This Week in “Three Strikes”
This Week in “Three Strikes”
This Week in “Three Strikes”

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    In the wake of Comcast’s Bit Torrent debacle, ISPs and copyright holders alike have been clamoring to find the next network management magic bullet, which will single-handedly curb piracy, solve the problem of network congestion and breathe new life into flagging physical sales of entertainment products. Unfortunately, it seems that there’s a buzz building around a technique that the ISPs and studios are euphemistically referring to as “graduated response”–but which we’ve been calling “three strikes”. As I’ve previously mentioned, using three strikes to combat piracy seems a bit like using a sledgehammer to kill an ant. Worse yet, a three strikes system would create an extralegal regime whereby users could be kicked off of the Internet without a court order–a fact that raises a number of legal red flags. Regardless, ISPs and governments around the world are increasingly looking to three strikes as a viable option for combating music and film piracy. Here’s a brief look at this week’s biggest three strikes stories:

    Eircom Brings Mandated Three Strikes to the Emerald Isle

    Let’s start with the bad news. This week, Irish ISP Eircom announced that it will begin notifying and ultimately, terminating the connections of users who are suspected of sharing copyrighted material online. Interestingly, this three strikes mandate is the result of a court settlement, which, in turn, is the result of a music industry lawsuit against Eircom. The big four record labels–EMI, Sony, Universal and Warner–sued Eircom in 2008, claiming that it was liable for its users’ piracy and demanding that it actively filter for copyrighted material. Eircom is apparently pleased with the results of this settlement, as it will not require the ISP to install any additional hardware or software on its network. Ominously, the big four have warned that they will take “’all necessary steps’ to put similar agreements in place with all other internet service providers (ISPs) in Ireland.”

    Why is this so bad? Our pal Cory Doctorow over at Boing Boing sums it up quite nicely:

    After all, you don’t hear the record labels offering to have their Internet connections cut off if they send out three false copyright accusations. The Internet’s a single wire that delivers freedom of speech, of assembly and of the press — it’s a conduit for civic engagement, health care, employment, education, distant family, love and life. Disconnecting people from the Internet on the basis of an unsubstantiated accusation, without a court order, without a chance to defend yourself against your accusers, without a chance to see and challenge the evidence — it’s positively medieval. Shame on Ireland — so much for their high-tech economic miracle.

    UK Seeks to Mandate Graduated Response

    This week, the UK government released its “Digital Britain” report, which contains over 20 recommendations that aim to help “secure Britain’s place at the forefront of the global digital economy”. Among them is a recommendation that the government craft a “Code on unlawful file-sharing” that ISPs would have to abide by. Part of this code would entail a graduated response to P2P filesharing, though, as Ars Technica duly notes, “it sounds remarkably balanced compared to some proposals”. Under the Digital Britain model, ISPs would be required to pass along notices, though, at the moment, there’s no mention of disconnecting users without a court order. Furthermore, the code would describe both standards of evidence and an appeals process, both of which we’ve yet to see in any other three strikes proposal. The report notes that this is “new and difficult territory, and we want to get it right”. Given that they’re addressing at least some of the questions that such a regime raises, we’d say that they’re off to a good start.

    However, there are still plenty of reasons for concern. While the report does not specifically mention the prospect of kicking users off of the Internet without due process, it does mention that “additional sanctions” might be added later–hinting at the possibility that harsher measures might be around the corner.

    Another one of the Digital Britain report’s proposals, one that would create a “Rights Agency” where ISPs, copyright owners and users could address matters pertaining to copyright infringement, has set off even more alarm bells. While the report reassuringly states that its aim is not to “support business models that will become increasingly obsolete,” the Open Rights Group has warned that consumers are not adequately represented in the Rights Agency described by the report.

    Comcast Sends DMCA Notice to the Wrong User

    I’ve been a Comcast Internet and cable television subscriber for three years now and during those three years, I’ve learned that if there’s one thing that Comcast does well, it’s ensuring consistently terrible customer service across the board. I’ve had to call the company’s customer service line repeatedly just to get them to admit that they mistakenly charged me more than double what my monthly bill should have been, I’ve had to complain that I was billed for services that I did not sign up for nor receive and when I moved to Washington, I had to pester the company for a solid month before I ever received service. So it comes as no surprise to me that Comcast has again managed to screw up a matter of great import: DMCA notices.

    Earlier this month, Comcast user John Aprigliano revealed in a blog post that he had received a DMCA notice from Comcast for illegally downloading the film Cadillac Records. There was just one minor problem: not only had Aprigliano not downloaded the film–he had never even heard of it. A series of calls to Comcast customer service ensued with Aprigliano desperately attempting to convince the rep on the other end of the line of his innocence (Aprigliano has paraphrased his interactions with the company’s customer service reps in his post–calls that will likely sound eerily familiar to anyone who’s ever tried to convince Comcast that it made a mistake).

    In the end, Aprigliano got to the bottom of the mystery. As it turns out, Comcast had provided Aprigliano with a new cable modem a few months prior to sending the notice but had failed to note that fact. As a result, when the new owner of Aprigliano’s old modem saw fit to illegally download a film, Aprigliano was blamed. Aprigliano finally managed to corner a Comcast rep by noting that the MAC address of his modem did not match the MAC address on the notice that he received. Unfortunately, the average user probably has no idea what a MAC address is, let alone that MAC addresses, unlike IP addresses, don’t change over time.

    If this report offers a taste of what’s to come if and when Comcast implements a three strikes program, we’re likely in for an awfully bumpy ride. Speaking of which…

    Comcast and AT&T Reported to be Among the RIAA’s Three Strikes Partners

    Back in December, I reported on the RIAA’s new anti-piracy initiative: convincing ISPs to become three strikes copyright cops. At the time of the initial announcement, the RIAA had declined to name any of its ISP partners but according to CNET, AT&T and Comcast are among the ISPs that have agreed to play ball with the RIAA. While this isn’t surprising in the least–AT&T has publicly admitted that it’s interested in implementing a copyright filtering system while Comcast is, well, Comcast–it is a deeply troubling turn of events, considering that Comcast and AT&T are among the largest ISPs in the country.

    Three Strikes Support Flagging?

    I started this post on a low note, so let’s end it on a high one. As Canadian IP lawyer Howard Knopf notes, New Zealand’s three strikes regime, which goes into effect next month, is encountering massive opposition down under. The latest news is that LIANZA, an association that represents 460 public, educational, commercial, industrial, legal and government libraries in New Zealand, has stepped in to register its disapproval with the plan. Meanwhile, in the UK, it looks like legislators have largely backed away from a government mandated three strikes plan, one that would have required ISPs to give repeat suspected infringers the boot. Knopf takes this evidence to mean that three strikes may well be on its way out. I’m not quite so optimistic, though for the sake of Internet users everywhere, I sure hope he’s right.