Copyright owners just scored a big win – a new mechanism for combating piracy is here. This mechanism, the “six-strikes” policy, is expected to roll out starting November 28. However, there is a great deal we still don’t know about this system.

The “six-strikes” plan was the collaborative work of the Center for Copyright Information (CCI), comprised of five Internet service providers (Verizon, Time Warner Cable, AT&T, Comcast, and Cablevision) and representatives of copyright holders (the Motion Picture Association of America and Recording Industry Association of America). The Memorandum of Understanding, which reflects the final agreement between parties, gives discretion to Internet service providers to determine responses to infringement when brought to their attention by copyright holders.

Details of specific Internet service provider plans are starting to come out, but even those details are limited. At Thursday’s INET New York event, hosted at New York Law School, representatives from Verizon and Time Warner Cable spoke of their plans, which include phases of notification, acknowledgement, and finally punitive measures. Potential punitive measures included a temporary throttling of download speeds and restrictions on access to popular websites. Meanwhile, documents leaked from AT&T show plans to require repeated violators to complete an online copyright educational course. At the INET event, representatives from Verizon and Time Warner both asserted that they would not disconnect users’ Internet connections under this system, though neither company has put that promise in writing.

CCI maintains that the focus of its program is to educate the public about the harms of online piracy, in hopes that this will be sufficient to deter further infringement. However, opposition to the plan suggests that it will not only be ineffective (much like the similar Hadopi plan coming to an end in France), but that its lack of emphasis on habitual offenders renders it toothless. Additionally, the potential for traditional litigation still remains, and it has been suggested that the tracking from Internet service providers could be subpoenaed and used against flagged customers.

The “six-strikes” plan has caused a deal of controversy already. Outside the difficulty CCI members faced getting the system ready to implement, questions regarding the legitimacy of the “independent review” process have been raised. These doubts stem from the revelation that the “impartial,” “independent” technical expert is a former lobbyist on behalf of the Recording Industry Association of America (RIAA).

Because the “six-strikes” plan is not targeted at habitual infringers, it appears that piracy isn’t going anywhere. Many online pirates are taking affirmative steps to hide their IP addresses in light of the program, hoping to avoid detection through the use of virtual private networks (VPNs) or proxies.

The lack of transparency in the negotiation process leaves much to the imagination. This self-help plan to remedy the harms of copyright infringement may be challenged in court under a number of theories, though it is too early to speculate which (if any) have the potential to succeed. Additionally, the ability of copyright owners to compel disclosure of confidential customer information raises serious concerns about user privacy. If enforcement turns out to be as burdensome as it was in France under Hadopi, it is possible that Internet service providers will stop pursuing infringement through this plan, and leave copyright enforcement to rights holders under traditional methods. Ultimately, it may leave copyright owners in the same position as they were before the plan was devised.

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