Ding Dong: Silly Six Strikes Copyright Infringement Scheme Is Dead

from the about-time dept

The pointless “six strikes” plan — a hilarious “voluntary agreement” between some big ISPs and the MPAA & RIAA is no more. It’s dead. It never should have lived, and of course, the MPAA is now blaming everyone but itself for the failure — and we’ll get to that. But first, some background.

As you may remember, back in 2011, after significant direct pressure from the White House, many of the big ISPs and the MPAA & RIAA came to a (ha ha) “voluntary” agreement on a six strikes program to deal with “repeat infringers.” There was a lot of history behind this, which we won’t rehash, but the shorter version is that, for many years, the MPAA & RIAA have stupidly believed that if you could kick people off the internet (completely) if they’re caught infringing three times, that would magically make piracy go away. They got a “three strikes” law passed in a few countries, starting with France. It was a complete disaster, as basically everyone who wasn’t from the MPAA and RIAA predicted.

In the US, it became clear that there wasn’t the political appetite to push through a three strikes law, so instead parts of the government, starting with the White House, started putting tremendous pressure on ISPs to work out a deal. The negotiations took a very, very long time. There were lots of rumors about them and then radio silence — until the “six strikes” deal was announced. The “compromise” was that (1) it was six strikes instead of three and (2) after six strikes… nothing happened. The key aspect of the three strikes plans the legacy entertainment industry had pushed was that you lose your internet connection. But the ISPs, rightfully, considered that a complete dealbreaker and basically refused any deal with a cut off.

Of course, just months after the agreement was reached, the whole SOPA/PIPA thing happened, and ISPs realized that they probably could have pushed back even harder and not agreed to a crummy deal. The implementation of the plan was delayed repeatedly, and it was believed that some of the ISPs wanted to renegotiate post-SOPA.

The plan finally went into effect, and just as lots of people predicted, it had no real impact. Just as everywhere else where this plan went into effect, people who really wanted to find infringing works continued to do so. They just found ways of avoiding being spotted. It certainly didn’t magically make people want to go out and buy stuff. The organization that was set up to manage the six strikes program, the Center for Copyright Information (CCI) bravely put on its best Baghdad Bob beret and insisted that the plan was working great — even as leaked documents showed that Hollywood knew from early on that the plan was a dud.

And now it’s dead:

Major internet providers are ending a four-year-old system in which consumers received ?copyright alerts? when they viewed peer-to-peer pirated content.

The ISPs, studios, and record labels did not extend a pact that implemented the voluntary program, viewed as a way to fight piracy without the need for congressional legislation. When it debuted in 2013, it was viewed as a major new initiative to fight piracy, with Internet users subject to repeated notices if they continued to access infringing content.

But, true to form, the MPAA wants to point the finger at everyone but itself for its own failures to stop treating fans as criminals:

Although no reason was given for ending the program, the MPAA, in a statement from its general counsel, indicated frustration at the inability to stop repeat infringers.

?These repeat infringers are the ones who drive ongoing and problematic P2P piracy,? Steven Fabrizio, executive vice president and global general counsel at the MPAA, said in a statement. ?In fact, an estimated 981 million movies and TV shows were downloaded in the U.S. last year using P2P. ?

Left out of this, of course, is the fact that the movie studios had the best year ever last year in terms of US box office revenue. And that more and more people are happy to pay for services like Netflix, even as the studios have been basically pulling tons of movies from those legal services.

We’ve been saying it for nearly two decades, but piracy is not the problem. Not listening to your customers is the problem. The MPAA is so focused on punishment it never recognizes that the carrot works better than the stick (which never actually works).

Of course, the MPAA still isn’t getting this lesson. It’s doubling down, which is why the BMG v. Cox case is so important to watch. Even before the six strikes plan went into effect, the legacy entertainment industry admitted that the real goal was to force ISPs to disconnect users. They planned to lump the six strikes plan in with a total misinterpretation of the DMCA to incorrectly argue that the DMCA actually requires ISPs to kick users off their service.

This reading is plainly wrong from what was in the DMCA and the negotiations around the DMCA. The law does require a policy to terminate “repeat infringers” but that was for online services (like a YouTube or a blog hosting company) and not for access providers. Unfortunately, in the Cox case, the judge seemed to get hung up on some unfortunate emails and a bizarre lack of understanding about how important an internet connection is for many people today, and ruled that ISPs do have to kick people off the internet.

That case is now on appeal, and basically all of the usual suspects (on each side) have been filing amicus briefs to push the 4th Circuit one way or the other. But a decision on that should be coming in the not too distant future, and that’s going to be super important. If BMG’s win is upheld, then it may be seen as a requirement for ISPs to not just put in place their own three- to six-strikes type plan, but that it would need to kick people off the internet based on such accusations (not convictions) of infringement.

And none of that will make people buy a product they don’t want.

The MPAA has had a couple of decades to stop attacking its biggest fans as criminals and to actually focus on providing them what they want. And it keeps on failing to just focus on that. Instead, it keeps overreacting to piracy and getting infatuated with the idea that it must break the internet. The death of the official six strikes plan was inevitable. It was a dumb plan from the start. But the real issue here is what will happen in court. Will the court uphold a dangerous plan that will lead to innocent people being kicked completely off the internet? Or will it recognize that maybe, just maybe, Hollywood’s focus on control shouldn’t ruin people’s lives?

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Companies: bmg, cci, cox, mpaa, riaa

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Comments on “Ding Dong: Silly Six Strikes Copyright Infringement Scheme Is Dead”

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Ninja (profile) says:

The MAFIAA has to secure funding. That fund depends on piracy having deep and widespread impact. Think like a business: if you have an event that can be catastrophic but the chances of it happening are effectively zero you won’t spend money to prevent it. Neither if it’s common but the impact is zero. Now if the perceived impact is big and the perceived frequency is high then you ‘have’ to do something.

They need to keep the illusion to keep the money flowing. Then they put their tinfoil hats, grab their e-lances and march towards the digital windmills. I don’t know if it should be compared to Don Quixote de la Mancha because at the very least the windmills were real.

PaulT (profile) says:

So, even at the end of this little fiasco, they haven’t understood why people are doing what they do.

“And none of that will make people buy a product they don’t want.”

Better, the suggestion of kicking people offline arguably reduces the likelihood that people will buy, because they’ve either just had access to a huge number of retailers removed and/or had income removed if they work from home. Making it more difficult to access their products, especially in an era when most people are moving to digital streaming as their primary access method, is rather counter-productive.

Plus, most people who download aren’t downloading 100% of what they view, so you lose any legal purchases they may have been making. On top of that, successfully kicking suspected offenders will just make it more likely that the pirate will find ways to bypass detection, usually via methods that incriminate innocent parties (for example, hacking their router) and thus losing their purchases).

The idea that any of this would increase sales overall is laughable.

DannyB (profile) says:

Re: Winning the Hearts and Minds

The RIAA / MPAA have done great at that.

The battle against home taping. Pricing CDs at double records and tapes. At first, pricing VHS and DVD movies in the stratosphere, when it turned out that they could make half their income by selling them at $20 or less.

Suing Diamond Rio, the maker of one of the first mp3 players, because — Piracy! Why not also sue Sony for making the Walkman?

Then the lawsuits against their own customers. Then SOPA / PIPA. Geographical restrictions. Collection societies. The raid against Megaupload, and all the sleaze and corruption that surrounded that.

Calling everyone a pirate — including in this very forum.

Somehow, Google is the enemy.

And they wonder why nobody likes them.

(And, yes, I realize I’m conflating the RIAA / MPAA together here. But there is substantial overlap.)

They have locked up our culture. Both music and movies. They begrudgingly let us have access to it at their pleasure. Nothing EVER goes out of ever-expanding copyright.

Now they wonder why people don’t listen to the music or attend movies? Maybe access to “their” culture is too restrictive and expensive. You get treated like a criminal to attend a theater. People can, and I dare say have, found other forms of entertainment.

Now Netflix, HBO, Amazon and others are making and funding production of their own new original series. And making it easy and economical to access.

The MPAA / RIAA what a wretched hive of scum and villainy.

“My heart just bleeds for them.” — Londo Mollari

Cowardly Lion says:

Re: Re: Winning the Hearts and Minds

I’d have some sympathy for the MPAA / RIAA if I thought they were ever acting in the screen or music artists favour. But they’re not. There’s been a ton of evidence (including swathes of it presented here, at Techdirt) over the years that tell us they act in no-ones interest but their own. Worse, they will back their own cause even if it’s to the detriment of the artists or the industry.

They represent no-one but themselves. Scum and villainy indeed.

Anonymous Coward says:

A ruling that would force ISPs to kick off people would be a disaster for families wherein children may be unknowingly downloading things illegally(1) and getting the entirety of the household banned from the internet because they have no other providers servicing the area. Doubly so if one or more parents in the household happen to work from home via the internet. Or if you have someone who’s income source is uploading YouTube videos. Or if a household is mistakenly hit with copyright strikes because everyone knows the automated systems are routinely abused and/or in a permanent state of anomalies.

(1) Sure, clicking download on a torrent may seem bad, but Popcorntime sure looked legal to someone who didn’t know any better. Who’s to say another thing might not come along?

Anonymous Coward says:

Cinema movie streaming coming soon?!

Perhaps they’ve finally been convinced that they can’t actually stop piracy through force and that the only way to do it is allow streaming in as many places as possible at once when movies and tv shows come out.

Perhaps we’ll finally see the mythical same-day cinema movie streaming services soon.

DannyB (profile) says:

Why Hollywood as We Know It Is Already Over

Why Hollywood as We Know It Is Already Over

With theater attendance at a two-decade low and profits dwindling, the kind of disruption that hit music, publishing, and other industries is already reshaping the entertainment business. From A.I. Aaron Sorkin to C.G.I. actors to algorithmic editing, Nick Bilton investigates what lies ahead.

A few months ago, the vision of Hollywood’s economic future came into terrifyingly full and rare clarity. I was standing on the set of a relatively small production, in Burbank, just north of Los Angeles, talking to a screenwriter about how inefficient the film-and-TV business appeared to have become. Before us, after all, stood some 200 members of the crew, who were milling about in various capacities, checking on lighting or setting up tents, but mainly futzing with their smartphones, passing time, or nibbling on snacks from the craft-service tents. When I commented to the screenwriter that such a scene might give a Silicon Valley venture capitalist a stroke on account of the apparent unused labor and excessive cost involved in staging such a production—which itself was statistically uncertain of success—he merely laughed and rolled his eyes. “You have no idea,” he told me.

[ . . . rest omitted . . . ]

PaulT (profile) says:

Re: Why Hollywood as We Know It Is Already Over

“With theater attendance at a two-decade low”

Where are they getting those figures from, I wonder. According to Box Office Mojo, admissions for 2016 were higher than in 2014 and 2011, while 2015’s higher sales are easily explained by The Force Awakens http://www.boxofficemojo.com/yearly/.

Cowardly Lion says:

Re: Re: Re: Why Hollywood as We Know It Is Already Over

Hmmmm. I’d agree 100% that the industry needs to change, it has to. But I’d be a little leery of that 2-decade low figure. Sure it’s anecdotal, but I go to the cinema once, maybe twice a month, and I’m seeing fair and rising numbers of people. It looks a little like there’s a mini-renaissance thing going on. At least here in Europe.

Moana f’rinstance was practically a full house, in it’s second week.

Paul Clark (profile) says:

Re: Why Hollywood as We Know It Is Already Over

Just looked at the real numbers. 2017 was the best year ever for Hollywood box office for total gross. Ticket sales are down. That might have something to do with the ridiculous price of going to a movie.

So the industry has a practice of premium pricing that has been done properly.

Don’t babble BS because you industry is screwing over some of it customers.

Anonymous Coward says:

for many years, the MPAA & RIAA have stupidly believed that if you could kick people off the internet (completely) if they’re caught infringing three times, that would magically make piracy go away.
Well they do hate the Internet, and if they can’t kill it, or turn into cable TV v2 by attacking service providers, the backup plan was to kill it by kicking everybody off of the Internet.

Mike Masnick (profile) says:

Re: Re:

Hilarious article from Mike Masnick- a guy that doesn’t even use Netflix.

I don’t use Netflix because I don’t watch very much TV, so it’s not worth it to me. At some point in the future I fully expect to subscribe though. When I have more time.

We all know what he uses, don’t we? ;>

I am curious what you think I use. I’m guessing you think I’m pirating stuff, but that’s not even close to true. I’ve said it before and I’ll say it again: I’ve never downloaded unauthorized music or movies from the internet. I’ve taken some DVDs out of the library lately. And also rented something from FandangoNow. But that’s basically been the extent of my media diet. Again, the issue is one of time, mainly.

Why do you insist on living in the stone age, Mike?

Well, you know, if I didn’t have to spend so much time correcting trolls who make stupid assumptions, perhaps I’d have more time to watch shows on Netflix or something.

That Anonymous Coward (profile) says:

Dateline: Hollywood.

Today the major players in the industry are pleased to announce their new commitment to Lioekans v3.
This magical program will end piracy as we know it, with better success the more money we pour into it.
With our best years ever, recycling trite crap to maintain copyrights, we are sure that this time when we pour millions into this program all piracy on the planet will cease.
We are sure that even though we are paying this new round of funding into a program run by those who failed us previously, this time it’s REALLY gonna work. We asked our accountants to look it over, and they tell us that it won’t really cost us anything, which will be good considering the huge losses we have on that Harry Potter franchise.

We look forward to President Trump signing an Executive Order allowing us to create our own special legal framework where the evidence ‘of we said so’ is all that is required to kick people off of the internet & pay us the thousands they will be save on their internet connection bills.

We expect minor resistance from people claiming that this might deny citizens internet access in areas where there are limited providers, but they shouldn’t have had a suspicious IP address we are sure cost us $22 Trillion dollars.

Along with this we plan to charge streaming services more to offer our content, because with no other legal alternatives we have them by the balls.

Lioekans v3 ™ is a registered trademark of ‘We can’t believe these morons keep paying us, LLC.’ and is no way affiliated with Snakeoil v2 ™ a registered trademark of ‘How can people this stupid still have money?, LLC.’

Dan (profile) says:

Streaming sites made that whole system too difficult

I think the rise of streaming websites is what really killed this. Imagine the discussion with the MAFIAA and the consumer…

MAFIAA: You have been caught watching our product, when your not supposed to.

J. Q. Public: But I only watched it on this website.

MAFIAA: That website is not an authorized provider.

J. Q. Public: Ok, how do I tell a website that is authorized by you, so I can stay honest.

MAFIAA: Um well, there isn’t really a good way. It’s a lot like porn. You know it when you see it.

Can you imagine how the whole ‘purposeful infringement’ thing would be thrown on it’s ear? That is a precedent can of worms that no one in the MAFIAA wants opened. They will have to regroup now.

Anonymous Coward says:

The entertainment industries ade, by default greedy lying assholes. The bigger issue iz that they have too many politicians in their pockets who will do what they are told, evev when they know the info given is lies!
Money wise, the industries havent lost a penny. Their problem, as always, is the attitude of wanting to hold back progress. So, while they are still making the same sales and profits from the old sources, they expect people to then buy the same thing again from the new sources! Duh!! Was never gonna happen and because it didnt, the industries switched the lack of new sales to be losses and the politicians and law makers blindly accepted the industries lies! The problem that still exists, all be it not here, at least until some other stupid, citizsn hurting plan comes out, is that, in its totally misguided effort to please the entertainment industries, at tax payers expense, the UK has taken over as the head asshole of the industries protectors and refuses to see that what it is doing is even greater harm than doing nothing. What hasnt been shown yet is the person in the UK government who is behind the scheme and what encouragement was received. I bet eventually it will though!

Anonymous Coward says:

Freedom of Information

There are regulations which says you can’t restrict access to public records, which I can’t find right now.

If an agency refers everybody to the internet for a major portion of their public records, and citizens are denied access to the internet, then that is a denial to public records, and also to gov. services.

The same is true for denying access to the public library computers just because you have an unpaid fine on your books or movies. But libraries tie these privileges together illegally.

I have gone into a Welfare office and asked to see the child welfare guidance manual, and they denied me access. They said to go across the street and look it up on the library computer. If I had an unpaid fine, then I would not be able to access it. If I was from out of town, I wouldn’t be able to access it either, if I didn’t have a library card.

This is not right.

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