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

Why Hollywood's Six Strike Plan Should Be Investigated For Antitrust Violations

from the good-points dept

With there being renewed interest in the questionable deal between the RIAA/MPAA and the US's largest ISPs to set up a "six strikes" graduated response plan to cause trouble for those accused (not convicted) of file sharing, some are beginning to realize that the whole plan deserves serious antitrust scrutiny. After all, you have the representatives of two major industries getting together in a room to collude on a plan that will make internet access more expensive for users.

On top of that, since it's based on mere accusations (not convictions) -- and those accusations will come from a company with a terrible track record for accuracy -- you'll have to pay to challenge a strike and (most ridiculous of all) if you do challenge it, you are limited to just six defenses -- significantly less than are allowed under copyright law. That is, if the work is in the public domain, but published after 1923, you have no official defense under the plan. In other words, not only does the plan involve collusion among multiple big industries, but at the outset it assumes guilt before innocence, makes you pay to claim you're innocent, and won't even let you use basic defenses afforded to you under existing copyright law.

All of that seems of questionable legality. It also makes the White House's direct involvement in brokering this plan look even worse. And, once again, it makes us wonder why the real stakeholders, internet users, weren't given a seat at the table. If they were, perhaps this would have been avoided.

Of course, given the White House's involvement in brokering the deal, there doesn't seem much likelihood that the Attorney General will bother to scrutinize the agreement, since it would effectively be challenging his own boss.

That said, the article linked above suggesting that an antitrust inquiry seems necessary is written by Sean Flaim, and is based on his even more thorough research paper detailing why this program needs to be reviewed for antitrust violations. Unfortunately, the chances of that actually happening are still pretty slim.

Filed Under: antitrust, collusion, five strikes, graduated response, isps, six strikes
Companies: mpaa, riaa

ISPs Will Start Acting As Hollywood's Private Online Security Guards By July

from the time-to-find-a-better-ISP dept

Last July, we wrote about how the major ISPs had agreed to a "voluntary" "six strikes" plan (really five strikes, but everyone calls it six...) to start acting as Hollywood's private online security guards. And, by "voluntary" we mean without any input from the actual stake holders (customers) and with significant pressure being applied by the Obama administration. Since then, nothing has been heard, but the RIAA's Cary Sherman has now said that the ISPs involved will roll out their plans by July of this year, a year after the agreement went into place.

Sherman says that the plan had always been to give them a year to deal with the technical aspects of setting up the plan:

"Each isp has to develop their infrastructure for automating the system," Sherman said. They need this "for establishing the database so they can keep track of repeat infringers, so they know that this is the first notice or the third notice. Every ISP has to do it differently depending on the architecture of its particular network. Some are nearing completion and others are a little further from completion."

Funny how, now that the plan is in place, the RIAA has no problem admitting that it required significant infrastructure changes. Somehow I doubt the RIAA is paying for this... meaning that you and I are paying for it with higher fees.

Of course, the real question is what this means for the non-major ISPs who have not agreed to take part in this anti-consumer plan. Will the RIAA and MPAA now start assuming that this is a requirement, despite it not being in the law? That's what they've been doing with content filtering on user-generated content sites now. Multiple lawsuits have pointed out that because YouTube and others have installed upload filters, everyone should have to. I'd imagine it won't be long until they start making the argument that ISPs that don't implement such a plan are "inducing" infringement somehow.

Filed Under: cary sherman, copyright cops, five strikes, graduated response, six strikes
Companies: riaa

ISP's Five Strikes Plan: Railroading, MPAA/RIAA-Style

from the guilty-until-proven-innocent dept

Another day, and more questions are being raised about the "voluntary" (if you consider the US government telling ISPs they had better agree to something, "voluntary") agreement by ISPs to act as copyright cops and punish people accused (not convicted) of infringement. We already have a big issue with any plan that's based on accusations, rather than convictions. If the history of the DMCA has taught us anything, it's that people abuse these accusations regularly, and it can create massive unintended consequences and chilling effects. It's sad that ISPs would agree to such a program in the first place, but the details keep making it seem even worse.

We've already pointed out that it'll cost you $35, if you want to protest your innocence, but that's just the beginning. You see, you can't just protest your innocence. Oh no. That would be way too forgiving. Instead, you're limited to one of only six defenses, which some have pointed out fall way short of what copyright law allows. In other words, even if you aren't violating someone's copyright, just because you're accused of doing so, you might not even effectively be able to show that you're innocent, if your defense isn't one of the six official ones.

That's pretty ridiculous.

The official (misnumbered -- there's no fifth defense) list is as follows:

(i) Misidentification of Account - that the ISP account has been incorrectly identified as one through which acts of alleged copyright infringement have occurred.

(ii) Unauthorized Use of Account - that the alleged activity was the result of the unauthorized use of the Subscriber’s account of which the Subscriber was unaware and that the Subscriber could not reasonably have prevented.

(iii) Authorization - that the use of the work made by the Subscriber was authorized by its Copyright Owner.

(iv) Fair Use - that the Subscriber’s reproducing the copyrighted work(s) and distributing it/them over a P2P network is defensible as a fair use.

(vi) Misidentification of File - that the file in question does not consist primarily of the alleged copyrighted work at issue.

(vii) Work Published Before 1923 - that the alleged copyrighted work was published prior to 1923.

Take, for example, that last one. Note that it doesn't say "work is in the public domain." It just says "work was published before 1923," meaning that the work is probably (though, with sound recordings, not definitely) in the public domain. Why not just have a defense that says "work is in the public domain"? There are works that were published after 1923 that are in the public domain -- including works that people put into the public domain, or other works that were published after 1923 and before 1978, which didn't have a copyright notice (among some other options). So why aren't those allowed as defenses?

It appears that you can get into serious trouble here even if you're sharing public domain works.

Even worse, the plan says that you can use the defense that you have an open WiFi network only once:

Except as set forth herein, this defense may be asserted by a Subscriber only one (1) time to give the Subscriber the opportunity to take steps to prevent future unauthorized use of the Subscriber’s account. Any subsequent assertion of this defense by a Subscriber shall be denied as barred, unless the Subscriber can show by clear and convincing evidence that the unauthorized use occurred despite reasonable steps to secure the Internet account and that the breach of such security could not reasonably have been avoided.

This assumes that open WiFi is a mistake, rather than a choice. There are plenty of good reasons why one might want to offer an open WiFi connection, and there are ways to do so safely. But under this plan, they could get in trouble for it, despite it being perfectly legal.

So, let's see: under this plan, people are guilty until proven innocent, they have to pay to protest their innocence, their "defenses" are greatly limited, they can still get in trouble for sharing public domain content... and they can get in trouble for offering a perfectly legitimate open WiFi network. I'm curious how that's helping to "win the future," as IP Czar Victoria Espinel stated in response to this "voluntary" deal.

Filed Under: challenges, copyright, defenses, five strikes
Companies: mpaa, riaa

Get Accused Of Copyright Infringement Under New Five Strikes Plan? It'll Cost You To Challenge

from the guilty-until-you-pay dept

I wanted to do another follow-up on the post earlier today about the new five strikes plan "voluntarily" put in place by most of the major US ISPs and the RIAA/MPAA. One of our key concerns is the fact that it's all based on accusations, rather than any actual proof of infringement. The defenders of the plan say that it's okay because there are so many warnings and you can counter the strikes by asking for an "independent review." But... the details show that you actually will need to pay $35 to get that independent review. So it's not just guilty until proven innocent, but you need to pay up just to claim you're innocent.

Filed Under: challenges, five strikes