View Full Version : Bad News ISPs to be Copyright Cops

07-08-2011, 07:17 AM

White House:

We "win the future" by making ISPs into Copyright Cops


By Nate Anderson | Published about 12 hours ago

The White House likes the newly announced "six strikes" voluntary agreement (http://arstechnica.com/tech-policy/news/2011/07/major-isps-agree-to-six-strikes-copyright-enforcement-plan.ars) announced today between major copyright holders and Internet access providers. That's no surprise—the US administration helped to broker the deal.

"The joining of Internet service providers and entertainment companies in a cooperative effort to combat online infringement can further this goal [of supporting jobs and exports] and we commend them for reaching this agreement," said Victoria Espinel, US Intellectual Property Enforcement Coordinator, in a statement today (http://www.whitehouse.gov/blog/2011/07/07/working-together-stop-internet-piracy). "We believe it will have a significant impact on reducing online piracy."

Espinel is professionally interested in copyright online; Vice President Joe Biden is more of a copyright (http://arstechnica.com/tech-policy/news/2010/08/obama-administration-piracy-is-flat-unadulterated-theft.ars) hobbyist (http://arstechnica.com/tech-policy/news/2009/04/biden-to-mpaa-youll-like-obamas-copyright-pick.ars) ("piracy is flat, unadulterated theft") who has convened White House meetings (http://arstechnica.com/tech-policy/news/2009/12/bidens-ip-roundtable-brings-together-big-content-fbi.ars) to talk about infringement. It was therefore no real surprise to learn a few weeks ago that the White House had played a behind-the-scenes role (http://arstechnica.com/tech-policy/news/2011/06/big-content-isps-nearing-agreement-on-piracy-crackdown-system.ars) (along with New York's Andrew Cuomo) in bringing together the content owners and ISPs to hash out a voluntary agreement.

While ISPs were for years seen more like the "common carriers" of yore, who ran a network and were generally not responsible for policing the uses of that network, government sentiment in key quarters is changing. And not just in the US—at the recent high level OECD Internet conference (http://arstechnica.com/tech-policy/news/2011/06/civilized-high-level-global-conference-wants-isps-to-play-copyright-cophigh-level-global-conference-wants-isps-to-play-copyright-cop.ars) in Paris, the concluding document stressed ISPs' duty to halt bad behavior.

"Sound Internet policy should encompass norms of responsibility that enable private sector voluntary cooperation for the protection of intellectual property," said the text. "Appropriate measures include lawful steps to address and deter infringement, and accord full respect to user and stakeholder rights and fair process."

Can any such government-brokered agreement truly be "voluntary" when the implicit threat of legislation accompanies any failure to strike a deal? Whatever the pressure brought to bear on ISPs, in their press statements today several seemed pleased at heading off the prospect of possibly more onerous rules (see: France and the UK) from the government.

To "win the future," Espinel wants to marry the new plan with "increased law enforcement and educational awareness" on the government's part. She does make clear that the private deal will require "ongoing consultations with privacy and freedom of expression advocacy groups to assure that its practices are fully consistent with the democratic values that have helped the Internet to flourish."

This is a measure that will be watched internationally. As global music trade group IFPI put it today in a statement, "The agreement also sends an important signal internationally. It adds to the momentum already created by initiatives such as graduated response and blocking of infringing websites in other countries, and is the latest mark of recognition that ISP cooperation is the most effective way of addressing online piracy."

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What's the limit to ISP intermediaries aiding with private enforcement? That remains unclear. Both Espinel and the industries involved favor schemes to deputize intermediaries to police behavior in ways that would have been anathema to the old telephone companies. Today, ISPs will take action against subscribers based on repeated allegations of copyright infringement; tomorrow, they might be approached to help with auction fraudsters, corporate hackers, those accused of repeated libel or defamation, or child pornographers.

ISPs already do this under court order, of course, and some also take these kinds of measures voluntarily upon request (such as blocking child porn links, spammers, etc.). Today's agreement matters not because it's necessarily new—ISPs have been forwarding notices and even disconnecting customers for years—but because it marks a public, coordinated, standardized national effort to get intermediaries involved in enforcement against actions taking place on their networks.

Such intermediary enforcement isn't necessarily bad in principle—ISPs are a natural Internet choke point where pressure can be applied to the 'Net, and sometimes pressure can address crime and bad behavior (see Tim Wu and Jack Goldsmith's book Who Controls the Internet? for much more on this theme).

And today's announcement has been greeted without instant denunciation by groups like Public Knowledge and the Center for Democracy & Technology—no mean feat. (Though CDT did note (http://www.cdt.org/blogs/david-sohn/isps-and-copyright-owners-strike-deal), "We believe that it would be wrong for any ISP to cut off subscribers' Internet access, even temporarily, based on allegations that have not been tested in court.")

But there's a huge, obvious risk to piling up the obligations on intermediaries, who begin taking action against people without court orders and in areas in which they may have no technical expertise. (While appeal mechanisms are available, the new infringement agreement is a "guilty until proven innocent" approach.) ISPs dealing with spam and viruses and DDoS attacks is one thing; ISPs dealing with copyright, speech, and fair use issues is another entirely.

Today's focus on "education" is therefore an encouraging one, but the "mitigation" measures ISPs will start taking raise key questions. How far we want ISPs to go in private enforcement actions that might target speech, communications, and even Internet access itself is a debate well worth revisiting in light of today's news—and the White House support for such approaches.

SOURCE (http://arstechnica.com/tech-policy/news/2011/07/white-house-we-win-the-future-by-making-isps-into-copyright-enforcers.ars)

07-08-2011, 07:35 AM

Should you fear new ISP copyright enforcers?

by Greg Sandoval - July 7, 2011 1:31 PM PDT

A partnership announced today (http://news.cnet.com/8301-31001_3-20077492-261/top-isps-agree-to-become-copyright-cops/) between big entertainment companies and some of the nation's largest Internet service providers will not mean the end of online piracy. To be sure, the parties involved know this.
Andrew Cuomo, the governor of New York,
helped broker the deal between ISPs
and big entertainment companies.
Cuomo said a partnership was good
for the state and country.
(Credit: New York State Executive Chamber)


The most savvy tech users and dedicated file sharers will continue to pirate content and perhaps there isn't any way to stop them. But the hope of Hollywood film studios and the four largest record companies is that the participating ISPs, which include Comcast, Cablevision, Verizon, and Time Warner Cable, can help discourage mainstream Internet users from sharing content illegally over the Web.

The participating ISPs have agreed to start cracking down on accused content pirates starting sometime next year. The program will begin with warnings to those accused by content creators of copyright infringement. Those who refuse to quit risk losing access to the Web until they do.

The thinking is that maybe the ISPs can help tip the scales in favor of legal services. Maybe a $7.99-a-month Netflix subscription or a 99-cent charge for an iTunes' song becomes more attractive if the cost of piracy is a slower Web connection or the complete loss of Web access.

But the ISPs came to this agreement, first reported by CNET (http://news.cnet.com/8301-31001_3-20073522-261/exclusive-top-isps-poised-to-adopt-graduated-response-to-piracy/) last month, kicking and screaming.

For the past three years, many of the big ISPs have declined to adopt "graduated response" programs. That's the term coined by big media to describe when ISPs ratchet up pressure on people suspected of acquiring intellectual property without paying for it.

The respective trade groups for the top music and film companies, the Recording Industry Association of America (RIAA) and Motion Picture Association of America, naturally wanted the toughest penalties they could get. Originally they had asked that the ISPs adopt a "three-strikes" plan, which would would mean a user received three warnings from a bandwidth provider before service was suspended or terminated. The ISPs said no way.

In the end, the ISPs held their noses and began looking for ways to cover themselves against PR hits. Instead of three strikes, the ISPs opted for six strikes. They also padded the program with so-called educational aspects, likely toss in to help cover the more controversial issues, such as suspending someone's Internet access. Still, there's no way to cover up the fact that participating ISPs have agreed to punish customers on behalf of content creators.

Those ISPs that have partnered with the music and film sectors have the option of issuing six warnings to a subscriber before moving to the "mitigation" stage. Way down in the press release announcing the agreement is the bit about how the ISPs will hobble the connection speeds of those accused of multiple offenses or completely cut off their Web connection until they stop infringing intellectual property.

The ISPs dread spooking subscribers, or to appear to be spying on them. It's possible the agreement would have never been completed had U.S. President Barack Obama and New York Gov. Andrew Cuomo, who got involved in the negotiations as early as 2007, not pressured both sides to cut a deal.
Cuomo, who was then New York's attorney general, got involved because he believed that it was good for the state for two of the leading industries to get along and help each other, Steve Cohen, Cuomo's chief of staff, told CNET today. Up until that point, the film and music sectors were in attack mode, accusing bandwidth providers of profiting from piracy. Cuomo recognized that a deal that benefited both sides could be reached without lawsuits or any serious government intervention, Cohen said.

To read news story about the agreement
between ISPs and the big entertainment
companies, click the photo.
(Credit: Screen shot by Greg Sandoval/CNET)

http://i.i.com.com/cnwk.1d/i/tim/2011/07/07/mitch_270x151.jpg (http://news.cnet.com/8301-31001_3-20077492-261/top-isps-agree-to-become-copyright-cops/)
Cuomo, like Obama, argues that piracy robs U.S. citizens of jobs and the nation's companies of revenue.

But not everyone believes that file sharing has hurt those who create content. Corynne McSherry, an attorney and director of intellectual property issues for the Electronic Frontier Foundation, a group that advocates for Internet users and tech companies, notes that scores of musicians have adapted to digital technology and are doing fine.

She argues that the new agreement creates more problems than it solves. Among her criticisms of the graduated response process are that someone's Internet access can be cut off without any judicial review. She noted that the ISPs and entertainment companies have said they will create an independent review process for those who claim to be wrongly accused. McSherry, however, is skeptical that anyone hired by those groups will be conflict-free.

Among McSherry's greatest fears is that this is only the first step. She sees the potential, now that big media firms have the ability to push ISPs into copyright enforcement, that they will continue to pressure them to keep ratcheting up the penalties against suspected file sharers.

Is McSherry sympathetic to the ISPs who have faced government pressure to do more on antipiracy? Not so much. Related links
• RIAA drops lawsuits; ISPs to battle file sharing (http://news.cnet.com/8301-1023_3-10126914-93.html#ixzz1RSJ4oN84)
• AT&T exec: ISP will never terminate service on RIAA's word (http://news.cnet.com/8301-1023_3-10204514-93.html)
• U2 manager: 'Ultimately free is the enemy of good' (http://news.cnet.com/8301-1023_3-10250711-93.html#ixzz1RSJZSzol)
"I wouldn't be at all surprised to learn that the ISPs are under tremendous pressure and that's why they're knuckling under," McSherry said. "But their first loyalty should be to their subscribers. Not Hollywood.

"At the end of the day," McSherry said, "this is unlikely to accomplish much. All it will do is intimidate a lot of lawful users. Are we going to see the end of online infringement? I doubt that very much. It will be more valuable for the White House, ISPs and Hollywood if they found better ways to getting artists paid instead of focusing on punishment."

SOURCE (http://news.cnet.com/8301-31001_3-20077659-261/should-you-fear-new-isp-copyright-enforcers/?tag=topImage2)

07-09-2011, 08:26 AM

The six ways you can appeal new copyright "mitigation measures"


By Nate Anderson | Published about 13 hours ago

Under the new voluntary antipiracy regime (http://arstechnica.com/tech-policy/news/2011/07/major-isps-agree-to-six-strikes-copyright-enforcement-plan.ars) agreed to this week by Internet providers, users who receive a first "alert" regarding copyright infringement on their account won't be able to challenge that alert. Nor can they challenge the second alert, or the third, or the fourth. They can only challenge the alerts when they move from "education" to "mitigation"—after the fifth or sixth alert, depending on the Internet provider.

(RIAA head Cary Sherman told me yesterday that this was because the first "educational" alerts are like traffic warnings rather than traffic tickets; there's no penalty, so who would want to challenge them?)

At that point, before a user's Internet connection is throttled, curtailed, or otherwise hobbled, the account subscriber can pay $35 and appeal to a new independent body funded by the ISPs and the content owners. But the appeals process won't accept just any defense; indeed, the official memorandum of understanding (http://www3.buzzmakerdev.net/%7Ecci/sites/default/files/Momorandum%20of%20Understanding.pdf) (MoU) governing this whole process describes the six possible defenses the independent reviewer will even consider (they are incorrectly numbered in the MoU and so run up to "vii," but only six items are listed). Here they are:(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.
Each defense category is governed by specific rules. For instance, if you claim that neither you nor anyone else using your computers or network had downloaded said file ("misidentification of account"), here's how you can win:A Subscriber shall prevail on this defense if the Participating ISP’s and/or Copyright Owner’s records indicate, upon Independent Review, that a factual error was made in (1) identifying the IP address at which the alleged copyright infringement occurred and/or (2) correlating the identified IP address to the Subscriber’s account. In reviewing the Participating ISP’s or Copyright Owner’s records, automated systems for capturing IP addresses or other information in accordance with Methodologies have a rebuttable presumption that they work in accordance with their specifications, unless the Independent Expert’s review of any such Content Owner Representative Methodology resulted in a Finding of Inadequacy in which event such rebuttable presumption shall not apply to such Content Owner Representative Methodology.What about the "open WiFi defense" ("unauthorized use of account")? You can only use it once.A Subscriber shall prevail on this defense if the Subscriber adequately and credibly demonstrates that the alleged activity was the result of unauthorized use of the Subscriber’s account by someone who is not a member or invitee of the household (e.g., via an unsecured wireless router or a hacked Internet connection) of which the Subscriber was unaware and that the Subscriber could not reasonably have prevented. The foregoing sentence notwithstanding, the Reviewer may in his or her discretion conclude that a Subscriber is entitled to prevail under this defense despite the Subscriber’s failure to secure a wireless router if the Reviewer otherwise concludes that the Subscriber adequately and credibly demonstrates that the alleged activity was the result of unauthorized use of the Subscriber’s account by someone who is not a member or invitee of the household of which the Subscriber was unaware. In determining whether this standard has been satisfied, the Reviewer shall consider the evidence in light of the educational messages previously provided by the Participating ISP. 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. [emphasis added]Should you win one of these challenges, you get your $35 back and the "alert" is taken off your account, though no other alerts are. Your next alert will therefore begin the "mitigation" process once more.

These alerts do eventually expire; any subscriber who makes it 12 months without receiving a notice has their slate wiped clean.

If you fail here, prepare to be mitigated with extreme prejudice. ISPs can basically pick their preferred punishment, but the MoU offers a few tasty ideas, including:( a ) temporary reduction in uploading and/or downloading transmission speeds;
( b ) temporary step-down in the Subscriber’s service tier to (1) the lowest tier of Internet access service above dial-up service that the Participating ISP makes widely available to residential customers in the Subscriber’s community, or (2) an alternative bandwidth throughput rate low enough to significantly impact a Subscriber’s broadband Internet access service (e.g., 256 - 640 kbps);
( c ) temporary redirection to a Landing Page until the Subscriber contacts the Participating ISP to discuss with it the Copyright Alerts;
( d ) temporary restriction of the Subscriber’s Internet access for some reasonable period of time as determined in the Participating ISP’s discretion;
( e ) temporary redirection to a Landing Page for completion of a meaningful educational instruction on copyright
Our take: After years of complaining that dragging people through federal litigation and securing hundreds of thousands of dollars in damage awards was about the most asinine (and unfair) way possible of dealing with the P2P file-sharing issue, it would be churlish not to admit that this is step up from such a low bottom. The federal court system, where all copyright claims are heard, was never made to handle mass litigation against millions of people, many without the money for lawyers, over petty instances of infringement (even if they may not be so petty in the aggregate). There's just no possible way that six warnings, followed by a speed throttle, could be worse than what happened to people like Jammie Thomas-Rasset and Joel Tenenbaum.

And the new mechanism is set up in a fairly careful way, with its emphasis on notification and its creation of a centralized (and allegedly independent) body vetting P2P detection mechanisms and making sure that they are accurate. (Given the numerous false positives we've seen over the years, this is surely a good thing.) It also downplays disconnection as a possibility, and we suspect (and hope) that American ISPs will rarely disconnect users over noncommercial IP issues.

But none of that means the new approach is an actively great idea, either; ISPs playing copyright cop, with a presumption that all allegations are legitimate, is a dangerous way to go once we move from education into non-judicial punishment. It sets a bad precedent for network intermediaries that may well come back to haunt them, like Marley's ghost, in the years to come. This is not how we want the Internet of the future to look, policed by intermediaries who assume the validity of incoming complaints and who dole out private justice over a such a crucial communications link.

These are the moments at which we need to the protections of due process and judicial review, but making such a system functional would surely require something more streamlined than current federal process. Combining the French system of faster judicial oversight of ultimate punishments and appeals with this much-improved US approach, emphasizing education and user privacy, might have more potential... but it's not the approach we're going to try. By the time we hear the echo of those rattling chains and look back with regret, it may be hard to reverse the ISP deputization process.

SOURCE (http://arstechnica.com/tech-policy/news/2011/07/the-six-ways-you-can-appeal-the-new-copyright-alerts.ars)