Shouldn't Users Have Been At The Table For The Six Strikes Negotiations?
from the look-who-got-screwed dept
We've already discussed the "voluntary" agreement between ISPs and the RIAA/MPAA to create a "six strikes" (I still say the details show it's five strikes, but the internet has overruled me) graduated response plan. In particular, we've noted that the plan appears to limit defenses of users in ways that strike us as questionable (i.e., you can't even claim a work is in the public domain!). Now law professor Eric Goldman and the EFF's Corynne McSherry have put together an analysis of the agreement which highlights how unfortunate it is that this agreement was made completely without anyone representing actual users. It was just big companies, working together to effectively screw over users. The writeup by Goldman and McSherry highlights numerous problems with the agreement when it comes to users (including the fairly bogus "education" component of this project). But where it really shines is in showing just a few examples of where such an agreement could have been much better if there had been someone (anyone!) representing the interest of the users:The chances of any of that actually happening? Yeah, basically none.* The burden should be on the content owners to establish infringement, not on the subscribers to disprove infringement. The Internet access providers will treat the content owners’ notices of infringement as presumptively accurate--obligating subscribers to defend against the accusations, and in several places requiring subscribers to produce evidence “credibly demonstrating” their innocence. This burden-shift violates our traditional procedural due process norms and is based on the presumed reliability of infringement-detection systems that subscribers haven't vetted and to which they cannot object. (The content owners’ systems will be reviewed by “impartial technical experts,” but the experts’ work will be confidential). Without subscribers being able to satisfy themselves that the notification systems are so reliable that they warrant a burden-shift, content owners should have to prove the merits of their complaints before internet access providers take any punitive action against subscribers.
* Subscribers should be able to assert the full range of defenses to copyright infringement. A subscriber who protests an infringement notice may assert only six pre-defined defenses, even though there are many other possible defenses available in a copyright litigation. And even the six enumerated defenses are incomplete. For example, the “public domain” defense applies only if the work was created before 1923--even though works created after 1923 can enter the public domain in a variety of ways.
* Content owners should be accountable if they submit incorrect infringement notices. A subscriber who successfully challenges an infringement notice gets a refund of the $35 review fee, but the MOU doesn’t spell out any adverse consequences for the content owner that make the mistake – or even making repeated mistakes. Content owners should be on the hook if they overclaim copyright infringement.
* Subscribers should have adequate time to prepare a defense. The MOU gives subscribers only 10 business days to challenge a notice or their challenge rights are waived (a subscriber might get an extra 10 business days "for substantial good cause"). This period isn’t enough time for most subscribers to research and write a proper defense. Subscribers should get adequate time to defend themselves.
* There should be adequate assurances that the reviewers are neutral. The MOU requires that reviewers must be lawyers and specifies that the CCI will train the reviews in “prevailing legal principles” of copyright law – an odd standard given the complexity of, and jurisdictional differences in, copyright law. We’re especially interested in the identity of these lawyers, and why they are willing to review cases for less than $35 each (assuming the CCI keeps some of the $35 review fee for itself). Perhaps there will be a ready supply of lawyer-reviewers who are truly independent. Given the low financial incentives, another possibility is that the reviewers will be lawyers tied—financially or ideologically—to the content owner community. To ensure that the reviewers remain truly neutral, reviewer resumes should be made public, and checks-and-balances should be built into the reviewer selection process to ensure that the deck isn’t stacked against subscribers from day 1.
It's on this point that IP Czar Victoria Espinel should really be ashamed. After talking up how this agreement would help someone (not clear who?) "win the future," shouldn't she have been the least bit concerned about the most obvious stakeholder who wasn't at the table? We see this way too often with government officials these days. They think the only stakeholders are the businesses, and leave out the citizens they're supposed to represent. Copyright law is supposed to benefit the public, but the public wasn't at the table negotiating this agreement. In fact, pretty much everyone admits that the government focused solely on bringing together these two parties and putting tremendous pressure on the ISPs to cave to the entertainment industry. Couldn't they have used some of that "pressure" to make sure that the public's interest was included? Isn't that what government is supposed to do?
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Filed Under: copyright, entertainment industry, graduated response, isps, six strikes, users
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A lesson from the fictional future.
Any minute now, wait for the official drumbeat: "the safety of everybody precludes the rights of any individual" and on that mantra the United States police state has begun.
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Re: A lesson from the fictional future.
The "public interest" is determined by corporate citizens, not average citizens.
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Re: Re: A lesson from the fictional future.
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Re: Re: Re: A lesson from the fictional future.
that tends to not go over well in the modern world, however.
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Re: A lesson from the fictional future.
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Re: Re: A lesson from the fictional future.
FTFY
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Re: Re: A lesson from the fictional future.
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Re: Re: A lesson from the fictional future.
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Re: Re: A lesson from the fictional future.
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Misses the point
They can pick any IP address they want and accuse you of anything they want, and you're F*****! There is no defense. There is no safety net. You don't get to fight it or defend yourself until the fifth strike, and by then it's too late. Every politician, company owner, and representative who are on board with this might as well be wearing a black armband with a little symbol on it. Makes me freakin' sick.
It's the beginning of the end, peoples. We're all cattle, and our masters are coming to slaughter us until we bleed whatever money we have. I'll be investing my $35 in an anonymous VPN service, thank you very much.
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The public couldn't afford the admission fee...
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Re:
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Re:
Everyone constantly says this, but I have to wonder, what does it actually mean when you say you're going to 'personally sue'?
Does that mean you're going to represent yourself pro se rather than hire a lawyer to sue for you? 'Cause that's about the quickest way to torpedo any lawsuit that I can think of.
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Let USERS have a say?
(Just so we're clear, all internet users are criminals, right?)
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Re: Let USERS have a say?
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Re: Re: Let USERS have a say?
By that standard, 47% of the people today would not be allowed to vote because that is the percentage of people who effectively don't pay taxes.
Ironically, 99% of that 47% are Democrats. Ok, this stat might be made up, but it is probably close. ;)
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Re: Re: Re: Let USERS have a say?
Actually, both of those stats are made up, and neither are anywhere near close.
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Re: Re: Re: Re: Let USERS have a say?
http://finance.yahoo.com/news/Nearly-half-of-US-households-apf-1105567323.html?x=0
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Re: Let USERS have a say?
(sorry, I couldn't resist.)
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Re: Let USERS have a say?
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Re: Let USERS have a say?
> have a say in sentencing guidelines?
They do have their say. Just as much as you or I do. We vote for the people who write the guidelines, or who appoint other people who do it.
Our vote is supposed to give us the belief that we have some say so that we can get back to giving our money to corporations.
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Re: Let USERS have a say?
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You make it sound like the IP Czar was someone that we elected into that position, rather than the position's existence being purchased from the government by business and handed to her by President Accountability and the Transparency Brigade.
I don't recall any point where we had the choice in whether or not we even needed - or wanted - an "IP Czar", as though Ma Kettle downloading an mp3 of Josh Groban was an offense grand enough to warrant a government position being created on the same caliber as the "Drug Czar", in order to wage some grand war on infingement where the accused was presumed guilty at the very outset and the burden of proof was on the defendant to demonstrate otherwise at cost to them with the only valid defenses being pre-defined by the accuser.
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wait a minute
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Re: wait a minute
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Re: wait a minute
That is the part, aside from ISPs taking on the inevitable liability that will rise out of this, that I cannot get my head around. Pay us 35 bucks to even get heard...that is brain-breaking.
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Re: Re: wait a minute
Horizontal Price-Fixing.
Can you say "Horizontal Price-Fixing", kiddies? Good. I knew you could.
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Representing the public?
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Make the content providers pay the $35
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Re: Make the content providers pay the $35
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Taxation without representation?
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Re: Taxation without representation?
This is more like extortion. If you don't say anything, you're guilty. If you want to challenge it, it's $35. If you fail, they keep the $35. If you win, they keep the $35.
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The future is won.
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And the difference is?
And the differs from MOST other user/big company transactions how?
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"Isn't that what government is supposed to do?"
The US was the first country in history to explicitly tell The Rich who "own" the gov't where to get off and establish gov't as the Servant of the people. But it's a COMPLETE anomaly in history, NOT the norm as you sheltered children believe.
The current US citizens have forgotten the basics, because they've all enjoyed the blessings of liberty and didn't keep The Rich (= the gov't plus corporations) under tight control. Those with any foresight -- Ayn Rand, say -- predicted the current fascism at least 60 years ago.
So now Mike appears bewildered and complaining that ordinary people have no voice even in being able to use ISPs! I'm sure that Mike is against regulating corporations (look it up yourself, though: I'm not your search engine) as a plank in his "libertarianism" and that he has no objections to even monopoly, so he's basically just tricking readers here with a hot button story when his philosophy is to allow corporations "freedom" to conspire like this.
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Re: "Isn't that what government is supposed to do?"
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Re: "Isn't that what government is supposed to do?"
You are exactly right and the presentation they give at the US Constitution Center in Philly says the same thing. The problem isn't that we are sheltered, it is the rest of the world that is sheltered. We have seen the light and it is good.
But now the people have not kept the government in check. In many cases we seem to ask the government to take back our rights. I don't have an explanation for why that is, but I don't like it and I doubt many people here do either.
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Re: "Isn't that what government is supposed to do?"
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Random thought
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Re:
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Re: Re:
No, you don't get to vote on the IP Czar, but you picked his boss.
Actually, I voted for the government to apply the constitution, all of it, and not the parts that just make pirates happy.
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When can I expect my broadband bill to go up?
You think I am kidding but I am not. I do not pirate anything, not books, movies, music, software, etc. But if I start having to pay as if I am, well guess what, I will! If nothing else, I will resort to the good old fashioned sneaker net and stay off the internet pirate sites.
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Days of yore
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Re: Days of yore
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Re: Re: Days of yore
We don't get a vote here, sparky.
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Re: Re: Re: Days of yore
This is an agreement among and between two industries to fix the price of a particular service at $35.
Horizontal Price Fixing is a per se violation of § 1 of the Sherman Act of 1890.
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Re: Re: Re: Re: Days of yore
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Pretty messed up
Can you imagine that happening in other criminal cases? A guy that gets beaten up in an alley gets to decide how the people who assaulted him get to defend themselves. No you can't use eyewitness accounts, video/audio recordings, or alabies to defend yourself. And then upon conviction the victim gets a say in their punishment.
And also there's the fact that even if you succesfully defend yourself the content owners face no punishment whatsoever, while all the accused gets is their $35 back.
I get the feeling the ISPs will be mauled over this. The content owners need to realize that they can't ISPs to monitor the entire internet for then. This isn't a record store where you can watch everyone in the immediate area and keep an eye out for funny business. We're talking millions of people all over the country.
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Re: Pretty messed up
The ISPs got together and agreed on how much to charge their customers for service.
15 USC § 1. Trusts, etc., in restraint of trade illegal; penalty
All the ISPs got together and agreed that the price for contesting a claim was $35 a whack.
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Pretty messed up
Can you imagine that happening in other criminal cases? A guy that gets beaten up in an alley gets to decide how the people who assaulted him get to defend themselves. No you can't use eyewitness accounts, video/audio recordings, or alabies to defend yourself. And then upon conviction the victim gets a say in their punishment.
And also there's the fact that even if you succesfully defend yourself the content owners face no punishment whatsoever, while all the accused gets is their $35 back.
I get the feeling the ISPs will be mauled over this. The content owners need to realize that they can't ISPs to monitor the entire internet for then. This isn't a record store where you can watch everyone in the immediate area and keep an eye out for funny business. We're talking millions of people all over the country.
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Prediction
- ISP's will get notices.
- Users will complain and tie up their support lines claiming ignorance (rightfully and wrongfully).
- The strikes will become a costly burden to the ISPs that threaten their business model.
It will only take a few attorneys getting hit by this to challenge the accusations in a court before the ISPs back down.
Finally: We go back to normalcy.
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Re: Prediction
Incorrect.
Finally: ISP's jack up rates to cover the costs.
More likely.
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Re: Prediction
- ISP's will get notices.
- Users will complain and tie up their support lines claiming ignorance (rightfully and wrongfully).
- The strikes will become a costly burden to the ISPs that threaten their business model.
It will only take a few attorneys getting hit by this to challenge the accusations in a court before the ISPs back down.
Finally: We go back to normalcy.
You forgot the final step:
Then I'll wake up and have breakfast
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Oh yeah, there ARE no "rights to piracy"!
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FTFY.
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Re:
How about the liquor lobby. Remember prohibition? Ever hear of Seagram's?
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Keep up. We're talking about the innocent users who might get their home businesses killed because they shared a copy of Night Of The Living Dead in perfect compliance with the law, not pirates.
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Who they see as the criminals
The reason for this is because the businesses see all, and I do mean ALL, citizens as the pirates/criminals. When you are trying to eradicate this group of people, why would you invite them to the table for talks.
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What I see happening
Meanwhile, because of all the people booted off the internet, the ISPs will lose millions in revenue that a mere $35 won't recoup, and will then turn around and file suit against the RIAA/MPAA for talking them into such a ridiculous scheme in the first place.
Online retailers will boost their prices to cover their losses and legal bills, ISPs will boost their prices to cover their losses and legal bills.
The citizens/consumers lose in the end. No matter what happens at this point, its a lose lose situation for us.
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Re: What I see happening
How's this for a future?
Someday the Republicans capture the Presidency and get to appoint the Attorney-General. At which point everyone remembers:
Of course, that Republican Attorney-General would just be pursuing partisan advantage. But so what?
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The government
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easy answer
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Re:
Does it matter why the ISPs agreed to fix the price at $35 ?
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An Antitrust Primer for Federal Law Enforcement
“An Antitrust Primer for Federal Law Enforcement Personnel”, Antitrust Division, U.S. Department of Justice (Revised: April 2005):
(Emphasis and italics in original.)
You think Attorney-General Holder is interest in upholding the law of the United States?
Fixing a price at $35.
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Strike One for Obama's second term
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