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?
Filed Under: copyright, entertainment industry, graduated response, isps, six strikes, users
Comments on “Shouldn't Users Have Been At The Table For The Six Strikes Negotiations?”
A lesson from the fictional future.
Governments exist to get in a mans way. On that score our government is doing a fine job; they are enabling the few and powerful and dismissing the individual.
Any minute now, wait for the official drumbeat: “the safety of everybody precludes the rights of any individual” and on that mantra the United States police state has begun.
Re: A lesson from the fictional future.
Since when does government actually do what it is supposed to do? Any position in government that has even a small amount of power is occupied by someone who scratched someone else’s back. Its all about trading favors for favors and compromising ones values in the process.
The “public interest” is determined by corporate citizens, not average citizens.
Re: Re: A lesson from the fictional future.
Well then, it would stand to reason that we should remove all incentive for corruption from government offices. This is a public service, not a tool for personal profit. Take the money and power for self-advancement out of the equation and you’ll very likely see people who want to serve the public good more than people who want to serve themselves take the job.
Re: Re: Re: A lesson from the fictional future.
i personally am in favour of death by stampeding heard animal as punishment for corruption.
that tends to not go over well in the modern world, however.
Re: A lesson from the fictional future.
All citizens are equal but some corporations are more equal than others.
Re: Re: A lesson from the fictional future.
All citizens are equal but rich corporations are more equal than others.”
FTFY
Re: Re: A lesson from the fictional future.
Four laws good, two laws bad.
Re: Re: A lesson from the fictional future.
All citizens are equal but some Citizens??? are more equal than others.
Re: Re: A lesson from the fictional future.
Sounds like a book I read once. Everyone kept trying to tell me it was about Russia when it was clearly about America…
Misses the point
The point of the entire six strikes process is not to stop piracy or stop “copyright infringement”. It’s to punish the world for having the audacity to share! By proclaiming guilt until proven otherwise, you’re paying up whether you like it or not. Even if it’s $35. Everybody is guilty until they can prove themselves innocent by shelling out hundreds of thousands of dollars for defense attorneys to prove otherwise. This is part of the new way of the internet. It’s the first stage. The second stage for the industry is to track each person, probably with tattooing a number on their forearms or tracking digitally with a personally identifying number that Obama wants to give everyone. I’m sure the third step is to place them in a centralized location so they can’t fight back.
They can pick any IP address they want and accuse you of anything they want, and you’re F*****! There is no defense. There is no safety net. You don’t get to fight it or defend yourself until the fifth strike, and by then it’s too late. Every politician, company owner, and representative who are on board with this might as well be wearing a black armband with a little symbol on it. Makes me freakin’ sick.
It’s the beginning of the end, peoples. We’re all cattle, and our masters are coming to slaughter us until we bleed whatever money we have. I’ll be investing my $35 in an anonymous VPN service, thank you very much.
Copyright law is supposed to benefit the public, but the public wasn’t at the table negotiating this agreement.
The public couldn’t afford the admission fee…
Re: Re:
If you have to ask how much it is, you can’t afford it.
I can’t wait for them to try to censor my speech. if they make a claim that MY WORK is infringing I will personally sue ALL parties involved and publicly embarrass them
Re: Re:
> I will personally sue ALL parties
Everyone constantly says this, but I have to wonder, what does it actually mean when you say you’re going to ‘personally sue’?
Does that mean you’re going to represent yourself pro se rather than hire a lawyer to sue for you? ‘Cause that’s about the quickest way to torpedo any lawsuit that I can think of.
Let USERS have a say?
Do you also advocate letting career criminals have a say in sentencing guidelines?
(Just so we’re clear, all internet users are criminals, right?)
Re: Let USERS have a say?
technically even career criminals will have payed some sort of taxes in their lives(ok not all of them) but if you pay taxes, then you should own a share in the governing process, but as it stands you(we the people) pay the saleries of the people who would steal more from us/punish us.
Re: Re: Let USERS have a say?
but if you pay taxes, then you should own a share in the governing process,
By that standard, 47% of the people today would not be allowed to vote because that is the percentage of people who effectively don’t pay taxes.
Ironically, 99% of that 47% are Democrats. Ok, this stat might be made up, but it is probably close. 😉
Re: Re: Re: Let USERS have a say?
“Ok, this stat might be made up, but it is probably close.”
Actually, both of those stats are made up, and neither are anywhere near close.
Re: Re: Re:2 Let USERS have a say?
Not according to the AP:
http://finance.yahoo.com/news/Nearly-half-of-US-households-apf-1105567323.html?x=0
Re: Let USERS have a say?
Considering the number of Illinois legislators who have wound up in jail, I would say we have already solved that problem
(sorry, I couldn’t resist.)
Re: Let USERS have a say?
In this case the criminals got to define the whole justice system
Re: Let USERS have a say?
> Do you also advocate letting career criminals
> have a say in sentencing guidelines?
They do have their say. Just as much as you or I do. We vote for the people who write the guidelines, or who appoint other people who do it.
Our vote is supposed to give us the belief that we have some say so that we can get back to giving our money to corporations.
Re: Let USERS have a say?
Good. Now that we have that clear, let us begin..
They think the only stakeholders are the businesses, and leave out the citizens they’re supposed to represent.
You make it sound like the IP Czar was someone that we elected into that position, rather than the position’s existence being purchased from the government by business and handed to her by President Accountability and the Transparency Brigade.
I don’t recall any point where we had the choice in whether or not we even needed – or wanted – an “IP Czar”, as though Ma Kettle downloading an mp3 of Josh Groban was an offense grand enough to warrant a government position being created on the same caliber as the “Drug Czar”, in order to wage some grand war on infingement where the accused was presumed guilty at the very outset and the burden of proof was on the defendant to demonstrate otherwise at cost to them with the only valid defenses being pre-defined by the accuser.
I don’t have much hope for its effectiveness or success, but once accusations and disconnections ramp up, I’d really like to see a class action lawsuit on this issue.
wait a minute
is this not collusion? A group of service providers all coming together to set common terms of service… in particular ones that violate users rights.
Re: wait a minute
Class action in 3…2…
Re: wait a minute
Especially charging 35 bucks to dispute these…charges? WTF are they calling it?
That is the part, aside from ISPs taking on the inevitable liability that will rise out of this, that I cannot get my head around. Pay us 35 bucks to even get heard…that is brain-breaking.
Re: Re: wait a minute
Horizontal Price-Fixing.
Can you say “Horizontal Price-Fixing”, kiddies? Good. I knew you could.
Representing the public?
What country are you from? This is the United States. The government represents corporations, not the public.
Make the content providers pay the $35
I think it should be the content providers that should pay $35/accusation. It funds the defense and curtails making accusations willy-nilly.
Re: Make the content providers pay the $35
The whole idea of the $35 fee is to make you pay for the content you allegedly infringed, guilty or not. If you’re innocent, they get $35. If you’re guilty, they get $35. I can see this causing a lot of customers filing lawsuits against their ISPs. It’s going to get ugly.
Taxation without representation?
It didn’t work well the last time. We’ve about reached a decision gate for this time.
Re: Taxation without representation?
That whole taxation without representation line is a bit obscured. England was siphoning money out of the colonies by way of heavy taxes because of its debts to the Bank of England for the war with France. That’s not all though. The colonists had developed a new interest-free money system, which they found made them quite prosperous in spite of England’s turmoil. That pissed off the Banks, so they lobbied the King to outlaw it and drain the colonies of all their legal currency. This led to mass unemployment and poverty, which sparked the protests leading to the revolution.
This is more like extortion. If you don’t say anything, you’re guilty. If you want to challenge it, it’s $35. If you fail, they keep the $35. If you win, they keep the $35.
The future is won.
The past didn’t even stand a chance.
Just a bit more proof that the US is drifting into total oligarchy. Why weren’t users included? The golden rule applied — entertainment didn’t want them and they were spreading money everywhere.
And the difference is?
” It was just big companies, working together to effectively screw over users.”
And the differs from MOST other user/big company transactions how?
"Isn't that what government is supposed to do?"
I get to hammer yet again that you simply don’t grasp the nature of gov’t, therefore your all your conclusions, and even questions, end up blatantly worong.
The US was the first country in history to explicitly tell The Rich who “own” the gov’t where to get off and establish gov’t as the Servant of the people. But it’s a COMPLETE anomaly in history, NOT the norm as you sheltered children believe.
The current US citizens have forgotten the basics, because they’ve all enjoyed the blessings of liberty and didn’t keep The Rich (= the gov’t plus corporations) under tight control. Those with any foresight — Ayn Rand, say — predicted the current fascism at least 60 years ago.
So now Mike appears bewildered and complaining that ordinary people have no voice even in being able to use ISPs! I’m sure that Mike is against regulating corporations (look it up yourself, though: I’m not your search engine) as a plank in his “libertarianism” and that he has no objections to even monopoly, so he’s basically just tricking readers here with a hot button story when his philosophy is to allow corporations “freedom” to conspire like this.
Re: "Isn't that what government is supposed to do?"
I wanna make a quote a day calendar from this guys posts, they bring a smile to my face everyday
Re: "Isn't that what government is supposed to do?"
But it’s a COMPLETE anomaly in history, NOT the norm as you sheltered children believe.
You are exactly right and the presentation they give at the US Constitution Center in Philly says the same thing. The problem isn’t that we are sheltered, it is the rest of the world that is sheltered. We have seen the light and it is good.
But now the people have not kept the government in check. In many cases we seem to ask the government to take back our rights. I don’t have an explanation for why that is, but I don’t like it and I doubt many people here do either.
Re: "Isn't that what government is supposed to do?"
From whence came this myth that ‘libertarianism’ means corporate run anarchy? Libertarianism is about individual liberty, not corporate liberty. Maybe that’s why you put it in quotes?
Random thought
Once the ISPs implement this scheme, and people start getting kicked off the Internet, I am thinking that there may be a possibility of a class action antitrust lawsuit against the RIAA/MPAA for using their granted monopolies in a manner that imposes undue influence over contracts between the ISPs and their subscribers.
The merge of the Govt. with special interests and big business is mind blowing.
The users are always at the table. They are the ones who vote the governments in, you know?
Re: Re:
Oh, when did you vote for the IP Czar? When did you vote for this decision that most definitely violates all kinds of laws and human rights? When did you vote for the government to be able to say “Yeah, fuck the constitution”?
Re: Re: Re:
You vote for the IP Czar in the same manner that you vote for the leader of the FBI, CIA, and any other number of government agencies: You elect someone that will do things the way you want done, and hire the people that you want.
No, you don’t get to vote on the IP Czar, but you picked his boss.
Actually, I voted for the government to apply the constitution, all of it, and not the parts that just make pirates happy.
Re: Re: Re: Re:
What checkbox was that?
You would think that anti-trust laws would put a stop to this sort of thing, but instead the government facilitates this sort of conspiring behavior while misusing anti-trust laws against Google for doing nothing wrong.
When can I expect my broadband bill to go up?
As a result of this new system, many people will need to be hired, departments created and computer applications built. This will ultimately lead to an increase in prices. Once I see that, I will become the worlds greatest pirate. Since I assume this covers infringement of all kinds, as in music, movies and ebooks, I can pirate anything at will.
You think I am kidding but I am not. I do not pirate anything, not books, movies, music, software, etc. But if I start having to pay as if I am, well guess what, I will! If nothing else, I will resort to the good old fashioned sneaker net and stay off the internet pirate sites.
Days of yore
We used to be a people who had a government…
Re: Days of yore
We have exactly the government we continue to vote for. If you want to lay blame lay it at your fellow citizen.
Re: Re: Days of yore
This wasn’t a government action (outwardly, anyway). This is an agreement between two industries.
We don’t get a vote here, sparky.
Re: Re: Re: Days of yore
This is an agreement among and between two industries to fix the price of a particular service at $35.
Horizontal Price Fixing is a per se violation of ? 1 of the Sherman Act of 1890.
Re: Re: Re:2 Days of yore
I stand clarified. Much obliged. 🙂
Pretty messed up
So let me get this straight. The content owners sat down with ISPs to decide how someone the content owners accuses of infringment can defend themselves? That in and of itself has to be illegal somehow.
Can you imagine that happening in other criminal cases? A guy that gets beaten up in an alley gets to decide how the people who assaulted him get to defend themselves. No you can’t use eyewitness accounts, video/audio recordings, or alabies to defend yourself. And then upon conviction the victim gets a say in their punishment.
And also there’s the fact that even if you succesfully defend yourself the content owners face no punishment whatsoever, while all the accused gets is their $35 back.
I get the feeling the ISPs will be mauled over this. The content owners need to realize that they can’t ISPs to monitor the entire internet for then. This isn’t a record store where you can watch everyone in the immediate area and keep an eye out for funny business. We’re talking millions of people all over the country.
Re: Pretty messed up
The ISPs got together and agreed on how much to charge their customers for service.
15 USC ? 1. Trusts, etc., in restraint of trade illegal; penalty
All the ISPs got together and agreed that the price for contesting a claim was $35 a whack.
Pretty messed up
So let me get this straight. The content owners sat down with ISPs to decide how someone the content owners accuses of infringment can defend themselves? That in and of itself has to be illegal somehow.
Can you imagine that happening in other criminal cases? A guy that gets beaten up in an alley gets to decide how the people who assaulted him get to defend themselves. No you can’t use eyewitness accounts, video/audio recordings, or alabies to defend yourself. And then upon conviction the victim gets a say in their punishment.
And also there’s the fact that even if you succesfully defend yourself the content owners face no punishment whatsoever, while all the accused gets is their $35 back.
I get the feeling the ISPs will be mauled over this. The content owners need to realize that they can’t ISPs to monitor the entire internet for then. This isn’t a record store where you can watch everyone in the immediate area and keep an eye out for funny business. We’re talking millions of people all over the country.
Prediction
Here is exactly what will happen:
– ISP’s will get notices.
– Users will complain and tie up their support lines claiming ignorance (rightfully and wrongfully).
– The strikes will become a costly burden to the ISPs that threaten their business model.
It will only take a few attorneys getting hit by this to challenge the accusations in a court before the ISPs back down.
Finally: We go back to normalcy.
Re: Prediction
Finally: We go back to normalcy.
Incorrect.
Finally: ISP’s jack up rates to cover the costs.
More likely.
Re: Prediction
Here is exactly what will happen:
– ISP’s will get notices.
– Users will complain and tie up their support lines claiming ignorance (rightfully and wrongfully).
– The strikes will become a costly burden to the ISPs that threaten their business model.
It will only take a few attorneys getting hit by this to challenge the accusations in a court before the ISPs back down.
Finally: We go back to normalcy.
You forgot the final step:
Then I’ll wake up and have breakfast
Since when do pirates get to negotiate their “rights” to pirate?
Oh yeah, there ARE no “rights to piracy”!
Re: Re:
Sure. It’s all in the name of justice til it happens to you, right?
Re: Re:
Oh yeah, there ARE no “rights to privacy”!
FTFY.
Re: Re:
Since when do [insert crime here] get to negotiate their rights to [commit that crime]?
How about the liquor lobby. Remember prohibition? Ever hear of Seagram’s?
Re: Re:
“Since when do pirates get to negotiate their “rights” to pirate?”
Keep up. We’re talking about the innocent users who might get their home businesses killed because they shared a copy of Night Of The Living Dead in perfect compliance with the law, not pirates.
Who they see as the criminals
The reason for this is because the businesses see all, and I do mean ALL, citizens as the pirates/criminals. When you are trying to eradicate this group of people, why would you invite them to the table for talks.
What I see happening
What I see happening is that the ISPs will recieve notices, they will then issue strikes, people won’t realize they’ve received said strikes, or won’t think that its really all that big of a dael, so won’t do anything about it. Millions of people will amass the five/six strikes and get booted off the internet. Online retailers will lose millions of customers do to inability to connect, causing billions of dollars in lost revenue. These online retailers will then file suits against the ISPs for said losses.
Meanwhile, because of all the people booted off the internet, the ISPs will lose millions in revenue that a mere $35 won’t recoup, and will then turn around and file suit against the RIAA/MPAA for talking them into such a ridiculous scheme in the first place.
Online retailers will boost their prices to cover their losses and legal bills, ISPs will boost their prices to cover their losses and legal bills.
The citizens/consumers lose in the end. No matter what happens at this point, its a lose lose situation for us.
Re: What I see happening
How’s this for a future?
Someday the Republicans capture the Presidency and get to appoint the Attorney-General. At which point everyone remembers:
Of course, that Republican Attorney-General would just be pursuing partisan advantage. But so what?
The government
is totally under control of the entertainment people; they paid enough money to get appointed to the high positions in the DOJ and now they are just doing what they want.
Isn’t it obvious? There’s a new law mantra in US: “Guilty before found innocent”.
easy answer
Law are simply not intended to protect the general public. They are designed to protect power and to generate revenue. Period.
I might be missing something, but WHY did the ISP’s agree to this? They agreed to banish paying customers for what benefit of their own exactly?
Re: Re:
Does it matter why the ISPs agreed to fix the price at $35 ?
An Antitrust Primer for Federal Law Enforcement
Some more on the ISP agreement to fix prices at $35.
?An Antitrust Primer for Federal Law Enforcement Personnel?, Antitrust Division, U.S. Department of Justice (Revised: April 2005):
(Emphasis and italics in original.)
You think Attorney-General Holder is interest in upholding the law of the United States?
Fixing a price at $35.
Misguided greed is promoting this attempt to pass this off as the rule of the land, usurping hundreds of years of constitutional laws that were enacted soley to protect civil liberties from personal, public and private groups as well as governments who would dare to tread upon due process and presumption of innocence. This is akin to the DMV violating 1st amendment rights to extort citizens for the priveledge of possessing a driver license. Inalienable Rights don’t mean a thing if ‘We the People’ allow this anarchy to prevail as the cascading mindset, attempting to replace our Constitutional Laws with “No, they can’t do that.”
Strike One for Obama's second term
That’s strike one for Obama in his second inning. Can we impeach him after six strikes? First the removal of gun rights, now the removal of privacy AND due process in one fell swoop. Good thing he cut government spending so that he can reduce the deficit… oh right, he didn’t. Socialism is coming and it’s coming faster than we imagined!