More and more, graduated response systems are being debated and put forward as legitimate solutions to online file sharing. In a recent article, “Graduated Response and the Turn to Private Ordering in Online Copyright Enforcement“, Professor Annmarie Bridy of theUniversity of Idaho College of Law explains why “voluntary graduated response, as publicly controversial as it is, is squarely on the table as corporate rights owners and broadband providers discuss their respective roles in the future of online copyright enforcement.” The article explains, “in the context of evolving network management technology and its impact on intermediary liability rules, why the time may be ripe for broadband providers and corporate rights owners to renegotiate their respective roles in the project of online copyright enforcement.”
The article discusses the dynamics of why ISPs and rights holders should be motivated to work together to solve the problem of online file sharing. Apart from good business reasons, she points out that today ISPs are increasingly deploying “smart” technologies within broadband networks. Technologies like deep packet inspection (DPI) have given operators an unprecedented level of control over the content that flows through their pipes. These enhanced capabilities of ISPs may also increase their exposure to copyright liability as they are less and less “dumb pipes”.
Prof. Bridy proposes a set of principles to guide the implementation of private graduated response regimes. She contends that ISPs and rights owners “must take it upon themselves, in the interest of the customers they aim to get and keep, to ensure that their private arrangements for enforcing copyrights online are both adequately transparent and meaningfully consumer protective.”
The article proposes that privately implemented graduated response regimes be designed to minimize the likelihood of mistaken responses, to maximize opportunities for consumer compliance before the imposition of any sanction, and to limit the duration of any access-related sanction imposed in the absence of a neutral adjudication of infringement. In this regard, the following principles are suggested:
- Users should be given an opportunity to contest notices of infringement with their ISPs as the notices are received and before any sanction is imposed.
- When it comes to adding up strikes, ISPs should count a single notice of infringement that alleges multiple instances of infringement as only one ―strike against the subscriber receiving the notice.
- The principle underlying graduated response is that sanctions should escalate as infractions accrete. The disciplinary approach is an incremental one, and in the interest of consumer protection, there should be more, rather than fewer, increments when it comes to the nature and duration of access-related sanctions. To maximize opportunities for Internet users to comply, ISPs that agree to implement a graduated response regime should graduate the access-related sanctions they impose, beginning with a speed sanction after three uncontested notices and graduating to a brief suspension of access with the fourth.
- Broadband providers should provide full disclosure of their copyright enforcement practices to prospective and existing customers.
Others including professors Alain Strowel and Olivier Bomsel have separately made strong arguments for graduated response systems. Prof. Bridy’s article provides an analysis of the legal liability reasons why ISPs and content owners should work together. While the analysis flows from the copyright liability regime in the US, her analysis could well resonate in Canada in view of the decision of the Supreme Court in Society of Composers, Authors, and Music Composers of Canada v. Canadian Association of Internet Providers,  S.C.R. 427, 2004 S.C.C. 45 which conditioned certain ISP immunities on ISPs being a dumb pipe and being unable to discern the nature of the content flowing through their systems.
The article also provides practical insights into how a voluntary graduated response system might be implemented.