NJ Gubenatorial Candidate Speaks Out Against Six Strikes: ISP Shouldn't Decide What You Can Download

from the a-political-rallying-point dept

Via Slashdot, we learn that a gubernatorial candidate from New Jersey has staked out a clear position against the new "six strikes" Copyright Alert System. Carl Bermanson, a regular in New Jersey politics who entered the race a few weeks ago, made a nice statement about why six strikes is so problematic. Basically: why is it the ISPs' business at all?

"The internet has become an essential part of living in the 21st century, it uses public infrastructure and it is time we treat it as a public utility. The electric company has no say over what you power with their service, the ISPs have no right to decide what you can and can not download". He went on to say that while he believes copyright infringement is unethical, it is not surprising that as the law evolves to disrespect the public domain, that the public would grow to disrespect copyrights.

While some will just brush this off, it is significant in that, to date, most politicians have been playing down the whole six strikes thing as a "good example of voluntary agreements," without realizing just how angry it's making people, and how it's giving them less reason to respect copyright at all.

Filed Under: carl bermanson, cas, copyright, copyright alert system, governor, new jersey, six strikes

Six Strikes Officially Begins On Monday

from the warm-up-your-vpns dept

Kevin Collier over at the DailyDot claims he's got it on good authority that the "six strikes" system, officially known as the Copyright Alert System, officially kicks off on Monday, many months later than scheduled. For whatever reason, the organization behind the program, the Center for Copyright Information, has been insisting for some time that there was no official rollout date, and the various ISPs would be individually choosing when to turn on the random assortment of punishment mechanisms made available to copyright holders based entirely on accusations, not conviction or other proof. Apparently, what they meant was that everyone would roll it out in a single week, but on different days. Because that makes so much sense.

The ISPs—industry giants AT&T, Cablevision, Comcast, Time Warner, and Verizon—will launch their versions of the CAS on different days throughout the week. Comcast is expected to be the first, on Monday.

So, now we get to watch people get falsely accused, those with open WiFi suddenly have to fear bogus slow downs to their networks and other assorted collateral damage. Oh, and does anyone actually expect to see a sudden spike in "sales"?

Oh, and the Center for Copyright Information has put up a snazzy new website and video over some non-descript smooth jazz that I'm sure they licensed, and which practically screams the following basic message (note: message paraphrased): "Hey, we're just your friendly neighborhood copyright maximalists, out here trying to make friends and, oh, oops, we just wanted to let you know, in the friendliest way possible, that we think you're lying, thieving pirates, and we'd really like it if you stopped, or we might have to make your internet connection completely useless. But we don't want to have to do that, because we're all friends here, enjoying the internet. Isn't the internet great?" The video makes a few blatantly ridiculous claims, including suggesting that they have some foolproof technology for seeing whenever you infringe. They claim that the system is designed to "support the creative work that we all love and enjoy." Which is kind of amusing, since nothing in the system is about giving people a reason to buy. Just a reason to get pissed off at ISPs and copyright holders for making accusations. I'm sure that's going to convince so many people to buy.

Filed Under: copyright, copyright alert system, isps, jill lesser, six strikes
Companies: at&t, cablevision, center for copyright information, comcast, time warner, verizon

Copyright Is Becoming Guilt By Accusation

from the guilty-until-proven-otherwise dept

TorrentFreak has a good post about how copyright holders have been effective in moving copyright into a modern form of "witch trials" in which you are guilty based on accusations, and then have to go through a long, arduous and often biased-against-you process of proving your innocence. The article points out two examples of this. First, the Kafka-esque process that Jonathan McIntosh went through to keep his mashup video (one cited by the Library of Congress as a quintessential example of fair use) from being taken off YouTube. Of course, it actually was off for quite some time, because YouTube's ContentID system is also based on a "guilt by accusation" system -- after which you have to convince everyone (including, initially, your accuser) that you're really innocent.

The second is the new "six strikes" plans from US broadband players. One of our main complaints with all of the "strikes" plans is that they all are based on accusations, rather than any conviction. While there's an "appeals" process, it's quite limited and the rules have it so that the deck is completely stacked against those who appeal.

What both of these examples have in common, obviously, is that they're so-called "voluntary" solutions, put in place by companies, often due to arm twisting by the entertainment industry, combined with threats of government regulation if such "voluntary" actions don't happen. While it may seem that voluntary agreements are to be encouraged, when they create a situation like this, in which users are being declared guilty merely upon accusation, with little real recourse in many cases, something seems wrong. We run a very real risk of discouraging important services and innovations when we start taking away core concepts like "innocent until proven guilty" -- even if it's just in civil issues between private companies. It's a trend that's quite worrisome and can lead to many innocent people getting punished.

Filed Under: accusation, conviction, copyright, jonathan mcintosh, six strikes

Six Strikes Administrator: Loss Of Open WiFi Access At Cafes Is Acceptable Collateral Damage

from the really-now? dept

We recently covered some of the details of various "six strikes" policies being implemented by most of the large broadband providers in the US, noting that with Verizon's, it appeared that small businesses that offered free and open WiFi could get in trouble for doing so. TorrentFreak has followed up with Jill Lesser, the executive director of the Center for Copyright Information (CCI), the organization coordinating these plans, and discovered that this impact on small businesses is not an error, and Lesser does not seem to see a problem with it, arguing that offering such open and free WiFi is a violation of the terms of service for most small businesses.

“In addition, the terms of service on such accounts do not allow them to be used to provide free WiFi or ‘hotspots’ so the hypothetical cafe owner offering public WiFi will not be subject to the CAS if they are following their terms of service.”

Similarly, she says that if it impacts small businesses or home-based businesses that use residential accounts, she doesn't see it as a problem, since those businesses shouldn't "allow" their employees to "engage in copyright theft." Of course, it's not theft, but infringement -- and it's frustrating that someone like Lesser would misrepresent these things.

That said, her cavalier attitude towards these very common scenarios, which will have real impacts on a variety of small businesses, is unfortunate and dangerous. The importance of a fully working broadband connection to small businesses todays cannot be overstated. To suggest that all of this is okay because they're not following an almost universally ignored term in the terms of service on such accounts seems to be dismissing things way too simply.

The end result of this is likely to be a lot less public and open WiFi at a time when we actually need much more open access. That may not matter to the RIAA and MPAA -- who still don't understand the importance and value of internet access -- but it matters an awful lot to the pubilc and a variety of small businesses.

Filed Under: jill lesser, open wifi, six strikes, small businesses
Companies: cci, verizon

Details Of Various Six Strikes Plans Revealed; May Create Serious Problems For Free WiFi

from the the-death-of-free-wifi dept

Ah, unintended consequences. TorrentFreak has been doing a fantastic job sussing out the details of how various ISPs are going to implement the infamous "six strikes" plan. Earlier, it had found that AT&T's plan was to block access to frequently visited websites, while the fourth strike will include redirections to "educational material." Time Warner Cable, for its part, has said that it will direct users to a landing page, effectively interrupting your ability to surf the web without it being crazy annoying. The latest is the discovery of the details of Verizon's plan, which will involve reducing speeds of the connection to a slow poke speed of 256kbps. I don't know if you've tried surfing the web at 256kbps lately, but it's ridiculously frustrating, because pages are optimized for much higher speeds: Comcast and Cablevision (the two other participants) haven't leaked out any details yet, but you have to imagine that the situations would be similar. One thing to note, this isn't really a "six strikes" plan at all. AT&T's more draconian actions appear to kick in after the 4th notice. Verizon's kick in after the 5th notice. I know it's been popular to call it a "six strikes" plan, but our initial read suggested that it was really more of a five strikes plan, since mitigation factors were supposed to start after five. It's interesting to see that AT&T seems to want to push that even further.

All of the ISPs, of course, will say that they're not "cutting people off" from the internet, though they are making connections barely usable. Especially troubling is that, as TorrentFreak reveals in the latest post on this, at least Verizon's responses will apply to businesses as well. So that cafe down the street that has free WiFi... may quickly be throttled down to 256kbps. That will likely mean a lot less free WiFi out there, which is a significant and worrisome consequence of this program.

All of these programs seem focused on driving people to "educational content" about copyright infringement. It will be quite fascinating to see what kind of educational content is provided. We've seen in the past that most such attempts are really bad and one-sided. Even YouTube's "copyright school" is ridiculously one-sided and perpetuates myths about copyright, and suggests that fair use is too complex for you to even bother trying to understand.

Also, as the strikes get higher, there are two things to be aware of: ISPs are then more likely to hand over info to the copyright holders, meaning that it could still lead to copyright holders directly suing. That is, the "mitigation" factors are not, in any way, the sum total of the possible consequences for those accused. On top of that, we still fully expect that at least some copyright holders are planning to insist that ISPs who are aware of subscribers with multiple "strikes" are required under law to terminate their accounts. At least the RIAA has indicated that this is its interpretation of the DMCA's clause that requires service providers to have a "termination policy" for "repeat infringers." So it's quite likely that even if the ISPs have no official plan to kick people off the internet entirely under the plan, some copyright holders will still push for exactly that kind of end result.

Filed Under: copyright, education, five strikes, isps, six strikes, throttling
Companies: at&t, time warner cable, verizon

Six Strikes Delayed Until 'Early Part' Of 2013

from the of-course-it-was dept

We heard rumors of this a couple weeks ago from people involved in some of the six strikes program at various ISPs, but the six strikes effort, already delayed from its original planned starting date of July until around now, has been pushed back again until "the early part of 2013." The Center for Copyright Information, which is administering the program, claims that it's due to "unexpected factors largely stemming from Hurricane Sandy," but we've heard that's mainly an excuse for some other problems that meant the plan was simply not ready for prime time. Either way, the program will certainly begin at some point... at which point ISPs and the entertainment industry will proceed to piss off some of their best customers for no good reason. Can't see how that's going to increase sales, but I guess all of those MPAA lawyers who have "anti-piracy" in their titles have to feel like they're contributing something to justify their salaries.

Filed Under: delay, isps, six strikes

RIAA Apparently Forgot To Tell Six Strikes Coordinators That The 'Independent' Firm It Hired Used To Lobby For The RIAA

from the with-age,-comes-forgetfulness dept

TorrentFreak broke an unsurprising, but amazing, story this week in uncovering that Stroz Friedberg, the supposedly "independent and impartial tech expert" that was brought on to assist the Center for Copyright Information (CCI) in making sure that the new "six strikes" program BitTorrent monitoring is accurate, used to lobby for the RIAA. Apparently this bit of news took folks at CCI completely by surprise, since the RIAA failed to mention that tidbit of info. Now, CCI is apparently scrambling to make things right -- either by finding someone new, or by "opening up" the review that Stroz Friedberg does for the public to review. Either way, it's pretty incredible that the RIAA thought that no one would notice that the "impartial and independent" expert just happened to be a biased party that lobbied directly for them in the past.

Filed Under: independent, lobbyists, six strikes
Companies: cci, riaa, stroz friedberg

Hollywood Star Rosario Dawson Speaks Out Against Hollywood's 'Six Strikes' Plan

from the speak-out dept

To hear the MPAA and RIAA tell the story, they represent "the entertainment world." They like to pretend that they represent all of the actual content creators, but more and more people are realizing the truth: they represent the legacy gatekeepers, who have often done more to screw over the actual artists than to help them. So, as we get closer and closer to the silly "six strikes" plan that the MPAA and RIAA worked out with ISPs, it's good to see that some of those they pretend to represent are speaking out against the plan. Actress Rosario Dawson has taken to Twitter to speak out against the plan:

ISPs caving to copyright holders- could shut off your Internet if you're accused of piracy...! bit.ly/VRNLFa via @demandprogress

— Rosario Dawson (@rosariodawson) October 11, 2012

If you can't read that, it says:

ISPs caving to copyright holders- could shut off your Internet if you're accused of piracy...!

And then it links to DemandProgress' petition to the ISPs telling them not to support the six strikes plans or subscribers will take their business elsewhere. Of course, for too many customers, "elsewhere" isn't an option, thanks to a lack of a truly competitive market. Either way, as we saw with the SOPA fight, more and more artists -- musicians, actors, writers, etc. -- are making it clear that the RIAA & MPAA don't represent them, and they know part of these crazy plans that are being pushed in their names. Kudos to Dawson for speaking up.

Filed Under: hollywood, isps, rosario dawson, six strikes
Companies: mpaa, riaa

Why The Six Strikes Plan Doesn't Mesh With US Law Or Social Norms

from the not-justice dept

With various ISPs getting ready to kick off the entertainment industry's "six strikes" plan to send warnings to users if they're accused of infringement, leading up to "mitigation" efforts, in which users can find their accounts downgraded or limited for multiple accusations (not convictions), some are exploring the specifics of the system. Annemarie Bridy from the University of Idaho recently took a look at the six strikes plan and compared it to five basic "norms" that are "central to consumer protection." The report is thorough and balanced, and finds that the plans do okay on some factors, but has some serious concerns about other areas:

On the negative side, there are insufficient safeguards in CAS to insure the accuracy of allegations of infringement, the fairness of the independent review process, and the independence and expertise of the various “independent experts” the MOU requires CCI to consult. Moreover, there is no way for the public to know whether the program is meeting the goals established for it in the MOU.

Those all seem like pretty big "negatives." The accuracy of the allegations is a huge one, since (once again) the whole system is based on allegations and not convictions. This has been my concern with all of these plans since the beginning. Generally speaking, here in the US, we tend to believe that you have to actually be found guilty of violating the law before being punished as if you did break the law. But the six strikes system flips that on its head. Those accused have the burden almost entirely on them -- and (even worse) are given limited defenses which block certain key things (such as claiming that a work is in the public domain). The report highlights this concern:

The Copyright Act provides a range of defenses and exceptions to copyright infringement. While the exclusive rights of copyright owners are fully enumerated in just two sections of code, section 106 and section 106A, the following fifteen sections—107 through 122—enumerate a wide range of limitations and exceptions that are crucial for maintaining a balanced copyright system. CAS, by contrast, permits a subscriber to raise only six defenses, and only two of those—fair use and publication before 1923—are grounded directly in copyright law.

It is true that many of the defenses and exceptions provided in the Copyright Act are not relevant to the lion’s share of infringement claims arising from P2P file sharing. But CAS, on principle, should permit a subscriber to raise any relevant defense that is cognizable under the public law of copyrights. There are, for example, several reasons for which a work can be in the public domain that are unrelated to publication before 1923, which is the only out-of-copyright scenario the MOU contemplates. Works in the public domain include those published between 1923 and 1963 whose copyrights were not renewed, works published before 1989 without proper copyright notices, and most works created by the U.S. government. The rules concerning lapse and loss of protection are complicated, even byzantine, but they are nevertheless the rules. If the substantive law of the independent review under CAS is U.S. copyright law, as it should be, then all relevant provisions of U.S. copyright law should be the law of CAS.

Putting the burden on the accused is also a major concern which basically goes against everything we believe in the US about where the burden should lie:

In civil suits for copyright infringement, the burden of proof is on the plaintiff, who must prove both ownership of a valid copyright and infringement of an exclusive right granted by section 106 of the Copyright Act. CAS alters this allocation of burdens by making it the responsibility of the accused (i.e., the recipient of a fifth or sixth copyright alert) to raise and prove a defense to infringement in order to avoid a sanction. In addition to shifting the burden of proof with respect to infringement, the MOU creates a presumption of accuracy in favor of the copyright owner, as discussed above in Part III.B above, with respect to both the capture of IP addresses and the identification of copyrighted content. The presumptions of accuracy attach under the MOU as long as the copyright owners’ methods of collection and identification have not been found “fundamentally unreliable” by a technical expert. On the strength of these presumptions, notices from the complaining copyright owner are treated as proof of infringement sufficient to trigger the imposition of a sanction. Such treatment was criticized in Corbis Corp. v. Amazon.com, a case interpreting the repeat infringer provision of the DMCA.

The allocation of burdens built into CAS is troubling because it conflicts with a basic principle underlying our justice system—that a person accused of having engaged in illegal conduct is presumed innocent until proven guilty in a court of law.

Of course, they can get away with this because the whole thing is supposedly a "voluntary" agreement between private parties (which ignores the government's close involvement in the negotiations). Either way, it seems to just add more questions about why ISPs were willing to agree to such a plan, when it seems to be at odds with the law itself.

Filed Under: burdens, copyright, innocent until proven guilty, six strikes, social norms, us laws

RIAA's Backdoor Plan For Using 'Six Strikes' Plan To Cut Off Internet Access For People

from the sneaky-sneaky dept

Following Torrentfreak's publication of a slide from a confidential RIAA presentation, they've now released another damning slide, showing (among other things) that the RIAA did not think that SOPA/PIPA would be effective in stopping music infringement: Of course, they also insist that the opposition was "activated by Google," which is flat out untrue, even though I know the RIAA folks believe it (I had a conversation with an RIAA person a few months ago, and nothing would shake his absolute conviction that the whole thing was a Google plot).

To be honest, this "confession" is not a huge surprise. While many people often lump the MPAA and RIAA together, SOPA/PIPA was almost entirely driven by the MPAA. The RIAA basically did the least amount required to officially show its support for the bill -- but all of the pushing for the bill was done by the MPAA. I had wondered if it was just a sign that the RIAA is simply running out of steam as its main members are dwindling, but now it seems clear that even they realized SOPA/PIPA was not an effective plan. Of course, when we explained why SOPA/PIPA wouldn't have been effective, supporters claimed we were behind a misinformation campaign. I guess the RIAA was a part of that campaign as well, huh?

But, perhaps even more interesting was another tidbit later in the TorrentFreak post, concerning how the RIAA views the six strikes plan. For some background, while various "three strikes" plans around the globe are focused on taking away internet connections after accumulating three "strikes" (based on accusations, not convictions), when the "voluntary" (with a big shove from the government) plan was put in place, part of the messaging was that disconnection was not an option.

However, according to the presentation, it appears that the RIAA has a backdoor plan to put in place a disconnection regime. Basically, they're noting (accurately) that the DMCA already requires that service providers who wish to retain safe harbors have a "termination policy" in place. That's true. But here's the sneaky part: the RIAA is ready to insist that a reasonable termination plan under the DMCA would require an ISP to terminate a user once they get to those six strikes. In other words, the plan doesn't require termination -- which was necessary from a PR standpoint -- but the RIAA is going to claim that the law already requires it. Sneaky, sneaky:

Some ISPs do indeed threaten to disconnect users for infringement based on a TOS violation. However, Sheckler says that the responsibilities of Internet companies go further and as carriers they are governed by legislation.

In order for ISPs to be eligible for safe harbor provision under the DMCA, she writes, they are required to have a “termination policy for repeat infringers” under “appropriate circumstances.”

So, although account disconnections aren’t specifically included in the list of “six strikes” mitigation measures agreed in the Memorandum of Understanding, the RIAA is clearly aware that if they’ve issued infringement notices against an account holder six times, then that user has a good chance of being viewed as a “repeat infringer” by their ISP – at least if prompted to do so by the RIAA.

This is the RIAA I'm used to. Using misdirection and sneaky language to get what it wants while claiming otherwise publicly.

For what it's worth, we've heard that some of the reasons for the delays in launching the six strikes plan has to do with the ISPs pushing back on RIAA/MPAA desire for disconnections to occur. I don't know how accurate that is, but it would fit with what's stated above -- and certainly suggests we haven't seen the last of this. If anything, it sounds like a lawsuit may eventually have to be filed to see if the RIAA can effectively force an ISP to terminate accounts over the six strikes plan...

Filed Under: disconnection, dmca, pipa, six strikes, sopa
Companies: riaa