Annemarie Bridy has a pre-print posted last month on SSRN that examines the US ‘six strikes’ private graduated response scheme. The paper is a fascinating read for two reasons: it provides a comprehensive overview of the US six strike ‘Copyright Alert System’ (CAS) system; and it provides a good analysis of the system’s impact on freedom of expression, privacy, fairness, proportionality, and transparency.
This analysis is important. As Bridy argues:
the private nature of CAS means that there will be no public forum for debate over the terms of the MOU or the procedures and sanctions it prescribes. CAS was presented to the public as a fait accompli and will be offered for the public’s assent as a contract of adhesion for broadband service. There will be, in other words, no bargaining about it. … CAS will be the law for millions of U.S. broadband subscribers, whether they like it or not. As with the Eircom protocol, because there is no state action involved, there will be no judicial review of the constitutionality of the MOU’s provisions.
Ultimately, Bridy argues that the scheme is reasonable in terms of freedom of expression and privacy and is a reasonably proportionate method of attempting to educate ISP subscribers about copyright infringement. However, CAS has serious problems in terms of fairness:
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, although it does allow for an appeal to a third party neutral before any sanction imposed. The third party neutral is structurally independent but nevertheless subject to the potential biases associated with mass consumer arbitration. The saving fact for procedural fairness under CAS is that subscribers are not asked to waive their right to relief through the courts. Regarding substantive fairness, CCI’s failure to disclose the rules that will govern appeals makes it impossible for the public to know whether those rules adequately capture the nuances of copyright law and accurately reflect existing case law. Finally, the defenses available to subscribers are unduly limited and fail to align completely with copyright law.
Bridy is particularly critical about the lack of transparency in the system. This is particularly important since, Bridy argues, while
The MOU is formally private law, and the private law that corporations make amongst
themselves is generally not subject to public input. The MOU is functionally public law,
however, insofar as it requires specific and substantial changes to the terms of service that bind
millions of broadband subscribers.
Bridy concludes that CAS has serious deficiencies of transparency in terms of its design, the secrecy with which it operates, and the secrecy of its outcomes.
One of the key points we made in an earlier paper about graduated response schemes was that private schemes pose significant problems for due process and the rule of law. They’re negotiated in secret and imposed contractually on subscribers with little public oversight. CAS appears to avoid the most dangerous aspects by not requiring ISPs to terminate the accounts of people accused with copyright infringement. The secrecy of the system and the potential lack of due process, however, still raises important concerns. The public approach being pursued by countries like New Zealand (see Giblin’s paper) and the UK are better in this regard as they represent open democratic rulemaking, rather than private agreements that have the effect of law.