The six strikes policy we covered earlier this month has been somewhat delayed, and is now scheduled for early 2013, but the agreement between the entertainment industry and ISPs is still going to be implemented. The policy, dubbed “six strikes,” is the result of over a year of negotiation between ISPs and the movie/music studios. I’ve read the Memorandum of Understanding (MoU) that came out of that process. As we previously discussed, it’s a smart, balanced document. It emphasizes education and notification over draconian tactics; it comes down hard on the side of users and grants ISPs substantial leeway to deal with copyright infringers.
It’s also the reason why, as of Tuesday night, I’m now a VPN (virtual private network) customer. VPN’s are services that anonymize your browsing and/or P2P traffic, in exchange for a monthly fee. What I want to talk about is the reason why I decided to subscribe to a VPN.
The laughable case for trusting the entertainment industry
The tone and statements of the MoU stand in stark contrast to the vindictive practices and bombastic rhetoric both the MPAA and RIAA have leveled at the public for the past twelve years. SOPA and PIPA weren’t unusual, one-time blips; they were the latest in a series of sustained efforts to grant unprecedented enforcement authority to corporations in the name of stopping piracy. When they failed, former senator and current MPAA president Chris Dodd threw a temper tantrum that would’ve embarrassed a bratty toddler.
I don’t want to have meaningful discourse. You guys cheated!
For more than a decade, the RIAA, MPAA, and sister organizations like the IFPI have lobbied for harsher punishments and greater ISP snooping. Earlier this year, Dodd claimed that Google’s filtering in China proved the company could monitor and filter results in the US as well. Speaking of Google, the amount of vitriol directed at the company from Capitol Hill has been astonishing. There’s been a concerted push to dismiss the censorship and monitoring concerns of Google and other organizations/companies as nothing more than a smokescreen that cloaks the earnings these companies make from piracy.
After SOPA and PIPA failed, RIAA CEO Cary Sherman claimed that Google and Wikipedia “purport to be neutral sources of information, but then exploit their stature to present information that is not only not neutral but affirmatively incomplete and misleading.” Dodd explicitly threatened to cut donations to politicians who refused to vote the way the MPAA thought they should.
After all the secret treaties, scare tactics, reports that claimed that online piracy funds terrorism, ridiculously inflated loss projections, and concerted efforts to hold pirates accountable for ludicrously huge infringement awards, we’re supposed to believe that the RIAA and MPAA have turned over a new, reasonable leaf?
The diminishing barrier of ISP protection
Once upon a time, ISPs could generally be counted on to fight efforts to unmask and sue various users. Mergers, purchases, and changing roles have significantly diminished the interest ISPs have in maintaining such safeguards. Comcast doesn’t want its ISP customers to flee to another carrier, but Comcast now owns NBC Universal. The company has made it clear that it doesn’t want to be a dumb pipe utility; it wants to sell premium content to its own users, and it’s willing to flaunt net neutrality agreements to do so.
It’s not hard to see where the bread is buttered here
Verizon, AT&T, and Time Warner Cable don’t own the media properties that Comcast does, but all of these corporations see premium content agreements as the lifeblood of their futures. Most US broadband markets are monopolies or duopolies, which limits the chances that customers will bolt for a different provider. Service contracts with high termination fees are another barrier.
The six strikes MoU doesn’t make bedfellows of the various ISPs and the entertainment industry, but it aligns their interests more closely than before.
The unclear arbitration process
One of the things we know about the ISP notification process is that end-users will be able to pay a $35 fee and dispute the claim of infringement via arbitration. That’s virtually the only thing we know. Arbitration can cover a huge number of scenarios, from sitting down at a table, to a phone call, to an automatic reconsideration of the facts with little to no ability to submit additional evidence or argue one’s case.
The CCI (Center for Copyright Information) has stated that it believes the total number of arbitrations will be low, because hey, these are just warnings. It’s no big deal — assuming you trust the entertainment industry to live up to the spirit of the MoU. Then again, the number of people the RIAA took to court was much, much lower than the number of people it threatened with lawsuits unless they settled with it and agreed to pay damages.
Predictable treachery, without concern for fair use
The detection software to be used is known as MarkMonitor. It was evaluated once, by Stroz Friedberg, which turned out to have done extensive lobbying for the RIAA once upon a time. The RIAA neglected to disclose this pertinent fact to anyone else, which led the CCI to agree to a second audit. The results of that audit have not yet been released.
Many of MarkMonitor’s detection and evaluation steps are handled by humans. That’s a good thing, particularly given the well-publicized screw-ups of automatic systems in the past few months, but MarkMonitor’s ability to evaluate whether or not files are being used for scenarios that fall under fair use is limited.
And let’s be clear — they don’t have to. According to the Library of Congress, while it’s legal to decrypt a DVD in certain cases, none of those cases apply to space shifting (moving multimedia from one format to another). It’s illegal for you to buy a DVD and then rip it to copy to your iPad or tablet. It’s therefore also illegal for you to buy a movie and then download a copy of it rather than going to the trouble of ripping and encoding a digital version.
The MPAA recommends that customers facing such issues buy the content again.
The DMCA has neatly snared users in a Catch-22. The Library of Congress says no court case has taken up the issue of space shifting, and it would be improper for it to change its ruling on the issue. No court case has taken up the issue of space shifting because the DMCA mandates that circumventing any copy protection scheme, even a horribly broken one, is automatically illegal. Since ripping a DVD is automatically illegal, fair use cannot be a defense.
Peace of mind is worth a few bucks a month
The MPAA and RIAA cannot be trusted. ISPs have conflicting interests and Americans are often restricted to 1-2 ISPs. In my case, Time Warner Cable is the only option. The arbitration process is an unknown, and the MPAA has openly lobbied against the kinds of common sense space shifting that people expect when they buy a DVD or Blu-ray disc.
The entertainment industry has taken every opportunity to demonstrate that it has no interest in dialog, measured response, or careful deliberation. Men like Chris Dodd and Cary Sherman have pulled every string and played every card with the goal of hammering people and businesses into compliance, regardless of the collateral damage.
So I’m done. I’m opting out. If my current service isn’t sufficient to the task, I’ll find another service (Tor? A private VPS?) that is. $9.95 a month is a small price to pay compared to the headache of tussling with my ISP over potential piracy notifications.