Government Can Keep Key Emails With Hollywood Lobbyists About 'Six Strikes' Secret

from the can't-interfere-with-that-'commercial'-relationship dept

While we keep hearing folks in the entertainment industry and their supporters in DC talk about how great it is that the “six strikes” “Copyright Alert System” (CAS) was a “voluntary” agreement between industry players, one of the worst kept secrets in the world was that the White House was heavily involved. They basically helped Hollywood out and at least hinted strongly at the fact that if no “voluntary” agreement came through, legislation might have to be put in place (creating a novel definition of “voluntary”). Specifically, it came out that Victoria Espinel, the White House’s IP Enforcement Coordinator (IPEC), had been emailing with people about the program.

That news came out because Chris Soghoian had submitted a Freedom of Information Act (FOIA) request, seeking details of all communications between Espinel and her staff and the various players in six strikes, both the entertainment industry and the various ISPs (no need to seek communications with the real stakeholders, the public, since they weren’t even invited to the table). However, Soghoian felt that the Office of Management and Budget (OMB), in which Espinel works, kept key documents from being revealed, and appealed. Following that, OMB released a few more documents, but still kept many secret. Soghoain then went to court over the issue — arguing specifically that exemptions claimed for “trade secrets, commercial or financial interesets” and “privileged intra-agency memoranda and letters” were inappropriate. Unfortunately, the court has now rejected that case, siding with OMB.

At issue are some details of the draft “memorandum of understanding” that created the six strikes CAS program. Apparently, entertainment industry lobbyists shared those drafts with Espinel, but OMB won’t release them, claiming that they’re commercial, confidential information. OMB also argued that the documents were provided voluntarily and that the drafts “were not compelled or obligated.” In response, Soghoian argued that the documents were clearly provided to OMB for the sake of having Espinel “press ISPs for additional steps to combat copyright infringement (steps they are not legally obligated to take).” The court rejects this, saying that the info was provided confidentially, and voluntarily, and it represents commercial information. So… they remain secret.

The court also rejected an attempt to see internal discussions within the government about the six strike plans (as well as discussions on foreign laws like the Hadopi six strikes plan in France). Espinel’s office argued that these are protected because they’re a part of the “deliberative process privilege” that lets them withhold internal deliberative discussions about policy (so that government employees can discuss stuff openly before coming to an official policy position). However, here, Soghoian argued that Espinel and the IPEC have almost no policy setting role under the law, and thus this exemption makes little sense. Once again, the court disagreed. Here, they argued that since the government may make policy decisions based on whether or not six strikes formed (or how well it works) that these communications were properly classified as privileged and not open to FOIA requests.

The court goes into a bit more detail on a few specific withheld documents, but the conclusion is all the same: OMB can keep these documents secret because they involve internal deliberative discussions. This isn’t too surprising, but it also means that we don’t get to learn the full extent of the government’s involvement in this “voluntary” process.

Filed Under: , , , ,

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Government Can Keep Key Emails With Hollywood Lobbyists About 'Six Strikes' Secret”

Subscribe: RSS Leave a comment
82 Comments
Akari Mizunashi (profile) says:

It’s not a secret, though.

What do those emails not state publicly?

MPAA: “We need to ensure we can continue gouging the public by making them pay many times for the same content. Advertising, cable bills, and now online payment centers. That’s three, to start, but we want more. Cable companies need to ‘ensure’ their customers go to our price-gouging website, if we build one.”

Espinel: “Okay, but what’s in it for me?”

MPAA: “A cushion job when you leave office, with a six figure salary, and the 4th way customer pays: contributions.”
Espinel: “Deal. I’ll start screwing customers over with you. Just give me a few days to make it happen.”

Hell, this “secret” has been known for years.

out_of_the_blue says:

Fighting the wrong battle, with the wrong weapons.

Look, I can be in perfect agreement with Mike and everyone here that knowing details of how gov’t and “Hollywood” were conspiring would be interesting, as would what they’re up to now, but it’s not actually useful. I already know they’re totally up to no good. It’s not even opposition to take this route. It’s like stepping in a green mound as you walk across the field, then tasting what’s on your shoe to make SURE. Only result is on YOU, doesn’t change the facts.

What’s needed is Populist opposition to big gov’t and big business, and ten times as much when they’re visibly conspiring, not weenie lawyering.

Now, for the hard-of-understanding: I DO want to STOP all corporations and persons in “Hollywood” from getting more power, and to roll it back, even though I support the basis of copyright as sheerly a natural right that belongs to the creator of a work. — Which again means that corporations should not hold copyright, and that would fairly automatically empower the individuals who do hold it. Also, I wish for Hollywood’s “star” system to be pulled down and limited by stiff income taxes and more fair distribution to ALL people who produce works, to cut out the middle men, and so on. — Now, I’m SURE that some AC will yet find a way to say I’m for “Hollywood”, but I can’t hedge against every daffy accusation.

But the way to bring “Hollywood” under control isn’t to pirate content and thumb your nose at them. You’ll just create the excuse for more control, and even according to you aren’t affecting their income (actually, you say “helping”), so have NO control over them.

The purpose of gov’t is to at least keep BIG from becoming TOTAL. We need to return gov’t to its proper function of harassing The Rich. — That’s what “income tax” is for: was originally NOT on wages only on unearned income. Wages are for good honest labor, but financial tricks are sheer thievery from laborers.

Anonymous Coward says:

Re: Fighting the wrong battle, with the wrong weapons.

Everyone knows that they are up to no good. The problem is that keeping everything secret allows for the government to get their way without going though the democratic process. You may know that I am doing something wrong but without proof, there isn’t anything that can be done. In order for the proper democratic process to happen the government needs to be far more open and allow the public to participate more.
I agree with you on the taxation but I think before that can happening the government needs to roll back spending.

Anonymous Coward says:

Re: Fighting the wrong battle, with the wrong weapons.

Good post blue but in regards to your first paragraph; it is useful information if it can be used to open the eyes of a few more people. Many intelligent citizens still don’t get the nefarious nature of the unholy union between politics, the Media industry, and corporations.

Androgynous Cowherd says:

Undermining the rule of law

So, the government, on behalf of one cartel with an oligopoly, can come to a secretive agreement with another cartel with an oligopoly to effectively enforce a policy upon the populace without:

1. Passing legislation establishing the policy and amending the criminal code to incorporate the enforcement penalties;

2. Any kind of open debate;

3. Any process in which either we, the people vote, or at least our elected “representatives” vote in open Congress;

4. Establishing due process, including defenses, the right to one’s day in court, or the right to an appeal, for the aforementioned penalties — a citizen can simply be slapped with penalties with no avenue of appeal except for “binding arbitration” as specified in their telco’s contract-of-adhesion and no further appeals after that; or even

5. Establishing a clear, bright-line rule with clear interpretation by an impartial public body, as opposed to penalties being assessed basically at private whim.

Basically, it’s private law, and to a significant extent secret law, that cuts the legislature and the judiciary out of the loop entirely (with the district court for the District of Columbia cooperating).

Congratulations, USA; you’ve not only shredded your own Constitution but also the Magna Carta.

Anonymous Coward says:

Re: Undermining the rule of law

You forgot the part where they ignore the ordinary rules on collusion, so all of them can make the same rules to the detriment of the consumer.

If there’s any consolation, it’s that they cannot enforce criminal penalties since it’s not actually a law… oh wait. They can set up their network so you’re routed through one of their computers, (or they can just redefine “computer” to include “any electronic routing device”,) and then if you violate TOS you’re exceeding authorized access on their computers, so now you’re guilty of a felony.

Anonymous Coward says:

Re: Undermining the rule of law

“Congratulations, USA; you’ve not only shredded your own Constitution but also the Magna Carta.

At this point, I wouldn’t be surprised to find out that our “Glorious Leader” is keeping a score card to track which parts of the US Constitution and its Amendments his administration hasn’t yet violated. He’s got less than four years left to achieve 100% completion.

Anonymous Coward says:

what it does tell us is that the people dont matter, the people were stitched up, as usual, by specific industries, who want to do nothing except criminalise the public, sue them, bankrupt them and have thrown into jail, all for sharing data, which in the majority of cases, has been bought and paid for. they equally dont think that those same people deserve to have a say in their own future concerning items they hve legally paid for and downloaded. those same industries then expect the very same people that they have ‘made criminals of’ to go running into the shops and buy more of their stuff, so as to keep the business running. not bad! good ol’ USA government! lying through their teeth again, and, i bet, ordering the courts what way to rule so as to keep protecting their friends in the industries. what happens is so like the film Sniper with Mark Wahlberg it’s unbelievable!

Corrupt US government says:

No surprise

Hi, US Government here. Yes these are trade secrets. So are details of our spying on American citizens. Espinel is just doing her job by illegally stopping emails from being shared. It is the American way right? Break the laws if you work for the government, then when you are challenged you say your interpretation of the law is different, but the interpretation is secret so please go away. Espinel is simply another corrupt person in the most corrupt government in the world.

Anonymous Coward says:

Private Legislation

Given the monopoly rights enjoyed by ISPs, the government-sponsored “six strikes” policy amounts to de-facto legislation. Given real competition the parties involved would never have gotten away with it, as customers would flock to those ISPs which chose not to adopt a six-strikes policy.

There needs to be a lawsuit against service providers for colluding toward the adoption of “six strikes”. The government’s role, too, needs to be exposed. Legislation needs to be public and the parties involved accountable to the public.

Anonymous Coward says:

Re: Private Legislation

Given the monopoly rights enjoyed by ISPs, the government-sponsored “six strikes” policy amounts to de-facto legislation. Given real competition the parties involved would never have gotten away with it, as customers would flock to those ISPs which chose not to adopt a six-strikes policy.

I think you mean freeloaders, not customers. Customers have no reason to flee copyright enforcement.

There needs to be a lawsuit against service providers for colluding toward the adoption of “six strikes”. The government’s role, too, needs to be exposed.
Go ahead. What’s stopping you? Oh yeah, that’s right. It would require you to actually do something other than whine.

Legislation needs to be public and the parties involved accountable to the public.

Sniveling does not transform industry agreements into legislation. Sorry. Why aren’t you crying about all of the other industry agreements? Like financial institutions or payment processors? I guess as long as it doesn’t interfere with your freeloading it’s ok?

Anonymous Coward says:

Re: Re: Private Legislation

What about all the business connections that have employees doing things they aren’t supposed to? Now small businesses must monitor and block all such activity? That’s quite the cost increase….

What about public wifi? That all gets caught in the cross-fire.

Shared home connection becase there is no purpose having multiple for a single residence? Gone

Hell, most people probably aren’t even aware of this little plan, or if they are aware, they aren’t knowledgable as to how it is carried out, or what sorts of activities might run a foul of it.

yea… when people got a notice saying they were being limited on their connection for something they don’t remember or weren’t aware of in the first place you can bet they’d go elsewhere given the chance

Anonymous Coward says:

Re: Re: Re: Private Legislation

What about all the business connections that have employees doing things they aren’t supposed to? Now small businesses must monitor and block all such activity?

I don’t think “six strikes” applies to business customers. It looks like the industry is perfectly aware of the basic unfairness of crippling a customer’s internet connection due to the actions of others, but it looks like that doesn’t matter when it comes to punishing residential customers for the actions of family members and neighbors.

Anonymous Coward says:

Re: Re: Private Legislation

I think you mean freeloaders, not customers. Customers have no reason to flee copyright enforcement.

No, I mean customers. Those who pay for internet service are their ISPs customers regardless of whether or not they (or those who use their connection) are doing anything that would lead to a strike against them.

Go ahead. What’s stopping you?

Lack of contacts and lack of funds.

Why aren’t you [complaining] about all of the other industry agreements?

Other industry agreements are not at issue here, but the same arguments would apply if they involved industries dominated by monopolies.

That Anonymous Coward (profile) says:

Well they might have to admit that Dtecnet is violating the terms of service for Vuze and verifies your the infringer by pinging IPs. So the terms of service for ISPs are enough to prove your responsible for actions you might not even be aware of, but they can ignore the terms of service for Vuze… got it. If your curious read section 8 of the terms of service for Vuze.

The recent testimony to Congress about the program was enlightening about how it works. It was humorous to hear the MPAA talking head saying how these strikes had to be accurate when Dtecnet can’t even tell HBO might have a right to post HBO content on their website.

More entertaining was Ms. Lessner stating she knew nothing about technology and laughing… I think for the public face for a corporate legal system should not take matters so lightly, but why should they care as this system is being rolled out unopposed and unverified by an independent party.

Maybe if more people asked the hard questions they would be forced to release documents and remove officials who violated the trust of their position to put corporations ahead of the law.

JP Jones (profile) says:

Re: Re: Re: Re:

Wherever they are, it seems to be making a ding in freeloading.

Citation needed. I have not seen a single report that demonstrates evidence the six strikes system, which to my knowledge has not even been particularly advertised (kind of silly to put out a “punishment” if no one knows about it; great deterrent there). This is pure conjecture and most likely not true.

The part about your post that is so incredibly small-minded is the use of the term “freeloader.” You obviously have no clue what the conflict relating to copyright even is. This issue is not, and never really has been, a conflict between people who want free stuff (the “pirates”) and the entertainment industry who just wants to be paid for their product. The issue is that the entertainment industry has legislated, through copyright, the ability to compete with complete disregard for consumer demand by making competition illegal.

It sickens me to see someone trying to take the moral high ground when they don’t even know what the conflict is.

Anonymous Coward says:

Re: Re: Re:2 Re:

The part about your post that is so incredibly small-minded is the use of the term “freeloader.”

I get reminded of the technicalities when I use the more descriptive term, “thief”
I think “freeloader is an apt term for someone who takes something of value, to which they;’re unentitled without due compensation.

You obviously have no clue what the conflict relating to copyright even is. This issue is not, and never really has been, a conflict between people who want free stuff (the “pirates”) and the entertainment industry who just wants to be paid for their product. The issue is that the entertainment industry has legislated, through copyright, the ability to compete with complete disregard for consumer demand by making competition illegal.

There has never been more distribution, more content and greater access to the creation of content than there is today. You sound like a failed creator; embittered because “the system” hasn’t embraced your talents.

JP Jones (profile) says:

Re: Re: Re:3 Re:

I get reminded of the technicalities when I use the more descriptive term, “thief”
I think “freeloader is an apt term for someone who takes something of value, to which they;’re unentitled without due compensation.

What is a pirate stealing? Please, explain this to me. If I walk in to a Wal Mart and look at a poster, then walk out of the store without buying it, did I just steal that poster? Or if I buy the poster, and take it home and then draw mustaches on the people in the poster, and there’s a sticker on the back that says “By opening this poster, you agree to not modify this poster in any way.”, did I just steal the poster? What if I take a picture in my room, and the poster is in the background, now did I steal the poster? Please, take your time.

There has never been more distribution, more content and greater access to the creation of content than there is today.

This has NOTHING to do with copyright. This is in spite of copyright and the entertainment industry. All this new content, all this greater access has been fought tooth and nail. Does HBO legally allow me to purchase the new episodes of Game of Thrones the day they’re released, to watch on any device I own? No. Why? I’ll tell you one thing, it’s not because they can’t. It’s because they won’t. Not at any price. That’s restriction of distribution, not more access. The only reason we have the access we do is because the demand is so overwhelming they simply can’t ignore. The fact is that the raw service provided by piracy is better than most legal distribution systems.

Anonymous Coward says:

Re: Re: Re:4 Re:

“I get reminded of the technicalities when I use the more descriptive term, “thief” I think “freeloader is an apt term for someone who takes something of value, to which they;’re unentitled without due compensation.”

What is a pirate stealing? Please, explain this to me. If I walk in to a Wal Mart and look at a poster, then walk out of the store without buying it, did I just steal that poster? Or if I buy the poster, and take it home and then draw mustaches on the people in the poster, and there’s a sticker on the back that says “By opening this poster, you agree to not modify this poster in any way.”, did I just steal the poster? What if I take a picture in my room, and the poster is in the background, now did I steal the poster? Please, take your time.

I use “freeloader, instead of “thief” because I’m sick of explaining to douches who take me to task over the word “thief” and what do I get? King Douchenozzle tasking me again over the word “thief”.

A movie is an experience. And one that is offered to the public for payment. Your analogy is simply idiotic. There is no expectation that anyone must pay to view such merchandise at Walmart. Better analogy is hanging that poster in a museum. The museum charges admission to view its art. Do you think it’s ok to climb in the bathroom window and experience the exhibit without paying the admission? Likely not. If yes, then you are a bigger asshole than I first imagined.

“There has never been more distribution, more content and greater access to the creation of content than there is today.”

This has NOTHING to do with copyright. This is in spite of copyright and the entertainment industry. All this new content, all this greater access has been fought tooth and nail.

All of this new content is created by increased demand which was heralded by the explosive proliferation cable and satellite tv, the internet, falling prices of consumer electronics and vastly easier/cheaper video and audio recording and editing platforms.

Does HBO legally allow me to purchase the new episodes of Game of Thrones the day they’re released, to watch on any device I own? No. Why? I’ll tell you one thing, it’s not because they can’t. It’s because they won’t. Not at any price. That’s restriction of distribution, not more access.

So subscribe to HBO you cheap fuck. Or do without. Do you seriously wonder why the world doesn’t bend to your every desire?

The only reason we have the access we do is because the demand is so overwhelming they simply can’t ignore.

What the hell does this mean?

The fact is that the raw service provided by piracy is better than most legal distribution systems.

So that’s justification to break the law? Your personal convenience? What an entitled loser you are.

Anonymous Coward says:

Re: Re: Re:7 Re:

Sorry, the rest of us were talking about illegal downloads. You do understand the difference, right?

I thought you were talking about movies being “an experience”, unlike posters. You say I’m not allowed to “experience” a movie without paying, but isn’t that what I’m doing whenever I borrow a friend’s DVD?

You do understand the difference between copyright infringement and playing a movie, right? Right?

JP Jones (profile) says:

Re: Re: Re:7 Re:

Sorry, the rest of us were talking about illegal downloads. You do understand the difference, right?

NO. The rest of us were talking about copyright infringement. Six strikes is about copyright infringement. Copyright infringement is NOT “illegal downloads.” Please, please go do some actual research since you still don’t grasp what we’re talking about here.

If I buy a movie, then play a 30 second clip of it on YouTube, I have participated in possible copyright infringement. If I buy a movie and then rip it to play on my tablet, I have participated in copyright infringement. If I buy SimCity, then hack it to play offline, I have participated in copyright infringement.

Not one of these examples involve illegal downloads. Yet all would be considered violations under copyright law and the six strikes policy. None of these things are unethical or immoral.

You do understand the difference between something that is unethical and something that is illegal, right?

Mike Masnick (profile) says:

Re: Re: Re: Re:

Who knows? Maybe watching PPV or cable or going to the theatre or visiting Redbox or ordering HBO.

Someone knows. ๐Ÿ™‚ We’ll see what the data says.

Wherever they are, it seems to be making a ding in freeloading.

[citation needed]

And, as we’ve pointed out, even if that’s true, if it does nothing for the bottom line, so what?

So, I forget- where again is that “massive collateral damage”, Chicken Little?

Oh, right, because if the problems don’t display themselves within a couple weeks, they couldn’t possibly exist.

In the meantime, how about you explain to me how the VCR really was the Boston Strangler to the movie industry or how no one is creating music any more because of all that “pirating”. Playing high and mighty on predictions from your side really is throwing stones in glass houses.

You’re not a stupid person, so why do you say such stupid things? I’m sure the folks at DTechNet and CCI are working extra hard to make sure they’re super careful in these early days. But that’s got little to do with whether or not the overall program is a good idea.

Anonymous Coward says:

Re: Re: Re:2 Re:

“Who knows? Maybe watching PPV or cable or going to the theatre or visiting Redbox or ordering HBO.”

Someone knows. ๐Ÿ™‚ We’ll see what the data says.

How about this time you don’t make feeble excuses when it doesn’t support you?

“Wherever they are, it seems to be making a ding in freeloading.”

[citation needed]

How do a cite a conversation with someone I know who is involved? Would it matter?

And, as we’ve pointed out, even if that’s true, if it does nothing for the bottom line, so what?

For that to happen, you’d have to claim that there are zero new sales as a result of six strikes. That’s as valid to equating every pirated copy to a lost sale. You look silly for even suggesting it.

“So, I forget- where again is that “massive collateral damage”, Chicken Little?”

Oh, right, because if the problems don’t display themselves within a couple weeks, they couldn’t possibly exist.

I’d think a new program, in it’s infancy would have more glitches at roll-out than later when there’s more experience. We’ll see, but your canned “massive collateral damage” response (to almost everything proposed) is just more FUD.

“In the meantime, how about you explain to me how the VCR really was the Boston Strangler to the movie industry or how no one is creating music any more because of all that “pirating”. Playing high and mighty on predictions from your side really is throwing stones in glass houses.”

Note: I am not Jack Valenti. As you certainly have verified, my IP address does not resolve to the MPAA.

You’re not a stupid person, so why do you say such stupid things? I’m sure the folks at DTechNet and CCI are working extra hard to make sure they’re super careful in these early days.

I’m sure that they’re doing a professional job now and will in the future. Interestingly, a neighbor told me he got a notification from Verizon. Remarkably, he did not collapse in a indignant rage over the matter. Instead, he rounded up the suspects and got to the bottom of the matter. Suffice it to say that there is a certain teenager in our neighborhood who is suddenly without his phone and iPad for an extended period. In my view, that is precisely the sort of collateral damage that six strikes promotes.

But that’s got little to do with whether or not the overall program is a good idea.

It will be a great idea if it works as above. Sadly, there is absolutely no enforcement of copyright that you will ever support, however benign.

Anonymous Coward says:

Re: Re: Re:3 Re:

You’re assuming that any enforcement of copyright has been benign. Demanding several thousand dollars in settlement money to make things magically go away while the RIAA holds onto your personal details, assuming you’re guilty before you’re innocent, is not considered benign by most people.

Anonymous Coward says:

Re: Re: Re:4 Re:

So don’t pay. If you didn’t steal it, you shouldn’t have a problem. PS, there’s an old saying: “You can’t get fucked unless you assume the position.” Maybe you should think of that before you download Game of Thrones instead of being reminded at your hearing.

JP Jones (profile) says:

Re: Re: Re:5 Re:

So don’t pay. If you didn’t steal it, you shouldn’t have a problem. PS, there’s an old saying: “You can’t get fucked unless you assume the position.” Maybe you should think of that before you download Game of Thrones instead of being reminded at your hearing.

Huh, so it’s OK for the police to set up cameras in your house and watch you 24 hours a day? Hey, you don’t have anything to hide, right?

Hey, wait a minute! You’re using your neighbor’s lawnmower! YOU MUST HAVE STOLEN IT! You say he let you borrow it? OK, we’ll just arrest you until you can prove that it wasn’t stolen.

Yeah, no problem with this.

Anonymous Coward says:

Re: Re: Re:5 Re:

Yeah, just like Tanya Andersen shouldn’t have had a problem, and shouldn’t have had someone from the RIAA call up her kid daughter at kindergarten, masquerading as her grandmother.

Innocence has not excluded people from being treated as otherwise, no thanks to people from your side choosing to overstep their boundaries.

Anonymous Coward says:

Re: Re: Re:3 Re:

How do a cite a conversation with someone I know who is involved?

“Take my word, please.”

As you certainly have verified, my IP address does not resolve to the MPAA.

Posting from home? RIAA? Congress? Lobbying firm?

I’m sure that they’re doing a professional job now and will in the future.

They have every reason to. Just like with DMCA takedown notices.

Suffice it to say that there is a certain teenager in our neighborhood who is suddenly without his phone and iPad for an extended period. In my view, that is precisely the sort of collateral damage that six strikes promotes.

Yes. I’m sure that will work in the long run. After all, teenagers always do as they’re told, and they never repeat an infraction.

Sadly, there is absolutely no enforcement of copyright that you will ever support, however benign.

“Six strikes” is not benign. It is dangerous, unreasonable, and hopefully illegal. Government makes copyright law, so let’s leave its enforcement to the government.

Anonymous Coward says:

Re: Re: Re:4 Re:

“How do a cite a conversation with someone I know who is involved?”

“Take my word, please.”

I could care less. I offered an insight, you dismiss it because it disrupts your hopes and prayers. No big deal.

“I’m sure that they’re doing a professional job now and will in the future.”

They have every reason to. Just like with DMCA takedown notices.

There’s a single company (or two) that process all DMCA takedown notices? ‘fraid not Derpsley, anyone can play.

“Suffice it to say that there is a certain teenager in our neighborhood who is suddenly without his phone and iPad for an extended period. In my view, that is precisely the sort of collateral damage that six strikes promotes.”

Yes. I’m sure that will work in the long run. After all, teenagers always do as they’re told, and they never repeat an infraction.

I doubt it will in this case. If it does, you’ll probably be able to find a good deal on a used iPhone5 and iPad on eBay pretty soon.

“Sadly, there is absolutely no enforcement of copyright that you will ever support, however benign.”

“Six strikes” is not benign. It is dangerous, unreasonable, and hopefully illegal. Government makes copyright law, so let’s leave its enforcement to the government.

Government doesn’t write the TOS now do they? And this isn’t copyright law. So now what?

Anonymous Coward says:

Re: Re: Re:5 Re:

I could care less.

I can tell.

There’s a single company (or two) that process all DMCA takedown notices?

There have been some notorious examples of single companies handling DMCA takedowns for multiple clients, and they’ve been as professional and responsible as I’m sure CCI will be. After all, it’s not as if the company in charge of monitoring P2P networks under the new “six strikes” plan has ever issued improper takedown notices under the DMCA.

anyone can play.

So… more of a chance that some of them will get it right?

Government doesn’t write the TOS now do they?

Not at all. They only pressured ISPs into adopting them, through secret negotiations.

And this isn’t copyright law.

That’s funny. I thought strikes were only meant to be issued against those who engage in copyright infringement, but I guess that doesn’t count as “copyright law”. On the bright side, at least CCI will respect what the law would call fair use, independent creation, and the public domain.

Anonymous Coward says:

Re: Re: Re:6 Re:

That’s funny. I thought strikes were only meant to be issued against those who engage in copyright infringement, but I guess that doesn’t count as “copyright law”. On the bright side, at least CCI will respect what the law would call fair use, independent creation, and the public domain.

Great. Now dry those tears, buttercup. THe “massive collateral damage” was only more FUD from Chicken Little.

Anonymous Coward says:

Re: Re: Re:9 Re:

It’s healthy to be able to laugh at yourself.

I’m sure it is, but that’s not what I was doing. Thanks.

That bad old “massive collateral damage” isn’t going to get you.

Especially when my ISP isn’t part of the six-strikes initiative. Otherwise I might not be so lucky, punished for exercising my fair use rights or for being confused with someone who engages in copyright infringement (which I don’t).

That Anonymous Coward (profile) says:

Re: Re:

I’m guessing laughing hysterically as they are accused by a company in violation of the terms of service for the software they used to make the accusations while participating in the swarms making the horrible filesharing worse and sending out more stupid DMCA notices demanding that HBO.com be delisted for stealing HBO content.

But that’s just a guess.

Anonymous Coward says:

Okay, this is a tough one.

I don’t see anywhere where we can read the released documents, so this is based entirely on the decision posted here.

From the looks of it, the (b)(4) exemption claims are pretty unassailable. The companies voluntarily disclosed financial information that could be reasonably expected to cause commercial ahrm if a competitor got his hands on it. The information is clearly voluntary because, as I understand, this is the various companies saying “this is what it would mean to implement these policies financially.” Again, I don’t see the released documents, so I can’t really tell what was or wasn’t released, or the internal context. on the face, though, it seems pretty straightforward and open-and-shut.

Unfortunately, the (b)(5) is also pretty solid. Insofar as IPEC is involved, they provided some recommendations, and perhaps had some discussion about possible future policies, but they didn’t actually make any final agency decisions themselves. It was purely a consultational role.

That being said, I can see ONE potential way around the (b)(5) claims, which would itself be a pretty huge long shot (and, as previously stated, I have no idea what was actually released, since it doesn’t seem to be provided anywhere). An arguemnt could theoretically be made that there is a significant and overriding public interest in IPEC comments that directly relate to decisions made regarding the final JSP. Specifically, the power available to an enforcement entity implies significant leverage, to the point where it could be argued to be a de facto decision maker. Ergo, any recommendations provided by IPEC that are adopted into the final product are potentially decisions made by the IPEC.

It’s a stretch, and I could easily see a judge rejecting the claim, but that’s probably the closest thing to an opening in this instance.

Add Your Comment

Your email address will not be published. Required fields are marked *

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop ยป

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...