreement include Verizon, Comcast, Cablevision, AT and T, and Time Warner Cable. Those wanting to take a firm stand against this program may have to do so by switching subscribers. A switch that, for those who want to maintain freedom of Internet use, may be an easy decision.
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