Major US ISPs agree to Graduated Response

On 6 July 2011 the representatives of the US film industry (both majors and independents) and the US record industry reached agreement with the leading Internet service providers on the "Copyright Alert System", a voluntary Graduated Response scheme to tackle illegal file-sharing. The agreement envisages two educational messages or "alerts", followed by two messages which require acknowledgement by the subscriber. Following a fifth detected infringement, one or two "Mitigation Measures Copyright Alerts" will be sent, the last notifying the subscriber that, after a period of up to 2 weeks, technical measures will be applied to his Internet access account. The participating ISPs are AT&T, Verizon, Comcast, Cablevision and Time Warner Cable. The parties have set up a "Center for Copyright Information", which will administer the scheme.

The technical measures comprise reduction of transmission speeds, reduction to the lowest available broadband service, imposition of a landing page requiring contact with the ISP or the completion of some kind of copyright education process, "temporary restriction of the Subscriber's internet access for some reasonable period of time" - or an equivalent measure devised by the ISP.

The scheme is carefully conceived to avoid any suggestion that it will result in disconnection or the disclosure of subscriber names or addresses - though the latter will remain possible through discovery proceedings. The ISPs will provide anonymised lists of notice recipients on a monthly basis. Interestingly, the system provides for confidential scrutiny of the technical procedures used by right holders to generate notices and envisages the possibility of an independent review (against a refundable $35 fee) of the application of "mitigation measures" under conditions of anonymity for the subscriber. In other words, the agreement has been designed to prevent errors and injustices - and bad PR.

Clearly the agreement builds on the exhaustive UK dialogue with ISPs which ultimately led to the Digital Economy Act 2010. In turn, the elaborate provisions for independent review of alerts may inspire the design of the appeal procedure in other countries. As a voluntary scheme, the Copyright Alert System may enter into operation a little more smoothly than the DEA.