Did The Entertainment Industry Backdoor In Forcing ISPs To Kick People Offline, While Claiming It Did Not?

from the sneaky,-sneaky dept

Fri, Jul 8th 2011 11:46am — Mike Masnick

Never underestimate just how sneaky entertainment industry lobbyists can be. They're able to push through all sorts of things that appear innocuous at first, but down the road turn out to be anything but. The ProIP Act (not to be confused with the PROTECT IP Act) is a perfect example of this. It had all sorts of awful provisions, originally, which lots of people protested about. But that allowed the industry to slip in a single "innocuous" provision almost entirely unnoticed. The provision that allowed feds to seize and forfeit "property" used for infringement. This provision got very little scrutiny, and the short discussions that were had about it concerned the ability of the feds to seize things like CD and DVD burners in commercial counterfeiting operations. Not something many people would have an issue with. But, instead, that provision has been used to justify Homeland Security's outright seizure of domain names under very questionable legal theories.

So forgive us for not taking some of the comments from the entertainment industry at face value. We've been burned many times before. As we noted in our post about the new "voluntary" agreement between the entertainment industry and top US ISPs, while the report tries to bend over backwards to insist that the "graduated response" plans don't include disconnecting from the internet, this really isn't true. First, it does push ISPs to cut people off from the web, which for most people is their internet access.

But, it gets even more pernicious than that. The EFF is pointing out a questionable bit of the agreement, which suggests the entertainment industry may be knowingly backdooring disconnections into the agreement by misinterpreting a section of the DMCA (which they also helped write):

The materials emphatically state that ISPs are not required to terminate subscriber accounts as a condition of the agreement with the content industry and that the collaboration does not amount to a �three strikes� regime. But the materials also take pains to assert that the DMCA �requires that the ISPs have in place a termination policy for repeat copyright infringers as a condition of availing themselves of the Act�s �safe harbor� provision.� Translation: The content industry is staking its position that ISPs that don�t terminate subscribers after 5 or 6 alerts will lose their DMCA protection. There are plenty of arguments for why that position is wrong; given that an alert represents nothing more than an allegation untried by a court, we think loss of Internet access would be a draconian measure that Congress did not intend. Nonetheless, it may take an ISP willing to litigate the issue to make the argument.

In case it's not clear, the EFF is showing language that clearly suggests the entertainment industry believes that if ISPs don't kick off those accused (not convicted) of repeat infringing, they lose their own safe harbor protections under the DMCA. And, as we've seen with the way DMCA takedowns work, to nearly everyone, the threat of losing safe harbor protections is the equivalent of a requirement. No company wants to increase their liability, and thus, to avoid a potential claim that failing to kick a user off violates the DMCA, there seems like a good chance most of these ISPs will including kicking people offline entirely as an option here.

The obvious retort from the industry will be that this part is no different than what's been said in the past, because the DMCA has been in place for over a decade. However, while it may be true that the DMCA has been in place that long, no copyright holder has tested this theory that not kicking people off violates the DMCA. By putting it in this document, the entertainment industry is effectively putting ISPs on notice: saying that they may now start focusing in on this.

Pretty neat trick, huh? Claim upfront that the plan has no disconnections, while on the backend include language and a statement that clearly alerts ISPs that if they don't disconnect, they can face much greater liability.

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Filed Under: copyright, entertainment industry, graduated response, isps

95 Comments

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Anonymous Coward, 8 Jul 2011 @ 12:00pm

Queue "The party is ending" comment in 5...4...3...
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Ima Fish (profile), 8 Jul 2011 @ 12:02pm

As far as I'm concerned, most ISPs want the ability to kick so called pirates off the net.

First, most of the major ISPs have their TV and movie content to protect. If Comcast, for example, notices users downloading shows from the Pirate Bay instead of paying for high priced cable, they want to be able to put the fear of god into them and threaten to kick them off.

Second, pirates use more bandwidth than "normal" users. ISPs would love to dump them.
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Hothmonster, 8 Jul 2011 @ 12:03pm

"Nonetheless, it may take an ISP willing to litigate the issue to make the argument."

Google internet can not get here fast enough.

Really? "We don't require ISPs to disconnect you we just believe that if they don't we can sue their pants off." These industry types seem like real stand up guys, im gonna run out and rebuy a some Beatles albums or other back-catalog stuff.
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Hothmonster, 8 Jul 2011 @ 12:06pm

doubtful
Think about the millions of families with the full phone/internet/cable package and one of their kids downloads "illegal" content. They do not want to lose that business.

Yeah the 20-30yr old kid who lives alone or with one other person who only pays for internet and eats up more bandwidth than the rest of their block they probably wouldn't mind getting rid of, but if they really wanted to their TOS already lets them so I'm not sure they are in a hurry to lose any subscribers.
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Josh in CharlotteNC (profile), 8 Jul 2011 @ 12:14pm

Re:
As far as I'm concerned, most ISPs want the ability to kick so called pirates off the net.

Yes, but they want plausible deniability that it wasn't their choice to do it. So the obvious backlash against the disconnection can be laid at the feet of RIAA or some other industry front group everyone already hates.
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Ima Fish (profile), 8 Jul 2011 @ 12:14pm

Re: doubtful
I'm not saying they won't use this power judicially. When ISPs notice people using their internet services without also buying their advanced cable services, they'll be much more willing to threaten them with illegal activity.

But because it's "really" the copyright industry's fault, the ISPs look like the good guys.
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Ima Fish (profile), 8 Jul 2011 @ 12:17pm

Re: Re:
Exactly, that's why they want this power. They can force users to pay for their high profit TV and movie services and kick off the deadbeats who won't. And they can pretend it's not their fault.
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Anonymous Coward, 8 Jul 2011 @ 12:18pm

Not Forced?
The "not forced" claim sounds like the slave master that claims that his slaves aren't forced to work: They can either work or face the consequences (whipping), their choice.

"Not forced". If there's a punishment or negative consequence, then it's forced.
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Anonymous Coward, 8 Jul 2011 @ 12:21pm

Re: Re: Re:
Exactly, that's why they want this power. They can force users to pay for their high profit TV and movie services and kick off the deadbeats who won't. And they can pretend it's not their fault.

And if they've got you in a contract, then even they can make you keep paying after they cut you off.
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Anonymous Coward, 8 Jul 2011 @ 12:23pm

Re: Re: Re: Re:
Oops.

And if they've got you in a contract, then they can even make you keep paying after they cut you off.
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Hothmonster, 8 Jul 2011 @ 12:25pm

Re: Re: doubtful
true enough
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Hothmonster, 8 Jul 2011 @ 12:27pm

Re: Re: Re: Re: Re:
this is like the 4th time in two days that someone mentioned a internet contract...where do you live? Cause I have never even had one of these companies suggest i get a contract
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Anonymous Coward, 8 Jul 2011 @ 12:28pm

We shall see...
...what happens when the children of MAFIAA executives are the ones accused of having their fingers in the cookie jar.
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Anonymous Coward, 8 Jul 2011 @ 12:30pm

I don't think the DMCA is a lie. You only have to look at YouTube to see what happens with repeat offenders. They accounts are closed.

There is potential that, at some point, the courts will look at the actions of the ISP, and decide that they are too aware of issues, are not addressing them, and as such may not have the same DMCA protections. DMCA was never intended as a way to allow long, ongoing copyright violations, even if they are done in 48 hour segments. ISPs do risk bearing some responsiblity if they keep allowing the same users to violate copyright over and over again.

YouTube made changes to it's policies to avoid this risk. Why would ISPs be any different?
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Anonymous Coward, 8 Jul 2011 @ 12:31pm

Re:
You stupid freetard. The party isn't ending. It's over. You folks are just the drunken morons that haven't figured out that you're the only ones left dancing.
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Nathan F (profile), 8 Jul 2011 @ 12:32pm

Re: Re: Re: Re: Re:
If they are not providing me with a service.. I'll be damned if I'm going to continue to pay them. If they continue to try I will notify my bank to not pay them, then they can take it up with the bank and then further with me in court. When the judge asks me why they cut me off I will tell him "Cause I was accused of something but no one ever brought me to court over it".
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Anonymous Coward, 8 Jul 2011 @ 12:34pm

Alternate reading....
By putting it in this document, the entertainment industry is effectively putting ISPs on notice: saying that they may now start focusing in on this.

You do understand that this was a voluntary agreement between the RIAA/MPAA and the ISPs, right? If there is any industry whose lobbying clout and army of lawyers can trounce the content industries' it is the ISPs/Telcos. The ISPs certainly did not sign anything that they didn't completely understand or endorse.

I think the more sober reading of the provision you're discussing is that it is included in the MOU as part of the rationale for why the ISPs agreed to it. The ISPs likely included the clause to forestall any potential liability they could face for failing to abide by Sec. 512(i) of the DMCA (i.e. the requirement that ISPs have a termination policy for repeat infringers). This section of the MOU essentially says that ISPs are meeting their 512(i) obligations insofar as they are complying with the terms of the MOU.
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Rekrul, 8 Jul 2011 @ 12:43pm

Re: We shall see...
...what happens when the children of MAFIAA executives are the ones accused of having their fingers in the cookie jar.

Absolutely nothing. Since they're the ones who are behind this "agreement", they can exempt anyone they want.
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Anonymous Coward, 8 Jul 2011 @ 12:45pm

Re: Re: Re: Re: Re: Re:
I actually have a contract with my ISP Speakeasy, now calling itself Megapath due to a merger. I joined them years ago when they were pushing residential service, they have now shifted to business service but I bumped my speed about a year ago and got $20 a month off by agreeing to a 3 year contract. When I first signed up it was a 2 year contract that expired and then just went to month to month billing.

For what it is worth, there are 2 companies that I truly enjoy doing business with Speakeasy and Netflix.

With either company when I have had a problem they ALWAYS take care of it professionally and quickly.

Oh and the agreement for the contract was just a verbal agreement over the phone. I didn't need to jump through a bunch of hoops and give blood samples etc...
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Nathan F (profile), 8 Jul 2011 @ 12:48pm

Re:
There is the rub.. YouTube per the DMCA is not required to police the submissions. It is up to owners of material to be proactive and finding stuff out there. Once they do find it they can submit a DMCA notice to YouTube asking them to take it down. Only then is YouTube REQUIRED to do anything about it.

Frankly if I was in charge of YouTube and the RIAA/MPAA got the laws changed forcing third party providers to act as copyright police, I would start taking down the sites of the big RIAA and MPAA partners.. after all how am I supposed to know if they are legally allowed to post that video or song? I'm just doing my job and taking down potentially infringing material.
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Hothmonster, 8 Jul 2011 @ 12:48pm

the big difference that springs to my mind is:

If your youtube account gets closed you simply make a new one. If you only have 1 or 2 isps available to you, what do you do when you are cut off?

Also I am pretty sure I could live the rest of my adult life without ever posting to (or visiting for that matter) youtube and not be any worse off. However if I could never access the internet again my social, personal and work life would be severely crippled.

If you think I am infringing and want to punish me, take me to court, as that would be appropriate for the civil offense you are accusing me of. To take away something that many people consider a necessity over accusations is pretty outrageous.
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Hothmonster, 8 Jul 2011 @ 12:50pm

Re:
Imagine if you could never use the phone again because of the 3 prank calls you made when you were 9 and the Jerky Boys were cool.

Being 18 now and getting blacklisted from the internet for the rest of your life would be much worse(as bad?).
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Atkray (profile), 8 Jul 2011 @ 12:50pm

Re: Re: Re: Re: Re: Re: Re:
That is me with the Speakeasy, dunno why I got logged out.
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Hothmonster, 8 Jul 2011 @ 12:51pm

Re: Re:
I think the ISPs are still relying on the **AA to report infringers to them, I don't think the ISPs are required to hunt them down in this agreement.
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Anonymous Coward, 8 Jul 2011 @ 12:52pm

Re: We shall see...
Or their children - grandchildren thrown in jail?
I personally want to live to see this.
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Hothmonster, 8 Jul 2011 @ 12:53pm

Re: Re: Re: Re: Re: Re: Re: Re:
oh so this is a US company. But the contract is optional with a better rate, not required for service?
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A Pirate, 8 Jul 2011 @ 12:53pm

Erase all evidence of file sharing from your system. Get someone to help you if you don't think you can do it yourself. Best way is to back up what you want to keep, long format the drive and re-install everything from scratch.

Get a second computer. Doesn't have to be anything fancy, even an old P4 system will do. Throw a 1TB drive in it, hook up a wireless router and use that system exclusively for anything pirated. Don't ever use it to check your normal email. Create a gmail account and use that for registering on any pirate related web sites.

Deny all claims and if you get disconnected, sue for harassment. Turn over your clean system as evidence and let them try to find something to use against you. Tell them you have an open WiFi connection and it must have been your neighbors.
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out_of_the_blue, 8 Jul 2011 @ 12:54pm

What's the worry? You people keep saying there's no teeth in these,
that you'll just copy as much as you please. But every story here is a LOSS for you who say the outdated industry is just going to have to change its "business model". Nope, moneyed interests just near always trump popular interests.
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Hothmonster, 8 Jul 2011 @ 12:55pm

Re: Re:
If we are still drunk and dancing Im pretty that means the party isnt over yet.
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FUDbuster (profile), 8 Jul 2011 @ 12:59pm

So let me see if I understand this FUD correctly.

1. The DMCA requires that ISPs have a termination plan if they are going to have safe harbor.

2. This agreement does not include or affect the ISPs' termination plans, as the parties have explicitly said.

3. Some materials exist where the content industry reminds the ISPs about the DMCA general requirement of a termination plan.

And this is where the leap in logic occurs: "Translation: The content industry is staking its position that ISPs that don�t terminate subscribers after 5 or 6 alerts will lose their DMCA protection."

That simply does not follow. The ISPs already have termination plans in place--they already have the safe harbors. This agreement does not affect that. How could it? If anything, the fact that the content industry is not asking the ISPs to change their termination plans indicates their approval of them.

It's just more delusional FUD from the usual suspects.
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Hothmonster, 8 Jul 2011 @ 1:00pm

Re: What's the worry? You people keep saying there's no teeth in these,
No the problem is the populace doesnt get interested until it effects them.

Before it goes into effect its just a few hundred people spread over the vast internet worrying quietly amongst themselves and a even smaller business interest throwing money and lies at people in power.

Eventually after the populace gets interested they clamor and if its truly only good for a small rich interest the masses will win.

Of course we used to rely on national news to alert us to these issues BEFORE they effected us, now they tend to mislead the populace so they dont realize the truth till its kicking them in the brown eye.
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harbingerofdoom (profile), 8 Jul 2011 @ 1:25pm

Re: Re: Re: Re: Re: Re:
i have had contracts with every single provider i have had since i started using broadband in 2001.
different dsl providers, different cable providers.... they have have minimum time commitments.

and im in cali so im not in some weird remote place.

.....well.. okay. im not in a remote place.
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The eejit (profile), 8 Jul 2011 @ 1:26pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Think of it as a contract, but with less 'legal' and more 'ease'.

It's how I'm paying only around �20/month for my upto 30Mb of speed.
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Anonymous Coward, 8 Jul 2011 @ 1:27pm

Re:
Mike Masnick needs to show us where on the doll the entertainment industry touched him...
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Another AC, 8 Jul 2011 @ 1:27pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Actually many of the Service Providers require the contract to get bonus pricing or bundled plans. I would guess the majority of users in mid to major cities are on a contract of some sort. DO you have to sign the contract? No. However, if you don't, you end up paying up to 50% more for similar services from the provider.
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Jay (profile), 8 Jul 2011 @ 1:28pm

*sigh*

The fact that you don't see the Catch-22 fills me more with pity than any other human emotion.
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Anonymous Coward, 8 Jul 2011 @ 1:36pm

Re:
You talking to me? Explain the Catch-22 then. How does an agreement that explicitly does not affect the ISPs' termination plans or safe harbors magically somehow actually affect them?
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amish bob, 8 Jul 2011 @ 1:38pm

an accusation should not be accepted as proof of guilt by anyone in a civilized society.
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HothMonster, 8 Jul 2011 @ 1:49pm

Re:
says the goat fucker

/sarc
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HothMonster, 8 Jul 2011 @ 1:50pm

Re: Re:
I can show you on the doll where the TSA touched me
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HothMonster, 8 Jul 2011 @ 1:56pm

Re: Re: Re: Re: Re: Re: Re:
Hmm, I have switched back and forth with comcast and ATT for the last decade or so (either due to disatisfaction or moving away and moving back) and never been offered a contract rate. I live in Chicago
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Anonymous Coward, 8 Jul 2011 @ 2:47pm

Re:
The termination clause is for repeat copyright infringements, not repeated accusations of copyright infringement. But now the content industry is saying it's the same thing.
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crade, 8 Jul 2011 @ 3:17pm

Re: Re:
They also say that money would be falling from the sky if it wasn't for piracy, every living soul is stealing from them and that buying from a musician instead of from them means you are a pedophile. It's not what they say that is the problem but the fact that someone makes laws out of it.
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crade (profile), 8 Jul 2011 @ 3:18pm

Re: Re: Re:
lol, sry this got put in the wrong place somehow
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crade (profile), 8 Jul 2011 @ 3:19pm

Re: Re:
They also say that money would be falling from the sky if it wasn't for piracy, every living soul is stealing from them and that buying from a musician instead of from them means you are a pedophile. It's not what they say that is the problem but the fact that someone makes laws out of it.
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FUDbuster (profile), 8 Jul 2011 @ 3:20pm

Re: Re:
The termination clause is for repeat copyright infringements, not repeated accusations of copyright infringement. But now the content industry is saying it's the same thing.

The ISPs' repeat infringer policies are not only for those adjudicated in a court of law to be infringers. Notices of infringement trigger the policies as well. Nice try though.
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FUDbuster (profile), 8 Jul 2011 @ 3:25pm

Re: Re: Re:
From the Ninth Circuit:
Section 512(i)(1)(A) requires an assessment of the service provider's �policy,� not how the service provider treated a particular copyright holder. . . . A policy is unreasonable only if the service provider failed to respond when it had knowledge of the infringement.
Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1113 (9th Cir. 2007).

The standard is whether the repeat infringer policy is reasonable, and it's only unreasonable if the ISP fails to respond when it has knowledge of infringement.

This is why this is all FUD. The ISPs already have safe harbor, and this agreement with the content industry does not alter that in a negative way. If anything, the ISPs' repeat infringer policies will be seen as more reasonable, precisely because they include details agreed to by the content industry.
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Anonymous Coward, 8 Jul 2011 @ 4:19pm

Re:
It's just more delusional rantings from Chicken Little Masnick.
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Anonymous Coward, 8 Jul 2011 @ 4:25pm

But that allowed the industry to slip in a single "innocuous" provision almost entirely unnoticed. The provision that allowed feds to seize and forfeit "property" used for infringement. This provision got very little scrutiny, and the short discussions that were had about it concerned the ability of the feds to seize things like CD and DVD burners in commercial counterfeiting operations. Not something many people would have an issue with.

Interesting observation. So does this mean you and your fellow apologists were asleep or too stupid to understand the implications of the language when the bill was taken up?

But, instead, that provision has been used to justify Homeland Security's outright seizure of domain names under very questionable legal theories.

Given that the bill is now law, I'd venture that the legal theories may not be as questionable as you think... and as Rojadirect will soon learn.
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Anonymous Coward, 8 Jul 2011 @ 5:11pm

Re:
Try this solution instead: Don't break the law.

See? That was so easy.
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Mike Masnick (profile), 8 Jul 2011 @ 5:24pm

Re:
Interesting observation. So does this mean you and your fellow apologists were asleep or too stupid to understand the implications of the language when the bill was taken up?

Ha! No, we assumed (stupid of us) that your friends who wrote the bill were being on the level, and that the language was clear that it would not be used for blatant censorship.

Given that the bill is now law, I'd venture that the legal theories may not be as questionable as you think... and as Rojadirect will soon learn

We shall see, won't we?
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Anonymous Coward, 8 Jul 2011 @ 5:25pm

Re: doubtful
Can't control your kids? How is that anyone's fault except your own?

For people who claim not to deeply care about entertainment content, you folks sure spend a lot of time complaining about not being able to rip it off.
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Anonymous Coward, 8 Jul 2011 @ 5:27pm

Re:
"Google internet can not get here fast enough."

Google already has anti-trust problems to deal with. I'm sure they'd love to add more piracy and DMCA compliance once to their sleaze list.
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Anonymous Coward, 8 Jul 2011 @ 5:34pm

Re: Re:
Censorship is fine when it is for something blatantly illegal. Do you call child porn blacklists that are composed WITHOUT first trying to extradite foreign anonymous operatives censorship? Or do you call that appropriate?

Like it or not, this is how the Internet has to function. You can't just give every foreign criminal immunity to break local law. If they want to operate a site in accordance with Spain's law, let them do so in Spain for Spanish citizens.
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Anonymous Coward, 8 Jul 2011 @ 5:39pm

Re: Re:
> See? That was so easy.

But what happens if he does not break the law, but is accused nevertheless? He will lose his Internet connection the same way.

Many seem to be missing the important point that these schemes never ask for proof. An accusation is enough.
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Anonymous Coward, 8 Jul 2011 @ 6:22pm

Re: Re: Re:
The question is, are we dancing to pirated music?
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BeeAitch (profile), 8 Jul 2011 @ 7:03pm

Re: Re: doubtful
You should really read this article.
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Josh in CharlotteNC (profile), 8 Jul 2011 @ 7:19pm

Re: Re: Re: Re: Re: Re:
this is like the 4th time in two days that someone mentioned a internet contract...where do you live?

Since 2000, I've lived in areas served by Cox Communications, Time Warner, and AT&T U-verse/Bellsouth DSL. With each, I've been offered one- or two-year contracts for a "locked-in" rate for cable/internet. The only way to get out of those contracts is to move completely out of their service areas. Been about 5 years since I've actually switched providers, so they may have offered non-contract rates, but I don't remember specifics.
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Any Mouse (profile), 8 Jul 2011 @ 7:57pm

Re: Re: Re:
"If they want to operate a site in accordance with Spain's law, let them do so in Spain for Spanish citizens."

Err... That's exactly what they were doing. Do you have a citation proving otherwise? This is the US trying to push its laws on a foreign company.
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Anonymous Coward, 8 Jul 2011 @ 8:27pm

Re: Re:
Interesting observation. So does this mean you and your fellow apologists were asleep or too stupid to understand the implications of the language when the bill was taken up?

Ha! No, we assumed (stupid of us) that your friends who wrote the bill were being on the level, and that the language was clear that it would not be used for blatant censorship.

Sorry. The attorneys vetting this on the other side aren't the chumps that you imply they are. For an intellectual property attorney not to understand that ownership of a website constitutes property is laughable. Whether you are replicating movies on DVD burners or replicating them by downloading to other computers is a minor difference in the act of infringement. I'd wager everyone understood the implications. Which, in my book is better than admitting to being utterly clueless.

Given that the bill is now law, I'd venture that the legal theories may not be as questionable as you think... and as Rojadirect will soon learn

We shall see, won't we?

The Rojadirect case will be fascinating. Frankly, I don't exactly know what all they will argue, but I am interested in the jurisdictional issue the most. It may become a seminal case for physical/virtual presence as a test for jurisdiction. Also the extent it may have been marketed or used by US citizens should get a good workout as well. I am afraid that Roja will run out of money before this makes it to the Supreme Court. Though that could take many, many years and it may lose much of its current significance as Protect IP, Felony Streaming and 6 strikes takes root and throttles similar players, including the "new and improved" Rojadirect. I'm looking forward to hearing the nerdrage after the beatdown in District Court.
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Anonymous Coward, 8 Jul 2011 @ 8:31pm

Re: Re:
The thing is YouTube was pretty much forced to take action beyond DMCA, including their matching system, because they were clearly aware that their service was being used to violate copyright on a grand scale. It is conceivable that their service could have been entirely shut down if they had not taken steps.

I am sure someone else can explain the history of youtube filter, but safe to say that they realized that if they didn't take action, they could have a very high liablity.
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Anonymous Coward, 8 Jul 2011 @ 8:34pm

Re: Re: Re: Re:
This is the US trying to push its laws on a foreign company.

Remind me again, wasn't it a .com or .es? Oops, jurisdiction.
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Justin Olbrantz (Quantam), 8 Jul 2011 @ 11:02pm

Re:
"Second, pirates use more bandwidth than "normal" users. ISPs would love to dump them."

Your reasoning is only valid with unlimited internet. With metered internet or capped internet with overages, pirates are the ISPs' most valuable customers.
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Justin Olbrantz (Quantam), 8 Jul 2011 @ 11:20pm

Re: Re: Re:
Interesting indeed, but I doubt the most interesting parts will be resolved with Rojadirect. It's certain that the US will never, ever allow laws of countries it doesn't like to be applied to its citizens, but it remains to be seen if the US will allow other (friendly) countries to apply their laws (that don't exist in the US) to US citizens (in the US) to any extent at all.

Now taking bets!
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Jay (profile), 8 Jul 2011 @ 11:29pm

Re: Re:
"And this is where the leap in logic occurs: "Translation: The content industry is staking its position that ISPs that don�t terminate subscribers after 5 or 6 alerts will lose their DMCA protection.""

It's not a huge leap in logic. It's a valid point that the entertainment industry is pressuring the ISPs to become the police or lose the third party liabilities that have been enacted by the DMCA.

You're focusing solely on the termination plans rather than the actual position of the ISP should this become law. It's added pressure to begin censoring the net. Should the ISP look like a bad guy and kick people off the net on allegations or open themselves up to liability for protecting customer's privacy? What do you think is going to happen?
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The eejit (profile), 9 Jul 2011 @ 12:27am

Re: Re:
Every single person on the Internet breaks the law somehow, somewhere.

Your argument is invalid.
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The eejit (profile), 9 Jul 2011 @ 12:29am

Re: Re: Re: Re:
Thanks for that. I'll see if I can dig some relevant caselaw about this that conflicts. :)
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The eejit (profile), 9 Jul 2011 @ 12:30am

Re: Re: Re: Re: Re:
Both. Which can be construed as an Act of War, should Spain take it that way.
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Anonymous Coward, 9 Jul 2011 @ 5:02am

Re: Re: Re: Re: Re:
Remind me again, wasn't it a .com or .es? Oops, jurisdiction.

You seem to be confusing .com with .us.
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FUDbuster (profile), 9 Jul 2011 @ 8:32am

Re: Re: Re: Re: Re:
Haha! Here's one for you... You're only allowed certain defenses to these mitigation measures. See http://arstechnica.com/tech-policy/news/2011/07/the-six-ways-you-can-appeal-the-new-copyright-alerts .ars

This is copyright misuse for the simple reason that other valid copyright defenses are not available. Off the top of my head, these include defenses like: merger doctrine; sweat of the brow; de minimis; non-copyrightable system, method of operation, process, or procedure; and scenes-a-faire.
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FUDbuster (profile), 9 Jul 2011 @ 8:46am

Re: Re: Re:
You're kind of all over the place, and it's hard to respond.

It's not a huge leap in logic. It's a valid point that the entertainment industry is pressuring the ISPs to become the police or lose the third party liabilities that have been enacted by the DMCA.

The ISPs already have repeat infringer policies in place. They are not going to lose the safe harbors they already have by modifying those policies pursuant to an agreement with the content industry. That makes no sense at all. This agreement only strengthens their safe harbors. How in the world could this agreement possibly negatively affect their safe harbors? It can't.

You're focusing solely on the termination plans rather than the actual position of the ISP should this become law.

This has nothing to do with becoming law, it's only a voluntary agreement between the ISPs and the content industry. Congress is not involved.

It's added pressure to begin censoring the net.

This has nothing to do with censoring the internet. This is about the details of the repeat infringer policies that the ISPs already have in place.

Should the ISP look like a bad guy and kick people off the net on allegations or open themselves up to liability for protecting customer's privacy? What do you think is going to happen?

Again, you don't appear to appreciate the fact that the ISPs already have repeat infringer policies in place pursuant to the DMCA. People can already get kicked off the internet for allegations of infringement.

You guys seem to be whining no matter what happens to infringers. You whine if infringers get sued in federal court. You whine if instead of getting sued they face a very reasonable multiple-strike system of mitigation measures. You'll apparently whine about anything that affects your beloved pirates. It's rather amusing that you all stick up for law breakers like this.
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Jay (profile), 9 Jul 2011 @ 11:08am

Re: Re: Re: Re:
" This agreement only strengthens their safe harbors. How in the world could this agreement possibly negatively affect their safe harbors? It can't."

Voluntary when the US government brokered the deal...

First, a few things to recognize. The WH administration has a lot of people that are from the RIAA. Having them broker the deal is rather lopsided.

OT:

The materials emphatically state that ISPs are not required to terminate subscriber accounts as a condition of the agreement with the content industry and that the collaboration does not amount to a �three strikes� regime. But the materials also take pains to assert that the DMCA �requires that the ISPs have in place a termination policy for repeat copyright infringers as a condition of availing themselves of the Act�s �safe harbor� provision.� Translation: The content industry is staking its position that ISPs that don�t terminate subscribers after 5 or 6 alerts will lose their DMCA protection.

This isn't here to trick you. It states that the incentive is to follow through with the 5th or 6th strike or go through a lengthy court battle, with the RIAA, where you might lose DMCA privileges, your top position as an ISP, among other goodies. Again, this is the part where I ask, what do you think these top six will do in their position? Give them a strike with a $35 fee to charge for their innocence or get caught in a court battle? That's the Catch-22. Screw the customer, it's a large Prisoner's dilemma.

"This has nothing to do with becoming law, it's only a voluntary agreement between the ISPs and the content industry. Congress is not involved. "

My mistake, was caught up in writing about S978...

"This is about the details of the repeat infringer policies that the ISPs already have in place."

And again, this is based on allegations, not convictions. It's safe to say that most people will not pay attention the first two or three times this happens. If you've ever worked in retail, there are ways to get those strikes removed without the fee. Also, if you've looked at the Korean AG system and how it's kicked people off for accusations alone, you can tell this is a bad system in general. But don't take my word for it. Read the article yourself.

Just to add a few more details, other than IP addresses, what other evidence is being brought to the table? If anything, this is just a less expensive version of the RIAA's 2008 "sue em all" campaign but with more immediate consequences. Consequence being, if your area only has one broadband provider, and somehow you're linked by your ISP to a number at random, magically you're liable for strikes.

"You guys seem to be whining no matter what happens to infringers. You whine if infringers get sued in federal court. You whine if instead of getting sued they face a very reasonable multiple-strike system of mitigation measures. You'll apparently whine about anything that affects your beloved pirates. It's rather amusing that you all stick up for law breakers like this."

You probably do a lot more than anyone else, along with disrespectful behavior. I'm not a fan when you throw your tantrums, and I try to answer your questions with respect without throwing out complaints.

Your infringers in court?

Whitney Harper, who at the age of 14 has been found liable for $30,000 in statutory infringements.

Jammie Thomas who, with 24 songs, caused $1 Million+ in damages to the industry

Joel Tenenbaum ---> $625,000 worth of damages for copyright infringement.

Do you not think that's a little excessive to have over your head?

And no, a multiple strike system is not reasonable. I download from Jamendo.com. I use Kickstarter and fund projects. I play video games online and post them to the internet. I play WoW, and a few other games. Yet with one fell swoop because of an accusation, I could lose my internet because my IP address is linked to copyright infringement. For the Lulz. That's wrong on multiple accounts.

If there were a way to have the plaintiffs sue in civil court for their copyrights and bring valid proof, everything's alright. Including my ISP because I've found better alternatives sure as hell has me pissed at the entertainment industry for trying to control what I do online.
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Anonymous Coward, 9 Jul 2011 @ 1:14pm

Re: Re: Re: Re:
"A policy is unreasonable only if the service provider failed to respond when it had knowledge of the infringement."

Here you equate an accusation to knowledge. If the policy called for discovery of actual infringement then maybe it would be reasonable, but it does not. Outside of a court ruling that there was infringement I don't think you can call it "knowledge" on any level.
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TDR, 9 Jul 2011 @ 2:01pm

Re: Re: Re: Re:
FUDBlower: "OH, NO! MY CORPORATE MASTERS ARE BEING EXPOSED AGAIN! I JUST CAN'T ADMIT TO BEING WRONG! THE WORLD WILL END IF I DO! I BOW DOWN AT THE CORPORATE ALTAR! BUSINESSES CAN DO NO WRONG! THE LAW CAN NEVER BE WRONG! I HAVE TO LIVE IN SELF-IMPOSED IGNORANCE BECAUSE I'M SO TERRIFIED OF CHANGE! I GET DIZZY FROM MY OWN CIRCULAR LOGIC WHICH IS SO FLAWED THAT NOT EVEN A VULCAN WOULD TOUCH IT! I WORSHIP GREED AND PROFIT LIKE THE FERENGI THAT I AM!"

Seriously, though, why bother coming here, FUDSpewer? No one believes you. No one's convinced. You're wasting your time here, and I think you know it. But because you remain, it means that's it's likely you don't do so by choice but rather are paid to do so. You are a sad, strange little man with the IQ of a toothpick and all the charm of an Alsatian dog after a head-swap operation.

Here is your chance to prove otherwise, if you choose to take it. I want either a complete chain of causality showing exactly how the sharing of a specific file has harmed a specific artist at a specific time in a specific way, backed up with empirical non-industry data, or a complete retraction of everything you have ever said on this site. Now. Choosing to do neither is admitting you are wrong and I am right. That's all there is to it.
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Anonymous Coward, 9 Jul 2011 @ 2:31pm

Re: Re: Re: Re: Re:
I want either a complete chain of causality showing exactly how the sharing of a specific file has harmed a specific artist at a specific time in a specific way, backed up with empirical non-industry data, or a complete retraction of everything you have ever said on this site. Now. Choosing to do neither is admitting you are wrong and I am right. That's all there is to it.

I want either a complete chain of causality showing exactly how the sharing of any file has NOT harmed any artists, companies or their workers at a specific time in a specific way, backed up with empirical non-industry data, or a complete retraction of everything you have ever said on this site. Now. Choosing to do neither is admitting you are wrong and I am right. That's all there is to it. Or you could simply go fuck yourself. You choose, either is fine with me.
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Anonymous Coward, 9 Jul 2011 @ 2:48pm

Re: Re: Re: Re: Re:
Here you equate an accusation to knowledge. If the policy called for discovery of actual infringement then maybe it would be reasonable, but it does not. Outside of a court ruling that there was infringement I don't think you can call it "knowledge" on any level.

But effective notice is knowledge under the DMCA. Once an ISP has knowledge it has a duty to act on that knowledge. And remember that knowledge can be either actual or apparent.
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FUDbuster (profile), 9 Jul 2011 @ 2:49pm

Re: Re: Re: Re: Re:
tl;dr

Snore.
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Jay (profile), 9 Jul 2011 @ 3:41pm

Re: Re: Re: Re: Re: Re:
Looks like you got your wish

And so, the workers are brought up as a group instead of the shift of jobs goes from the, music industry to the technology industry, is recognized for what it is. The reallocation of scarce goods. *sigh*
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Lawrence D'Oliveiro, 9 Jul 2011 @ 10:48pm

Re: There is potential that, at some point, the courts will look at the actions of the ISP, and decide that they are too aware of issues, are not addressing them ...
Nope.
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Jay (profile), 9 Jul 2011 @ 11:45pm

Re: Re: Re: Re: Re: Re:
Cute
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The eejit (profile), 10 Jul 2011 @ 2:39am

Re: Re: Re: Re:
Well, I'm dancing to pirate music, so maybe.
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The eejit (profile), 10 Jul 2011 @ 2:42am

Re: Re: Re: Re: Re: Re:
Is 'apparent knowledge' like 'common sense'? Because if so, it shouldn't stand in a court of law. Period.
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The eejit (profile), 10 Jul 2011 @ 2:42am

Re: Re:
I think someone forgot their cannabis dose for the day. :p
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The eejit (profile), 10 Jul 2011 @ 2:44am

Re: Re: Re: Re: Re:
To be fair on this one, he's providing cites which are directly relevant. So props to him for backing up his words. :)
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The eejit (profile), 10 Jul 2011 @ 2:46am

Re: Re: Re: Re:
USA! USA! USA!

Oh, wait, by that I mean, "Of COURSE the US won't allow anyone else to interfere!"
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Jeffrey J. Nonken (profile), 10 Jul 2011 @ 8:14am

We aren't lying; truth is just mutable
"We won't take away your car; we'll just take away your keys."

"We won't be beating you up; this stick will be beating you up. We'll be holding the stick, but never mind that, it's all voluntary on the stick's part."
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TDR, 10 Jul 2011 @ 9:36am

Re: Re: Re: Re: Re: Re:
Denial and refusal to answer the challenge equals admitting you are wrong, as I pointed out. And this site is full of facts and studies, all linked to sources, which support what TD has always said. Try to let go of your technophobia for tens seconds and you might see that.
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TDR, 10 Jul 2011 @ 9:38am

Re: Re: Re: Re: Re: Re:
Thanks for admitting you are wrong. By not answering the challenge, that is what you have done. Why are you so afraid of technology?
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FUDbuster (profile), 10 Jul 2011 @ 10:36am

Re: Re: Re: Re: Re: Re: Re:
I'm not admitting anything. If you want to ask me a question that pertains to the point I'm making in this thread, I'm happy to answer you. If you're going to act like a dick and demand that I prove all sorts of things that have nothing to do with my point, then I've no time for you. Your choice.
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FUDbuster (profile), 10 Jul 2011 @ 10:56am

Re: Re: Re: Re: Re:
Voluntary when the US government brokered the deal...

First, a few things to recognize. The WH administration has a lot of people that are from the RIAA. Having them broker the deal is rather lopsided.

So what if the government brokered the deal. That seems like a good thing for the government to do.

This isn't here to trick you. It states that the incentive is to follow through with the 5th or 6th strike or go through a lengthy court battle, with the RIAA, where you might lose DMCA privileges, your top position as an ISP, among other goodies. Again, this is the part where I ask, what do you think these top six will do in their position? Give them a strike with a $35 fee to charge for their innocence or get caught in a court battle? That's the Catch-22. Screw the customer, it's a large Prisoner's dilemma.

I've explained this already. The test for whether an ISP loses their safe harbor for an insufficient repeat infringer policy is reasonableness. If their policy is reasonable before this agreement, it's even more reasonable after it. The EFF is spouting their typical non sequitur FUD, and you're eating it right up.

And again, this is based on allegations, not convictions. It's safe to say that most people will not pay attention the first two or three times this happens. If you've ever worked in retail, there are ways to get those strikes removed without the fee. Also, if you've looked at the Korean AG system and how it's kicked people off for accusations alone, you can tell this is a bad system in general. But don't take my word for it. Read the article yourself.

Just to add a few more details, other than IP addresses, what other evidence is being brought to the table? If anything, this is just a less expensive version of the RIAA's 2008 "sue em all" campaign but with more immediate consequences. Consequence being, if your area only has one broadband provider, and somehow you're linked by your ISP to a number at random, magically you're liable for strikes.

Of course there's no conviction because this isn't court. There is evidence generated by a verified system. It's not rocket science to figure out that a certain IP address was used to download a certain file. You guys will complain no matter what system is used, whether it's in court or not. Anything that dares to touch your beloved piracy is treated as taboo. Even Mike admits that "piracy is not OK." Of course, he is absolutely, 100% against anything that's done to stifle piracy, but that's another story.

You probably do a lot more than anyone else, along with disrespectful behavior. I'm not a fan when you throw your tantrums, and I try to answer your questions with respect without throwing out complaints.

LOL! Why would I whine? I've got the law and reality on my side.

Do you not think that's a little excessive to have over your head?

I do. It's no secret. I've said it before. Would you rather get strikes at your ISP or a federal lawsuit? Something's going to be done about piracy. That much is certain. What would you rather they do?

And no, a multiple strike system is not reasonable. I download from Jamendo.com. I use Kickstarter and fund projects. I play video games online and post them to the internet. I play WoW, and a few other games. Yet with one fell swoop because of an accusation, I could lose my internet because my IP address is linked to copyright infringement. For the Lulz. That's wrong on multiple accounts.

And how many notices have you triggered at your ISP with all that activity? I'm guessing none. Why do you think that you'll trigger notices now? Doesn't your ISP already have a notice system in place with the content industry? Mine does.

If there were a way to have the plaintiffs sue in civil court for their copyrights and bring valid proof, everything's alright. Including my ISP because I've found better alternatives sure as hell has me pissed at the entertainment industry for trying to control what I do online.

The problem of piracy is too widespread for civil suits to be a viable route. Your pirates friends can blame themselves for that. It makes sense to have a strike system. If you were looking at this from the position that piracy is a problem that needs to be addressed, it might make more sense to you.
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FUDbuster (profile), 10 Jul 2011 @ 11:00am

Re: Re: Re: Re: Re: Re: Re:
Apparent knowledge means imputed knowledge. It's what you should have known. It's what you would have known had you not turned a blind eye. It's willful blindness.
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FUDbuster (profile), 10 Jul 2011 @ 11:02am

Re: Re: Re: Re: Re: Re: Re:
But just to clarify, receipt of a proper notice is actual knowledge, not apparent knowledge.
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RD, 10 Jul 2011 @ 9:47pm

Re: Re: Re: Re: Re: Re:
"I've explained this already. The test for whether an ISP loses their safe harbor for an insufficient repeat infringer policy is reasonableness. If their policy is reasonable before this agreement, it's even more reasonable after it. The EFF is spouting their typical non sequitur FUD, and you're eating it right up."

Ok, so then...why is this additional "agreement" necessary at all? Wouldn't it also, according to your very own argument, be unenforcable as nothing changes anyway? I mean, really, you cant argue both ways on this. Either this changes nothing and is unnecessary or what is being said about it is true. Good luck arguing this out both sides of your mouth.

"Of course there's no conviction because this isn't court. There is evidence generated by a verified system."

So you admit these are accusations only and people will be punished/limited/cut off without any trial or due process, in contravention of the 5th amendment. Got it.

"It's not rocket science to figure out that a certain IP address was used to download a certain file."

Untrue. It is trivially easy to find and use tools to spoof or falsify IP addresses in download sessions. An IP does not necessary equal an individual. Now, in some cases, maybe even many cases, it will tie to that person, but absent any trial where actual EVIDENCE is presented and refuted or proved, and is therefore binding, the mere accusation of infringement based solely on one point of data (an IP address) should not be valid.

"The problem of piracy is too widespread for civil suits to be a viable route. Your pirates friends can blame themselves for that. It makes sense to have a strike system. If you were looking at this from the position that piracy is a problem that needs to be addressed, it might make more sense to you."

No, the industry has no one to blame but themselves. Piracy isnt the problem. A strike system is silly, and will change nothing whatsoever. Stricter enforcement isnt the answer, and will only serve to alienate the audience further.

The music industry was handed a digital distribution system on a platter with Napster, and they killed it. It was years before iTunes came along (and they fought that like hell too, they did NOT want anyone developing something like iTunes, but of course, they didnt want to do it themselves either) despite the fact that Napster and iTunes showed that there was a viable mass market for digital music delivered via the internet.

"And how many notices have you triggered at your ISP with all that activity? I'm guessing none. Why do you think that you'll trigger notices now? Doesn't your ISP already have a notice system in place with the content industry? Mine does."

Bullshit specious argument that you keep bringing up. Notice the magicians trick of misdirection here, where he conveniently leaves out the most important difference between what came before and what is proposed: With the new system in place, there will be a DRAMATIC increase in accusations about ANYTHING. The line moves way, way, back and now they will pull the trigger on even slight infringements, things that would be fair use, speech that makes someone look bad, and a host of other things.

They will do this because, frankly, they can, there isnt any punishment for false or wrong accusations, there isnt any bar for what is a valid complaint, and there isnt any drawback to shotgunning anything that a Big Media corp simply doesnt like, whether its valid or not.

And if you think this wont happen, that they will restrain themselves and only go after "the big fish", then you havent been paying attention to the massive amount of abuse that has been happening along these lines since the DMCA was instituted.

To deny this is to invalidate any arguments you might raise, as you would be living in a delusion where rights holders act responsibly and with restraint, something they have shown repeatedly they are incapable, indeed completely unwilling, to do.
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frank, 11 Jul 2011 @ 4:43pm

DMCA Abuse
I work at www.dmca.com and do DMCA takedowns for a living.
We see a lot of takedown requests that are abusive or invalid. So we reject them and do not process them.

I'd be interested to see what the valid/invalid ratio is on a large ISP like SoftLayer/ThePlanet or Goddady etc.
a. how many dmca takedowns they get in a year?
b. how many are invalid?

FWIW
Frank Rose
DMCA.com
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RYOUNGER (profile), 12 Jul 2011 @ 11:49am

actual agreement
Does anyone have a link to the actual agreement. I'd love to look at it myself.
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