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Voluntary Action
various ISPs and marketplace providers are almost constantly updating and refining these forms,
and thus their procedures can differ from visit to visit, and their average response times can vary.
b) Restrictions on Internet Access and Hybrid Approaches
In addition to online forms and procedures for removing infringing content, many proposed
industry initiatives have focused on ways to block Internet access to such content and/or suspend
Internet privileges altogether for their subscribers who repeatedly engage in infringing activity
online based on terms and conditions governing user participation in that site. 62 A broad spectrum
of such restrictions, ranging from traffic shaping to blocking to outright suspension of Internet
access, have been proposed and even implemented in some cases. 63 Most of these strategies only
target copyright infringement at this time, and do not expressly address trademark infringement
issues. Noteworthy restriction strategies can be summarized as follows:
(1) Suspension
Suspension is a severe remedy imposed by an ISP directly. If an ISP identifies an Internet subscriber
who engages conduct that violates its terms and conditions, including for instance, engaging in
infringing activity, that ISP may alert the subscriber of his/her unauthorized conduct and suspend
that subscriber’s Internet connection to access the Internet for a set period of time. 64 Some ISPs,
such as Qwest, have been employing the suspension strategy for repeat copyright infringers for
several years. 65 Such ISPs have generally only suspended Internet service in instances where a
repeat infringer has been identified, notified of its noncompliance and yet continues to abuse the
service. 66
(2) Traffic Shaping
Traffic shaping, also sometimes referred to as “throttling,” 67 occurs when an ISP reduces the
bandwidth provided to an Internet user. 68 If an ISP receives notice or otherwise becomes aware of
infringing activity, it can engage in traffic blocking to effectively reduce the speed or the volume
of traffic of the user at issue. 69 This strategy has been employed to varying degrees by a wide array
of parties over the last decade, including by many universities seeking to reduce the amount of
illegal file-sharing by students. 70
(3) Content Identification, Blocking and Filtering
Blocking and filtering are processes used by ISPs to restrict Internet users from accessing websites
that contain infringing content. 71 ISPs accomplish this by using protocols (e.g. P2P), ports, and
various software programs to identify infringing content and prevent users from accessing, posting
and/or otherwise sharing such content. 72
A number of user-generated content (“UGC”) sites in particular employ content identification and
filtering to proactively prevent infringements from occurring and/or recurring on their platforms.
YouTube, Dailymotion, and Youku for instance utilize their own proprietary or licensed content
recognition technology to filter videos posted by users upon upload and to block copyrighted
content that is not authorized by the copyright owner from being published to those sites. 73
YouTube’s content filter is used by more than 4,000 media companies and has identified more than
200 million copyrighted videos. 74 It seems a number of major UGC sites recognize that by sharing
in the burden of monitoring for infringements they help “to foster an online environment that
promotes the promises and benefits of UGC Services and protects the rights of Copyright Owners,”
to “strike a balance that, on a going-forward basis, will result in a more robust, content-rich online
experience for all,” thus serving UGC sites’ own business interests. 75 These same content recognition
technologies also power the authorized monetization of copyrighted content on UGC sites.
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