Leave Six Strikes Alone!

Six Strikes Bowling Pins
by Brett Thomas on March 6, 2013 in Editorials & Interviews

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.

Legal Standing, Targeted Users & Final Thoughts

This isn’t a courtroom

Everywhere you look, media are lambasting the fact that challenging the copyright infringement claim will cost $35 and that (at least as far as Comcast goes) cannot be done until you reach mitigating steps.  However, call me old-fashioned, but I’m failing to see where this is a problem. 

I can completely understand how a person might be a little upset to get one strike (maaaaaaaaaaaaaaaaayyybe two) “accidentally.”  But if all you get from that is a warning, what is the problem?  If it was accidental or mislabeled, you have nothing to fear.  If the “accident” was your fifth or sixth strike, well… what about the other four or five?! 

This is why it’s the Six Strike program and not the Two Strike program or One Strike program that we all know damn well the MPAA/RIAA would much rather have.  It’s not because every strike until the mitigation measures is okay or acceptable use, it’s to account for possible errors and to allow you to make corrective actions before becoming the next Jammie Thomas.

Six Strikes is about the ISP imposing a barrier BEFORE the MPAA/RIAA can haul your ass into court.

People are looking for appeals, legal channels and “innocent until proven guilty” rights inside of a private contract.  I’ll save you the magnifying glass on the fine print – that doesn’t exist.  The government doesn’t get domain over the ISP terms of service outside of prosecuting clearly illegal use (child pornography, blatant IP theft, cybercrime, etc.).  Six Strikes is about the ISP imposing a barrier BEFORE the MPAA/RIAA can haul your ass into court, where you would still have all of those rights – but a much higher dollar value at stake. 

Think of it similarly to an arbitration clause.  “If they accuse you of screwing up, we get six chances to work together with you, our client, to deal with it internally before they can really come after you” is what this translates to.  There aren’t appeal rights or “innocent vs. guilty” concepts here.  “You have been accused of stealing, so did you know that you probably didn’t have to?  Here’s where you can get this legally.”  If it was someone hijacking your WiFi, you now know to secure it.  If it was your kid using your connection inappropriately, please be a parent and discipline/educate them.  If it was you, well… please stop, or we’ll yell “stop!” again.

It’s not likely targeting anyone who cares enough to read this article

It doesn’t take a degree in rocket science or more than about three minutes of research to realize that the Six Strikes law has nothing behind it that would genuinely interfere with knowledgeable pirates or piracy.  First of all, using a VPS (aka “seedbox”), most Usenet services, Tor, many private torrent trackers or any other number of mitigating effects would completely cloak you from your ISP’s “watchful eye.”  Any halfway intelligent pirate already uses one or more of these options.  Many opponents have started off with this as a primary argument – it’s not an effective step against piracy if it can’t even begin to identify the pirates.

It’s not real piracy that these rules are in place for, it’s to shepherd the basic consumer away from the illegal sources.

However, here’s some food for thought:  I get to hear all sorts of things from my family as they try to talk about things that relate to me, which quite often involves computers.  I’ve found out some interesting things.  For instance, my grandmother now knows about torrents.  My cousin recently showed me how he and his roommates bought a console hard drive packed with games and movies from one of his old high-school buddies for their dorm room.  My fifteen-year-old nephew gets his iPod games from his classmate.  My mother shares Kindle eBooks with her friend using a linked account.  Not a single one of these people thinks that any of those is something wrong – none of them even considered it to be piracy.

It’s not real piracy that these rules are in place for, it’s to shepherd the basic consumer away from the illegal sources – because half of them don’t even know it’s illegal.  It really has become so easy to steal stuff that even the people who can and would legally pay for it don’t think of it.  Consumer education, I would dare argue, is truly most of that battle, and at least the Six Strikes program is taking a shot at providing that before the MPAA/RIAA hounds can rush in and sue my grandmother to the poorhouse.  Don’t say they wouldn’t do it – I think we have a good track record that proves they would.

Am I, of all people, seriously defending this piece of crap program?

Yes.  I think it’s better than the RIAA suing a mother for $250k.  I think it’s better than allowing the nonsense trolling letters to collect exorbitant demands out of people or throw them into court to pay for a few lawyers’ student loans.  I think it’s better than France’s Three-Strikes and better than China’s censorship and better than just about any service out there aside from doing nothing. 

Because guess what?  We can’t just do nothing any further.  When my grandmother thinks TPB has “a really neat logo… why are they so obsessed with pirates?  But I got the new version of Office, can you come install it for me?” and my mother thinks sharing a Kindle account is “no different than loaning her my paperback!”, we have a consumer problem.   These people aren’t stealing it because they can’t afford it or even because they don’t want to pay for it – they’re stealing because piracy has become so sophisticated and idiot-proof that they can’t distinguish it from the way it’s all supposed to work.

For those who truly want to be pirates, for whatever reasons that may be chosen, the Six Strikes rules will not do a thing.  So why bother complaining about them? Be thankful that the casual ones who draw attention to your behaviors will be shepherded back to paying for things, which keeps idiots off your private trackers and out of your usenet groups.  “The first rule of Fight Club,” and all that.

The way I see it, Six Strikes has a long road ahead of it but a good goal and an actual roadmap to get there.  Let’s let it mature to a sensible system that can help keep people who didn’t mean to be pirates from being wrung through the ringer of legal battles (not to mention accidental viruses, trojans, botnets, etc) that come from uneducated users being able to access pirated content as easily as (or more easily than) legal sources.  It’s not perfect – it probably won’t be – but I’d rather take a stab at some self-regulation and consumer education than let the RIAA and MPAA dictate it in the courtroom.


PS:  Dear RIAA and MPAA:  Really, I was just kidding about all of my family members.  Please do not go searching their Internet records and dragging my grandma into court.  Kthxbai. ;-)

Page List

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?


    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.