Copyright

What's Wrong With a Copyright Alert System?

Internet service providers have a new plan to crack down on illegal downloads and peer-to-peer file sharing. Should digital activists be worried?

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In January, Internet service providers will begin sending notices to subscribers suspected of illegally downloading music or movies using peer-to-peer file-sharing networks. After five increasingly sternly worded warnings, subscribers' Internet access will be slowed down or partially blocked. This new "Copyright Alert System" is bound to raise the hackles of digital rights activists—but should it?

The system is the result of a private agreement between ISPs and the recording and movie industries. The agreement is nominally voluntary, although former New York Attorney General (now Governor) Andrew Cuomo strongly suggested to ISPs that they cooperate, and the Obama Administration's IP czar Victoria Espinel helped broker the deal.

Under the new system, copyright holders monitor P2P networks and note the IP addresses of users they believe are engaging in piracy. The suspect IP addresses are passed along to the ISPs, which match them to individual subscribers, and then send the copyright nastrygrams. The ISPs never reveal to copyright holders the identities of subscribers.

The first two messages are "educational" warnings that merely let subscribers know that illegal downloading has been detected on their accounts. These will have an effect, for example, by alerting parents who are unaware that their kids are file-sharing. The next two warnings are more strongly worded and must be acknowledged by clicking on a pop-up before subscribers can continue to use their Internet connections. Users will never be cut off from the Internet completely.

With the fifth and sixth warnings, ISPs will implement a "mitigation measure" of their choosing, which might be slowing down access speeds, or blocking access altogether until the subscriber contacts the ISP. Before such a punishment goes into effect, subscribers will have an opportunity to appeal to a private third-party arbitrator by paying a refundable $35 filing fee and explaining why they think they are not liable.

The Electronic Frontier Foundation, among many other copyright skeptics, does not like the new program.

"Big media companies are launching a massive peer-to-peer surveillance scheme to snoop on subscribers," a recent EFF blog post reads. "Based on the results of that snooping, ISPs will be serving as Hollywood's private enforcement arm, without the checks and balances public enforcement requires. Once a subscriber is accused, she must prove her innocence, without many of the legal defenses she'd have in a courtroom."

I don't take a back seat to anyone in criticizing our out-of-control copyright system. Copyrights are too long and too strong, penalties for infringement are disproportionate, and federal enforcement has gotten out of hand. Yet those of us who seek to reform copyright should keep in mind that piracy is real, and copyright holders have a legitimate interest in enforcing their rights.

The EFF and others talk about surveillance and snooping, but in fact the monitoring in question takes place over publicly accessible networks. And while it's true that the Copyright Alert System's private arbitration flips the burden of proof, it's not clear "public enforcement" is really such a great alternative.

One form of public enforcement is the kind of mass litigation the recording industry engaged in until recently, suing tens of thousands of Internet users in civil court. They sometimes unmasked the subscribers behind suspected IP addresses using subpoenas, and they made defendants an offer they couldn't refuse: Accept a multi-thousand-dollar settlement or fight an expensive court battle that could potentially end in liability for hundreds of thousands of dollars. The other type of public enforcement is federal criminal prosecution, with disproportionate penalties and its own due process problems.

While the Copyright Alert System is far from perfect, it succeeds in treating illegal file-sharing as an infraction more akin to speeding, and less like grand larceny the way courts and prosecutors do. And the private system has its own set of checks and balances absent from public enforcement: ISPs have a strong incentive to ensure that their customers are not harassed by false positives or overzealous enforcement. (Indeed, the agreement limits the number of notices copyright holders may send in a month.) This is why the temptation to codify such a "six-strike" system in law the way France and other countries have should be resisted.

In the long run, the new system is likely to be ineffective at stopping piracy. Determined pirates will be able to detect and evade monitoring, spoof their IP addresses, or simply switch to other methods of file-sharing not covered by the agreement, like streaming or using locker sites or Usenet. In the short run, however, copyright alerts will attempt to nudge public norms that have increasingly moved toward widespread acceptance of file-sharing. Evidence suggests, though, that it's probably too late for that too.

Rather than dismiss the new system out of hand, those of us seeking a saner copyright regime should welcome this experiment while keeping a close eye on it. If nothing else, it's preferable to have content owners make constructive use of their private rights rather than rely on the power of the state.

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  1. Guilty until proven innocent! Woo hoo!

  2. If the genie won’t go back in the bottle, you just aren’t stuffing hard enough.

    1. There’s no part of that sentence that I didn’t like.

      1. You just gotta rub me the right way.

        1. I’m pretty sure you aren’t Buddha. Though if you are, the look on Heroic Mulatto’s face will be priceless…

          1. Did HM get his nom de blog back?

            1. I have no idea about you are talking. I wasn’t aware he changed it.

              1. He changed it to Heroic Quadroon, then was looking to change back. Just wondered if he did as I haven’t seen him posting today.

                1. He did. Sloopy was just keeping it warm for him.

          2. I am 47th perfected soul, the cursing Buddha of local fame.

        2. I Dream of Stuffing Jeannie

          1. Yeah I think there are probably more than a few of us here that owe Barbara Eden are eternal gratitude.

  3. I’m sure nobody that never downloaded an illegal thing in their life will get caught in this dragnet, amirite?

    1. Don’t worry Kristen, if they find out after the fact that you never downloaded the complete run of Boy Meets World, the MPAA will send a letter of apology to your family for mistakenly executing you.

      1. Harry BTuttle agrees!

  4. There’s really no reason to use bittorent anymore anyway. Google “free tv” and the first two results are to a site that has many thousands of TV shows and movies available. And on youtube I’ve never not been able to find a song, or a complete album, I’ve been looking for.

    I guess bittorrent is still useful for warez (do the kids still call it that??)

    1. Game of Thrones, Breaking Bad, Chicks With Dicks and Whips.

    2. You must be listening to some real mainstream music then.

  5. Thanks for this article, Reason. I feel like my internet account was being monitored and I was being beta-tested the past two weeks. I don’t upload any movies, music, etc. to the internet. I have a Netflix account, and buy all my music through iTunes. I do, however occasionally stream movies from locker sites (I have no idea what that means). But my Verizon has been real hinky lately, and I think there is a connection to this new initiative.

    1. Could also be all the kids on holiday break tieing it up.

    2. I’ve got Time Warner and whenever I’ve had speed problems they’ve been resolved with a phone call.

    3. But my Verizon has been real hinky lately, and I think there is a connection to this new initiative.

      I think it is vastly more likely that the bandwidth you share with others is being clogged up by porn users and other bandwidth hogs.

      1. Porn? That’s so 20th century. Hulu and Netflix users clog up the damn tubes. Hotel internet connections totally suck these days.

        1. I’m sure the shitty hotel connections are a result of owners buying the bare minimum in equipment and speed tiers. So they can advertise “high speed internet”.

  6. I’m wondering if it’s more the case that isp’s are trying to conserve bandwidth by punishing heavy downloaders and at the same time trying to generate new revenue via fees than that they care about ip.

  7. I would have given this more support (like that matters) if the government players did not leap to coercion. I do like Jerry’s view of copyright:

    Copyrights are too long and too strong, penalties for infringement are disproportionate, and federal enforcement has gotten out of hand. Yet those of us who seek to reform copyright should keep in mind that piracy is real, and copyright holders have a legitimate interest in enforcing their rights.

    Maybe if the courts were not wasted on victimless drug cases then we might have a chance at getting crimes with victims sorted out.

    1. Maybe if the courts were not wasted on victimless drug cases then we might have a chance at getting crimes with victims sorted out.

      I am not sure downloading has a victim either.

      1. Copying copyrighted material does have an identifiable victim, the copyright holder. That is, for those of us who believe that IP is indeed a valid form of property.

        1. I’m pro-IP, just not this over-the-top nonsense we have today. The duration is absurdly long, fair use is an uncertain mess, and the criminalization of certain kinds of infringement along with the ridiculous costs of defending IP claims (regardless of how valid). . .well, I have more to say, but you get the picture.

          And let’s not get started on patents, which are apparently granted at random.

          1. Everything having to do with IP is random. IP laws are like traffic laws. They are violated every day by pretty much everyone. The question is whether you’ll be sued over it. The answer depends on how much “damage” has supposedly been done.

            1. I think the problem isn’t the concept of intellectual property but the mess that is IP law. The laws themselves are a disaster and have been passed with the usual lack of concern for their internal consistency and, for that matter, consistency with existing IP law.

              On top of that, judges rarely get IP law and make decisions that are all over the place. One particular problem caused by this is the totally unpredictable state of fair use. What’s okay? What’s so okay that I could recover fees if a copyright holder sued me anyway? No idea.

              1. That is the essence of my complaint too.

          2. Fuck IP. I used to think short term patents served a useful function but not anymore.Copyright is total BS. Trademarks are OK because using somone elses is fraud.

          3. Probably my favorite patent:

            http://patft.uspto.gov/netacgi…..PN/4133152

            Didn’t know you could patten a tiling. Looks like someone was connected.

        2. Copying copyrighted material does have an identifiable victim, the copyright holder.

          How so? It really depends on the premise of your second sentence being true. That is where I have doubts.

          1. I am also unclear as to the victim-status of the copyright holder. Downloading a copy of a song is different than breaking into a store and stealing a loaf of bread. Once the bread is stolen, it cannot be sold to someone else, hence the clear victimization of the bread seller (loss of real wealth). Downloading a song does not prevent the copyright holder of the song from selling the song to someone else. The only case the CR holder can make (IMHO) is that by you downloading their song for free they lost the sale of the song to YOU. However, this requires presumption that you would have paid for the song if you could not download it for free.

            Anyone here put much thought into this issue? I’d be interested to hear your thoughts…

            1. You can look at Stephan Kinsella’s Against Intellectual Property on mises.org. It is a free pdf download.

              1. Thanks!

            2. The converse is, if you do not like the price, method, or any other aspect of the way a person is selling it, don’t take an unauthorized copy.

              However, this requires presumption that you would have paid for the song if you could not download it for free.

              Why not make that presumption of the bread thief?

              Hosting and distributing a song, book, or anything else is not free either. Yes, the cost is lower but it is never free and price/cost is never a defense for theft.

              1. Hosting and distributing a song, book, or anything else is not free either.

                Sure, it’s not ‘free’, but if I want to share a copy of what I have with you, how does that effect the copyright holder? I’m the one hosting and/or distributing.

              2. Why not make that presumption of the bread thief?

                Because in the case of the bread thief you can show a harm without making that assumption.

                With the Bread Thief the victim is deprived of the ability to sell the loaf of bread to ANYBODY at ANYTIME because the bread is taken and must be replaced with a brand new loaf of bread.

                The copyright holder can make no such claim, with an effectively infinite ability to copy the content he still can sell his intellectual property to anybody he likes. in many cases to the supposed pirates will even purchase content they previously pirated as often people download content to try it out and then later purchase it to support artists they like. In many other cases they download the content to replace a damaged previously purchased copy meaning the copyright holder has already been paid for the content.

                The only potential loss a copyright holder can claim in the case of a pirate is the ability to sell a copy of the content to that specific individual and this claim only holds water if you assume that the pirate has not previously paid for the content, will not at some future point pay for that content, and would have been willing to pay for the content if he could not access it for free. All 3 assumptions are as likely to be invalid as true and in the majority of cases of content piracy you will find that at least one of them is false.

                1. Ever been to a bread store? They make hundreds of things every day that just end up getting thrown away. The material cost of that loaf of bread is minimal, and the store is hardly hampered by the loss of something they were going to throw away anyway. It doesn’t matter, theft is theft.

              3. Hosting and distributing a song, book, or anything else is not free either.

                Why is it OK if I buy a book, read it, then give it to someone else?

                What about libraries?
                I can watch loads of DVDs from the library. Doesn’t that affect sales?

                1. Using a copy is not the same thing as making copies.

              4. “Why not make that presumption of the bread thief?”

                Because if he had not stolen, that doesn’t necessarily mean he would have bought it. He could have stolen from somewhere else, or purchased something or somewhere else.

                Copying =! Theft. Copying, the original “property” remains, second instance, property is actually removed.

                1. “Because if he had not stolen, that doesn’t necessarily mean he would have bought it. He could have stolen from somewhere else, or purchased something or somewhere else.”

                  Or he could have not stolen at all, since stealing is wrong. How you jump from that to “Copying is not theft” is odd, really.

                  If I clip a blade of grass from your lawn you still have a lawn, you still have the grass root system too, but I have still stolen from you (in addition to the trespass). You still have plenty of grass, which is nothing but a distraction from the fact that I stole from you.

        3. I’ve yet to see a convincing argument that IP is a valid form of property.

          1. Reason.TV had a good video on it recently, covering the theory that it is indeed property, just a different kind of property than real or personal property.

            1. The problem is that if is property, than copyrights and patents should be unlimited (e.g. it would be unjust for the government to say you only own your car for eight years, after which it becomes public property, which anyone may take at will). But if we accept the idea of an unlimited patent, we essentially have to nearly eliminate the idea of a free market as there will only be one company making any particular product.

              1. It is property, but it is different property than real or personal property.

        4. I don’t believe in imaginary property.

          Copyright was never meant to be a property right. The Economist even said that. Couple that with the lack of a “reasonable time” for copyright… you’ve got a mess.

          And if the RIAA has learned anything, it’s that you can’t stop infringement, so stop penalizing those who follow the rules (DRM is toast for digital music.)

          Now if only the MPAA would learn from their cronies in the recording industry, there’d be less infringement. Treat a customer like a criminal and he will stop buying.

        5. I’d have to say that your intellectual property is yours, absolutely. That book/CD/program/record/movie that you sold copies of to other people however is not.

          People have lent things to each other since the beginning of time.

          That is what most ‘piracy’ is.

          Everyone’s hackles should rise when they go after filesharing sites.

          I can share what I own–and I own the piece of IP you sold me. Sorry.

          Now, actual piracy–making copies for sale, stealing content with intent to sell. THAT can be attacked–but going after someone for trading something they own for something someone else owns is bullshit.

          1. You are not describing sharing, you are describing copying and redistribution.

            If you were only sharing, you would give your copy to someone else to use and you would not have that copy while they are using it, just like in a physical library, or a book from your own collection.

    2. The article mentions that state and federal government agencies were involved in the deal. I don’t doubt there was a bit of prodding going on. The same type of coercion the media companies have been using against individuals for years. Take the deal or we’ll force an even worse deal on you.

  8. The system is the result of a private agreement between ISPs and the recording and movie industries.

    Businesses behave badly; the market will respond; problem solved.

    1. This was linked by a friend of mine who once choked out a rabid bobcat with his bare hands. Friend said the scariest part of the whole ordeal was when the deputy showed up with a shotgun and was holding the barrel next to my friend’s ear.

      So yeah, we think this dude in the video is a pussy for using a stick.

  9. Just use a VPN with an overseas server.

    1. Where is anonbot in the one thread where it’s links might actually be applicable?

      1. Lol! Oh the irony…

  10. Just tell the Slashdot crowd that this is a form of Net Neutrality, and they’ll get behind it.

  11. The problem with all of these attempts to use IP addresses to identify infringing users is that an IP address does not equate to a user. Especially an IP address connected to an unsecured wireless router, which is the case with many non-tech-savvy folks. So I predict this will produce a period of widespread confusion as these letters are sent out to people who have no clue what’s going on with their internet connection, followed by a backlash against the ISPs, which will inevitably lead to market demand for ISPs who do not engage in this unfair practice.

    But there’s the problem. Once a CAS-free ISP sticks its head up, the MPAA and RIAA will try to use the safe harbor provisons of the DMCA to shut them down. Unless, of course, they agree to engage in this unfair practice. But hey by that time the “third-party arbitrator” will have made 35 dollars off of everybody that complains.

    Utter, complete bullshit scheme, based on the demonstrable lie that IP = individual.

    1. Very true on the IP address issue. I wonder how long before the “free” WiFi in Crystal City, VA (or anywhere else) gets throttled for this.

      1. Already happening. We get threatening letters from our carrier that we are the source of spam/virus attacks. We’re a hospital that provides free wifi services to our patients.

        So yes, it IS a headache when someone brings in the MacBook pro which is sending all kinds of outgoing garbage which gets us tagged.

        We recently found ourselves on a SPAM black list on several of the major spamwatch services (spamhaus, etc). Imagine a healtcare organization starts calling the IT department saying “all these people aren’t getting my emails, what’s wrong?”

        You ever tried to diagnose why someone else isn’t getting your email? Fun times. Unfortunately, the onus is on us to stop and mitigate the problems, even though they’re not “ouf fault”.

        1. I’d start by wondering why the public network for the patients and the internal network for the hospital’s operations are apparently the same network.

    2. The problem with all of these attempts to use IP addresses to identify infringing users is that an IP address does not equate to a user.

      It equates to an account. When catching piracy, it’s gotten to the point where we don’t care who the actual offender is, only that offenses are occurring on account X. Clean up your network, and we’ll stop harrassing you.

      Unfair? Yep. Do lawmakers care? Nope.

      1. This is a tried and true tactic that goes back centuries if not millennia. Hold people who are not responsible for crimes responsible, and you have now deputized them at zero cost. Better yet, you can fine them and turn a profit if they fail to apprehend perpetrators.

        King Henry II would hold entire towns accountable for unsolved crimes. At one point, an entire Cornish town fled to the woods en masse and would not return until the king’s circuit judge had left.

        It’s also sort of the idea behind Frankpledge, where someone takes responsibility for the crimes of a town at the regional court. Again, he has the financial incentive to keep law-and-order. The difference between this and Henry II is that Frankpledge in the Anglo-Saxon was frequently built on actual, mutual agreements.

        1. I am using that deputizing effect in an attempt to explain why heroin is effectively free right now and “pills” are many times more expensive.

          From what I see, it is the deputizing effect of licensing everybody involved from the factory to Walgreens. It appears that government spends billions more on “controlling” heroin/pot/cocaine, to no measurable effect.

          In neither case is anybody’s ability to purchase hindered at all, other than having cash available for the purchase.

  12. How is this not a violation of antitrust law?

  13. Let’s try to have fun with tags.

    Checks and balances are great, but I’d actually rather have my ISP come after me, than my government. I’d rather pay/contest some stupid fee and switch ISPs than hire a lawyer because some copyright holder wants to come after me for over $200K.

  14. IF the ISPs acted in a free market to begin with, I would have no problem with this system. But that is not the case.

    EnFORCEment of copyrights is immoral. Denial of service because of file sharing is a perfectly moral, non-violent way to attempt to protect income (assuming it is not a contract violation).

  15. Jerry Brito used phrases “SUSPECTED of illegally downloading music or movies using peer-to-peer file-sharing networks” and “copyright holders monitor P2P networks and note the IP addresses of users they BELIEVE are engaging in piracy.”

    Do you know why copyright holders are only able to punish based on SUSPICIONS and BELIEFS? It’s because they cannot actually see, in most cases, what people on the torrents are sharing. As soon as they crack one of our protocols, we simply make another, and most protocols have never been cracked.

    ‘Intellectual property rights’ is the propaganda being sold as a reason to effectively shut down the torrents, but the Fed cares only that we are communicating directly with each other in ways it cannot see. It wants to snoop on everything we do, and where it cannot, it fabricates lies and distortions to effectively shut the whole system down. More amazingly, instead of the press being outraged at the Fed and its minions violating the free and uninhibited speech upon which their industry relies, many authors are apparently too brainwashed to appreciate the more fundamental freedoms being threatened with these incursions.

  16. Happy New Year,NBA ,NFL 2013

  17. Is anyone on this blog older than 25?

    This is about MONEY. If artists don’t get paid, they don’t continue creating.

    “Oh, they’re my favorite, but I won’t spend $10 to support their music.” Cheapskates!

    That there is an enforcement system is because everyone is cheating. BTW, this is my experience, not an axiom advocating government jackboots.

    Cheapness is Selfishness. Live another year, get a life, and you will start paying the $10/album to support your artists.

    Rule of law, baby.

    All growd up.

    1. Umm, you don’t know what you are talking about. Ever heard of open source software?

      Also, if a musician is any good, they will make money at live shows and on real merchandise. They don’t need to charge for 0s and 1s laser etched on plastic or transmitted to you.

    2. If artists don’t get paid, they don’t continue creating

      Artists create. They do this whether or not they’re getting paid. It’s what they do.

      Getting paid is great, but not every piece is a comission.

      Ask an artist, they’ll tell you.

  18. Why wouldn’t an artist get paid?

  19. Just get rid of IP. Solves all the problems.

  20. Ohai Jerry!

    I notice you missed some other important coverage of the rise of corporate law.
    http://fightcopyrighttrolls.co…..ut-courts/
    http://boingboing.net/2012/10/…..lobby.html

    Mind you I wrote it in October, so a couple things have happened since then.
    The start date was pushed back yet again, they claim Hurricane Sandy as the reason. One is left to wonder if the real reason is some of the ISP’s getting cold feet after the RIAA blindsided them with the “expert” who was going to be kept on the payroll once again.
    The head of CCI still is claiming disconnection is off the table, but refuses to post the current agreement to the website. We are left to work only with the Memorandum of Understanding, the single public document about the system.
    It is quaint they are invoking the rules of the DMCA, when the notices in this spy system do not even meet those thin requirements.
    One should really be asking questions about antitrust activities when you have the entertainment divisions of corporations making demands on customers of their internet access divisions.
    It was nice they decided to bring in an outside “expert” once again to review Stroz’s methodology, but not Dtecnet/Mark Monitor/Thompson Reuters system. Because a test in a closed lab TOTALLY replicates the real world.

    I remain…
    TAC

  21. subscribers, and then send the copyright nastrygrams. The ISPs never reveal to copyright holders the identities of subscribers.

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