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.

Reader Comments

The First Word

You know, I'd have a lot more sympathy for copyright holders if they didn't do asinine stuff like invasive DRM in video games that result in legit customers being the ones who are inconvenienced, while the pirates merrily play without a problem.

And I know for a fact that a lot of people out there reason, "If I'm going to be treated like a thief regardless of what I do, I might as well be a thief so that at least I'll be suffering for a good reason".

Just saying... treating your paying customers like dirt on the assumption that they MIGHT be copyright infringers isn't the best idea to do good business. In fact, it may be what drives people to piracy in the first place. Remember the Assassin's Creed II debacle on PC, where legit copies didn't work at all for days because the server was down and the game had always-online DRM that refused to boot the thing up unless you were connected? Yeah, lots of people pirated that game simply to PLAY it since their LEGIT copy was basically an useless coaster.

I'll have more respect for copyright holders' side of things when they stop doing stupid shit like this. And while we're at it, drop prices, too. I end up buying games secondhand because they are so grotesquely overcharged nowadays that I'd need to have Bill Gates's bank account to afford this hobby. That's not cool, broseph. Why do you think people buy tons and tons from Steam and Good Old Games? Because they are cheap and affordable, offer good consumer service and don't force invasive DRM down your throat like you're a cheap porn actress in a Rocco movie.

Nuff said.
—Anonymous Coward

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  1. identicon
    Anonymous Coward, 27 Jan 2013 @ 12:15pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    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.
The Last Word
"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.

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