Note: This is a companion piece to the story "Has online piracy reached a tipping point?"
AT&T made news last month for acknowledging that it had begun sending warning notices to customers accused of illegal file sharing by the music industry.
Executives from the nation's largest Internet service provider said the notices were only part of a test. The company could have saved itself some trouble and just asked the advice of Charter Communications. Much of what AT&T is experimenting with, Charter has been doing for years.
AT&T said it only recently began issuing "cover letters" to customers accused of downloading unauthorized material. These cover letters accompany the cease-and-desist letters it receives from the music industry. The ISP acknowledged notifying customers the company has the right to cut off someone's service, but executives there insisted that it's only legal boilerplate. The company has no intention of suspending or terminating anyone's service because the Recording Industry Association of America has accused them of file sharing. AT&T would need a court order first.
By contrast, a Charter spokeswoman said that ISP has been sending its own warning letters--or what she called a "heads-up" letter--since 2001. Charter's notification is sent in addition to the warning letters sent by copyright owners. A music industry source told me that while the RIAA is trying to prod some ISPs to do more to combat piracy, other ISPs adopted strategies years ago to deal with illegal file sharing. Some of those programs closely resemble the kind of graduated response the music industry favors.
What this shows is that the music and film industries may not have too hard a time as they attempt to enlist ISPs in their war on copyright infringement (To see a story on whether piracy has reached a tipping point, go here).
I still haven't been able to get my hands on a copy of AT&T's test cover letter, but a reader was kind enough to supply me with a warning letter he received this month from Charter. He was accused of downloading content owned by NBC Universal.
While AT&T said the language in its cover letter about service interruption or termination had little relevance, Charter's letter doesn't mince words.
"Charter reserves the right to suspend or terminate the accounts of repeat copyright infringers," the company informed the customer in the April 4 e-mail. Later in the message, the company added: "If Charter continues to receive DMCA notices regarding your account or if you violate any other clause of Charter's Acceptable Use Policy, we will have no choice but to terminate your account."
Anita Lamont, a Charter spokeswoman, said this kind of language is industry standard.
"The warning of possible suspension/termination is required by the DMCA," Lamont wrote me. "Our DMCA notice reminds our subscribers of the requirements of our posted acceptable use policy."
She didn't, however, say whether the company has made good on the threat to terminate service.
I've included the copy of Charter's letter so customers of AT&T and other ISPs preparing to follow in its footsteps can get a look at what might be coming (Note that I've deleted identifying information).
From: Charter Abuse Tracking System
Subject: [IP Address deleted] Notice of Copyright Infringement
To: (name removed)@yahoo.com
Date: Saturday, April 4, 2009, 10:30 AM
Dear Internet Access Subscriber:
Charter Communications ("Charter") has been notified by a copyright owner that your Internet account has been involved in the exchange of unauthorized copies of copyrighted material (music, movies, or software). We are enclosing a copy of the Digital Millennium Copyright Act (DMCA) notice that Charter received from the copyright holder.
It is possible that this activity has occurred without your permission or knowledge by an unauthorized user, a minor who may not fully understand the copyright laws, or even as a result of a computer virus. However, as a Charter Internet account owner, you can be held liable for this activity.
As a personal computer owner and a user of the Internet, we ask that you be aware of the following: Violations of federal Copyright law can result in civil and/or criminal liability, including payment of monetary damages, costs and attorneys' fees to the copyright owner. See 17 U.S.C. ?? 504-506. In addition, Charter's Acceptable Use Policy explicitly prohibits copyright infringement by Charter High-Speed Internet users. Specifically, Section 3 states:
NO COPYRIGHT OR TRADEMARK INFRINGEMENT
Customer will not use, or allow others to use, the Service to send or receive, or otherwise use any information which infringes the patents, trademarks, copyrights, trade secrets or proprietary rights of any other person or entity. This includes, but is not limited to, digitization of music, movies, photographs or other copyrighted materials or software. Customer must obtain appropriate authorization from such other person or entity prior to sending, receiving or using such materials. Customer represents and warrants that Customer is the author and copyright owner and/or authorized licensee with respect to any hosted content and Customer further represents and warrants that no hosted content violates the trademark, copyright, domain name or intellectual property rights of any third party. Charter assumes no responsibility, and Customer assumes all risks regarding the determination of whether material is in the public domain, or may otherwise be used for such purposes.
Charter is registered under the Digital Millennium Copyright Act of 1998 (DMCA). Under the DMCA, copyright owners have the right to notify Charter if they believe that a Charter customer has infringed the copyright owner's work(s). If Charter receives a notice from a copyright owner alleging any Customer has committed copyright infringement, Charter will notify the Customer of the alleged infringement. Charter may determine that Customer is a repeat copyright infringer if Charter learns that Customer has engaged in online copyright infringement on more than one occasion. Charter reserves the right to suspend or terminate the accounts of repeat copyright infringers.
We ask that you take immediate action to remove the infringing material from your computer and stop its exchange. If Charter continues to receive DMCA notices regarding your account, or if you violate any other clause of Charter's Acceptable Use Policy, we will have no choice but to terminate your account. You may view Charter's rules and policies at http://www.charter.com/site/policies.aspx.
If you need assistance in removing the referenced infringing material, please refer to the Security Center at http://www.charter.com.
If you have any questions about this matter, please contact us at (phone number deleted). Representatives will be available to take your call Monday through Friday 8am - 8pm, and Saturday and Sunday 8am - 5pm (CST).
Charter High-Speed Internet Security Team http://security.charter.com