Leave Six Strikes Alone!

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.