With various ISPs getting ready to kick off the entertainment industry's "six strikes" plan to send warnings to users if they're accused of infringement, leading up to "mitigation" efforts, in which users can find their accounts downgraded or limited for multiple accusations (not convictions), some are exploring the specifics of the system. Annemarie Bridy from the University of Idaho recently took a look at the six strikes plan and compared it to five basic "norms"
that are "central to consumer protection." The report is thorough and balanced, and finds that the plans do okay on some factors, but has some serious concerns about other areas:
On the negative side, there are insufficient safeguards in CAS to insure the accuracy of allegations of infringement, the fairness of the independent review process, and the independence and expertise of the various “independent experts” the MOU requires CCI to consult. Moreover, there is no way for the public to know whether the program is meeting the goals established for it in the MOU.
Those all seem like pretty big "negatives." The accuracy of the allegations is a huge one, since (once again) the whole system is based on allegations
and not convictions
. This has been my concern with all of these plans since the beginning. Generally speaking, here in the US, we tend to believe that you have to actually be found guilty of violating the law before being punished as if you did break the law. But the six strikes system flips that on its head. Those accused have the burden almost entirely on them -- and (even worse) are given limited defenses
which block certain key things (such as claiming that a work is in the public domain). The report highlights this concern:
The Copyright Act provides a range of defenses and exceptions to copyright infringement. While the exclusive rights of copyright owners are fully enumerated in just two sections of code, section 106 and section 106A, the following fifteen sections—107 through 122—enumerate a wide range of limitations and exceptions that are crucial for maintaining a balanced copyright system. CAS, by contrast, permits a subscriber to raise only six defenses, and only two of those—fair use and publication before 1923—are grounded directly in copyright law.
It is true that many of the defenses and exceptions provided in the Copyright Act are not relevant to the lion’s share of infringement claims arising from P2P file sharing. But CAS, on principle, should permit a subscriber to raise any relevant defense that is cognizable under the public law of copyrights. There are, for example, several reasons for which a work can be in the public domain that are unrelated to publication before 1923, which is the only out-of-copyright scenario the MOU contemplates. Works in the public domain include those published between 1923 and 1963 whose copyrights were not renewed, works published before 1989 without proper copyright notices, and most works created by the U.S. government. The rules concerning lapse and loss of protection are complicated, even byzantine, but they are nevertheless the rules. If the substantive law of the independent review under CAS is U.S. copyright law, as it should be, then all relevant provisions of U.S. copyright law should be the law of CAS.
Putting the burden on the accused is also a major concern which basically goes against everything we believe in the US about where the burden should lie:
In civil suits for copyright infringement, the burden of proof is on the plaintiff, who must prove both ownership of a valid copyright and infringement of an exclusive right granted by section 106 of the Copyright Act. CAS alters this allocation of burdens by making it the responsibility of the accused (i.e., the recipient of a fifth or sixth copyright alert) to raise and prove a defense to infringement in order to avoid a sanction. In addition to shifting the burden of proof with respect to infringement, the MOU creates a presumption of accuracy in favor of the copyright owner, as discussed above in Part III.B above, with respect to both the capture of IP addresses and the identification of copyrighted content. The presumptions of accuracy attach under the MOU as long as the copyright owners’ methods of collection and identification have not been found “fundamentally unreliable” by a technical expert. On the strength of these presumptions, notices from the complaining copyright owner are treated as proof of infringement sufficient to trigger the imposition of a sanction. Such treatment was criticized in Corbis Corp. v. Amazon.com, a case interpreting the repeat infringer provision of the DMCA.
The allocation of burdens built into CAS is troubling because it conflicts with a basic principle underlying our justice system—that a person accused of having engaged in illegal conduct is presumed innocent until proven guilty in a court of law.
Of course, they can get away with this because the whole thing is supposedly a "voluntary" agreement between private parties (which ignores the government's close involvement in the negotiations). Either way, it seems to just add more questions about why ISPs were willing to agree to such a plan, when it seems to be at odds with the law itself.