ISP's Five Strikes Plan: Railroading, MPAA/RIAA-Style

Another day, and more questions are being raised about the "voluntary" (if you consider the US government telling ISPs they had better agree to something, "voluntary") agreement by ISPs to act as copyright cops and punish people accused (not convicted) of infringement. We already have a big issue with any plan that's based on accusations, rather than convictions. If the history of the DMCA has taught us anything, it's that people abuse these accusations regularly, and it can create massive unintended consequences and chilling effects. It's sad that ISPs would agree to such a program in the first place, but the details keep making it seem even worse.

We've already pointed out that it'll cost you $35, if you want to protest your innocence, but that's just the beginning. You see, you can't just protest your innocence. Oh no. That would be way too forgiving. Instead, you're limited to one of only six defenses, which some have pointed out fall way short of what copyright law allows. In other words, even if you aren't violating someone's copyright, just because you're accused of doing so, you might not even effectively be able to show that you're innocent, if your defense isn't one of the six official ones.

That's pretty ridiculous.

The official (misnumbered -- there's no fifth defense) list is as follows:

(i) Misidentification of Account - that the ISP account has been incorrectly identified as one through which acts of alleged copyright infringement have occurred.

(ii) Unauthorized Use of Account - that the alleged activity was the result of the unauthorized use of the Subscriber’s account of which the Subscriber was unaware and that the Subscriber could not reasonably have prevented.

(iii) Authorization - that the use of the work made by the Subscriber was authorized by its Copyright Owner.

(iv) Fair Use - that the Subscriber’s reproducing the copyrighted work(s) and distributing it/them over a P2P network is defensible as a fair use.

(vi) Misidentification of File - that the file in question does not consist primarily of the alleged copyrighted work at issue.

(vii) Work Published Before 1923 - that the alleged copyrighted work was published prior to 1923.

Take, for example, that last one. Note that it doesn't say "work is in the public domain." It just says "work was published before 1923," meaning that the work is probably (though, with sound recordings, not definitely) in the public domain. Why not just have a defense that says "work is in the public domain"? There are works that were published after 1923 that are in the public domain -- including works that people put into the public domain, or other works that were published after 1923 and before 1978, which didn't have a copyright notice (among some other options). So why aren't those allowed as defenses?

It appears that you can get into serious trouble here even if you're sharing public domain works.

Even worse, the plan says that you can use the defense that you have an open WiFi network only once:

Except as set forth herein, this defense may be asserted by a Subscriber only one (1) time to give the Subscriber the opportunity to take steps to prevent future unauthorized use of the Subscriber’s account. Any subsequent assertion of this defense by a Subscriber shall be denied as barred, unless the Subscriber can show by clear and convincing evidence that the unauthorized use occurred despite reasonable steps to secure the Internet account and that the breach of such security could not reasonably have been avoided.

This assumes that open WiFi is a mistake, rather than a choice. There are plenty of good reasons why one might want to offer an open WiFi connection, and there are ways to do so safely. But under this plan, they could get in trouble for it, despite it being perfectly legal.

So, let's see: under this plan, people are guilty until proven innocent, they have to pay to protest their innocence, their "defenses" are greatly limited, they can still get in trouble for sharing public domain content... and they can get in trouble for offering a perfectly legitimate open WiFi network. I'm curious how that's helping to "win the future," as IP Czar Victoria Espinel stated in response to this "voluntary" deal.

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Tina Fey Gina Philips Jamie Gunns Ananda Lewis Kate Bosworth