Why The Six Strikes Plan Doesn't Mesh With US Law Or Social Norms
from the not-justice dept
With various ISPs getting ready to kick off the entertainment industry’s “six strikes” plan to send warnings to users if they’re accused of infringement, leading up to “mitigation” efforts, in which users can find their accounts downgraded or limited for multiple accusations (not convictions), some are exploring the specifics of the system. Annemarie Bridy from the University of Idaho recently took a look at the six strikes plan and compared it to five basic “norms” that are “central to consumer protection.” The report is thorough and balanced, and finds that the plans do okay on some factors, but has some serious concerns about other areas:
On the negative side, there are insufficient safeguards in CAS to insure the accuracy of allegations of infringement, the fairness of the independent review process, and the independence and expertise of the various “independent experts” the MOU requires CCI to consult. Moreover, there is no way for the public to know whether the program is meeting the goals established for it in the MOU.
Those all seem like pretty big “negatives.” The accuracy of the allegations is a huge one, since (once again) the whole system is based on allegations and not convictions. This has been my concern with all of these plans since the beginning. Generally speaking, here in the US, we tend to believe that you have to actually be found guilty of violating the law before being punished as if you did break the law. But the six strikes system flips that on its head. Those accused have the burden almost entirely on them — and (even worse) are given limited defenses which block certain key things (such as claiming that a work is in the public domain). The report highlights this concern:
The Copyright Act provides a range of defenses and exceptions to copyright infringement. While the exclusive rights of copyright owners are fully enumerated in just two sections of code, section 106 and section 106A, the following fifteen sections—107 through 122—enumerate a wide range of limitations and exceptions that are crucial for maintaining a balanced copyright system. CAS, by contrast, permits a subscriber to raise only six defenses, and only two of those—fair use and publication before 1923—are grounded directly in copyright law.
It is true that many of the defenses and exceptions provided in the Copyright Act are not relevant to the lion’s share of infringement claims arising from P2P file sharing. But CAS, on principle, should permit a subscriber to raise any relevant defense that is cognizable under the public law of copyrights. There are, for example, several reasons for which a work can be in the public domain that are unrelated to publication before 1923, which is the only out-of-copyright scenario the MOU contemplates. Works in the public domain include those published between 1923 and 1963 whose copyrights were not renewed, works published before 1989 without proper copyright notices, and most works created by the U.S. government. The rules concerning lapse and loss of protection are complicated, even byzantine, but they are nevertheless the rules. If the substantive law of the independent review under CAS is U.S. copyright law, as it should be, then all relevant provisions of U.S. copyright law should be the law of CAS.
Putting the burden on the accused is also a major concern which basically goes against everything we believe in the US about where the burden should lie:
In civil suits for copyright infringement, the burden of proof is on the plaintiff, who must prove both ownership of a valid copyright and infringement of an exclusive right granted by section 106 of the Copyright Act. CAS alters this allocation of burdens by making it the responsibility of the accused (i.e., the recipient of a fifth or sixth copyright alert) to raise and prove a defense to infringement in order to avoid a sanction. In addition to shifting the burden of proof with respect to infringement, the MOU creates a presumption of accuracy in favor of the copyright owner, as discussed above in Part III.B above, with respect to both the capture of IP addresses and the identification of copyrighted content. The presumptions of accuracy attach under the MOU as long as the copyright owners’ methods of collection and identification have not been found “fundamentally unreliable” by a technical expert. On the strength of these presumptions, notices from the complaining copyright owner are treated as proof of infringement sufficient to trigger the imposition of a sanction. Such treatment was criticized in Corbis Corp. v. Amazon.com, a case interpreting the repeat infringer provision of the DMCA.
The allocation of burdens built into CAS is troubling because it conflicts with a basic principle underlying our justice system—that a person accused of having engaged in illegal conduct is presumed innocent until proven guilty in a court of law.
Of course, they can get away with this because the whole thing is supposedly a “voluntary” agreement between private parties (which ignores the government’s close involvement in the negotiations). Either way, it seems to just add more questions about why ISPs were willing to agree to such a plan, when it seems to be at odds with the law itself.
Filed Under: burdens, copyright, innocent until proven guilty, six strikes, social norms, us laws
Comments on “Why The Six Strikes Plan Doesn't Mesh With US Law Or Social Norms”
well mike i guess this is goodbye
you won’t have internet access much longer due to your “habits”
any last words
Re: Re:
Yeah, you ever heard of a “VPN”?
subject here
“The allocation of burdens built into CAS is troubling because it conflicts with a basic principle underlying our justice system?that a person accused of having engaged in illegal conduct is presumed innocent until proven guilty in a court of law.”
The problem is this isn’t a legal system (ie, it’s not a criminal action) but rather a “right to refuse business”. Unless you deem the ISPs to be a basic right and force them to offer service to everyone, all of the time, then they have the right to refuse to offer service.
If they get a lot of complaints about a given user, even if those complaints are not proven on an individual case basis beyond a reasonable doubt, the ISP is still well within it’s prerogative to decline to offer service to that customer.
Further, why try to frame this narrowly like a court of law criminal action, when at best it’s a civil matter? The standard for civil isn’t reasonable doubt, it’s a preponderance of evidence. Under that standard, 6 strikes is a pretty heavy burden.
Re: subject here
As a the only good side effect to giving cable companies regional monopolies, in fact, we do “force them to offer service to everyone, all of the time”
Re: subject here
Well, I don’t see why we shouldn’t do exactly that. Seeing how important Internet access is to our modern way of life, is there any good reason not to treat it as a fundamental utility, on par with water and electricity?
Re: subject here
If they get a lot of complaints about a given user, even if those complaints are not proven on an individual case basis beyond a reasonable doubt, the ISP is still well within it’s prerogative to decline to offer service to that customer.
Except that – on that basis – the user would have the right to take his business elsewhere – that is how the market works and that is why the ISP does not have to prove anythign before refusing service – once the ISP is in a monopoly or quasi monopoly it effectively becomes an arm of the state and hence should respect the usual rules of the legal system before it takes action.
Re: Re: subject here
So then would you go so far as to say the ISP’s are engaged in Collusion by implementing this 6 strikes plan?
Collusion is an agreement between two or more persons, sometimes illegal and therefore secretive, to limit open competition by deceiving, misleading, or defrauding others of their legal rights, or to obtain an objective forbidden by law typically by defrauding or gaining an unfair advantage.
The ‘deceiving, misleading, or defrauding others of their legal rights’ is interesting since according to this report, the ISP’s are colluding to do exactly that by limiting ‘defenses’ which copyright law would appear to allow.
Re: Re: Re: subject here
The difference is that preivate entities masquerading as government want this to happen: it costs those entities nothing whilst the ISPs are left with all the vitriol.
Re: Re: subject here
” once the ISP is in a monopoly or quasi monopoly it effectively becomes an arm of the state and hence should respect the usual rules of the legal system before it takes action.”
There are almost no ISP monopolies in the US. There are some duopolies, some with more than that. There are many ways to obtain connectivity in most areas, rural users may find themselves limited in choice. Their choice to live in BF nowhere.
ISPs are NOT an arm of the state. Internet connectivity hasn’t been added into the constitution. It’s not a basic right, and for the most part people pushing to make it a basic right are trying to do so in order to avoid the legal implications of their online actions.
You cannot force a private business to offer service to everyone, they only have to offer the service EVENLY to everyone. That is to say that if they have rules, they must enforce it evenly, regardless of race, creed, color… but if an ISP has a “credit card required” rule or a “must be the property owner or valid lease holder” rule in place, they can enforce them.
You don’t have the right to the internet. Just like driving, it’s a privilege.
Re: Re: Re: subject here
They are? How do you know this?
In my experience, people are pushing it because it is increasingly necessary in order to function in society.
Re: Re: Re: subject here
You don’t have the right to the internet. Just like driving, it’s a privilege.
Actually, that is currently being debated on few different levels.
The UN, at the very least, recognizes that cutting off internet service violates existing civil liberties:
Four out of five people worldwide seem to feel that the internet is a fundamental right:
There are currently six countries that have actually declared internet service a “right” either through laws or constitutional changes.
In the US, I would guess that most people feel internet service should be on the same level as electrical service when it comes to denial of service. Mere accusations really don’t seem to be enough to warrant a cutoff, if you ask me.
Re: Re: Re:2 subject here
That’s all very nice but what the Special Rapporteur thinks is hardly conclusive on anyone. Nothing you said transforms internet access in the US from a private service into a right. I don’t think my credit card company should be able to charge $35 if my payment is a day late. But they do. And it’s hard to argue that in our modern world that having a credit card is less important than internet access.
Re: subject here
Hypocrite much?
This is not a criminal action because it suits you here, but the industry is continuously pushing to criminalize infringement.
Re: Re: subject here
Wow, talk about a non-answer.
“Hypocrite much?
This is not a criminal action because it suits you here, but the industry is continuously pushing to criminalize infringement.”
What exactly are you smoking? You answered your own (weak) point, noting that some have PUSHED for criminalization, not that it has happened, has it?
Perhaps you should try living in the real world, and not fantasy hatred-land.
Re: Re: Re: subject here
Well, where’s the preponderance of evidence, then? I mean, that’s the basis for civil actions, right?
But that’s not the case in these plans. This is based on accusations, with no real factual basis.
Re: Re: Re: subject here
What exactly are you smoking? You answered your own (weak) point, noting that some have PUSHED for criminalization, not that it has happened, has it?
Ummm. Maybe the same stuff you are smoking.
From the Copyright Office:
Looks like infringement HAS been made criminal since pretty much any (if not all) of those are pretty easy to achieve on a daily basis.
Re: subject here
The problem is this isn’t a legal system (ie, it’s not a criminal action) but rather a “right to refuse business”.
If this was only about the rights to refuse to do business with someone, then why the big announcements? Why the big 6 strikes plan? Why the quasi-judicial appeals process? Why the negotiations driven by the White House?
Every service provider already has it buried in their terms of service that they can terminate anyone’s access at any time for any reason. They don’t need the 6 strikes thing for that.
Further, why try to frame this narrowly like a court of law criminal action, when at best it’s a civil matter?
Copyright law is a civil matter, but with criminal penalties – punitive and statutory fines instead of any kind of reasonableness designed to cover the losses caused by infringement. If this was only a civil matter, the fines would be restitution for damages – and those damages would need to be proven. Now we’re talking about denying someone access to the internet, which is even more of a criminal penalty – one most frequently used to punish hackers caught breaking criminal law, but without the due process of a trial and standards of evidence.
Under that standard, 6 strikes is a pretty heavy burden.
Not when the automated bots identify infringement performed by network printers. Not when the automated bots accuse people who don’t even have internet connections of infringement. Not when millions of questionable or bogus DMCA notices are sent out using the same methods.
You are seriously deluded if you think these notices are even remotely close to being evidence worthy.
Re: subject here
This system requires the ISPs to share progress reports with Hollywood, here’s an interesting tidbit related to that:
“The Content Owner Representatives [MPAA / RIAA] or any other member of the Participating Content Owners Group may use such reports or data as the basis for seeking a Subscriber?s identity through a subpoena or order or other lawful process. For the avoidance of doubt, the Parties agree that the Content Owner Representatives may share such reports with the other members of the Participating Content Owners Group..?
And later on…
?The Participating ISP will, however, continue to track and report the number of ISP Notices the Participating ISP receives for that Subscriber?s account, so that information is available to a Content Owner Representative if it elects to initiate a copyright infringement action against that Subscriber.?
Source: http://torrentfreak.com/mpaa-riaa-ponder-suing-persistent-bittorrent-pirates-120618/
So this system has the potential to be used for legal action.
had the ISPs joined together to fight this shit, instead of joining together to give in to it, there may well have been a different outcome. i still dont understand why everyone is so afraid of the entertainment industries. together, there would have been a greater kitty available for fighting than those industries had. if the government had sided against ISPs, they could have just shut their networks down. i bet they wouldn’t have been down for long!!
Re: Re:
ISPs hope to eventually strike deals with the media companies to deliver content. Most of the big ones offer cable television with their internet.
Re: Re:
had the ISPs joined together to fight this shit, instead of joining together to give in to it, there may well have been a different outcome. i still dont understand why everyone is so afraid of the entertainment industries. together, there would have been a greater kitty available for fighting than those industries had. if the government had sided against ISPs, they could have just shut their networks down. i bet they wouldn’t have been down for long!!
The ISP’s have great economic interest in content, why would they fight it?
Re:
i still dont understand why everyone is so afraid of the entertainment industries.
Dude, Comcast owns NBC Universal. They’re not afraid of the entertainment industry. They are the entertainment industry.
And as for the rest of the cable company ISPs, they get nearly all their product from the entertainment industry, so they probably had to agree to this deal or explain to their customers why half their channels disappeared all of the sudden. This is especially true if Disney was involved. Say goodbye to most of your customers if you lose ESPN.
Just as with DMCA and takedown notices, we will eventually see bogus complaints lodged with more and more frequency. There is no penalty any more than with takedowns for wrongful claims. So there is nothing to prevent them from going overboard in turning in notices.
Funny, last I saw, there was no place to claim something accused of was fair use and the one on it that allows you to claim unsecured router can only be used once. However as noted here on Techdirt a couple of cases have already went before court that say there is no requirement to have a secured router.
Re: Re:
This. I’ve been saying for years that this is why the DMCA is fundamentally wrong and unconstitutional. DMCA takedowns and DRM technology both fly in the face of our sacred legal principles of Due Process and the Presumption of Innocence, and as such they ought not to exist.
As the MPAA/RIAA seem to think that all use of torrents is illegal, is a CC or FOSS license a fair defense.
It goes directly towards the net neutrality issues discussed earlier (lack of competition allowing data caps since you have nowhere to run). In a truly capitalist world the ones participating in this scheme would be doomed since their users would flee from them. But then again in a truly capitalist world file sharing would just be another force in the market…
Please, oh PLEASE hurry up and go ahead with "six strikes" in the US
I’d like to see this idiocy and the latest Japanese government insanity blown to smithereens before my own country’s American-wannabe Prime Criminal and his red-white-and-me-too redneck consorts and the telecom crooks try to shove this horrible pile of road apples down our throats at the behest of an antiquated industry.
Hurry up with it (and please pass the popcorn while you’re at it).
A Benefit
Since this isn’t an actual legal framework submitting false complaints wouldn’t be illegal. So lets start sending them to the IPs for the RIAA, MPAA, and studios? Few hundred thousand complaints and they will either have no more internet or give up on this idea.
Re: A Benefit
Considering they were lured into sending cease and desist letters to printers in the past this could be amusing on multiple ways =D
Re: A Benefit
As I have no doubt that the entertainment industries will have no problem with filing false accusations against the general public, I think your plan has merit.
Just as they treat the public at large as criminals or potential criminals, we need to treat anyone involved with filing accusations as an enemy of the public.
My feelings would seem over the top if it were not for ample evidence by industry actions and more than a few promises of way over the top, excessive legal action by industry executives.
I can accuse anyone right?
Best practical joke ever. ‘HaHa! I just got you kicked off the internet!’
The War on Downloading.
Yet another war brought to you by the Corporate States of America waged to cover yet another massive wealth grab.
Re: The War on Downloading.
Add to it the make-believe that those global corparations benefit the people of USA, or any copyright-enforcement targetted firs world countries… think artificial IP transfer (read:evasion)to IP-holdings in countries with most favorable conditions and tax optimization (read:evasion) etc…
From The Tough Shit Dept.
Either way, it seems to just add more questions about why ISPs were willing to agree to such a plan, when it seems to be at odds with the law itself.
You answer your own question when you noted it is a private program among ISP’s. It is effectively part of the TOS. You don’t like it…. there’s the door.
Re: From The Tough Shit Dept.
You don’t like it…. there’s the door.
Again, as others have noted, due to massively limited competition, plus gov’t subsidies and rights of way, many have obligations to offer universal service.
“There’s the door” works when you have a truly competitive market. When you have significant regulatory capture, as is the case here, there is no significant competition.
But, you know that.
Re: Re: From The Tough Shit Dept.
Don’t tell Hughesnet that.
Business Opportunity?
Seems like we are about to have a bunch of tech-savy people disenfranchised from the current crop of ISP’s. This could quickly become a large market. Our cruddy low-speed ISP’s could be “agreeing” to their own demise from compitition with highly-motivated startups who will have a large enough customer base to be profitable.
Re: Business Opportunity?
Seems like we are about to have a bunch of tech-savy people disenfranchised from the current crop of ISP’s. This could quickly become a large market. Our cruddy low-speed ISP’s could be “agreeing” to their own demise from compitition with highly-motivated startups who will have a large enough customer base to be profitable.
A highly-motivated startup catering to a large customer base of presumed lawbreakers? It’s hard to think of an entity with the economic wherewithal that would risk being branded as a rogue operator.
Re: Business Opportunity?
Yes, exactly this. 6 strikes presents an excellent business opportunity which will be filled.
I’ve repeatedly emailed Comcast about this asking for information about when they plan to begin participation in it and informing them I wish to disconnect my service at that time. I’ve gotten 0 responses. And get this, I don’t pirate. I do, however, use iTunes and have found my connection is throttled to the point where my downloads now fail for days at a time. I download my television from iTunes, it’s their competitor, and they ensure the quality of my internet connection sucks when trying to use them. So I have more than one reason to discontinue using them now.
Re: Re:
Don’t threaten Comcast. Comcast is awful, awful, awful, and if you have any alternative, just cancel your service with them right now and go with that instead.
And count yourself lucky. I have no such alternative.
Re: Re:
With all due respect, I doubt that is Comcast doing that. I personally use Comcast and have found that they throttle NOTHING since getting rapped on the hand for throttling by the courts the last time.
Don't we have a law against this?
Would this fall under anti-trust colluding to hurt the customer?
Re: Don't we have a law against this?
It just might fall under that. Because basically, these ‘six strikes’ can relate to anything that these companies wish to have it relate to.
Re: Don't we have a law against this?
Nope, on account of it’s the major media companies masuqerading as Government who are mandating this.
Time to invest in http://www.hughesnet.com
For those with long memories…
One of the great achievements of the Reagan administration (coff coff) was privatizing the routine abridgement of civil liberties by getting private parties (employers) engaged in widespread random drug testing.
We are now moving towards privatizing widespread abridgement of civil liberties by turning copyright law enforcement completely over to private companies, with no judicial safeguards.
The content industry has repeatedly, approvingly, cited China as the desirable social model, in terms of online rights and freedoms.
Re: Re:
With such corporation having no binding obligation to preserve our freedom of speech, as our pet AC/AJ trolls have rightly pointed us at…
What an excellent combination for a bright future.
Not legal agreement here
Actually, they CANNOT get away with this and the first time that me or anyone I know is accused under the six strikes plan, I will sue.
The bottom line is that you CANNOT be forced to give up your right to challenge something in a court of law. Even when Unions have ‘agreed’ to that, numerous people can challenge saying “I didn’t agree to that, I voted against that!” and most times they win in a court of law on that point.
So what if ..
As a Canadian I sometimes need assistance in understanding American “rules” because every so often they don’t make a lot of sense. So, from what I can gather, even if you are merely accused of copyright infringement from an automated bot that may or may not be accurate, you start rising up the escalation ladder in this “Six Strikes” process.
So, for example, if someone knew the IP address of NBC.COM (208.38.45.151) and then started to accuse NBC.COM of infringing on their copyright by going through their provider, they could take NBC off the Internet? And this seems logical to people? If someone knew the IP Addresses of the NBC executive team they could adulterate the process to get all of them “barred” from the Internet. And the copyright industries don’t think that this is going to turn around and bite them in the butt?
Re: So what if ..
My expectation is that only big content providers who participate in the Center for Copyright Information will be able to file complaints under Six Strikes. I don’t have time to refer back to the Memorandum of Understanding to check. But I’m sure that the system won’t accept complaints from Joe Q. Public, for just the reasons you describe.
(Also, and this is from the Memorandum of Understanding, Six Strikes only applies to residential ISP customers, not to businesses.)
Now, the interesting question becomes, can hacktivists fake-up convincing BitTorrent listings for, say, high-priced neighborhoods around Washington DC? 🙂 Or, will those neighborhoods be protected by their ISPs from receiving Six Strikes notices?
ISP’s are going to be pretty dumb for agreeing to this.
Re: Re:
The ISPs were made “an offer they couldn’t refuse” with the White House pressuring them — I’m guessing it was mostly Joe Biden. The threat of legislation to force the same result was in the background.
I wonder...
When the first lawsuit against the one of the *AA’s for theft of services occurs.
Many people generally have a poor view of class action attorneys, but this seems like one instance where good class action attorneys are needed who are willing to take on an antitrust case.
subject here
And it’s hard to argue that in our modern world that having a credit card is less important than internet access.
Personally the credit card thing doesn’t mean squat to me – I no longer purchase on credit anyways.
And I am not saying that internet service (or electric service) shouldn’t be cut off for non-payment. That’s common practice. I’m saying that internet service shouldn’t be cutoff for an mere accusation of some implied wrong doing.
The six strike is exactly that. Mere accusations (by a third or forth party no less). It’s like the natural gas company gets pissed because I switched my heat to electric, calls the electric company to say have infringed on some “right” of theirs and I lose my electric service.
We don’t deny ex-convicts the ability to obtain electric service, do we?
subject here
ISPs will indeed be found guilty of collusion in an actual court of law.
From The Tough Shit Dept.
If I wanted slow crappy internet service, I would go back to dial-up. Dial up would be more reliable and cheaper.
Really?
You do know that Mike himself does not download illegaly, and actually follows the laws, even if he doesn’t agree with them right?
subject here
And my water company will stop my service if I don’t pay them. So what?
Actually, that’s trivially easy to argue. Not having a credit card, in this day and age, doesn’t prevent you from doing much of anything. It’s a convenience issue. Not having internet access prevents you from doing all kinds of important things, including applying for work at some companies, getting some government services, etc.
Two more:
From the linked paper, quoted in the TD article:
“The presumptions of accuracy attach under the MOU as long as the copyright owners? methods of collection and identification have not been found ?fundamentally unreliable? by a technical expert. On the strength of these presumptions, notices from the complaining copyright owner are treated as proof of infringement sufficient to trigger the imposition of a sanction. Such treatment was criticized in Corbis Corp. v. Amazon.com, a case interpreting the repeat infringer provision of the DMCA.”
Again, READ THE MEMORANDUM OF UNDERSTANDING. The “methods of collection and identification” are to be treated as a trade secret!!!
Also: I note the publication of an item in Ars Technica in mid-September, with echoes around the blogosphere, that Six Strikes is coming by the end of 2012.
I mentioned earlier, in the July round of stories: In April, and in July, we were told that the start of Six Strikes was three months in the future. Now, in mid-September, we are told for the third time this year that Six Strikes will start… wait for it… in three months.
I would dearly like to be a fly on the wall in the tech offices of the ISPs who are working to implement this. 🙂
subject here
Actually, that’s trivially easy to argue. Not having a credit card, in this day and age, doesn’t prevent you from doing much of anything. It’s a convenience issue. Not having internet access prevents you from doing all kinds of important things, including applying for work at some companies, getting some government services, etc.
Try making a hotel reservation or booking a flight. You can always go to the library, you know. And I doubt the whole government services thing too. I fail to see how that could be required.
Re:
You can argue they were forced. I can’t imagine what kind of deal could be made that you’d risk killing your market by pissing people off. Hollywood would have had to made a hell of a deal to them because innocent people are going to get caught up in this not to mention its based on accusations as well.
Really?
No, we don’t know that.
Sure, that’s what he claims, but why would anyone believe such a thing when it comes from such a blatant intellectually dishonest piracy apologist?
You people are truly hilarious. Great mindless entertainment, tho…
subject here
Your credit card company doesn’t have the right to terminate your credit card for buying something illegal with it. Also, you have a choice of thousands of different banks to get your credit card from and the same huge array of terms. You don’t like your bank terms you go somewhere else. Most people are lucky to have 2 or 3 companies to choose from for internet access and many only have one. Its the reason the government regulates utilities. The free market just doesn’t work when you have such a limited choice of providers.
subject here
And that case would be laughed out of court.
Their “super duper secret” tracking firm has published documents showing they do not remotely understand the Bittorrent protocol at all.
Ip tracking is not like a fingerprint or DNA and only marginally proves the IP address MIGHT have been doing something wrong. It can not tell you what computer, if the IP was spoofed, who was using the comptuer and were they authorized to.
This is about scaring people directly, well we sent them 12 notices, they must be guilty your honor.
This is about ISPs threatening to turn off access on allegations that do not meet the standard of being evidence. With every bogus DMCA notice they send out they dig away the foundation that they are correct.
Re:
because its really hard to pay for content when you have to start paying money to have your wires up.
If they want to play enforcer for the copyright cartel, they sure can but that should void the monopoly hold they have on different areas, and they need to pay to have their lines in place and offer them up to competitors.
The first lawsuit against the ISP and CCI will end poorly for them.
From The Tough Shit Dept.
“You answer your own question when you noted it is a private program among ISP’s. It is effectively part of the TOS. You don’t like it…. there’s the door.“
The question is “why are ISPs willing to agree to such a plan?”. Saying “it is effectively part of the TOS” does nothing to answer that question, and neither does saying “there’s the door” do anything to address the problems behind a copyright enforcement system that is at odds with copyright law.
BTW – I think it’s worth investigating the US government’s involvement in the creation of this supposedly “private” program. At which point does “if you don’t like it, there’s the door” become “if you don’t like it, get out of the country”?
Re: From The Tough Shit Dept.
It should be kind of obvious, no? ISPs don’t like piracy, not because they give a shit about the law, but because it uses bandwidth. Why would they want to lay more fiber if they don’t have to? Any “resistance” to anti-piracy legislation and whatnot is just to cover their ass with CONSUMERS. They’re just pretending to be on our side. They don’t give a shit as long as you keep paying. The RIAA and MPAA and Government don’t need to twist ISPs arms to get their cooperation, as much as the ISPs might want you to think so. AT&T has been pulling this kind of shit in secret for years (http://en.wikipedia.org/wiki/Room_641A). Now, granted, the purpose of Room 641A and others like it are (supposedly) anti-terrorism and not anti-piracy, or anti-freedom, but it should be clear from the very existence of Room 641A that AT&T has no respect for its customers, beyond that necessary to retain a customer who only has 1 other choice for internet service.
TL;DR ISPs are colluding to lower their costs by eliminating bandwidth-hogs, and pretending to be on our side when they’ve been violating our rights and the law for years.
Really?
Let me get this straight. You say Mike is a copyright infringer because he is a “piracy apologist”. And you say that he is the one here who is “intellectually dishonest”.
Just making sure this is the situation.
Re: Really?
It truly wouldn’t matter whether he was or wasn’t.
All it would take is 6 accusations, no matter how flimsy they actually are, so long as they look plausible to a MAFIAA Luddite.
No appeals allowed, and no trial ever. Just a loss of freedom of speech in the primary forum of our times.
subject here
“There are almost no ISP monopolies in the US.”
Assuming this is correct, it does not mean ISPs should not be subject to regulations.
“rural users may find themselves limited in choice. Their choice to live in BF nowhere.
Yeah – screw them! Who needs food anyways.
“people pushing to make it a basic right are trying to do so in order to avoid the legal implications of their online actions.”
Complete and utter bullshit.
“You cannot force a private business to offer service to everyone”
I believe this has been addressed.
“they only have to offer the service EVENLY to everyone.”
Unless they do not like what protocols you make use of.
“You don’t have the right to the internet. Just like driving, it’s a privilege.”
This is the subject of many debates now isn’t it … and yet you pronounce the conclusion as though it is a done deal.
Well, heaven forbid something not mesh with social norms.
subject here
Wow. You actually still have a credit card? Aren’t you just the pretty little sucker.
subject here
Actually they do, depending upon the fine print in your contract. Many companies limit what you are allowed to purchase with their cards based upon the companies guiding moral principles.
Re:
One would think they had a greater economic interest in customer retention.
From The Tough Shit Dept.
At which point does “if you don’t like it, there’s the door” become “if you don’t like it, get out of the country”?
And go where? Do you really think someone who has been subjected to six strikes is actually going to relocate to a foreign country in the hope of having weaker infringement enforcement?
subject here
“Try making a hotel reservation or booking a flight.”
I do that all the time. It’s called a Debit card.
subject here
Copyright infringement on a personal level is not treated as a criminal offense. Sorry, keep trying!
Six strikes is just a warm up for all of the pissing and moaning yet to come. Masnick’s Google paymasters are busy selling out all of the chumps that they duped into carrying their water during the SOPA debate. From the WSJ:
As Mr. Katzenberg’s importance to team Obama has grown, so have
perceptions of his access to the White House.
Last winter, for example, Congress took up legislation designed to
clamp down on online piracy, which Hollywood sees as an existential
threat. The Stop Online Piracy Act, or SOPA, was designed to wall off
rogue websites offering free movies and TV shows. The bill pitted
Hollywood against Silicon Valley’s high-tech firms, which warned it
could effectively censor the Internet.
There were also divisions in the White House, said current and former
administration officials. Vice President Joe Biden was part of a faction
that wanted to broker a compromise. Others opposed to the bill,
predicting a backlash from tech-savvy voters who were fast lining up
against SOPA.
In January, the White House announced its opposition, effectively
scuttling the legislation. As the White House prepared to issue its
statement, former Sen. Chris Dodd, head of the Motion Picture
Association of America, the industry’s lobbying arm, called Mr.
Katzenberg “to get more information” about the president’s plans,
according to a spokesman for Mr. Dodd.
One person close to Mr. Katzenberg described the call differently,
saying Mr. Dodd “wanted Jeffrey to talk to the president” and that Mr.
Katzenberg declined to intervene. The White House position soured some
of Mr. Obama’s Hollywood supporters.
The White House “tried to play it both ways,” said Marge Tabankin, who
advises wealthy clients on politics and charitable giving. “And this
industry said that, for everything we’ve done, it would have been nice
if they at least had tried to work out a compromise.”
Mr. Katzenberg, on the losing side of the issue, sought to soothe hurt
feelings and lay the groundwork for a deal more friendly to Hollywood.
His office called the White House several days after its decision and
urged Mr. Obama to phone other studio chiefs to help reaffirm their
support, both personally and financially, according to people familiar
with the matter. Mr. Obama took the advice, these people said.
Mr. Katzenberg is now one of a handful of Hollywood executives working
to privately broker a compromise with Silicon Valley. He travels there
frequently to meet with people such as Google Inc. Executive Chairman
Eric Schmidt, according to people familiar with the matter. A Google
representative wouldn’t comment on the matter.
From The Tough Shit Dept.
“”There’s the door” works when you have a truly competitive market. When you have significant regulatory capture, as is the case here, there is no significant competition.”
Another piracy apologist stand.
Are you saying if there was more competition for your connection, that you would support this program? Are you only saying it’s unfair because you don’t have infinite choices to access online?
Your number of connection choices doesn’t make an illegal act suddenly legal.
subject here
For purposes of my example (late payment fee) there’s no difference.
subject here
Your credit card company doesn’t have the right to terminate your credit card for buying something illegal with it.
Yes, they do. Read your TOS, Einstein.
subject here
Tell that to the people being sued for 250,000 for sharing only a handful of songs.
Keep trying!
From The Tough Shit Dept.
Read what I wrote once again and try not to miss the point this time.
As I posted to the open wifi article, six strikes by itself has some pretty good utility. Where it gets really interesting is how a “strike” will be interpreted by the courts in civil infringement litigation. I think a “strike” will be construed as notification. And the (usually bullshit) contention by the defendant that his/her wifi connection was not secured, simply disintegrates. Once on notice, you have an obligation to mediate harm. Getting strikes 2-6 simply puts you on ever more focused short list of easy defendants for civil suits. Every strike you get means a larger target on your back. Every strike you get means your defense against infringement claims grows weaker and weaker. Think about it. What judge or ISP is going to try to preserve the identity of a John Doe with multiple “strikes”? What jury is going to believe that someone with 4-5-6 strikes simply forgot to protect their wifi with a passcode?
The good news is that I think the appeals process will address the very small number of cases where infringement truly was outside of the control of the account holder. So all that will be left for the vultures are the corpses of those who have it coming.
From The Tough Shit Dept.
I quoted what you wrote and addressed that point directly.
As to why the ISP’s are down with this; do you not understand that ISP’s have interest in monetizing content? Do you realize that Comcast owns NBC/U and makes buckets of cash distributing and producing content? Do you realize that ATT and Verizon also monetize content? And why do you think that ISP wouldn’t enforce copyright infringement in a lawful manner that was the cheapest and easiest for them? They aren’t the government and don’t have those constraints.Why would they burden themselves unnecessarily?
Re:
Getting strikes 2-6 simply puts you on ever more focused short list of easy defendants for civil suits.
When they sue, at least they’ll have to reveal their actual evidence. Oh wait, never mind?the Memorandum of Understanding calls for the CCI to seek a protective order to prevent disclosure of all information that gets subpoenaed from them.
Re:
I beginning to think that it might not happen,even if it did wouldn’t even work giving matter of that it would be open to abuse.
subject here
You are seriously deluded if you think these notices are even remotely close to being evidence worthy.
Agreed. You have hit the nail on the head.
subject here
lol – you bought prophylactics again, after having been warned six times – no more credit card for you.
subject here
Evidentiary value is not really important. What these strikes do is provide notice to the owner that their internet connection has been used unlawfully. Failing to address that is going to be a problem for them.
Really?
lol true
theres probably enough people from this forum alone that will falsely report him 6 times
not saying I would o.o
subject here
I agree, I just think it’s scary to give fodder to the RIAA for another lawsuit campaign.
subject here
Cognitive Dissonance alert.
You agree that the notices have no evidentiary value, but then claim that they show the connection has been use unlawfully.
subject here
What I am saying is that once you get a strike, the defense that “someone must have used my open wifi connection” goes out the window. Civil suits require a preponderance of evidence. It’s hard to claim you knew nothing about illegal downloads when you have been notified five different times that it was happening.
subject here
You are wildly optimistic. First, the standard in a civil suit is preponderance of evidence- not beyond a reasonable doubt.
Let’s say you get a first strike. You appeal based on having an open wifi connection and win. Then you get a second strike. It’s unlikely the open wifi defense will be viable as either you failed to take reasonable care to prevent known unlawful activity from taking place, or it was you all along. Strike appeal denied. Then you get a third, fourth and fifth strike. Congratulations!! You’ve made the short list of serial infringers and will be targeted for civil litigation.
Once a judge or jury sees the series of events that got you sued, it is not hard to imagine that the preponderance of evidence weighs against you.
Really?
And you don’t know that he does. For someone who is in the public spotlight as much as Mike is, it would behoove him to follow the law, as he would be crucified if he didn’t.
Really, it is you guys, who are willing to throw people under the bus just to prove a point, whether it is justified or not, who are intellectually dishonest.
There is a big difference between recognizing problems in a system, and being a part of that system. I suggest you step back and take a look at the big picture. People on both sides of the argument are often wrong. I am not saying that pirating files (music, movies or whatnot) is right, because it isn’t, but what the content industries are doing is also wrong.
I am not talking about making money, that isn’t the problem, the problem comes when they are doing so by sacrificing regular people’s rights and freedoms. We live in a society that was built on freedom. Now, because some companies aren’t making as much money as they want, they are trying to curtail our freedoms. All in the name of profit. That is not right either. Things need to change, or it will get much worse. They content industries will lobby government to strip away our rights, and the people will start rebelling more and more.
That is something that many in the industries are failing to see. Over-litigation will result in a massive backlash, much like what happened with the Prohibition. Perhaps by listening to what people want, they can avoid this, but it seems that they will continue down the road to self-destruction, because they refuse to listen to the people whom they profess to be catering to.
Despite what the content industries say, or believe, content will still be created. It will be innovative, and engaging. People will enjoy it, and it will be of good quality. Whether or not big studios are behind it or not. If you say I am wrong, look at Amanada Palmer’s newest album. Released free, and it reached 10 on the Billboard charts. The industry will survive the death of the studios and labels. If the studios and labels want to continue, they need to change how they do things. Litigating to force people to buy from them won’t work. It will hurt them in the long run.
See, this is what an open market is about. They must compete with their competition, and when some of their competition (such as Amanda Palmer or Dan Bull) are putting out content for free, they need to find a way to compete with that, or they will fall. Others will come up to replace them. Others that can compete, and are willing to offer people what they want in order to compete.
You see, Mike’s formula of Connect with Fans + Give a Reason to Buy is a good one. One that the MAFIAA ignores in favor of lobbying government to give them exclusive rights. The further they go in their efforts, the farther they will be from connecting with their fans. This will lead to them refusing to buy.
A part of this equation is the fact that buying habits have changed. People WANT to connect to artists. They want to feel like they are a part of the process. By shuttering them, litigating against them, the MAFIAA is driving the market away!
subject here
True, lack of a credit card does make renting a car or hotel room more difficult, but not impossible. It’s a convenience issue.
That you can go to a library for the internet doesn’t address that internet access is becoming increasingly necessary to function in society.
And you can doubt the government services thing all you want, but it’s true (more or less). This is allowable for the same reason that you just said: the argument is that people can go to the library to use the internet, so nobody is disenfranchised.
Nonetheless, it is a point where internet access is necessary.
Really?
reported for badmouthing mpaa/riaa
enjoy your internet while it lasts
you get 5 more chances, try to behave more appropriately
(im kidding)
o.o
From The Tough Shit Dept.
“I quoted what you wrote and addressed that point directly.”
No, you didn’t. In fact, you missed the point entirely. The point is precisely this: once the government has pressured all major ISPs into adopting a six-strikes policy, saying “there’s the door” is not mcuh better than saying “leave the country”.
As for your latest argument, I’m well aware of the conflict of interest that exists between ISPs and the content industry. The problem is precisely that “they aren’t the government” and therefore don’t have the same constraints (intended to protect those accused of infringement) as the government does. This is why the government’s involvement is so troubling, and a very good reason to bar ISPs from adopting policies which give special treatment to other businesses in which they have a commercial interest.
Re:
the truth is, the internet industry has failed to innovate profitable business models, so it’s had to create a transfer of wealth from working class artists,musicians and creators in a wall street style bail out by monetizing the artists work without consent or compensation.
that’s the truth.
Re:
It’s “the internet industry’s” job to provide profitable business models to other industries?
Transfer of wealth? From who to who? Less income than before (even if you can show that which I doubt) isn’t a transfer of wealth.
Monetizing the artists work? I thought ‘piracy’ was free? If the big bad internet is monetizing it doesn’t that conflict with the claim that there’s no profitable business model?
subject here
There’s no reason “someone must have used my open wifi connection” would ever ‘go out the window’ as a defense if that’s what’s actually happening.
subject here
Your example simply doesn’t follow at all. It’s like you think open wifi is illegal or automagically evidence of wrong-doing.
From The Tough Shit Dept.
What illegal act? No illegal acts are required to get forced into this deal.
Business Opportunity?
What law-breaking? Absolutely none is required to be disenfranchised by this extra-legal program.
Re:
You’ve claimed over and over that somehow repeat access of an open wifi by a third party triggers some kind of liability on the wifi providers part but that remains completely untrue.
Re:
You are dumb as rocks. VPN don’t offer 100% anonymity. Even those that claim this will cough up the information if they are pressed by entities with legal authority. Do some research moron.
bull
anti-piracy legislation within our laws is the right thing to do but it’s when we put the laws that protect us aside for anything at all is when we stop being the usa and start becoming Russia in the 80’s. people should not have to prove there not guilty the people who claim they did something have to prove they did it. now there wanting to change the law and people are to accept it. I don’t think so. These laws are wrong…. come up with something that works and is within our laws to stop piracy. it’s not rocket science
subject here
But it isn’t six strikes, it, more accurately, is six accusations, of which I could make against you myself with no evidence whatsoever.
My ISP
I normally post as anon, because I am tired of logging into 5,000 web sites daily. But this is important and I will display my real identity.
This is Communism. Clear and simple. Monitor and Censor is the Communist way of control. We already spent a trillion dollars and went in debt to fight this and here it is in our entertainment and communication choices. Monitoring my Internet is the same as listening to my phone calls or reading my mail. It is an invasion of privacy. Every day this week I have restrained myself in my internet activities because of the nagging in my head that says! “They are watching you. Be careful what you do, what you say and where you go on the internet.”. I can’t live like this.
You as a US consumer need to make a real choice. Will you deal with a Communist Organization or will you get rid of their service and find another alternative. My question is: Are you really an American and will you have the guts to stand up for your rights.
I made my choice. My Internet Modem and Cable TV box are being taken to ComCast today and my service will be cancelled. I already made arrangement with the appropriate Satellite people who by the way! They want my business!
ComCast, Go ahead bite the hand that feeds you. ‘The tighter your grip, the more star systems will slip through your fingers.’, I stole that from George Lucas, send me to jail.