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Leave Six Strikes Alone!

Date: March 6, 2013
Author(s): Brett Thomas

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.

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. ;-)

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