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Changes in the battle over illegal file sharing.

As any reference librarian can tell you, tracking down information can be really entertaining at times. One of the very first projects I ever did was to search out legislative information from the fifth law passed by the U.S. government, in 1789. It was a tax law, and the challenge was that many of the relevant documents had been destroyed in the War of 1812. Another memorable query was from a constitutional law faculty member who came to my office and asked me how to find free online pornography. It turns out he was teaching a very critical lesson on free speech and the quite complicated test for obscenity. I kept my office door closed for that one.

In recent years, more of my focus has been on intellectual property law and related issues. One such issue that has been hanging around for several years is peer-to-peer (P2P) file sharing, particularly its use in the illegal sharing of music, movie, software, and other copyrighted files. It's been part of the internet infrastructure and legal landscape for nearly 20 years, dating back to the release of Napster in 1999. Napster was quickly followed by other platforms such as Gnutella, Grokster, Kazaa, and BitTorrent, as well as "pirate" resources such as The Pirate Bay and the dark web.

It is a challenge to research this subject, including for this column, without running afoul of its legal implications. One of the most recent developments in this area is the end of the Copyright Alert System (CAS).

The Copyright Alert System

CAS was developed on the heels of the infamous Recording Industry Association of America (RIAA) lawsuit initiative of the mid-2000s. At that point, Napster was no longer a P2P service, but other systems were still facilitating illegal downloading. RIAA responded by filing or threatening to file thousands of lawsuits against file sharers as identified through their IP addresses. Many users received a letter demanding a payment of $3,000 or more or they would be sued. Others were sued without notice, with damage claims frequently measuring in the tens to hundreds of thousands of dollars.

The program resulted in significant bad press for the music industry, while having only limited impact on the very real problem of illegal file sharing. The media industry then used a different tactic: collaborating with ISPs to develop a new system that would seek to educate users about illegal file sharing and applying sanctions only if the activity continued. The resulting system, CAS, worked by monitoring downloading from Bit-Torrent and other P2P systems. When a download was detected, the computer's IP address was obtained, and a notice was sent to its ISP. The ISP then sent a separate notice to the user, "reporting an alleged infringement of one or more copyrighted works." The user's name and contact information were not shared with the copyright owner.

'Termination of Your Service Account'

The first notice was primarily informational: that "infringement of copyright is a violation of [the ISP's] Acceptable Use Policy and may result in the termination of your service account." An ISP contact office and number were provided for additional information. Subsequent CAS notices, however, resulted in a pyramid of increasing sanctions, including throttling of download speeds and blocking use of the browser (up to potentially suspending the user's internet account), until the user took certain remedial steps. These steps resulted in CAS earning the nickname the "six strikes" system.

Over its 4-year life, CAS sent out tens of thousands of such notices, but reports indicate that account suspensions were rare. User advocates and others declared it ineffective and invasive. The Electronic Frontier Foundation (EFF) questioned its lack of transparency and the costly appeal process that offered limited defenses, although it acknowledged that CAS "wasn't nearly as bad as it could have been" (eff.org/deeplinks/2017/02/ its-end-copyright-alert-system-we-know-it). Industry blog DSLReports declared the program a "dud" (dslreports.com/shownews/ Three-Years-In-The-Six-StrikesAnti-Piracy-Plan-is-a-Dud-137129), while Techdirt pointed to a study about a similar program in France that possibly contributed to an increase in illegal downloads (techdirt.com/articles/20130913/ 11490324511/three-strikes-over whelmingly-fail.shtml).

The End of CAS

In late January 2017, the Center for Copyright Information (CCI)--an organization of media groups, such as RIAA, and major ISPs, including AT&T, Verizon, Comcast, and Time Warner Cable--issued a press release that CAS "will conclude its work" (copy rightinformation.org/statement/ statement-on-the-copyright-alert-system). Asserting that the program demonstrated "real progress ... in a collaborative and consensus-driven process," CCI says CAS also succeeded in "educating many people about the availability of legal content, as well as about issues associated with online infringement." Similar programs in France and Australia have already been suspended.

Two issues in particular are raised by this action, the first of which is whether CAS would have been able to remain effective in light of more hard-core infringers. Bloomberg BNA's Patent, Trademark & Copyright Journal reports that the program could not "defeat those persistent pirates who were 'unlikely to change their behavior.'" The second issue is that CAS would have had difficulty contending with new technologies such as stream ripping (using software or websites to convert streaming media into downloadable music or video files), which is more difficult to detect than P2P file sharing. In fall 2016, several recording companies filed a lawsuit against a web service that facilitates stream ripping amid reports that this practice has surpassed P2P sharing with regard to copyright piracy (news breaks.infotoday.com/NewsBreaks/ Copyright-Infringement-and-the-DMCA-Ripping-Music-Off-You Tube-115111.asp).

As for what's next, copyright infringement through downloading, stream ripping, or other means is still illegal. While it may be unlikely that copyright owners will resume the mass lawsuits of a decade ago, there is not anything preventing them.

I'm not going to share how I was able to quote from a CAS notice. Let's just say I'm a good librarian. What I will share is that the battle between copyright owners and infringers is by no means over.

George H. Pike is the director of the Pritzker Legal Research Center at Northwestern University School of Law. Send your comments about this column to itletters@infotoday.com.
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Title Annotation:LEGAL ISSUES
Author:Pike, George H.
Publication:Information Today
Geographic Code:1USA
Date:Apr 1, 2017
Words:1017
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