'Six Strikes' May Be Dead, But ISPs Keep Threatening To Disconnect Accused Pirates Anyway

from the undead-whac-a-mole dept

Earlier this year, the entertainment and telecom industries' "six strikes" anti-piracy initiative died a quiet death after years of hype from the RIAA and MPAA about how it would revolutionize copyright enforcement (it didn't). The program involved ISPs using a rotating crop of "escalation measures" to temporarily block, throttle or otherwise harass accused pirates until they acknowledged receipt of laughably one-sided copyright educational materials. Offenders, accused entirely based on IP address as proof of guilt, were allowed to try and contest these accusations -- if they paid a $35 fee.

Needless to say, data suggests the Copyright Alert System didn't do much if anything to stop piracy, since most would-be pirates simply obscured their internet behavior using proxies and VPNs. Meanwhile, the supposed "education" the program provided American consumers accomplished little more than driving up broadband costs as ISPs passed on the cost of participation in the farce to the end user.

But while six strikes is technically dead, that's not apparently stopping participating ISPs like Verizon, Comcast and Time Warner Cable (now Charter Spectrum) from continuing to threaten to disconnect users from the internet based on often-flimsy IP address evidence. Users of these ISPs say they continue to receive threats from their ISP that they'll be kicked off of the internet if they don't stop being naughty:

"So, over the weekend my internet got interrupted by my ISP (internet service provider) stating that someone on my network has violated some copyright laws. I had to complete a survey and they brought back the internet to me,” one subscriber wrote a few weeks ago. He added that his (unnamed) ISP advised him that seven warnings would get his account disconnected.

Another user, who named his ISP as Comcast, reported receiving a notice after downloading a game using BitTorrent. He was warned that the alleged infringement “may result in the suspension or termination of your Service account” but what remains unclear is how many warnings people can receive before this happens.

To be clear ISPs don't actually kick people off of the internet, as nearly everybody (outside of the RIAA and MPAA) has acknowledged that severing access to a necessary utility is a draconian over-reaction to downloading the Led Zeppelin discography. Under the six strikes initiative, nothing actually happened to users after reaching the sixth strike, the hope being you could scare people into compliance (it doesn't work). The only way to ensure compliance would be to craft an organization tasked with tracking individual users as they float between ISPs, an approach France found to be an untenable disaster.

Nothing still happens to users who give a middle finger to these warnings, but that apparently doesn't stop ISPs like Verizon from temporarily suspending user accounts, requiring they call up the droll old telco sexy new Millennial-focused advertising powerhouse to get reconnected to the internet:

"So lately I’ve been getting more and more annoyed with pirating because I get blasted with a webpage telling me my internet is disconnected and that I need to delete the file to reconnect, with the latest one having me actually call Verizon to reconnect,” a subscriber to the service reported earlier this month."

Of course many of these ISPs are just going through the motions because of the Cox versus BMG case, in which a notably-distorted interpretation of the DMCA by Judge Liam O'Grady now puts ISP safe harbor protections at risk -- if they don't participate in this useless and costly game of make believe. Most ISP executives I've spoken to make it clear that the broadband industry is cooperating begrudgingly to protect themselves from liability, and are all well aware of the futility and ineffectiveness of these systems, the cost of which are now rolled into your already bloated broadband bill.

So while six strikes may formally be dead, the animated corpse of the misguided concept lives on, with ISPs that don't even believe in what they're doing pretending that this costly and annoying system of threats and scolding actually has any substantive purpose. That, apparently, will have to make do until the MPAA and RIAA (and the myriad of lawmakers and dollar per holler consultants paid to love them) can concoct an even worse idea.

Filed Under: copyright, isps, six strikes, three strikes

Ding Dong: Silly Six Strikes Copyright Infringement Scheme Is Dead

from the about-time dept

The pointless "six strikes" plan -- a hilarious "voluntary agreement" between some big ISPs and the MPAA & RIAA is no more. It's dead. It never should have lived, and of course, the MPAA is now blaming everyone but itself for the failure -- and we'll get to that. But first, some background.

As you may remember, back in 2011, after significant direct pressure from the White House, many of the big ISPs and the MPAA & RIAA came to a (ha ha) "voluntary" agreement on a six strikes program to deal with "repeat infringers." There was a lot of history behind this, which we won't rehash, but the shorter version is that, for many years, the MPAA & RIAA have stupidly believed that if you could kick people off the internet (completely) if they're caught infringing three times, that would magically make piracy go away. They got a "three strikes" law passed in a few countries, starting with France. It was a complete disaster, as basically everyone who wasn't from the MPAA and RIAA predicted.

In the US, it became clear that there wasn't the political appetite to push through a three strikes law, so instead parts of the government, starting with the White House, started putting tremendous pressure on ISPs to work out a deal. The negotiations took a very, very long time. There were lots of rumors about them and then radio silence -- until the "six strikes" deal was announced. The "compromise" was that (1) it was six strikes instead of three and (2) after six strikes... nothing happened. The key aspect of the three strikes plans the legacy entertainment industry had pushed was that you lose your internet connection. But the ISPs, rightfully, considered that a complete dealbreaker and basically refused any deal with a cut off.

Of course, just months after the agreement was reached, the whole SOPA/PIPA thing happened, and ISPs realized that they probably could have pushed back even harder and not agreed to a crummy deal. The implementation of the plan was delayed repeatedly, and it was believed that some of the ISPs wanted to renegotiate post-SOPA.

The plan finally went into effect, and just as lots of people predicted, it had no real impact. Just as everywhere else where this plan went into effect, people who really wanted to find infringing works continued to do so. They just found ways of avoiding being spotted. It certainly didn't magically make people want to go out and buy stuff. The organization that was set up to manage the six strikes program, the Center for Copyright Information (CCI) bravely put on its best Baghdad Bob beret and insisted that the plan was working great -- even as leaked documents showed that Hollywood knew from early on that the plan was a dud.

And now it's dead:

Major internet providers are ending a four-year-old system in which consumers received “copyright alerts” when they viewed peer-to-peer pirated content.

The ISPs, studios, and record labels did not extend a pact that implemented the voluntary program, viewed as a way to fight piracy without the need for congressional legislation. When it debuted in 2013, it was viewed as a major new initiative to fight piracy, with Internet users subject to repeated notices if they continued to access infringing content.

But, true to form, the MPAA wants to point the finger at everyone but itself for its own failures to stop treating fans as criminals:

Although no reason was given for ending the program, the MPAA, in a statement from its general counsel, indicated frustration at the inability to stop repeat infringers.

“These repeat infringers are the ones who drive ongoing and problematic P2P piracy,” Steven Fabrizio, executive vice president and global general counsel at the MPAA, said in a statement. “In fact, an estimated 981 million movies and TV shows were downloaded in the U.S. last year using P2P. ”

Left out of this, of course, is the fact that the movie studios had the best year ever last year in terms of US box office revenue. And that more and more people are happy to pay for services like Netflix, even as the studios have been basically pulling tons of movies from those legal services.

We've been saying it for nearly two decades, but piracy is not the problem. Not listening to your customers is the problem. The MPAA is so focused on punishment it never recognizes that the carrot works better than the stick (which never actually works).

Of course, the MPAA still isn't getting this lesson. It's doubling down, which is why the BMG v. Cox case is so important to watch. Even before the six strikes plan went into effect, the legacy entertainment industry admitted that the real goal was to force ISPs to disconnect users. They planned to lump the six strikes plan in with a total misinterpretation of the DMCA to incorrectly argue that the DMCA actually requires ISPs to kick users off their service.

This reading is plainly wrong from what was in the DMCA and the negotiations around the DMCA. The law does require a policy to terminate "repeat infringers" but that was for online services (like a YouTube or a blog hosting company) and not for access providers. Unfortunately, in the Cox case, the judge seemed to get hung up on some unfortunate emails and a bizarre lack of understanding about how important an internet connection is for many people today, and ruled that ISPs do have to kick people off the internet.

That case is now on appeal, and basically all of the usual suspects (on each side) have been filing amicus briefs to push the 4th Circuit one way or the other. But a decision on that should be coming in the not too distant future, and that's going to be super important. If BMG's win is upheld, then it may be seen as a requirement for ISPs to not just put in place their own three- to six-strikes type plan, but that it would need to kick people off the internet based on such accusations (not convictions) of infringement.

And none of that will make people buy a product they don't want.

The MPAA has had a couple of decades to stop attacking its biggest fans as criminals and to actually focus on providing them what they want. And it keeps on failing to just focus on that. Instead, it keeps overreacting to piracy and getting infatuated with the idea that it must break the internet. The death of the official six strikes plan was inevitable. It was a dumb plan from the start. But the real issue here is what will happen in court. Will the court uphold a dangerous plan that will lead to innocent people being kicked completely off the internet? Or will it recognize that maybe, just maybe, Hollywood's focus on control shouldn't ruin people's lives?

Filed Under: copyright, dmca, dmca 512, isps, six strikes, three strikes, voluntary agreements
Companies: bmg, cci, cox, mpaa, riaa

Hollywood Studios Call Six Strikes A 'Sham,' Cue Plans For Something Much Worse

from the deep-well-of-dysfunction dept

When the entertainment and broadband industries' "six strikes" anti-piracy regime first launched a few years ago, most people (outside of Hollywood) realized it wouldn't work for a number of reasons. One, data has pretty consistently shown that such graduated response anti-piracy systems -- whether three "strikes" or six -- don't work, and in fact may actually make things worse. Two, even partner ISP execs I spoke to ahead of the program's launch made it clear they knew the program wouldn't do much, with most infringers simply hiding their behavior behind proxy servers of VPNs.

Publicly, the firm created to run the program (the Center for Copyright Information) has frequently tried to claim the program is a smashing success, often using unreliable, contradictory evidence to try and suggest pushing ISPs into the role of content nannies was a wonderful idea. But privately, Hollywood and the MPAA have acknowledged the program isn't doing much, though they're quick to argue that this is only because it hasn't yet been "brought up to scale."

Amusingly, some of the very same Hollywood voices that pushed so hard for six strikes and ignored warnings that it wouldn't work, are now calling the program an abject failure. The Internet Security Task Force, a coalition of smaller studios, which counts copyright troll Voltage Pictures among its members, has come out swinging this week against six strikes in a press release, calling the program a "sham":

"We’ve always known the Copyright Alert System was ineffective, as it allows people to steal six movies from us before they get an educational leaflet. But now we have the data to prove that it’s a sham," Gill comments. "On our film ‘Expendables 3,’ which has been illegally viewed more than 60 million times, the CAS only allowed 0.3% of our infringement notices through to their customers. The other 99.7% of the time, the notices went in the trash,” he adds."

One, ISTF doesn't appear to know how the program Hollywood pushed for actually works, since users receive an "educational leaflet" the first time they're found to infringe. Steps two through six then include "mitigation measures" that may involve having your connection throttled or finding your broadband access temporarily suspended until you've clearly acknowledged you've been naughty. Users then have the honor of paying a $35 fee if they'd like to fight the accusation. After the sixth strike nothing happens, and nobody tracks offenders between ISPs, something Hollywood is surely eager to "remedy" with program updates.

ISTF notes that the five major ISPs participating in six strikes (AT&T U-verse, Cablevision, Comcast, Time Warner Cable and Verizon FiOS), saw a 4.54% increase in infringements during the fourth quarter of last year. Two non-participating ISPs, Charter and Cox (the latter of which is being sued by BMG for allegedly ignoring piracy), saw a 25.47% decrease in infringements during that same period. Assuming you can trust Hollywood math here (never a wise bet), the ISTF claims this is proof of the fact that ISPs aren't taking piracy seriously:

"These alarming numbers show that the CAS is little more than talking point utilized to suggest these five ISPs are doing something to combat piracy when in actuality, their customers are free to continue pirating content with absolutely no consequences," said ISTF member Nicolas Chartier, CEO of Voltage. "As for its laughable six strikes policy, would any American retailer wait for someone to rob them six times before handing them an educational leaflet? Of course not, they call the cops the first time around."

Of course if non-participating ISPs are seeing infringement drop massively while participating ISPs are seeing a slight rise, that would seem to suggest that graduated response programs actually make things worse, which is what data Hollywood ignored said in the first place. The ISTF's solution for the States is to implement an uglier version of Canada's Copyright Modernization Act, which gives ISPs safe harbor only if they agree to pass on all infringement notices. While the Canadian law caps damages, it hasn't done much to thwart copyright trolls, who appear to just be making up for the income reduction by shaking down Canadian users on greater scale.

While these smaller studios are solely focused on greasing the rails for their "settlement-o-matic" shake downs, it's only a matter of time before the MPAA and the larger studios start pushing for "improvements" to six strikes as well, whether that's an organization that tracks offenders between ISPs, or a frontal assault on VPNs and proxy services. And that's just it, these studios consistently whine about the need for aggressive enforcement policies that have been proven not to work, and when they fail the answer isn't adaptation of the business models to the modern age, it's an expansion of already-bad ideas that clearly aren't working. It's a bottomless well of dysfunction. Unfortunately for Hollywood, any expansion of six strikes is going to have a steeper uphill climb in the post SOPA era, which may hinder the program from mutating into something truly monstrous.

Filed Under: cas, copyright, copyright alert system, copyright trolling, hollywood, infringement, isps, six strikes, studios
Companies: cci, internet security task force, istf, mpaa, voltage pictures

Hollywood Privately Acknowledges Six Strikes Program Isn't Doing Much, Guaranteeing It Will Get Much Worse

from the bigger-and-better-is-bad dept

We're getting close to the two-year anniversary of the Center for Copyright Information's (CCI) "six strikes" anti-piracy regime. The program, with cooperation from the biggest ISPs, involves forwarding on copyright infringement notices to consumers and punishing users via a "graduated response" program. Said responses vary by ISP but can include a user being temporarily locked behind a walled garden filter until they acknowledge receipt of one-sided "educational" materials, or having your connection throttled temporarily until you admit you've been naughty. If innocent, you have to pay a $35 fine to defend yourself.

While the program might seem effective in scaring little Billy straight once his parents notice their connection doesn't work, it clearly hasn't had much of a meaningful impact on piracy rates. Unsurprisingly, the entertainment industry argues this is because the measures don't go far enough; nobody tracks offenders between ISPs, absolutely nothing happens to a user that violates all six strikes (the program simply stops and no more notifications are sent) and most users can simply hide their behavior behind the use of BitTorrent proxy services.

That hasn't stopped CCI from frequently trumpeting six strikes as a smashing success, often using unreliable, contradictory evidence (when it can be bothered to show evidence at all) to support their argument that forcing ISPs into the role of content nannies is a great idea. Privately however, newly leaked MPAA documents suggest the entertainment industry isn't so sure six strikes is doing much of anything.

The leaked documents show the program isn't having quite the impact the MPAA would like, though again, unsurprisingly, the MPAA believes that's only because the program isn't big enough yet. While there's the occasional attempt to suggest that offenders change their ways after receiving notices, the document then proceeds to note the MPAA actually has no idea if people change their behavior, since it's possible they switched ISPs or are hiding their behavior via BitTorrent proxy services:

"The U.S. system is “not yet at scale” or operating with “enough education support” according to the MPAA. As a result the CAS has not made an “impact on the overall [piracy] landscape...“No current information as to the behavior of users who appear to stop P2P infringement – do not know whether [they are] migrating to other pirate systems or to lawful services,” the statement reads."

The MPAA's solution to this problem? Make Six Strikes bigger, bolder and thereby worse:

"Attainability as to existing programs boils down to whether ISPs will agree (a) to expand scale to levels that might impact overall P2P piracy, and (b) to enhance remedial measures so as to improve efficacy,” the MPAA writes."

I've spoken to execs at two large ISPs who have admitted privately they know most pirates have simply started using proxy services, but the ISPs are playing along begrudgingly. Already a bit put off by the added paperwork, few are going to be keen on an a voluntary expansion of the program. As such, look for the entertainment industry to lobby heavily to have this year's rewrite of the Communications Act include numerous new treasures aimed at ISP compliance of a plan expansion. Perhaps after that we can proceed to banning the use of VPNs and proxies entirely for the good of the nation?

Filed Under: copyright, hollywood, piracy, six strikes
Companies: cci, mpaa

Music Publishers, With Help From Rightscorp, Test Legal Theory That DMCA Requires Kicking Repeat Infringers Off The Internet

from the this-ought-to-get-interesting dept

Late Wednesday evening before Thanksgiving, two music publishers, BMG and Round Hill Music, who are partners of struggling copyright trolling operation Rightscorp, sued the ISP Cox, testing out the theory that (1) the DMCA requires ISPs to kick "repeat infringers" offline entirely and (2) that notices from Rightscorp suffice to prove that one is a repeat infringer. You can read the complaint here [pdf or embedded below].

There's a lot of background here to unpack -- very little of which made it into the WSJ's initial coverage of this story. First off, it's true that the DMCA safe harbors include a requirement of a "repeat infringer" termination policy in 512(i). Furthermore, for years, the RIAA and its friends have insisted that 512(i) means that ISPs need to boot people off the internet entirely. After the RIAA, MPAA and five top ISPs agreed to the "voluntary" six strikes program, in which the ISPs insisted that it wouldn't kick anyone off the internet for file sharing, the RIAA started telling people that even when ISPs said that, 512(i) would require ISPs to kick users offline anyway.

However, that hadn't been tested in court. There had been some thinking that the RIAA and associated labels would likely wait until they had enough examples of individuals hitting all "six strikes" and still having an account before testing out this legal theory -- but it looks like Rightscorp's friends are jumping the gun. If it succeeds, then the legacy copyright players will have a massive new weapon in their arsenal: a digital guillotine that would allow them to pressure ISPs to kick people entirely off the internet for a few simple infringements.

It's interesting that the target of the lawsuit is Cox for a couple of reasons. First, years back, Cox was actually one of the first ISPs to kick people offline for file sharing, publicly stating that the DMCA required it. This argument was, and remains, incorrect, but it's unclear if Cox still follows the same practices today. The filing says that Cox says this is its policy, but it doesn't actually follow through. Second, Cox is not a partner in the "six strikes" program -- and it makes you wonder if the plaintiffs will try to use that against the company (which could pressure ISPs into joining the program to avoid liability). In other words, it's possible that part of this strategy will be to force all ISPs to join the "voluntary" six strikes program.

Either way, the legal theory is fairly questionable. As AT&T argued years ago when such a theory was floated, an ISP can't just assume that someone is a "repeat infringer" based on questionable notices -- especially when the evidence for such notices (generally IP addresses) is notoriously unreliable. Furthermore, it's worth reading the details of probably the key case on implementing a "reasonable" policy, the Perfect 10 v. CCBill case. While the situations are not analogous, that case certainly seems to suggest that service providers have pretty wide latitude in setting up a policy, so long as they're not purposely trying to interfere with efforts to respond to infringement. The fact that, at least in the past, Cox did kick users off its service, suggests that it's not ignoring these issues and has a policy, even if it's not to Rightscorp's liking. Now, that CCBill case is in the 9th Circuit, and this lawsuit was filed in Virginia (the 4th Circuit), so perhaps the plaintiffs are hoping for a friendlier view towards these theories.

In the specifics in this case, BMG and Round Hill seem to be upset that Cox won't forward Rightscorp's notices -- and, in fact, appear to treat them as spam:

Plaintiffs, through their agent, have attempted to work closely with Cox to find a workable and common sense solution to Cox's system-wide repeat infringer problem. Cox, however, has refused to engage with Plaintiffs' agent in any substantive way and instead has taken the position that repeat infringement notices provided to Cox "do not relate to matters subject to the DMCA." Incredibly, Cox's Privacy Counsel advised Plaintiffs' agent that it has implemented a "policy not to accept or to forward notices such as those sent to us by your firm." Moreover, Cox chose "to limit the number of notices that [it] can accept from many senders because of the total volume that [it] receive[s]."

By its actions. Cox has intentionally ignored and continues to ignore the overwhelming evidence that provides it with actual knowledge ofrepeat copyright infringers on its network and Cox actually has taken measures to avoid and stop receiving those notifications in direct violation of the spirit and legal requirements of the DMCA. Cox cannot have any credible, effective repeat infringer policy, let alone one that is reasonably implemented as required by 512(i), if it purposefully ignores notifications, sufficient under the DMCA, of repeat infnngers sent by copyright owners who are tracking the repeat infnngers on the Cox network and providing Cox with actual knowledge of those repeat infringers on a daily basis.

Once again, though, the publishers are exaggerating the actual law and what's happening. They seem to assume that Cox has some sort of legal obligation to pass along Rightscorp's notices, which just isn't the case. Furthermore, the lawsuit states, incorrectly, that "Cox directly profits" from repeat infringements. But that's wrong. Cox may profit from people who have used its service to infringe, but the law (and court rulings) have been fairly clear that Cox would need to profit specifically from the infringements itself, not merely because some users infringe. Users who infringe and users who don't all pay Cox the same amount, so Cox receives no special profits from infringement, blowing a big hole in the legal theory presented.

No matter what, courts sometimes come out with wacky decisions, and this one could quickly shape up to be a key case in testing this theory that's floated around for years, but has never really been tested. That makes this a clear case to follow, as it could have tremendous impact. If the publishers' theory is vindicated by the courts, it would mean that -- contrary to all the previous promises that ISPs wouldn't kick people accused of infringing offline -- the US technically might require the loss of internet service for repeat infringers. Such a policy would clearly go against stated aims of the government in encouraging internet access, but it's not impossible. I would imagine that if such a result came about, the resulting protests from internet users would be even more vocal than what happened to prevent SOPA. Kicking people entirely off their internet connection for copyright infringement has always been a non-starter in the US. Kicking that hornet's nest seems like a risky move for these publishers.

Filed Under: 512i, copyright, dmca, music publishers, repeat infringer policy, repeat infringers, six strikes, three strikes
Companies: bmg, cox, rightscorp, round hill music

Copyright Troll Malibu Media Allowed To Get Six Strikes Info From Comcast

from the bad-decision dept

A few weeks ago, we wrote about how Malibu Media was up to its old tricks again, demanding six strikes data from Comcast as part of its evidence gathering for its copyright trolling. Apparently, no one fought the request, so a magistrate judge has granted Malibu Media's request and told Comcast to comply with the forthcoming subpoena. When the six strikes plan was first put into place, many people worried that the information from it would be used in lawsuits, but people hadn't realized that it might also get abused by copyright trolls. All the more reason to question whether or not such a program is a good idea. When you have a system that allows "strikes" to be issued with no due process at all, which can then be used by a company currently responsible for 40% of all copyright lawsuits -- nearly all of which they're really using to shake down settlement fees -- it should make you wonder if the six strikes program is really such a good idea.

Filed Under: copyright, copyright troll, discovery, six strikes, subpoena
Companies: comcast, malibu media

Malibu Media Continues To Seek Six Strikes Data From Broadband Providers To Use Against People It Sues

from the troll-troll-trolling dept

Ever since the infamous "six strikes" Copyright Alert System (CAS) was "voluntarily" agreed to (under threat that Congress would enact legislation) between some big ISPs and the MPAA/RIAA, people have pointed out that it was only a foot in the door, which would then likely be used in lawsuits either against the individuals or against ISPs. A year ago, we noted that prolific copyright troll Malibu Media had subpoenaed Verizon to try to get the six strikes data on someone it was suing, and now the company has done the same thing again with Comcast. While Malibu Media eventually dropped the request for info from Verizon, it seems likely that this type of request will become more common.

And it's yet another reason why the whole six strikes/CAS program is so troubling. It involves a list of accusations, not convictions, of copyright violations, where the person being accused has no real recourse (there is a limited right to appeal, which costs money and does not even allow you to make use of basic defenses, such as noting that a work is in the public domain). While defenders of the program didn't seem to think there was anything wrong with this sort of "guilty until proven innocent with limited defenses" setup, in part because it wasn't a court case, the fact that this data may now be used in court cases should be insulting to basic concepts of due process.

Filed Under: cas, copyright, copyright alert system, data, lawsuits, six strikes
Companies: comcast, malibu media

Data On 'Six Strikes' Suggests Little Real Impact

from the because-of-course dept

Academic research has already shown pretty clearly that so called "graduated response" programs, in which ISPs send out notices concerning alleged infringement under a varying number of "strikes," don't actually work, but a failure to be effective has never stopped the legacy entertainment industry from pursuing useless policies and programs. Earlier this week, the Center for Copyright Information (CCI), which administers the Copyright Alert System (CAS), better known as the "six strikes" program, finally released some data about the program. While CCI quickly declared it a success, a quick look at the data suggests a rather dismal failure in terms of actually mitigating any behavior.

The proponents of the program insist that mere notices (i.e., "education") would lead people to suddenly stop their unauthorized usage ways, but that doesn't seem to be the case at all. While, yes, that shows a decreasing slope, there's always going to be a decreasing slope due to the nature of time between alerts. And, really, if "education" was effective, you'd expect to see a much more massive decrease. As TorrentFreak notes:

...the repeat warning percentage of 30% is quite high, especially when one takes into account that people who received their first alert during the last month had little time to generate a second one. In addition, the detection rate is relatively low, not to mention subscribers’ use of anonymizing tools.

It appears that U.S. pirates are relatively persistent. In France, for example, only 9% of all the warned copyright infringers received two warnings, and that was after two full years. Also, only 0.029% of the French got a third strike.

While these “strikes” programs have their differences, the high number of second warnings in the U.S. stands out.

In other words, the data certainly suggests the deterrent effect of the program isn't particularly powerful. Furthermore, it appears that there's a rather significant error rate. After the 3rd and 4th alert, people can challenge the claims, and there were 47 successful challenges (out of 265 total challenges). Most of the successful challenges involved people claiming that others were using their account, but it certainly highlights the problem with these programs, when you are declared guilty first, and can then "pay" to challenge, you'd hope there wouldn't be so many "errors" in the program. Either way, given the fact that these programs really appear to have little overall impact on the end user, it's not surprising that so few challenge them in the first place.

Filed Under: cas, cci, copyright, copyright alert system, impact, six strikes
Companies: cci, center for copyright infringement

CCI Claims Six Strikes Working Great To Thwart Piracy, Offers Absolutely No Evidence To Support That Claim

from the hard-data-is-optional dept

It has been about a year since the Center for Copyright Information (CCI) launched the United States' "six strikes" anti-piracy notification system with the help of the nation's largest ISPs. The service varies slightly by ISP, with carriers either briefly throttling your connection or temporarily locking you behind a "click through" walled garden unless you acknowledge receipt of some "educational" materials on copyright (not surprisingly, concepts like fair use are excluded). Any costs of this additional ISP clerical work are obviously passed on to broadband subscribers.

Since launch there has been absolutely no data released on how many people have been sent warnings, how many people have proceeded through all of the layers, and no consumer feedback has been shared on their experiences with the program. ISPs refuse to talk whatsoever about the program, and we've seen absolutely no data on how effective the program's appeals systems for the falsely accused (who have to pay $35 for the honor of protesting their innocence) have been.

As such, the CCI has announced that they're very happy to declare that the program has been a smashing success at thwarting piracy, with absolutely no data to back those suggestions up whatsoever:

"A national effort to crack down on Internet piracy through a "six strikes" system is seeing success, according to the program's director...Jill Lesser, who runs the system as manager of the Center for Copyright Information, said fears about the system were misplaced..."It's a non-punitive system" that is "intended to be education-based," Lesser told The Hill in an interview...There were "early examples of positive feedback," said Lesser said, adding that she hopes more analysis will show that Internet providers sent out more first and second notices and fewer fifth and sixth notices, which would demonstrate that users stopped sharing infringing content."

Yes, your fears have been misplaced and the program is clearly working, and to prove it, the only evidence we'll offer you is -- our claim that your fears have been misplaced and the program is clearly working. While the CCI hasn't been willing to release any data, traffic headed to BitTorrent networks has either remained static or increased, and overall shared files on websites like The Pirate Bay have increased. One problem CCI will face when trying to show data (should that actually ever happen) on the program is that many BitTorrent users have simply moved toward BitTorrent proxy and VPN services in order to hide themselves from the watchful eye of their ISPs. Those users would show up as no longer being copyright infringers, when in reality they'd simply be hiding their network behavior.

It's not a stretch to imagine that whatever data gets released, it will somehow magically show that the program is not only a smashing success, but that the entertainment industry is justified in expanding it further. As it stands, nothing happens to users after the sixth strike, and nobody tracks users who move from ISP to ISP. As such, it's only a matter of time before more great ideas get introduced. How about a ban on VPNs and proxies? How about a taxpayer-funded organization that tracks offenders across ISPs? Fines for those who reach the sixth level? Our non-transparent data clearly shows that all these things are necessary. Trust us.

Filed Under: copyright, piracy, six strikes, throttling
Companies: cci

White House Withholds Details Of Its Role In 'Voluntary' Agreement Between Payment Processors And Copyright Industries

from the of-course-not dept

The Obama White House has been a big supporter of getting companies to come up with what they like to call "voluntary agreements" for various issues where both the White House and Congress know that there just isn't enough political will in Congress to pass a law. Not that Congress is particularly good at legislating, but sometimes these "voluntary agreements" don't appear to be all that voluntary, and at other times they appear to border on being collusion against certain competitors and innovators. This focus on "voluntary agreements" has been a big part of the administration's approach to dealing with copyright law. That was true prior to the SOPA debacle, but even more so since that legislative effort fell flat on its face. The most high profile of these was the six strikes "voluntary agreement" between certain major ISPs along with the RIAA and MPAA.

Of course, a Freedom of Information Act (FOIA) request from Chris Soghoian showed that rather than a truly "voluntary" agreement, the White House, in the form of then IP czar Victoria Espinel, was heavily involved in the process. However, the Office of Management and Budget (OMB) (where the IP czar position is housed) withheld most of those emails. Soghoian sued and lost, as the court ruled that OMB was okay to hide the documents claiming either that they contained confidential commercial information or that it was part of the "deliberative process privilege."

It appears that the IP czar and OBM are going to get away with this again. A professor from the University of Iowa School of Law, submitted a similar FOIA request for details of the IP Czar's involvement in the creation of a similar voluntary agreement with payment processors -- an effort to get Visa, Mastercard, Paypal, American Express and others to stop doing business with sites deemed evil by the MPAA and RIAA. In this case, OMB is admitting that it has found 60 pages of relevant information but is withholding all of it for the same reasons given to Soghoian. Specifically:

We are withholding the 4-page final agreement under FOIA exemption 4... which protects from disclosure "... trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential. We are withholding the 56 pages of various drafts of such agreement and other related documents under FOIA exemption 4 and FOIA exemption 5.... Exemption 5 protects interagency and intra-agency predecisional, deliberative materials, the disclosure of which would inhibit the frank and candid exchange of views that is necessary for effective government decision-making.

So, once again, the main issue here is the deliberative process privilege. In theory, it makes some sense to have such an exemption, because you want government employees to be willing to discuss things frankly when shooting around ideas. But here's the problem in both of these cases: these aren't government policies. The whole point is that they're "voluntary agreements" between private parties. And thus, there's no government policy involved, and thus it's difficult to see how the deliberative process privilege could or should possibly apply. Unfortunately, the court ruled otherwise against Soghoian, and I'd imagine that should Gleason appeal this rejection the results would be the same.

Of course, the end result now is that the office of the IP Czar now realizes that it has basically free rein in browbeating companies into collusive positions against upstarts and innovators as pushed for by copyright maximalists -- and it can keep the efforts of the government (i.e., threats of "do this or we'll pass legislation" or "do this or we'll make life difficult for you") totally secret. That should raise serious questions about the appropriateness and legality of nearly all of these so-called "voluntary agreements."

Filed Under: copyright, foia, ip czar, obm, six strikes, white house
Companies: mpaa, riaa