Copyright Is Becoming Guilt By Accusation

from the guilty-until-proven-otherwise dept

TorrentFreak has a good post about how copyright holders have been effective in moving copyright into a modern form of “witch trials” in which you are guilty based on accusations, and then have to go through a long, arduous and often biased-against-you process of proving your innocence. The article points out two examples of this. First, the Kafka-esque process that Jonathan McIntosh went through to keep his mashup video (one cited by the Library of Congress as a quintessential example of fair use) from being taken off YouTube. Of course, it actually was off for quite some time, because YouTube’s ContentID system is also based on a “guilt by accusation” system — after which you have to convince everyone (including, initially, your accuser) that you’re really innocent.

The second is the new “six strikes” plans from US broadband players. One of our main complaints with all of the “strikes” plans is that they all are based on accusations, rather than any conviction. While there’s an “appeals” process, it’s quite limited and the rules have it so that the deck is completely stacked against those who appeal.

What both of these examples have in common, obviously, is that they’re so-called “voluntary” solutions, put in place by companies, often due to arm twisting by the entertainment industry, combined with threats of government regulation if such “voluntary” actions don’t happen. While it may seem that voluntary agreements are to be encouraged, when they create a situation like this, in which users are being declared guilty merely upon accusation, with little real recourse in many cases, something seems wrong. We run a very real risk of discouraging important services and innovations when we start taking away core concepts like “innocent until proven guilty” — even if it’s just in civil issues between private companies. It’s a trend that’s quite worrisome and can lead to many innocent people getting punished.

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Comments on “Copyright Is Becoming Guilt By Accusation”

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399 Comments
DannyB (profile) says:

Re: Suddenly, an idea...

Copyright which hunts indeed.

Burn the Internet! It’s all full of evil piracy!

Burn blank paper! Burn blank media and mp3 playing devices because it will release the vile smelling fumes of semiconductors and polycarbonate plastics trapped within the devil’s piracy devices!

Let the magistrate declare that the accused pirate be tried by the trial of statutory copyright infringement judgement! If you are truly guilty, then you will have made recompense by paying $150,000 per infringement. If you are bankrupted, cannot pay and your life destroyed, then you are truly innocent and will receive a verbal apology.

DannyB (profile) says:

Re: Re:

Speaking of so called crimes that are widespread, I think that masturbation may still be on the books in quite a few states and nations.

Using the usual trolls’ argument, we must have invasive measures in place because the crime is so widespread.

The crime is usually conducted in private.

The crime is victimless the same was as DVR’ing a TV show or ripping a DVD to be watched at a time, place or on a device not approved by the supreme moral authorities that know what is best for us.

Anonymous Coward says:

Re: Re: Re: Re:

True, it’s not really theft, but the point remains:

There is a problem with copyright violations on the internet. That’s still a business’ choice to exercise (selling on the internet), not their right to take away an average person’s constitutional rights.

Don’t get me wrong, violators are people who are guilty. I’d even argue most violators don’t realize they are breaking the law. Still, the punishment should fit the crime and you shouldn’t be a violator until a legal (not commercial or personal) system finds you guilty!

Anonymous Coward says:

Re: Re: Re:3 Re:

Sheesh people are being technical today (yay!).

I still think you have to admit that the internet allows people a means to violate copyright and that some people take advantage of it. Same was true for VHS and CD/DVDs back in the day. Anything that can transfer and move data is essentially a means to violate copyright. If people do it, legally that’s a problem. Typically we focus on the economic viewpoints here, so you’re right, if it’s a small percentage that doesn’t really effect the economics, it’s not really a “problem” but rather a “perceived problem”.

I’ve just been trying to give AJ the benefit of the doubt in pointing out that the real problem: human rights violations.

Anonymous Coward says:

Re: Re: Re: Re:

But cultural theft does. Like taking from the Public Domain and then locking it up for nearly three=quarters of a century. Or by scamming those who actually create a work by declaring that online sales are actually licenses, except when contracts say licenses are worth more to the artist.

Or when people deliberately abuse the laws they wrote in order to extort people.

Andrew Norton (profile) says:

Re: Re: Re: Re:

Actually, it does. It’s just not what it usually is.

When companies like UMG or Warner claim copyrights that don’t belong to them, and use it to deprive the rightful owners of it, that is copyright THEFT.

Lots of examples, see Edwyn Collins and his myspace troubles a few years ago (and I use that one because his name is easy to google). In fact, the torrentfreak article has two examples of copyright theft at the start as well (as I well know, as one of them is my own experiences)

Anonymous Coward says:

Re: Re: Re:

Since when has business profits every come before people’s rights? Innocent until proven guilty until it dips into business profits!

Innocent until proven guilty is a duty owed by the government to a citizen in a criminal matter. There’s no such duty of a corporation to a customer.

shane (profile) says:

Re: Re:

I do not pirate. I hardly watch any tv or movies anymore. I do so because I disagree with your stance but still do not pirate.

Pirates are not the issue. Abuse of the legal system in order to maximize profits through creation of artificial scarcities is the issue.

You provide services that are not obviously grossly overpriced, and I would be all over them. I love music and movies, like everyone else. I just refuse to be extorted by lying traitors to the cause of decency, fairness, justice and even self government.

I still remember Aaron. I don’t think this pro-copyright nonsense is cute. I am frankly sick of it.

Mr. Applegate says:

Re: Re:

“Copyright theft is so wide spread that business have no choice. Pirates have brought this on them selves.”

I first must point out that there is no such thing as copyright theft. There is however, copyright infringement.

That point not withstanding, as I understand what you are saying I would also point out that the decision of guilt, and the punishment is a function of the courts NOT the corporations. Seems I read that somewhere, where could that be found?

Oh yeah, now I remember, the U.S. Constitution!

So the rule of law is no longer a function of the courts, is that what you are saying. If so, then there will be no problem with me applying my own brand of justice when I feel I am wronged without any real proof. Is that correct?

So if someone cuts me off on the freeway I will be justified in wrecking their car?

Oh, we are talking about theft, so if someone steals a penny off the floor in my office I will be fully justified in cutting off their hand. No need to actually prove that it was my penny, no need to have a court decide the innocence or guilt of the person, or the correct punishment, I will just cut off their hand. Hey if they bleed to death that isn’t my problem, they broke the law, they brought it on themselves.

Right?

I can’t quite put my finger on it, but there seems to be a flaw in your thought process.

PaulT (profile) says:

Given that I recently watched a documentary on McCarthy witch hunt victim Dalton Trumbo – that I had to bypass “protections” to view in the first place (regional in this case, for a service I paid for) – this seems amusingly timely.

For those who don’t know, Trumbo was one of the “Hollywood Ten” who were blacklisted when they refused to answer questions about their alleged involvement with the Communist party during McCarthyist witch hunts. Many of them were questioned because of accusations and innuendo rather than any actual evidence of wrongdoing.

bob (profile) says:

Every other crime is treated the same way

Uh, that’s how the justice system works. You get accused of something and then you have to defend yourself. Is there a MurderDirt.com site full of apologists for murders dreaming up looney sophistries claiming that murder trials are oh-so-unfair to the murderer because it forces them to put aside their murdering ways and hire a lawyer and spend all of that time defending themselves?

Sorry, but lots of talking and arguing are the price of having a justice system.

And in all of the most horrible cases, the copyright holders have usually been willing to settle for pennies on the dollar and move on. Yet this site’s heros are the people who willingly spend years and years on litigation only to discover that– surprise surprise– making a copy of someone’s work is wrong. Big deal.

The fact is that the evidence in these copyright crimes is much, much better than what we use to put away murderers, rapists and other thieves. If you get caught with stolen goods, there’s a good chance you’re going to jail even if no one saw you steal them and you really did buy them from some legit store. Guilt by association is just an unfortunate feature of having a justice system. Get used to it.

PaulT (profile) says:

Re: Every other crime is treated the same way

Ah, I was wondering when the first disingenuous soul would be here, and he trips straight away despite the objection he makes being explained away in the article itself!

“You get accused of something and then you have to defend yourself.”

Yes, and you are presumed innocent until proven guilty, and then punishment is not meted out until the guilty verdict is passed by a judge or jury.

If these were also true of the strikes rules and whatever else you support, others here would support them. Guess what…

I won’t bother addressing any of your other “points” since you go straight down Drooling Moron Lane with your murder analogy immediately afterwards.

PaulT (profile) says:

Re: Re: Re: Every other crime is treated the same way

“Ummm, they don’t send out random notices. They’re based on what is happening with your account.”

Correction: they send out notices based on an observation from a 3rd party on what’s happening with an IP address that’s was supposedly assigned to the account at one time. ISPs have misidentified account holders in the past, IP addresses can easily be spoofed and traffic can easily be passed through an account without the account holder’s knowledge. Ignoring any of these facts is to ignore very serious problems with the entire process.

Rikuo (profile) says:

Re: Every other crime is treated the same way

“The fact is that the evidence in these copyright crimes is much, much better than what we use to put away murderers, rapists and other thieves”

When looking for murderers, rapists and thieves, detectives look at CCTV footage, they look at fingerprints, they look at DNA, they look at signs of forced entry, they examine the murder weapon.
With copyright, all one needs is an IP address and they can very easily be spoofed or faked.
So go on, I double-dog dare you to find an actual police detective and ask him point blank whether an IP address is better evidence than everything I listed above.

Anonymous Coward says:

Re: Every other crime is treated the same way

“The fact is that the evidence in these copyright crimes is much, much better than what we use to put away murderers, rapists and other thieves.”

No it FUCKING isn’t! God, man. Sometimes you’re so stupid it makes my brain hurt.

The evidence in these “copyright crimes” is MUCH, MUCH less and worse than that found anywhere else or used in any other illegal act.

IP addresses. That’s the “evidence” used. Which, many people, somewhat more technically inclined than you could ever hope to be, have already pointed out, a ridiculous number of times, can be spoofed/cloned/changed/etc. To the point that an IP address is basically nothing, insofar as valid legal evidence.

“If you get caught with stolen goods, there’s a good chance you’re going to jail even if no one saw you steal them and you really did buy them from some legit store.”

Actually no. Your own sentence is so far fetched and as far from reality based as possible as to be unbelievable that you would write such a thing.

If you get caught with what is later determined to be stolen goods but you can prove that you legally and legitimately purchased them from a legit store then you will NOT go to jail. You will have said goods confiscated from you, and of course you’ll be out whatever you paid for them. BUT YOU WILL NOT GO TO JAIL!

“Guilt by association is just an unfortunate feature of having a justice system.”

WHAT?! Man, I… I don’t even know how to respond to this stupidity. Someone else feel free to put bob in his moronic place for this gem, cause I seriously can’t.

Chosen Reject (profile) says:

Re: Re: Every other crime is treated the same way

No he’s right. IP addresses are way better than anything we use to put away murderers and rapists. If those crimes were prosecuted with the same level of stringent evidence as an IP address is, then all the owners of the property where the crime was committed would finally be behind bars like they ought to be. Get raped or murdered on your own property? Well, the address says you own it, therefore you are guilty. If you don’t want to be guilty, you should have been murdered somewhere other than home.

Machin Shin (profile) says:

Re: Every other crime is treated the same way

Ok, so let me get this straight. In your twisted world innocent people get punished for crimes they did not commit, BUT YOUR FINE WITH THAT, because well…. that is part of having justice.

Just because their are flaws in the justice system does not mean we have to accept them. We have every right to complain when innocent people are punished. THAT IS NOT JUSTICE, and if it is happening then our JUSTICE system is broken and needs fixing.

Trails (profile) says:

Re: Every other crime is treated the same way

The fact is that the evidence in these copyright crimes is much, much better than what we use to put away murderers, rapists and other thieves.

I agree. That is fact. Why? Because.

The fact also is that I am the Grand High Marshall Twinklepenny Sexopants vonOttombottom the 12th, Supreme ruler of Gormenghast and Lord of the Army of the Twilight Marauders. Also I can fly.

Wow these unsupported assertions are fun…

bob (profile) says:

Re: Every other crime is treated the same way

well, not exactly, you don’t have to defend yourself.
the burden of proof is on the accuser, to show to a jury of your peers, beyond a reasonable doubt, that you violated the law. you can sit there quietly, and if the accuser can’t prove their case against you, you are found not guilty.
the only way action can be taken against you is if you are found to be guilty by a jury.
In the six strikes case, you can be found guilty without any trial whatsoever and consequences levied against you.
it would then be your responsibility to go to the people accusing you, and explain why they might be wrong, and if the article is to be believed, the methods and procedures you would have to go through are difficult to navigate and are unlikely to produce a favorable or even fair result.
The actual justice system, as broken as it is, still imposes many limitations on the accuser for how they might convince a jury of your guilt.
so, no, 2 different things.

Rikuo (profile) says:

Re: Re: Every other crime is treated the same way

“The actual justice system, as broken as it is, still imposes many limitations on the accuser for how they might convince a jury of your guilt. “

I know you’re not the “real” bob, but…that is the problem. This NEVER goes to a jury. NEVER goes to a trial. You end with the arbitrator, not the court system.

Gwiz (profile) says:

Re: Every other crime is treated the same way

Uh, that’s how the justice system works. You get accused of something and then you have to defend yourself.

Right. But you know something bob, even those accused of murder can claim something akin to “fair use”. It’s called “self-defense” or “stand your ground”.

Why is the fair use defense missing from the six-stike plans?

Also, six-strikes is completly outside of our justice system and is being run entirely by those with vested interests in the copyright industry. Don’t know about you, but that really doesn’t give me that much of a warm & fuzzy feeling.

Anonymous Coward says:

Re: Re: Every other crime is treated the same way

Why is the fair use defense missing from the six-stike plans?

This sentence doesn’t make any sense.

But I’ll try to address what you’ve written. If you feel you were mistakenly given a strike you can appeal. A fair use defense is a defense used when contesting copyright infringement. I’d suggest a thorough knowledge of fair use first.

The system will be looking at BT traffic. Due to the inherent nature of BT being used to transmit extremely large files, the alleged infringement in question is likely to be of such a voluminous nature that fair use is not going to be a valid defense.

Rikuo (profile) says:

Re: Re: Re: Every other crime is treated the same way

Your own statement there is completely moronic.
Bob can accuse Alice of infringing World of Warcraft, says he’s a representative of Blizzard, when she shares copies of the game through P2P whenever she updates. The ISP will take him at his word and give Alice a strike. The size of the file being transferred has NOTHING to do with anything.
Oh, and look up a dictionary sometime. You used the word “alleged” without knowing what it means. Alleged is all these are, nothing is proven, but yet the accused is expected to suffer anyway.

Gwiz (profile) says:

Re: Re: Re: Every other crime is treated the same way

The system will be looking at BT traffic. Due to the inherent nature of BT being used to transmit extremely large files, the alleged infringement in question is likely to be of such a voluminous nature that fair use is not going to be a valid defense.

I’m sorry. You are not making sense to me.

If I obtain copyrighted material (regardless of method) to comment upon or to use in a way consistent with any of the other definitions of fair use, then I can assert a fair use defense against infringement. The method I used to get the material is irrelevant. Just because it’s Bittorent, doesn’t mean jack shit.

Anonymous Coward says:

Re: Re: Re:2 Every other crime is treated the same way

The method I used to get the material is irrelevant.

No, I’m sorry, it isn’t.

If you wish to “comment upon or to use in a way consistent with any of the other definitions of fair use” an example of copyrighted material, and you obtained an unauthorized version, a fair use defense would not be valid in defense of your method of obtaining it.

Gwiz (profile) says:

Re: Re: Re:3 Every other crime is treated the same way

If you wish to “comment upon or to use in a way consistent with any of the other definitions of fair use” an example of copyrighted material, and you obtained an unauthorized version, a fair use defense would not be valid in defense of your method of obtaining it.

I don’t need authorization to use something in a fair use situation. The ONLY exception I know is the tricky little part in the DMCA which says I can’t circumvent the DRM on DVD to do it.

Anonymous Coward says:

Re: Re: Re:4 Every other crime is treated the same way

It seems you’ve drifted to conflating subjects. The subject is the trafficking of copyrighted material. Your response that you want to comment on such material is irrelevant to the matter of whether or not you were guilty of illegally trafficking the material.

Rikuo (profile) says:

Re: Re: Re:5 Every other crime is treated the same way

“Your response that you want to comment on such material is irrelevant to the matter of whether or not you were guilty of illegally trafficking the material.”

Wrong. If I take a copyrighted show and do a voiced-over review over the show, I am availing of Fair Use, in that I have provided commentary. If I then upload that to Youtube, I am still legally in the clear. The person watching the video is still getting it, so yes, I am trafficking in it, but I am allowed do it, because of Fair Use.

Rikuo (profile) says:

Re: Re: Re:7 Every other crime is treated the same way

Sony Corp. of America v. Universal City Studios, Inc (464 U.S. 417) and Kelly v. Arriba Soft Corporation (280 F.3d 934 (CA9 2002) withdrawn, re-filed at 336 F.3d 811(CA9 2003)) would like to have a word with you. I can indeed make use of the entire work and have a commentary over it if I so desire.

Rikuo (profile) says:

Re: Re: Re:9 Every other crime is treated the same way

They both said that the amount of the work used does not count against a claim of fair use. If the nature of my commentary requires that I use the whole work? So be it. I will use the whole work, comment on the entirety of the work if I so desire, and still be legally allowed to do it.

Anonymous Coward says:

Re: Re: Re:10 Every other crime is treated the same way

“Commentary and Criticism

If you are commenting upon or critiquing a copyrighted work — for instance, writing a book review — fair use principles allow you to reproduce some of the work to achieve your purposes. Some examples of commentary and criticism include:

quoting a few lines from a Bob Dylan song in a music review
summarizing and quoting from a medical article on prostate cancer in a news report
copying a few paragraphs from a news article for use by a teacher or student in a lesson, or
copying a portion of a Sports Illustrated magazine article for use in a related court case.”

Chosen Reject (profile) says:

Re: Re: Re:11 Every other crime is treated the same way

Yay, you have a citation for something you said. This is a first.

Unfortunately, while what you cited gives examples of what can be considered fair use commentary, you are using that to say you can’t use a whole work, even though Rikuo showed you two court cases where the amount of work used (even all of it) does not bar a fair use case.

You lose this one. Better luck on some of your other threads.

Gentlemen, you are dismissed. Case closed.

Chosen Reject (profile) says:

Re: Re: Re:13 Every other crime is treated the same way

Dismissed by Youtube’s copyright filter, dismissed by the copyright owner in a series of DMCA notices, or dismissed by a court? I think you’re talking about the former two, because it’s only the latter that can make the final determination. That any given full-length movie with any given commentary would not pass muster is not my argument. That it could be done, is.

shane (profile) says:

Re: Re: Re:8 Every other crime is treated the same way

I like the Sony corp one. What it reveals too is the specious nature of the application of copyright to the internet. Providers over the internet want to pretend they can’t give you what you want, when you want it, cheaply. If they would do that, there would be barely a whiff of pirating. Why risk even the hint of breaking the law if you can get the stuff you want at a rational price WHEN YOU WANT IT.

And that is exactly what this case addresses……..

Chosen Reject (profile) says:

Re: Re: Re:7 Every other crime is treated the same way

If you want a copy of the 1s and 0s that make up my bank account, you are welcome to it. And that is where your “infringement = theft” mantra falls down. If you take the 1s and 0s from my bank account, that’s stealing (which is why people keep certain 1s and 0s secret). If you copy them, well, that’s fractional reserve banking.

Gwiz (profile) says:

Re: Re: Re:5 Every other crime is treated the same way

It seems you’ve drifted to conflating subjects. The subject is the trafficking of copyrighted material. Your response that you want to comment on such material is irrelevant to the matter of whether or not you were guilty of illegally trafficking the material.

Ok. Maybe I have a bit.

But I still am a bit hazy on your statement of obtaining an “unauthorized version” when fair use doesn’t require authorization. Isn’t there a conflict there? If I wish to use something for fair use and the right’s holder refuses to provide an “authorized” version to me, what is my recourse and what good is having fair use in the first place?

Anonymous Coward says:

Re: Re: Re:6 Every other crime is treated the same way

I’m not sure I understand; why would someone refuse to provide you with an authorized version? If you’re referring to content no longer in circulation, you still have fair use rights, where you can use parts of it for education and commentary.
Trafficking in entire works is the subject the ISPs are tackling, which is why fair use is not likely to be a valid defense. This is why I mentioned the file size and BT; we are referring to entire works.

Gwiz (profile) says:

Re: Re: Re:7 Every other crime is treated the same way

I’m not sure I understand; why would someone refuse to provide you with an authorized version?

If they know that I may blast them with a scathing review or am using their version to point out some stupid programming flaws on their part or whatever. Many reasons why. That is the entire reason fair use doesn’t require authorization.

Trafficking in entire works is the subject the ISPs are tackling, which is why fair use is not likely to be a valid defense. This is why I mentioned the file size and BT; we are referring to entire works.

File size still makes no difference. Downloading just a “part” of an electronic file is simply pointless. You need the entire file in order to open it in any program. It’s not like you’re faxing a couple pages of a from book, the file NEEDS to be complete or it’s useless. Also, you know that files can be fragmented, transmitted and then reassembled at the destination, don’t you? Not real hard to break a movie up into pieces named “FILE01.txt”, “FILE02.txt”, etc.

Bittorrent is not an indication of anything, it’s only a file transfer protocol. Does this mean when I grab the latest update off of the swarm of a game I have complete permission to use will get flagged – just because it’s bittorent? That’s silly.

Anonymous Coward says:

Re: Re: Re:7 Every other crime is treated the same way

Fair use for content not in circulation? You’re joking, right? You have any idea how much content isn’t available in Australia? And we have to stomach solar panel researchers like darryl, who are proud to keep it that way and insists all us other Australians are idiots?

Gwiz (profile) says:

Re: Re: Re: Every other crime is treated the same way

But I’ll try to address what you’ve written. If you feel you were mistakenly given a strike you can appeal. A fair use defense is a defense used when contesting copyright infringement. I’d suggest a thorough knowledge of fair use first.

Heh, I just realized a bit of disconnect on your part in that statement.

What would I be getting a “strike” for, if not for copyright infringement?

John Fenderson (profile) says:

Re: Re: Re: Every other crime is treated the same way

If you feel you were mistakenly given a strike you can appeal.

Sort of, with your hands tied behind your back. The appeal process is almost meaningless.

A fair use defense is a defense used when contesting copyright infringement.

But it is specifically excluded as a defense if you are appealing a strike.

John Fenderson (profile) says:

Re: Re: Re:3 Every other crime is treated the same way

I have more options than that. I can also do everything I can to encourage the ISP to stop acting in a way that endangers their customers. I can tell everyone who will listen what a travesty this is. I can try to get people politically motivated and attempt a legislative solution, etc.

shane (profile) says:

Re: Every other crime is treated the same way

Some of what you say is obvious b.s., especially that part about getting caught with stolen goods even though you paid for them and have a receipt from a legit outlet. That’s nonsense.

I am a little disconcerted though that this post got enough votes to end up being hidden. I’m glad the link is available to see what caused all the uproar.

To “the community” –

Pro Tip – when attempting to censor someone, shouting and pointing at them does not help to keep attention off of their words. =)

Ruben says:

Re: Every other crime is treated the same way

The fact is that the evidence in these copyright crimes is much, much better than what we use to put away murderers, rapists and other thieves.

Then where, pray tell, is your mountain of convicted copyright infringers? The untold legal victories and lucrative, life ruining judgements in favor of copyright holders? Infringement is no longer an issue because it’s so easy to convict copyright infringers, right? I mean there must be boatloads of these cases if it’s as cut-and-dry as convicting someone of murder, right? Well?

Why do rights owners not recognize individual accountability and sue everyone they catch in the act of infringement? I’m all for wrongdoers being held responsible for their actions, but you need to prove that it is so. Guilty by accusation doesn’t even come close to this standard.

shane (profile) says:

Re: Re: Every other crime is treated the same way

Thoughtful, reasoned remarks often do not get the attention they deserve because they cannot be absorbed in a second and a half and voted “insightful” or “funny”, but this post really strikes at the heart of the issue.

Rights owners are attempting to illegalize technologies, or specific uses of technology, or bully ISP’s into doing it, all because the law is now hopelessly unenforceable. Technology created the perceived need for copyright, and now it has created the perceived threat of copyright to other, more cherished values.

My fear is they may win the battle for public perception in no small part because they still dominate the most convenient ways people have of collecting information or entertaining themselves.

Anonymous Coward says:

Re: Every other crime is treated the same way

The issues with comparing the issue at hand to the murder example you posted:

1) innocent until proven guilty – no one faces any penalties until there is enough evidence against them to be held in jail, taken to trial, convicted, and sent to jail. In copyright, the moment you are accused you are held completely accountable and all penatires are forced on you immediately.

2) burden of proof – in a murder, the cops/prosecution is responsible for finding and gathering evidence which a court weighs in to decide if you are guilty or not. With copyright, someone claims you are wrong and then a business strips away your rights (otherwise they are potentially liable) immediately. Your choice is to either give up the rights that were stripped away or try via submitting enough proof to the accuser (not the business that stripped your rights) that you are innocent. The accuser decides if they wish to allow the business to reinstate your rights.

3) bail/temporarily granted rights during hearing – in a murder/trial you may get some temporary rights (rather than being locked up all the time). With copyright, during any form of hearing you have no rights as they have all been stripped away and are held by the accuser until they decide to return them.

shall I continue or is this good enough?

shane (profile) says:

Association? Try Guilty by Guilt

While the concept of intellectual property is not, in and of itself, raw and unadulterated evil, I have yet to see an example of it anywhere in history where it achieves anything positive. One of the best arguments for IP is that it encourages people to publicize inventions. That may have meant something in 1000 BC when there were all sorts of ways to spread an ingenious invention only to your friends, but these days the very instant anyone catches a glimpse of your wonderful invention, it spreads like wildfire, and some other group of folks somewhere can have a functional version of it in no time if it’s worth having at all.

Copyright and patent law actually serve one real purpose, and that is to give elite groups a legal foundation for “owning” ideas and thoughts. It is more or less the foundation for slavery. U.S. bankers’ message to you –

“You cannot do anything unless I say so. You must accept pay in these fake little credits I give. Coincidentally, I only give fake little credits to people who do my bidding.

And nothing – NOTHING – that you ever do or say cannot be owned. Not even your very thoughts and ideas. And I run the money supply. Eventually, everything returns to me.

Everything.”

Anonymous Coward says:

Re: Association? Try Guilty by Guilt

While the concept of intellectual property is not, in and of itself, raw and unadulterated evil, I have yet to see an example of it anywhere in history where it achieves anything positive.

“Failure to achieve anything positive at any time” sounds awfully synonymous with “unadulterated evil” to me. If it has never done good, and the examples of its damage are plentiful, how else would you define evil?

shane (profile) says:

Re: Re: Association? Try Guilty by Guilt

The idea of it, as a way for society to reward an industrious individual in order to promote more such industry, is not in and of itself evil in my view. How could it be properly used? I’m not sure… My opinion is that it is an interesting idea that has no practical application, but evil to me is always about intent. This is difficult to me, even though I believe it thoroughly, because I do not believe it is appropriate to attempt to divine intent in order to enforce laws. Laws need to be about things that are bad enough that lack of intent is an insufficient excuse. If something is to be illegal, it is something society is saying you need to actively intend NOT to do.

This all gets very esoteric very quickly….

Anyhow, it would appear we are on the same general side of this issue, so unless you just WANT to get into the metaphysics of morality, I’m going to let it go. =)

Anonymous Coward says:

Re: Re: Re: Association? Try Guilty by Guilt

As is said, the road to hell is paved with good intentions. Should we excuse all actions which cause ample harm and do no good, simply because they were well-intentioned? Should we excuse laws which do the same?

I think you are right in that we agree. I think rewarding creators so as to encourage creation is good and noble. But, I contend that the idea of “intellectual property” as a means to this end is evil, and I cite its track record as evidence.

shane (profile) says:

Re: Re: Re:2 Association? Try Guilty by Guilt

You know I think you’re right. I was even trying to avoid saying copyright or patent and fell right into the mess anyhow.

In the most fundamental sense, IP is evil because it is dishonest. There is no such thing as intellectual property, and therefore to speak of it once that fact is established represents an attempt to mislead.

You’re right… and it is important to be specific and accurate about this.

Anonymous Coward says:

There seems to be some convenient confusion going on here. The six strikes regime acts on infringement allegations of an account not an individual per se. Also, this contrived outrage over lack of “due process” is bullshit. Your due process is your TOS. If you don’t like it, there are alternatives- like satellite. You may not like the alternative, but too bad. Either subscribe with the telcos service and live with the terms or not. If you are infringing; stop. If someone is using your account to infringe; take measures to prevent it. It seems obvious that the core complaint is that any measure that thwarts freeloading is attacked on every ground imaginable. The simple solution is not taking copyrighted material for which you have not paid.

Rikuo (profile) says:

Re: Re:

“There seems to be some convenient confusion going on here. The six strikes regime acts on infringement allegations of an account not an individual per se.”
-Yes, problem number one. Most internet accounts are used for the whole household, and there is absolutely no way to determine which machine (most families have several) let alone which person, was responsible.
“Your due process is your TOS. If you don’t like it, there are alternatives- like satellite.”
Re-read that, jackass. A TOS has absolutely no part in due process. In fact, there IS NO DUE PROCESS. AT ALL. Alice accuses Bob six times, and magically, he is punished. Only after the fact can he even attempt to fight it, and even then, the list of valid defences he can use is actually smaller than what the LAW allows. The TOS is not a magical document that can sidestep law everywhere, so stop spewing that verbal diarrhoea.
Also, satellite isn’t available everywhere, and where it is, it is far INFERIOR to other services, both in terms of speed, access and price.

” If you are infringing; stop. If someone is using your account to infringe; take measures to prevent it.” What measures? There is literally NOTHING I can do to prevent this, because Six Strikes begins and ends with the accusation. A US Citizen can be the most law-abiding citizen in the world, with a computer and a net connection that they literally only ever use to check their e-mail and yet, there is nothing to prevent other people from accusing them and hence getting them punished.

Anonymous Coward says:

Re: Re: Re:

“There seems to be some convenient confusion going on here. The six strikes regime acts on infringement allegations of an account not an individual per se.”

-Yes, problem number one. Most internet accounts are used for the whole household, and there is absolutely no way to determine which machine (most families have several) let alone which person, was responsible.

That is why action is taken against the account. Like it or not, there’s a duty of the account holder to assure all users abide by the TOS and the law. The fact that the account holder chose to allow others to access the account doesn’t give him a pass if the account is misused.

“Your due process is your TOS. If you don’t like it, there are alternatives- like satellite.”

Re-read that, jackass. A TOS has absolutely no part in due process. In fact, there IS NO DUE PROCESS. AT ALL. Alice accuses Bob six times, and magically, he is punished. Only after the fact can he even attempt to fight it, and even then, the list of valid defences he can use is actually smaller than what the LAW allows. The TOS is not a magical document that can sidestep law everywhere, so stop spewing that verbal diarrhoea.

Perhaps it is you that has comprehension issues. A COMPANY HAS NO “DUE PROCESS” OBLIGATION TO A CUSTOMER. That is an obligation of a government to citizens, not companies to customers. The TOS takes the functional place of due process and procedures.

Also, satellite isn’t available everywhere, and where it is, it is far INFERIOR to other services, both in terms of speed, access and price.

I’ll bet it’s available anywhere you can subscribe to a service using six strikes. And too fucking bad it’s not as cheap or efficient. If you want cheaper and better, six strikes is part of the package. If not, there are alternatives.

” If you are infringing; stop. If someone is using your account to infringe; take measures to prevent it.”

What measures? There is literally NOTHING I can do to prevent this, because Six Strikes begins and ends with the accusation. A US Citizen can be the most law-abiding citizen in the world, with a computer and a net connection that they literally only ever use to check their e-mail and yet, there is nothing to prevent other people from accusing them and hence getting them punished.

The chances of someone unknown to you repeatedly accessing your properly-secured connection are awfully low. The ISP’s have security departments that can be helpful. And the ISP’s aren’t going to randomly generate strikes and send them out. Strikes are based on what is happening with your account.

Rikuo (profile) says:

Re: Re: Re: Re:

“Perhaps it is you that has comprehension issues. A COMPANY HAS NO “DUE PROCESS” OBLIGATION TO A CUSTOMER. That is an obligation of a government to citizens, not companies to customers. The TOS takes the functional place of due process and procedures.”

What do the TOS’s say? You shall not use the connection to violate copyright. Which is a law. In order for that to work, they have to be willing to work within the legal process, which includes due process of law. A TOS cannot absolve a company of any and all responsibilities they have to uphold the law. If they’re going to accuse US Citizen Alice of violating the law, they have to allow her a fair chance to defend herself, and not punish her before that.
A TOS cannot give the powers and responsibilities of the courts to private parties.

“The chances of someone unknown to you repeatedly accessing your properly-secured connection are awfully low. The ISP’s have security departments that can be helpful. And the ISP’s aren’t going to randomly generate strikes and send them out. Strikes are based on what is happening with your account.”
And there’s where you didn’t read what I wrote. You can have the MOST LAW ABIDING CITIZEN, and she can still get hammered with accusations. What about security departments? The Six Strikes agreements don’t allow you to even begin to contest the charges until at least your fourth or fifth accusation. All the ISP will tell you is “Fuck off, and wait until Bob accuses you for a fifth time Alice”. And no, it doesn’t need anyone accessing Alice’s router. All it needs is someone filling in a form and saying to the ISP “J’accuse!”

Mark Murphy (profile) says:

Re: Re: Re: Re:

“A COMPANY HAS NO “DUE PROCESS” OBLIGATION TO A CUSTOMER.”

Well, then, perhaps we should fix that.

And the ISP’s aren’t going to randomly generate strikes and send them out. Strikes are based on what is happening with your account.

The allegations leading to the strikes will come from the purported holders of the copyrights. They can allege anything they choose, with no apparent recourse or penalty for false accusation.

Anonymous Coward says:

Re: Re: Re: Re:

“The chances of someone unknown to you repeatedly accessing your properly-secured connection are awfully low. The ISP’s have security departments that can be helpful. And the ISP’s aren’t going to randomly generate strikes and send them out. Strikes are based on what is happening with your account.”

Yes, because no one in your apartment block would ever think of trying to piggyback off your wifi.

Rikuo (profile) says:

Re: Re: Re:2 Re:

I’d like AJ to try and answer this question.

I’m at home right now, on my desktop, as I write this. My desktop is connected wirelessly to the router, which is in the other room, which is itself connected to the phone line for net access.
I then turn around and go to my laptop, which is itself connected via Wi-fi to the internet and use that to, say, check my e-mail.
Both machines are mine, but the ISP doesn’t know that. They don’t care (otherwise, they wouldn’t have GIVEN me the free router, which most ISPs do, to facilitate multiple devices connecting to the internet at once).

Now let’s say Charlie from next door cracks my router’s password and as such gets for himself a free net connection. How does the ISP know this? There is no way. To them, they now see three devices and must assume that all three devices are mine, or at least, I allow on the network.
And yet, Six Strikes is still a valid procedure to go through? I can still be punished for what Charlie does? Even though, short of going through my router’s logs (which 99% of internet subscribers don’t know how to do), I won’t know its happening?

shane (profile) says:

Re: Re: Re:3 Re:

I think the fact you get six strikes more than makes up for Charlie hacking your password. If everyone put a password on their wireless, and a secure one at that, there would be little chance of cracking passwords. Further, the techniques used to crack a password are detectable.

I would agree though that, if you had an issue like this, the ISP should be forced to consider evidence in your defense and take back the strike if you can show you are being hacked.

All of which is beside the point to me. The bottom line is that technology has made copyright obsolete at best, and that all such efforts to interfere with technology, other businesses, etc, in order to maintain the current copyright regulatory environment are wrong without any need to reference inconveniences or unfair prosecutions.

If the law is wrong, whether or not you are fairly convicted is moot.

Rikuo (profile) says:

Re: Re: Re:4 Re:

“If everyone put a password on their wireless, and a secure one at that, there would be little chance of cracking passwords.”

The password itself can be 500 characters long, but if technically clueless Alice uses WEP to encrypt it? She might as well then have not put in a password at all, as WEP is infamous for being simple to crack.

Gwiz (profile) says:

Re: Re: Re: Re:

The ISP’s have security departments that can be helpful. And the ISP’s aren’t going to randomly generate strikes and send them out. Strikes are based on what is happening with your account.

I didn’t think that the accusations originated with the ISP. It was my impression that they would coming from a third party entity on the payroll of the content right’s holders based solely on IP addresses. So not sure how one’s actual account activity plays into this.

Monkey with Attiitude says:

Re: Re: Re: Re:

Wanna bet? Breaking Wifi encryption takes an average of 12.3 minutes with the proper knownledge and software. So jacking up your neighbors account, or even just setting them up, no problem…

Also you state “Perhaps it is you that has comprehension issues. A COMPANY HAS NO “DUE PROCESS” OBLIGATION TO A CUSTOMER. That is an obligation of a government to citizens, not companies to customers.”

Yet my tax money went to “Help” the telcos with their build out, and my tax money goes to enforce their edicts with the power of the law and gun. So being a logical human being (at least i am, you seem to be of the lawyer or entertainment tribe, which puts you some where below a snot rag on logic), it would be easy to deduce that for the Right of their Monopoly, Right of their protection, and Right to money for infastructure they must insure certian protections for the end user or else forteit the “other” rights they been given… the obvious logical conclusion would be the “six-strikes” based on on-sided accusations would put these into jeopardy. Especially as most of the protections and rights come at a a local level, and therefore people have much more power to influence the representives to pull said rights.

shane (profile) says:

Re: Re: Re:2 Re:

“Wanna bet? Breaking Wifi encryption takes an average of 12.3 minutes with the proper knownledge and software. So jacking up your neighbors account, or even just setting them up, no problem… “

If this is true, that is interesting to me. Is it detectable? It seems to me that it would be, and the ISP should be forced to put the monitoring in place to deal with this so people are not getting struck when it is not their fault.

Breaking the encryption I presume allows you to snoop the password? Because just breaking the encryption and listening in is not going to be seen by anyone other than a similarly armed super-snoop, and thus is not going to end up counting as a strike.

Chosen Reject (profile) says:

Re: Re: Re:3 Re:

Depending on the algorithm used, it is true, and no, you’re ISP has no idea it is going on. Once the WEP encryption is broken, you can gain wireless access on that access point. Once you have that, anything you do on it is the same as if the owner gave you the access point password.

Fun stuff: they can also change their MAC address to the same as yours, so that if you were to look at logs later, it would appear to be going to your own machine.

All of this goes to show that these strikes plans are stupid. IP addresses are not even people, let alone the owner of the account.

Rikuo says:

Re: Re: Re:5 Re:

Maybe his intention wasn’t to simply get an episode of Game of Thrones. Maybe Charlie wanted to get me in trouble with the copyright cops. Maybe he doesn’t have a net connection of his own, and so, he doesn’t need to bother with TOR or a VPN (once he’s cracked into my router, doing either of those nets him literally no benefit. Six Strikes puts me on the line for his infringement).

Chosen Reject (profile) says:

Re: Re: Re:5 Re:

VPNs can cost money, and you are relying on the VPN to not log all of your activity. TOR is slow. Your neighbor’s connection, however?

And let’s not forget that this has to be some nefarious thing. Cracking the wireless encryption is one reason why infringement might happen on your router even though you didn’t do it. Also, letting a friend attach his laptop who may very well forget that he set utorrent to start automatically. Sure he started it on his own network, but now he’s doing the rest on yours and completely unwittingly.

Anonymous Coward says:

Re: Re: Re:6 Re:

I hear what you are saying, but that seems it would account for such an insignificant portion of the infringing going on. And then, it would have to happen 5-6 times with no action on the account holders part before the account was throttled. I see few practical problems with this scenario.

PaulT (profile) says:

Re: Re: Re:5 Re:

“So with that level of technical knowledge, why would the bad guy not simply use TOR or a VPN, rather than go to all of that trouble to download an episode of “Game of Thrones”?”

Because if he’s caught he’s still on the line for his usage and risks getting his XBox Live access affected. If he uses your account, even if the infringement is somehow caught, you’re the one who gets the punishment.

Plus, you don’t need a high level of technical knowledge to do that stuff. there’s idiot guides out there that any 12 year old can follow.

Rikuo says:

Re: Re: Re:7 Re:

“Problem solved, right?”

Wrong. Anyone can still accuse you, and say that this IP address they have was used by your router. You don’t even have to have a compromised router. Plus, I love the tone of what you’re writing. So…if I get accused several times, I should go pure wired and forgo wireless access for my many wireless devices (like say tablets, most of whom don’t have the option of a wired connection).
Yes, WPA/WPA2 is hard to crack…but not impossible. You can still bruteforce it in a matter of hours. Which is trivial if I’m doing the hacking and my target is next door. Even then, 99% of ISP subscribers will NOT know how to set up WPA/WPA2 encryption and will not even know OF it.

It doesn’t matter how secure Alice’s home network is. All it takes is for someone to accuse her, and she still gets the strike. All it takes is for someone to accuse her five or six times…and she still gets punished.

Anonymous Coward says:

Re: Re: Re:8 Re:

You can still bruteforce it in a matter of hours. Which is trivial if I’m doing the hacking and my target is next door. Even then, 99% of ISP subscribers will NOT know how to set up WPA/WPA2 encryption and will not even know OF it.

At least one article I read suggested that using a passcode of 25-64 characters using numbers, lower and upper case letters and symbols would pretty much make any bruteforce attacks impractical.

How hard is it to set up such encryption? My takeaway was that it was not particularly difficult. And it also seems that cracking it would take way more time and trouble that just infringing from one’s own account.

Also, if I had concerns, why wouldn’t I simply turn off my router when I wasn’t using it? It seems like someone using my account would be pretty well thwarted if my router when on and off with my personal use.

Rikuo says:

Re: Re: Re:9 Re:

And again…you can have your router turned off all year long, but still get accused. Even if you have the most secure network setup ever, it means literally and absolutely nothing to the guy accusing you: you don’t have to have done anything for him to still be able to accuse you. There is nothing stopping him from accusing you multiple times, there is nothing in Six Strikes that says that multiple false accusations lead to punishment.

Rikuo says:

Re: Re: Re:11 Re:

” Unless the data supports that, why would a strike be issued? “

For the last fucking time…the ISPs are going to take the accuser’s word as gospel. They’re not going to do any investigating. There is no investigating. The accuser is just going to sign the form saying IP address XYZ was used to download, and the ISP will issue a strike against Alice, all without letting her contest the charge.

“I’m still having a hard time believing that an infringer would bother with cracking a well-protected system than simply using simpler measure to infringe from his own account.”
Then you don’t understand at all the mindset of a hacker. It is trivially simple to crack even WPA/WPA2 encryption on a wireless router, it just takes a few hours at best. What if the guy hacking doesn’t have his own net connection? Then, he has a motive of wanting to hack into my router, and thus, getting net access that way.

I want you to answer this question. Why is it you are so intentionally blind to everything I and the others say? Six Strikes WILL be abused beyond measure. The DMCA is already abused beyond measure, and there is still nothing in copyright law to punish false accusations.

Anonymous Coward says:

Re: Re: Re:12 Re:

” Unless the data supports that, why would a strike be issued? “

For the last fucking time…the ISPs are going to take the accuser’s word as gospel. They’re not going to do any investigating. There is no investigating. The accuser is just going to sign the form saying IP address XYZ was used to download, and the ISP will issue a strike against Alice, all without letting her contest the charge.

For the last fucking time, the ISP gets reports from its contractor analyzes them and decides whether to issue a notification. And there is an appeals process before anything negative happens.

“I’m still having a hard time believing that an infringer would bother with cracking a well-protected system than simply using simpler measure to infringe from his own account.”

Then you don’t understand at all the mindset of a hacker. It is trivially simple to crack even WPA/WPA2 encryption on a wireless router, it just takes a few hours at best. What if the guy hacking doesn’t have his own net connection? Then, he has a motive of wanting to hack into my router, and thus, getting net access that way.

Seems like a weak threat. Time will tell. A hacker without a net connection? I wonder how he learned to be a hacker.

I want you to answer this question. Why is it you are so intentionally blind to everything I and the others say? Six Strikes WILL be abused beyond measure. The DMCA is already abused beyond measure, and there is still nothing in copyright law to punish false accusations.

Infringement is rampant. You trot out this laughable parade of horribles that is simply designed to further erode accountability for people who continue to take from others without compensating them.

If your credit card company claims you paid late and you later prove your payment was on time, what punishment for that false accusation do you exact? Don’t bother answering. The bottom line is that six strikes is here. I know it chaps your ass. Too bad. If people respected the intellectual property of others there’d be no need for it. The freeloaders brought this on- blame them, or yourself, if the shoe fits.

Gwiz (profile) says:

Re: Re: Re:13 Re:

For the last fucking time, the ISP gets reports from its contractor analyzes them and decides whether to issue a notification. And there is an appeals process before anything negative happens.

I actually thought it was a contractor paid for by trade organizations like MPAA and RIAA.

If it’s as you say, why are the ISP’s footing the bill for this crap and not the rights holders then? When are the rights holder going to pay for all this enforcement that they keep expecting others to do for them?

shane (profile) says:

Re: Re: Re:14 Re:

I’m sure we all have our owl little reasons for trying to wring this guy’s thought processes from out of him, but he doesn’t know is the bottom line. He believes what he believes because someone he trusts told him so.

I tried to get him to talk about why copyright, fundamentally, is a good thing, and in the end he just punted with the comment, “You know nothing about how jobs work in the entertainment industry,” or something to that effect.

As if the entertainment industry didn’t fawn all over itself constantly, showing every imaginable detail of how it works. How the entertainment and media industry works is probably the single most documented method of any industry, seeing as how narcissistic entertainment industry people obsess constantly with making movies about making movies, music, and other purported art like “reality” tv.

Sorry, just had to vent. I just think it is a waste of time trying to get anything productive from the dude. It’s kind of hard to write him off, because he starts out sounding lucid, but then just sort of peters out and talks in circles.

PaulT (profile) says:

Re: Re: Re:11 Re:

“The way it works is finding that copyright content is downloaded to your account.”

Incorrect. The way it works is that IP addresses are identified, and the ISP identifies the account that it’s assigned to at that time. Mistakes have been made in the past, both in terms of misidentifying the account holder and in terms of identifying perfectly legal content as infringing. Strikes are issued based on the claims of a copyright holder, and are usually not investigated beyond that claim.

PaulT (profile) says:

Re: Re: Re:7 Re:

“Ok, so if I got a strike and suspected my wireless router was compromised I guess I could just plug it in instead. Problem solved, right?”

Yes, but you would also lose functionality that the wireless provides (e.g. Netflix streaming on an iPad).

“Or I assume that there are similar idiot’s guides to protect the integrity of my woreless router, correct?”

The general rule of thumb is that the only way to guarantee that your router is protected from attacks is to turn it off. You can make it more difficult but if the attacker is determined, there’s no other way to stop them.

Anonymous Coward says:

Re: Re: Re:8 Re:

I hear you, but I read a few articles like this:

http://www.wi-fi.org/discover-and-learn/security.

It appears that using WPA2 and a strong 25-64 character password and renaming your default name to something totally random would save you from just about anyone but the NSA.

Seems like a reasonable way to go.

PaulT (profile) says:

Re: Re: Re:11 Re:

Ah, the old moving of the goalposts rather than admit that you were mistaken about wireless security 🙂

Seriously though, I’ve demonstrated that it’s easy to crack even the most secure router passwords. Whether you accept that people will do this or not, the fact remains that a determined infringer can easily get an innocent party identified as a pirate. That’s one of the major issues with this whole procedure – and the tighter people try to turn the screws on people identified as infringers, the more likely it is that a person will use someone else’s account to avoid detection. Why risk your own account being cut off when you can leave a password cracker running overnight and use someone else’s account for your illegal activity?

Anonymous Coward says:

Re: Re: Re:12 Re:

Valid point. It will be interesting to see how it evolves. However, under the scenario you just described- it sounds as though the level of infringing would have dropped like a stone.

BTW, to the best of my knowledge you can only be throttled to 256 not cut off. But that could change

PaulT (profile) says:

Re: Re: Re:13 Re:

“However, under the scenario you just described- it sounds as though the level of infringing would have dropped like a stone. “

Really? I don’t quite get why that would be – no infringement’s being stopped here, just attempts at passing blame on to an innocent 3rd party. Why would infringement be reduced?

“BTW, to the best of my knowledge you can only be throttled to 256 not cut off. But that could change”

Well, in that case it’s even more useless. Throttling back to speeds that Napster users still merrily infringed with doesn’t sound like something that will stop infringement at all. It might take a bit longer, but it can still be done perfectly well at those speeds.

Anonymous Coward says:

Re: Re: Re:14 Re:

Well, if people are going to the extreme of spending hours hacking a highly encrypted wireless, that implies that it is a pretty effective program. And that also suggests to me that 99/100 infringers don’t have the wherewithal for that kind of hacking.

I guess that they stop at 256 so as not to interfere with VOIP. I expect that multiple offenders will eventually have the evidence of their misdeeds put in the hands of the rights holders. At that point, they will get the due process that so many seem to be seeking.

PaulT (profile) says:

Re: Re: Re:15 Re:

“Well, if people are going to the extreme of spending hours hacking a highly encrypted wireless”

Erm, I think you misunderstand the point. There’s no extremes involved here, just leave a program running overnight and it’s hacked when you get up. In other words, as long as you know enough to enter the commands in an idiot guide, there’s no more technical knowledge than downloading a torrent – and easier to use tools will almost certainly be available once demand is there to avoid detection.

“I guess that they stop at 256 so as not to interfere with VOIP.”

Which makes it useless at stopping infringement, so what’s the point of this again? The services that got the music industry shitting themselves over a decade ago were mostly using speeds at 1/4 of that.

“I expect that multiple offenders will eventually have the evidence of their misdeeds put in the hands of the rights holders”

You seem to be assuming they are guilty and that there are misdeeds or reliable evidence to look at. Big mistake, but then you don’t seem to have actually been taking any of my points on board.

“At that point, they will get the due process that so many seem to be seeking.”

At that point, after they already have their connection throttled and multiple accusations placed against them then they finally get the chance to prove their innocence? Well, excuse me for not bowing down to their generosity as surely due process comes before punishment?

PaulT (profile) says:

Re: Re: Re:3 Re:

“If this is true, that is interesting to me. “

I can’t say whether that particular figure is accurate, but as proof of concept for my job I showed how to hack several wireless connections to get the point across about how easy it was. WEP took 90 seconds to crack, WPA2 took about 3 hours.

“Is it detectable?”

If you have a decent router that logs correctly and you have the technical knowledge to look. Guess what most domestic internet users lack?

“the ISP should be forced to put the monitoring in place to deal with this so people are not getting struck when it is not their fault.”

Why would that make any difference, given that there’s so many users out there that don’t even know how to use the damn PC they have connected in the first place? In fact, how can the account holder prove that he’s not the one downloading the content?

“Because just breaking the encryption and listening in is not going to be seen by anyone other than a similarly armed super-snoop, and thus is not going to end up counting as a strike.”

I think you misunderstand the point. Once you’ve cracked the password, you can connect to the router at will and use it to get whatever you want. Crack the password, set up your torrenting overnight while the owner doesn’t use his connection and he won’t know why he’s had his connection shut off while you get whatever infringing content you want…

Anonymous Coward says:

Re: Re: Re:2 Re:

Due process is the duty of the government to provide an accused with procedural and evidentiary standards and protections. There is no such obligation between companies and customers. Instead a TOS outlines the procedures and protections in the relationship between company and customer since “due process” DOES NOT APPLY.

Got it?

Gwiz (profile) says:

Re: Re: Re:4 Re:

Why not let every company and corporation have a TOS that boils down to “Forget about the courts, you’re our bitch now!”

Companies ARE trying to do this by putting little statements to the affect of “by agreeing to this TOS you also agree to resolve differences through binding arbitration”. And of course since the arbitrators wish to continue working (and it’s the big companies bringing them business, not the little guy) they find in favor of the companies somewhere in the neighborhood of 96% of the time.

https://www.techdirt.com/articles/20110427/11434514058/supreme-court-says-business-favorable-arbitration-clauses-can-block-class-action-lawsuits.shtml

silverscarcat says:

Re: Re: Re:3 Re:

“Due process is the duty of the government to provide an accused with procedural and evidentiary standards and protections. There is no such obligation between companies and customers. Instead a TOS outlines the procedures and protections in the relationship between company and customer since “due process” DOES NOT APPLY.”

So… If that’s the case, AJ…

WHY THE FUCK WOULD YOU SAY THIS?!

“Also, this contrived outrage over lack of “due process” is bullshit. Your due process is your TOS.”

So, by your own words, by your OWN admission…

You ADMIT that there’s no Due Process!

And since there’s no Due Process with this, don’t you THINK that people have a right to be upset?

There ARE rights to those who are accused of committing crimes, you know.

Anonymous Coward says:

Re: Re: Re:4 Re:

YOU FUCKING IMBECILE…. there’s no due process in your credit card TOS, your banking agreement, your mortgage or rental agreement, your car loan, your utility contract, etc, etc.

I don’t just ADMIT it, I fucking SHOUTED it out load from my first post, all the way through.

And since there’s no Due Process with this, don’t you THINK that people have a right to be upset?

No. You agreed to it. Just like you agreed if you make a payment late your credit card rate jumps from 12% to 24.99% and you get socked with a $35 late fee.

There ARE rights to those who are accused of committing crimes, you know.

Under six strikes you are accused of a TOS violation, not a crime. Most people with a high school education know ONLY the government can charge you with a crime.

I used to think Marcus was the dumbest motherfucker on this site until you came along to wrest away the title. Congrats on a convincing win, though you should keep you eye on Rikuo who is giving you a real challenge of late.

silverscarcat says:

Re: Re: Re:5 Re:

“there’s no due process in your credit card TOS, your banking agreement, your mortgage or rental agreement, your car loan, your utility contract, etc, etc. “

BULLSHIT!

AJ, FUCKING SHUT UP!!

Listen, right now!

If there is a problem on my credit card, banking agreement, ETC…

I CAN FUCKING TAKE THEM TO COURT OVER IT AND HAVE DUE PROCESS ON IT!!

I… WOW! You call ME an idiot?

You are the dumbest moron around…

And I thought bob was stupid.

Anonymous Coward says:

Re: Re: Re:6 Re:

THAT RECOURSE EXISTS UNDER SIX STRIKES AS WELL ASSWIPE. Gwiz made that very point elsewhere in this post. You can do that with your mortgage company, bank, utility provider, phone company, rental company, auto financier, telephone co., etc.

So yes you still are an embarrassing idiot without a rudimentary grasp of the facts.

silverscarcat says:

Re: Re: Re:7 Re:

The only idiot I see around here is you, AJ.

You have no fucking idea what a credit card, a phone or an ATM had to do with the internet.

THAT’S embarrassing, idiot.

But the Due Process for the Six Strikes…

35 dollars for each time you are accused of committing a crime… And YOU have to pay, even if you’re found innocent, you’re still out of money and time.

Here’s a little something for you, AJ, that maybe you don’t seem to grasp at all.

Maybe, just MAYBE this will get through your thick skull.

We all use the internet, we need the internet.

Hell, just the other day, I got information on the amount that I had paid for student loans over the last year in my email.

So, I’m supposed to use dial up for a PDF of that size?

And, unlike the OTHER contracts, so long as you’re caught up on your house payments, you don’t get kicked out of your house while resolving an issue, you don’t lose your utilities when resolving issues, you don’t lose your car, your credit card, your bank accounts, etc when resolving issues…

HOWEVER!!

You DO lose internet access (and speed is access, you dumbass) when resolving issues with this six strikes.

So, yes, YOU are the idiot around here.

Anonymous Coward says:

Re: Re: Re:8 Re:

I’ll ignore your rehashed tripe and just respond to these particular lies:

35 dollars for each time you are accused of committing a crime… And YOU have to pay, even if you’re found innocent, you’re still out of money and time.

1. You have to pay to appeal, no fee is assessed for receiving a strike.
2. You are not being accused of committing a crime, but a TOS violation.

And, unlike the OTHER contracts, so long as you’re caught up on your house payments, you don’t get kicked out of your house while resolving an issue, you don’t lose your utilities when resolving issues, you don’t lose your car, your credit card, your bank accounts, etc when resolving issues…

Get caught growing pot indoors under lights and find out what the power company can do to you. They can cancel your account straight away.

Make a late cc payment, or maybe it wasn’t late- the company posted it late. Watch your rate jump and get hit with a late fee. Keep a pit bull in your apartment where such dogs are prohibited and watch how fast you and/or your dog are packing up and moving.

silverscarcat says:

Re: Re: Re:9 Re:

“2. You are not being accused of committing a crime, but a TOS violation.”

You’re being accused of copyright infringment, last time I checked, that was STILL a LAW… Even if it really makes no sense at times.

“Get caught growing pot indoors under lights and find out what the power company can do to you. They can cancel your account straight away.

Make a late cc payment, or maybe it wasn’t late- the company posted it late. Watch your rate jump and get hit with a late fee. Keep a pit bull in your apartment where such dogs are prohibited and watch how fast you and/or your dog are packing up and moving.”

yes, but in all of those instances, there is PROOF that stuff was going on, not just ACCUSATIONS.

Anonymous Coward says:

Re: Re: Re:10 Re:

  1. Ok, watermarks show that your account downloaded episode #5 of “Game of Thrones”
  2. Our meter reader walked into your utility room and found it full of HID lights and growing marijuana.
  3. Our records reflect your payment posted on May 2, not May 1. Accordingly, your new APR is 24.99% and we’ve added a late fee. BTW, we have recorded this with Experian which will affect your credit score. Have a nice day!!
silverscarcat says:

Re: Re: Re:11 Re:

Sigh This is the last time I respond to you, today. My moron-tolerance has gone to zero.

“1. Ok, watermarks show that your account downloaded episode #5 of “Game of Thrones”

3. Our records reflect your payment posted on May 2, not May 1. Accordingly, your new APR is 24.99% and we’ve added a late fee. BTW, we have recorded this with Experian which will affect your credit score. Have a nice day!!”

1: I can disprove that by showing you my computer and showing you that I have not downloaded anything of Game of Thrones easily, but yet I still get hit with a “strike” on my account.

3: Receipts are wonderful things, are they not?

And now, I am leaving because your stupidity is so strong that I need to hang out with a rocket scientist just so my I.Q. doesn’t start dropping.

silverscarcat says:

Re: Re: Re:13 Re:

Sigh WHY do I bother with you? You’re such a moron that no matter what I say, you’ll find a way to twist it like the fucking little MORON that you are!

Call me Derpsley? Piss off.

“Ummm, some people mail payments”

Oh, have you EVER thought that a check and/or money order is a form of receipt? Of course not, because you’re a FUCKING MORON who can barely rub two brain cells together!

“And according to the TOS you agreed to, our detection of copyrighted content is all that matters.”

I didn’t agree to FUCKING ANYTHING like that!

“You forgot #2.”

Police still need a warrant, you dumbass.

Maybe instead of trolling, you should go to school and get an education.

Lord knows that morons like you need all the help they can get.

Anonymous Coward says:

Re: Re: Re:14 Re:

You keep digging in deeper and deeper, Derpsley.

“Ummm, some people mail payments”

Oh, have you EVER thought that a check and/or money order is a form of receipt? Of course not, because you’re a FUCKING MORON who can barely rub two brain cells together!

The issue was the timing of the payment. How does my cancelled check reveal the date of arrival? Herp.

“And according to the TOS you agreed to, our detection of copyrighted content is all that matters.”

I didn’t agree to FUCKING ANYTHING like that!

If you didn’t/haven’t opted out, your covered. Derp.

“You forgot #2.”

Police still need a warrant, you dumbass.

The conversation was about the power company suspending service, not about the police arresting you. Herpaderp.

I knight thee: Lord Herpsley of Derpington. Long may ye reign as our village’s idiot. May our fair community enjoy you as a buffoon and figure of fun for many years to come. Rise; Lord Herpsley and go forth to create more merriment at your own expense.

Anonymous Coward says:

Re: Re: Re:18 Re:

YOU’RE THE FUCKING ASSHOLE WHO’S PISSING ME OFF!!!

Calm down, Princess. If you can’t handle a verbal beatdown without falling to pieces, maybe you should take a break. Why keep coming back for more?

You’ve already been revealed to be:

1. An idiot.
2. A copyright hypocrite.
3. An hysterical, emotional basketcase.

Seriously, leave the for awhile basement, go upstairs and ask Mom for a hot cup of cocoa.

silverscarcat says:

Re: Re: Re:19 Re:

“Seriously, leave the for awhile basement, go upstairs and ask Mom for a hot cup of cocoa.”

I live on my own, have since I was 16. Got a roof over my head, food in my fridge and a job.

And…

“Why keep coming back for more?”

Didn’t you call me a coward for leaving?

Oh, would you look at that?

“Pathetic fucking coward.”

You did.

“You’ve already been revealed to be…”

Whatever, douchebag, I’m not an idiot, I’m not a hypocrite, and I’ll admit to losing my temper.

shane (profile) says:

Re: Re: Re:19 Re:

Your normal trolling is bad enough. This is disgusting.

I think I started the day defending you, or someone much like you at least. Understand that whatever victory you feel you had came at the expense of the respect of pretty much everyone who watched you.

Now I have been in situations where the respect of people watching mattered little to me, but it is odd that an issue like copyright elicits this sort of vitriol from you.

The very worst thing that could possibly happen if copyright were to fall apart would be that the quality of entertainment might drop.

Personally, reading about reality tv these days, I sincerely doubt we are in any danger of that.

Rikuo (profile) says:

Re: Re: Re:5 Re:

“Under six strikes you are accused of a TOS violation, not a crime”

So copyright is NOT a law then? Because that’s what Alice will be accused of violating under Six Strikes. Not an in-house rule at the ISP that only that ISP has, but a law.

The TOS merely outlines when the ISP can cut off your service and under what circumstances. If I drive under the influence of alcohol, that’s a crime, that’s between me and the government, but since its not in the TOS, the ISP can’t degrade or cut off my service. However, they do say that once I am accused of violating copyright LAW, that’s when they’ll take action.

Anonymous Coward says:

Re: Re: Re:6 Re:

Not an in-house rule at the ISP that only that ISP has, but a law.

This is true. However the ISP is acting on its own; the government plays no role here. The ISP is making a judgement on whether or not you broke the law and meting out punishment as it deems fit.

Your TOS covers their liability in this regard.

You have the right to appeal. If it turns out that some people feel the appeal process is unfair, then the next step would be a class-action suit comprised of a large enough group of people that can prove they were unfairly punished.

Those are the alternatives for protesting. In their entirety.

Rikuo (profile) says:

Re: Re: Re:7 Re:

” The ISP is making a judgement on whether or not you broke the law and meting out punishment as it deems fit.”

Re-read that. At what time does the ISP have the authority to make a judgement on whether or not Alice broke the law? I thought that what happened was that they would accuse Alice, report it to the police, who would then proceed with an investigation. You’re basically saying that a private party here has the power of judge, jury and executioner, and that you’re fine with that.

Anonymous Coward says:

Re: Re: Re:8 Re:

I’m not saying I’m “fine” with anything. Please don’t put words in my mouth. What I am doing is explaining to you how this works. The ISP is indeed judge, jury and executioner. Their TOS allows them to be exactly that. And their legal department has no doubt advised them that under Title 17 sec 512, they are completely within their right to do so.

Those are the simple facts of the matter.

Rikuo (profile) says:

Re: Re: Re:9 Re:

At what point did a TOS that allows a company to accuse Alice, investigate Alice, pronounce sentence on Alice, bar certain types of evidence and defenses become legal? A cop can accuse someone and a detective investigates, but its up to the judge and jury to pronounce sentence. I find the idea of someone having all three powers to be horrible.

Anonymous Coward says:

Re: Re: Re:10 Re:

At what point did a TOS that allows a company to accuse Alice, investigate Alice, pronounce sentence on Alice, bar certain types of evidence and defenses become legal? A cop can accuse someone and a detective investigates, but its up to the judge and jury to pronounce sentence. I find the idea of someone having all three powers to be horrible.

Right at the point she agreed to it.

Rikuo (profile) says:

Re: Re: Re:11 Re:

And at that point, the contract is unenforceable, its unconscionable. If her contract stated she had to fill the CEO’s cup of coffee every morning, that has nothing to do with the law. The CEO can find his cup empty, investigate using his own resources, and say, that with the cup empty, she has not lived up to her end of the bargain, thus, he can terminate service.
Not so with Six Strikes. Here we have the ISP accusing (or to be more precise, passing on the accusations) me of breaking a LAW. I have a contract with my landlord. He can’t come in, charge me or allow someone else to charge me with murdering someone in my bathroom (yes I’ll use the murder analogy since that’s what you yourself have used in the past AJ) and sentence me to being kicked out and have to pay fines/damages. I’m a tenant and have certain rights that cannot be sidestepped. If the landlord/ISP wants to accuse me of murdering someone/violating copyright, then they have the duty to let the properly deputized authorities ie. the police, handle it.

Anonymous Coward says:

Re: Re: Re:12 Re:

Nice theory, but it doesn’t work. If your lease says you can’t keep a pit bull, mastiff, chow, etc and your landlord finds it… out you go. The ISP is making no judgement of whether you are breaking the law, only that it has a good faith report of you misusing its service to download copyrighted content. Now either deal with the consequences like a man under the terms YOU agreed to or…. out you go.

Rikuo (profile) says:

Re: Re: Re:13 Re:

” Now either deal with the consequences like a man under the terms YOU agreed to or…. out you go.”

Thing is…millions of US citizens DIDN’T agree to Six Strikes. What about those who signed up in December on a 12 month contract that doesn’t contain any of this Six Strikes language?
Even if the landlord walks in one day and finds a pit-bull, as a tenant I have the right to challenge his accusation that its mine in a court of law. Otherwise, the landlord will just say “You better agree to pay an extra 500 bucks on your rent or I’m gonna say you had a pitbull here, and you’re out on your ass”.

Anonymous Coward says:

Re: Re: Re:14 Re:

Even if the landlord walks in one day and finds a pit-bull, as a tenant I have the right to challenge his accusation that its mine in a court of law. Otherwise, the landlord will just say “You better agree to pay an extra 500 bucks on your rent or I’m gonna say you had a pitbull here, and you’re out on your ass”.

Most rental agreements around here give you 30 days to clear out for violating their vicious dog rules. Doesn’t make a difference if you own it or not. In fact, if your neighbors report it, you’re in the same boat. If there’s a monetary penalty, they’ll deduct it from your security deposit. If you don’t move, they’ll evict you which you can fight in court.

Rikuo (profile) says:

Re: Re: Re:3 Re:

In exchange for my labour, my employer gives me money. I “pay” them labour, and get something I want in return. As part of the contract, I have to obey orders from my superiors. My superior wants me to handle dangerous materials without protective clothing. I refuse. The contract says that if there are any disputes, I have to use an arbitrator (who will more than likely side with the employer so as to retain business). The law states that I must wear said clothing. The contract does not give the employer a get out of jail free card. Nor does it allow all employers of a similar job type to do the same. So…if I’m a nuclear material handler and suddenly, all the nuclear power plant companies say no protective clothing needed? I’m out of a job and thanks to the fact I’ve specialized in that field, its gonna be tough, to the point of impossibility, to retrain.

Listen to yourself AJ. You keep arguing for corporations to have the ability to sidestep the law with a magic piece of paper.

shane (profile) says:

Re: Re: Re:4 Re:

If this really is the infamous AJ, I am a little disappointed in the portrayal of him as a troll. He is obviously a relatively well informed true believer, giving you every opportunity to see into the mind of such people. He is a little on the impulsive and insulting side, but not worse than a lot of us really. It just stings because he’s on the wrong side.

The poster says, “Your ToS is your due process.” That, for someone who has an understanding of the law – and it is clear that the poster does in my opinion – is meant to be a bit of a hyperbolic metaphor. A ToS obviously has nothing at all to do with due process, as it is not a law. It is the agreement between yourself and a service provider. If you wish to sue a service provider over ToS, you can. In fact, some time not too long ago there was an article right here on Tech Dirt mocking a business for suing Twitter, I think it was, because they had a contract and Twitter changed the nature of their feed, thus in the opinion of their business partner violating their contract.

Most people here howled and mocked the plaintiff for suing, but that is precisely the kind of due process you have if you sign a ToS – to have the provider held to the terms to which they agreed.

That’s really all he is saying, in a nutshell. Not all that scary.

Anonymous Coward says:

Re: Re: Re:5 Re:

“If this really is the infamous AJ, I am a little disappointed in the portrayal of him as a troll.”

Well, if you’re fairly new to this site, and you must be if you are only just finding out about the infamous AJ and thinking he’s not much of a troll, then I must say this is nothing.

A bit rude is all he’s being. And a bit wishy washy stating one thing one moment and another the next. It’s due process. It’s not due process cause they don’t need it. Blah blah blah.

But this is nothing. You missed out where every day for at least two weeks he went into each and every single thread and launched nothing but ad hom comments aimed at Mike and others here. He also, every other comment wrote “WHY WON’T YOU DEBATE ME?!?! RAWR!!!” (The “rawr” I’m adding, but that’s essentially what he was coming off as saying.)

He’s actually been relatively behaved lately. But wait, we’re due for the inevitable AJ blowup/flip out any day now. Just look at how he’s talking on here. He’s gone off into dismissing anyone who questions him, he’s ignoring comments that try and question his comments, he’s already insulting people and he’s already throwing “FUCK” out here and there. This is but a taste of AJ the troll/madman who seriously needs some kind of mental help.

Anonymous Coward says:

Re: Re: Re:6 Re:

Again, I am not AJ. I am a fairly regular poster who never signs in but does share AJ’s outlook on IP. Think what you like, I don’t call out Masnick to debate because he checks IP addresses, knows I’m out of DC and rarely ducks any punches I throw. We cross swords regularly. I’m as passionate an advocate for my side as people here are for theirs. I don’t duck responses, as you can see I have about 20% of this thread. But I grow tired of rehashing every single point. Nor am I invincible, people do score points on me from time-to-time, however today is not one of those times.

Rikuo (profile) says:

Re: Re: Re:7 Re:

Unfortunately, there is no way for us to believe you. You have the same writing style as AJ and he has been known and confessed to regularly posting as an AC. Without you proving your innocence, I have no choice but to pronounce you guilty as to being AJ…

Wait a minute…looks at topic of article…people now being expected to prove themselves innocent instead of their accuser proving them guilty?

Gwiz (profile) says:

Re: Re: Re:10 Re:

…or not post on Techdirt any more.

Nah, don’t do that. Personally, I appreciate opposing viewpoints and a mostly well-mannered, rousing debate. I have learned tons of new things this way. I am pretty sure I have engaged with you from time to time. I have even been known to enjoy a good debate with AJ, once he gets past the usual Mike-bashing phase and isn’t too fixated on trying to pin Mike down on some sort of “when did you stop beating your wife” question.

Anonymous Coward says:

Re: Re: Re:11 Re:

“…or not post on Techdirt any more.”

Nah, don’t do that. Personally, I appreciate opposing viewpoints and a mostly well-mannered, rousing debate. I have learned tons of new things this way. I am pretty sure I have engaged with you from time to time. I have even been known to enjoy a good debate with AJ, once he gets past the usual Mike-bashing phase and isn’t too fixated on trying to pin Mike down on some sort of “when did you stop beating your wife” question.

Yes, you and I have frequently locked horns. Nice to know you are not some thin-skinned Nancyboy like silverscarcat. I too enjoy a spirited debate and have learned much. I take none of this personally and respect the reasoned position of most, however hopelessly misguided they may be. Thank you for your comments and I will certainly return to further enlighten you on why most of your thinking is wrong. See you Monday. Bring your A game.

silverscarcat says:

Re: Re: Re:12 Re:

“some thin-skinned Nancyboy like silverscarcat.”

I have had like 25 different things run through my head before I finally responded…

The only thing I can think of is that you’re nothing more than a douchebag who takes potshots at people that can’t get back at you.

Good play, sir, good play.

You successfully trolled me today.

So, trolling attempt was quite successful.

Anonymous Coward says:

Re: Re: Re:13 Re:

The only thing I can think of is that you’re nothing more than a douchebag who takes potshots at people that can’t get back at you.

Our communication runs in both directions. I have no advantage over you. Fire away, I promise not to descend into rage or break down into tears. And aside from a few gratuitous swipes at your questionable character, you got beat on the merits. You weren’t trolled, your arguments were shredded.

silverscarcat says:

Re: Re: Re:14 Re:

“You weren’t trolled, your arguments were shredded.”

Snerk

So says the person who can’t figure out what an ATM, a Credit Card or a phone have to do with the internet.

No, you trolled me, you got me all riled up and pissed me off, so, yes, you trolled me. Good play, I admit, good play.

Beat on the merits? Of what? You’re the one who said, first thing “the ToS is your Due Process” and then when you were called out on it, you said “there’s no Due Process”.

So, if anything, you managed to troll me and in your mind, you think you won.

Well, you did win by trolling me, good job.

Before you say you didn’t troll me…

“aside from a few gratuitous swipes at your character”

That’s pretty much the definition of trolling.

Anonymous Coward says:

Re: Re: Re:15 Re:

It’s hard to believe that you still misunderstand. The ToS is your Due Process. Due process is the procedural protections safeguarding the accused in the process of resolving charges. Since due process is purely a governmental process, TOS is its corporate equivalent in both outlining the duties and responsibilities in a commercial relationship as well as providing procedural guidelines for resolving disputes or wrongdoing. So in a commercial sense the TOS is, in fact, your due process, though there is no [governmental style] due process in effect.

Everyone but you managed to understand this dichotomy. Personally, I don’t think you’re that stupid. You simply couldn’t be.

Rikuo says:

Re: Re: Re:16 Re:

“The ToS is your Due Process.” ” Since due process is purely a governmental process,” ” TOS is its corporate equivalent”

Even in the one paragraph, you’re constantly flip-flopping. So due process is a governmental process…but then we introduce the corporate element of the TOS?
What I’m arguing against is everything you say, where the corporate is handed the powers of the court, simply because I’m their customer. The landlord cannot charge me with damages to his house and pronounce me guilty, then say I owe him 10,000 euro. He has to go to a court, and get the court to declare that I owe him 10,000 euro. The court is the neutral third party there, non-biased towards either the tenant or the landlord.
Now we come to the ISP. Who want arbitration. The arbitrator wants to be hired to resolve disputes. If the arbitrator is seen to resolve in favour of the customer, then the ISP will stop hiring him: thus, the arbitrator is no longer neutral. He has a vested interest in siding with the ISP. The ISP has allowed a third party, the accuser, to come between me and the ISP, and allowed the accuser to declare that my service must be degraded, all on their word. The accuser won’t allow me to defend myself until the fifth strike at the earliest. The accuser won’t allow me to use certain defences that the law clearly says I should use. The ISP takes the accuser’s word as legitimate and gospel, yet does not do the same for me. Not only that, but the ISP will give the accuser my personal details, to facilitate their efforts at launching a lawsuit against me. No other business in the world does this, no other business takes my money then says to me “When a Random Tom comes up to me and accuses you of violating the law, and of harming him, I’m actually not going to defend you at all, in fact, I’m going to do everything I can to make his job easier and your life worse. Oh? Lest I forget, this has nothing to do with the police or the courts, where you would at least have a fair chance of defending yourself”.
These ISPs have colluded with each other, all these major players, who between them service most of the country. Now, I can opt out of being a customer, but where does that leave me? I can no longer call my friends and family half-way around the world, at least, not without racking up an enormous phone bill. I cannot do online banking (with banking, the number one rule is you NEVER do it on a computer you yourself don’t control. So to say to do it at a net cafe is a no no) With pretty much all banks now offering very limited face to face customer service, now its going to be damned near impossible to control my finances. I can’t use my credit card online, so I can’t purchase things and have them delivered, especially items that wouldn’t be in mail-order catalogues, which is to say most of the items I would want. My speech with my friends is now very limited: my friends and family are now spread all over the world. I could always call them on my mobile phone (I don’t have a landline), but what if it breaks and I get a new one? How would I communicate the new phone number without the internet? What about the coffee shop I run? Most of my customers like to use Wi-fi while having coffee, and hate going to coffee shops that don’t offer that. So, once I’m accused six times, I lose the service (or cancel it beforehand) and thus I lose customers.

This is what I am arguing against. A world where I either lose all the benefits and advances that Web 2.0 offers, or I keep the service, but have literally no protection against being accused and thus of having the service degraded to the point of unuseability.

In previous comments, I have already explained this. I have already explained why the corporate, the ISP, should not be judge, jury and executioner all in one, only for you to respond with basically “Well, they are, the TOS says so, tough shit”.
I am the customer. I am a citizen. That is not enough. I do not accept “Tough shit”. I demand to be recognized as a citizen with the right to due process of law. Not for corporates to hide behind an unconscionable piece of paper and to pass the buck. If the accuser wants to accuse me, and to say my service with the ISP has to be degraded, he is welcome to go to court, present his evidence and attempt to convince the court to declare it so. To say otherwise is to hand over the power of the government over to the whim of the corporate, who will doubtlessly forgo protecting the rights of the citizens if it results in a better quarterly profit statement.

Anonymous Coward says:

Re: Re: Re:17 Re:

Very nice theatrics.

Your landlord (in this country) can and will deduct damages from your security deposit. And you’ll be the one taking him to court, not vice-versa. The credit card company, mortgage company, auto finance company, university, bank, utility provider and every other business like this will add late fees and penalties if they believe that you didn’t meet you obligation or were late in meeting it. They don’t have to take you to court.

Your parade of horribles is still patently false. Your connection gets throttled. It will take you a day to continue to download big movie files. You can still bank, call using VOIP (Magic Jack requires 128 KB/s) the throttled speed is double that. You can shop online using your credit card. Virtually your entire essential internet experience stays the same. It is utterly bizarre to me that you seemingly accept the exact same relationship in every other aspect of your life, but this. Maybe you should look at why the potential of having your bandwidth throttled after 5 episodes of supposed infringement is so out of line. And I infer that you don’t even live in the US, so I really don’t understand your obsession with what we do here.

Sorry you don’t like the system. But if I’m right, you are not a customer, not a citizen and have no rights of due process or anything else under US law.

Rikuo says:

Re: Re: Re:18 Re:

This will be my last post on this article, because seriously, its been what? 12 hours? I don’t think anyone else has debated this long on a single article on Techdirt before.

“And you’ll be the one taking him to court, not vice-versa.” So yes, you agree with me, the courts are involved then? No need to go to arbitration which is obviously heavily stacked in his favour?
” The credit card company, mortgage company, auto finance company, university, bank, utility provider and every other business like this will add late fees and penalties if they believe that you didn’t meet you obligation or were late in meeting it.” Because when I don’t meet my payments, I’m not breaking the law. I’m breaking a contract. Not so with Six Strikes. There, I’m accused of breaking a law, of harming a third party, yet the ISP is going to deal between me and him? If I invoke the landlord again, it would be like if Charlie from the next town over, who doesn’t know exactly where I lived but knew my landlord, told him I punched him (Charlie) in the face, and the landlord takes the doctor’s fees out of my deposit. Oh, and gave Charlie my address and phone number, so he can sue me. And none of that was in my original contract with the landlord.

As for your second paragraph – so even though I’m paying for a high speed connection, and have not been convicted by a court, I should just get used to an extremely slow connection? Having 256kbps or lower is crap. I’ve had those speeds before, and you simply could not get anything done. I’ve tried Skype at those speeds and less, didn’t work (mainly because I don’t have that 256kbps available to me, a significant portion is always tied up in signal overhead). Many sites use Java or other script that results in a non-functioning website if you time-out, or don’t have enough bandwidth, as I and others have stated before. Right now, as I type these words, I’m downloading games (paid for games, btw, not that you care or should), which I would not be able to do in a timely manner (its over 40GB for this batch, and over Xmas I got 226GB of Steam games). If I were a victim of Six Strikes, at 256kbps 24/7, I would be unable to download them, I’m looking at 100 Days 23 Hours 22 Minutes 32.32 Seconds, best estimate, according to http://www.t1shopper.com/tools/calculate/downloadcalculator.php
In other words, it would take me a month and a half to download those games. I’m to be massively inconvenienced just…because? I’m not to get the benefit of the internet package because some jackass has to accuse me and ruin my day?

“And I infer that you don’t even live in the US, so I really don’t understand your obsession with what we do here. ” No, as I’ve stated dozens of times on this site, I have never been to the US, and more than likely never will, not as long as its a police state. But this isn’t about me. This is about the ordinary person in the US, who stands in for me in this debate. Who will be left naked to those who want to accuse. I have friends in the US, who will be affected by this, so I’m being outraged for them.

“Sorry you don’t like the system. But if I’m right, you are not a customer, not a citizen and have no rights of due process or anything else under US law.” What do you say then to the other commentators on this site, who are US citizens? They’re entitled to due process. Should they get it?

Even if I am wrong, and it turns out an ISP can be judge jury and executioner in one…you have still not explained how and why the third party can accuse me and expect for me to be punished with the accusation alone.

Anonymous Coward says:

Re: Re: Re:19 Re:

“And you’ll be the one taking him to court, not vice-versa.”

So yes, you agree with me, the courts are involved then?

Well, if you agreed in your lease to arbitration, there’d be that step too

” The credit card company, mortgage company, auto finance company, university, bank, utility provider and every other business like this will add late fees and penalties if they believe that you didn’t meet you obligation or were late in meeting it.”

Because when I don’t meet my payments, I’m not breaking the law. I’m breaking a contract. Not so with Six Strikes. There, I’m accused of breaking a law, of harming a third party, yet the ISP is going to deal between me and him?

The fundamental flaw in your argument is that you conflate being accused of a crime with a violation of the TOS. The ISP is accusing of violating its TOS, based on information supplied it by a third party.

As for your second paragraph – so even though I’m paying for a high speed connection, and have not been convicted by a court, I should just get used to an extremely slow connection? Having 256kbps or lower is crap. I’ve had those speeds before, and you simply could not get anything done. I’ve tried Skype at those speeds and less, didn’t work (mainly because I don’t have that 256kbps available to me, a significant portion is always tied up in signal overhead). Many sites use Java or other script that results in a non-functioning website if you time-out, or don’t have enough bandwidth, as I and others have stated before. Right now, as I type these words, I’m downloading games (paid for games, btw, not that you care or should), which I would not be able to do in a timely manner (its over 40GB for this batch, and over Xmas I got 226GB of Steam games). If I were a victim of Six Strikes, at 256kbps 24/7, I would be unable to download them, I’m looking at 100 Days 23 Hours 22 Minutes 32.32 Seconds, best estimate, according to http://www.t1shopper.com/tools/calculate/downloadcalculator.php
In other words, it would take me a month and a half to download those games. I’m to be massively inconvenienced just…because? I’m not to get the benefit of the internet package because some jackass has to accuse me and ruin my day?

In your last post you claimed you’d be unable to bank, shop online or use VOIP. It’s nice to see you admit none of that was true. That infringers are inconvenienced in their game play or Skype doesn’t work well is hardly the harsh consequence you claimed before.

“And I infer that you don’t even live in the US, so I really don’t understand your obsession with what we do here. ”

No, as I’ve stated dozens of times on this site, I have never been to the US, and more than likely never will, not as long as its a police state. But this isn’t about me. This is about the ordinary person in the US, who stands in for me in this debate. Who will be left naked to those who want to accuse. I have friends in the US, who will be affected by this, so I’m being outraged for them.

Just setting the record straight. You appeared to be wrapped in a US flag as you were speaking from your soapbox.

“Sorry you don’t like the system. But if I’m right, you are not a customer, not a citizen and have no rights of due process or anything else under US law.”

What do you say then to the other commentators on this site, who are US citizens? They’re entitled to due process. Should they get it?

For the reasons described above, they get what they agreed to in their contract.

Even if I am wrong, and it turns out an ISP can be judge jury and executioner in one…you have still not explained how and why the third party can accuse me and expect for me to be punished with the accusation alone.

If one is so paranoid, don’t connect with a wireless router. Use a network cable. Don’t engage in infringing activity. If you maintain the integrity of your system I doubt you’ll get a single strike. If you do, you should have a ready explanation for the appeal.

Gwiz (profile) says:

Re: Re: Re:18 Re:

…not a citizen and have no rights of due process or anything else under US law.

I’m not going to wade into the rest of this discussion because I really don’t have the time this weekend, but I do believe this bit of your comment to be marginally untrue.

The sole purpose of the Constitution is to grant and limit the powers of the US government itself. The wording of the Constitution uses “people” and isn’t limited to only to “US citizens” whatsoever that I can tell. Therefore, the Constitution applies to anybody with dealings with the US government, regardless of citizenship.

I’m not saying that it would be applicable in a situation where there is no involvement with the US government, such as dispute between a user and an ISP in a different country, just that as a general statement it’s not quite true.

silverscarcat says:

Re: Re: Re:16 Re:

From what I can see, the only person who doesn’t understand anything around here is you. Seriously, ToS is a contract between a person and a corporation, NOT a law.

Copyright infringement IS dealing with a law.

Therefore, since a ToS is NOT a law, corporations should not be allowed to settle stuff like that.

Due Process lets me face my accuser in court. ToS does not.

Maybe you should study the law a bit more before you spout your mouth off.

Really, it’s pretty bad, AJ, but you managed to make the one person who was defending you wish they hadn’t. Even I haven’t been able to do that at my worst.

Anonymous Coward says:

Re: Re: Re:17 Re:

You are breathtakingly slow.

When you are assessed a strike, you are NOT being accused of breaking a law. You are being deemed to have violated your TOS.

IT IS NOT A LEGAL MATTER, IT IS A CONTRACTUAL ONE.

You talk in circles. First correctly acknowledging: ToS is a contract between a person and a corporation, NOT a law.

But then falsely asserting that because copyright infringement may have legal implications, that it cannot be addressed within the TOS or that it somehow can only be treated as a legal matter. That is simply untrue.

silverscarcat says:

Re: Re: Re:18 Re:

Wow, thanks for pointing that out.

Boy I’m so glad that you could point out that a violation of copyright law is a violation of ToS and we don’t need courts anymore.

Sure showed me, huh?

/s

The only one talking in circles is you, AJ.

ToS is your Due Process
There is no Due Process
ToS is the corporate version of Due Process
This is not a legal matter, it’s a contractual one.
copyright infringement may have legal implications

So, which is it? It is one or the other, AJ, it can’t be both.

And, you know what? Copyright law is that, a law, NOT a ToS. Copyright violations fall into LAW, NOT contracts.

here’s the thing, AJ.

You’re being accused of violating copyright, that’s something that should be dealt with using the law. However, by doing what you’re saying, turning it into a ToS agreement, then you REMOVE the law aspect and thus copyright no longer can be applied with the law, and, if that’s the case, why does a third party get to decide if I’m violating my ToS? That’s between me and my ISP. My ToS doesn’t include the MPAA or RIAA.

So, which is it? Does this fall under ToS, in which case, I should only have to deal with my ISP and my ISP should only have to deal with myself or polie. Or does it fall under the law? In which case I would get Due Process.

Anonymous Coward says:

Re: Re: Re:19 Re:

Your ISP contracts with a company who alerts it when users are downloading copyrighted content it has matched from its database. It is a contractor performing a service to the ISP’s.

The six strikes program is exclusively between the ISP’s and their customers. Whether the ISP’s contract out the detection function or perform it in-house is immaterial. In fact it makes more sense for all of the ISP’s to use one company for uniformity’s sake.

So to recap: the so-called third party is an entity contracted by the ISP’s that provide it with information related to evidence of infringement. The ISP’s in turn, take that information and if it meets their criteria issue a notification. The third party supplies only information. It makes no accusations itself. The ISP’s do.

So it is entirely within the realm of your TOS. Any “due process” you are entitled to is derived exclusively from your TOS. Purely legal concepts of due process are inapplicable.

I presume that you will again deliberately misunderstand this too. Though I honestly don’t know how I could explain it any more simply.

silverscarcat says:

Re: Re: Re:20 Re:

You know what, AJ, fuck it.

Just, fuck it.

I’m tired of arguing with you.

Your deliberate misinterpretation of the facts just makes me want to drink until I have liver failure.

Think what you want, but you really have no idea about anything, do you?

I’m done, I’m done commenting on this article, done replying, done everything with this article.

Call me a douchebag, a coward, or anything you want, I don’t fucking care.

I don’t know you personally, you don’t know me, so, let’s just leave it at that, I’m tired of dealing with you.

G Thompson (profile) says:

Re: Re: Re:20 Re:

is the third parties information and process’s of how they obtained this ‘evidence’ able to be looked at forensically by the accused? I await your answer.

In the meantime, due process as the rest of the commentators here understand it is not just a legal concept, and instead is the process of natural justice (you understand it as fair procedure) that allows one the right to confront their accusers with equal footing, and to have an unbiased hearing. Whereas you are pedantically trying to conflate this with the Due Process Clause (which actually both came from the same Magna Cart reference) and only applies to governmental agencies (and criminal proceedings) instead of how the average laypersons sees it, and which is actually more correct than your interpretation. Especially under the doctrine of Fair procedure in where the ISP’s are absolutely obligated to provide a rudimentary form of due process.

In fact you seem to be fallaciously trying to state that there is no avenue for the accused customers to go through due to the TOS. No court in the world allows this, the TOS being only an instrument of a contract and a part of the terms of that contract.

A court, if a contractual term is in dispute, is the ONLY place a contract dispute (or full forfeiture) can be decided. Especially when the contract itself is in question.

Even more so you are in the case of a third party allowing a third line forcing situation where the customer can only take the word of their ISP based on a third, unknown and conflicted party. Undue influence is just the tip of the iceberg there. Vicarious liability would also be a major concern of the third party.

Any “due process” you are entitled to is derived exclusively from your TOS
When you look at due process from a consideration and unconscionable aspect (not to mention the Fair procedure doctrine) Contract laws over the last centuries state differently.

Anonymous Coward says:

Re: Re: Re:21 Re:

is the third parties information and process’s of how they obtained this ‘evidence’ able to be looked at forensically by the accused? I await your answer.

Should it ever go to court, I imagine the judge would allow that in discovery. Though, I’d like to meet the guy who was the victim of 5-6 “errors”. By going to court his account history would be under scrutiny from all sides and if he had, indeed, engaged in any infringing there will be a long line of plaintiff attorneys at the hearing with copies of civil actions to hand him at the break.

In the meantime, due process as the rest of the commentators here understand it is not just a legal concept, and instead is the process of natural justice (you understand it as fair procedure) that allows one the right to confront their accusers with equal footing, and to have an unbiased hearing. Whereas you are pedantically trying to conflate this with the Due Process Clause (which actually both came from the same Magna Cart reference) and only applies to governmental agencies (and criminal proceedings) instead of how the average laypersons sees it, and which is actually more correct than your interpretation. Especially under the doctrine of Fair procedure in where the ISP’s are absolutely obligated to provide a rudimentary form of due process.

They have, it’s codified under the article in the TOS entitled: “Appeals”. BTW, no provider of any TOS that I am party to affords me the right to a hearing. Since we are talking about enforcing infringement policy, not infringement laws; you get what you have agreed to when you signed up.

In fact you seem to be fallaciously trying to state that there is no avenue for the accused customers to go through due to the TOS. No court in the world allows this, the TOS being only an instrument of a contract and a part of the terms of that contract.

A court, if a contractual term is in dispute, is the ONLY place a contract dispute (or full forfeiture) can be decided. Especially when the contract itself is in question.

Go back and read up. I said that a court would first require you to exhaust other available remedies (i.e. the appeals process in the TOS).

Even more so you are in the case of a third party allowing a third line forcing situation where the customer can only take the word of their ISP based on a third, unknown and conflicted party. Undue influence is just the tip of the iceberg there. Vicarious liability would also be a major concern of the third party.

Why conflicted? What liability would the third party have? They’re only matching traffic to a database and reporting the information.

“Any “due process” you are entitled to is derived exclusively from your TOS”

When you look at due process from a consideration and unconscionable aspect (not to mention the Fair procedure doctrine) Contract laws over the last centuries state differently.

The process of appeal from an adverse strike from an ISP to a customer is codified in the TOS. As long as you are operating within the bounds of that voluntary relationship, that’s all you get. If you exhaust this and go to court a new process applies. What will be interesting to see is what the court will allow. My sense is that they’d only rule on the fairness of the process, not the merits of an individual case. Given the wide latitude courts have given business to establish their own system of consumer appeals, I doubt this will get far. And as long as the ISP’s continue to enforce their own copyright policy (not unlike universities) rather than copyright law itself, I think this is a losing prospect. It no coincidence that neither ACLU, nor EFF have been threatening lawsuits. I think they know something you don’t.

btrussell (profile) says:

Re: Re: Re:24 Re:

Not if they are accusing me of doing something illegal.
(I am going by my TOS since no one wanted to post an example of one we are referring to. Care to link us to the wording of one you want us to go by?)

There is a difference between “the accused” and “the guilty party?”

What happens when someone is accused of copyright infringement AND they are being charged ($) for going over their data cap? I’d say the ISP is benefiting from copyright infringement. According to the ISP.

Anonymous Coward says:

Re: Re: Re:25 Re:

Not if they are accusing me of doing something illegal.

No judgment is being made on whether the conduct was “illegal”, only that it is violation of the TOS. It is that basic subtlety that the entire concept rests upon. That’s why fair use is not an allowed defense. That’s why a lawsuit will never prevail.

I understand that you don’t like it. It is likely that the only time six strikes will veer into the legitimate jurisdiction of the court is if the ISP’s start providing the names of people with multiple strikes to the right’s holders, who will then name them in civil suits. I anticipate that will happen at some point. Probably by Comcast, as in owns NBC/U- one of the most aggressive players in the anti-piracy fight.

Rikuo says:

Re: Re: Re:20 Re:

“Your ISP contracts with a company who alerts it when users are downloading copyrighted content it has matched from its database. It is a contractor performing a service to the ISP’s.

The six strikes program is exclusively between the ISP’s and their customers. Whether the ISP’s contract out the detection function or perform it in-house is immaterial. In fact it makes more sense for all of the ISP’s to use one company for uniformity’s sake.

So to recap: the so-called third party is an entity contracted by the ISP’s that provide it with information related to evidence of infringement. The ISP’s in turn, take that information and if it meets their criteria issue a notification. The third party supplies only information. It makes no accusations itself. The ISP’s do.

So it is entirely within the realm of your TOS. Any “due process” you are entitled to is derived exclusively from your TOS. Purely legal concepts of due process are inapplicable.

I presume that you will again deliberately misunderstand this too. Though I honestly don’t know how I could explain it any more simply.”

I’m going against what I said earlier. THIS WILL BE MY FINAL POST…mainly because I must set the record straight.

What I quoted there…every single word, is absolute bullshit. It is false, it is unreal, it does not make sense. I will tear everything apart.

First – The ISP contracts with a company? As in, hires out an outside company to accuse its own customers? That sentence alone blew my mind. What business deliberately takes on a subscriber…and then pays another company (whether in cash or some other favour or perk) to accuse said subscribers of breaking the law.

Second “The six strikes program is exclusively between the ISP’s and their customers. Whether the ISP’s contract out the detection function or perform it in-house is immaterial. In fact it makes more sense for all of the ISP’s to use one company for uniformity’s sake. “
ISPs are not empowered to detect infringement. They ARE NOT THE COPYRIGHT HOLDERS (unless its for their parent companies when looking for their own shows/movies). Verizon cannot accuse someone of violating the copyright of a show owned by NBC; it is up to NBC to look for infringement there and then to sue the Verizon subscriber.

“So to recap: the so-called third party is an entity contracted by the ISP’s that provide it with information related to evidence of infringement.”
So if there is no third party, then the ISP is doing false accusations on its own then. If a Verizon subscriber gets a strike for being accused of downloading Twin Peaks, that is an abuse of copyright law (Twin Peaks is a show owned by NBCUniversal, which is owned by Comcast and General Electric). So who is making the accusation in good faith? Is it the third party? Is NBCUniversal going to accuse the Verizon subscriber? Why is the third party given access to the Verizon subscriber’s data? If they’re just farming for evidence of infringement, then they themselves don’t have copyrights…

“So it is entirely within the realm of your TOS. Any “due process” you are entitled to is derived exclusively from your TOS. Purely legal concepts of due process are inapplicable. “
You’re writing about the ToS as if copyright LAW, L-A-W, did not exist before the dawn of the internet company. As if the ToS takes precedence over the law. As if a mere ToS allows for one party to supplant the authority and responsibilities of the police and the rest of the judicial system. The landlord is not allowed to charge me with damaging his property, to investigate the damage, to conclude that I alone am responsible and then to declare what if anything I am liable to pay. It doesn’t matter if I sign a contract declaring him Master of the Universe: the law of the land states that such a contract is unconscionable and thus null and void. What you are arguing for is where one party, hiding behind a sheet of paper, is allowed ride roughshod over the other. Is Alice supposed to just take it in stride that even though she pays the ISP, the ISP (according to what you wrote in the article above) is ACTIVELY seeking to charge her with breaking the law?

No, do not bring anything else into it, such as banks must watch for fraud or anything like that. Banks aren’t allowed to freeze my account willy nilly and leave it at that. If they suspect me of fraud (or if the ISP receives notice of me infringing), they must contact the proper authorities, which is NOT THEMSELVES. It is the police and the courts. Otherwise, you are handing far too much power to one party.

Anonymous Coward says:

Re: Re: Re:21 Re:

First – The ISP contracts with a company? As in, hires out an outside company to accuse its own customers? That sentence alone blew my mind. What business deliberately takes on a subscriber…and then pays another company (whether in cash or some other favour or perk) to accuse said subscribers of breaking the law.

The outside contractor provider information to the ISP’s based on what they have requested. The ISP’s, in turn, interprets that information for the purposes of issuing strikes. At no time does a third party make accusations. It provides data only.

Second “The six strikes program is exclusively between the ISP’s and their customers. Whether the ISP’s contract out the detection function or perform it in-house is immaterial. In fact it makes more sense for all of the ISP’s to use one company for uniformity’s sake.”

ISPs are not empowered to detect infringement. They ARE NOT THE COPYRIGHT HOLDERS (unless its for their parent companies when looking for their own shows/movies). Verizon cannot accuse someone of violating the copyright of a show owned by NBC; it is up to NBC to look for infringement there and then to sue the Verizon subscriber.

That is simply untrue. The third party provided has a database that allows it, by use of watermarks and other means, identify content for which copyright is held. As long as Verizon has a good faith belief (check your TOS) then it is within its rights under the TOS.

“So to recap: the so-called third party is an entity contracted by the ISP’s that provide it with information related to evidence of infringement.”

So if there is no third party, then the ISP is doing false accusations on its own then. If a Verizon subscriber gets a strike for being accused of downloading Twin Peaks, that is an abuse of copyright law (Twin Peaks is a show owned by NBCUniversal, which is owned by Comcast and General Electric). So who is making the accusation in good faith? Is it the third party? Is NBCUniversal going to accuse the Verizon subscriber? Why is the third party given access to the Verizon subscriber’s data? If they’re just farming for evidence of infringement, then they themselves don’t have copyrights…

I think this is answered above. The copyright owners provide information regarding its intellectual property to a database curated by the third party. The ISP contract with that third party to analyze its traffic and identify traffic that is included in that database, along with other markers. The third party provides the information to the ISP who review and determine whether to issue a notification.

“So it is entirely within the realm of your TOS. Any “due process” you are entitled to is derived exclusively from your TOS. Purely legal concepts of due process are inapplicable. “

You’re writing about the ToS as if copyright LAW, L-A-W, did not exist before the dawn of the internet company. As if the ToS takes precedence over the law. As if a mere ToS allows for one party to supplant the authority and responsibilities of the police and the rest of the judicial system. The landlord is not allowed to charge me with damaging his property, to investigate the damage, to conclude that I alone am responsible and then to declare what if anything I am liable to pay. It doesn’t matter if I sign a contract declaring him Master of the Universe: the law of the land states that such a contract is unconscionable and thus null and void. What you are arguing for is where one party, hiding behind a sheet of paper, is allowed ride roughshod over the other. Is Alice supposed to just take it in stride that even though she pays the ISP, the ISP (according to what you wrote in the article above) is ACTIVELY seeking to charge her with breaking the law?

Why to you refuse to believe that COPYRIGHT LAW is not implicated here in any legal sense? There is nothing unlawful about the ISP’s conduct. They’re not enforcing copyright law, they’re enforcing their own copyright policy. It is both appropriate and legal.

btrussell (profile) says:

Re: Re: Re:22 Re:

1) If they are enforcing their own policy, what is it? Something done illegally? Who determined it is illegal? Could be fair use in which case we need a court to decide.

2) I’d like an example of something not covered by copyright on the net. Please provide a link.

3) Are they going to guard my pics, documents and such as well? Or is this just for large corporations, not the actual creators themselves?

Anonymous Coward says:

Re: Re: Re:23 Re:

1) If they are enforcing their own policy, what is it? Something done illegally? Who determined it is illegal? Could be fair use in which case we need a court to decide.

Check the TOS. Not necessarily illegal. No judgement made on legality. But if it is on the database of copyrighted content and you download, expect a notification.

2) I’d like an example of something not covered by copyright on the net. Please provide a link.

I’m pretty sure the website we are on asserts no copyright. That do?

3) Are they going to guard my pics, documents and such as well? Or is this just for large corporations, not the actual creators themselves?

I don’t know. Maybe if you have a commercial song or movie that has demonstrated monetary value and has been subject to wrongful exploitation by freeloaders, it would be included in the database. If you’re talking about your video of your LARP league award banquet, then no.

It would apply to the lawful owner of the copyright, whether the actual creator, his successor or assign.

Hope this helps!!

shane (profile) says:

Re: Re: Re:20 Re:

I’d be interested in knowing where you’re getting your information, but if my ISP is actually paying THEM to monitor me against my wishes, that’s actually even worse.

I’m being forced to subsidize a corporation violating my civil rights.

Again, this is the kind of nonsense that led to the American Revolution. It wasn’t JUST about the government. It was about the systematic corporate and governmental fleecing of the colonists. The East India Company was as much a target of the Tea Party as the crown.

Anonymous Coward says:

Re: Re: Re:21 Re:

Tons of companies monitor traffic. Where do you think civil lawsuits for infringing come from? This is old news, its been going on forever.

This is enforcement, not taxation. Not everyone will have an issue. I’ll bet very few will make it to the sixth strike. In any event, I look forward to finding out soon.

Rikuo says:

Re: Re: Re:18 Re:

“When you are assessed a strike, you are NOT being accused of breaking a law. You are being deemed to have violated your TOS. “

That line alone is bullshit. What is Six Strikes about, if not copyright, which is a law? Alice is being accused OF BREAKING THE LAW. That’s what Bob says happens when he says he caught her red handed downloading a copy of his music through a P2P program. The law says it is illegal for her to do that, Bob says he caught her breaking the law, so he contacts the ISP.

And if its NOT a law, then what the fuck is Bob doing then inserting himself between Alice and the ISP? If one of the terms of the contract between Alice and the ISP was that Alice fill the ISP’s CEO’s cup of coffee every morning, Bob has nothing to do with that. He can’t walk up to the CEO, tell him to turn around and say there is no cup of coffee, that Alice hasn’t lived up to her part of the bargain. He is NOT a party to the contract, and since its NOT a law according to you, has no say in it.
What if I were to go to your bank, and say to them you haven’t made your mortgage payments in the past couple of months? I’d be told to fuck off. Whether or not you’re living up to your contract with the bank has nothing to do with me.

Anonymous Coward says:

Re: Re: Re:19 Re:

“When you are assessed a strike, you are NOT being accused of breaking a law. You are being deemed to have violated your TOS. “

That line alone is bullshit. What is Six Strikes about, if not copyright, which is a law? Alice is being accused OF BREAKING THE LAW. That’s what Bob says happens when he says he caught her red handed downloading a copy of his music through a P2P program. The law says it is illegal for her to do that, Bob says he caught her breaking the law, so he contacts the ISP.

That line is not bullshit. The ISP is making a good faith judgment that you were infringing based on its own standards. It makes no judgment about whether you are or are not breaking civil or criminal law. Why do you think fair use isn’t a defense? Your Bob and Alice analogy doesn’t work. ISP’s have contracted with a company to supply them with information. They then use that information to deem whether you have violated the TOS related to their standards for infringement. Not your standard. Not a criminal standard. Not the civil standard. The ISP standard.

Is it really that hard for you to understand?

shane (profile) says:

Re: Re: Re:18 Re:

How many thousands of times does anyone have to explain it?

Everyone and their pee purple puppy dong understands the ToS is not a law. What they are complaining about is that the ToS puts a corporation in charge of addressing a legal dispute. The media company is going to accuse someone of Copyright violation. That is a legal issue. Their recourse for that should be legal, not to simply work hand in glove with an ISP to circumvent due process.

Tada.

Ten thousand back and forth posts boiled down to a paragraph. “So, deal with it,” seems to be your attitude.

That’s what people are doing. By discussing ways of unloading a world of hurt on bullies that operate in the fashion you seem to think is so cute.

Anonymous Coward says:

Re: Re: Re:19 Re:

Shane, it is NOT a legal dispute. It is whether a customer has violated the ISP’s copyright POLICY. An ISP does not first need an ajudication from a court to enforce a policy on infringement. Universities have been blocking suspected infringing content, fining students and limiting their access for more than a decade. The ISP’s are simply adopting the same tactics as the colleges have lawfully been doing for years.

shane (profile) says:

Re: Re: Re:20 Re:

If nothing illegal is going on, why the policy in the ToS? If it’s a legal issue, why is it being dealt with outside the courts?

Where is the evidence this is exactly like what is done at colleges? What, if any, legal challenges have resulted from this policy at colleges?

Of course it’s a legal dispute… Pfft. Even if it’s contractual, there is still a legal aspect to it. You The ISP related part is not a criminal legal issue.

And finally, you’ve still done nothing but blow off the issue of monopolistic trade practices. Plus your continued characterization of copyright issues as if they are theft issues is flatly dishonest. U.S. jurisprudence makes a distinction that is quite clear. The question then as to why ISP’s should be brought into the ongoing debate of what is good and right regarding copyright is a legitimate one. Enforceability is key. If copyright cannot be enforced without disregarding civil rights, then copyright law itself may end up unconstitutional. There is no good reason to be sacrificing the fist amendment to a very limited business interest.

This little end around to avoid due process is ridiculous on its face, and yet you seem determined to support it, and even seem to find some moral outrage despite the fact that technological development is obviously making copyright less and less viable in legal terms.

Anonymous Coward says:

Re: Re: Re:21 Re:

If nothing illegal is going on, why the policy in the ToS? If it’s a legal issue, why is it being dealt with outside the courts?

I never said nothing illegal is going on. I simply stated that there is no requirement for the ISP’s to treat copyright from a legal standpoint; particularly when it can be dealt with as a matter of policy.

Where is the evidence this is exactly like what is done at colleges? What, if any, legal challenges have resulted from this policy at colleges?

Try Google. I don’t have the time to do it for you.

Of course it’s a legal dispute… Pfft. Even if it’s contractual, there is still a legal aspect to it. You The ISP related part is not a criminal legal issue.

It can’t be a legal dispute. The ISP’s have no legal standing. That’s why it is addressed as a policy matter under the TOS.

And finally, you’ve still done nothing but blow off the issue of monopolistic trade practices.

The fact that all of the major credit card providers (or ISP’s) have almost identical TOS does not make for a monopoly. As long as DSL and satellite exist and most major cities have more than one broadband provider, there’s no monopoly claim.

Plus your continued characterization of copyright issues as if they are theft issues is flatly dishonest. U.S. jurisprudence makes a distinction that is quite clear.

Perhaps you can quote me back, I am very careful in my distinction. For your edification, I view theft as a combination of depriving someone of the beneficial use of his property and the unjust enrichment of the thief. With infringement, it involves simply the unjust enrichment of the infringer. Similar to sneaking into a venue and watching a sporting event or play from an empty seat.

The question then as to why ISP’s should be brought into the ongoing debate of what is good and right regarding copyright is a legitimate one. Enforceability is key. If copyright cannot be enforced without disregarding civil rights, then copyright law itself may end up unconstitutional. There is no good reason to be sacrificing the fist amendment to a very limited business interest.

A corporation has no duty to your first amendment rights. The ISP’s are there because they make money distributing paid content. No one put a gun to their heads.

This little end around to avoid due process is ridiculous on its face, and yet you seem determined to support it, and even seem to find some moral outrage despite the fact that technological development is obviously making copyright less and less viable in legal terms.

Technology has made it easier and easier for people to wrongfully take the creative output of others without compensation. There is little consequence for those engaged in this behavior (including six strikes). This will deter many casual infringers. It will do nothing to deter hardcore freeloaders.

shane (profile) says:

Re: Re: Re:22 Re:

You have time for ten thousand replies regarding this issue, but no time for any citations.

blrg BAHAHAHAHAHAHA!!!! Ok.
The ToS as part of your contract is a legal issue, which will resolve itself as a legal dispute when ISP’s try to harass their customers.

Your take on the monopoly issue is pretty simplistic. I think though until the American public begins to give a crap it is a moot point.

And finally, you admit this will not work. That’s sort of odd. Why are we going to harass tons of perfectly decent customers then?

What is the moral basis of your claim that someone is taking something when copying? If I sneak into a venue, I am taking up a seat. What am I taking up if I make a copy?

Where is the moral foundation of copyright? And why are you so vehement about it, since you openly state it is not theft? As far as I have been able to find, there isn’t even very good evidence that copying is hurting artists or even the major outlets at all.

Anonymous Coward says:

Re: Re: Re:23 Re:

You have time for ten thousand replies regarding this issue, but no time for any citations.

blrg BAHAHAHAHAHAHA!!!! Ok

You can search just as easily as I. And when I provide a citation, you’ll perform your search to try to refute it anyway, so why do I need to play along?

The ToS as part of your contract is a legal issue, which will resolve itself as a legal dispute when ISP’s try to harass their customers.

I’ll bet fewer than 10% of all accounts get a notification. Fewer still will get more than one. Very few will end up throttled. We shall see soon enough. And why is it harassment?

Your take on the monopoly issue is pretty simplistic. I think though until the American public begins to give a crap it is a moot point.

Read up on what constitutes a monopoly. It’s not at all complicated.

And finally, you admit this will not work. That’s sort of odd. Why are we going to harass tons of perfectly decent customers then?

I didn’t say that. I said it will not work to defeat the hardcore freeloaders. Most engaged in infringement are casual. They do it because it’s easy and there are few consequences.

What is the moral basis of your claim that someone is taking something when copying? If I sneak into a venue, I am taking up a seat. What am I taking up if I make a copy?

They are obtaining a copy of something of value, offered by the rights holder for sale. Unlike a legitimate purchaser, they’ve paid nothing. At a venue, the seat is vacant. The owner hasn’t “lost” anything by you sneaking in, but you have been enriched by enjoying an experience that is offered for the cost of a ticket. But you didn’t pay.

Where is the moral foundation of copyright? And why are you so vehement about it, since you openly state it is not theft?

I believe in property rights and that creators have a human right to economically exploit their creative output. This is codified in a number of UN declarations on human rights.

As far as I have been able to find, there isn’t even very good evidence that copying is hurting artists or even the major outlets at all

That is debatable. Music sales have plummeted, however much of the revenue loss has been made up with tours and t-shirt sales. Films can’t tour. For the motion picture industry the problem is most dire for financing $1-10 million indy films. Formerly, bank lending with the film as collateral was a viable option. Now those bankers ask how is it the film won’t be pirated and distributed all over the internet for free. They want to know how they get their money back, as generally this sized film doesn’t have a theatrical distribution deal up front and in fact many are never released to the N. American box office.

shane (profile) says:

Re: Re: Re:24 Re:

Actually I can’t find it as easily as you because my guesses at the keywords keep giving me ridiculously over prosecuted examples of abuse that more or less undermine your assertions that these six strikes policies will not be abused.

Which apparently don’t strike you as human rights issues….

You admit it is not theft, then turn right around and discuss RP as a property right. IP is not property in the classic sense of the word. You bring up the UN, then turn around and ignore developing values such as in Germany where internet access is being seen as a basic, fundamental need in modern society.

It would seem to me that as a human rights issue, having huge corporations and the government always hovering over people and threatening them with ridiculously high fines, jail time, and loss of essential services would trump the “need” such as it is for artists to have their endeavors made artificially more valuable by attaching a threat of legal sanction against people making copies of work they did long ago.

To me, a performing artist has a right to get paid, pretty much just like the rest of us, when they show up to work. That’s it. Artists that work in trades that leave a physical object behind deserve to get paid when someone buys their physical object just like everyone else. I do not really agree with this concept that we are going to take something like an idea and attempt to treat it as if it were a physical thing, like property. I am disturbed by the lengths to with you and people who think like you will go to promote this concept.

Anonymous Coward says:

Re: Re: Re:25 Re:

You admit it is not theft, then turn right around and discuss RP as a property right. IP is not property in the classic sense of the word. You bring up the UN, then turn around and ignore developing values such as in Germany where internet access is being seen as a basic, fundamental need in modern society.

Internet access is an important issue. But so is the protection of the valuable creative output of others from those who wrongfully acquire it without payment. Let’s be clear, none of these so-called violations of a free and open internet would be necessary if people didn’t start taking things they weren’t entitled to. Try to remember how this battle began.

shane (profile) says:

Re: Re: Re:26 Re:

And I again repeat, what is so special about creative work? Everyone else gets paid per product, or for showing up to work. This is a model that is easily applied to artists as well.

How we got here is the systematic creation of laws to allow central control over what we see mass produced, starting with the earliest copyright manifesting itself as a way to control what is printed by the newly developed printing press.

Back in the 70’s it was enough that there was a tax attached to all blank media that went straight to the media companies. Now even THAT sort of blanket largesse is not enough. Now they need to be able to control the entire planet’s access even to the point of creating artificial scarcities for stuff that’s decades old and that no one is even using. The link I showed you for the college kid downloading is tens of thousands of dollars per song. That’s ludicrous.

That’s how we got here. The system has always been questionable, and now the media people and the artists who have attached themselves to them are abusing the privilege. Time to take the privilege back, or at least reduce it substantially.

No one’s mooching off these people. They need to either get wage paying jobs, sell their services per hour, or per product, or accept that the pay for singing, dancing, playing pretend and making playpretties is a competitive one that may not pay like they want it to. Most people do this kind of thing as a hobby. There’s no reason to have such draconian laws to make it all this expensive and full of hassle.

shane (profile) says:

Re: Re: Re:28 Re:

LOL!

What, do the money fairies come and steal all the money you try to pay them, so you have to have like a jillion dollars to hire anyone?

Oh wait. Wait, everyone knows exactly how it works, and it’s been a long standing complaint among many people throughout our culture that entertainers are overpaid…

Your inability to present your own beliefs and reputation as someone who resorts to personal attacks is once again secured.

I have no idea how Hollywood works… Like you’re a big time film producer when you’re not arguing cases before the Supreme Court in your primary role as a lawyer. If indeed you are even one of those…

JJ says:

Re: Re: Re:26 Re:

Raising the question of who, in the end, has the right to decide who’s entitled to something. In some cases certain materials are not available legally in which case the only access is then illegal. (Mind you for me that’s usually roms of no-export-for-you games .) etc.) And while I agree that people need to be paid for their creative output, I’ve never heard of an artist like Jay_zee ending up in the poorhouse because people downloaded copies of his song. He has enough money to live on – more than that. Isn’t that enough?
I’ll admit to some moral myopia on some points but I live with it.
And even if Tos and legal matters don;t overlap, society must hold companies to the same standards as the government.

shane (profile) says:

Re: Re: Re:24 Re:

http://www.sltrib.com/sltrib/world/54156021-68/tenenbaum-court-downloading-pay.html.csp

The example I was trying to link as being over prosecuted involving something to do with student downloads. Note it also appears to have little to do with college policy as you characterized.

Sorry for the dead link.

This page is getting too cluttered…. Site needs an actual forum. LOL

shane (profile) says:

Re: Re: Re:22 Re:

“A corporation has no duty to your first amendment rights. The ISP’s are there because they make money distributing paid content. No one put a gun to their heads.”

I wanted to address this specifically because it ties to all sorts of issues, not just copyright issues. People are getting more and more distressed that the government is outsourcing law enforcement issues to corporations, who then get to violate civil rights because they are not the government. This comes up in various issues such as urinalysis for jobs and whether or not information a corporation has on you requires a warrant for the police to search as long as the corporation is willing.

This sort of thing is not some sort of new thing under the sun. A huge part of what sparked the American Revolution was the cooperation of the government with corporations to exploit the colonists. The Boston Tea Party is the most glaring example. This ships? The ones with the Tea? Yeah, those were East India Company ships.

So your technical arguments, while having a fine basis in the law from a particular point of view, continually side step the issue that laws change due to the public’s interest. The constant pressure to further and further push into people’s private lives and place people in constant threat of violating laws or losing necessary services because of copyright is GOING to be addressed, sooner or later. Why not address it proactively now? Why the constant pounding on the consumer for the benefit of people who are making more money than they know what to do with anyhow?

Anonymous Coward says:

Re: Re: Re:23 Re:

This comes up in various issues such as urinalysis for jobs and whether or not information a corporation has on you requires a warrant for the police to search as long as the corporation is willing.

Many companies insurers require drug testing to extend more favorable rates. I wouldn’t want to be working next to a druggie on a construction crew or other dangerous job, nor would I want one driving around delivering packages.

Why the constant pounding on the consumer for the benefit of people who are making more money than they know what to do with anyhow?

G Thompson (profile) says:

Re: Re: Re:3 Re:

AJ you really need to go back and look at the pure elements of ANY contract and you will see that a few of them rely on both implicit, extrinsic and implied due process’s (procedural fairness or natural justice if you wish) in them. I’ll give you a hint, one is an element needed just after formation.

Stop looking at Theory and start looking at actual cases and the way they have been handled in REAL life by courts worldwide (common law countries) also look at ADR and tribunal decisions and then look at the actual history of consideration and unconscionable practices (there I have given you a major hint)

And if you think due process is only about governmental structures then I feel sad for your clients who ever come to you for anything to do with contracts, wills, conveyancing, negligence, or any other torts dealing with… well anything.

shane (profile) says:

Re: Re:

I was outraged by your post until I tried to formulate a response. I do have a response, but it is not nearly as straight forward as I might have liked.

We have laws in this country meant to address monopolies. They are not being used on the Telcos, specifically not on ISP’s at the moment. By limiting our access to a handful of providers, and then threatening the providers, IP Maximalists are putting me in a position where I can lose money I paid for a service without demonstrating I did anything wrong.

That is basically a convoluted violation of civil rights.

I think it is the correct way of looking at the issue, but admittedly the idea that six strikes is the same as guilty until proven innocent is a little bit of a stretch.

Are you on sites that are pro IP attacking their extremism as well, I wonder? ARE there any pro IP sites that have comments? I should probably be over there studying my enemy.

Rikuo (profile) says:

Re: Re: Re:

Amazingly enough, Trichordist and Ethical Fan allow comments. You should have seen some of EF’s work – he wrote an article back in November where he screen-capped a website that let people watch the first half of a movie and then charged to view the rest, and said it was a site run by DotCom…even though it wasn’t.
That would be reason number (fuck I can’t count that high) of why I’m a regular here at Techdirt and am against copyright. The copyright maximilists cannot convince me to support their cause when they publish articles with blatantly false information.