Danny Titolo is a JD candidate at Osgoode Hall Law School.

An agreement has recently been made between the largest music, television and motion picture companies and the leading Internet Service Providers (ISPs) to create the “copyright alert” system. The main purpose of this system is to notify subscribers when their accounts are being used to illegally download pirated content. ISPs have agreed to send a maximum of six alerts to accounts that have been used for illegal downloading, after which a temporary suspension of Internet access may occur.

The major companies involved in the agreement are the Motion Picture Association of America (MPAA), which includes Paramount, Sony, Disney, Universal, Warner Bros. and Twentieth Century Fox, and the Recording Industry Association of America (RIAA). The major service providers include Verizon, Comcast, Cablevision, AT&T and Time Warner.

Online piracy is estimated to cost the U.S. economy $58 billion, 373,000 American jobs and $16 billion in lost employee earnings every year. The loss in tax revenue for government is estimated to be almost $3 billion each year. Senior policy counsel for the Center for Democracy and Technology (CDT), David Sohn, said that he hopes this alert system will reduce illegal peer-to-peer file sharing.

The major industry players and ISPs are labelling this as an educational campaign to increase the awareness of online piracy. This campaign has taken approximately two years to launch and grew from an agreement made by former attorney general and current Governor of New York, Andrew Cuomo. That deal saw the RIAA reducing the number of lawsuits filed against copyright infringers in favour of notifications.      

It is quite clear that on the surface this new agreement is anti-punishment and pro-information. The MPAA feels that many individuals do not know what constitutes copyright infringement and that informing infringers of their wrongdoing will reduce future piracy. This pro-information agreement has established the creation of the Center for Copyright Information. The Center will act as an information hub educating consumers about copyright and the negative effects of online piracy. It will also educate consumers about the lawful ways they can obtain movies and music online.

ISPs are given the ultimate discretion in how they choose to proceed once infringement occurs. Notification typically will start with a text warning which may lead to a reduction of the Internet speed, prevention of web browsing, and ultimately a temporary suspension of Internet access.

The outcry from customers this alert system will cause is almost inevitable. ISPs will receive a lot of grief from their paying subscribers if Internet connection is slowed down considerably. As a business model this may potentially hurt the ISPs that have signed on to this agreement as potential customers may consider other alternatives. The alert system will never completely terminate a subscriber’s account; however, section 512 of the Digital Millennium Copyright Act requires that ISPs have a termination policy for repeat copyright infringers.

Furthermore, enforcement seems plausible in theory but will be quite difficult in practice. How will ISPs decipher whether or not illegal downloading is being undertaken by the subscriber or a neighbour in the vicinity of the unprotected wireless Internet network? Many Internet users do not password-protect their wireless connection making it easy for pirating neighbours to take advantage.

The fact that major players in both the music and movie industries as well as ISPs have joined forces in the fight against online piracy is a step in the right direction. The cooperation of both sides is essential, but only time will tell whether or not this alert system will have a significant impact in curtailing online copyright infringement.