In my last piece, we saw how the Digital Millennium Copyright Act has been used to censor speech, and that neither candidate has shown interest in standing up for your rights. I also touched upon the idea that copyright law in the United States is private law, and in the case of the Six Strikes Agreement that is literally true.
Six strikes is not a law in the sense that it passed through our legislative process. Our President did not trouble Congress with petty details. It is an agreement brokered by the executive between the entertainment industry and Internet service providers. The President also failed to mention this agreement to the most important party to it: you. The Six Strikes agreement stands in stark contradiction to the President’s stances on transparency and fairness. It also undermines many of America’s most cherished legal traditions.
Six strikes is broadly similar to the French HADOPI law. The agreement targets users illegally sharing copyrighted content over peer-to-peer networks. Content providers and their representatives search for violations, and report them to the ISP that the offending party uses. The ISP should then investigate, and if necessary, begin a graduated series of responses if infringement is found. This series begins with a warning (strikes one through three), and can escalate to measures such as throttled Internet speeds.
Contrary to popular belief, peer-to-peer file sharing is legal. Blizzard uses it to push updates to the popular World of Warcraft online game. Developers of many distributions of the Linux operating system use peer-to-peer to get their software to users. As was shown in my previous article, IP enforcers have a long history of slap-dash investigations, leading to baseless accusations of infringement against users. Six Strikes is not the DMCA. Under the DMCA, accusers must consider fair use (Lenz v. Universal), and in theory the law penalizes accusations made in bad faith. Six strikes does not hold accusers to these obligations. In fact, there is no minimum standard for accuracy. An accuser can file a million false accusations per day with no penalty whatsoever. But our ISPs will stand up for us, right?
Wrong. In this Potemkin legal system, ISPs are the judge. Our judges, which include AT&T, Comcast, Cablevision, Verizon, and Time Warner, have a very cozy relationship with the prosecutor. Comcast owns NBCUniversal, an entertainment company. In a proper court, Judge Comcast could never sit for any case involving NBCUniversal, and it would be questionable whether he could preside over any case dealing with the industry. There is a clear conflict of interest. Comcast isn’t alone.
Every company on the list above is beholden to the entertainment industry. They all provide movies and music over the Internet for their subscribers. Many provide more traditional cable services as well. They can’t do this without the good will of the entertainment industry. This explains why these companies are willing to throw their users under the bus at the behest of the government and the entertainment industry. This new set of regulations will increase costs and limit access to the Internet. Of course you can always appeal.
Unfortunately, that appeal takes place in arbitration against your Internet service provider, not in court. Public Citizen explains “Arbitrators are accountable only to the market, and the market for arbitrator services is dominated by ‘repeat players’ – litigants that are likely to hire arbitrators in the future. This creates a subtle incentive to rule in favor of companies that impose mandatory arbitration clauses.” That’s not good news for you, and it gets worse.
Rights holders state over and over that they don’t intend to disconnect accused (please note that word) infringers from the Internet. Maybe that’s true, though groups like the MPAA and RIAA pushed for and received the right to disconnect repeat infringers under HADOPI. According to Techdirt, the RIAA intends to use Six Strikes in concert with the DMCA to disconnect users. They can threaten the DMCA Safe Harbor status of ISPs that refuse to disconnect those accused of repeat infringement on their fifth or sixth strike. If the ISP loses Safe Harbor, they can be taken to court for infringement instead of the user. There is still much we don’t know about this agreement.
We don’t know if strikes ever drop off of an account, or what happens if you change Internet Service Providers. We don’t know if there’s a process to regain full Internet service if your service has been cut or throttled. Based on the way the Obama administration has handled negotiations, we won’t find out until it is too late. The one thing we do know is how the law Six Strikes was modeled on worked out for France.
HADOPI was adopted in France three years ago. One key difference between HADOPI and Six Strikes, is that HADOPI involved the French judicial system instead of ISPs and arbitrators. In three years, HADOPI has warned around one million users. It has taken legal action against 14 users, and has successfully prosecuted one user for piracy. According to Techdirt, the user in question did not download the files, it was his estranged wife. Because the connection was in his name, he was found to be responsible and ordered to pay the equivalent of $200. The theory behind this law and Six Strikes, is that they would bolster music sales, because those who used to pirate would start buying. There is no evidence that this has taken place. The French government has stated they want to shutter the agency that runs the program. That’s not surprising when you look at the numbers. The cost to prosecute one man for piracy? About 15 million U.S. dollars. Assuming our pirate downloaded one CD worth of music, that’s 1.5 million dollars per song. Quite the bargain.
The same kind of bargain that Six Strikes presents to the American people. At best, it will only raise the cost of your Internet service every year, as ISPs are forced to pay for the cost of enforcing the entertainment industry’s IP rights. They will pass that cost on to you. At worst, Six Strikes could potentially cut off Internet access to millions of Americans who have broken no laws. It uses the same logic as the Salem witch trials and the McCarthy Hearings. If you’ve been accused, you must be guilty. Beyond removing citizens from the marketplace of ideas, this will also hurt their economic opportunity. Access to the Internet today plays a key role in education, and employment. The Obama administration is pandering to campaign donors in the entertainment industry at your expense, and this time there may be very little we can do about it.
The negotiations are done. The agreement was supposed to take effect in July, and the parties involved promise it to us before the New Year. President Obama has midwifed this horrible thing, and now we will likely be forced to contend with it. That doesn’t mean we have to suffer in silence, let him know how you feel about being locked out of the negotiating room. About his repeated failures to stand up for you against big business interests that threaten your internet access. We’ve seen it in the DMCA, in the TPP, and here in Six Strikes. You can contact President Obama in the White House on G+, Twitter, Facebook, and email. Don’t forget his campaign. They’re right here on Facebook, Twitter, and don’t forget to send them an email. I’ve been pointing out that Obama’s promises about Internet freedom on Reddit, and in his platform don’t match his actions through four articles now. I’m done with him.
Next week it’s time to shine the spotlight on former Governor Romney. Join me right here under the Internet Freedom tag as we look at the future Mitt Romney and the Republican party have in mind for our Internet. Bring antacid.