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ODR CASE STUDYCenter for Copyright Information - Independent Review Process

Diana N. DidiaODR 2015 | Pace Law School

June 5, 2015

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First, some background …

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Education instead of litigation …

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AAA involvement started with a WSJ article …

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CCI Copyright Alert System (CAS)

Copyright owners send notices of alleged infringement to participating ISPs, who then forward these notices to their Subscribers in the form of Copyright Alerts.

The Alerts, include the date, time, time zone and title of the copyrighted content alleged to have been unlawfully distributed or shared.

Users sent a maximum of six Alerts, including appropriate grace periods, with an increasing degree of seriousness.

The opportunity to ask for a independent review (appeal) begins at the “Mitigation Alert” phase (after three or four Alerts, depending on the Subscriber’s ISP). 

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Copyright Alert System

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CAS - Independent Review Program

Subscriber redirected to AAA web properties to initiate review; details regarding Copyright Alerts pre-populated.

Independent Review Program is limited solely to determining the validity of the Copyright Alert.

The review process is most similar to expedited, documents only Arbitration.

Subscriber information is kept confidential from Content Owners unless “Authorization” is asserted by the Subscriber

Decisions due in as little as 21 days from filing unless additional info is requested or an extension granted by the Independent Reviewer. No case longer than 60 days.

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Grounds for challenging a Copyright Alert …

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Misidentification of Account

Subscriber’s ISP account has been incorrectly identified as a source of copyright infringement

Unauthorized Use of Account

Alleged activity was the result of the unauthorized use of the Subscriber’s account. May only be used once.

Authorization Use of the copyrighted work was authorized by its copyright owner.

Fair Use Subscriber’s reproduction and distribution of the copyrighted work constituted “Fair Use” of the work (according to the legal definition).

Misidentification of File File in question did not consist primarily of the alleged copyrighted work at issue but rather contained other non-infringing material.

Pre-1923 Defense Alleged copyrighted work was published prior to 1923 and therefore is not protected under U.S. Copyright law

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Independent Review Procedures

There is a $35 filing fee; hardship waiver available

Panel consists of 18 AAA Arbitrators; disclosures already made as to Content Owners and ISPs; assigned round-robin.

Reviewer receives appointment to serve via email; accesses Electronic Case File in the AAA’s Neutrals’ eCenter

Determine if “Unauthorized Use of Account” (if asserted) is barred

Assess the case file for completeness within 7 days; Subscriber has 7 additional days to perfect the filing or case is Dismissed With Prejudice

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Independent Review Procedures (cont’d)

Can review Notice/s that triggered Alert/s and may also review Evidence Package at Mark Monitor site

May request Supplemental Information; Content Owner, ISP, or Subscriber has 14 days to provide; for “Authorization” or “Fair Use” the Content Owner has an additional 14 days to rebut

Reviewer may grant only one 14 day (max.) extension

Render a Decision within 14 days; Subscriber prevails if successfully defending at least half of the Alerts; Decision Template in AAA Neutrals’ eCenter

If Subscriber’s prevails, no Mitigation Measure applied, all previous Alerts cleared; $35 filing fee refunded.

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The technical implementation…

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Challenges:

• Significant tension between participating organizations

• Front end (Copyright Alerts) planned and being built before Independent Review process was finalized.

• Subscriber anonymous

• ISP’s insisted on high-level of automation to avoid service level impacts

• Interfacing with IT networks of multiple organizations

• Lawyers as business owners

• Unrealistic/uniformed deadlines

• Security, security, security …

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Information Flow

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Technology Highlights

• All evidence submission, document review and party communications completed on-line.

• All communications between AAA and ISPs automated via standard Web Services.

• Filing confirmations, notice to serve and notice of “draft” decision to AAA sent via automated emails.

• Subscriber CC processing done via Authorize.net iFrame to further protect anonymity.

• IR compensation automatically paid based on step completion; AAA fees automatically collected via CCI draw down account

• Only supplemental information requests and final decision review and distribution handled via AAA Case Manager off-line interaction; non-automated communications done via email.

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What the subscriber sees…

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Entering their defense …

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IR Decision Template …

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Decision email …

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The stats ….

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Over 500 Cases Filed(Since March 2013)Over 1250 Cases Filed(Since March 2013)

ISP 1 (42)ISP 2 (46)ISP 3 (153)ISP 4 (47)ISP 5 (964)

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Defenses …

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Over 5500 Alerts Disputed

Authorization (44)Fair Use (73)I do not wish to challenge (603)Misidentification of Account (432)Misidentification of File (414)Unauthorized Use of Account (3981)Work Published Before 1923 (3)

Unauthorized Use of Account

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Outcomes …

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Authoriz

ation

Fair Use

I do not w

ish to

challe

nge

Misi

dentification of A

ccount

Misi

dentification of F

ile

Unauthoriz

ed Use of A

ccount

Work Publis

hed Before 1923

0%

10%

20%

30%

40%

50%

60%

70%

80%

90%

100%

FailedPrevailed

Subscriber Prevailed on 30% of Alerts/Filings