More Consumer Information Needed on CAS, as Experts Cite Possible IoT Concerns

As the Center for Copyright Information (CCI), which oversees CAS in partnership with multiple ISPs, including AT&T and Cablevision, continues to analyze data, it will release that information, said CCI Executive Director Jill Lesser, in an interview. “We have said all along that we really wanted the program to be transparent.” The more consumers know about CAS, “the more likely the program is to be successful” and be a “deterrent” to infringement, she said.

CAS “data is limited,” said Derek Bambauer, a University of Arizona law professor specializing in Internet law and intellectual property. Bambauer represented Christopher Soghoian, American Civil Liberties Union’s Speech, Privacy and Technology Project principal technologist, in a Freedom of Information Act lawsuit against CAS (http://bit.ly/1oNHIg5). “We don’t know whether users switched to mechanisms where it’s harder to detect infringement (such as TOR), whether they switched to legitimate services (Netflix, Amazon, etc.)” or “whether the users stopped infringing,” said Bambauer. “All we have is educated guesswork.”

The report “seemed to disclose quite a bit,” but one would want it to “disclose even more,” said CEO Marty Lafferty of the Distributed Computing Industry Association, with members including AT&T, Comcast, Verizon and peer-to-peer networks. Lafferty wanted the report to include the “specific messages” sent by ISPs and broadband network operators to notify infringers, he said. Sharing those messages “could help build some best practices” in the industry and could also be used by “software developers and distributors,” he said. Lafferty was “very concerned” about CAS’s mitigation measures potentially being “all over the place,” he said. He said a home linked with the IoT could have security systems compromised in the event of a mitigation measure. Why should one who infringes on a P2P network have a home security system possibly compromised by reduced Internet access, he asked: The “punishment could far exceed the crime.” Mitigation needs to be “laser-focused” on the particular software used to infringe, he said. BitTorrent hopes CAS “education efforts” distinguish between P2P and “piracy websites,” said a spokesman. “There is nothing illegal about P2P, per se.”

"Very, very few” mitigation measures were “imposed” on consumers, and those that were were “very pin-pointed,” said CCI’s Lesser. CAS is “based on the fact that these alerts are sent to the primary account holder,” who would have “plenty of time” to investigate those notices with the benefit of “lots of opportunities and assistance given by the ISPs,” she said. The mitigation measures aren’t “something that should come as a surprise” to any consumer who is a repeat infringer, she said. The security systems that consumers “would want to protect like 911, would not be affected at all,” said Lesser. She didn’t say whether IoT would be affected.

IoT Alarms

"If the home security system relies on that connection, and the connection becomes slower, then the security system has to compete for that more limited bandwidth,” said Bambauer. “In theory, an ISP could discriminate among traffic” by allowing 911 calls and “security system traffic,” while disrupting P2P networks, he said. “I'd be surprised if they engaged in throttling with that level of granularity -- it'd drive up cost” of the program and “Internet-based security alarms are still relatively uncommon,” he said. IoT isn’t “generating anywhere near the bandwidth usage that would be a major issue,” said James Grimmelmann, a University of Maryland law professor specializing in IP and technology. “Reduced speed, ironically, would affect a consumer’s ability to use legitimate, licensed media, such as Netflix streaming.”

The report’s claims about behavioral change are “overstated,” said Mitch Stoltz, Electronic Frontier Foundation staff attorney. Stoltz criticized the CAS in a blog post (http://bit.ly/UfnxPf) June 2, saying the CAS couldn’t be the “future of copyright without more transparency and accountability.” The report’s mitigation measures are “vague and anecdotal,” and the “bottom line” is “whether people are being kicked off the Internet for periods of time,” he told us. He cited Cablevision’s ISP Optimum for stating that it might “temporarily suspend” Internet access for repeated infringement (http://bit.ly/1hBUj7v).

The “real test” of the CAS is “whether it’s having any impact on piracy,” said Casey Rae, Future of Music Coalition interim executive director. The “increased availability of legitimate, licensed services” for file sharing will make finding a “clear answer” tough, he said. The CAS report is “encouraging,” because the “vast majority of action has been educational,” and “there have been no false positives,” he said. While “P2P filesharing and unauthorized torrenting remains a real problem for musicians and other creators,” the “history of heavy handed enforcement and litigation” by the entertainment and media industries offers cause for skepticism over the industry’s goals, he said. “Availability of desirable content with convenience and attractive pricing is the best way to solve these problems."

CAS is a “private agreement,” but has a “public character,” said Stoltz, citing CAS support from the White House, Congress and the entertainment industry. CAS’s “public character” is “why transparency is really important,” he said. “I'd like to be able to say that I think this whole thing seems rather harmless, but the truth is there isn’t enough information in the report to say that.”

As CCI continues its CAS awareness campaign and more consumers gain knowledge about CAS, CCI will “want to know” whether consumers are quitting infringing activity and if they're “sharing that information with other people,” said Lesser. Once that analysis is complete, “hopefully we'll have more information to release,” she said.

The CAS could be a situation “where no news is good news,” since there haven’t been any “horror stories,” said Center for Democracy & Technology (CDT) General Counsel David Sohn. CDT Chairman Jerry Berman is an advisory board member at CCI. The “most significant” claim is that there’s “no evidence of outright mistakes” or “people getting sent notices for infringing works” when they aren’t infringing, he said. Sohn echoed the concerns of others that more information is necessary, but said determining how people respond to the program is “hard evidence to gather,” because it’s “anecdotal.” “For a program that is educational in focus, one wouldn’t really expect clear results to be immediately apparent,” he said: Changing consumer behavior “doesn’t happen overnight.”