Is The Six Strikes Plan Being Delayed Because ISPs Are Pushing Back Against Hollywood Demands?

from the seems-possible dept

As you probably know, last year, the big ISPs agreed to a six strikes plan (really five strikes), after the White House pressured the ISPs to cave to Hollywood’s interests. What many of us noticed, of course, is that this backroom deal left the public out of the equation, which was obvious from the fact that it actually takes away some of the public’s rights — for example, by curtailing the definition of the public domain.

Earlier this year, the RIAA said that the program would finally kick off in July. There were some rumors of delays, and then a bunch of sites (including us) got confused about the actual start date. There have been multiple reports now saying that it will actually roll out later in the fall.

Of course, this has a lot of people wondering just what the delay is about. There might be a clue in a piece over at The Daily Dot, where they say that the director of the Center for Copyright Information (CCI), Jill Lesser, has hinted strongly that the ISPs disagree with some RIAA/MPAA demands:

Jill Lesser, Executive Director of the Center for Copyright Information, told the Daily Dot that the repeated delays were because the coalition wanted an independent review from the American Arbitration Association.

She hinted that disagreement between the ISPs or the lobbying groups might have held up the process. Responding to a question about the delay, she wrote “members are all very involved in internal planning and review of the alert system, which has been and will continue to be a collaborative process.”

Of course, there’s one big thing that happened between when the agreement was made and now: the huge public reaction to SOPA. After that, the EFF rightly called for scrapping the backroom deal and starting a new negotiation that actually involved the public. That recommendation was ignored by Hollywood, of course, but the news of some internal fighting hopefully means that the ISPs are asserting themselves a bit more strongly against excessive RIAA/MPAA demands. Of course, once again, this is why it would be nicer if this debate were in public, rather than hidden behind closed doors.

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Companies: cci, eff, mpaa, riaa

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Comments on “Is The Six Strikes Plan Being Delayed Because ISPs Are Pushing Back Against Hollywood Demands?”

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Anonymous Coward says:

Re: When it goes in to effect I will start a business.

That is the primary point against increased enforcement: It is easy to make a system with no privacy, but it is a lot easier to circumvent that system on the internet!
For politicians with no understanding about the works of the internet, they will focus on part 1 and when the effect of part 1 is 10% of what they expected, they are perplexed and want 9 new pieces of strenghtened survailance to make up for the “promises” to a particular “the industry”.

Anonymous Coward says:

Horizontal price fixing

Maybe the ISPs are betting on whether Attorney-General Holder will still be in office?

An agreement among ?competitive? ISPs to fix prices for consumers at $35 might not fare so well under a new admininistration.



Per Se Violations. Price fixing, bid rigging, and market allocation are generally prosecuted criminally because they have been found to be unambiguously harmful, that is, per se illegal. Such agreements have been shown to defraud consumers and unquestionably raise prices or restrict output without creating any plausible offsetting benefit to consumers, unlike other business conduct that may be the subject of civil lawsuits by the federal government.

Limited Defenses. Because of their pernicious effect on competition and lack of any redeeming economic value, per se agreements, like price fixing, bid rigging, and market allocation, are conclusively presumed to be unreasonable and therefore illegal, without elaborate inquiry as to the precise harm they have caused or the business excuse for their use. If a per se violation is shown, defendants cannot offer any evidence to demonstrate the reasonableness or the alleged necessity of the challenged conduct. Thus, companies may not justify price fixing by arguing that such price fixing was necessary to avoid cutthroat competition, or that it actually stimulated competition, or that it resulted only in reasonable prices. The essence of price fixing, bid rigging, and market allocation is simply this: the consumer believes he or she is making a purchase in a competitive market when, in reality, conspirators secretly agreed not to compete.

Elements of a Section 1 Offense. Criminal prosecution under Section 1 of the Sherman Act requires only the existence of concerted action in restraint of trade ? specifically, an agreement among competitors to fix prices, rig bids, or allocate markets. The agreement must be between two or more independent business entities or individuals. No overt acts need be proved, nor is an express agreement necessary. The offense can be established either by direct evidence from a participant or by circumstantial evidence (such as bids that establish a pattern of business being rotated among competitors). The conspiratorial agreement must occur in, or affect, interstate or foreign commerce.

Thirty-five dollars. Fixed price.

Anonymous Coward says:

Re: Re: Horizontal price fixing

Why are they getting away with charging someone to defend themselves against accusations in the first place?

Because the Obama admininstration’s Intellectual Property Enforcement Coordinator, Ms. Victoria Espinel, thinks that coordinating “competitive” ISPs on a $35 price is just right?


( Go look up the history on the Socony-Vacuum Oil Co. )

Hephaestus (profile) says:

Re: Horizontal price fixing

“Maybe the ISPs are betting on whether Attorney-General Holder will still be in office?”

I was thinking something similar. If they wait until after the election, the president may not be in office. At which point all pressure to follow through with this agreement goes away.

With the treat of a SOPA like public revolt against 6 strikes come other issues. The possibility that people will start calling for an end to the local telecom monopolies becomes extremely high. Most of the social media revolts thus far have had two thing in common, pushing back against wrong doing, and pushing against entrenched monopolies.

Anonymous Coward says:

Re: Re: Horizontal price fixing

…the president may not be in office…

Although, that’s one of the interesting facets of the ?Madison Oil? case, United States v. Socony-Vaccum: Mr Roosevelt was president both when his administration ?prompted the cartel?, and also when his administration prosecuted the cartel executives.

In ?The Story of United States v. Socony-Vacuum: Hot Oil and Antitrust in the Two New Deals?, Daniel A. Crane explains:


The 27 oil companies and 56 of their employees were shocked to be criminally indicted in Madison, Wisconsin for violating Section 1 of the Sherman Act. After all, the misconduct alleged was participating in a petroleum stabilization program that had originated in the highest echelons of the very federal government that was now bringing the indictment.?.?.?.

Socony?s story begins in the depth of the Depression in a depressed oil industry plagued by overproduction and volatility. Seeking to rationalize and manage the industry, the Roosevelt administration set out on an ambitious regulatory program that involved a combination of central planning by government administrators and a guild-like association of industry executives. After the Supreme Court invalidated key portions of Roosevelt?s National Industrial Recovery Act, the oil association voluntarily continued the stabilization program initiated by the government. Next thing they knew, the members of the association were criminally indicted for price fixing in violation of the Sherman Act. The very government that prompted the cartel was now calling it a criminal conspiracy. When the jury returned a verdict against the defendant oil companies and executives, the defendants were stunned. An editorial in the New York Times summed up popular sentiment: ?For proceeding to stabilize price conditions in the demoralized crude-petroleum fields under the powerful pressure of one branch of the Roosevelt Administration, thirty oil-company managers now stand as convicted criminals, a result of a prosecution by another branch.?

In the Obama administration, the interpersonal dynamics are certainly different than they were in the Roosevelt administration: The people are not same.

I personally have a hard time believing that Ms. Espinel would push an agreement to fix a $35 price without Attorney-General Holder’s okay.

Is Mr Holder planning to stay on into a potential second Obama administration?

Daniel Brenton (profile) says:

Six (Five) Strikes

Mike, and all —

I’m currently tied to Verizon as my wireless internet provider (I don’t have a land line) and I’ve had several occasions recently to speak to a customer service representative or supervisor. Whenever I think about it, I’ll ask what they know about the implementation of the Six Strikes policy, and not a single one of them has heard a thing.

Late in June, I did have a supervisor tell me that it was not unusual for the company to spring policy changes on the customer service department with little warning.

I spoke to someone on July 10, and that rep hadn’t heard anything either.

So, if nothing else, the front line at one of the committed participants of the CCI’s Six Strikes effort is in the dark as much as any of us.

— Daniel

abc gum says:

Heh - didn't think it through did ya???

Let the false accusations commence …

What is a falsely accused individual to do when there is no due process?

This will have an affect upon the percentage of customers who choose to pay their bills online, and it will affect the bottom line of those corporations who are exposed.

That Anonymous Coward (profile) says:

Re: Heh - didn't think it through did ya???

CCI is also most likely still pushing to have customers they claim downloaded infringing material get their connections throttled.
I’m pretty sure there will be massive lawsuits if CCI gets what they really want. Then they will have to give up on arbitration and deal with a real court who will have to be informed which failed IP address gathering firm they are using.
Demanding consumers have to pay $35 to challenge an outside companies claims that are resulting in degraded service and limiting the “allowed” answers might be stacking the deck.

Anonymous Coward says:

Actually, I can’t help but think that there is a lot of pressure right now to define methods of obtaining content as a “strike”. That would be things like file lockers, which are currently “on the run” from pressures both on the legal and financial side.

There have been a number of huge shifts here, including Paypal dumping many of them under pressure from the Adult industry, as well as arrests of site operators including one in Italy this week (a unique story, because he was arrested for Fiscal fraud as well as copyright violations).

Since the start of the discussion of the strikes system in the US, there has been dramatic shifts on the ground. I am sure that the **AAs don’t want to get caught with a policy that isn’t flexible enough to cover alternate means of obtaining and distributing pirated content.

Anonymous Coward says:

Re: Re:

Invasive? I think if it’s a violation of the TOS, they’re within their rights. Deep packet inspection is almost universal and quite capable of zeroing in on suspect content.

Also, one of the biggest dogs is Comcast, owners of NBC/U- I wouldn’t expect help from them. Plus, all of the ISP’s are or want to play in the content delivery space. They have personal financial interest in tamping down infringement.

That Anonymous Coward (profile) says:

Re: Re: Re:

DPI is NOT being used in this plan, the accusations are gathered by an outside firm and robo submitted to the ISPs who are then supposed to take a series of actions. They refuse to name the outside firm, there was talk of it being one of the firms who have a checkered past in other courts around the world.

That Anonymous Coward (profile) says:

Re: Re: Re:2 Re:

If the ISPs are going to allow DtecNet to install DPI they will be sued out of business. To allow a 3rd party private company that much access to peoples communication still is a violating of the last 3 rights we have in the US.

For the 100th time….
The ISPs are NOT looking at what your downloading, any more than normal.
The accusations come from an unnamed 3rd party, thought to be DtecNet.
It is the same methodology used in the copyright trolling lawsuits sweeping the country. They join the swarm, record IP addresses, and then take action.

In this private enforcement agreement the IP addresses are divided by participating ISPs who then in turn just automatically pass on the “warning” to the person paying the bill. There are a tiny number of allow answers to the accusation, and if you feel it was generated in error you have to pay $35 to challenge, in arbitration where they never ever ever just side with the corporation who hired them over facts.

This lets them enjoy the same sort of terrorism the copyright trolls have without having to file a Federal Lawsuit to get the names to send the messages to. The ISPs keep records for CCI to see who has gotten to many notices, and they hold onto those for a while.
This is designed to be an automated system where they just submit a couple thousand IP addresses and notices are generated.
Depending on how many notices you have gotten they may or may not be taking actions like throttling your connection or blocking you connecting to the internet until you tick a box on a website.

Part if the ISP pushback seems to be tied to the fact that DtecNet aka MarkMonitor have a history of not even understanding how Bittorrent works and making ludicrous claims in studies. Maybe the ISPs want to make sure they are providing accurate accusations before pissing off their customer base.

What happens to those who ignore all warnings?

This is an interesting question. Public information provides no answer but the CCI told TorrentFreak the following:

?The program is intended to educate consumers, taking them through a system that we believe will be successful for most consumers. If a subscriber were to receive 6 alerts, that user would be considered a subscriber the program is unable to reach.?

?If ISPs receive additional allegations of copyright infringement for that user, those notices will not generate alerts under the program,? a CCI spokesperson told us.

In other words, nothing will happen under the program. People who receive more than 6 warnings are removed from the system. They wont receive any further warnings or punishments and are allowed to continue using their Internet service as usual.

Who will be monitoring these copyright infringements?

While ISPs take part in the scheme, they are not the ones who will monitor subscribers? behaviors. The tracking will be done by a third party company such as DtecNet or PeerMedia. These companies collect IP-addresses from BitTorrent swarms and send their findings directly to the Internet providers.

Oh and if someone sues the RIAA, MPAA, or any of the ISPs there is an escape clause in the memo of understanding letting them bail on this BS. The board of this CCI is stocked with cartel members and ISPs bigwigs… it should be fun to see this entire waste of time go down the drain.

NO DPI, Yes they will record IP’s in Bittorrent swarms and send out alerts based on that flawed technology alone.

Seems like there is a whole bunch to sue them for once they start. This is an attempt to void the legal process and scare and punish based on the “eyewitness” reports of someone with cataracts. This is smoke and mirrors to show everyone how important this issue supposedly is.
I wonder if they’d taken the millions they dumped into this clusterfuck and developed a platform to sell things from that actually worked, if they could understand that the root of “piracy” is them spending so much time obsessed over someone not paying them for something that they have pissed off the consumers who would pay them if it wasn’t completely limited and screwing over the people who pay them more than the evil “pirates”.

Anonymous Coward says:

Re: Re: Re:3 Re:

DPI is being used today. Why on earth wouldn’t it be used under the six strikes program?

Regarding the no further action after the sixth strike, does this mean you connection gets stuck at dial-up speed? Not really much need fopr further action when it takes a month to download an HD movies I suppose.

That Anonymous Coward (profile) says:

Re: Re: Re:4 Re:

101 times…
EVEN CCI says they are NOT USING DPI.

Because if the ISPs who use DPI were to begin monitoring consumers accounts to police copyrights the lawsuit would be huge and might topple them.

This “education” program costs them next to nothing, and avoids them having to file lawsuits to try and stop “piracy”. They at least remember that suing your customers is a really stupid thing to do.

If an ISP were to degrade service permanently on the basis of a nonvetted investigative technique that can and has been to be flawed, they would be hard pressed to deal with the lawsuits. A corporation taking punitive action based on accusation alone would be looked upon very poorly, and when they need the states to allow them to have right of ways and easements to stay in business getting the AG’s of those states interested in looking at what the hell they are doing is a very stupid thing.

ISPs enjoy coexisting with the content cartel, they are benefiting each other. They do not relish the idea of getting hung out to dry by the cartels when the shit hits the fan.

Anonymous Coward says:

As I said some ISP said most of its traffic was infringing to the gentleman debating with Mike a while back. If that’s the case what are they going to do harass most of their users?

I do wonder anyone know what the ISP’s are getting out of this? If its not something great I’m not sure why they are agreeing.

Anonymous Coward says:

Re: Re: Re:2 Re:

You just made a true statement for, I bet, the first time in your life.

When the marginal cost of distributing something approaches zero making money depends on providing more value; quality, convenience, access, etc.

Being a monopolistic fuck who doesn’t understand economics justifies illegally downloading and streaming. Got it!

Anonymous Coward says:

Re: Re:

I do wonder anyone know what the ISP’s are getting out of this? If its not something great I’m not sure why they are agreeing.

Maybe after the election, they get an indictment from the grand jury?

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony, and, on conviction thereof, shall be punished by fine not exceeding $100,000,000 if a corporation, or, if any other person, $1,000,000, or by imprisonment not exceeding 10 years, or by both said punishments, in the discretion of the court.

Thirty-five motherfucking dollars.

Daniel Brenton (profile) says:

What are the ISPs getting out of this?

I do wonder anyone know what the ISP’s are getting out of this? If its not something great I’m not sure why they are agreeing.

I’m wondering this myself. It’s understandable with Comcast as mentioned above, but I wonder if there’s some kind of leverage that isn’t obvious for the others — some kind of implied threat of significant regulatory consequences for not “playing along,” or some such. The MPAA and RIAA influence a lot of folks in D.C., and obviously there’s no need to editorialize about that little problem here.

That Anonymous Coward (profile) says:

Re: What are the ISPs getting out of this?

Many of the ISPs that are signed up sell content from the cartels on their offerings.
Getting a favorable price for content that is in demand…
They get the big players, many of whom have their own content production wings in the large corporation, to do this then lean on the little ones to give in as well.

They are just sure this is going to work out just right, but then it seems the people at the ISPs have said hey wait a minute this sounds good on paper, now prove it is airtight. In the few areas where there is competition, being the ISP who isn’t involved with CCI is a selling point.

Anonymous Coward says:

In 50 years, it will all be laughable.

The past wants to fight the future again. Gee, I wonder who will win in the end? It’s not like history could tell us.

Oh, dear…

(Sorry, I would have commented sooner, but on the way here I hit a rock and got a broken stone wheel on my Flinstonemobile. Have you tried to get a new stone wheel lately? It’s damned hard to do!)

Anonymous Coward says:

dont the ISPs hold the trump cards? surely they must be able to decide who can and cannot use their networks. the best thing would be to not have any entertainment industries files available on the net. let them sell through high street shops only. they can keep control of their stuff then and not have any internet piracy to worry them

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