ISP Accused Of Using One Unsubstantiated Strike From The ESA To Close Down Account

from the one-strike dept

Wed, Aug 4th 2010 6:34am — Mike Masnick

Forget "three strikes," according to some folks, there are ISPs using only a single claim of copyright infringement to kick people off their network. Reader Dez submits a story of a woman who apparently lost her ISP account after the Entertainment Software Association (ESA) sent a single complaint about copyright infringement on her account -- a claim which she insists is bogus:

And then today I get a call from whoever last bought our account saying that they turned our Internet connection off because they received a notice from the Entertainment Software Association that claimed that we had pirated software.

...which is funny because the only thing I have torrented in the past year is Ubuntu. You know, Linux. Freeware Linux.

Needless to say she's not happy. She apparently called the ESA, and they didn't seem to believe her:

And also, fuck the Entertainment Software Association and your phone guy who didn't want to believe that wardriving is a real thing or that perhaps one of our neighbors was using our wifi while I didn't have our router locked down (while setting up the PS3 on the network), or even when it was (it's really not that hard to hack a router).

Now, obviously, this is just one side of the story, but it does seem troubling that an ISP might be kicking people off with no apparent recourse after a single accusation (not conviction) of copyright infringement. Has this happened to anyone else?

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Filed Under: copyright, due process, one strike
Companies: esa

43 Comments

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designerfx (profile), 4 Aug 2010 @ 6:48am

go websense?
of course, clearly websense is being impacted by this. somehow their filters say that betweengirl's website fits in this category:
Reason:Matched categories:
Sex
Sites that depict or graphically describe sexual acts or activity, including exhibitionism; also sites offering direct links to such sites.
URL:http://www.betweengirl.com/2010/08/isp-bullshittery.html

Apparently bullshittery in the subject line means it's a sex site!
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Dark Helmet (profile), 4 Aug 2010 @ 6:50am

Re: go websense?
Hmm, it's not just WebSense. Barracuda appears to categorize it similarly:

"The link you are accessing has been blocked by the Barracuda Web Filter because it contains content belonging to the category of: Porn"

And I didn't even use your link, just the domain name....
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Mike W, 4 Aug 2010 @ 6:59am

Re: Re: go websense?
SmartFilter lets it through just fine.
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Ima Fish (profile), 4 Aug 2010 @ 7:01am

If she's torrenting linux, they probably consider her a bandwidth hog and they were probably very glad to get rid of her.
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Dark Helmet (profile), 4 Aug 2010 @ 7:03am

Re: Re: Re: go websense?
I know Barracuda is pretty aggressive with their default categories. For instance, it considers my Lulu link to my book "Social Networking". I can't imagine how they figured that one....
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PikaPikaChick, 4 Aug 2010 @ 7:18am

More of my side
Heh... sorry about the filter catches. If you Google "between girl" it comes up with what you'd obviously expect so my blog gets lumped right in there with them.

I wrote that post in a fit of rage and may not have told the complete story. I called my ISP to see what could be done. They told me to call the ESA. "...and then what?" I asked. The ISP guy was very short with me and basically just told me to call them.

So I did. The ESA guy said that normally ISPs just send a warning on a "first offense". So I asked him, "What now? I just call my ISP back and tell them you said this and they're going to take my word for it?" He basically shrugged over the phone.

Knowing that my ISP was already unhelpful, rude, and accusatory, I simply called them back and canceled my account.

Everyone I spoke to (or left messages for me) spoke to me in an accusatory, rude tone and at no point was I asked for any explanation or my side of the story. In fact, the ESA guy never even took the case number that I was given. THAT'S what really got me up in arms.
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Dark Helmet (profile), 4 Aug 2010 @ 7:27am

Re: More of my side
Did you think to ask ESA what evidence they had that you were downloading pirated software, or even what that software was? I'd hate to think that they were just pointing to an account associated with bittorrent activity and shouting, "Get her!"
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NullOp, 4 Aug 2010 @ 7:44am

Stupid
Bring legal action against ESA for their actions. Unfortunately lawyers fight lawyers best!
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PikaPikaChick, 4 Aug 2010 @ 7:45am

Re: Re: More of my side
To be honest I didn't even have an opportunity to ask. The ESA guy seemed to want to get me off the phone as quickly as possible. At that point I was so annoyed I just had to end the call. And besides that, I know what I've torrented. My husband is awesome but doesn't even know what torrenting is. So unless my 16-month-old daughter has figured out how to use the computer at night while we're asleep, I'm confident the alleged infringement didn't come from our house.

Then again, the dog has been acting kind of suspicious lately....
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PikaPikaChick (profile), 4 Aug 2010 @ 7:48am

Re: Stupid
Eh, it's really not worth my time. And I didn't give my ISP a chance for redemption. After having my account bought out over and over again over the course of 10 years and never really knowing who I was paying for Internet service I was ready to be done anyway. I'm now with a local company with great service and reviews.
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mike allen (profile), 4 Aug 2010 @ 7:52am

Re: Re: More of my side
I'd hate to think that they were just pointing to an account associated with bittorrent activity and shouting, "Get her!"

but they probably are, with what has been reported of late the copyright people in the UK wanting to stop all streaming.
wanting both UK /SA to stop all creative commons and freeware (linux) i would not put it past them to take a really aggreasive stance and suie anything that move in those directions.
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cc (profile), 4 Aug 2010 @ 7:56am

No need to go easy on "the ISP". They were assholes, so don't neglect to mention who they are: USFamily.Net
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Dark Helmet (profile), 4 Aug 2010 @ 7:57am

Re: Re: Re: More of my side
"Then again, the dog has been acting kind of suspicious lately...."

Upgrade his firmware to include the latest phone-home technology straight to the FBI and MI6. He'll be fine....
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Anonymous Coward, 4 Aug 2010 @ 8:03am

Qwest does this. Stay away from them if you have a choice.
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Dez (profile), 4 Aug 2010 @ 8:14am

USFamily.Net Policies
When I originally saw her story I immediately went to USFamily's website to see what their policies were. Having met Pika in person and knowing her through Twitter and her blog I knew she wasn't one to spout off nonsense and rarely rants as she did in this case. What I found in the policies section made me laugh and disturbed me as well. Here is their use policy, specifically the "Civil Discourse" section: Careful or they'll tell your mom.
"Any individual unable to maintain a civil communication or demeanor when in contact with USFamily.Net is asked to please take their business elsewhere. Any uncivil or obnoxious behaviors towards USFamily.Net employees can and most likely will result in immediate disconnection. Our support department is happy to attempt to help solve any technical or billing issues however USFamily.Net employees are not paid or trained to deal with difficult people, are not responsible for your behavior, equipment, telephone system connections, or failure to read and understand this contract, the priority system or the differences in our plan offerings including Unlimited (inexpensive shared) versus Dedicated (expensive always on) services. Employees are authorized to disconnect or ignore support calls or e-mails containing profanity or other uncivil communications or behaviors. We reserve the right to tell your mother."
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Berenerd (profile), 4 Aug 2010 @ 8:42am

Re: USFamily.Net Policies
Would so call them and just cuss them out. Then sue them for discrimination of a turrets patient.

On the other hand, you should be glad to be rid of them. People say cuss words in this blog all the time. you might get perma-banned from your ISP for that...you know cause you control what others post.
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designerfx (profile), 4 Aug 2010 @ 8:42am

Re: Re: go websense?
at some point I wonder if they all are lazily using some other list managed by some filter group.
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Anonymous Coward, 4 Aug 2010 @ 8:43am

Had a DSL company that did something similar in the late 90's. It also went through buyouts (though only two buyouts, but the service was getting progressively worse.) I was commenting on shacknews.com, a game enthusiasts' site, and we were all talking about our ISP's. I was going on and on how my ISP sucked, when a received a new e-mail, threatening to disable my account for my comments (Wish I'd saved it). The ISP had been searching the web for anything related to them, they found my username on shacknews matched the username on my DSL account, and sent me an e-mail.

I of course immediately terminated the account and signed up with cable (Excite@Home I believe it was called, which later became AT&T and them Comcast) but they lost potentially thousands in revenue from that single e-mail.
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TtfnJohn (profile), 4 Aug 2010 @ 8:48am

Let me see here....
Ahh, bittorrenting Linux, let's see now. ESA jumping up and down, left and right and sideways in all kinds of directions.

Sounds familiar.

I'm what's called an early seeder for the Mandriva distro so with each release there's a hell of a spike in my torrent use.

Couple of years ago I got a call from an ISP I used then to ask about the traffic spike, well, by then it had been 5 weeks of slow speed seeding so it was hardly a spike by then. Told the service rep who, at one point asked me if Mandy was any good and proceeded to join the leechers as we chatted. We had a pleasant enough chat and left it at that.

Couple of days later I got an email from the tech who told me that he found the problem and and it was a package in the distro called, ready?, Tux Racer, which has been there since forever, which, it seemed someone had complained about violating their copyright or whatever. No packet inspection or anything like that by the ISP, just a friendly and very amused email, tech to tech at what kicked everything off. Oh, and he loves Mandy.

Can't say it's the same thing but it does raise alarm bells. Tux Racer, for the uninitiated is a game that's released under GPL. Not the sort of thing that would interest a hard core gamer but it's there.

All in all I agree with PikaPikaChick. She's best to move on.

Over the years I've come to regard certain ISPs with suspicion and even the name of this one raises that suspicion as does the working of the Civil Discourse section of their TOS. That they found it necessary to write this tells me they have brought some "uncivil" discourse on themselves with high handed, ignorant decisions like this. Oh, and do tell my mother!

Bankruptcy awaits.

Though it doesn't bode well for what the ESA thinks they can and cannot get away with now and in the future.
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senshikaze (profile), 4 Aug 2010 @ 9:07am

This is utter bullshit. Is the ESA attacking Free Software now? (btw: Linux isn't freeware, it is free software (http://en.wikipedia.org/wiki/Freeware)) I hope the FSF and EFF get wind of this start a major legal smackdown.
Free software is not illegal.
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Dark Helmet (profile), 4 Aug 2010 @ 9:14am

Re: Re: Re: go websense?
Only if they're flatout lying to their customers and partners. We work really closely w/Barracuda, and their categories are supposed to be base of several blacklists built by open source communities (years ago), but then they're now supposed to be updated and influenced by the thousands of devices they have in the field and the way that individual managers are categorizing sites....
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Anonymous Coward, 4 Aug 2010 @ 9:47am

They just got websensed for the string "tween girls" in the URL. Try to go to a world cup article with the word "vuvuzela" in the URL, bet you get blocked for P2P / bittorrent because of the string "VUZE"
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Anon, 4 Aug 2010 @ 10:22am

And she is very well-spoken; an amazing command of the English language and polite conversational skills.
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Spaceman Spiff (profile), 4 Aug 2010 @ 10:25am

Best to vote with your pocketbook
When I get cruft from ISP's about this sort of cruft, the first thing I do is cancel my account and get another one from another provider. Also, now I have a business account because of my consulting work. It costs more, but I don't get corned by the ISP. Seems they don't care about their consumer customers, but they also don't want to piss off the business community.
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an isp employee, 4 Aug 2010 @ 10:28am

movies
I know that when we (an ISP) are sent emails from Warner Brothers, Paramount, MediaSentry, etc, it will list the following in the email

(I have changed all of the personal information such as IP, time, date, hash numbers etc so I can show this.)

An exact copy is emailed to the customer or snail mailed.

The second time, it is emailed with a warning.

The third time, the account is disconnected.

Subject: Case ID 0000000001 - Notice of Claimed Infringement
RE: Unauthorized Distribution of the Copyrighted Motion Picture Entitled (Whatever the name is)

Dear Network Administrator:

We are writing this letter on behalf of Whatever movie company ("Whatever movie company.").

We have received information that an individual has utilized the below-referenced IP address at the noted date and time to offer downloads of copyrighted motion picture(s) through a "peer-to-peer" service, including such title(s) as:

Whatever the name is

The distribution of unauthorized copies of copyrighted motion pictures constitutes copyright infringement under the Copyright Act, Title 17 United States Code Section 106(3). This conduct may also violate the laws of other countries, international law, and/or treaty obligations.

Since you own this IP address (169.127.44.99), we request that you immediately do the following:

1) Contact the subscriber who has engaged in the conduct described above and take steps to prevent the subscriber from further downloading or uploading Whatever movie company content without authorization; and

2) Take appropriate action against the account holder under your Abuse Policy/Terms of Service Agreement.

On behalf of Whatever movie company., owner of the exclusive rights to the copyrighted material at issue in this notice, we hereby state, that we have a good faith belief that use of the material in the manner complained of is not authorized by Whatever movie company., its respective agents, or the law.

Also, we hereby state, under penalty of perjury, under the laws of the State of California and under the laws of the United States, that the information in this notification is accurate and that we are authorized to act on behalf of the owner of the exclusive rights being infringed as set forth in this notification.

Please direct any end user queries the following.

Whatever movie company
Attn: Worldwide Anti-Piracy

Kindly include the Case ID 0000000001, also noted above, in the subject line of all future correspondence regarding this matter.

We appreciate your assistance and thank you for your cooperation in this matter. Your prompt response is requested.

Respectfully,

Enforcement Coordinator
Whatever movie company

------------------------------

INFRINGEMENT DETAIL
--------------------

Infringing Work: Whatever the name
First Found: 11 Aug 2010 17:21:39 EDT (GMT -0400) Last Found: 11 Aug 2010 19:21:39 EDT (GMT -0400) IP Address: 169.127.44.99 IP Port: 50358
Protocol: BitTorrent
Torrent InfoHash: 66693AA57A8A917123453456799CEEC030B6CA522
Containing file(s):
Whatever,the,names.DVDRip.XviD-DiAMOND.[UsaBit.com].torrent (735,695,665 bytes)
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Rose M. Welch (profile), 4 Aug 2010 @ 10:43am

Re: Best to vote with your pocketbook
I'd like to vote with my pocketbook, but it's not big enough to purchase politicians, so I'm stuck between crappy DSL and mediocre cable, from two companies that suck.
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IshmaelDS (profile), 4 Aug 2010 @ 11:21am

Re: Re: Re: go websense?
Watchguard's Weblocker service blocks it.
'Adult/Sexually Explicit'
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logic error, 4 Aug 2010 @ 11:27am

well my internet is not that fast (120 KBps down 20 KBps Up) but its free, I leach off the library, only cost me a High Gain antenna and a 1 watt wifi g transceiver ($260 at the time of purchase 2007)
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senshikaze (profile), 4 Aug 2010 @ 12:29pm

Re: movies
my reply:

Re:case 000000001
Dear F-cktards,
Kindly go f-ck yourselves.
Respectfully,
A Civilly Disobedient Citizen.

(replace "-" with appropriate letter)
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Anon, 4 Aug 2010 @ 1:37pm

Re: movies
So after you terminate their Internet access, you send an email to notify them?
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Anonymous Coward, 4 Aug 2010 @ 2:02pm

Re: movies
I've seen these kinds of notices before in my field as well. But look at the thing. Not only does it not come from the holder of the rights--rather, a representative--but also it claims that they "have received" information, but they don't say who from nor whether it's been vetted, nor whether they have any indication whatsoever attesting to its accuracy. In every single one of these cases that I've investigated, not only was the IP address they gave me not in use at the time, but it had in fact never been used. So where's the actual hard evidence? Anyone can arbitrarily jot down an IP address, file name, protocol and time stamp. Where's the actual packet capture? Where are the headers? Are ISPs really sending warnings and then disconnecting people without doing any kind of confirmation? Do the companies that receive these notices from strangers (from whom they receive nothing of value) and then forward them to actual paying subscribers with threats of disconnection do anything at all to make sure it's legitimate?

I know that it's not the responsibility of the staff at ISPs to sort out the truth from the lies, but frankly it's not the subscribers' responsibility either. Fortunately we already have a perfectly adequate framework in place: representative of rights-holder suspects infringement, then goes to court to get an order for the ISP to provide one specific subscriber's name per individual accusation, ISP provides the name, representative of rights-holder files a suit and hopefully has enough evidence, subscriber responds, court decides. It's a perfectly fine process that respects everyone's rights and (nearly) balances all interests. This disconnection nonsense has to stop. If a ISP is not equipped to verify that the infringing traffic took place, then why is it willing to take action to mitigate it? Why not just say "prove it or GTFO"?
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an isp employee, 4 Aug 2010 @ 2:36pm

Re: Re: movies
no.. it is terminated after the 3rd email as stated above
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an isp employee, 4 Aug 2010 @ 2:44pm

Re: Re: movies
I understand. It could be 'faked' or made up. This isp does happen to verify that the infringing traffic took place before sending an email like this.

The email is sent from verified sources. (Not just 'some' random email - There is more indepth in the process between the isp and the company (the source) sending the email.)

The email has information to contact the source, and all information about how / what is used is stored there so if needed, it can be presented in a court of law. This would include the evidence.

A verification is made before it is sent
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Anonymous Coward, 4 Aug 2010 @ 3:11pm

Re: Let me see here....
Bankruptcy awaits.

Nah, that's what we've got bailouts for these days: So you run your business as crappily as you want and the gov't can then bail you out.
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Anonymous Coward, 4 Aug 2010 @ 4:25pm

Re: USFamily.Net Policies
F. dude, I'm screwed because I'm a foul mouthed F. I could never do business with that company.

Thanks for sharing.
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Anonymous Coward, 4 Aug 2010 @ 4:31pm

Re:
Leechs should die!

Die leech! Die leech!

Just kidding, I'm remembering the good old times in the P2P forums LoL
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Anonymous Coward, 4 Aug 2010 @ 4:34pm

Re: Re: Re: movies
That is the problem right there, without any due process the account is terminated.

There was no fact finding, there was no proven infringement or anything else at that point only accusations.

Those people don't like to fallow the law, well people can play that game too.
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Anonymous Coward, 4 Aug 2010 @ 4:48pm

Strike me if you can, that sounds like a good name for a video doesn't?
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abc gum, 4 Aug 2010 @ 6:04pm

Re: Re: Re: movies
"This isp does happen to verify that the infringing traffic took place before sending an email like this."

Question; What is verified and how is it accomplished?

I'm guessing that the verification is simply looking in the log and finding who was using that IP at that time. I doubt the infringement is actually verified as this would require time and effort, something which is not cost effective. They might say use of a particular protocol or joining a p2p network is "proof", but that is a load of bull.
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nasch (profile), 4 Aug 2010 @ 6:32pm

Re: More of my side
Torrenting aside (sounds incredible frustrating), I didn't see anything at all pornographic on the first page of results for "between girl". And your blog appears to be about food. Still no idea where anybody's getting this idea.
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senshikaze (profile), 5 Aug 2010 @ 6:00am

Re: Re: Re: Re: movies
technically, an ISP doesn't have to have proof. Internet/phone/tv service isn't an inalienable right.

Of course it would be nice if ISP put up a moderate amount of resistance for their customers, but they seriously would rather lose 1000 customers than have to go to court over a supposed infringement once.
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abc gum, 5 Aug 2010 @ 6:51am

Re: Re: Re: Re: Re: movies
"technically, an ISP doesn't have to have proof. Internet/phone/tv service isn't an inalienable right."

That is debatable.

In addition, if they want to charge an ETF, they will need something more than "a little birdie told me so".
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Anonymous Coward, 4 Dec 2010 @ 7:17pm

Re:
two-three home computers running vista or windows 7 can easily use as much bandwidth just to install updates.
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