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N.Y.U. JOURNAL OF INTELL. PROP. & ENT. LAW
[Vol. 2:142
correctness. Consumers are forced to prove a negative, without having access to essential evidence which would allow them to do so. Because the due process protections provided are minimal, the chances of Type I error are likely to be much greater in the Copyright Alert System. As a result, the likelihood of an innocent user being punished is much higher, even if the system may work to catch a plurality of actual copyright infringers.195 Given the essential place that the Internet has taken in the everyday life of the average American consumer, the possibility of an erroneous deprivation of Internet services—even momentarily—is a subject that should be of concern to antitrust enforcers and the courts. 2. Governance Provisions In addition to the consumer directed provisions, the agreement also restricts the ability of ISPs located in competitive markets to engage in competition without the interference of an oversight body consisting of other industry participants. Content owners are similarly restricted from issuing notices, either by means of a quota or a complete ban, 196 without the cooperation of other participants in their industry. These are important provisions because they allow each of the parties— content owners and ISPs alike—to police the others to maintain discipline within their cartel. From an economic standpoint, such provisions serve to reinforce the anticompetitive nature of the deal. This is a classic free-rider problem: there are significant incentives for a cartel member to cheat on the arrangement for competitive advantage. In the case of this agreement, ISPs in competitive markets who implement less ‘successful’ Copyright Alert Systems than their competitors could serve to draw additional customers away from other cartel members who implement stricter systems. Similarly, the restrictions on limiting alerts by the various content owners serves to ensure that one content owner is not benefited more than another by the proposed plan. By allowing content owners and other
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Additionally, it is likely that truly devoted infringers will simply adopt technology that will mask the ability of content owners to identify them. See, e.g., Ryan Paul, Swedish Political Party Offers Commercial Darknet Access, ARS TECHNICA (Aug. 15, 2006), http://arstechnica.com/old/content/2006/08/7502.ars; BT GUARD ANONYMOUS BITTORRENT SERVICES, http://btguard.com (last visited Apr. 25, 2012) (enabling users to pay $6.95/month to anonymize their IP addresses while participating in peer-to-peer Bittorrent file exchange, most likely exchanges constituting online infringement). 196 Mem. of Understanding, supra note 71, §§ 5(C), 6(A).