Shouldn't Users Have Been At The Table For The Six Strikes Negotiations?
from the look-who-got-screwed dept
We’ve already discussed the “voluntary” agreement between ISPs and the RIAA/MPAA to create a “six strikes” (I still say the details show it’s five strikes, but the internet has overruled me) graduated response plan. In particular, we’ve noted that the plan appears to limit defenses of users in ways that strike us as questionable (i.e., you can’t even claim a work is in the public domain!). Now law professor Eric Goldman and the EFF’s Corynne McSherry have put together an analysis of the agreement which highlights how unfortunate it is that this agreement was made completely without anyone representing actual users. It was just big companies, working together to effectively screw over users. The writeup by Goldman and McSherry highlights numerous problems with the agreement when it comes to users (including the fairly bogus “education” component of this project). But where it really shines is in showing just a few examples of where such an agreement could have been much better if there had been someone (anyone!) representing the interest of the users:
* The burden should be on the content owners to establish infringement, not on the subscribers to disprove infringement. The Internet access providers will treat the content owners? notices of infringement as presumptively accurate–obligating subscribers to defend against the accusations, and in several places requiring subscribers to produce evidence ?credibly demonstrating? their innocence. This burden-shift violates our traditional procedural due process norms and is based on the presumed reliability of infringement-detection systems that subscribers haven’t vetted and to which they cannot object. (The content owners? systems will be reviewed by ?impartial technical experts,? but the experts? work will be confidential). Without subscribers being able to satisfy themselves that the notification systems are so reliable that they warrant a burden-shift, content owners should have to prove the merits of their complaints before internet access providers take any punitive action against subscribers.
* Subscribers should be able to assert the full range of defenses to copyright infringement. A subscriber who protests an infringement notice may assert only six pre-defined defenses, even though there are many other possible defenses available in a copyright litigation. And even the six enumerated defenses are incomplete. For example, the ?public domain? defense applies only if the work was created before 1923–even though works created after 1923 can enter the public domain in a variety of ways.
* Content owners should be accountable if they submit incorrect infringement notices. A subscriber who successfully challenges an infringement notice gets a refund of the $35 review fee, but the MOU doesn?t spell out any adverse consequences for the content owner that make the mistake ? or even making repeated mistakes. Content owners should be on the hook if they overclaim copyright infringement.
* Subscribers should have adequate time to prepare a defense. The MOU gives subscribers only 10 business days to challenge a notice or their challenge rights are waived (a subscriber might get an extra 10 business days “for substantial good cause”). This period isn?t enough time for most subscribers to research and write a proper defense. Subscribers should get adequate time to defend themselves.
* There should be adequate assurances that the reviewers are neutral. The MOU requires that reviewers must be lawyers and specifies that the CCI will train the reviews in ?prevailing legal principles? of copyright law ? an odd standard given the complexity of, and jurisdictional differences in, copyright law. We?re especially interested in the identity of these lawyers, and why they are willing to review cases for less than $35 each (assuming the CCI keeps some of the $35 review fee for itself). Perhaps there will be a ready supply of lawyer-reviewers who are truly independent. Given the low financial incentives, another possibility is that the reviewers will be lawyers tied?financially or ideologically?to the content owner community. To ensure that the reviewers remain truly neutral, reviewer resumes should be made public, and checks-and-balances should be built into the reviewer selection process to ensure that the deck isn?t stacked against subscribers from day 1.
The chances of any of that actually happening? Yeah, basically none.
It’s on this point that IP Czar Victoria Espinel should really be ashamed. After talking up how this agreement would help someone (not clear who?) “win the future,” shouldn’t she have been the least bit concerned about the most obvious stakeholder who wasn’t at the table? We see this way too often with government officials these days. They think the only stakeholders are the businesses, and leave out the citizens they’re supposed to represent. Copyright law is supposed to benefit the public, but the public wasn’t at the table negotiating this agreement. In fact, pretty much everyone admits that the government focused solely on bringing together these two parties and putting tremendous pressure on the ISPs to cave to the entertainment industry. Couldn’t they have used some of that “pressure” to make sure that the public’s interest was included? Isn’t that what government is supposed to do?