Policing Online Infringement with "Six Strikes and You're Out!"

In the next two months, Internet service providers and entertainment content creators will launch a new system to police online copyright infringement, creating new rules affecting up to three-quarters of all US Internet users. A 2011 agreement between creators and ISPs set the groundwork for the upcoming "Copyright Alert System" and the release of new documents suggests exactly how some major ISPs will implement this program.

If a copyright owner detects specific infringement, it will send a notice to the infringing user's ISP, which in turn will send a notice to the user, alerting him or her of the illegal conduct. The first three alerts a user receives are simply warnings. The fourth and fifth alerts will send users to a copyright education web page and require completion of an education tutorial on copyright law before Internet service—at least to certain infringement-related sites—is resumed. If there is a sixth alert, the content owner is free to pursue legal action against the user and may request the ISP to release personal information about the user. Other countries have experimented with similar but more aggressive copyright alert systems. As we discussed in May, France recently instituted a "three-strikes" policy for online infringement. French users were given two warnings and were then susceptible to legal action after the third instance of infringement. By contrast, the US approach focuses more on copyright education, explaining rules to consumers and helping them find legitimate services. Nevertheless, the Copyright Alert System may face challenges. Potential privacy issues exist, relating to whether disclosure of personal information is permitted under an ISP's privacy policy. In the past, ISPs have even argued that disclosure was protected by users' privacy rights under the First Amendment. While future claims by ISPs against content creators seem unlikely as they designed the Copyright Alert System together, ISPs must be sure when they send user information to copyright holders that they do so in a manner their privacy policies permit. Privacy policy compliance remains a critical issue for almost any user-based Internet business. As we noted earlier this year, online privacy is receiving more scrutiny than ever before and must be considered in all future ventures.