NEW YORK—During a panel discussion at a recent Association of American Publishers' meeting featuring Cary Sherman, CEO and Chairman of the Recording Industry Association of America (RIAA) and Fritz Attaway, Executive Vice President of the Motion Picture Association of America (MPAA), Sherman made news when he mentioned July 1 as the date of the rollout by major U.S.-based ISPs—including AT&T, Cablevision, Comcast, Verizon and Time Warner Cable—of a "graduated response" program that has been on the drawing board for several years and in active development for over a year.
Graduated Response refers to a process whereby ISPs send customers a series of notifications regarding their alleged illegal downloading of copyrighted content that increase from simple warnings to more severe forms of interdiction, including bandwidth reduction, protocol blocking and, in worst-case scenarios, account suspension.
If Sherman is correct about the start date for Graduated Response in the United States, it will be a big victory and a significant development for the music and movies industries, which have been working and lobbying for years to get similar laws or agreements in place in other countries, sometimes with the direct and controversial help of the U.S. government.
In New Zealand, for instance, released Wikileak documents showed that pressure from the U.S. was instrumental in getting a 'three strikes" bill passed last year that faced fierce opposition when it was first proposed in 2009. The law is considered one of the strictest ever conceived in terms of potential penalties faced by consumers, including monetary fines of up to NZ$15,000 ($12,000) to be paid to copyright owner and internet account suspensions for up to six months if the fines are found to be ineffective.
"The unnerving part," commented Zero Paid at the time, "is the fact that this will no doubt encourage multi-national corporations to pursue such laws in other countries."
In the United States, the multi-nationals, under the umbrella of the MPAA and RIAA, have indeed been very active trying to get bills such as SOPA and PROTECT IP passed into law, but the world is well aware how that turned out. The deals carved out with the major ISPs, on the other hand, even if they were accomplished with the help of the White House, required no vote by Congress, making them all but impervious to challenge other than by way of potential legal claims brought by aggrieved competitors or customers if the ISPs and their new partners in piracy detection fail to implement the new identification and notification regime unfairly.
According to an interview with Sherman conducted by Ars Technica's Nate Anderson three years ago, when the music industry decided to end its lawsuit campaign against end-users suspected of digital piracy in favor of the Graduated Response partnership that was just being forged with the ISPs, the heavy lifting identifying alleged infringers will be done by the RIAA (and, presumably, the MPAA), which will then "pass that information on to ISPs, who will notify (and eventually sanction) users without turning personal information over to the music industry."
At the time, it was envisioned that alleged infringers would be given three strikes, but the current plan calls for six strikes before actual sanctions, which reportedly will vary from ISP to ISP, will kick in. "Each ISP has to develop their infrastructure for automating the system, [and] for establishing the database so they can keep track of repeat infringers, so they know that this is the first notice or the third notice," Sherman told CNET following the panel discussion. "Every ISP has to do it differently depending on the architecture of its particular network. Some are nearing completion and others are a little further from completion."
CBET also reported, "Participating ISPs can choose from a list of penalties, or what the RIAA calls 'mitigation measures,' which include throttling down the customer's connection speed and suspending Web access until the subscriber agrees to stop pirating. The ISPs can waive the mitigation measure if they choose and not one of the service providers has agreed to permanently terminate service."
According to Digital Trends, the start date of Graduated Response may have been announced, but its launch will only signal the beginning of the next phase in the years-long struggle to find a balance between users and creators of digital content.
"While the RIAA, MPAA, and even the White House support this measure, many questions still remain," wrote Andrew Couts. " For instance, what about customers that get internet access from smaller providers? Will those companies be pressured into jumping on the Hollywood bandwagon? Moreover, given the staunch public opposition to governmental efforts to impose restrictions on the internet, how will people react if they lose their connection altogether? Our prediction: Dark days are ahead."