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by Brett Thomas on March 6, 2013 in Staff Editorials

Six Strikes is live in the US, and the Internet is full of its usual rage. Rather than jump in swinging with both fists, Brett set down his editorial pen to let some truths come out before grabbing his own pitchfork and torch. With a little more knowledge and less gut reaction, he jumps to the defense of Six Strikes as the abused pop star that he feels it is.

Introduction, Internet Cut-offs, Process Uncertainties

Well, the day has finally come and gone – America’s “Six Strikes” rule came into effect last Monday, and two of the biggest ISPs in the US had adopted it by Wednesday (Verizon and Comcast), with Time Warner joining in by week’s end.  Amidst all of the wailing and gnashing of teeth, the Internet… ticked right along as usual.   Rather than just spraying out mindless vitriol like most of the technology world, I figured that I’d do the Techgage thing and actually take some time, read some of the laws and regulations, and come up with a bit more of a thorough (and less of a knee-jerk) opinion to share with you.

Of course, it seems like I might have been alone in that.  Coverage has spanned the gamut from “this is awful” to “I want to murder the creators,” and the outcry from the technorati has been the usual fevered pitch above that.  After some digging through not only the rules but also the media coverage of those rules, I have decided to don my best flame-retardant gear and send my opinion out into the inferno. 

Like Chris Crocker on YouTube crying out for his idol Britney, I have to say: 

  Leave Six Strikes alone!

Now, my opinion boils down to four clear questions and their apparent answers:

  1. Is the Six Strikes program well-defined enough to be a viable conduit to ferry legitimate content theft through in order to not clog the courts?  Not a chance, but it’s not meant to.  It’s the “soft landing” for the unhardened or accidental pirate.
  2. Is the Six Strikes program well-designed enough to prevent mislabeling offenses?  You’re funny.  Are you a comedian?  But seriously, you have six of them.  Even if one is an error (a nearly 17% rate, which I would think is unacceptable), it’s pretty clear what the other five are.
  3. Will the Six Strikes program actually impact intentional copyright infringement?  Nope.  Not on your life.  Where does anybody get the idea that you can actually impact that?  I’ll never understand.  That’s like trying to herd cats.
  4. Will the Six Strikes program actually impact casual copyright infringement?  Why yes, I do believe that it could.

Of all of these questions, only the first and  last one are truly germane to the topic at hand.  The other two are red herrings.  But why?  The truth is, I think most of the Internet’s angst completely misses the point of the Six Strikes program, expecting (or maybe hoping?) it to be the next SOPA or other equally dastardly legislation.

Britney Spears and Megadeth are both recording artists, that doesn’t quite make them the same.  They don’t have the same fanbase, the same music, the same content, or anything at all similar aside from the fact that they both perform and record songs.  Six Strikes isn’t SOPA, it isn’t Internet policing, it isn’t deep-packet inspection by ISPs.  And it shouldn’t be argued against as if it is.

Ain’t nobody gettin’ cut off

Let’s think of the value that these evil, heartless, money-grubbing companies have to gain from disconnecting your service: that’s right, a loss of your business.

The first thing that people argue about the Six Strikes policy is the following logical fallacy:  “The program says ISPs can disconnect you.  Therefore, at six strikes, you will be disconnected from an important public utility, your kids can’t do their homework, God kills a kitten and the world goes into meltdown.”  Let’s think about this for a minute – First, none of the mitigation actions outlined or accepted by any ISP currently using the six strikes rule includes disconnection, so let’s please stop acting like that’s the response to the first strike. 

Let’s think of the value that these evil, heartless, money-grubbing companies have to gain from disconnecting your service:  that’s right, a loss of your business. 

In the US, Internet service is a quasi-regulated industry where the cable providers seem to have a for-profit monopoly over the regions they service.  However, that’s not because the law dictates it to be so – it’s because laying cable and fiber is expensive and most companies can’t afford that kind of cash unless they can blanket a large enough area to make it viable. 

The minute that people start getting “cut off” from big companies like Comcast and Verizon is the minute that other Internet providers will have a market that would be worth the cost to the consumer (whether renting existing cables or laying their own) – and overall, would likely increase competition and bring costs down as a whole.  Internet service can now piggyback on telephone, cable, or airwaves (the new 4G LTE rollout across the nation makes a compelling option for non-streaming households to begin with, and can be tethered with other cellular plans) – it just wouldn’t make good business sense for the big guys to slice off good customers that will create demand for smaller guys who can choose not to participate.

Let’s not forget, this is a voluntary program that the ISPs are taking on to create a barrier between you as the consumer of their products and the content industry that doesn’t really do much but give them a bunch of crap.   They aren’t doing this for fun or to be the RIAA/MPAA’s bitches… they are trying to protect their business model and the people who pay them.

We don’t really know what they WILL do

Comcast and Verizon have both outlined that their mitigation plans “may include throttling, DNS redirection,” or even requiring the purported content thief to undergo some basic education about copyright infringement and the many alternatives (i.e., actually paying for stuff).  It will take a minimum of three strikes to get to this point… but neither company has outlined a particularly good plan for what happens when they actually get there.  Comcast released its warning notices for strikes 1, 2, 4 and 5 to Ars Technica a few days ago, signaling that the “bad stuff” probably happens at steps 3 and 6.  Verizon has been totally dark on the matter, and nobody’s even tried to get info from Time Warner.  What we can count on is that it will not involve the murder of kittens, snatching of first-borns or demonic rites. 

By not simply blanketing the Web with “Offense 1 will be …”, users that actually didn’t mean to infringe will be more likely to read the alerts instead of assuming that the content is known and unimportant.

Implementation of the program has been unclear at best, and what we do see involves a lot of “emailing to your email address” that most people don’t even know they have.  That on its own is a poor practice, but it’s one that would be able to very easily be changed by the ISPs.  Much of the curiosity now encircles those emails and their contents, as the basic notice provided does not outline any details of what exactly the user is accused of pirating. Even major media outlets are attacking this point, without any attention paid to the fact we’re missing a huge chunk of the info (one site even went on to talk at length about how these “notices” do not include any information about the specific infringement as a flaw in the system, therefore “charging the user with an unidentified crime”).

The notices that Comcast has chosen to make public are the generic “You’ve got mail!” notifications that come as browser popups, and are not the “actual six-strikes alert” that they are being purported to be.  If you read the (now well-publicized) alerts, they each outline that more details can be found in the emails sent to the offender’s accounts – so, in essence, we knew very little.  Now, the notices themselves are beginning to trickle out.  And guess what?  They contain all sorts of info – the date, the file in question, the method… pretty much everything you need to understand the potential infringement.

Why is the actual alert process so secretive?  I wish that I had an on-the-record answer for that, but I can suggest that my hunch is to prevent Joe Consumer from thinking that everything s/he is receiving is just an automated form letter that can be completely disregarded.   By not simply blanketing the Web with “Offense 1 will be …”, users that actually didn’t mean to infringe will be more likely to read the alerts instead of assuming that the content is known and unimportant. In a society so utterly desensitized to generic warnings, a little bit of secrecy can go a long way to getting people to take it more seriously.

Page List:
Top

1. Introduction, Internet Cut-offs, Process Uncertainties
2. Legal Standing, Targeted Users & Final Thoughts


  • Gasbandit

    So what do you have to say about the now infamous mistaken strike issued for a Guild Wars 2 mod?

    http://www.dslreports.com/shownews/123368

    It happened so damn fast after six strikes went active, we’ll probably see people getting six of these things by the end of the year.

    • http://techgage.com/ Brett Thomas

      To be perfectly honest, Gasbandit, I expect that there probably will be one or two misidentifications…but we also have to remember that there will also be a lot of people lying about having files misidentified.

      Whether or not this particular one is legitimate might be an interesting point – if it’s in error, that’s obviously not a great start (hence why I say things need to MATURE).

      However, let’s think for a moment about the off-chance that someone renames a file to appear as something else…There’s a lot more notoriety to gain by lying about the contents and posting it as erroneous than to say “man, they even caught my renamed file.” We also can’t even verify that this person really received a claim – as it’s a privacy issue and the ISPs are not able to confirm or deny anything. That leaves one anonymous source, claiming to already have proof that the system is a sham, because the filename matches to something else – but we have no clue about MD5 sums, etc. of the file in question.

      I’m just saying – it’s easy to believe it’s an error on six-strikes’ part. We can’t confirm it isn’t. But it’s also just as easy to think it might be an attention-seeking individual (we don’t know ANY of those on the ‘net) claiming something. In a world where everyone’s got at least a little reason to lie, it’s worth not jumping to conclusions.

  • Mxx

    And how do you explain this part? http://optimumdev.custhelp.com/app/answers/detail/a_id/3592/kw/cci

    If the review is not concluded in your favor, your Internet access will be temporarily suspended for 24 hours unless you call in to the Cablevision number provided on the notice.

    And if you call them I’m sure you’ll be talking to the same “security department” assholes that one used to talk to when Cablevision was capping upload speeds.
    So not only will you be slapped in the face by that bullshit AAA kangaroo court, but CV will also spit in your face after that.

    • http://techgage.com/ Brett Thomas

      That one kinda goes back to the fact of SIX strikes…that’s AFTER #6 and not challenging anything, and it’s 24hr, not permanent disconnection. If you read through the rest of that, it’s essentially saying “If you completely ignored all of our other notices and did not challenge anything all the way up to this point, we’ll flick the lights on and off so you actually pay attention for a minute.”

      Please bear in mind, I’m not saying this is a perfect system. But if you’re pirating stupidly enough to get caught by THIS system six times, maybe that’s not a bad thing!

      • Mxx

        And what if I’m NOT PIRATING and caught by this system six times? How do we know that this bullshit system even works properly?!
        This is what “Experts” think of it: http://www.copyrightinformation.org/resources/independent-expert-assessment-of-markmonitor-antipiracy-methodologies/

        Just shows how much oversight it has and how they are interested in the truth.

        • thewolfkin

          it’s been suggested by the author that the system is efficient enough such that false positives although possible for a single strike are incredibly unlikely to read the 6th. If you disagree with that then fine but the concept has been addressed.

  • Kayden

    I want to address something specific before anything else. When I read this:

    “my mother thinks sharing a Kindle account is “no different than loaning her my paperback!”, we have a consumer problem”

    I had a few reactions to it but mainly I had a question, why do you think this ONLY a consumer problem? Let’s look at the printed published media over the last 100 years, when you bought a paperback book, magazine or etc, it was yours. This meant you could loan it or give it to whoever you wanted, in and out of your home no questions asked. Now, we are being forced (yes forced) and policed to pay for everything we want to be informed about or just enjoy because it’s tied to an account.

    This is a problem for those who have been sharing published media for decades because they (myself included) can’t share the way we are accustomed to or as privately, it all has to be documented so they can sue you for copyright infringement, when before digital media, customers were encouraged to share it with others! I personally see this sort of thinking as a way to restrict information sources and increase profits, more so with books then mags honestly. I mean you could let a cousin, sibling, aunt, uncle and etc borrow a book but there is NO option to let someone borrow a book you purchased from account to another.

    This is also a corporate problem as well because they could offer this and the book be returned to the parent account in 90 days or something but, they don’t offer it even with centralized databases like Amazon kindle bookstore. I said before I think this is to restrict information and increase profits and I honestly believe it because if this wasn’t true, we wouldn’t see restrictions on sharing accounts or being told that sharing is wrong and the publisher needs to be paid from every person who reads it.

    This is far from a black and white situation and no one side is perfect but, when consumers have no options to share as freely as they use to because of corporations restricting access through digital means and implementing its will over the digital world through companies who provide access to the digital world. Why is it wrong to continue to try and share like we freely (not being tracked or etc) used to or currently do in the real world in the digital world?

    • http://techgage.com/ Brett Thomas

      I think there are some good points here, but many of them are red herrings in the discussion and haven’t been answered since the advent of digital media being a true replacement for physical media. And none of them justify content theft.

      We forget the weaknesses of physical media while we idolize our rights with it – when your paperback got pages ripped up by your little brother or nephew or niece or child, you went out and bought a new one. When your CD got used as a coaster or your cassette tape got played until it broke, you went out and bought a new one. If your friend who borrowed your media lost it, they (or you) went and bought a new one – all at full price.

      This was a limitation of the system never present in the digital generation, and it rarely gets discussed. Sure, you might own a book for years – if you take care of it. You might also own that book for a month and lose it due to a variety of causes, with your only recourse to be plopping down another $10-20 on a new copy!

      The digital shift has allowed us constant archiving and instant access across a variety of platforms, but we want to pay LESS now than we ever did before – and we ARE. eBooks cost half of a paperback. Many CDs on iTunes are under $10 instead of $12-20 in stores. But we bemoan that these things cost anything and that we should be able to share and resell them at will. Nobody remembers that that convenience was built into the price of the physical media, and we probably didn’t really get our “money’s worth.”

      Borrowing and resale rights are different on digital media because the original purchaser is presented the ability at any point to retain his or her original. If you loan a paperback, you don’t have it for 90 days while your friend does. If you loaned a CD (before burners, at least), you had the same problem – you were out that CD for a little while.

      These user “rights” are things we have needed to appropriately discuss in the digital generation for years, but to be honest I’ve also been covering it for years (since 2004, in fact, when I wrote my first article on it) in technology media and the truth is I hear a lot more “I want I want I want” from both sides than any meaningful discussion.

      When it comes to this particular topic (the six-strikes rules), borrowing is a red herring that shouldn’t even enter in – these things are against the EULA you agreed to when you signed up/bought the content/etc. and if you didn’t want to play by those rules, you could have pressed “decline.” I grow weary of everyone blindly skipping through these things and then later going “well, I’m just going to do it anyway, because I should be allowed!”

  • Kougar

    While you mention the unlikelihood of six false strikes in a row, I’m not convinced it’s so unlikely. If I spoofed an IP address and binged on TPB overnight using that one address, would that create six strikes in a single night against the account holder that got wrongly accused? The content industry is the one sending in the strikes, so if they sent six notifications at once to the ISP itself, does that count as six strikes or one? Past precedent would indicate it would count as multiple strikes.

    This still doesn’t exactly resolve things for multi-user scenarios either, where one account is split across several renters. Or perhaps a husband and wife, where one uses the other’s internet account to download a few songs before they break up. Which was apparently enough to land a French man fines, travel expenses, and months in court even though France has a 3-strike policy. http://arstechnica.com/tech-policy/2012/09/france-convicts-first-person-under-anti-piracy-law-even-though-he-didnt-do-it/

    I’d also be curious to know just how well IP tracking will work once US ISPs begin deploying IPv4 address sharing. Just as IP tracking ends at the cable modem but doesn’t identify between multiple computers attached to a router on that modem, so might IPv4 address sharing across a range of users. It will be interesting to find out once the US allotment of IPv4 addresses runs out, which should be sometime within a year. (The organizations that control IPv4 allotment for Europe and Asia ran out in 2011-2012 already)

    • http://techgage.com/ Brett Thomas

      Kougar, I think this in particular is a valuable point. However, I’ll be completely honest – spoofing an IP like you are suggesting is not nearly as “foolproof” as you might think. The MAC address for the originating packet will be signed into each packet coming from your router, meaning that if person X (whom you spoofed) challenges that, they will see in very quick order (looking one layer below the IP addy) that the packet IP does not match with the MAC address that IP was assigned to by their very own DNS.

      Also, when you challenge, you aren’t just challenging ONE strike – the rules allow an ISP to not require challenge steps until you reach a mitigation stage, that part is true. But when you hit that, you aren’t only allowed to challenge the most recent – you can challenge any and all of your strikes. What and how they archive for that information is unknown and to be honest might open up a whooooole different problem with the program, but it would protect from the dystopian identity theft model you’re covering.

      • Kaffecruise

        Uh what, since when does mac adresses get added to packets used on the internet?

        • http://techgage.com/ Brett Thomas

          Well, that’s just it, Kaffecruise. The ISP is the one implementing this program. So the hop from your router to the ISP will immediately tell the ISP whether that’s genuine or not, it’s part of every frame. I guess that’s what I was going for without a long tech discussion regarding ethernet frames, tcp/ip protocol and the OSI layer. But, to be pedantic, you’re correct – it’s all about hops and I’m referencing that the hop in question here would be at the ISP’s level to be able to examine.

          • Kaffecruise

            But then they would have to record every packet you send (and recieve i guess), no (sane) ISP is going to do that, wouldnt they need a warrent to do so?

            If someone just sits idly by and recording a torrent swarm, or monitoring someone who downloads from a FTP or website, they would not be able to see the mac adress (which is very easily changed anywyays).

            I dont feel this is being pedantic, it goes to show that spoofing an IP and somehow using mac adress to prove who is who is not going to happen, in real life, in any case, most people have their own router so the ISP would not be able to see the computers inside the LAN.

            How would you even spoof someones IP and use it for piracy, without being on the same LAN (or having access to a computer or device on the LAN)?

          • http://techgage.com/ Brett Thomas

            Running out the door but wanted to further this discussion:
            1) spoofing IPs for piracy is easy and actually happens all the time. You can actually change your packets to look as if they’re coming from a completely foreign IP if you know how.
            2) The ISP would only have to record the MAC Frame wrapped around the initial outgoing SYN packet for each new connection. Believe me when I say that’s not NEARLY as much data as you think and that it happens all the time on corporate networks (though usually they use the IP headers instead of the MAC frames). I’m not even sure privacy laws would cover this if you dump the data of the packet, as then all you have is a record that the connection happened – almost like a phone bill. In fact, count the number of packets sent/received and you have the content of one line item (SMS or call) on your cell phone bill!

            Needless to say that sounds pretty big-brother but since I know it already happens at corporate levels and is already mirrored on the telephone side of utilities, I can’t imagine it difficult to implement on one step larger of a scale…if it isn’t already.

            However, please keep in mind that at this point we’re waxing hypothetical – which is fine, but readers of this discussion should know that none of this is actually in any way a known part of Six Strikes. It brings up some interesting privacy concerns and at the same time some protections, but we don’t have any real info that this is what they’ll be doing to protect user rights. When it comes to whether it’s viable, though, it is – and it’s easily implementable, whether or not that’s a good thing!

    • http://www.facebook.com/deathspawner Rob Williams

      I -really- can’t see them sending out more than one strike per day. These things are meant to give you warnings, and all six in one day isn’t a warning at all.

  • TymonTheThief

    Leave six strikes alone? You sir are a moron and an obvious RIAA/MPAA lapdog. http://www.cinemablend.com/games/game-mods-get-hit-with-dmca-notice-from-six-strikes-policy-53305.html

    Proof enough of that this system needs to be destroyed. Since when is game mod distribution considered copyright infringement?

    • http://techgage.com/ Rob Williams

      You might want to read the entire article before insulting the author. He’s also already responded to that game mod issue in these comments.

      • TymonTheThief

        I did actually read it. And the person apparently ignored the fact there have already been tons of ‘mistaken’ strikes given out already. 17% chance he says? I know of four ‘strikes’ people have complained about who do not even USE bittorrent. Likewise, the MPAA/RIAA has ALREADY taken people to court in the past and sued them for ‘file sharing’ mistakenly when people in the past had NO file sharing software on their computer at all, have never had any, and so on. These ‘mistakes’ sure do happen a lot if it is only a 17% chance. People who are going to stand up for such an obviously corrupt system bent on protecting the greedy content distributors either have not done proper research, or the only research they have done is either poor, or they read the stuff the copyright distributor people are giving out. You know, the entirely impartial crap, that suggests every single download you make is illegal even if it’s covered by fair use doctrine? Yeah, surprise surprise people, not every download or stream you make that contains copyrighted stuff is piracy, even if they do count it as such, and (Which is what makes the six strikes program flawed to the core to begin with) you can’t account for that without paying 35 bucks and having to go to a hearing just to show you’re covered by fair use? Guilty until proven innocent…Isn’t that one reason the USA declared independence? Because of crap like this? Hrrrmmm…

        • http://www.facebook.com/deathspawner Rob Williams

          Brett is not claiming that 17% is definitive. There are of COURSE going to be rarities that occur (like in ANY system) – and those are the ones that stand out. It’s no surprise at all that there are wrinkles to iron out. If this keeps up, and people do continue to receive notices for non-infringing material, then that’s when the courts need to be brought in and the Six Strikes system shut down due to its inefficiencies.

          • http://www.gamingblend.com/ William Usher

            Wait until after it gets out of hand.

            I love that way of thinking.

          • http://www.facebook.com/deathspawner Rob Williams

            I didn’t say “wait until it gets out of hand”, I said IF it does.

  • http://www.callnerds.com/sacramento/ Computer Repair Sacramento

    Even if you aren’t personally involved in illegal content sharing, account holders are responsible for the actions of anyone on their network. Program participants hope that receipt of a warning will encourage account holders to take measures to restrict unauthorized activity on their network by talking to household members, limiting unauthorized access by encrypting their WiFi network, and/or installing software or hardware to block access to peer-to-peer sites.

  • http://techgage.com/ Marfig

    I’m usually for anything that helps change our societies behavior regarding copyright infringement. One of the biggest cancers I’ve been had the displeasure of seeing growing for the past 5 years is that of the illustrious anonymous that speaks openly about their pirating activities in public channels. We’ve hit rock bottom in ethical behavior on the web. What used to be a embarrassing private admission is today a shameless display of empowerment. We truly should be ashamed of ourselves.

    But truth the matter is that copyright infringement is but an expression of a much wider problem. That of copyright laws. And herein lies the rub. For while our governments insist in not reviewing these laws that have grown to become a veritable attack on consumer rights, any anti-copyright infringement policy like this Six-Strike “law” will always be seen by me as completely unfair, autocratic and worth fighting against.

    I rather have a much more balanced set of copyright laws. Then they will have all my support in being enforced with even criminal charges if we must. What I will never support is attempts at enforcing a set of laws that have been growing increasingly more damaging of my rights as a consumer. For that reason the Six-Strike “law” is it too a cancer that should be fought.