US ISP/copyright deal: a one-sided private law for corporations, without public interest

Last month, the major American ISPs and entertainment industry lobbyists struck a deal to limit Internet access for alleged copyright infringers. This deal, negotiated in secret with the help of New York Attorney General Andrew Cuomo did not include any public interest groups or comment from the public. As a result, it's as one-sided and stilted as you'd imagine. Corynne McSherry from the Electronic Frontier Foundation analyzes the material that these cozy corporate negotiators left out, the stuff that public interest groups would have demanded. Here's an abbreviated list:
The burden should be on the content owners to establish infringement, not on the subscribers to disprove infringement. The Internet access providers will treat the content owners’ notices of infringement as presumptively accurate--obligating subscribers to defend against the accusations, and in several places requiring subscribers to produce evidence “credibly demonstrating” their innocence. This burden-shift violates our traditional procedural due process norms and is based on the presumed reliability of infringement-detection systems that subscribers haven't vetted and to which they cannot object. (The content owners’ systems will be reviewed by “impartial technical experts,” but the experts’ work will be confidential). Without subscribers being able to satisfy themselves that the notification systems are so reliable that they warrant a burden-shift, content owners should have to prove the merits of their complaints before internet access providers take any punitive action against subscribers.

Subscribers should be able to assert the full range of defenses to copyright infringement. A subscriber who protests an infringement notice may assert only six pre-defined defenses, even though there are many other possible defenses available in a copyright litigation. And even the six enumerated defenses are incomplete. For example, the “public domain” defense applies only if the work was created before 1923--even though works created after 1923 can enter the public domain in a variety of ways.

Content owners should be accountable if they submit incorrect infringement notices. A subscriber who successfully challenges an infringement notice gets a refund of the $35 review fee, but the MOU doesn’t spell out any adverse consequences for the content owner that make the mistake – or even making repeated mistakes. Content owners should be on the hook if they overclaim copyright infringement.

Subscribers should have adequate time to prepare a defense. The MOU gives subscribers only 10 business days to challenge a notice or their challenge rights are waived (a subscriber might get an extra 10 business days "for substantial good cause"). This period isn’t enough time for most subscribers to research and write a proper defense. Subscribers should get adequate time to defend themselves.

There should be adequate assurances that the reviewers are neutral. The MOU requires that reviewers must be lawyers and specifies that the CCI will train the reviews in “prevailing legal principles” of copyright law – an odd standard given the complexity of, and jurisdictional differences in, copyright law. We’re especially interested in the identity of these lawyers, and why they are willing to review cases for less than $35 each (assuming the CCI keeps some of the $35 review fee for itself). Perhaps there will be a ready supply of lawyer-reviewers who are truly independent. Given the low financial incentives, another possibility is that the reviewers will be lawyers tied—financially or ideologically—to the content owner community. To ensure that the reviewers remain truly neutral, reviewer resumes should be made public, and checks-and-balances should be built into the reviewer selection process to ensure that the deck isn’t stacked against subscribers from day 1.

This is American corporate private law, a topsy-turvy world where the burden of proof is on the accused, where companies get to tear inconvenient laws out of the statute book, and where the judges are trained by the plaintiffs and instructed in which parts of the law to pay attention to.

The “Graduated Response” Deal: What if Users Had Been At the Table? (via Command Line)


  1. “This is American law thanks to Bush-era, Republican judge appointments, a topsy-turvy world where the burden of proof is on the accused, where companies get to tear inconvenient laws out of the statute book, and where the judges are trained by the plaintiffs and instructed in which parts of the law to pay attention to.”

    Sorry for editing your text, but I thought the sources of the problem needed clarification.

    1. How I wish it were true, but it’s not. I’m not American, but if i was, I’d vote Dem. Even so, I can’t turn a blind eye to the fact that Dems (and ESPECIALLY Obama) lead in appointing entertainment execs to the AG’s office, in promulgating TERRIBLE copyright legislation (Biden sometimes seems to be trying to set a record for world’s stupidest copyright proposal), in establishing rotten international copyright treaties (it’s amazing that the Obama administration managed to top Bush’s ACTA with the even worse TPP, a feat I never imagined possible), and in cozying up to Big Content. Dems gave us the DMCA, CALEA, the CDA, and most of the other long-standing, shitty copyright, net surveillance, and censorship laws. If you’re a Democrat, please help your party resist the influence of the entertainment industry.

      1. The only diff i see on Dems and Reps regarding IP is that the Dems have the delusion that they are helping the creative loner against the big bad exploiters, while the Reps are fully aware that it is those very exploiters that are being helped.

  2. Yes, Obama has been extremely disappointing in this regard.  The Dems and the entertainment industry are extremely tight these days.  Unfortunately, absurd copyright nonsense like this is seen as in the entertainment industry’s favor.

    1. It was a bit of a hint when Spielberg, Katzenberg and Geffen were all at the Obama administrations first State Dinner.

    2.  The Dems and the entertainment industry are extremely tight these days

      You’re being too specific, because the US Government is extremely tight with large corporations in general. It’s not partisan, and it’s not just the entertainment industry. It’s a top layer of government that is accountable to nobody. Well, their shareholders, I guess, but they’re kind of a kept bunch. Hollywood gets to write media law, power companies get to write environmental law, bankers write finance law, and so on, all in their own interest. I’d like to think the people (the customers of all these industries) have a voice in all this, but I haven’t found a way to amplify it yet.

      1. ” I haven’t found a way to amplify it yet.”
        There are two possibilities that might yield some results here. 

        One is to draw attention to divisions within the copyright-owner community, such as EMIs public questioning of the need to sue small-scale infringers. This would go a long way towards undermining the moral argument that infringement (or suspected infringement) is self-evidently theft, or that it deserves draconian punishment.

        The second possibility is to publicise the increasing resistance to the American IP agenda outside the United States. The BRICs countries are having great success in blocking it at the multi-lateral level (WIPO, WTO etc), and the Europeans have been insisting on making it compatible with due process and human rights (as the ACTA negotiations have made clear).
        Additionally, the intense secrecy of these negotiations demonstrates that the copyright owners genuinely fear a public informed about their true agenda. That, in itself, is a pretty encouraging sign, don’t you think? 

        Poke holes in these ideas if you like, people, but they will be at the core of a successful response, if one is possible, and I think it is. 

  3. As a Canadian I can only look on in horror , if these laws pass, they’ll start heading  north.  And we only have Michael Geist to stop them.

  4. I wonder if the document began dripping evil, purple ichor once the last keystroke was printed, and it was imbued by the malevolent spirit of ronald mcdonald…

    1. If onlyt such toxic proposals were so clearly marked for the world to see as Incredibly Stupid Ideas….

  5. I’m certainly not recommending anyone does this, but I’m just askin’ questions….

    Could you not? …  Set up devices for extending the range you can capture wifi signals (there are products you can buy or just go homemade with a kitchen Colander) and point it at your victim’s mansion?  Break into victims router/spoof their MAC address?  Download infringing content from known honeypots (use blocklists as allowlists) and share the hell out of it overnight when they won’t notice the slowdowns (using scheduling)?  BONUS OPTION:  Make sure your target is the home of a Senator or Congresscritter?

    I’m certainly not recommending anyone does this, I’m just askin’ questions….

  6. Which, ISP’s are doing this? none of the articles say. the best i can find is from arstechnica “including AT&T, Verizon, Comcast, Cablevision, and Time Warner Cable” but there’s that including at the begging that makes me worry

  7. Since it is now so simple to make copyright claims, it should be just a matter of time before someone launches a suit against Disney, Fox, Universal, Warner, etc.

    As soon as these guys start losing the suits because of the assumption of guilt, the rules will change.

    1. Except there will be ‘off the book’ rules dictating when assumption of guilt before the trials start can be made. IE if you’re a giant megacorp you get a free pass. If you’re Joe Average Blogger. Well hey how’s it looking from the new entertainment GitMo?

  8. Minor correction:  Andrew Cuomo is no longer the Atty General, he’s the Governor of New York. And as a pretty solid libertarian (US Citizen as well), I have to point out that while “both” parties are pretty dirty when it comes to copyright and IP laws, it’s been the Democrat Administrations (starting with the DMCA in 1996) that have done the worst, though as another commenter pointed out, some of Bush’s appointees have helped worsen the situation. And yes, the heads of the major beneficiaries of this law that chokes freedom of speech (among other things) are well-known liberals who clamor for freedom of speech (as long as they have an exclusive license to it). Funny, huh?

  9. Hey people! Wake up! You don’t have to be a rocket scientist to figure out how to bring these media cartels to their knees. Stop buying their crap! Did I say it clearly? Stop buying their crap! Every time you buy their crap you’re bending over and inviting them to f**k you up the a**e.

    But you’re not going to stop buying their crap are you? You really, really, REALLY don’t want to face the fact that you’ve been conditioned and brainwashed to buy, buy, buy. Like a lab rat. Your brain, and your so-called independence, is owned. And YOU let it happen, because you’ve forgotten how to think for yourself.

    So it goes.

    1.  But they won’t go down without a fight. The less you buy, the more they’ll blame it on piracy and the harsher the laws will become. This is not exactly the outcome we are after.

  10. I’d like to see the content cops disprove this argument:

    “While I was sharing the file MetallicasDiscography.tar on Bittorrent, it was actually full of public domain recordings from the early 1900s.  I intentionally mislabeled them to trick pirates into listening to older music and expanding their horizons.”

    1. Except most people, on seeing that it’s not the latest trash40 they wanted will delete… 

      Then again there’s always that one percent that will be curious and click anyway.

      1. I’m saying that argument can be used in your defense if you were actually sharing some copyrighted work.  Seeing as how Big Content isn’t actually doing this with the weight of the law behind them, you can use that to your advantage, because you can make a convincing claim of probable deniability and they have no authority to investigate your computer and network equipment to prove otherwise.

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