First, welcome to the 2012 installments of Georgia Internet Law, where an Atlanta e-commerce law firm provides information, resources and commentary, but not individualized legal advice (nod to attorney regulators), on technology law matters.

Second, let’s go back to the future by re-visiting a 2011 Sixth Sense Law post concerning the liability of web hosting companies for copyright violations. Here, we delve further by peeling one more layer and discussing Internet service providers (“ISPs,” who are primarily cable companies at this stage) and their exposure in matters of copyright infringement occurring on their watch by virtue of their customers’ actions.

There are really two primary content-creator trade groups: the Recording Industry Association of America (RIAA); and the Motion Picture Association of America (MPAA). By applying a lot of heat about rampant theft of copyrighted material, these organizations caused ISPs to agree to the creation of a Center for Copyright Information. The Center (a) educates subscribers about copyright protection and lawful ways to obtain movies and music via the Web, and (b) implements a system whereby the ISP issues an escalating series of warnings called “Copyright Alerts” to parties that are infringing rightsholders’ intellectual property.

Interestingly, France, where there is not a lot of baseball being played to the knowledge of Sixth Sense Law, wanted ISPs to be subject to a three-strikes rule whereby a given service provider would be required to terminate access to its customer upon an incident requiring a third Copyright Alert to that customer. In the U.S., it is possible for ISPs to achieve safe harbor relief under the U.S. Copyright Act as to their customers’ infringement if they have a copyright violation termination of service procedure in place, but the Copyright Alert system itself does not have a lot of teeth. Here, it is more like five strikes, and “Mitigation Measures” under the Alert system generally consist of screen pop-up warnings and requests that the end user contact the ISP when infringing activity is noticed.

More interestingly, ISPs are all of a sudden getting more invested in participating in infringement reduction of their own volition. The reason? Since, as noted, they are primarily comprised as a class by cable companies, they have a huge interest in the recent tidal wave of commerce in the legal downloading of video and music content. Note, for example, Comcast’s business combination with NBC Universal last year. As you know, the legal avenues for procuring content have only of late become commercially viable on a serious level. They are now driving changes in ISP copyright compliance, while illegal downloaders have effectively become enemies of the supply of legitimate bandwidth for legal downloads.

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