MPAA Also Likes The Idea Of ISP Enforcers For File Sharing

from the well,-duh dept

In a story that will surprise, um, well, none of you, Broadband Reports points us to an Ars Technica piece with an MPAA representative claiming "Hey, us too!" on a plan involving ISPs kicking file sharers off for accusations of file sharing. This, of course, follows the widespread reports about the RIAA's supposed agreements with ISPs (though not all ISPs are happy with the plan). While the RIAA got lots of press for it, the MPAA seems to have a better handle on the PR spin of such a program -- calling it a "graduated response" rather than a "three strikes" policy. By "graduated" they basically mean "scold, scold, lose your internet connection." I guess that's graduated.

Of course, none of the big questions about such a program are addressed by the MPAA (or the RIAA, for that matter), but it's almost comically endearing to see the MPAA claim that this is a "win/win/win" program -- where consumers are considered "winners" because they're not getting sued. In all honestly, this is a lose/lose/lose strategy. The MPAA would lose because it would make it that much more difficult for the industry to wake up and embrace newer and better business models. ISPs would lose by having to spend time and resources supporting the entertainment industry's quixotic fight to stop file sharing. Consumers would lose because it would effectively remove a great and inexpensive way of both watching and distributing more movies. Hell, even the lawyers would lose because they'd have fewer lawsuits to file. Who actually wins? Beats me.

Filed Under: graduated response, movies, three strikes
Companies: mpaa

RIAA Abandoning Mass Lawsuits In Favor Of Backroom 3 Strikes Policy

from the it's-a-step,-but-a-very-small-one dept

It really was just three days ago that we suggested that if the record labels actually wanted anyone to take them seriously concerning their desire to come up with more constructive solutions to the business model challenges they face, they should at least stop suing folks as a gesture of trying something new. The usual recording industry defenders in the comments claimed this was a ridiculous suggestion, but it appears that the RIAA is at least taking a small step in that direction. The Wall Street Journal is reporting that the recording industry (the WSJ mis-labels it "the music industry") is abandoning its strategy of mass lawsuits.

First off, this is a step in the right direction -- and we think it's great that the record labels have agreed to do this, even if it's many, many years too late. And, it's hardly a huge concession. The lawsuits have been an unmitigated disaster. They have done nothing to slow file sharing (in fact, the publicity generated from the lawsuits has often been credited with alerting many people to the possibility). The strategy has also splintered the file sharing space into many, many different players, many of them way underground, unlike in the early days when there were a manageable number of players who could be worked with proactively. It's also done tremendous damage to the brands of the major record labels (Universal, Warner, EMI and Sony) and the RIAA itself -- leading many to swear off buying any of their products. Finally -- and most importantly -- the strategy did absolutely nothing to help musicians adapt to a changing market that was opening up tremendous new opportunities both to spread their music and to profit. So, kudos to the folks at the RIAA for finally realizing how backwards this strategy has been.

The fine print

But, of course, this is the RIAA, so you can rest assured that the details aren't anything to be happy about. In exchange for not filing mass lawsuits, the RIAA has worked out backroom deals with numerous ISPs (brokered by Andrew Cuomo -- who has a history of using baseless threats to get ISPs to censor content they have no legal responsibility to censor). The exact details are a bit sketchy, but it sounds like a variation on the ridiculous three strikes policy that has been (mostly) rejected in Europe as a violation of basic civil rights. Basically, these ISPs will agree to be the RIAA enforcers. Based solely on the RIAA's flimsy evidence, the ISPs will either pass on, or directly email subscribers with, warning letters. Depending on the specifics of the agreement, the users will get one or two more warning letters before the ISP will start limiting their internet access or potentially cutting them off entirely. If you think this sounds suspiciously like what Europe just rejected, you're right.

And, of course, the RIAA still says it may sue those who don't stop file sharing after all of this. They're just backing away from the mass lawsuit filings that they've been doing.

Why this is still a bad deal

Okay, so over the past few weeks, recording industry defenders have said that we were jumping the gun in criticizing a potential plan because it wasn't final. Our point was that since the record labels claim they want a "conversation," these deals shouldn't be negotiated in backrooms not involving substantial stakeholders. So what happened here? Yup, a backroom deal was negotiated without any involvement from users. And it was done under the direction of Andrew Cuomo, who just spent many months browbeating ISPs into agreeing to censor content.

So, hopefully, we won't be told that we're being premature in criticizing this plan -- but somehow I find it unlikely.

This plan is hardly a major concession by the record labels and the RIAA. The lawsuit strategy was a massive failure in almost every facet. Giving them up is hardly a big deal. It's admitting what pretty much everyone else knew from the beginning: that suing your fans and customers is a monumentally dumb move. Ending a brain-dead, self-defeating policy is worthy of kudos, but only for finally recognizing the obvious -- not as some magnanimous gesture.

And in exchange for the RIAA stopping its policy of shooting itself in the foot, we get ISPs making a huge concession themselves, agreeing to become RIAA enforcers, despite the clear safe harbors they have via the DMCA. These ISPs will now be heavily involved in the process of policing their users, increasing their expense, which of course will be passed on to users.

But the biggest problem is the fact that this allows private organizations to judge users without any significant defense on their part. The stories of falsely accused file sharers are widespread at this point. IP address-based evidence is notoriously unreliable. Yet, the RIAA will be basing its notifications on such evidence. Sure, plenty of the IP addresses dug up by the RIAA are probably accurate, but we live in an innocent-until-proven-guilty world, and this does away with that completely.

Also, as the EU noted in rejecting this proposal, the "punishment" hardly fits the crime. These days, an internet connection is a necessity -- and taking it away from people because someone is sharing the gift of music with others not for any sort of commercial gain is totally unbalanced. It takes away an individual's civil and privacy rights, all because the big record labels refuse to recognize that there are other business models out there that already work. And that final point may be the most important. As we noted in explaining why the music tax is a bad idea, none of these moves by the RIAA are actually necessary.

Musicians are figuring out plenty of fantastic business models that work wonders, and many of them actually involve embracing file sharing and using that to help grow their markets. What's wrong with letting those business models establish themselves, without brokering a totally unnecessary backroom deal that will almost certainly harm innocent people thanks to flimsy evidence?

So, yes, we're thrilled that the record labels have finally progressed to the point of realizing that mass lawsuits were a bad idea, but working out a backroom deal for a type of three strikes policy is not a particularly good solution. It's more of the same: trying to prop up an obsolete business model by a private industry unwilling or too stubborn to change with the market. That NY's Attorney General felt this private business model issue should involve his efforts in the midst of a huge financial crisis, including the largest Ponzi scheme ever, makes little sense.

If these are the "new leaf" and "open conversations" the record labels are insisting they're about these days, they've got an awful lot of work to do still.

Filed Under: andrew cuomo, isps, lawsuits, three strikes
Companies: riaa

European Council Rejects EU Parliament's Amendment Against Three Strikes Rule

from the it's-good-to-be-the-king dept

Earlier this year, we noted that the European Parliament overwhelmingly rejected the idea of various countries implementing any kind of policy that would kick file sharers off the internet -- often referred to as "three strikes" legislation. However, TorrentFreak is now reporting that, despite 88% of Parliament voting in favor of rejecting any such law for being a violation of basic human rights, the European Council (made up of the heads of state of various EU governments, has rejected the amendment drafted by the Parliament. Why? Well, TorrentFreak notes that French President Sarkozy just so happens to be President of the European Council, and as we recently noted, France just recently moved forward in approving a three strikes law, which was originally championed by Sarkozy. So, rather than listen to the vast majority of the EU Parliament, Sarkozy has apparently convinced the Council to let him push through this particular law, despite the widespread concerns about its draconian nature.

Filed Under: eu, three strikes

Three Strikes Rule May Sneak Into EU Law, Despite Earlier Rejection

from the never-let-your-guard-down dept

We've talked in the past about how the entertainment industry never gives up trying to push through its legislative agenda -- even after it is dealt setbacks. You may recall that the EU Parliament rejected a proposal to institute a "three strikes" law favored by the entertainment industry, that would kick people off the internet if they're accused (not found guilty, just accused) of unauthorized file sharing three times. The EU Parliament correctly noted that such a law would interfere with individuals privacy and civil rights. However, some academics have noted that another set of laws focusing on telco reform may backdoor in nearly identical three strikes language, requiring telcos to adopt such policies. The fear, obviously, is that this issue, buried in a big telco bill may not get very much attention and may be put into law without much debate, despite the EU Parliament's earlier rejection of such an idea.

Filed Under: eu, europe, telco regulations, three strikes

French Senate Approves 3 Strikes Law

from the screw-the-eu dept

Despite the fact that the EU Parliament rejected the concept of a "three strikes" law for kicking people off the internet, and warned member countries that such laws interfered with civil rights and privacy rights of individuals, France is moving forward with such a law. The EU Parliament specifically had called on France to reconsider such a law, but the French Senate has approved the law by an overwhelming majority, 297 to 15. The law still needs approval from the lower house of Parliament as well, but it's disappointing that any government body would approve such a law after it's been shown to be both unnecessary and destructive.

Filed Under: disconnect, france, isps, three strikes

Useless Studies: Given The Choice Of No File Sharing Or No Internet, Guess What People Choose?

from the what-do-people-do,-not-what-they-say-they'd-do dept

A study by Entertainment Media Research claims that 72% of file sharers would stop file sharing, if sent a letter by their ISP threatening to cut them off the internet. This, obvious, supports the entertainment industry's effort over the past couple of years to get ISPs to act as their enforcers. It also ignores the fact that the EU has rejected such three strikes policies as a violation of users' rights. If someone puts a gun to your head and tells you to do something, plenty of people will probably do it, but that doesn't mean that it's right. Furthermore, what the study is really asking is, which of these two scenarios is preferable: no file sharing or no internet (which, by definition would mean no file sharing). Guess which people are going to say?

Unfortunately, results like this just mean that the industry will probably keep up its campaign to push for ISP enforcement, rather than actually coming up with better business models that embrace file sharing as promotion and a natural part of the market. They'll claim, of course, that this shows such an "educational campaign" will be effective -- ignoring the implicit "gun-to-head" part. However, as we recently discussed, there's little to indicate that the educational campaign has actually succeeded at all over the past decade, and there's little to believe that letters from ISPs will really be particularly effective in the long run. In a survey, of course people will say that they'll stop the activity to avoid getting cut off the internet. But that won't be because they think it's right or are comfortable with it. So the second a new, more secure or more underground method of file sharing comes along, they'll jump on that as well. If the entertainment industry wants to keep pursuing three strikes rules by promoting delusional studies like this one, that's it's choice, but it won't get the industry any closer to solving its business model problems.

Filed Under: entertainment industry, file sharing, studies, three strikes

New Zealand Copyright Minister Sneaks In 3 Strikes Law; Yells At Those Who Ask Why

from the reasoned-debate dept

There's been plenty of backlash around the globe towards any sort of law that requires a "three strikes" policy for kicking users off the internet for three unsubstantiated accusations of unauthorized file sharing. In many places, attempts at such laws have been abandoned. However, down in New Zealand, after one such law was proposed, a group of concerned citizens protested, and had the provision removed, while also adding in a provision that put liability on copyright holders who filed false claims. However, at the last minute, the country's copyright minister, simply changed it and put the three strikes provision right back in. This resulted in some outrage, and a meeting was set up between the copyright minister and those who had fought hard for the earlier change. As Boing Boing notes, the meeting did not go particularly well:

When it opened, [Associate Minister of Commerce, responsible for copyright] Judith Tizard spent 30 minutes telling us why the change had to be made. She began by strongly expressing her anger that we had complained to her at this stage in the proceedings. None of us, she said, had been to see her before this on this topic. When we protested that we had worked with the Select Committee, which had removed this provision - and balanced it with one which made licence holders liable for false accusations - she said that this was completely inappropriate of the Select Committee, because Cabinet had already decided this was going ahead. We should not have been surprised, we were told, that this provision was reinserted by the government at the last minute before the bill was passed....

She set forth strong views about how the launch of Sione's Wedding had been ruined, about how studios in Auckland were running out of work, and about how artists were mortgaging their homes to make films and music and were not making any returns on their investments, all, she said, because of Internet piracy.

One of the Internet group tried to ask her whether the term piracy was appropriate, but she insisted that it was because people's livelihoods were at stake. She also said that, since the Internet Service Providers were making money from providing Internet they were making money from copyright infringements and they have to find a way to deal with it. This was couched in very strong language.

What you see here is cognitive dissonance at work. This government official has decided what the problem is and who's at fault, and simply will not listen to any of the reasonable explanations for why she's wrong. But given that last paragraph and based on that reasoning, we should be taxing ISPs to provide money to newspapers. After all, "people's livelihoods are at stake" and ISPs are "making money from online news." Or, we should be taxing auto companies to provide money to horse-drawn carriage makers. After all, people's livelihoods are at stake, and car companies are making money from the roads that were built for horse-drawn carriages. And, of course, we should be taxing any book publishing company that prints the bible, and supplying the money to monks. Their livelihood as scribes is at stake, and they are now making money based on taking away work from these monks.

If Tizard's logic were to prevail, there would be no innovation and no competition -- because any innovation or competitor would put someone else's livelihood at stake, and would build off of the market they had helped create. Most people see why this makes no sense. Unfortunately, the person in New Zealand making the laws does not.

Filed Under: judith tizard, new zealand, specious reasoning, three strikes

Cox Lies To Customers; Says DMCA Requires Disconnects For File Sharing

from the that's-flat-out-false dept

While there's been a big push among the entertainment industry to get ISPs to adopt a "three strikes" policy that would have ISPs disconnect internet access to users accused of unauthorized file sharing, with them losing their account permanently after the third time. This is highly problematic for a variety of reasons, starting with the rather flimsy evidence that the entertainment industry relies on, combined with the idea that the accused are considered guilty with no process of appeal. Furthermore, there's no clear reason why an ISP should act as a copyright cop for the entertainment industry. In fact, many ISPs trashed such proposals, and told the entertainment industry where to shove them. More recently, the EU Parliament rejected such laws mandating three strikes policies, noting that they were clear violations of individuals' freedom.

One of the reasons that the entertainment industry had been focusing on Europe, Australia and Canada for such programs was that it seemed that US ISPs had made it clear that they would never adopt such a three strikes policy. Think again. Apparently cable giant, Cox, has quietly adopted a three strikes policy and is kicking users off the internet if they're accused of file sharing.

Even worse, the company is lying to customers about it, claiming that the DMCA requires them to do so:

Under the DMCA, we have the responsibility to temporarily disable your Internet access, until such time as you take the necessary steps to remove the infringing files and to prevent further distribution of copyrighted material.

This is a complete fabrication. The DMCA has no such requirement. What's really odd is that Cox had built up a reputation as being the customer friendly broadband ISP that took customer service very seriously. Yet, here they are, cutting users off, lying to them about why and relying on the entertainment industry's weak evidence to harm its customers. It's a shame. In the meantime, we'll extend an earlier challenge to Cox. Will it accept a three strikes policy of its own? If it cuts off users three times and the evidence is shown to be false, will it provide free internet access to that user?

Filed Under: disconnects, dmca, three strikes
Companies: cox

European Parliament Rejects Laws Kicking File Sharers Off The Internet

from the three-strikes-law-strikes-out dept

Earlier this year, the EU Parliament spoke out against laws proposed by entertainment industry lobbyists, that would force ISPs to kick accused file sharers off the internet using a "three strikes" law. Now the Parliament has made its position even clearer, taking a vote and, once again, rejecting the idea of using three strikes laws to fight unauthorized file sharing, noting that it interfered with civil rights and privacy rights of individuals. The sponsor of the motion made it clear: "You do not play with individual freedoms like that." He also suggested that France, who had already put in place a three strikes law, should reconsider. It's so rare these days to see politicians not falling for the lobbyists' claims, that it's nice to see.

Filed Under: eu, europe, isps, parliament, three strikes

Did The EU Accidentally Support A '3 Strikes' Policy For Internet Users?

from the not-at-all-clear dept

There was talk earlier this week that, despite an earlier rejection in the EU of a "three strikes" plan that would effectively turn ISPs into copyright cops, a new vote might backdoor in the same results. The proposal was approved, but there appears to be considerable confusion over what it actually means. The text says that European regulators should provide "cooperation" between ISPs and those who are "interested in the protection and promotion of lawful content." To many, that sounds like turning the ISPs into copyright cops. But, the politicians who approved it claim it has nothing at all to do with copyright, saying that it's all about providing easier access to services:

"It is about new provisions so that users can find out about new services. It will make price comparison sites easier to set up, it will force regulators to give equivalent access to disabled users and enhance emergency services with caller location."

If that's actually the case, then the wording should be clarified, because you can pretty much bet that the entertainment industry will jump on the wording, along with claims of "international treaties" and demand that regulators force ISPs to comply with their every demand.

Filed Under: europe, isps, politics, three strikes