Graduated Response American Style: 'Six Strikes' Measured Against Five Norms

In 2008, in recognition of the DMCA’s inadequacy in the face of P2P file sharing, and with the high-profile case of Arista Records v. Lime Group pending in federal district court in New York, then New York State Attorney General Andrew Cuomo began pressuring broadband providers to agree voluntarily to play a greater role in fighting online infringement. Subsequently, the Obama administration, represented nationally by the Office of the Intellectual Property Enforcement Coordinator (IPEC) and internationally by the Office of the United States Trade Representative (USTR), expressly endorsed the concept of privately negotiated anti-piracy collaborations between corporate rights owners and broadband providers. In July of 2011, broadband providers finally bowed to the mounting political pressure and to changing economic realities in the business of corporate content ownership and delivery. Five of the largest telecommunications companies in the United States entered into a memorandum of understanding (MOU) with trade groups representing major corporate copyright owners. The MOU creates what the parties characterize as a common framework of ‘best practices’ to effectively alert subscribers, protect copyrighted content and promote access to legal online content. This Article is an assessment of the MOU’s Copyright Alert System (CAS) with respect to five norms that are central to consumer protection in the enterprise of online copyright enforcement: freedom of expression, privacy, fairness, proportionality, and transparency. Part I provides an introduction to graduated response, which is the genus of online copyright enforcement to which CAS belongs. Part II takes a comparative look at two pre-existing graduated response systems: the government mandated and administered program in France, Hadopi, and a privately administered program in Ireland run by the broadband provider Eircom. Part III provides a detailed overview of CAS, including the structure by which it is governed, the division of labor it prescribes between copyright owners and broadband providers, the ∗Associate Professor of Law, University of Idaho College of Law. This article was initially presented at Copyright Cat and Mouse: New Developments in Online Enforcement, a multistakeholder symposium on the “Six Strikes” Memorandum of Understanding (MOU) sponsored by the Princeton University Center for Information Technology Policy (CITP). I would like to thank CITP, Ed Felten, and Steve Schultze for their invitation to participate in that symposium and for their support during my semester in residence at Princeton during Spring 2012. I would also like to thank the participants in the Second Annual Internet Law Scholars Works in Progress (ILSWIP) Conference at New York Law School and the Twelfth Annual Intellectual Property Scholars Conference (IPSC) at Stanford Law School, who provided valuable feedback as the article took shape. Finally, I owe special thanks to Monica Horten, Mary LaFrance, and Peter Yu, who provided very helpful comments on the complete draft. progression of warnings and sanctions it implements, and the appeals process it makes available for affected broadband subscribers. Part IV evaluates the strengths and weaknesses of CAS with respect to each of the five norms listed above, using the systems in France and Ireland as reference