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.”
Jon Newton
January 29th, 2010 at 10:36 am
This is the sort of thing to inspire ‘domestic extremists’ into organising civil disobedience. I’d imagine they’d come up with something like a global copyright infringement event spanning three days. On the third day the copyright holders could be given the option of disconnecting themselves from the Internet. It would be pretty much equivalent to disconnecting the public.
Do they really want to sue their fans?
Do they really want to hide from the public behind paywalls?
Do they really want to disconnect their audience?
Are they really this stupid?
January 29th, 2010 at 7:02 pm
@Crosbie
“Do they really want to sue their fans?”
Yes, they do IE Lars, Axel, etc
“Do they really want to hide from the public behind paywalls?”
Another yes
“Do they really want to disconnect their audience?”
Yes – Bono
“Are they really this stupid?”
Not all, but some of them think they can strong arm people into conforming with whatever pay plan/scam the RIAA wants to push on people. It didn’t work with the lawsuits, so now they want three strikes. If that goes through it won’t work, then they’ll come up with something even more draconian. Study the history of the war on drugs in the U.S. to get an idea of this type of mentality.
January 29th, 2010 at 7:15 pm
@ Monkey:
Three strikes is just a component of ACTA, and it doesn’t get any more draconian than that.
The lunatics are in charge of the asylum. But their lunacy represents the beginning of their end.
I said somewhere else 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.
Even if Three Strikes is rammed through, it won’t last. The genie is out of the bottle and there’s no pushing it back. Where can the cartels go from here?
Nowhere.
Cheers!
January 29th, 2010 at 7:24 pm
@monkey Are we comparing the drugs scene to the music industry? Surely this isn’t THAT serious? Kids aren’t pointing guns at people due to mp3’s on that side of the pond, now, are they? (jus’ kiddin’ of course!)
January 29th, 2010 at 7:30 pm
@monkey and Crosbie: The real problem with Three-strikes legislation (Digital Britain, for example) is that it isn’t really about copyright and it isn’t really about music or film. The way it is being presented, what seems so obvious and clear to me, is that it is, indeed, giving the government control. This is an ‘internet police’ state being introduced. And although many people thought I was a nutter for saying so, when you read the bill, it is exactly as is written. It’s not really about music, creatity, the arts, or whatever. In my opinion, this sort of bill is opening up a can of worms. The genie being out of the bottle (with music et. al.) is all simply minor compared to the control that this kind of legislation appears to be introducing. That’s what’s more dire. (IMO).
January 29th, 2010 at 7:39 pm
sorta like, how do you interpret this:
http://www.publications.parliament.uk/pa/ld200910/ldbills/001/10001.13-19.html#j158
January 29th, 2010 at 11:07 pm
@Indiana:
This Digital Economy Bill is obviously written with the same non-committal, non-specific “language” used to write other such bills. It would be “interpreted” by the lawyers, the judges, and anyone else involved the same way the other bills are – in whatever way they choose!
This practice of writing these bills this way is deliberate, as it serves the Corporate Agenda by putting the People at the disadvantage of having to defend against the creative charges that come from such language.
The same language is used in all sorts of “agreements”, such as the “service contract” your internet service provider puts out. Like them, the Digital Economy Bill contains nothing but foundational clauses that set the stage for charges directed at the users only – no mention of what user rights should be protected from others (such as providers or any suitors that would have a user disconnected).
If such a bill were passed, I wouldn’t doubt the IP holders would expect the government to also treat it in another respect like a typical “service contract”, and have it quietly “revised” every so often.
January 29th, 2010 at 11:40 pm
The comparison is valid, I’m comparing the mentality of the RIAA/MPAA to the mentality of the war on drugs crowd. I won’t get into the Harrison act: http://en.wikipedia.org/wiki/Harrison_Act, or America’s first drug czar: http://en.wikipedia.org/wiki/Harry_J._Anslinger here, suffice it to say that the war on drugs has been conducted by the U.S. since the early 1900’s, has failed, yet continues to this day. As for the people in the drug trade with guns, it’s the very illegality of drugs that promotes this, you don’t have people shooting other people over the sale of alcohol, although you most certainly did during prohibition. Over the years various strategies have been tried, none have worked. The mentality of the RIAA/MPAA is exactly the same, even before napster they were complaining about home taping and vcrs.
According to this p2pnet article they made 15.8 billion dollars. http://www.p2pnet.net/story/34470
That’s a lot of lawyer/lobby money, so I suspect if three strikes passes and doesn’t work, or fails they will be pushing for something else even more odious. I was not happy to see that 15.8 bil figure, as it means those assholes will be around for quite some time to come. Believe me Jon, I would LOVE to see those dinosaurs drown in the tar pit and become extinct, but 15.8 billion dollars is a pretty heft branch to help them crawl out of it. Don’t get me wrong, I’m NOT saying people should roll over, all I’m saying is don’t underestimate the enemy.
January 30th, 2010 at 3:17 am
@Indiana #5
Probably the best primer on corporate use of propaganda that I have come across comes from this interview with Noam Chomsky (conducted by Diane Krauthamer). In the U.S., government control means corporate control. Sounds to me like Britain is catching up in that respect.
“NC: …In fact, a rather striking aspect of business propaganda in the United States is the demonization of government, starting after the Second World War.
The Second World War ended with a radicalization of the population in the United States and everywhere else, and called for all kinds of things like popular takeovers, government intervention, and worker takeovers of factories. Business propagated a tremendous propaganda offensive. The scale surprised me when I read the scholarship—it’s enormous, and it’s been very effective. There were two major targets: one is unions, the other is democracy. Well, [to them] democracy means
getting people to regard government as an alien force that’s robbing them and oppressing them, not as their government. In a democracy it would be your government. For example, in a democracy the day when you pay your taxes, April 15, would be a day of celebration, because you’re getting together to provide resources for the programs you decided on. In the United States, it’s a day of mourning because this alien force—the government—is coming to rob you of your hard-earned money.
That’s the general attitude, and it’s a tremendous victory for the opponents of democracy, and, of course, any privileged sector is going to hate democracy. You can see it in the healthcare debate.
The majority of the population thinks that if the government runs healthcare, they’re going to take away your freedom. At the same time, the public favors a national healthcare program. The contradiction is somehow unresolved. In the case of the business propaganda, it’s particularly ironic because while business wants the population to hate the government, they want the population to love the government. Namely,they’re in favor of a very powerful state which works in their interest. So you have to love that government, but hate the government that might
work in your interest and that you could control. That’s an interesting propaganda task, but it’s been carried out very well. You can see it in the worship of Reagan, which portrays him as somebody who saved us from government. Actually he was an apostle of big government. Government grew under Reagan. He was the strongest opponent of free markets in the post-war history among presidents. But it doesn’t matter what the reality is; they concocted an image that you worship. It’s hard to achieve that, especially in a free society, but it’s been done, and that’s the kind of thing that activists in the IWW have to work against,right on the shop floor. It’s not so simple, but it’s been done before.”
January 30th, 2010 at 2:03 pm
I’m not a corporate boy by any means, but I think Noam is out of touch with reality here. First and foremost, the U.S. tax code is very complicated, and if you make mistakes the I.R.S. is very unforgiving and has been known to dole out harsh fines. I had a friend of mine get screwed by them, as his soon to be ex wife filed married but filing separately the last year of his marriage. He was unaware of this, and thought she had taken care of his taxes, until he got dragged in front of the IRS for not filing. They were up his ass for years after that, until he had to hire a lawyer to get them off his back, after already having paid them an enormous amount of money in fines. A lot of people make various mistakes, have to deal with the I.R.S., and I can tell you NONE of them are looking forward to April 15th as “a day of celebration” and trust me that has nothing to do with corporate propaganda. As far as “getting together to provide resources you decided on”, since WHEN did I decide to invade Iraq? If you looked at polls, the majority of people were NOT in support of that occupation yet we are still there, paid for by tax money. So no, I’m not dancing with joy over having to wrestle with cryptic tax laws and then seeing my money go to MANY endeavors I in no way endorse or support. Sorry for the off topic post, but there was no way I could let a comment saying the only reason I’m not throwing a joy party on tax day is because I’ve been brainwashed by corporations.
January 30th, 2010 at 6:00 pm
Monkey,
Noam is talking about a democracy in the part you quote. The part that pertains to the U.S. is the next sentence. “In the United States, it’s a day of mourning because this alien force—the government—is coming to rob you of your hard-earned money.” I’m pretty sure neither you or I have ever lived in a democracy. I agree with you (and Noam) that April 15th is not a joy party. Who wants to pay for corporate wars, corporate bailouts, and corporate privilage? Does that sound at all like a government run by the people? You are completely misreading Chomsky here. In fact, with your railing against the IRS, you are proving his point. The propaganda that it’s the government that is oppressing you blinds you to the fact that it is corporate influence on the govenment. Did you ever vote to invade Iraq? Did you ever vote to bail out banks? Are you getting a vote on ACTA? So, do you live in a democracy? See?
January 30th, 2010 at 6:29 pm
It’s interesting, though, when you have corporations like Intuit lobbying the government against simplifying the tax code. Kind of gives one pause, no?
January 30th, 2010 at 8:19 pm
The U.S. is not a democracy, it’s a republic, much more like ancient Rome than Athens, and everyone knows what great, honest government Rome had. I think the forefathers had the idea that the congress would consist of mostly gentleman farmers, who would serve a few terms and go home. Such individuals would know how to run a small business and appreciate the value of labor. Instead what we have is 99.9% lawyers, who understand the value of lies, deceit,money, and never leave office.
January 31st, 2010 at 12:22 am
@ Steelwolf
Excellent example.
January 31st, 2010 at 9:30 am
@ Monkey:
“Instead what we have is 99.9% lawyers, who understand the value of lies, deceit,money, and never leave office.”
When Hunter S Thompson said “The music business is a cruel and shallow money trench, a long plastic hallway where thieves and pimps run free and good men die like dogs” he could just as easily have been referring to politics.
Cheers!
January 31st, 2010 at 11:35 am
@Jon,
As cool as that sounds, it’s unfortunately a pretty famous misquote. I think the intent stands, though, and as you said could easily be applied to any head of the “content industry.”
Here’s the original:
January 31st, 2010 at 12:08 pm
@ SteelWolf:
“it’s unfortunately a pretty famous misquote”. It is indeed, as I’ve said a couple of times in p2pnet.
But why “unfortunately”? As you say, “the intent stands”. And that’s the point.
Cheers!