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Taking copyright fight to ISPs too punitive, say critics

Taylor Armerding | March 6, 2013
Copyright Alert System, which could slow or suspend your Internet service, said to lack due process

Another problem, critics said, is that there are ways around CAS for those with access to virtual private networks (VPN). Cyrus Farivar at Ars Technica wrote that Comcast representative Charlie Douglas told him that he was probably correct that the system would not be able to see possible violations of those using a VPN.

Critics say also that the doctrine will also snare those who are allowed to use copyrighted material under the "fair use" doctrine.

The CCI disputes this. It has pages on its website that explain permissible use of material, what are grounds for a review or challenge of an alert that a user thinks is invalid and what are the legal ways to find and use protected content.

But Paul Paray, a partner at InfoLawGroup, said that whenever you have an automated system, there is no way to differentiate with certainty between permissive or improper conduct. "At some point, you will need a person to make a decision."

James DeNaro, an attorney with CipherLaw, agreed. "If you wanted to capture a frame of a movie and use that frame as your desktop background on your home computer, that use would likely be considered a fair use and might not be copyright infringement," he said. "However, the CAS could flag the download as potential copyright infringement."

Paray also noted that a user who wants to challenge or appeal the violation notices has to pay $35 up front to do so, although CCI says that money will be refunded if the user wins the appeal. Still, Paray said that although the fee is small there should probably not be any fee to "appeal" something that is not yet even in the judicial system.

"We're not talking about somebody who is involved in a lawsuit or regulatory action so assessing fees up front in order to obtain final vindication can be perceived as unfair," Paray said.

EFF's Higgins says the doctrine is unfair to users. "When users wants to appeal an accusation, they have to pay $35 up front just to file the appeal, and then only get to choose from an incomplete list of pre-set options for their appeal," he said. "That system really turns the idea of due process on its head."

Critics say there are much better ways to curb piracy than monitoring and then punishing alleged violators.

"Netflix has taken a bigger bite out of movie 'piracy' than lawsuits ever have," Higgins said. "There is plenty of room for innovators to develop good distribution systems, including, for example, a voluntary collective licensing system. But rightsholders need to get out of the way of innovation and embrace that as a solution."


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