He was the first leader of a major Canadian political party to acknowledge the importance of P2P People Power, using the Net to carry his message.

Now, “Layton’s tragic passing is … politically advantageous for the Harper government,” says the National Post in a considerable understatement.

“The Liberals and Bloc have been crushed, and now the NDP is leaderless.

“Given their strong parliamentary majority, the Tories have the ability to pass what legislation they wish. But political opposition need not be futile simply because the opposition lack the votes to actually block the governing party’s Layton’s political skill and charisma would have been effective tools in the court of public opinion, whipping up fury”, the story continues.

“He passed away peacefully at his home surrounded by family and loved ones,” says his wife, Olivia Chow, in a statement.

“Mr. Layton looked gaunt, his voice very weak, when he held a news conference last month in Toronto to announce he was suffering from a second cancer,” says the Globe and Mail, adding “He vowed, then, that he would be back to work when the House of Commons resumed on Sept. 19.

Expect a fulsome message of condolences from Conservative leader George W Harper.

The ‘revelationse’ were also carried by various lamescream media outlets, which probably should have been more circumspect, given the source.

Among them was VanityFair under the heading ‘Exclusive: Operation Shady rat—Unprecedented Cyber-espionage Campaign and Intellectual-Property Bonanza kicking off with: “Here, Vanity Fair’s Michael Joseph Gross breaks the news of Operation Shady rat’s existence—and speaks to the McAfee cyber-security expert who discovered it … “McAfee cyber-security expert.

Gross goes on: “When the history of 2011 is written, it may well be remembered as the Year of the Hack.

“Long before the saga of News of the World phone hacking began, stories of computer breaches were breaking almost every week. In recent months, Sony, Fox, the British National Health Service, and the Web sites of PBS, the U.S. Senate, and the C.I.A., among others, have all fallen victim to highly publicized cyber-attacks. Many of the breaches have been attributed to the groups Anonymous and LulzSec. Dmitri Alperovitch, vice president of threat research at the cyber-security firm McAfee, says that for him, “it’s been really hard to watch the news of this Anonymous and LulzSec stuff, because most of what they do, defacing Web sites and running denial-of-service attacks, is not serious. It’s really just nuisance.”

“’Just nuisance,” that is, compared with a five-year campaign of hacks that Alperovitch discovered and named Operation Shady rat—a campaign that continues even now, and is being reported for the first time today, by vanityfair.com, and in a lengthier report on the larger problem of industrial cyber-espionage in the September issue of Vanity Fair. Operation Shady rat ranks with Operation Aurora (the attack on Google and many other companies in 2010) as among the most significant and potentially damaging acts of cyber-espionage yet made public. Operation Shady rat has been stealing valuable intellectual property (including government secrets, e-mail archives, legal contracts, negotiation plans for business activities, and design schematics) from more than 70 public- and private-sector organizations in 14 countries. The list of victims, which ranges from national governments to global corporations to tiny nonprofits, demonstrates with unprecedented clarity the universal scope of cyber-espionage and the vulnerability of organizations in almost every category imaginable. In Washington, where policymakers are struggling to chart a strategy for combating cyber-espionage, Operation Shady rat is already drawing attention at high levels. Last week, Alperovitch provided confidential briefings on Shady rat to senior White House officials, executive-branch agencies, and congressional-committee staff. Senator Dianne Feinstein (D-CA), chairman of the Senate Select Committee on Intelligence, reviewed the McAfee report on Shady rat and wrote in an e-mail to Vanity Fair: “This is further evidence that we need a strong cyber-defense system in this country, and that we need to start applying pressure to other countries to make sure they do more to stop cyber hacking emanating from their borders.” McAfee says that victims include government agencies in the United States, Taiwan, South Korea, Vietnam, and Canada, the Olympic committees in three countries, and the International Olympic Committee. Rounding out the list of countries where Shady rat hacked into computer networks: Japan, Switzerland, the United Kingdom, Indonesia, Denmark, Singapore, Hong Kong, Germany, and India. The vast majority of victims—49—were U.S.-based companies, government agencies, and nonprofits. The category most U.S.-based companies, government agencies, and nonprofits. The category most heavily targeted was defense contractors—13 in all.

Really?

P2pnet has for years known McAfee’s cyber-security expertise is dodgy, to be kind, often relying on celebrities such as such as Jessica Biel or Brad Pitt for punch.

Now, “Two security companies are questioning claims that a cyber espionage campaign uncovered by a rival firm was sophisticated or even extraordinary, says, Computerworld, Going on, “In its report, McAfee said it was “surprised by the enormous diversity of the victim organizations” and ‘taken aback by the audacity of the perpetrators.’

But,’Shady RAT’ hacking claims overblown, say security firms

“Not sophisticated, certainly not out of the ordinary, argue McAfee rivals,” says the story. Oh dear! The story adds,

“What we have witnessed over the past five to six years has been nothing short of a historically unprecedented transfer of wealth,” said McAfee, referring to the now-nearly-constant attacks on Western companies and organizations by campaigns like Shady RAT.

“Moscow-based Kaspersky Lab on Thursday begged to differ, saying that McAfee has simply not provided enough information to justify the claims being bandied about.”The report contains nothing on what particular data has been stolen or how many computers in each organization were hit by the attacks,” said Alex Gostev, Kaspersky’s chief security expert. “Until the information in the McAfee report is backed up by evidence, to talk about the biggest cyber attack in history is premature.”

Jon Newton – p2pnet

“Under the Digital Economy Act, inspired by Hollywood and the Big Music, officials were allowed to ask a court to block Web sites “dedicated to copyright infringement”.

A review of that law, however, “concluded the provisions as they stand would not be effective, according to U.K. communications regulator Ofcom (Office of Communications). As a result, “the Government will not bring forward the Act’s site-blocking provisions at this time,” it says, continuing:

“The move comes several months after Professor Ian Hargreaves provided the government with his recommendations for how to improve the country’s intellectual property laws. Government officials ” have now accepted those recommendations, which the government said could save the U.K. economy up to £7.9 billion per year, ”

In the U.S Sen. Patrick Leahy last year introduced the Combating Online Infringement and Counterfeits Act (COICA), which would have allowed the U.S. government to seize domains with infringing content and require ISPs to cut off connections with the offending sites. After it failed to pass, Leahy this year introduced the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property (PROTECT IP) Act, which would allow the government to get court orders that would require ISPs, search engines, ad networks, and online payment processors to stop supporting sites with pirated content.

“Like the recently announced Copyright Alerts in the US, officials across in the UK will also notify suefers “suspected of unlawfully sharing copyrighted material”, says the story, adding. “The Department for Culture Media and Sport (DCMS) will implement a “mass notification system,” though it will involve letters rather than digital notifications.

“The letters aim to educate people about copyright and point them toward legitimate content,” officials said. “They also seek to inform subscribers their internet connection may have been used by others to unlawfully share copyright material.”

Users can dispute the charges for a £20 fee, which will be refunded if the appeal is successful. The Ofcom report ” identifies a risk of the system being overwhelmed by vexatious appeals from people determined to disrupt the system. Government expects that a £20 fee should deter appeals without deterring genuine appeals.”

Officials also approved plans for: a Digital Copyright Exchange for the buying and selling of copyrighted content; copyright exceptions as they apply to parody; exc

p2pnet view – P2P | RIAA News | MPAA News | Freedom | Politics

In November, 2004, I published an item on a supposed merger between the two “trade” organisations owned, as they are, by the big four record labels and big six movie studios.

The 2004 Post kicked off, “p2pnet.net News Exclusive:- 2004 will go down as the year the entertainment industry went to the wall in an all-out bid to wipe out file sharing on the p2p nets. Permanently.”

Now, “It appears that the RIAA and the MPAA have gotten together and created a collusive ‘Memorandum of understanding’ for ISP’s to sign, which calls for the signing ISP’s to assist the Big 4 record companies and the Big 6 motion picture companies in enforcing their copyrights, in ways never contemplated by the Digital Millenium Copyright Act” says Ray Beckerman in Recording Industry vs The People.

My 2004 story, a rejig of an earlier spoof, went on:

“As part of the actions, two of the entertainment industry’s principal faux police enforcement organizations are to merge, we can reveal… The RIAA (Recording Industry Association of America) has been hammering p2p file sharers since September, 2003, and has so far sued 76,191 people without ever seeing one of its victims appear in court. And the MPAA (Motion Picture Association of America) has just mounted its own RIAA-style sue ‘em all attack.”

As Beckerman said in his blog post on this latest piece of criminal injustice, “I haven’t had time to analyze it yet (it’s 36 pages), but at first glance it made me kind of ill, in that it appeared to…

• violate the antitrust laws of the federal government and of various states,
• constitute abuse of copyright,
• expand the lawful copyright monopoly into an unlawful monopoly,
• overlook the First Amendment,
• overlook the fair use defense and other defenses afforded by copyright law,
• conflict with the Digital Millennium Copyright Act,
• be against public policy, and
• contradict net neutrality.

What I’m wondering about is which, if any, ISP’s have signed off on this, because I’d want to do my utmost to avoid doing business with them. The document I’ve seen is unsigned but lists some ISP’s. If your ISP is on that list, and does sign, I recommend switching ISP’s asap.

What ever happened to “free enterprise”?

The entertainment industry finds it highly cost effective to subpoena men, women and children, scamming the mainscream media into believing file sharing is illegal, without ever having to actually prove a case before a judge.

Victims are all ordinary people with no financial or legal resources. They have no choice but to accept the entertainment industry’s offer to “settle”.

It’s either that or take on the squads of highly paid, highly skilled lawyers fielded by the multi-billion-dollar recording and movie industries.

In 2004  I wrote, “Now, instead of running separate actions, the RIAA and MPAA will merge their resources and staffs to become the World Recording and Motion Picture Industry Association (WRAMPIA, pronounced “wrampia”), say industry sources.

Retiring IFPI boss Jay Berman will take up the post as chairman, RIAA president Cary Sherman will become WRAMPIA’s first ceo and RIAA Mitch Bainwol will run the new organization’s Reality Realignment and Fact Adjustment Bureau (RRFAB, pronounced “rrfab”).

Ex-MPAA boss Jack Valenti will be the new organization’s cmo (chief misinformation officer).

However, this isn’t about money: it’s about circumventing any form of competition and gaining complete control of the Internet as the primary vehicle for distributing, marketing, advertising and selling corporate digital “product” online.

Who, ask the lawyers and the Big 4 executives they advise, cares about the customers — the people who make it all happen?

But every single one of the 40,000 people who have received RIAA subpoenas has sat back in shock, wondering how they can possibly take on a hugely wealthy Vivendi Universal, EMI, Warner Music and Sony Music with their immense legal, financial and political resources?

The answer is: they can’t, and the people who run, and who work for, the RIAA such as it’s bosses, Mitch Bainwol and Cary Sherman (Top right top right and Cara Duckworth and Jonathan Lamy, know it as they accuse their victims of stealing, when nothing’s been stolen, of being criminals, when no crime has been committed, of having caused misery to record industry workers, when the people behind the “trade” association are wholly to blame.

“I was completely awed and amazed and also totally surprised when I was asked to chair WRAMPIA,” said Berman at the ‘invitation only’ Bahamas press conference to announce the new organization.

“I’m thrilled, excited, honoured and, well, simply stunned,” said Bainwol.

“Now we’ll be able to give the music and movie loving public around the world exactly what they deserve,” said Sherman.

Remarked Valenti, “These online pirates think they’ve been getting away with it. Well, they have. But I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.”

In his first public statement, Berman said WRAMPIA will organize and fund its own US political party to help politicians and their staffs better understand the difficulties facing the entertainment industry as it strives to overcome online piracy, and to define the steps the Bush administration will need to take to combat it.

To be called the First American Political Management and Persuasion Party (FAPMAPP, pronounced fpmapp).There’s a saying along the lines of, “many a true thing has been said in jest”.”

And while you think about that, here’s the memorandum in all its magnificence:

[Formatting still in progress - DA]

FINAL

7/6/2011
MEMORANDUM OF UNDERSTANDING

Whereas:

 Copyright infringement (under Title 17 of the United States Code) on the Internet (“Online Infringement”) – including the illegal distribution of copyrighted works such as music, movies, computer software, gaming software, e-books and the like via Peer-to-Peer (“P2P”) file exchanges and other illegal distribution via Internet file hosting, streaming or other technologies – imposes substantial costs on copyright holders and the economy each year. Online Infringement also may contribute to network congestion, negatively affecting users’ Internet experiences.

The availability of copyrighted content, including live and recorded programming, from pirated sources harms legitimate content creation and distribution. Content creators are taking steps to make lawful content more available online. The lawful online distribution businesses are vibrant and growing and they are harmed by infringement. In addition, law enforcement is pursuing opportunities to enhance its ability to investigate, prosecute, and ultimately punish and deter those who violate copyright law.

 While the government maintains a critical role in enforcing copyright law, it should be readily apparent that, in an age of viral, digital online distribution, prosecution of individual acts of infringement may serve a purpose, but standing alone this may not be the only or best solution to addressing Online Infringement.

If Online Infringement is to be effectively combated, law enforcement must work with all interested parties, including copyright holders, their licensees, artists (and the guilds, unions and other organizations that represent them), recording companies, movie studios, software developers, electronic publishers, Internet Service Providers (“ISPs”), public interest groups, other intermediaries and consumers on reasonable methods to prevent, detect and deter Online Infringement. Such efforts must respect the legitimate interests of Internet users and subscribers in protecting their privacy and freedom of speech, in accessing legitimate content, and in being able to challenge the accuracy of allegations of Online Infringement.

This work should include an educational component because evidence suggests that most informed consumers will choose lawful services and not engage in Online Infringement. This work also should include the development of solutions that are reasonably necessary to effectuate the rights that are granted by copyright without unduly hampering the legitimate distribution of copyrighted works online or impairing the legitimate rights and interests of consumers and ISPs. Such efforts serve not only the shared interests of creators and distributors of creative works, but also the interests of Internet users who benefit from constructive measures aimed at education and deterrence in lieu of litigation with its attendant costs and legal risk.

 A reasonable, alert-based approach may help to protect legal rights granted by copyright and stem the unlawful distribution of copyrighted works, while providing education, privacy protection, fair warning and an opportunity for review that protects the lawful interests of consumers. The efficiencies gained from such a cooperative model may benefit all interested parties, including consumers.

 Enforcement and consumer education programs alone may not be able to fully address the issue of Online Infringement. In addition, it is important for content and copyright owners to continue to make available an array of lawful alternatives for consuming movies, music, and other content online, including new distribution models that make it easy and attractive for consumers to lawfully obtain online the content they want. ISPs can assist in these efforts by encouraging subscribers to seek legal alternatives for obtaining content. The widespread availability of lawful content will benefit consumers, content owners and ISPs.

Whereas, the Content Owner Representatives, the Participating ISPs, and the members of the Participating Content Owners Group (all, as defined in Section 1 below) and independent record labels and film production companies (Independent Content Owners , as defined in Section 5C below) represented by the American Association of Independent Music (“A2IM”) and the Independent Film and Television Alliance (“IFTA”), respectively, seek to establish a consumer-focused process for identifying and notifying residential wired Internet access service customers of the Participating ISPs (“Subscribers”) (other than dial-up Subscribers) who receive multiple notifications of allegations of Online Infringement made via P2P networks and applications (“P2P Online Infringement”), in an effort to educate consumers, deter Online Infringement, and direct consumers to lawful online legitimate sources of content.

Whereas, having considered the desirability of implementing such a process as a means to encourage lawful and legitimate use of copyrighted content, the Parties (as defined in Section 1 below) hereby voluntarily enter into this Memorandum of Understanding (the “Agreement”).

IT IS HEREBY UNDERSTOOD AND AGREED AMONG THE PARTIES THAT:

1. Parties to the Agreement

The parties to this Agreement (the “Parties”) are The Recording Industry Association of America, Inc. (“RIAA”), The Motion Picture Association of America, Inc. (“MPAA” and together with RIAA, the “Content Owner Representatives”); the entities set forth in Attachment A (as may be amended from time to time) (collectively, the “Participating ISPs”); and solely for the purposes of Sections 2(E), 4(C), 4(D), 4(H), 4(I), 5(A), 5(C), 6, 7, 8, 9(E), 9(F), and 10 of this Agreement, MPAA members Walt Disney Studios Motion Pictures, Paramount Pictures Corporation, Sony Pictures Entertainment Inc., Twentieth Century Fox Film Corporation, Universal City Studios LLC, and Warner Bros. Entertainment Inc. (such MPAA members, together with MPAA, the “MPAA Group”), RIAA members UMG Recordings, Inc., Warner Music Group, Sony Music Entertainment, and EMI Music North America (such RIAA members, together with RIAA, the “RIAA Group” and together with the MPAA Group, and any other entities set forth in Attachment B (as may be amended from time to time), the “Participating Content Owners Group”).

2. Establishment of CCI

A. Not later than sixty (60) days after the Effective Date (as defined in Section 8(A) below), the Content Owner Representatives and the Participating ISPs will establish the Center for Copyright Information (“CCI”) to assist in the effort to combat Online Infringement by, among other things, (i) taking an active role in educating the public about the laws governing the online distribution of works protected by copyright, including educating the public regarding civil and criminal penalties for Online Infringement; (ii) interfacing with third party stakeholders on issues and questions of common interest to the Content Owner Representatives and the Participating ISPs pertaining to Online Infringement and related matters; (iii) assisting in the design and implementation of a process that provides for consumer and Subscriber education through the forwarding of Copyright Alerts to, and application of Mitigation Measures (as defined in Section 4(G)(iii) below) on, Subscribers engaged in persistent P2P Online Infringement, including reviewing the accuracy and efficacy of Content Owner Representative processes for identifying instances of P2P Online Infringement and ISP processes for identifying the Subscriber accounts associated with such P2P Online Infringement; (iv) periodically reviewing the effectiveness and impact of such processes as further described in Section 9 below; (v) collecting and disseminating to interested parties and the public data regarding Online Infringement and the lawful means available to obtain non-infringing copyrighted works; and (vi) facilitating the involvement of nonparticipating ISPs in the work of CCI and in the Copyright Alert program (as defined in Section 4(G) below).

B. CCI will be governed by a six (6) member executive committee (the “Executive Committee”) that will be selected as follows: three (3) members to be designated collectively by the Content Owner Representatives, and three (3) members to be designated collectively by the Participating ISPs. Each member shall serve without compensation for a term of two (2) years, which may be renewed.

C. The members of the Executive Committee shall be selected within fortyfive (45) days of the Effective Date (as defined in Section 8(A) below). The Executive Committee shall hold an initial meeting and designate an individual to serve as its Executive Director. The Executive Director shall not be one (1) of the six (6) members of the Executive Committee.

D. The Executive Committee shall also establish a three (3) member advisory board to the Executive Committee (the “Advisory Board”). The Content Owner Representatives shall select one (1) member of the Advisory Board, the Participating ISPs shall select one (1) member of the Advisory Board, and the two (2) selected Advisory Board members shall select the third member. Each of the members of the Advisory Board shall be drawn from relevant subject matter expert and consumer interest communities and, unless otherwise agreed in writing, shall not be employees or agents of the Content Owner Representatives nor of the Participating ISPs. The Advisory Board shall be consulted on any significant issues the Executive Committee is considering relating to the design and implementation of the Notice Process and the Copyright Alert program (as defined in Section 4(C) and Section 4(G), respectively), and shall provide recommendations to the Executive Committee as appropriate. The Advisory Board may also provide recommendations regarding the CCI educational program described in Section 3 below, upon the Executive Committee’s request.

E. Funding for CCI will be provided fifty percent (50%) by the Participating Content Owners Group and fifty percent (50%) by the Participating ISPs. The initial CCI budget shall be presented to and approved by the Executive Committee within ninety (90) days of the Effective Date (as defined in Section 8(A) below) and shall be funded by the Participating Content Owners Group and the Participating ISPs promptly thereafter according to the apportionment set forth in this Section 2(E). The Executive Committee shall also oversee and approve by majority all matters regarding the corporate formation of CCI and the further development of its internal structure. CCI shall be governed by its articles of incorporation and bylaws to be filed in connection with its corporate formation in the State of Delaware. The bylaws shall, inter alia, include a mechanism for adding parties to this Agreement.

3. CCI Educational Program

In conformance with its budget, CCI shall develop an educational program to inform the public about laws prohibiting Online Infringement and lawful means  available to obtain digital works online and through other legitimate means. CCI will also establish, host and maintain an online information center where educational material will be available to the general public. The Content Owner Representatives and the Participating ISPs shall contribute to CCI any applicable educational materials already developed by the respective Content Owner Representatives and Participating ISPs, and CCI shall facilitate the dissemination of such educational materials through online or other media. Such educational materials shall include, among other things, information about the technical means Subscribers can use to secure their computers and networks to avoid unwittingly assisting others in Online Infringement. Any Content Owner Representative or Participating ISP may add additional educational materials to the online information center subject to the prior permission of the Executive Committee.

4. System for Reducing Instances of P2P Online Infringement

A. The Content Owner Representatives will develop and maintain written methodologies, which shall be adopted by the applicable Content Owner representative, for identifying instances of P2P Online Infringement that are designed to detect and provide evidence that the identified content was uploaded or downloaded or copied and offered on a P2P network to be downloaded through a bit torrent or other P2P technology. Each Participating ISP will develop and maintain methodologies, which shall be adopted by the applicable Participating ISP, to match Internet Protocol (“IP”) addresses identified by the Content Owner Representatives to the Participating ISP Subscribers’ accounts, to keep a record of repeat alleged infringers, and to apply Mitigation Measures (as defined in Section 4(G)(iii) below). Such Content Owner Representative and Participating ISP methodologies are collectively referred to herein as the “Methodologies”. The goal of these Methodologies shall be to ensure that allegations of P2P Online Infringement, related records, and the application of any Mitigation Measures are based on reliable, accurate, and verifiable processes and information.

B. In conformance with its budget, CCI shall retain an independent and impartial technical expert or experts (the “Independent Expert”) to review on a periodic and ongoing basis the Methodologies and any modifications thereto, and recommend enhancements as appropriate, with the goal of ensuring and maintaining confidence on the part of the Content Owner Representatives, the Participating ISPs, and the public in the accuracy and security of the Methodologies. If a Content Owner Representative Methodology is found by the Independent Expert to be fundamentally unreliable, the Independent Expert shall issue a  confidential finding of inadequacy (“Finding of Inadequacy”) to the affected Content Owner Representative to permit the affected Content Owner Representative to modify or change the Methodology for review.

The selection of the Independent Expert shall require approval by a majority of the members of the Executive Committee. The Content Owner Representatives and the Participating ISPs agree to provide reasonable cooperation to the Independent Expert and provide to the Independent Expert a copy of their respective Methodologies, and any technical or other information reasonably related to their respective Methodologies needed to undertake this review process. As a condition of retention, the Independent Expert shall agree in writing to keep confidential any proprietary or other confidential information provided by the Content Owner Representatives and the Participating ISPs as part of the Independent Expert’s review. The Content Owner Representatives and each Participating ISP shall exchange general descriptions of their respective Methodologies upon request.

At the direction of CCI, the Independent Expert may consult with each Content Owner Representative or Participating ISP concerning the implementation and ongoing operation of that Representative’s or ISP’s Methodology. In addition, the Independent Expert will (i) review the Methodologies with recognized privacy experts agreed to by a majority of the Executive Committee and (ii) recommend enhancements to the Methodologies as appropriate to address privacy issues, if any, identified by the privacy experts. Failure to adopt a recommendation of the Independent Expert shall not amount to a breach under this Agreement. The Independent Expert’s recommendations must be shared with each of the Content Owner Representatives and the affected Participating ISP, but may not be disclosed to other parties, including Participating ISPs other than the affected Participating ISP, without the express written permission of each Content Owner Representative and the affected Participating ISP and any disclosure to such other third parties shall not include any proprietary or otherwise confidential information of the Content Owner Representative(s) or Participating ISP affected.

C. The Content Owner Representatives may send notices pursuant to this Agreement and the implementation agreements described in Section 5(A) of this Agreement (the “Implementation Agreements”) to the Participating ISPs of instances of alleged P2P Online Infringement (each an “ISP Notice”), and the Participating ISPs shall accept and process such notices involving the Participating ISPs’ Subscribers (such Content Owner Representative and Participating ISP actions being, together, a “Notice Process”).

The Content Owner Representatives agree to generate ISP Notices only for instances of P2P Online Infringement identified through the use of the Content Owner Representative Methodologies that have been reviewed and evaluated by the Independent Expert, and that have not been issued a Finding of Inadequacy. For purposes of generating ISP Notices, the Content Owner Representatives further agree to focus on instances of P2P Online Infringement involving files or data consisting primarily of infringing material or containing unauthorized copyrighted works in complete or substantially complete form and to avoid instances of P2P activity in which de minimis amounts of allegedly infringing material are incorporated into files or data consisting primarily of non-infringing material.

The Content Owner Representatives will also endeavor to generally send the ISP Notices within twenty-four (24) hours of confirmed identification of the alleged activity described in the ISP Notice. ISP Notices shall be generated and sent solely by the Content Owner Representatives or their service providers (including on behalf of the Participating Content Owners Group, the Independent Content Owners (as defined in Section 5(C) below), the RIAA Group’s members’ distributed labels and those entities set forth in Attachment D hereto). The individual members of the Participating Content Owners Group; IFTA and A2IM; the Independent Content Owners (as defined in Section 5(C) below); the RIAA Group’s members’ distributed labels; and those entities set forth in Attachment D hereto shall not generate or send ISP Notices.

D. The Content Owner Representatives agree that each ISP Notice provided to a Participating ISP as part of the Notice Process shall clearly identify: (i) the copyrighted work that allegedly has been infringed and the owner of such work; (ii) a description of the basis upon which the notifying Content Owner  representative or its agent asserts the right to enforce the particular affected copyright on behalf of the person or entity who owns or controls the copyright and/or exclusive distribution rights in the copyright (a “Copyright Owner”); (iii) a statement that the notifying Content Owner Representative or its agent has a good faith belief that use of the material is not authorized by the Copyright Owner, its agent, or the law; (iv) a statement that the information in the ISP Notice is accurate and that, under penalty of perjury, the Content Owner Representative is authorized to act on behalf of the Copyright Owner whose rights were allegedly infringed; and (v) technical information necessary for the Participating ISP to identify the Subscriber (e.g., IP address, date, time and time zone of the alleged P2P Online Infringement, and such additional information as may be necessary as the Participating ISPs transition to IPv6). The Content Owner Representatives and the Participating Content Owners Group agree that all notices of P2P Online Infringement generated by them or on their behalf and delivered to the Participating ISPs shall meet the requirements for ISP Notices hereunder, shall comply with the terms hereof and shall be governed exclusively by this Agreement and the Implementation Agreements.

E. Reserved.

F. Each Participating ISP agrees to communicate the following principles in its Acceptable Use Policies (“AUP”) or Terms of Service (“TOS”): (i) copyright infringement is conduct that violates the Participating ISP’s AUP or TOS and for which a Subscriber may be legally liable; (ii) continuing and subsequent receipt of Copyright Alerts (as defined in Section 4(G) below) may result in the Participating ISP taking action by the application of Mitigation Measures (as defined in Section 4(G)(iii) below); and (iii) in addition to these Mitigation Measures, the Participating ISP may also adopt, in appropriate circumstances, those measures specifically authorized by section 512 of the Digital Millennium Copyright Act (“DMCA”) and/or actions specifically provided for in the Participating ISP’s AUP and/or TOS including temporary suspension or termination, except that nothing in this Agreement alters, expands, or otherwise affects any Participating ISP’s rights or obligations under the DMCA.

G. Each Participating ISP will develop, implement and independently enforce a Copyright Alert program as described in this Section 4(G) (each such program a “Copyright Alert Program”), provided that each Participating ISP shall not be required to exceed the notice volumes pertaining to its Copyright Alert Program as established in Section 5 of this Agreement. Each Participating ISP’s Copyright Alert Program will be triggered by the Participating ISP’s receipt of an ISP Notice that can be associated with a Subscriber’s account and will result in the Participating ISP sending one (1) or more alert notices to the applicable Subscriber concerning the ISP Notice, as further described below (each such alert notice a “Copyright Alert”).

Each Participating ISP’s Copyright Alert Program shall be comprised of six (6) Copyright Alerts, except that a Participating ISP may elect to send a single Educational Step Copyright Alert (as defined in Section 4(G)(i) below). However, to give an affected Subscriber time to review each Copyright Alert pertaining to such Subscriber’s account and to take appropriate steps to avoid receipt of further Copyright Alerts, a Participating ISP and its Subscriber will be afforded a grace period of seven (7) calendar days after the transmission of any Copyright Alert before any additional Copyright Alerts will be directed to the account holder (the “Grace Period”). The same Grace Period shall apply following the sending of a Mitigation Measure Copyright Alert (as described in Section 4(G)(iii) and (iv) below) and during the pendency of any review requested by a Subscriber following the receipt of either such Copyright Alert. During such Grace Period, any further ISP Notices received by the Participating ISP that the Participating ISP determines to be associated with the applicable Subscriber’s account will be handled as described in sub-paragraphs (i), (ii), (iii), and (iv) below.

Each Participating ISP shall use commercially reasonable efforts to develop a Copyright Alert Program in accordance with this Section 4(G), and shall work in good faith to complete all technical development work necessary for implementation of its Copyright Alert Program by a target launch date set forth in the applicable Implementation Agreement (each Participating ISP’s target launch date referred to herein as its “Copyright Alert Program Launch Date”).

Each Participating ISP’s Copyright Alert Program shall be substantially similar to the following four (4) step sequential framework, which shall include an educational step (the “Initial Educational Step”), an acknowledgement step (the “Acknowledgement Step”), a mitigation measures step (the “Mitigation Measures Step”), and a post mitigation measures step (the “Post Mitigation Measures Step”) as further described below. Under this framework, each Participating ISP will send Copyright Alerts with escalating warning language to Subscribers who are the subject of continuing ISP Notices. Specifically, each Participating ISP (1) shall send the Subscriber up to two (2) Copyright Alerts during the Initial Educational Step; (2) shall send two (2) more Copyright Alerts during the Acknowledgement Step; (3) shall send one (1) Mitigation Measure Copyright Alert (as defined in Section 4(G)(iii) below) during the Mitigation Measures Step and shall apply the specified Mitigation Measure (as defined in Section 4(G)(iii) below), subject to the Subscriber’s right to challenge (or the Participating ISP’s discretion to waive) the Copyright Alert(s) at this step; and (4) during the Post Mitigation Measures Step, shall send one (1) Mitigation Measure Copyright Alert and shall apply the specified Mitigation Measure, and may, at the Participating ISP’s sole discretion, send additional Mitigation Measure Copyright Alerts and apply additional Mitigation Measures, subject to the Subscriber’s right to challenge Copyright Alerts at this step.

Each Participating ISP’s Copyright Alert Program shall follow the following format:
(i) Initial Educational Step: Upon receipt of an ISP Notice associated with a Subscriber’s account and taking into account the parameters of the Grace Period (if applicable), the Participating ISP shall direct a Copyright Alert to the account holder (an “Educational Step Copyright Alert”). The Educational Step Copyright Alert shall notify the Subscriber of receipt of an ISP Notice alleging P2P Online Infringement and shall include, at a minimum, the information contained in the ISP Notice regarding the alleged infringement and shall inform the Subscriber that: (a) copyright infringement is illegal as well as a violation of the Participating ISP’s AUP or TOS, (b) users of the Subscriber’s account must not infringe copyrighted works, (c) there are lawful methods of obtaining copyrighted works, (d) continuing and subsequent receipt of Copyright Alerts may result in the Participating ISP taking action by the application of Mitigation Measures, (e) in addition to these Mitigation Measures, the Participating ISP may also adopt, in appropriate circumstances, those measures specifically authorized by section 512 of the DMCA and/or actions specifically provided for in the Participating ISP’s AUP and/or TOS including temporary suspension or termination, (f) the Subscriber will have an opportunity to challenge any Copyright Alerts associated with the Subscriber’s account before a Mitigation Measure is applied and may therefore wish to preserve records or information that could be used to show that the Subscriber’s conduct was non-infringing, and (g) additional information regarding the Copyright Alert program may be found at CCI’s web site.

The number of Educational Step Copyright Alerts shall be at the discretion of the Participating ISP, not to exceed two (2) Copyright Alerts per Subscriber account, taking into account the parameters of the Grace Period. The second  Educational Step Copyright Alert shall note specifically that it is in fact the Subscriber’s second Educational Step Copyright Alert.

If the Participating ISP receives one (1) or more additional ISP Notices attributable to such Subscriber’s account during the Grace Period associated with one of the Educational Step Copyright Alerts, the Participating ISP may at its discretion emphasize the educational and warning nature of its Copyright Alert Program by directing to the account holder additional Copyright Alerts that are similar in style to the Educational Step Copyright Alert. Such supplemental Copyright Alerts sent during the Grace Period shall not count toward the limit of two (2) Educational Step Copyright Alerts.

(ii) Acknowledgement Step: At the Acknowledgement Step, upon receipt of further ISP Notices determined to be associated with a Subscriber’s account and taking into account the parameters of the Grace Period, the Participating ISP shall direct two (2) Copyright 1/ The Parties acknowledge and agree that the  limitations on ISP liability under the DMCA are conditioned on an ISP’s adoption and reasonable implementation of a policy that provides for the termination in appropriate circumstances of subscribers and account holders who are repeat infringers (“DMCA Termination Policy”).

Notwithstanding the foregoing, (1) this Agreement does not and is not intended to create any obligation on a Participating ISP to adopt, implement, enforce, or otherwise take any action in furtherance of a DMCA Termination Policy; (2) the adoption, implementation, enforcement, or other action in furtherance of a DMCA Termination Policy is not part of any step of the Copyright Alert program or enforceable under this Agreement; and (3) entering into this Agreement is not, by itself, intended to address whether a Participating ISP has adopted and reasonably implemented a DMCA Termination Policy. This Agreement does not and is not intended to establish any legal inference regarding any ISP that does not participate in the Copyright Alert program or to address whether or not any ISP has adopted and reasonably implemented a DMCA Termination Policy. All references in this Agreement to the possibility of termination of a subscriber account are intended solely as an informational element of the Copyright Alerts required by the Copyright Alert program.

Alerts to the account holder that, as further described below, will require acknowledgement of receipt (but not require the user to acknowledge participation in any allegedly infringing activity) (each such Copyright Alert an “Acknowledgement Step Copyright Alert”). Each such Acknowledgement Step Copyright Alert shall state that the Subscriber, by acknowledging the notice, agrees immediately to cease, and/or agrees to instruct other users of the Subscriber’s account to cease infringing conduct, if any exists.

Each such Copyright Alert shall also state that, upon receipt of lawful process requiring production of records or pursuant to a qualifying claim that the Subscriber has made via the Independent Review Program (as defined in Section 4(H) below and Attachment C hereto), the Participating ISP may provide relevant identifying information about the Subscriber and the Subscriber’s infringing conduct to third parties, including Content Owner Representatives or their agents and law enforcement agencies.

The mechanism provided for the Subscriber to acknowledge an Acknowledgement Step Copyright Alert may be in the form of a) a temporary landing page to which the Subscriber’s browser is directed prior to permitting general access to the Internet (“Landing Page”) that shall state that the Subscriber has received prior warnings regarding P2P Online Infringement, and shall require the user of the Subscriber’s account to acknowledge receipt by clicking through the page prior to accessing additional web pages, (b) a “pop-up” notice which shall be designed to persist until the user of the Subscriber’s account acknowledges receipt by clicking through the pop-up notice, or (c) such other format as determined in the Participating ISP’s reasonable judgment which shall require acknowledgement of receipt of the Acknowledgement Step Copyright Alert.

If the Participating ISP receives one (1) or more additional ISP Notices attributable to such Subscriber’s account during the Grace Period associated with one of the Acknowledgement Step Copyright Alerts, the Participating ISP may at its discretion emphasize the educational and warning nature of its Copyright Alert Program by directing to the account holder additional Copyright Alerts that are similar in style to the Educational Step Copyright Alert or the Acknowledgement Step Copyright Alert. Such supplemental Copyright Alerts sent during the Grace Period shall not count toward the limit of two (2) Acknowledgement Step Copyright Alerts.

(iii) Mitigation Measures Step: At the Mitigation Measures Step, upon receipt of further ISP Notices determined to be associated with a Subscriber’s account and taking into account the parameters of the Grace Period, the Participating ISP shall direct a Copyright Alert (a “Mitigation Measure Copyright Alert”) to the account holder that (a) requires acknowledgement of receipt of the Copyright Alert as described in the Acknowledgement Step, (b) shall state that the Subscriber has received prior warnings regarding alleged P2P Online Infringement, and (c) informs the Subscriber that, per the Participating ISP’s AUP and/or TOS and as set forth in prior Copyright Alerts, additional consequences shall be applied upon the Subscriber’s account as described more fully in this subparagraph (iii) (each such measure a “Mitigation Measure”).

The Mitigation Measure Copyright Alert shall set forth the specific Mitigation Measure to be applied and shall inform the Subscriber that, unless the Subscriber has requested review under one of the dispute resolution mechanisms specified in Section 4(H) below, the Participating ISP shall apply the selected Mitigation Measure after the expiration of a notice period of ten (10) business days or fourteen (14) calendar days from the time the Mitigation Measure Copyright Alert is delivered. The term of the notice period (i.e., ten (10) business days or fourteen (14) calendar days) shall be at the Participating ISP’s discretion. If no review is requested by the Subscriber, the Participating ISP shall apply the specified Mitigation Measure on the applicable Subscriber’s Internet access service account after such ten (10) business day or fourteen (14) calendar day period has expired.

The Mitigation Measure applied at the Mitigation Measures Step shall be one of the following, determined by the Participating ISP and applied in a manner reasonably calculated, in the Participating ISP’s reasonable discretion, to help deter P2P Online Infringement: (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; or (f) such other temporary Mitigation Measure as may be applied by the Participating ISP in its discretion that is designed to be comparable to those Mitigation Measures described above. Participating ISPs shall not be obligated to apply a Mitigation Measure that knowingly disables or is reasonably likely to disable a Subscriber’s access to any IP voice service (including over-the-top IP voice service), e-mail account, or any security service, multichannel video programming distribution service or guide, or health service (such as home security or medical monitoring) while a Mitigation Measure is in effect.

The foregoing provisions notwithstanding, the Participating ISP will retain the discretion, on a per Subscriber account basis, (a) to decide whether appropriate circumstances exist to waive such Mitigation Measure (a “Waiver”), provided that the Participating ISP will only issue one (1) such Waiver per Subscriber account, or (b) instead of applying the Mitigation Measure specified in the Mitigation Measure Copyright Alert, to apply an alternate Mitigation Measure on the Subscriber’s Internet access service account and to so inform the Subscriber.

If the Participating ISP elects to use a Waiver, the Participating ISP will direct to the account holder a final warning (a “Fifth Warning Copyright Alert”) that will contain each of the elements contained in the Mitigation Measure Copyright Alert as described in this Section 4(G)(iii) and will inform the Subscriber that, in the event that the Participating ISP receives one (1) or more further ISP notices from a Content Owner Representative, the Subscriber’s Internet access service account will be subject to a Mitigation Measure per the Participating ISP’s AUP and/or TOS and as set forth in prior Copyright Alerts, unless the Subscriber requests review under one of the dispute resolution mechanisms specified in Section 4(H).

If, after the expiration of the Grace Period following issuance of a Fifth Warning Copyright Alert, a Participating ISP receives one (1) or more further ISP Notices determined to be related to a Subscriber’s account for which a Waiver has been granted, the Participating ISP will proceed with the transmission of a Mitigation Measure Copyright Alert and the associated activities described above.

(iv) Post Mitigation Measures Step: In the event that a Participating ISP receives a further ISP Notice determined to be associated with a Subscriber’s account after a Mitigation Measure has been applied on that Subscriber’s account, the Participating ISP shall direct a further Mitigation Measure Copyright Alert to the account holder and after ten (10) business days or fourteen (14) calendar days, as applicable, either re-apply the previous Mitigation Measure or apply a different Mitigation Measure, unless the Subscriber requests review under one of the dispute resolution mechanisms specified in Section 4(H).

The Mitigation Measure Copyright Alert at this step shall also inform the Subscriber that the Subscriber may be subject to a lawsuit for copyright infringement by the Copyright Owners and that continued infringement may, in appropriate circumstances, result in the imposition of action consistent with section 512 of the DMCA and/or actions specifically provided for in the Participating ISP’s AUP and/or TOS including temporary suspension or termination. Upon completion of the Post Mitigation Measures Step, a Participating ISP may elect voluntarily to continue forwarding ISP Notices received for that Subscriber account, but is not obligated to do so.

The Participating ISP will, however, continue to track and report the number of ISP Notices the Participating ISP receives for that Subscriber’s account, so that information is available to a Content Owner Representative if it elects to initiate a copyright infringement action against that Subscriber.

(v) Reset: If a Participating ISP does not receive an ISP Notice relating to a Subscriber’s account within twelve (12) months from the date the Participating ISP last received an ISP Notice relating to that same Subscriber’s account, (a) the next ISP Notice associated with that Subscriber’s account shall be treated as the first such ISP Notice under the provisions of this Copyright Alert Program and the Subscriber may be afforded an additional Waiver as set forth in Section 4(G)(iii) above; and (b) the Participating ISP may expunge all prior ISP Notices and Copyright Alerts from the Subscriber’s account.

(vi) Transmission of Copyright Alerts to Subscribers: Copyright Alerts should be directed by the Participating ISP to the account holder by means that are designed to ensure prompt receipt (e.g., via email, physical mail, auto-dialer notification, ISP account management tool pop-ups requiring user click through, electronic or voice communications with Subscribers or such other means of delivery as the Participating ISP deems commercially practicable), and the Participating ISP shall design such Copyright Alerts in a manner reasonably calculated, in the Participating ISP’s discretion, to be received by the Subscriber.

Each Copyright Alert after the initial Educational Step Copyright Alert will include the educational and general information required in the Educational Step Copyright Alert and in any other Copyright Alerts that were forwarded to the Subscriber after the Educational Step, together with a summary of the pertinent information regarding the alleged P2P Online Infringement related to prior ISP Notices or a link or other mechanism by which the Subscriber can access or obtain such information. Each Participating ISP will provide the form of its Copyright Alerts to the Independent Expert as part of the Independent Expert’s review of each Participating ISP’s Methodology, and will in good faith consider any suggestions from the Independent Expert.

(vii) Notification of Ability to Request Review: Copyright Alerts directed to account holders at the Mitigation Measures Step and the Post Mitigation Measures Step shall inform the Subscriber of the Subscriber’s ability to request review within ten (10) business days or fourteen (14) calendar days, as applicable, under one of the dispute resolution mechanisms described in Section 4(H). If the Subscriber requests such review, the Participating ISP shall, upon receiving notice of the request for such review and pending a final decision via the chosen dispute resolution mechanism, defer taking any further action under its Copyright Alert Program.

H. Independent Review Program: (i) A Subscriber may seek review of a Mitigation Measure Copyright Alert via the dispute resolution program set forth in Attachment C (the “Independent Review Program”) or as otherwise permitted in the Participating ISP’s AUP or TOS or as permitted by law, at the election of the Subscriber. The Independent Review Program shall allow for the Subscriber to remain anonymous to the Content Owner Representatives and the members of the Participating Content Owners Group, except in cases where the Subscriber elects a defense in which the Subscriber’s identity will be disclosed.

The decision from the Independent Review Program shall be binding on the Parties solely for purposes of the Notice Process and the affected Copyright Alert Program but shall have no force or effect beyond the Notice Process and the affected Copyright Alert Program, and shall not be deemed to adjudicate any rights outside of this limited context. In any judicial proceeding between a Subscriber and a Copyright Owner concerning subject matter that is or has been the subject of the Independent Review Program, as provided in the procedures governing the Independent Review Program, neither the Subscriber nor the Copyright Owner shall seek to enter into evidence, or otherwise refer to or cite, either the fact of the Independent Review or any outcome of the Independent Review.

(ii) The costs of establishing and administering the Independent Review Program shall be borne fifty percent (50%) by the Participating Content Owners Group and fifty percent (50%) by the Participating ISPs.

I. Generation of Monthly Reports: Within ten (10) business days of the end of each calendar month during the term of this Agreement, each Participating ISP shall provide reporting of non-personally identifiable information to the Content Owner Representatives identifying, on an anonymized basis and in the format set forth in the Participating ISP’s Implementation Agreement, information about those Subscribers who have received Copyright Alert(s) during the applicable calendar month and the total number of alleged P2P Online Infringements by each such Subscriber. Such reporting may be done via Automated Copyright Notification System (“ACNS”) standards or other available methods as mutually agreed in the Participating ISP’s Implementation Agreement. The Parties may not (i) use or disclose such data to governmental entities (absent lawful process) or other third parties, unless prior approval for each such use or disclosure is received from a majority of the CCI Executive Committee and the data is disclosed only on an aggregated, anonymized basis, or (ii) use such reports or any of the data that is included in or may be extrapolated from such reports to attempt to obtain the identity of a Subscriber; except that (1) the Parties may use the reports or data to analyze the effectiveness of the Copyright Alert program; and (2) the Content Owner Representatives or any other member of the  participating Content Owners Group may use such reports or data as the basis for seeking a Subscriber’s identity through a subpoena or order or other lawful process. For the avoidance of doubt, the Parties agree that the Content Owner Representatives may share such reports with the other members of the participating Content Owners Group, provided such Parties agree to abide by the limitations set forth in this Section 4(I).

5. Technical Operations; Implementation Agreements

A. The Content Owner Representatives and each Participating ISP (and the members of the Participating Content Owners Group, as necessary) will work together in good faith to establish and agree upon standardized forms and procedures for a Notice Process (for example, by incorporating ACNS or other mutually agreeable standard(s), and endeavoring to include identification of Methodologies used, if practical). The foregoing sentence notwithstanding, the Parties acknowledge that a common interface between the Content Owner Representatives and the Participating ISPs may not be technically or financially practical. The Content Owner Representatives and each Participating ISP (and the members of the Participating Content Owners Group, as necessary) will document the standards contemplated in this Section 5(A), notice volumes, and other pertinent details concerning the technical operation of the Notice Process and Copyright Alert Program between the Content Owner Representatives and the applicable Participating ISP in an Implementation Agreement. The Content Owner Representatives and the Participating ISPs shall agree to a form of the Implementation Agreement, including the terms and conditions of such agreement, that shall be used by all of the Participating ISPs. Each Participating ISP and the Content Owner Representatives (and the members of the  participating Content Owners Group, as necessary) shall make reasonable efforts to execute their Implementation Agreement no later than three (3) months after the Effective Date (as defined in Section 8(A) below).

B. Reserved.

C. The MPAA Group and the RIAA Group will allocate the number of ISP Notices that each shall be entitled to send to each Participating ISP per month (i) on behalf of their members, the RIAA Group’s members’ distributed labels, and those entities set forth in Attachment D hereto; and (ii) on behalf of independent record labels and film production companies that are members of the American Association of Independent Music (“A2IM”) and the Independent Film and Television Alliance (“IFTA”), respectively (collectively, the “Independent Content Owners”), provided that IFTA, A2IM, and the Independent Content Owners (as applicable) agree to be bound by written agreement (for so long as such agreement remains in effect) to the terms set forth in Sections 4(C), 4(D), 4(H)(i), 4(I), 5(A), 5(C), 6, 7, 8, 9(E), 9(F), and 10 of this Agreement that apply to all members of the Participating Content Owners Group (collectively or individually) and certain designated provisions of each Participating ISP’s Implementation Agreement as set forth therein.

D. Each Participating ISP may temporarily cease processing ISP Notices or reduce the number of ISP Notices being processed if, in the sole discretion of the Participating ISP, (i) the Participating ISP receives more ISP Notices than its business processes and systems can reasonably address, (ii) the Participating ISP receives more calls from Subscribers regarding Copyright Alerts than its designated customer service representatives can reasonably address (taking into account the other demands on Participating ISP customer service representatives for unrelated purposes), or (iii) other demands on the Participating ISP’s business processes and systems, such as requests from law enforcement, must be given precedence. If the Participating ISP temporarily ceases processing ISP Notices for any of the foregoing reasons, the Participating ISP shall promptly notify the Content Owner Representatives, subject to any limitations on such notice as may be imposed in law or regulation, and shall work cooperatively with the Content Owner Representatives and, if agreed by all affected Parties, the Independent Expert, to resolve any issues relating to the over-provisioning of ISP Notices.

6. Consent to Receive Notices
A. Entry into this Agreement by a Participating ISP shall constitute consent by that Participating ISP to receive ISP Notices from the Content Owner Representatives (or their service providers) on behalf of the Participating Content Owners Group, those entities set forth in Attachment D (as such attachment may be amended from time to time) (or in the case of the RIAA Group, on behalf of the RIAA Group’s members’ distributed labels), and the Independent Content Owners upon implementation by the Participating ISP of its Copyright Alert Program, subject to all of the terms and limitations set forth in this Agreement and the Participating ISP’s Implementation Agreement. The members of the Participating Content Owners Group may change from time to time upon mutual written agreement of the Parties, provided that MPAA and RIAA shall remain Parties to this Agreement and, provided further, that in no event shall such changes increase the notice volumes applicable to each Participating ISP under this Agreement and each Participating ISP’s Implementation Agreement, unless this Agreement or the Participating ISP’s Implementation Agreement is modified with the written consent of the Participating ISP to increase the number of ISP Notices that may be sent. Nothing in this Agreement shall require a Participating ISP to accept notices from any third party or restrain it from doing so. No ISP Notices or other notices of P2P Online Infringement directed to Subscribers shall be sent to the Participating ISP by or on behalf of the members of the Participating Content Owners Group, the Independent Content Owners, and those entities set forth in Attachment D of this Agreement (as such attachment may be amended from time to time) (or in the case of the RIAA Group, on behalf of the RIAA Group’s members’ distributed labels) except pursuant to this Agreement and the Participating ISP’s Implementation Agreement.

B. Prior to the Copyright Alert Program launch date for the applicable Participating ISP, such Participating ISP shall continue to process notices concerning P2P Online Infringement in accordance with such Participating ISP’s then current policies or practices or, if applicable, agreements with any member of the Participating Content Owners Group.

7. Force Majeure
No Party shall be liable to any other Party for any delay, failure in performance, loss or damage due to fire, explosion, interruption of power supplies, earthquake, flood, the elements, strike, embargo, labor disputes, failure of public transit or other public infrastructure, acts of civil or military authority, war, terrorism, acts of God, acts of the public enemy, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, or other causes beyond such Party’s reasonable control, whether or not similar to the foregoing and whether or not the Parties contemplate such circumstances at the time of entering into this Agreement.

8. Term; Withdrawal
A. This Agreement shall become effective upon the date all of the Parties have executed this Agreement (the “Effective Date”). This Agreement shall remain in effect for a period of four (4) years following the Effective Date.

B. Any Party may withdraw as a Party from this Agreement prior to its expiration (i) if such Party reasonably determines that continued participation in this Agreement is not technically, commercially, operationally or otherwise practical; (ii) if such Party is subject to a complaint before any administrative agency, court, or other governmental entity challenging the lawfulness of the Copyright Alert program, a Participating ISP’s Copyright Alert Program, the Agreement, or an Implementation Agreement to which it is a party or any conduct taken under such agreements or programs; (iii) if another Party to this Agreement is subject to a complaint before any administrative agency, court, or other governmental entity challenging the lawfulness of the Copyright Alert program, a Participating ISP’s Copyright Alert Program, or the Agreement or any conduct taken under such agreements or programs; or (iv) if a government entity enacts or establishes a government-sponsored program or judicial, administrative, or executive process concerning P2P Online Infringement that imposes materially different obligations than those set forth in this Agreement.

9. Records and Evaluation
A. Consistent with its general policies and business practices for retaining Internet access service subscriber records, each Participating ISP agrees to keep reasonable records pertaining to its Copyright Alert Program. Each Participating ISP also agrees to use reasonable efforts to provide semi-annual reports to CCI of the results of its Copyright Alert Program, which shall include, in an aggregated, anonymized form, nonpersonally identifiable information regarding the ISP Notices received and Copyright Alerts sent and such other aggregated, anonymized data as the Participating ISPs may from time to time agree to provide.

B. Consistent with its general policies and business practices for retaining records regarding Online Infringement, each Content Owner Representative agrees to keep reasonable records pertaining to its participation in the Notice Process under this Agreement including records of the Methodology(ies) currently and previously in use and the effective date(s) of such use. Each Content Owner Representative agrees to use reasonable efforts to provide semi-annual reports to CCI of the results of its Notice Process, which shall include, in an aggregated, anonymized form, non-personally identifiable information regarding the ISP Notices sent to the Participating ISPs concerning activities relating to P2P Online Infringement by the Participating ISPs’ Subscribers and such other aggregated, anonymized data as the Content Owner Representatives may from time to time agree to provide. Such reports shall be in a form to be determined by each Content Owner Representative in its discretion.

C. CCI shall keep confidential all records and data relating to the Notice Process and Copyright Alert Programs. None of the records and data relating to the Notice Process and Copyright Alert Programs shall be made publicly available by CCI without prior approval by a majority of the Executive Committee.

D. CCI shall review on an annual basis, beginning on the twelve (12) month anniversary of the Effective Date and occurring each subsequent year thereafter on the anniversary of the Effective Date, the number of Copyright Alerts sent by the Participating ISPs to each Subscriber’s account at each step of the Copyright Alert Programs. Based on the information that CCI receives from the Participating ISPs and the Content Owner Representatives, pursuant to Sections 9(A) and 9(B), in order to assess the effectiveness of the Copyright Alert program, CCI shall assess among other things (i) the proportion of Subscribers of each Participating ISP who ceased receiving Copyright Alerts at each step of the Copyright Alert Program; (ii) the average overall number of P2P Online Infringements detected for Content Owner Representative assets over a weekly or monthly period (in general, and by Participating ISP); (iii) the number of ISP Notices received and the number of corresponding Copyright Alerts sent; (iv) the number and percentage of individual Subscribers who, after receiving one (1) or more Copyright Alerts, did not receive additional Copyright Alerts corresponding to their accounts (in general, and by Participating ISP); (v) the number of Subscribers who requested a review under the Independent Review Program, and at what step they requested it; and (vi) the number and percentage of Independent Reviews which resulted in a decision in favor of the Subscriber – and why such decisions were made. As part of its annual review, CCI shall also examine whether Copyright Alerts are successfully reaching account holders. The Parties shall consider in good faith any recommendations made by CCI resulting from such review and assessment.

E. The Content Owner Representatives, those members of the Participating ontent Owners Group and Independent Content Owners selected by the Content Owner Representatives, and the Participating ISPs shall establish a working group under the auspices of CCI, which will consist of appropriate representatives of each Party, who will meet regularly (at least quarterly during the eighteen (18) months following the Effective Date and then at least semi-annually thereafter) to assist in the initiation and implementation of this Agreement, assess its ongoing operation, and thereafter recommend to the Parties on a non-binding basis any suggested amendments to this Agreement to improve its scope or effectiveness. The working group may consult with the Independent Expert as appropriate.

F. CCI shall maintain any reports or other information provided by any Party hereunder in the strictest confidence and shall not disclose such reports or information to any third party or any Party other than the Party which originated the report or information, absent written consent from the originating Party or as otherwise required by law. In the event CCI receives a subpoena or other legal process seeking the disclosure of such reports or information, CCI shall immediately notify the Party whose reports or information is subject to the subpoena or other legal process and provide such Party with the opportunity to seek a protective order or otherwise to oppose disclosure. If authorized by the Executive Committee, CCI shall also seek a protective order or oppose disclosure.

10. Miscellaneous
A. The Content Owner Representatives, the members of the Participating Content Owners Group, the Independent Content Owners, and the Participating ISPs appreciate that alternatives to obtaining and sharing music, movies, and other copyrightprotected works by means other than unlawful digital distribution should be encouraged. The Content Owner Representatives will undertake appropriate efforts to ensure the widespread communication of lawful alternatives for consuming content through online distribution methods and encourage the public to utilize these alternatives. Each Participating ISP will, via Copyright Alerts and other avenues, encourage Subscribers to seek legal alternatives to obtain copyrighted materials.

B. This Agreement shall be governed by the laws of the State of New York, without regard to any conflict of law principles. The Parties hereby consent to the exclusive jurisdiction of any state or federal court sitting in the Borough of Manhattan, New York over any judicial proceedings arising out of or related to this Agreement and agree that all claims in respect of such judicial proceedings shall be heard in such state or federal courts in the Borough of Manhattan, New York. The Parties further agree that any such proceeding shall be filed in the United States District Court for the Southern District of New York if such court has jurisdiction over the proceeding.

C. Nothing expressed or implied in this Agreement is intended, or may be construed, to confer upon or give any person or entity other than the Parties hereto any rights or remedies hereunder. This Agreement may only be amended by written agreement signed by all Parties hereto.

D. This Agreement is subject to any laws or regulations that may be enacted by Congress or adopted by the Federal Communications Commission (or any other federal or state administrative, regulatory or legislative body). If any future law or regulation makes unlawful any provision of this Agreement, that provision will be severed from this Agreement. If any Participating ISP, Content Owner Representative, or member of the Participating Content Owners Group reasonably concludes that such invalidated provision is material to the Agreement or that severing such provision is otherwise impracticable, such Party may immediately terminate its participation in the Agreement.

E. Headings herein are for convenience of reference only and shall in no way affect interpretation of this Agreement.

F. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all proposals, oral or written, all negotiations, conversations or discussions, and all past dealings or industry customs between the parties relating to the subject matter hereof.

G. This Agreement may be executed in two or more counterparts and duplicate originals, each of which will be deemed an original and all of which together
will constitute one and the same instrument. An executed copy of this Agreement transmitted via facsimile or email by the executing party and received via facsimile or email by the other party shall have the same legal force as an executed original version of this Agreement.

H. The waiver by a party of any breach of this Agreement by the other party in a particular instance shall not operate as a waiver of subsequent breaches of the same or different kind. Failure of a party to exercise any rights under this Agreement in a particular instance shall not operate as a waiver of such party’s right to exercise the same or different rights in subsequent instances.
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Agreed as of July 6, 2011:

The Motion Picture Association of America, Inc.
By:
Name:
Title:

The Recording Industry Association of America, Inc.
By:
Name:
Title:

Walt Disney Studios Motion Pictures
By:
Name:
Title:

Paramount Pictures Corporation
By:
Name:
Title:

Sony Pictures Entertainment Inc.
By:
Name:
Title:

Twentieth Century Fox Film Corporation
By:
Name:
Title:

Universal City Studios LLC
By:
Name:
Title:

Warner Bros. Entertainment Inc.
By:
Name:
Title:

UMG Recordings, Inc.
By:
Name:
Title:

Warner Music Group
By:
Name:
Title:

Sony Music Entertainment
By:
Name:
Title:

EMI Music North America
By:
Name:
Title:

SBC Internet Services, Inc., BellSouth Telecommunications, Inc., Southwestern Bell Telephone Company, Pacific Bell Telephone Company, Illinois Bell Telephone Company, Indiana Bell Telephone Company, Incorporated, Michigan Bell Telephone Company, Nevada Bell Telephone Company, The Ohio Bell Telephone Company, Wisconsin Bell, Inc., The Southern New England Telephone Company, and BellSouth Telecommunications, Inc. (the AT&T Inc. companies)
By:
Name:
Title:

Verizon Online LLC, Verizon Online LLC – Maryland, and Verizon OnlinePennsylvania Partnership (the Verizon companies)
By:
Name:
Title:

Comcast Cable Communications Management, LLC
By:
Name:
Title:

CSC Holdings, LLC
By:
Name:
Title:

Time Warner Cable Inc.
By:
Name:
Title:

Attachment A – Participating ISPs
The Participating ISPs are the following: SBC Internet Services, Inc., BellSouth Telecommunications, Inc., Southwestern Bell Telephone Company, Pacific Bell Telephone Company, Illinois Bell Telephone Company, Indiana Bell Telephone Company, Incorporated, Michigan Bell Telephone Company, Nevada Bell Telephone Company, The Ohio Bell Telephone Company, Wisconsin Bell, Inc., The Southern New England Telephone Company, and BellSouth Telecommunications, Inc. (the AT&T Inc. companies); Verizon Online LLC, Verizon Online LLC – Maryland, and Verizon Online Pennsylvania Partnership (the Verizon companies); Comcast Cable Communications Management, LLC; CSC Holdings, LLC (solely with respect to its cable systems operating in New York, New Jersey, and Connecticut) (the Cablevision systems); and Time Warner Cable Inc.

Attachment B – Participating Content Owners Group
The members of the Participating Content Owners Group are the following:
1. MPAA and the following MPAA members: Walt Disney Studios Motion Pictures, Paramount Pictures Corporation, Sony Pictures Entertainment Inc., Twentieth Century Fox Film Corporation, Universal City Studios LLC, and Warner Bros. Entertainment Inc., and their successors and assigns.
2. RIAA and the following RIAA members: UMG Recordings, Inc., Warner Music Group, Sony Music Entertainment, and EMI Music North America, and their
successors and assigns.

Attachment C – Independent Review Program
The Independent Review Program described below is intended to provide an alternative, fast, efficient and low-cost means for Subscribers and Copyright Owners to obtain independent resolution of genuine disputes that may occur in connection with the Copyright Alert program outlined in the Agreement. Its purpose is to provide a Subscriber with a non-exclusive procedure to seek review of Copyright Alerts associated with the Subscriber’s account in the event a Mitigation Measure is about to be applied on the Subscriber’s account.

The Independent Review process shall be just one avenue of appeal for Subscribers challenging such measure. This Independent Review process does not prevent Subscribers or Copyright Owners from addressing disputes through the courts, and that is the proper forum for addressing issues that are beyond the scope of this Independent Review process.

1. Grounds for Independent Review.

Once a Subscriber has received a Copyright Alert stating that a Mitigation Measure is about to be applied, the Subscriber may request an Independent Review of that Copyright Alert and prior Copyright Alerts (as described in paragraph 4.1.4) on the following grounds:
(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.

All determinations shall be made by an independent “Reviewer” as described below, and
the determinations shall have the effect set forth herein.

2. Standard of Review.

2.1. Misidentification of Account. 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.

2.2. Unauthorized Use of Account. 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.

2.3. Authorization. A Subscriber shall prevail on this defense if the Subscriber adequately and credibly demonstrates with written or other documented evidence that the Subscriber’s alleged activity was actually specifically authorized by the Copyright Owner or its authorized representative. Such written or other documented evidence typically must include a true and unaltered copy of the agreement or communication asserted to grant the claimed authorization. Such evidence shall not be deemed adequate and credible if, among other things, (i) the evidence on its face does not support a claim of authorization, (ii) the evidence does not appear authentic, or (iii) a reasonable person in the Subscriber’s position would not have concluded that the communication was in fact authorizing the specific use made of the work and that such authorization came from the actual Copyright Owner or by someone authorized to act on his/her behalf. The defense shall fail if the Copyright Owner has demonstrated: (x) that the specific use of the work made by the Subscriber was not in fact authorized by the Copyright Owner; (y) if the alleged authorization did not come directly from the Copyright Owner, that the person purporting to grant authorization was not authorized to act on behalf of the Copyright Owner for purposes of authorizing the specific use made of the work by the Subscriber; or (z) that the documentary evidence submitted by the Subscriber likely is not authentic or has been altered in a material manner.

2.4. Fair Use. A Subscriber shall prevail on this defense if the Subscriber adequately and credibly demonstrates fair use of the copyrighted work under prevailing principles of copyright law (which shall be identified as described in section 6).

2.5. Misidentification of File. A Subscriber shall prevail on this defense if the Subscriber adequately and credibly demonstrates that a factual error was made in identifying the file at issue as consisting primarily of the alleged copyrighted work. In making this determination, the Content Owner Representative Methodology used to identify the file shall have a rebuttable presumption that it works in accordance with its 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.

2.6. Work Published Before 1923. A Subscriber shall prevail on this defense if the Subscriber adequately and credibly demonstrates that the alleged copyrighted work in question was actually published prior to 1923.

3. Effect of Decision.

If the Reviewer’s decision is in favor of the Subscriber for a particular Copyright Alert, that Copyright Alert shall be deemed invalid, the filing fee described in paragraph 4.1.6 shall be promptly refunded to the Subscriber, and the Participating ISP shall remove that Copyright Alert from the Subscriber’s account records and refrain from applying any Mitigation Measures based on the invalidated Copyright Alert(s). All other Copyright Alerts shall remain valid, and shall count toward future Mitigation Measures. If the Reviewer’s decision for a particular Copyright Alert is in favor of the Copyright Owner, that Copyright Alert shall be deemed valid, and if applicable, the Mitigation Measure shall be applied promptly. The Reviewer’s decision will be binding solely for the purposes of the Copyright Alert program. By participating in the Independent Review, the Subscriber, the Participating ISP, and the Copyright Owner agree to waive all rights to challenge the Reviewer’s decision for purposes of the Copyright Alert program. The Reviewer’s decision shall have no effect outside of the Copyright Alert program, shall not act as res judicata or collateral estoppel or any similar bar, and shall not have any precedential impact for other Independent Reviews with respect to other Subscribers within the Copyright Alert program. In any judicial proceeding between a Subscriber and a Copyright Owner concerning subject matter that is or has been the subject of Independent Review, neither the Subscriber nor the Copyright Owner shall seek to enter into evidence, or otherwise refer to or cite, either the
fact of the Independent Review or any outcome of the Independent Review.

4. Independent Review Procedure.

4.1. How to Initiate an Independent Review.

4.1.1. ACIR Form. When the Participating ISP sends a Copyright Alert stating that the Subscriber’s account is subject to a Mitigation Measure, the Participating ISP will also make available to the Subscriber access to an online Application to Commence Independent Review (“ACIR”) form and related materials. The ACIR form and related materials will permit the Subscriber to review all of the Copyright Alerts applicable to the Subscriber’s account that have not previously been subject to review, as further described in paragraph 4.1.4. The ACIR form will identify all of the information necessary for the Subscriber to invoke an Independent Review, including each defense asserted as to each work identified in a Copyright Alert under review, and also include space for provision of the Subscriber’s contact information.

4.1.2. Authorization. The ACIR form will contain an authorization by the Subscriber to disclose relevant personal information to the Reviewer and to the Participating ISP. Such information includes: (1) information contained on the ACIR form, (2) information in the Participating ISP’s possession, custody or control identifying the Subscriber or relating to any Copyright Alert sent to the Subscriber by the Participating ISP concerning alleged infringement, (3) information regarding the Participating ISP’s matching of the IP address in an ISP Notice to the Subscriber’s account, and (4) details of actions taken or proposed to be taken as Mitigation Measures by the Participating ISP with respect to the Subscriber’s account. Except as explained in the next sentence or as required by judicial order or other legal process, all Subscriber personal information will be held in confidence and not disclosed to the Copyright Owner. If the Subscriber’s defense is based on authorization, then the Reviewer may, in his or her discretion, disclose to the Copyright Owner only such personal information concerning the Subscriber as is reasonably necessary to permit the Copyright Owner to rebut a claim of authorization if that information is required for such purposes. The ACIR form will contain an authorization by the Subscriber to disclose relevant personal information to the Copyright Owner in the circumstances described in the immediately preceding sentence.

4.1.3. Information Required. The Subscriber must (1) identify the defenses asserted as to each work identified in each Copyright Alert at issue by checking the proper boxes on the ACIR form, (2) explain the specific basis for each defense, and (3) provide the corresponding back-up material to support such grounds. In the case of a defense of authorization, the ACIR form must be accompanied by the applicable written or other documented evidence that the Subscriber’s alleged activity was specifically authorized by the Copyright Owner or its authorized representative, as described in paragraph 2.3. In the case of a defense of fair use, the ACIR form must (1) be accompanied by a true and unaltered copy of each content file that the Subscriber asserts to be a fair use under prevailing principles of copyright law; and (2) an explanation of each use the Subscriber made of the file, including any distribution or downloading identified in the Copyright Alert(s), and the basis for claiming each such use as a fair use.

4.1.4. Copyright Alerts Subject to Review. The Subscriber shall have the right to invoke Independent Review for the last Copyright Alert sent as well as prior Copyright Alerts, provided that the right to have a particular Copyright Alert reviewed shall be waived if that right is not invoked the first time the Copyright Alert becomes eligible to be reviewed. Accordingly, when a Subscriber first receives a Mitigation Measure Copyright Alert, the Subscriber may invoke the Independent Review process as to any prior Copyright Alert, but if any of those Copyright Alerts is not reviewed at that time it will thereafter be unreviewable.

4.1.5. Multiple Works Identified in a Copyright Alert. In cases in which a Copyright Alert alleges infringing activity with respect to multiple works, the Independent Review process may be invoked by a Subscriber only if the Subscriber offers a defense as to every work cited in the Copyright Alert. A Copyright Alert will be considered valid and provide a basis for the application of a Mitigation Measure if the Subscriber is found to have no valid defense as to any one work cited in the Copyright Alert, unless the Independent Review establishes a pattern of invalid allegations in the Copyright Alert sufficient to cast substantial doubt on the Copyright Alert’s remaining allegations.

4.1.6. Filing Fee. The Subscriber shall be required to pay a filing fee of thirty-five dollars ($35) in order to invoke the Independent Review, unless the Subscriber qualifies for a waiver or reduction in the filing fee in accordance with the procedures of the Administering Organization (as defined in paragraph 5.1 below). This fee will be refunded to the Subscriber in the event that the Reviewer decides in favor of the Subscriber as to any Copyright Alert eligible for review.

4.1.7. Deadline. The ACIR form, related materials and filing fee (“ACIR Package”) must be submitted electronically within ten (10) business days after receipt of the relevant Copyright Alert. Except as contemplated in paragraph 5.6 below, failure to properly submit an ACIR form by the due date shall be deemed a waiver of the right to seek Independent Review regarding the applicable Mitigation Measure.

4.1.8. Submission of ACIR Package. The Subscriber must submit the ACIR Package to the Administering Organization. The Administering Organization shall immediately send a copy of the ACIR Package to the applicable Participating ISP.

4.1.9. Effect of Filing for Independent Review. A Subscriber’s filing of the ACIR form stays implementation of any Mitigation Measure. A Subscriber’s failure to file an ACIR or otherwise challenge an allegation of copyright infringement shall not be construed as an admission or waiver in any other forum or context.

4.2. Process for Independent Review.

4.2.1. Selection of Reviewer. All Independent Reviews shall be resolved by one (1) individual serving as an independent Reviewer. The Reviewer will be selected by the Administering Organization from a panel of neutrals, as further described in paragraph 5.2.

4.2.2. Initial Review of ACIR Package. A Reviewer will review the ACIR package within five (5) business days of receipt to determine whether it is substantially complete. To be considered substantially complete, (1) the ACIR Package must include a substantially completed ACIR form; (2) the ACIR form must assert a defense as to each work identified in the relevant Copyright Alert subject to Independent Review; (3) for each defense asserted as to each work, the ACIR Package must include sufficient information as described in paragraph 4.1.3 to permit the Independent Review to proceed meaningfully and to potentially result in a decision in favor of the Subscriber; and (4) the ACIR Package must include the required payment as provided in paragraph 4.1.6. If the ACIR Package is not substantially complete, the case will be denied. The first time an ACIR Package is denied, such a denial shall be without prejudice to afford the Subscriber one additional opportunity to correct any mistakes or omissions in the ACIR Package. In such a case, the Reviewer shall notify the Subscriber of the relevant defects and afford the Subscriber five (5) business days to remedy the defects by submitting a substantially complete ACIR Package. Otherwise (except as provided in paragraph 5.6 below), such a denial shall be with prejudice. Either a denial without prejudice that is not remedied within 5 business days or a denial with prejudice shall have the same effects as a denial on the merits (see section 3).

4.2.3. Verification that Defense of Unauthorized Use of Account is not Barred. In the case of any defense of unauthorized use of account, the Reviewer’s initial review will also consider whether that defense is barred because the Administering Organization’s records indicate that the Subscriber previously asserted that defense in another Independent Review. If so, the defense shall be denied, 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. If for any reason the Administering Organization’s records are inconclusive as to this question, the Reviewer will request clarification from the Participating ISP pursuant to paragraph 4.2.4.

4.2.4. Collection of Standard Information from Participating ISP and Copyright Owner. If the ACIR Package is substantially complete, the Reviewer will, if needed, request standard relevant information from the Participating ISP and/or Copyright Owner to assess the grounds for review. Details of the standard information to be provided by the Participating ISP and/or Copyright Owner for different types of defenses shall be determined by mutual agreement of representatives of the Administering Organization, Participating ISPs and Copyright Owners as implementation proceeds, with the goal of having provision of this standard information be a straightforward and largely automated process. In the case of a defense of misidentification of account, information to be provided by the Participating ISP is anticipated to consist of information in the Participating ISP’s possession, custody, or control relating to (1) ISP Notices received by the Participating ISP and matched to the Subscriber’s account, (2) Copyright Alerts sent to the Subscriber by the Participating ISP, and (3) the Participating ISP’s matching of IP addresses on ISP Notices received by the Participating ISP to the Subscriber’s account. Information to be provided by the Copyright Owner is anticipated to consist of all or part of the evidence package(s) (i.e., information relating to the alleged access to copyrighted material) for one (1) or more Copyright Alerts that are the subject of the Independent Review. The Participating ISP and Copyright Owner, as applicable, will provide the relevant information to the Reviewer within ten (10) business days after receipt of the request.

4.2.5. First Substantive Review. Within five (5) business days from receipt of the relevant standard information from the Participating ISP and/or the Copyright Owner, the Reviewer will review the case record substantively to determine if additional information from the Participating ISP and/or Copyright Owner is required, or whether it is apparent without soliciting further information that the Subscriber will not prevail as to all works cited in any one (1) or more Copyright Alerts.

4.2.6. Supplemental Information. The Reviewer shall have the discretion to request supplemental information from the Participating ISP, Copyright Owner or Subscriber within the five (5) business day period referred to in paragraph 4.2.5, if such information would likely be material to a just resolution of the Independent Review. If the Reviewer makes such a request, the applicable party(ies) shall have ten (10) business days to respond. If the Subscriber asserts a defense of authorization or fair use and the Reviewer determines that the defense may have merit, then the Copyright Owner shall receive all relevant information about the defense from the Reviewer and be afforded an opportunity to provide evidence to rebut the defense within ten (10) business days from receipt of such information. Such information shall include (1) in the case of a defense of authorization, all substantiating evidence and explanation submitted by the Subscriber as to each relevant work and the Subscriber’s identifying information, unless the Reviewer concludes that the Copyright Owner does not need to know the identity of the Subscriber to evaluate the Subscriber’s claim that his or her activity was authorized; and (2) in the case of a defense of fair use, the content file submitted by the Subscriber as to each relevant work and an explanation of why the Subscriber believes each use of that content file to be a fair use.

4.2.7. Final Assessment and Issuance of Decision. Within ten (10) business days of receipt of all requested information, including any supplemental information provided pursuant to paragraph 4.2.6, or passage of the relevant time to provide supplemental information in the event no supplemental information is received, the Reviewer shall assess the complete case record and enter a final decision. In doing so, the Reviewer shall determine the relevance, materiality and weight of all evidence based on the available record. The proceedings will take place exclusively on the written record, and there shall be no live hearings. For a Copyright Alert alleging infringement of multiple copyrighted works, in order to find in favor of the Subscriber with respect to the Copyright Alert, the Reviewer must consider and find in favor of the Subscriber as to a defense for each individual work referenced in the Copyright Alert or must find a pattern of invalid allegations in the Copyright Alert sufficient to cast substantial doubt on all allegations in the Copyright Alert. Upon reaching a final decision, the Reviewer will notify the Subscriber, Participating ISP and Copyright Owner of the outcome, and if the decision is a denial of the Subscriber’s defense, the Reviewer will also include a short description of the rationale for the denial.

4.2.8. Withdrawal of Notice by Copyright Owner. A Copyright Owner may withdraw an ISP Notice at any time during the Independent Review process, which shall have the same effect as a finding for the Subscriber as to the withdrawn Copyright Alert (see section 3).

4.2.9. Communications Among Parties. Except as specifically described in these rules (e.g., in the case of requests for information as described in paragraphs 4.2.4 and 4.2.6), there will be no communication between the Reviewer and the Participating ISP, Copyright Owner or Subscriber concerning the Independent Review. There is to be absolutely no discovery between the parties to the dispute, and no party shall have any obligation to respond to any request for information or to provide any particular information, except as described herein.

5. Administration of Independent Review Process.

5.1. In General. The Independent Review process shall be coordinated by the administering organization selected by the CCI Executive Committee  “Administering Organization”). The Independent Review process shall be governed exclusively by these rules.

5.2. Selection of Reviewers. The Administering Organization shall have mechanisms for establishing a panel of neutrals and for ensuring their continuing neutrality, their compliance with these rules, and their adherence to the governing principles of copyright law as provided in section 6. Reviewers must be lawyers, but need not necessarily have the legal or case management expertise that would qualify them to act as arbitrators of more complex disputes in a broader-ranging alternative dispute resolution process. The Administering Organization shall provide Reviewers training in this Independent Review process and governing principles of copyright law determined as described in section 6. Reviewers may be staff employees of the Administering Organization if the volume of disputes subject to the Independent Review process so warrants.

5.3. Automation. The Administering Organization shall implement automated processes for managing the workflow of cases proceeding through the  Independent Review process, including means for seeking and obtaining information from Participating ISPs and Copyright Owners in a manner that minimizes the associated workload on Participating ISPs and Copyright Owners and is automated to the maximum extent practicable.

5.4. Records of Subscriber History of Invoking Independent Review. The Administering Organization will maintain a secure database of Subscribers’ history of invoking the Independent Review process, which will be available to Reviewers when evaluating future disputes involving the relevant Subscribers. Thus, for example, it should be possible for a Reviewer to determine from this database whether a Subscriber has previously asserted a defense of unauthorized use of account, and a Reviewer may consider a Subscriber’s Independent Review history in evaluating the credibility of claims under review.

5.5. Recordkeeping and Review. The CCI Executive Committee and Administering Organization will establish processes for (1) maintaining records concerning proceedings, (2) periodically reviewing anonymous, aggregated information about issues and outcomes so that trends can be identified and addressed if warranted, and (3) confidentially auditing decisions for purposes of evaluating the performance of Reviewers and the Administering Organization. Except to the extent necessary to maintain records of outcomes of proceedings for purposes of operation and review of the Independent Review process or as otherwise expressly set forth herein, Reviewers shall not prepare written decisions in the cases they decide. The Parties to the Agreement agree to negotiate in good faith as to adjustments in the Independent Review process if such adjustments are warranted by actual experience in operating the Independent Review process.

5.6. Provision of Information. Fair and efficient administration of the Independent Review process depends upon timely provision of information requested by the Reviewer at various steps of the process, as described in paragraph 4.2. Whenever these rules set forth a timeframe for provision of information requested by the Reviewer, the Reviewer may grant reasonable extensions of such period (not to exceed ten (10) business days) for substantial good cause shown. In the absence of the requested information at the deadline for providing the same, the following provisions will apply:

5.6.1. Delays in Providing Standard Information. If the Reviewer properly requests a standard package of information from a Participating ISP or Copyright Owner, as described in paragraph 4.2.4, and the Participating ISP or Copyright Owner does not provide the requested information as to some or all claims or works on a timely basis, (1) the Reviewer shall promptly notify the Participating ISP or Copyright Owner and the Participating ISP or Copyright Owner shall have a further five (5) business days to provide the requested information; and (2) the Administering Organization shall reflect such deficiency in reports to be provided periodically to the CCI Executive Committee. Recurring failure of a Participating ISP or Copyright Owner to provide requested standard information during the initial period identified in paragraph 4.2.4, in other than isolated instances, will be considered a breach of its obligations under the Agreement. If a Participating ISP or Copyright Owner does not provide available requested information within a further five (5) business days, (a) the dispute will proceed to the next step of decision making based on the available record without such information, giving the Subscriber the benefit of any doubt concerning the missing requested information; (b) the Administering Organization shall reflect such deficiency in reports to be provided periodically to the CCI Executive Committee; and (c) the Participating ISP or Copyright Owner will be considered in breach of its obligations under the Agreement.

5.6.2. Delays in Providing Supplemental Information. If the Reviewer properly requests supplemental information from a Participating ISP, Copyright Owner or Subscriber pursuant to paragraph 4.2.6, and the Participating ISP, Copyright Owner or Subscriber does not provide the requested information as to some or all claims or works on a timely basis, the dispute will proceed to the next step of decision making based on the available record without such information. If the Reviewer believes that the position of a party to the proceeding other than the one that has failed to provide the requested information is otherwise meritorious, the Reviewer shall give such party the benefit of any doubt concerning the missing requested information.

6. Legal Principles to Be Applied in Independent Review.

The Independent Review process will, to the extent relevant, apply prevailing legal principles as determined by United States federal courts. The Administering Organization will commission an accepted, independent expert on copyright law, who is approved by the CCI Executive Committee, to outline prevailing legal principles of fair use for purposes of deciding defenses of fair use, and any other legal principles necessary for resolution of issues within the scope of this Independent Review process. Such outline will be updated from time to time as necessary. If additional material questions of law arise as the Independent Review process is implemented, they may be referred to an accepted, independent expert approved by the CCI Executive Committee as needed. The Administering Organization will advise the Parties to the Agreement of issues referred to, and principles determined by, such an expert, and provide a process for the Parties to the Agreement to provide input concerning the issues, so as to ensure that the expert’s determinations are fullyinformed and reflect prevailing law as determined by United States federal courts.

Attachment D – MPAA Member Company Affiliates

The MPAA member companies’ affiliates are entities under the control of an MPAA member company. For purposes of this Attachment D, “control” is defined as (1) the ownership of at least fifty percent (50%) of the equity or beneficial interest of the controlled entity, (2) the right to vote for or appoint a majority of the board of directors or other governing body of such entity (if the board or governing body may exercise authority with less than a majority, then the right to vote or appoint the number of directors necessary to exercise that authority), or (3) the right or authority to grant, approve or withhold, directly or indirectly, financial resources necessary to the operation of the controlled entity. As of the Effective Date of this Agreement, the following entities are MPAA member company affiliates:
 Disney Enterprises, Inc., entities controlled, directly or indirectly, by Disney Enterprises, Inc. (together, “Disney Enterprises Entities”), and such other entities as have authorized the foregoing to send Copyright Alerts on their behalf with respect to works distributed by Disney Enterprises Entities.
 Fox Entertainment Group, Inc., entities controlled, directly or indirectly, by Fox Entertainment Group, Inc., (together, “Fox Entertainment Entities”) and such other entities as have authorized the foregoing to send Copyright Alerts on their behalf with respect to works distributed by Fox Entertainment Entities.
 NBCUniversal Media LLC, entities controlled, directly or indirectly, by NBCUniversal Media LLC, (together, “NBCU Entities”) and such other entities as have authorized the foregoing to send Copyright Alerts on their behalf with respect to works distributed by NBCU Entities.
 Sony Pictures Entertainment Inc., entities controlled, directly or indirectly, by Sony Pictures Entertainment Inc. (together, “SPE Entities”), and such other entities as have authorized the foregoing to send Copyright Alerts on their behalf with respect to works distributed by SPE Entities.
 Turner Entertainment Networks, Inc., entities controlled, directly or indirectly, by Turner Entertainment Networks, Inc. (together, “Turner Entities”), and such other entities as have authorized the foregoing to send Copyright Alerts on their behalf with respect to works distributed by Turner Entities.
 Viacom, Inc., entities controlled, directly or indirectly, by Viacom, Inc. (together, “Viacom Entities”), and such other entities as have authorized the foregoing to send notices on their behalf with respect to works distributed by Viacom Entities.
 Walt Disney Studios Motion Pictures, entities controlled, directly or indirectly, by Walt Disney Studios Motion Pictures (together, “Walt Disney Studios Entities”), and such other entities as have authorized the foregoing to send notices on their behalf with respect to works distributed by Walt Disney Studios Entities.
 Warner Bros. Entertainment Inc., entities controlled, directly or indirectly, by Warner Bros. Entertainment Inc. (together, “Warner Bros. Entities”), and such other entities as have authorized the foregoing to send notices on their behalf with respect to works distributed by Warner Bros. Entities.

THE CRIMINAL CLASS

Jammie, and Tanya Andersen, and Patti Santangelo, and Rae-Jay Schwartz and Marie Lindor are only five of the people brutalised by RIAA lawyers in American courts of law.

But every single one of the 40,000 people who have received RIAA subpoenas has sat back in shock, wondering how they can possibly take on a hugely wealthy Vivendi Universal, EMI, Warner Music and Sony Music with their immense legal, financial and political resources?

The answer is: they can’t. And having failed with its earlier salvos, the entertainment industries are about to go down the same path.

Jon Newton – p2pnet

p2pnet view – P2P | Freedom | Politics

To digress, as many of you know, we’ve home-schooled our daughter Emma for the last nine years. A week ago a few people on our HS bulletin board posted articles about Dominic. Why was he ‘arrested’? It seems the social services authorities in the part of Sweden where the Johanssons lived decided the family wasn’t giving the best of care to the child and they could provide something more suitable.

You see, Dominic was, temporarily, being homeschooled.

On the top is is a picture of Dominic a few weeks before he was taken by the police.

And, below, after he’d been in the care of the social services for a few months…

The sparkle has completely gone from his eyes.

What kind of world do we live in if a state organization such as social services can rip a child away from his family simply because they’d chosen to teach him themselves.

Yes, social services agencies have a role to play when they receive information that a child is physically or emotionally abused by his family. But the correct procedure is to launch an investigation to ascertain the truth of the allegations. However, if media reports are accurate, it doesn’t seem the Swedish agency took this step .

Their actions look like a shocking misuse of power.

Increasingly, governments seem to think they know better how to conduct the lives of their citizens rather than letting citizens make choices based on personal convictions.

In the Western democracies many of our elected officials seem to think that by having chosen them to run our governments, we the people have also given them the right to think for us. Not so. Regulate the consumption of alcohol by drivers: yes, because it provides for safer roads for all. Tell me state run schools will better educate my child: I reserve the right to question that and to act accordingly. Governments and their agencies need to know where and when to get involved in our daily lives.

Actually, one of the reasons we chose to homeschool Emma was because Jon had had such horrid experiences in his schooling years in the Britain during the postwar years. He had difficulties learning math and was caned regularly and put in dark closets to make him work at it harder. When he was around 12, the school finally gave up and gave him double English and no math. By 15, Jon was done with schooling. He’s still mortally afraid of any test.

Obviously, this is not to say conditions have remained the same in Britain.

I chose to homeschool because the one thing I learned in my schooling years was, there was a whole lot more you could learn about than what was in the curriculum. Vastly more. Surely I could impart the richness of life to my child as well, if not better, than school.

By the way, we made this decision before Emma was even a year old, before we discovered how much she takes after Jon. Her mind is as incapable of math as his is. It doesn’t make her a lesser person and she was spared the experience of being labelled learning disabled.

Meanwhile, my heart goes out to Dominic and his parents because their family was torn apart for what seem petty reasons. In one of the more recent court proceedings of a very protracted legal battle, the social services argued Dominic’s father to be an unfit parent because he shows too much interest in a healthy lifestyle and in human rights issues.  The mind boggles.

Liz Newton – p2pnet

Further reading:

http://friendsofdomenic.blogspot.com/

http://www.homelearningvictoria.com/2011/07/utopia-of-sweden.html

Owned by Australian media dinosaur Rupert Murdoch, its demise came in the wake of a phone-hacking scandal of epic proportions, even for a publication infamous for reporting scandals, such as John Profumo’s affair with ex-showgirl Christine Keeler.

Profumo was, at the time UK minister for war.

Another of Keeler’s lovers was Soviet naval attaché, Eugene Ivanov, who was under MI5 surveillance.

In days, a group of powerful world leaders will ask the UN to end the war on drugs and move towards regulation. But politicians say that the public will not support alternative drug policies. Let’s give this unique opportunity massive public support and get urgent action. Sign below, and tell everyone:

In days, we could finally see the beginning of the end of the ‘war on drugs’. This expensive war has completely failed to curb the plague of drug addiction, while costing countless lives, devastating communities, and funneling trillions of dollars into violent organized crime networks.

Experts all agree that the most sensible policy is to regulate, but politicians are afraid to touch the issue. In days, a global commission including former heads of state and foreign policy chiefs of the UN, EU, US, Brazil, Mexico and more will break the taboo and publicly call for new approaches including decriminalization and regulation of drugs.

This could be a once-in-a-generation tipping-point moment — if enough of us call for an end to this madness. Politicians say they understand that the war on drugs has failed, but claim the public isn’t ready for an alternative. Let’s show them we not only accept a sane and humane policy — we demand it. Click below to sign the petition and share with everyone –if we reach 1 million voices, it will be personally delivered to world leaders by the global commission:

http://www.avaaz.org/en/end_the_war_on_drugs/?vl

For 50 years current drug policies have failed everyone, everywhere but public debate is stuck in the mud of fear and misinformation. Everyone, even the UN Office on Drugs and Crime which is responsible for
enforcing this approach agrees — deploying militaries and police to burn drug farms, hunting down traffickers, and imprisoning dealers and addicts – is an expensive mistake. And with massive human cost — from Afghanistan, to Mexico, to the USA the illegal drug trade is destroying countries around the world, while addiction, overdose deaths, and HIV/AIDS infections continue to rise.

Meanwhile, countries with less-harsh enforcement — like Switzerland, Portugal, the Netherlands, and Australia — have not seen the explosion in drug use that proponents of the drug war have darkly predicted. Instead, they have seen significant reductions in drug-related crime, addiction and deaths, and are able to focus squarely on dismantling criminal empires. 

Powerful lobbies still stand in the way of change, including military, law enforcement, and prison departments whose budgets are at stake. And politicians fear that voters will throw them out of office if they support alternative approaches, as they will appear weak on law and order. But many former drug Ministers and Heads of State have come out in favour of reform since leaving office, and polls show that citizens across the world know the current approach is a catastrophe. Momentum is gathering towards new improved policies, particularly in regions that are ravaged by the drug trade.

If we can create a worldwide outcry in the next few days to support the bold calls of the Global Commission on Drug Policy, we can overpower the stale excuses for the status quo. Our voices hold the key to change — Sign the petition and spread the word:

http://www.avaaz.org/en/end_the_war_on_drugs/?vl

We have a chance to enter the closing chapter of this brutal ‘war’ that has destroyed millions of lives. Global public opinion will determine if this catastrophic policy is stopped or if politicians shy away from reform. Let’s rally urgently to push our hesitating leaders from doubt and fear, over the edge, and into reason.

With hope and determination,
Alice, Laura, Ricken, Maria Paz, Shibayan and the whole Avaaz team

SOURCES:

Reports that show the war on drugs has failed…
http://idpc.net/publications/failure-regime-selected-publications

Reports that show alternative approaches of decriminalisation and regulation are working…
http://idpc.net/publications/alternative-strategies-selected-publications

What Can We Learn From The Portuguese Decriminalization of Illicit Drugs?…
http://bjc.oxfordjournals.org/content/50/6/999.abstract

General report on drug law reform in practice…
http://www.tni.org/report/legislative-innovation-drug-policy

The Global Comission on Drug Policy that will call on the UN to end the war on drugs…
http://www.globalcommissionondrugs.org/Documents.aspx

Drug War by the Numbers…
http://www.drugpolicy.org/facts/drug-war-numbers

Final Report of the Latin American Comission on Drugs and Democracy…
http://www.drogasedemocracia.org/English/Destaques.asp?IdRegistro=8

General report on drug law reform in practice…
http://www.tni.org/report/legislative-innovation-drug-policy

Support the Avaaz community! We’re entirely funded by donations and receive no money from governments or corporations. Our dedicated team ensures even the smallest contributions go a long way –

donations can be made here.

---

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The Senate Judiciary Committee is scheduled to mark up tomorrow (Thursday) S. 968, the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011. In advance of that session, 13 groups today sent a letter to Judiciary Committee Chairman Patrick Leahy (D-VT) and senior committee Republican Charles Grassley (R-IA) outlining their concerns about the bill.

Primary among the objections are:

1) The bill continues to allow Internet Service Providers to interfere with Doman Name look up services (DNS). “We continue to believe that such a provision would be ineffective and runs contrary to the US government’s commitment to advancing a single, global Internet,” the groups said.

2) The inclusion of “information local tools,” as subject to the bill’s provisions, “makes nearly every actor on the Internet potentially subject to enforcement orders under the bill, raising new policy questions regarding government interference with online activity and speech.”

The text of the letter is here.

Art Brodsky – Communications Director
http://www.publicknowledge.org

(202) 861-0020 ext 103 (o) • (301) 908-7715 (c)
1818 N St., NW Suite 410, Washington, D.C. 20036

Thanks for that, Art!

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My friend, Lee Ballinger from Rock And Rap Confidential (www.rockrap.com), tipped me off last week to a study by an executive compensation consultant in DC that showed the highest paid executive at a Washington DC based trade association was none other than RIAA President Cary Sherman, who, according to the study, raked in an astonishing $3,185,026 in 2009.  This number was confirmed by a review of the IRS-990 informational return filed by the RIAA, which is available for review at www.guidestar.com (free registration required).  As Lee pointedly noted, this compensation worked out to $1,521.36 an hour for Mr. Sherman.   What makes the number even more remarkable is that it represents a 240% increase over his 2008 salary, which was a relatively paltry $1.331 million.

Sherman overtook CEO Mitch Bainwol, who “only” took home $1.614 million in 2009, which was actually $400,000 less than he made in 2008.  Bainwol must have started working half-days or something. 

Other executives did well by themselves in 2009.   11 others made more than $200,000, including Mitch Glazier,  who jumped from an $80,000 job as a House Judiciary Committee staffer to a $500,000 a year job with the RIAA just weeks after somebody on the committee staff pulled a fast one on the Committee and inserted three lines in an unrelated telecommunications bill which magically turned every sound recording ever made in the US into a “work for hire,” thus preserving, forever, ownership of those recordings in the hands of (surprise!) the major labels.  Glazier and the RIAA deny there was any connection between the bill (which took two years, several million dollars and the invention of the Recording Artists Coalition to reverse) and Glazier’s job.   Of course there wasn’t.  Coincidences like that happen all the time beyond the looking glass.

I’m sure that the 10 people who lost their jobs at the RIAA over the year are comforted by the fact that Sherman and the rest of their former bosses are doing so well without them, but you have to wonder what went into the decision to award the surviving executives nearly a million dollars in “bonus and incentive compensation,” almost two-thirds of which went to Bainwol and Sherman alone.

After all, it’s not like they’re doing a great job.   From 2007 to 2009, they showed “anti-piracy restitution” revenue of a grand sum of under $1.25 million.  During that time, the returns show they spent in excess of $30 million in outside counsel fees to collect that money by suing individual alleged  downloaders.  Given that the usual reason given for the litigation blitz was educational, rather than punitive, and given that unauthorized file sharing neither stopped or slowed down, this really doesn’t seem like it was a victory.  And when you consider that the RIAA made more revenue from selling it’s certifications for gold and platinum records, they could probably have made more money by buying CDs with that $30 million and creating more hit records to certify.  (Given AFTRA’s newfound interest in getting a share of the LimeWire recovery, you have to wonder why the union has never publicly demanded a “fair share” of that $1.25 million for their artists, but that’s another story for another day.)

But beyond the “sue our customers into destitution” campaign, there is another failure that make those compensation and bonus numbers look even more odd.

Remember the Performance Rights Act?

This was the great legislative initiative of the past two years, in which the RIAA hid behind the more “artist-friendly” SoundExchange (who we know are artist friendly because they keep telling us they’re artist friendly, despite having accumulated over a quarter billion dollars of undistributed royalties that are owed to their “friends,” but that’s still another story for still another day) which created a lobbying front called musicFIRST which was designed to give SoundExchange the right to negotiate, collect, allocate and distribute performance royalties from terrestrial radio.  It was clear from the beginning, that the “we love recording artists” rhetoric was pure hogwash, because the initial bills presented to both the House and Senate both included language that would have permitted the labels to be paid the performance royalties directly, and leaving the artists to look to the labels to get their “share.”  The AFM and AFTRA both endorsed these bills, despite the fact that the original language would have royally screwed over their members, showing just how much independent thought was going into the whole bill from the union side (Still another story.)  And this was truly a case of “fool me twice, shame on me,” because those union reps were endorsing the same language that allowed the record labels to collect royalties directly on non-statutory settlements on satellite and Internet music broadcasts.

A quick shuffle of papers and the House version of the bill was amended to provide some protection to artists, but the Senate version never was.  If both bills had passed, the differences would have been worked out in conference committee, at which time the Senate version could have been adopted without blinking, providing political cover to those House members embarrassed by the revelation their bill was going to screw the artists everyone professed to love.

But a funny thing happened on the way to a full vote.  Congress got cold feet, like they often do when it looks like they’re going to be forced to choose between two groups that both contribute a lot of money to their re-election campaigns.  They told musicFIRST and the National Association of Broadcasters (probably the only lobbying group that could rival the RIAA for sheer bullying strength) to sit down and negotiate a royalty structure between them.

And it ended up going nowhere.

At one point, it looked like they actually had a deal.  The NAB was willing to accept the principal of a terrestrial radio performance royalty if the RIAA was willing to endorse legislation that would require every cell phone from every cell phone manufacturer to include an FM radio chip. 

Unfortunately for the deal makers, nobody bothered to check with the cell phone manufacturers, who, for obvious reasons, thought a mandated FM chip was a lousy idea.  They threatened to release their own 800 pound lobbying gorilla into the fray, turning the battle over the performance royalty into a three-way death cage match.

And there things sat until January 3, 2011, when the House and Senate versions of the bills died with the end of the 111^th Congress.  It has not been re-introduced.  But the RIAA  haven’t let the grass grow under their feet.  Nosirree!  Last month, during their traditional Grammy week lobbying blitz, there was Mitch Bainwol standing arm in arm with his new best friends; the CTIA-Wireless Association and The Consumer Electronics Association, both of whom represent cell phone makers.  With all the passion of the new convert, Bainwol made nice with his buddies and explained that the very deal struck by the very organization, musicFIRST, controlled by the organization he runs, the RIAA, made “zero sense,” now that he and the RIAA had seen the light, that is.

The RIAA can be as two-faced as its membership demands, and the RIAA clearly can spend their own money as they please, so if they want to grant huge bonuses for this kind of minimal executive achievement, that’s entirely their right.  After all, they’re not SoundExchange, who likes to pretend that a board stocked with “artist representative” members handpicked by the RIAA actually cares about artists because it is spending their money to achieve what the RIAA wants.  To me, the disparity between those executive salaries and what the RIAA has utterly failed to accomplish under the leadership of those getting those salaries is simply a demonstration that the RIAA continues to not “get it.”  Times have changed.  The environment has changed.  The RIAA has not, and they are apparently unaware of their growing irrelevance in the business of actually creating music.  What they know about is the need to maintain power and control.  What they don’t seem to know is how to accomplish that.  

Imagine what those bonuses and incentives would have been had they actually done what they wanted to do!

Fred Wilhelms - Associate Editor, p2pnet

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Even still, this is based on the flawed premise that ”making available” is some new infringement of copyright. The target selection for domain seizures can be empirically validated by the actual list of domains seized. This is the cost-efficient manner in which these dinosaurs are plundering arts, culture, privacy and freedom of speech. Extending copyright, retroactively expanding copyright, influencing copyright legislation and in some cases, simply writing the law for them.

See: New Zealand, Canada, Ireland, United Kingdom, France, Sweden, India, Spain and Australia.

Doesn’t that bother you? Amerikan corporate plutocracy is telling YOUR government what information you can access, and when, where, and how you can have access to it. Sure, there is infringing material mixed in, but if you think like the MAFIAA, then everything can be used to infringe. Let’s ban the harddrive, it could potentially be used to store copyright infringing material. The very nature of computer hardware is designed to make digital copies, either from scratch, or copied, and copied, and copied, and copied. The very essence of the digital age is distribution of knowledge in the form of text, voice, music and video.

Attempts to make “streaming”, as they are trying to define actual downloading, a felony can only be defined as a ridiculous stretch of authority. Firstly, there is no such thing as “streaming”. If you copy 10 files, each 100mb, from one drive to another, and can open the first copied file while the other 9 are being transferred, then that is streaming. This is why they are seizing the domains they are seizing. They cannot make a legal argument that merely linking to infringing material is in itself infringing, this again is “making available” and not an actual infringement. The MAFIAA knows millions and millions of internet users are violating their copyrights, they have no choice but to go after the intermediaries using unlawful means to set a “behavioral” precedent. “If nobody complains, they must be guilty”, is the impression they want. Hence, no adversarial hearings prior to the seizures. How dare anyone have a conflicting opinion on what is and is not infringing that is not in jack-boot lock-step compliance with MAFIAA bullshit! This also enforces the “view” that “streaming” is “making available” is a copyright infringement.

The reason the MAFIAA like their buzz-words is because they can make the leap of faith from streaming to broadcasting, which is a copyright violation. The biggest logic flaw in all of their arguments has been the lack of ability to actually show any proof that something was copied. Sure they can scrape IPs from a bittorrent stream, but have they proven in fact, the entire copyrighted material was even completely transferred? Have they proven the copied file was in fact an exact replication of the original in question? I won’t even bring up forensics and chain of custody when IFPI can simply walk into an ISP in Europe and demand harddrives from another of the ISP customers without due cause or legal backing. This, my comrades, is theft.

Rarely does a judge in the US courts question the validity of proof offered by the MAFIAA in litigation. The old “trust us, it must be happening, it’s just too haaaaaarrrrrdd to actually prove, your honor”. This is why the MAFIAA is going after the intermediaries. To attempt to make a “social” stigma stick, rather than a legal one. 3rd parties are easier to find, can be crushed in litigation, and more importantly, can be eliminated from the pool of competition.

What a great thing that is copyright. A monopolistic suspension of your actual rights for a copy privilege. Copyright is not a right, it is a Constitutional privilege originally designed to protect printers in the 18th century by suspending your inalienable rights for a government granted monopoly. This made sense when it took 1 week to print several books, not including binding and distribution. Today, I can write a book and distribute it the same day with infinite copies. So, if it used to take a long time to create and distribute, which is what I am under the impression the monopoly was created for, then how does extending copyright work? You can make works available faster, cheaper and in infinite supply, therefore copyright should be more restricted not extended. How does that improve the preservation of arts or culture?

Oh, piracy is killing the industry. Oh, we just had another record-breaking year of eye-popping profits, during a recession, war, global unrest and unemployment higher than since the great depression and Truman. It’s all about the grips, and wardrobe, the caterers, van drivers, make-up artists, SAG, SWG and all the other little guys that are losing their jobs because of piracy. You don’t really expect humanity to believe that shit do you? Everyone on that list got paid, you (MAFIAA) paid them, they are either salary and/or commission based, and were paid for whatever video/show/movie they worked. Then you got paid by the market placement in said video/show/movie by the highest bidder. Then you hocked your other crappy movies in unstoppable advertisements on purchased media. You got paid when the show aired on TV in broadcast/syndication/advertisement rights/kickbacks.

Movies used to be rated for 30 days years ago, nowadays movies are compared by “opening day” box office sales. So, after overinflating the price of a movie like Drive Angry with Nicholas Cage to the tune of 40 million usd, opening day was 36 million usd, and I am quite sure you made up the difference of 4 million after another day or so. This is a neat business model. Make a fucking shitty movie, slap a big name on it, give him 20 million for a couple of weeks work, have a local high school do the special effects for you, and bam, you get to pocket, what, 20-50 million? And that is not even counting DVD sales, when that window comes, and then the BluRay window, oh, and I forgot, the mandatory 30-day rental window.

The decision to switch from 30 days to opening day was simple. In the 21st Century, people can get information at the speed of light now. Shitty movies are ousted as shitty much more efficiently than in days of old. Box office sales for shitty movies drop dramatically once the word gets out, so instead of having the top 10 movies over 30 days, which would probably be a listing of movies well over 30 days old, have the top 10 movies opening weekend. Now that makes for a pretty chart. Hollywood’s answer? Fuck em, let’s make all movies shitty, then the chart will look even better. We can bang out a good one like Avatar or The Black Knight with an innovative storyline/script/RtB but only in the summer, when all the kids are out of school and are bugging their parents to take them to the theaters.

With decades and decades of customer abuse under your belts, the DRM, the rootlets, destruction of hackers you should have hired, the release windows, shitty 3D, legal shenanigans, bribes, creative accounting, overpaid CEOs, serious lack of legal alternatives and general assholedness towards consumers, I have to beg the question..

Who is the real pirate?

surfer – p2pnet
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The litigation has resulted in an agreement, sealed of course, between the RIAA and LimeWire, et al. The RIAA doesn’t want a precedent set that could potentially eliminate the ability to pursue the CEO of whatever new innovation comes along that the RIAA doesn’t like. MP3Tunes, OINK, IsoHUNT and others know what it feels like to innovate, and then be crushed by the legal might of dinosaur industry leaders who refuse to adapt their business model.

One interesting point that Mike Masnick of TechDirt constantly makes that is incredibly relevant is this; Has anti-piracy efforts improved sales? Very succinct and direct approach to this particular metric. ROI some businesses call it, return on investment. First there was Ireland rolling over like the French in WWII, spying on its’ internet customers at the behest of the MAFIAA, then HADOPI in France. Obviously this was forced on the French due to a celebrity polishing Sarkozy’s helmet, and not because it was even relevant, effective, useful or wanted by the French people. In fact, I think there were a few polls and demonstrations against it. And now look at what a shining light of proactive anti-piracy effectiveness in action. Sony spent more on R&D for BluRay DRM than they did on the security servers hosting the PlayStation Network. Think about that for a second, and you will realize where their priorities lie.

So, LimeWire lost. Another incentive for distributed technology. DNS is now under attack from DHS/ICE, which is not even in their mandate, and with the UN requesting the US release control over ICANN, public outcry about violations of constitutional rights, seizing domains that have been legally defined in a court of law in that country as, well, legal, not to omit placing defamatory accusations that over 80,000 sub-domain web sites were seized due to being CP related. Even if this even lasted minutes, instead of days, it should constitute actionable litigation against the US GOV.

Again, another reason to migrate to OpenDNS or other alternative that does not censor. The NSA said it best when they warned that the more you invade the privacy of others, the more measures they will take to inhibit your efforts. The more pressure that is put on centralized systems, will invariably force innovation away from it and more towards decentralized systems that cannot be affected. The internet sees censorship as a roadblock and simply routes around it.

And finally, TorrentFreak has a great article about bittorrent traffic increase reported by Sandvine, a Canadian-based broadband management company, amazingly NOT owned by the MAFIAA. It shows how impressive your 8-year litigation against LimeWire produced such an immense increase in physical and digital sales… oh wait, no it didn’t!  They all moved to bittorrent. And when it takes you 8 more years to litigate away bittorrent, there will be something else already waiting. Congratulations RIAA, one less mole, superb use of resources, and an incredible boost to your coven on artists. Oh wait!… the artists’ get nothing? The 105 million will go back into investing additional anti-piracy efforts and the artists get nothing?

Impressive, most impressive.

You know, mp3Tunes and GrooveShark started with less than 105 million. I bet you could have built a great Last.FM for that kinda money. Until then I will use AudioHijack and streamed free music in iTunes, and pay for ‘other’ services, like bandwidth, to access the buffet, instead of your little expensive continental breakfast.

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Established by the WIPO (World Intellectual Property Organization) back in 2000, it celebrates it’s 11th anniversary today, with this year’s theme being “Designing the Future“.

From the WIPO website…

The aims of World IP Day are:

• to raise awareness of how patents, copyright, trademarks and designs impact on daily life;
• to increase understanding of how protecting IP rights helps promote creativity and innovation;
• to celebrate creativity, and the contribution made by creators and innovators to the development of societies across the globe;
• to encourage respect for the IP rights of others.

Strangely enough I was unable to find any WIPO day themed cards when I visited the Hallmark isle at my local drug store. I guess grandma will have to settle for a generic “happy holidays” card this year.

The passing of  World IP Day also marks the end of “a contest to name the best short film about copyright protection.”  (Click on the MediaCaster link, if you’re in the mood for a sick laugh.)

Otis – p2pnet

p2pnet view P2P | Politics:- Digital policies may not have played a starring role in the current election campaign, but neither have they been ignored. My weekly technology law column (Toronto Star version, homepage version) notes that for the first time, all major political parties have devoted a section of their platform to digital issues and both the Liberals and New Democrats ran events focused on digital policy. While there is general agreement on the key issues – topping the list are Internet access and pricing, telecom competition, copyright, and the privacy-security balance – each party offers a surprise that gives some insight into its digital policy priorities.

The Conservatives

Perhaps owing to its five-year track record, the Conservatives digital policy platform is the least detailed of the three parties. Many of its positions simply re-affirm a commitment to stay the course – continuation of funding for rural broadband projects, the reintroduction of Bill C-32 for copyright reform, and vocal opposition to the implementation of an iPod tax.

The big surprise, given Tory emphasis on the economy, is the subtle shift from digital economy issues to digital security concerns. For example, the Conservatives have surprisingly little to say about the prospect of removing foreign ownership barriers for telecommunications companies or about their intended use of proceeds from the forthcoming spectrum auction.

Instead, there is a commitment to set aside spectrum for first responders such as police and emergency units. That spectrum is worth hundreds of millions of dollars and will require those agencies to find hundreds of millions more in order to use it.

Similarly, the Conservatives make a renewed commitment to grant extensive new powers to police in the digital realm. There is no specific reference to it in the party platform but included within a promise to pass 12 criminal justice bills within the first 100 days of Parliament are at least two of the bills that would facilitate police access to digital information.

The Liberals

The Liberal surprise is its willingness to stake out very detailed digital policy positions after several years of uncertainty. The Liberals have committed to using the proceeds from the forthcoming spectrum auction for digital policies, including rural broadband expansion and cultural funding. They are the only party to set clear targets for broadband connectivity. Their goals start modestly – universal connectivity at 1.5 Mbps within three years – but anticipate more ambitious speeds by 2020.

The Liberals have also provided a fairly detailed prescription for copyright reform, signalling changes to Bill C-32. These include support for expanding the fair dealing provision to include education on the condition that both “fairness” and “education” are more clearly defined as well as changes to the digital lock provisions to “allow digital lock circumvention for non-infringing purposes.”

The New Democrats

The most surprising aspect of the NDP position is its commitment to undo more than 10 years of Canadian Internet and new media policies. The NDP is the most aggressive of the three parties on the hot button issue of Internet pricing with a commitment to a full ban on usage based billing practices at both the wholesale and retail levels. When combined with a promise to rollback the 2006 directive to the CRTC to rely on market forces, the NDP would reverse longstanding approaches to telecom and Internet regulation.

The NDP platform also focuses on increased regulation of both Internet providers and online video services. Alone among the three parties, the NDP states it would consider requiring both ISPs and “over-the-top” video providers such as Netflix to contribute funding to support the creation of Canadian content. These policies would seemingly require reforms to the Broadcasting Act and force the CRTC to reopen its new media decision that takes a hands-off approach to Internet regulation.

Michael Geist – Michael Geist’s Blog
[Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist @ uottawa dot ca]

(Thanks, Michael!)

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I’m simply going to post the e-mail contents it in its entirety, as its meaning and purpose are quite clear, and I’m sure FireDogLake wants to spread this around as much as possible.  Its links are there for those wanting to know more and/or get involved. 

- Devil’s Advocate 

Jon,

The isolation of Bradley Manning just took a turn for the worse. Now Quantico Marine Base and the government are breaking their own rules to deny visits to Bradley Manning.

Government officials and Quantico Marine Base have just declared that Congressman Dennis Kucinich and the UN Special Rapporteur on Torture – who have tried to visit Manning for months – would not be considered to be on “official government business.” That means brig authorities could monitor their conversations and possibly use them against Manning in court.

We need to appeal this decision to the leadership at Quantico and the Pentagon, including Defense Secretary Robert Gates, Quantico Base Commander Colonel Daniel J. Choike, and Brig Commander CWO Denise Barnes. If enough of us call out this wrongheaded decision, we can generate pressure in the media to allow official visits with Bradley Manning.

Sign our letter to Quantico and Pentagon leaders: follow your own rules and allow official visits to PFC. Bradley Manning. Click here to add your name.

What do Quantico and the Pentagon have to hide? Are they afraid of what Bradley Manning might say about his treatment when the brig cameras are turned off?

For 9 months and counting, Bradley Manning has faced almost complete solitary confinement. He is still forced to strip nude nightly. He is still in maximum custody with an unnecessary “Prevention of Injury” order – far beyond that of any other detainee. He is still cut off from appropriate exercise and other rights afforded prisoners at the brig.

When confronted about Manning’s harsh treatment, President Obama said the Pentagon had reassured him that Manning’s confinement met “basic standards.”  If Manning’s conditions meets our “basic standards,” then why is the government going to such great lengths to keep him from meeting with official visitors?

Call out the hypocrisy of denying Bradley Manning official visitors. Sign our letter protesting the decision to block unmonitored visits to Bradley Manning.

The decision to block official visits to Bradley Manning isn’t just ludicrous. It’s against the rules. Marine rules clearly state that people “conducting official government business, either on behalf of the prisoner or in the interest of justice,” can be allowed “official visits” not subject to monitoring by the brig. That explicitly includes Members of Congress like Rep. Kucinich.

Rep. Kucinich, a member of the House Oversight Committee, has been trying to visit Manning in prison for more than two months. The Congressman repeatedly wrote to Secretary Gates and other military officials requesting a visit to investigate the allegations of torture-like conditions to which Manning has been subjected. And the UN Special Rapporteur on Torture has opened an official investigation into PFC. Manning’s conditions.

If it seems like a stretch to say that a member of the US Congressional Oversight Committee and the United Nations visiting a military prisoner alleging abuse does not constitute ‘official government business,’ that’s because it is. This is one big game of semantics, with the ultimate goal being to keep the public from hearing the truth about Manning’s confinement.

The secrecy has to stop. Sign our petition to Secretary Gates and Commanders Choike and Barnes to stop obstructing and allow official visits to Manning.

With your help, we will make sure there is nothing secret about the way the US Government is treating Bradley Manning.

Thanks for all you do.

Michael Whitney,
Firedoglake.com

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Devil’s Advocate – p2pnet

p2pnet view P2P | Freedom | Entertainment |

Digital locks, usage based billing, throttling, web censorship, and they are also strong supporters of the new iPod levy on digital objects that play digital files. They are also willing to give some leeway on Net Neutrality as long as ISPs comply with some simple rules. Retain everything on everyone for no less than 180 days, “for law enforcement purposes”. Ya, right, and I also write articles for Forbes… The data retention caveat is primarily to appease the demands of the MAFIAA in order to begin exploiting their customers in the courts. As near as I can tell, not being Canadian, is that Canada has the closest balance between consumers and content providers in the known world.

Note that I did not call Canadian Copyright balanced, but the closest balance I have seen in the free world. Similar to Spain and Denmark (which both are about to change rapidly, and will no longer be examples), Canada has some of the last vestiges of consumer friendly snippets in its’ copyright regime that few other countries enjoy. And yet, year after year, the MAFIAA places Canada on the Special 301 report, mainly because they refuse to bow to the cartel’s demands – digital locks, iPod levies and data retention for civil prosecution. I thought I would never type that headline, but in the face of overwhelming lobbying by the MAFIAA, Telcos, ISPs, content providers, and the aging musicians, anytime the public themselves gets and inch back from the draconian copyright cartels, it has to be considered a win. With the elections looming, the parties have put their cards on the table…

The Conservatives:

• want anti-spam legislation, which is good
• defended the fair dealing reform of C-32
• pressured the CRTC to reconsider Usage Based Billing (UBB)
• refused to budge on the digital locks provision, including electronic device levies
• want steadfast lawful access legislation requiring ISPs to retain data on its’ customers, “for law enforcement purposes”. More like the first step in facilitating copyright infringement lawsuits similar to the ones we have here in the United States, the “pay-up-or-else” business model
• mostly want to just sweep this under the carpet until after the election

After protestors to the Digital Economy Strategy compiled over 300,000 signatures in protest, the National Democratic Party (NDP) took notice, and modified their platform accordingly…

The NDP want:

• enshrinement of “Net Neutrality”, forcing ISPs to be “dumb pipes”, and nothing more
• to end price gouging and net throttling by prohibiting Usage Based Billing, with clear rules for ISPs that will be enforced by the CRTC
• introduction of a bill for copyright reform to review Canada’s stance concerning international obligations, while balancing consumer and creator rights
• to rescind the 2006 Conservative industry-orientated directives, and require the CRTC regulator stand up for public interests, and not just Big Content and the telecommunications industries (namely Bell/Rogers)

So, it looks like there is going to be copyright reform in Canada, whether Canada wants it or not. The question remains, will the Canadian people stand up for whats right?

It seems they already have with the massive protests concerning C-32 and all the publicity it has created. Dr. Michael Geist does an impressive job of keeping the public on Canada informed concerning copyright issues, and you should really read his blog if you are Canadian, and even if your not Canadian, it gives you very good insight in how the MAFIAA is attempting to subvert governments all over the world to their demands.

What it looks like to me is the NDP is pro-consumer, while the Conservatives are pro-MAFIAA. A rather oversimplification I realize, but it is not hard to see where loyalties lie in reading the Digital Economy Platform for each party. So the question remains; will Canadians vote in the NDP and potentially get some consumer friendly legislation out of the deal, or will Canadians vote for the Conservative party, that apparently wants to serve up Canadian citizens to the MAFIAA as hors d’œuvres?

Stay Tuned…

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First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

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Again.

And sadly, there’s no dark horse likely to come galloping to the front to change the dynamics.

George W. Harper is almost certain to end up back in the saddle, which means it’ll be bidniz as usual — kowtowing to Hollywood and the Big 4 labels, blowing billions of dollars on items and projects only Harper and his cronies want, government scandals.

And given the paucity, and unreliability, of the Canadian media, print and electronic both, there’s no information outlet capable of mounting a campaign likely to galvanise the voting populace into forcing a significant change.

You know how it goes. Same old same old.

MPs voted 156-145 in favour of a Liberal motion today citing Stephen Harper’s minority Tories for contempt of Parliament and expressing non-confidence in the government, says the Canadian Press, noting:

“The contempt charge marks a first for a national government anywhere in the Commonwealth.”

Not that it’ll make a difference to anything.

So when are Canadian expected to turn out to vote Harper back in?

Sometime in the spring.

What’s the current government makeup?

The Conservatives have 143 of the 308 seats in the Commons; Liberals 77; Bloc Quebecois 47, and the NDP 36.

There are also two independent MPs, and three vacant seats.

Who’s in charge? Certainly, not the people who elect the likes of Harper.

Says the Wikipedia >>>

As per the Constitution Act, 1867, Canada is a constitutional monarchy, wherein the role of the reigning sovereign is both legal and practical, but not political. The Crown is regarded as a corporation, with the monarch, vested as she is with all powers of state, at the centre of a construct in which the power of the whole is shared by multiple institutions of government acting under the sovereign’s authority; the Crown has thus been described as the underlying principle of Canada’s institutional unity, with the executive formally called the Queen-in-Council, the legislature the Queen-in-Parliament, and the courts as the Queen on the Bench.

Now we wait.

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Canadian Press – Harper government topples on contempt motion, triggering May election, March 25, 2011

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

World War III will be a global information war with no division between civilian & military participation ~ Marshall McLuhan

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In addition, the government re-appointed Privacy Commissioner of Canada Jennifer Stoddart for another three year term, supported the entry of Globalive into the Canadian wireless market, and pressured the CRTC to revisit its policy on usage based billing.

Notwithstanding these developments, the focus will undoubtedly shine on the bills and policies that were started but not completed. These include:

• the digital economy strategy
• a policy on foreign investment in telecommunications
• a policy on foreign ownership in book publishing and distribution
• a policy on the forthcoming wireless spectrum auction
• Bill C-29, a bill to reform PIPEDA
• Bill C-32, the copyright reform bill
• Bills C-50, 51, 52, the lawful access bills
• Bill C-393, the private members bill to facilitate access to generic medicines in Africa

The future for each of these initiatives varies.

A digital economy strategy (which could incorporate the other policies) will be introduced sooner or later, perhaps sooner if the political parties use the election campaign to outline their vision of what the policy should look like. Bill C-393 will always face an uphill battle given opposition from pharmaceutical companies, but the broad range of Canadians who spoke out on the issue are unlikely to stop pursuing reform.  Lawful access never dies and will undoubtedly be reintroduced by a future government with little enthusiasm.

The privacy bill is probably dead. PIPEDA faces another statutorily-mandated review this year, so any future government is likely to wait for the results of that review before re-introducing privacy reform.  Given that it took four years to get this bill, that does not bode well for meaningful privacy reform in the foreseeable future.

Many people may welcome the demise of the copyright bill, but I must admit that I’m not one of them. This is the third copyright bill to have hit the scrap heap, following in the footsteps of Bills C-60 and C-61, neither of which made it past first reading. Bill C-32 is obviously the closest Canada has come to digital copyright reform – a full public consultation in 2009, a bill in 2010, and several months of committee hearings into 2011.

I always described the bill as flawed but fixable and that remained my sense after the many committee witnesses. The committee process did provide some valuable information – confirmation of the effectiveness of the notice-and-notice system, the broad support for a digital lock exception for non-infringing purposes (including consumer groups, education, libraries, retailers, and telecom companies), and the value of codifying the Supreme Court of Canada’s fair dealing test into the Copyright Act to address uncertainty concerns.

No matter the outcome of the upcoming election, copyright reform will quickly be back on the legislative agenda (though likely not until late 2011), hopefully in amended form that builds on the good in C-32 and the lessons learned through months of hearings and public feedback.

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March, 2011

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

World War III will be a global information war with no division between civilian & military participation ~ Marshall McLuhan

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Will Canada be once again embroiled in an election with no chance of any kind of genuine government reform or upgrade, whatever the ultimate result?

Or will it be bidniz as usual with George W. Harper running Canada as though it’s his own private operation?

Either way, it’ll be the same old same old.

Canada’s opposition parties are expected to bring down the government on a non-confidence motion introduced by the Liberals after the ruling Conservatives’ federal budget was rejected.

“While polls show the governing Conservatives would likely win the most seats in an election, the main opposition Liberal Party may seek to form an alliance or formal coalition to govern if Harper, 51, doesn’t win a majority, said Nelson Wiseman, a political scientist at the University of Toronto”, says Bloomberg News, going on:

” ‘Harper has been saying if the Conservatives don’t win a majority, the next day the Liberals and the NDP will be negotiating a coalition,’ Wiseman said. ‘I don’t even think they’ll wait for the next day. I think they will be negotiating the night of the election.’

This could “bring together parties opposed to planned corporate tax cuts and additional spending on military jets, and who have called for rules to protect Canadian companies from foreign takeovers and more federal spending on education and health care.”

Says the CBC >>>

The Liberal Party gave notice earlier this week they’ll put forward a motion of non-confidence in Prime Minister Stephen Harper and his government. If it passes, the government will fall and Canadians will head to the polls.

The motion says the House agrees with a committee report tabled earlier this week that found the government in contempt of Parliament, “which is unprecedented in Canadian parliamentary history, and consequently the House has lost confidence in the Government.”

It comes after Liberal Leader Michael Ignatieff, NDP Leader Jack Layton and Bloc Québécois Leader Gilles Duceppe said their parties wouldn’t vote in favour of the federal budget tabled Tuesday. The government can fall if they lose either vote.

‘… the House has lost confidence in the Government.’—Non-confidence motion states

Ignatieff will kick off the debate on the motion at 10 a.m. The NDP hasn’t decided yet whether Layton will speak to the motion, although Layton and Duceppe said Wednesday their parties would vote with the Liberals on their motion.

The vote is expected to come around 1:30 pm ET, says the story, adding:

“If the government loses the vote, Harper will go to Gov. Gen. David Johnston some time over the weekend to ask him to dissolve Canada’s 40th Parliament, something that’s expected to happen Saturday morning.”

Stay tuned. Or don’t bother.

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Bloomberg News -Canada Opposition Poised to Trigger Election, May Reverse Harper’s Tax Cut, March 24, 2011
CBC – Government expected to fall, March 25, 2011

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

World War III will be a global information war with no division between civilian & military participation ~ Marshall McLuhan

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The government should “exclude copyright policy from trade negotiations” and instead “focus on developing international copyright policy through bodies like the World Intellectual Property Organization (WIPO)”, said the committee report tabled on Monday.

Ottawa law professor Michael Geist (right) is quoted as saying the move by the opposition parties is significant as a spring election now appears unavoidable, stating the CETA and ACTA trade agreements depart from the conventional norms of what trade agreements should cover.

“This is not part of what we would traditionally think of with respect to market access, tariff barriers, and those sorts of issues around trade,” he says in the post, adding Canada can work with international partners to try and avoid putting copyright into trade agreements, according to the story.

“I think there are many jurisdictions we should be talking to that are like-minded on this issue”, he said.

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verge of an election – Will Canada soon be under new management?, March 23, 2011
Wire Report – Exclude copyright from all trade agreements: Heritage committee report, March 23, 2011

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

World War III will be a global information war with no division between civilian & military participation ~ Marshall McLuhan

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The notice and notice system involves a notification from a copyright holder – often involving movies, software or music – claiming that a subscriber has made available or downloaded content without authorization on file sharing systems. The ISP forwards the notification to the subscriber but takes no other action – it does not pass along the subscriber’s personal information, remove the content from its system, or cancel the subscriber’s service.

While some rights holders (who the committee learned played a role in establishing notice-and-notice in the first place) have claimed the system is ineffective, Rogers came prepared with evidence about how the system functions and on its effectiveness. It reports that it processed 207,000 notices in 2010, sending those notices to about five percent of its customer base. In other words, 95% of its subscribers are not identified by rights holders as copyright infringers – far from the piracy haven that it often claimed.

Of the households that receive notices, only 1/3 receive a second notice. Of those that receive a second notice, only 1/3 of those receive a third notice.

This provides solid evidence that notice-and-notice is effective in countering repeat infringement. Although the CRIA-backed Balanced Copyright for Canada group mistakenly claimed this means that one third of alleged infringers receive at least three notices, the reality is that the Rogers data suggests that 67% of recipients (which is already only five percent of subscribers) do not repeat infringe after receiving a notice and 89% cease allegedly infringing activity after a second notice. Within two notices, about 99% of Rogers subscribers are not receiving infringement notifications.

Those numbers are very similar to data from the Entertainment Software Association of Canada, which found that 71% of notice recipients did not place an infringing file back on BitTorrent systems (though the ESAC chose to focus on the 29% that did repeat infringe, the numbers are consistent with Rogers’ experience). Similarly, the Business Software Association told the CBC in 2006 that the notice-and-notice approach has “been most effective.” Further, these numbers are also similar to the piracy reduction targets that the UK government has set and which have been lauded by some Canadian rights holders.

The Rogers data does leave about 1% of its subscribers as repeat infringing after two notices (the number drops far below 1% after the third notice).  While some rights holders will claim that this shows there is a need for severe consequences for the tiny fraction of users that ignore notices, the reality is the opposite is true. If any notice system is designed to educate the public and discourage infringement, it is readily apparent that notice-and-notice works extremely well since it is a tiny part of the population that seemingly ignores the notification.

Moreover, if there are a couple of outliers in the population – the Rogers data showed about 1 in 800,000 at the extreme end of the spectrum of several dozen notices to a single household – there is absolutely nothing to stop the rights holder from taking legal action against those individuals. There is no need to threatens tens of thousands with cutting off Internet access, when rights holders are perfectly capable of taking action against the (literally) handful of people that repeatedly infringe at the extreme end of the scale.

The committee discussion also touched on the digital lock rules in Bill C-32. Rogers indicated that it supported some digital locks, but that it is opposed to copy control provisions in C-32 that would prevent Canadians from engaging in common consumer activities such as format shifting, time shifting, and backup copies. The ISP opposition to the current C-32 digital lock approach was echoed in the second C-32 panel, where the Canadian Federation for Humanities and Social Sciences and the Canadian Library Association both called for the right to circumvent for non-infringing purposes.

In fact, the CLA said the bill is “fundamentally flawed” without such a change.  While Bill C-32 seems set to die on the order paper, there will undoubtedly be another copyright bill with another government and the information on the effectiveness of notice-and-notice – as well as the steadfast opposition to the C-32 digital lock approach – must be taken into account.

Michael Geist – Michael Geist’s Blog
[Geist is the Canada Research Chair in Internet and E-commerce Law at the University of Ottawa. He can be reached by email at mgeist @ uottawa dot ca]

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March, 2011

First they ignore you, then they laugh at you, then they fight you, then you win ~ Mahatma Gandhi

World War III will be a global information war with no division between civilian & military participation ~ Marshall McLuhan

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