2010 State of the Net Three Strikes Panel — what MPAA and RIAA don’t want you to know

Yesterday, the MPAA and RIAA made a giant political misstep by refusing to participate in a debate about three strikes. In doing so, they exposed the public and a number of US policy makers to policy that would strip Internet subscribers of their constitutional due process rights.

On Tuesday and Wednesday, I attended this year's State of the Net Conference beautifully orchestrated by Tim Lordan and his crew at the Internet Caucus Advisory Committee. 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?"

"Three Strikes," aka "graduated response," aka "shock and awe" are all terms for 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.

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: three strikes, 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.

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