p2pnet view P2P | Politics:- In his his Open blog, Glyn Moody once described the Three Strikes, aka Graduated Response, element of the corporate entertainment industry’s ACTA as Fool’s Gold — a “con-trick played on the world”.

Under ACTA (Anti-Counterfeiting Treaty Agreement), governments would become corporate copyright agents and ISPs, copyright enforcers against their own clients.

Or as Alex Curtis puts it in Public Knowledge, Three Strikes is a “policy where a third party copyright holder makes an allegation of copyright infringement to your ISP, and without any due process or adjudication, your ISP disconnects you from the Internet”.

The Final Solution

The talks have been held in secret with only important bodies such as Google, eBay, the RIAA and MPAA made privy to the details.

Ottawa law professor Michael Geist recently posted a roundup of leaked documents noting, “many are dated and therefore reflect initial thinking but may have changed over the course of recent discussions”.

• Confidentiality statement: terms of confidentiality for ACTA documents (U.S.)
• Business Group demands for ACTA
• 2007 Outline Proposal for ACTA
• EU Analysis of the ACTA Internet chapter
• EU Advance Summary of the ACTA Internet chapter
• Canadian non-paper on Institutional arrangements
• Definitions (U.S.)
• Border Measures Chapter (U.S. and Japan)
• Criminal Provisions Chapter (U.S. and Japan)
• Civil Enforcement Chapter (U.S. and Japan)

Vivendi Universal, EMI, Warner Music and Sony Music’s, and Disney, News Corp, Time Warner, Viacom, NBC Universal and Sony Pictures, are currently trying to have it implemented in Britain as part of the  the UK government’s digital economy bill.

Much the same is happening in France, New Zealand, South Korea, and elsewhere.

It’s the final effort of the major record labels and movie studios to have the internet turned from a free and open world-wide communications and distribution web available to anyone anywhere,  to a dark and narrow marketing and sales channel rigidly controlled by the cartels, with bought-and-paid-for politicians fronting for them.

When Has a Pirate Graduated to Internet Exile?

The MPAA and RIAA have made a “giant political misstep by refusing to participate in a debate about three strikes”, says Curtis on Public Knowledge.

In doing so, he says, “they exposed the public and a number of US policy makers to policy that would strip Internet subscribers of their constitutional due process rights”.

He continues that on Tuesday and Wednesday he was at this year’s State of the Net Conference “beautifully orchestrated by Tim Lordan and his crew at the Internet Caucus Advisory Committee and, “If you weren’t following our live tweets from the many keynotes and panels, I’d like to give a quick recap of at least one important panel entitled: ‘Copyright Strikes: When Has a Pirate Graduated to Internet Exile’?”

Curtis goes on >>>

Tim moderated the panel of:

• Shira Perlmutter, Executive Vice-President, Global Legal Policy, International Federation of the Phonographic Industry
• John Morris, Center for Democracy & Technology
• The Honourable John Robertson, Member of Parliament, United Kingdom
• Matthew Schruers, Senior Counsel for Litigation and Legislative Affairs, Computer and Communications Industry Association

Noticeably missing on the panel were the US associations that represent large content holders, like MPAA and RIAA, or even their DC coalition groups like Copyright Alliance or Arts+Labs. It’s not like their representatives were busy, many were in the audience listening. No, they are actively trying to keep a low public profile on three strikes arrangements in the US while they work on back-room deals.

However, their lack of participation on this panel I believe backfired because they lost the opportunity to control their message on three strikes policy. If you were reading along with the live-tweets, the three strikes supporters on the panel were unabashed about their stances, many of which made people in this US audience cringe.

For instance when:

• the panel was discussing due process and standards of evidence, MP Robertson said something to the effect of it being difficult to get at the person who’s infringing when there are “obstacles” in the way.
• there was discussion of the penalties in the UK three strikes copyright legislation, MP Robertson said that issue was punted to OFCOM, which regulates telecommunications. Schruers was right to point out that here, that’d be like our government assigning Title 17 penalties to the FCC!
• an ISP representative asked what would happen to terminated users who use VOIP as their sole telephony service, effectively cutting off homes from 911 emergency calls? There were two fairly shocking responses: Perlmutter essentially said that ISPs have ways of making distinctions between VOIP and other Internet traffic (implying that ISPs should monitor all subscribers traffic using deep packet inspection) and MP Robertson said that if someone is breaking the law via infringement, their service has to be “withdrawn” (read: terminated or otherwise suspended).
• asked about the precedence of terminating someone’s Internet access for alleged infringement, Perlmutter said there’s a difference between “terminating access” and “suspending an account.” This was one of the biggest head scratchers to me — such a distinction without a difference. Perlmutter’s later attempt to explain this was that terminated subscribers could always open another account to get on the Internet. At least in the US, there tends to be only one competitor in a locale, if any.
• discussing if the termination punishment fit the alleged crime, Perlmutter said notice to alleged infringers wasn’t a sufficient consequence, that termination of an alleged infringer’s Internet access was preferable than suing.
• finally asked if we should bring three strikes policy to the US, Perlmutter said indeed the US already has a DMCA framework and said that there are “many conversations going on @ different levels.”

That last point is what has me surprised about MPAA and RIAA’s lack of participation. They’re pretending that the three strikes discussion isn’t happening. There are no (at least public) proposals in the US, so the debate shouldn’t even take place, or at least their participation in the debate. But the fact of the matter, while it may not be widely known to the public, those organizations are asking the government to take action. Here are a few written examples in public filings to the FCC:

RIAA in the FCC’s Open Internet NPRM:

…there should be no doubt that voluntary initiatives such as a graduated response program to educate, notify, and warn users about identified instances of infringement, and which impose escalating consequences on subscribers who fail to heed such warnings, are permissible under the Open Internet rules. Indeed, the FCC should encourage these initiatives.

Or repeatedly by the MPAA in FCC Workshop on “The Role of Content in the Broadband Ecosystem”, comments like:

MPAA strongly urges the Commission to recommend that Congress encourage multiple efforts to deter unlawful activity and not interpose any legal or regulatory obstacles that would per se bar the use of any otherwise lawful methodology.

and

The Commission should recommend that Congress encourage ISPs to work cooperatively with technology innovators and the creative community to implement the best available, commercially practicable graduated response policies and technological solutions to diminish the theft and unauthorized distribution of copyrighted materials online.

and in footnote 45, they discuss examples of consequences from other nations for those who have been notified that they are infringing:

In New Zealand, an amended copyright law likewise includes a graduated response provision that requires ISPs to ‘reasonably implement’ a policy that provides for service termination for repeat copyright infringers…Taiwan is in the process of implementing a similar law.

“Don’t let their strategy fool you,” Curtis adds on Public Knowledge. Three strikes is a “policy that throws due process out the window in the name of protecting copyrights, is actively being discussed and considered behind closed doors in the US.

“So if you don’t know about it, that’s exactly what the MPAA and RIAA are relying on. It may come in the way of a government mandate or as a 3rd party agreement between your ISP and content holders. Consider yourself on notice.”

Stay tuned.

Follow p2pnet on Twitter …

..… and identi.ca

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

held in secret – Question for Bill Gates on ACTA, January 25, 2010
Public Knowledge – 2010 State of the Net Three Strikes Panel — what MPAA and RIAA don’t want you to know, January 28, 2010

---

Use free p2pnet newsfeeds for your site. Subscribe to p2pnet.net | | rss feed: http://p2pnet.net/feed

---

Net access blocked by government restrictions? Use Psiphon from the Citizen Lab at the University of Toronto. Go here for details.

This entry was posted on Friday, January 29th, 2010 at 11:54 am and is filed under P2P, Politics. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

HOME

Viewed 2970 times