Copyright Alert System (CAS) was a voluntary industry effort to educate and penalize internet users who engage in the unauthorized and unlawful distribution of copyrighted works via peer-to-peer file sharing services. The program was operated by the Center for Copyright Information, a consortium consisting of the Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA), and the internet service providers AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon.
The CAS used a graduated response system (also known as the "six strikes program"), in which participating ISPs would send warnings notifying subscribers of alleged copyright infringement, as reported by a monitoring service working on behalf of participating copyright owners. The system specified a six-step progression, from advice messages, to warnings that must be acknowledged by the user. After a fifth warning, ISPs were allowed to implement "mitigation measures", which could include penalties such as bandwidth throttling or preventing web access until customers "discuss the matter" with their ISP.
The CAS framework was established on July 7, 2011, after three years in the making. After multiple delays, ISPs began implementing it in late February 2013. Due to the program not substantially decreasing piracy, the CAS discontinued the program on January 30, 2017.
Overview The Center for Copyright Information employed the services of MarkMonitor (often doing business as DtecNet) to detect and monitor suspected copyright infringement activity. Although MarkMonitor monitored many infringement venues, in early 2013 the Electronic Frontier Foundation (EFF) said it appeared that for purposes of the CAS, the company will only monitor peer-to-peer traffic from public BitTorrent trackers. The Copyright Alert System does not use deep packet inspection.
A review of MarkMonitor's system for the CAS stated that only uploads were monitored, with infringement being suspected when MarkMonitor's BitTorrent client successfully obtains pieces of known-infringing content from a peer in the swarm. The pieces were compared to pieces from an already-downloaded copy of the content, which had already been matched to content samples supplied by the copyright owners.
When suspected infringement was detected, the ISP for the IP address associated with the suspicious activity was notified. The ISP, in turn, notified the subscriber to whom the IP address was assigned at the time of the alleged infringement, informing the subscriber that their account was suspected of being used to infringe copyright, and warning of potential consequences. Users who continue to receive warnings could be issued up to six alerts in the form of pop-up messages and e-mails before stronger measures were taken by the ISP.
Intent The Copyright Alert System was intended to be
The Center for Copyright Information believed that the Copyright Alert System would be effective in reducing both intentional and unintentional copyright infringement. By providing willing infringers with information regarding the serious consequences of copyright infringement, the CCI hoped to steer would-be infringers to legal online content providers. The CCI hoped that unwitting infringers, such as those whose home networks have been hijacked by unauthorized users or the parents of children who are infringing, would use the knowledge that their account is being used for copyright infringement to force users of the account to curtail these activities. The CCI also hoped to increase parents' involvement in what their children are doing online by alerting misconduct and abuse of their accounts.
The EFF claimed the materials used to "educate consumers" were "more like propaganda", and that the framework violated the principle of presumption of innocence.
Alerts The system of alerts was as follows:
The first and second alerts notified ISP subscribers that their Internet account has allegedly been used for copyright infringement, provided an explanation of how to avoid future offenses, and directed users to lawful content sites. If the suspicious behavior persisted, additional alerts were sent. These alerts ask the subscriber to acknowledge receipt of the messages by clicking a notice. After a fifth alert, ISPs were allowed to take "mitigation measures" to prevent future infringement. If the ISP did not institute a mitigation measure following the fifth alert, it had to enact one after the sixth alert.
Mitigation measures included: "temporary reductions of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss the matter or reviews and responds to some educational information about copyright, or other measures (as specified in published policies) that the ISP may deem necessary to help resolve the matter". Mitigation measures varied by company. Verizon was the first to reveal their mitigation policy. Their policy specified that violators with more than three alerts would be directed to an online copyright law information. Upon a fifth or sixth alert, the user would experience a temporary speed reduction down to 256 kbit/s (approximately the speed of dial-up internet access).
According to a leaked internal document, AT&T decided that after a 6th alert, a user's "access to many of the most frequently visited websites [would be] restricted" until they completed an "online educational tutorial on copyright". However, AT&T later explained that it would not cut the user off the internet even though such measure appeared in the copyright warning letter. It gave a reason that the six strikes warnings are only allegations; therefore, if the alleged user was still suspected of illegal downloading after completion of the "online educational tutorial on copyright" and the six strikes warnings, unless the copyright owner took legal action; nothing would happen. Time Warner Cable stated that it would not discontinue customers' service, but instead redirect users to educational pages on copyright law upon multiple violations.
The CCI said that at no point in the process would the ISPs reveal customer information to the CCI, the monitoring service, or the copyright owners. The EFF said that because the system "will not identify those who take steps to anonymize their Internet traffic using a VPN or Tor" it would not stop dedicated infringers.
The EFF also argued that the mitigation measures to be undertaken by ISPs in response to alleged copyright infringement were overly harsh, as they could be used to deny consumers access to the Internet, which EFF maintained is as fundamental a right in the digital era as access to other utilities such as electricity. Annemarie Bridy wrote that although temporary suspension was a possible mitigation measure, market pressure would discourage ISPs from using it, instead relying on more educational measures. Mueller, Kuehn, and Santoso attributed the ISPs' adoption of the Copyright Alert System to its voluntary nature and the fact the ISPs were not required to terminate accounts under the Copyright Alert System.
Appeal process The CAS process did not allow alerts to be challenged until a mitigation measure was about to be imposed. At that time, the subscriber could request, through a special link provided by their ISP, a special arbitration proceeding. The proceeding would be administered by the American Arbitration Association (AAA), and the arbitrator would be selected by the AAA. The process was "automated to the maximum extent practicable", with the intent of resolving the dispute within thirty days of filing.
The appeal had to be requested within 14 days of the alert triggering the mitigation measure. The subscriber had to pay a $35 filing fee, unless the fee was waived by the AAA. According to CCI Executive Director Jill Lesser, the $35 fee "defray[ed] a small part of the cost of the appeal and [was] intended to discourage frivolous appeals". In order to prevail, the subscriber had to successfully challenge a specified number of alerts (possibly more than one) to block the mitigation measure and receive a refund of the filing fee.
Subscribers could only challenge alerts on one or more of the following pre-defined grounds: Misidentification of Account – The subscriber's account was incorrectly identified as a source of copyright infringement. Unauthorized Use of Account – The alleged infringement was the result of unauthorized, unpreventable use of the subscriber's account by others, without the subscriber's knowledge. Authorization – The subscriber's use of the work identified in the alert was specifically authorized in writing by the work's copyright owner or someone with a license to reproduce the work. Fair Use – The subscriber's use of the work identified in the alert meets the U.S. legal definition of fair use. Misidentification of File – The file "did not consist primarily of the alleged copyrighted work at issue but rather contained other non-infringing material". Work Published Before 1923 – The work identified in the alert was published prior to 1923 and therefore is in the public domain in the United States.
In an appeal, the burden of proof was on the subscriber to demonstrate the elements of one of the above grounds for challenging an alert.
The choice of defenses allowed in an appeal was criticized. The defense of unauthorized use of account was not allowed if the user was a member of the subscriber's household or an invitee, and after the first assertion of this defense, the subscriber had to demonstrate by "clear and convincing evidence" that the subscriber "took reasonable steps to secure the account following the first occurrence of unauthorized use". Bridy wrote that this creates an obligation for subscribers to secure their Internet connection even when they had no legal or contractual obligation to do so. In an Ars Technica article, Cyrus Farivar said that the responsibility placed on the subscriber by the CAS for copyright infringement that occurred using the subscriber's connection would harm the availability of open Wi-Fi that small businesses make available to their customers.
In a CCI blog post, Jill Lesser responded that many businesses with open Wi-Fi had business accounts, which were not subject to the CAS. Lesser also said that businesses offering open Wi-Fi through residential accounts would be subject to the CAS, but those accounts, like others subject to the CAS, would not be subject to termination. The defense of publication before 1923 was the only allowable challenge to the copyright status of a work, even though a work may have been out of copyright protection for other reasons. LaFrance criticized the presence of the "work published before 1923" defense but not other factual challenges to the copyright status of the work that she said could just as easily be resolved through the appeal process.
The subscriber's personal information was not shared with the copyright holder in the appeal process unless the subscriber asserted the defense of authorization and the arbitrator deemed disclosure necessary for the copyright holder to respond to the defense. Bridy favorably compared the privacy of an appeal proceeding to the previous system of "mass John Doe litigation". The appeals process involved no hearings and no discovery, although the arbitrator could demand additional information from either party.