“Six Strikes” Anti-Piracy Scheme Overly Secret and Unfair, Says Professor

In the coming months U.S. Internet providers will begin to warn and punish alleged copyright infringers. The “six strikes” plan is the result of a deal between the MPAA, RIAA and several large ISPs. While the parties involved have described the scheme as fair and balanced, University of Idaho Law Professor Annemarie Bridy has her concerns. In a new report she points out that the copyright alert system lacks transparency, favors copyright holders, and that procedural fairness is hard to find.

In the coming months the Center for Copyright Information (CCI) will start to track down online ‘pirates’ as part of an agreement all major US Internet providers struck with the MPAA and RIAA.

The parties agreed on a system through which copyright infringers are warned that their behavior is unacceptable. After five or six warnings ISPs may then take a variety of repressive measures, including temporary disconnections.

Both copyright holders and ISPs have described the copyright alert system (CAS), or “six strikes” scheme, as a sensible approach to tackle the growing piracy problem.

To assess if this is indeed the case University of Idaho Law Professor Annemarie Bridy reviewed the plan to see whether it respects basic consumer protection norms. The results were just published online and the report includes harsh critique as well as some positive notes.

On the upside, the professor notes that the memorandum of understanding (MOU) prescribes “less draconian sanctions than its French and Irish counterparts.” Unlike in these European countries, permanent Internet disconnections and hefty fines are not an option.

Other positive points are that the American six-strikes scheme doesn’t involve content blocking or filtering, that ISPs are not required to hand over personal details of subscribers, and that alleged infringers have an option to appeal accusations to an independent reviewer before any sanction is imposed.

But there are also significant concerns according to the law professor, especially when it comes to fairness and transparency norms.

For example, in civil copyright infringement lawsuits the burden of proof is on the copyright holder, but the six-strikes scheme turns this around. In other words, there is no presumption of innocence.

“When it comes to the norm of fairness CAS leaves much to be desired. With respect to procedural fairness, the system lacks the presumption of innocence,” Bridy writes.

“The allocation of burdens built into CAS is troubling because it conflicts with a basic principle underlying our justice system—that a person accused of having engaged in illegal
conduct is presumed innocent until proven guilty in a court of law,” she adds.

This unfairness is increased because the evidence provided by copyright holders is seen as valid by default.

“Allocating the burden of proof on infringement to the accused is a significant compromise of fair process. Adding to that compromise the presumption that the evidence offered against the accused is valid unless it was collected in a grossly negligent way is a bridge too far.”

The evidence that is used as basis for the warnings should be held to a much higher technical standard, Professor Bridy argues.

“Copyright owners should be required by the MOU to adopt technical means of collecting IP addresses and identifying content that are affirmatively and demonstrably reliable. Moreover, the accuracy of those methods should be verifiable by independent experts who do not work as consultants for CCI and who are not bound by nondisclosure agreements,” she writes.

In addition to the reversed burden of proof and the lack of evidence verification, Bridy points out several other fairness concerns. She notes that the independent reviewers of appeals may be biased, and that the appeal defenses available to subscribers are unduly limited and not in line with copyright law.

Besides fairness, the six-strikes scheme also fails to live up to the transparency norm. According to the professor the system is overly secret when it comes to the overall design, oversight of implementation and the reporting on outcomes.

Starting with the design, Bridy notes that the agreement was written without public oversight.

“As law that is formally private but functionally public, the MOU should not have been negotiated entirely out of the public’s view and without any input from public interest groups. One wonders in this regard about the timing of the advisory board appointments and why they weren’t made before the details of the agreement were hammered out,” she writes.

The same is true for the implementation stage, where reports on the accuracy of the evidence gathering are kept secret.

“CCI has released no information about the technology underlying CAS or the identity of the independent technical expert hired to evaluate that technology. Moreover, the MOU prohibits the independent expert from disclosing any findings of technical inadequacy to third parties without the express written consent of the relevant parties to the MOU.”

And again for the outcomes, which will be kept internal.

“The level of secrecy maintained under the MOU with respect to program outcomes is excessive and, from a public relations standpoint, unproductive. At the very least, the advisory board should receive the semi-annual reports submitted to CCI by the parties and should be privy to the results of CCI’s annual comprehensive assessment of CAS,” Bridy writes.

Professor Bridy concludes her report by advising CCI to be more transparent and to expand the role of the advisory board. While this would not alleviate all concerns, it would be a good start.

For now, however, the people behind the six-strikes anti-piracy scheme remain silent. No public press releases have been issued in months and the technology partners tasked with gathering evidence have yet to be made public, if they will ever be.

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