As America's phone and cable companies roll out their "six strikes" plans (which they voluntarily adopted in cooperation with the big film companies), it's becoming clear that operating a public Internet hotspot is going to be nearly impossible. Anyone operating a hotspot will quickly find that it can no longer access popular sites like YouTube and Facebook, because random users have attracted unsubstantiated copyright complaints from the entertainment industry. Verizon (and possibly others) have made it clear that this will apply to businesses as well as individuals, meaning that firms will have to spy on all the traffic of all their users, all the time, and heavily censor their use of the Internet in order to prevent them from attracting these complaints.
It's not much of a stretch to see why the carriers would like this: every time you use a hotspot instead of using your phone or device's metered data-plan, they lose revenue.
Also, as the strikes get higher, there are two things to be aware of: ISPs are then more likely to hand over info to the copyright holders, meaning that it could still lead to copyright holders directly suing. That is, the "mitigation" factors are not, in any way, the sum total of the possible consequences for those accused. On top of that, we still fully expect that at least some copyright holders are planning to insist that ISPs who are aware of subscribers with multiple "strikes" are required under law to terminate their accounts. At least the RIAA has indicated that this is its interpretation of the DMCA's clause that requires service providers to have a "termination policy" for "repeat infringers." So it's quite likely that even if the ISPs have no official plan to kick people off the internet entirely under the plan, some copyright holders will still push for exactly that kind of end result.
Details Of Various Six Strikes Plans Revealed; May Create Serious Problems For Free WiFi [Techdirt/Mike Masnick]
Don't Let Verizon Kill Free WiFi! (petition)
(Image: Wifi signal around here (2), a Creative Commons Attribution (2.0) image from nnova's photostream)
France is on the verge of killing its ill-starred HADOPI system, whereby people who are accused of multiple acts of copyright infringement are disconnected from the Internet, along with everyone in their homes. After two years, HADOPI has spent a fortune and has nothing to show for it. HADOPI was enacted thanks to enormous pressure from American entertainment companies and the US Trade Representative, and was the first of the "three strikes" rules to make it into law (New Zealand and the UK also both capitulated to Pax America shortly after).
But the new president Hollande is determined to continue to have France play the role of crash-test dummy for America's failed copyright policy. As a condition of dismantling HADOPI, his government has proposed enacting the worst provisions of SOPA, the US copyright proposal that America roundly rejected last year. Under SOPA.fr, the French government will make intermediaries (payment processors, search engines, web hosts) liable for infringement, with broad surveillance and censorship powers.
French Hadopi Scheme Gutted; Other Bad Ideas To Be Introduced Instead
The French Hadopi agency has prosecuted its first user
under the country's insane anti-piracy laws, which provide for disconnection of whole families from the Internet if someone using their connection is accused of multiple acts of file-sharing. The first person to be convicted is a 40-year-old man whose ex-wife admitted to downloading some songs on his connection. The law ascribes blame for infringement to the person with the Internet account, not the person who infringes, so he is paying the €150 fine. He will not have his Internet connection taken away.
Hadopi was the jewel in the Sarkozy regime's crown of shitty copyright policy: a rule that said if you lived in the same house as someone who'd been accused of copyright infringement, you would lose your Internet access. Heavily lobbied for by the entertainment industry and hailed as a success thanks to dodgy, misleading studies, Hadopi is now on the outs. The agency that administers it has had its budget zeroed out. Next up: outright cancellation? EFF hopes so:
Citing extraordinary costs and scant results, a high-level French official has announced intentions to defund Hadopi1, the government agency charged with shutting off Internet access of individuals accused of repeat copyright infringement. Under the French three strikes law, Internet subscribers whose connection is repeatedly used to share copyrighted material may be disconnected from the Internet and may even have to continue paying for the service (the so-called "double pain"). The three strikes law in France runs contrary to principles of due process, innovation, and free expression—yet has unfortunately served as a template for similar legislation in countries like New Zealand, the UK, and South Korea under pressure from the entertainment industry. Defunding Hadopi may mean that France won't be focusing on enforcing its three strikes law anymore, but that's not enough. France needs to repeal the three strikes law altogether.
When copyright holders (working through professional organizations) file complaints about alleged infringement, Hadopi is authorized to contact Internet access providers and issue warnings to subscribers. After the third warning of copyright infringement is issued to a subscriber, Hadopi can recommend to a public prosecutor that the individual have her Internet connection terminated. Hadopi also maintains a blacklist of subscribers to block users from simply switching ISPs after being disconnected. Though hundreds of alleged infringers have been referred to court—Hadopi has sent 1 million warning emails, 99,000 "strike two" letters, and identified 314 people for referral to the courts for possible disconnection—no one has yet been disconnected since the law was enacted in 2009.2
In speaking about the decision to significantly reduce funding for Hadopi, French culture minister Aurelie Filippetti, stated: "€12 million per year and 60 officials; that's an expensive way to send 1 million emails." Filippetti also stated that "[T]he suspension of Internet access seems to be a disproportionate penalty given the intended goal."
Repealing French Three Strikes Law is the Next Step to Safeguarding Free Expression
IFPI, the international trade group for the record industry, has trumpeted a study that allegedly shows that France saw a surge in iTunes sales following the institution of a mass-scale regime of "disconnection warnings" -- threats to remove you and your family from the Internet if you don't stop downloading. These warnings are the first step of the controversial HADOPI system, which is the first of a series of global "three strikes" laws pushed for by IFPI.
TorrentFreak had a look at the study, which was written by researches at Wellesley College and Carnegie Mellon, and they found that none of the benefits claimed by the record industry were in its conclusions: "What the researchers found is that in France, compared to five other European countries, more music was sold through iTunes. Looking at the graph below (from the report), it’s clear that the “uplift” in France before Hadopi was introduced (March 2009) is actually much sharper than the two years after."
“We also estimated the model for the 6 months before and after September 2010, as this was the first month that HADOPI began sending out first notices. In this case, the resulting coefficient was close to zero and statistically insignificant.”
Indeed, when the three-strikes warnings were actually sent out, there was no effect on iTunes sales compared to the control countries. This is unusual, because you would expect that the hundreds of thousands of warnings that went out would have had more of an impact than the ‘news’ that this could happen in the future.
In addition, if we look at the search trends for Hadopi and The Pirate Bay we don’t see a drop in interest for the latter, suggesting that the interest for pirated goods remained stable.
Anti-Piracy Warnings Have No Effect on iTunes Sales
Further revelations from the YouHaveDownloaded
BitTorrent logger: six infringing BitTorrent swarms included computers logged into the network of the official residence of French President Nicholas Sarkozy
. Sarkozy, of course, pushed for the HADOPI law that allows whole households to be disconnected from the net if their network is implicated in three copyright complaints. Note that there's no proof that anyone who was downloading these files got enough of them via the Sarkozy network to turn into a recognizable video or audio file; nor does it mean they were a member of the Sarkozy household. But the HADOPI law doesn't make this distinction, and who am I to argue with Sarkozy's favorite Internet law?
Last year, the UK government held consultation into its proposed Digital Economy Act, an extremist copyright proposal created by the unelected Business Secretary Peter Mandelson. The process that followed was as dirty as any I'd ever seen (for example, the then-head of the BPI wrote an amendment proposing a national censorship regime
that a LibDem Lord then introduced on his behalf. But it turns out that there was much more sleaze below the surface.
Documents released in response Freedom of Information requests show that Mandelson had already made up his mind from the start about the Act's most controversial section: the rules that said that users would have their Internet connections terminated if enough unsubstantiated infringement claims were made against their households. The "compromise" that the Act made was to suspend this measure initially, and bring it into force if the other measures in the Act failed to substantially reduce infringement. Critics called it the sham it was, saying that a 70 percent reduction in file-sharing was a delusional target, and the FOI documents show that the Act's supporters agreed -- they only intended the compromise as a means of smuggling in France-style disconnections.
Which is to say that the whole business was a sham: the Business Secretary and his pals in the record industry had stitched the whole thing up from the start, and the thousands upon thousands of Britons who wrote in never had a hope of changing things. That's why the Act was crammed through Parliament without debate in the "wash-up," hours before Labour dissolved the government.
One consultation respondent told TorrentFreak: “As someone who went to considerable effort to submit a rational and evidence-based response to the consultation on these issues, I am disappointed, although not surprised, to see that the outcome was predetermined.” The UK Pirate Party is a little more scathing.
Digital Economy Act: A Foregone Conclusion?
“These documents show how outrageously complicit everyone from the entertainment industry, politicians and unions were in framing the Digital Economy Act,” PPUK Chair Loz Kaye told TorrentFreak.
“Its most controversial aspect – suspending people from the Internet – was already sorted out in July 2009. It appears that the consultation was just for show, and the lobbyists got all they asked for. There are now serious questions to be asked of successive governments’ relations to groups like Universal Music and the BPI.”
HADOPI, the French agency charged with disconnecting French Internet users who use the same Internet connections as accused copyright infringers, conducted a study on media purchasing habits by copyright infringers. They concluded that the biggest unauthorized downloaders are also the biggest customers for legitimate media. Just like every other study that's looked at the question, of course, but this time the study was funded and released by one of the most extreme copyright enforcement bodies on the planet.
Joe Karaganis, from SSRC, points us to the news that there's been yet another such study... and this one is from HADOPI, itself. Yes, the French agency put together to kick people off the internet for file sharing did a study on the nature of unauthorized file sharing, too. Not surprisingly (and consistent with every other study we've seen on this topic), it found that those who spend a lot of money on content... were much, much, much more likely to also get content through unauthorized means. HADOPI released the results in a somewhat convoluted way (perhaps trying to downplay this result), but Karaganis reformatted the results to make this clear.
Another Day, Another Study That Says 'Pirates' Are The Best Customers... This Time From HADOPI
Hadopi, biens culturels et usages d’internet : pratiques et perceptions des
internautes français. (PDF)
A new report from the Organization for Security and Co-operation in Europe (OSCE) called "Freedom of Expression on the Internet" is intensely critical of Eurpean moves to censor the Internet, and is especially down on the French Hadopi rule that makes provision for disconnecting Internet users when someone is accused of using their network connections to infringe copyright. The OSCE rapporteur's conclusions are in line with the recent UN condemnation of Internet censorship and declaration that network access is a human right. Ars Technica's Nate Anderson's prepared some highlights from the report:
"Three strikes": "The increased use of so-called 'three-strikes' legal measures to combat Internet piracy is worrisome given the growing importance of the Internet in daily life... This disproportionate response is most likely to be incompatible with OSCE commitment on the 'freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.'"
Yet another report: Internet disconnections a "disproportionate" penalty
Internet kill switch: "Existent legal provisions allow several OSCE participating States to completely suspend all Internet communication and 'switch off' Internet access for whole populations or segments of the public during times of war, states of emergency and in cases of imminent threat to national security. Reaffirming the importance of fully respecting the right to freedom of opinion and expression, the OSCE participating States should refrain from developing, introducing and applying 'Internet kill switch' plans as they are incompatible with the fundamental right to information."
Web blocking: "As blocking mechanisms are not immune from significant deficiencies, they may result in the blocking of access to legitimate sites and content. Further, blocking is an extreme measure and has a very strong impact on freedom of expression and the free flow of information. Participating States should therefore refrain from using blocking as a permanent solution or as a means of punishment... Blocking of online content can only be justified if in accordance with these standards and done pursuant to court order and where absolutely necessary. Blocking criteria should always be made public and provide for legal redress."
Freedom of Expression on the Internet (PDF)
Sarkozy's latest plan for "civilizing" the Internet: a Great Firewall of France that government agencies to add URLs to without judicial oversight or public scrutiny on the basis of broad, nebulous criteria.
Information website PC INpact revealed today a draft executive order which would give the French government the power to arbitrarily censor any content or service on the Net. The French government is furthering its policy to control the Internet, in complete disregard of citizens' rights and freedoms.
The Entire Internet Under Governmental Censorship In France?
To implement article 18 of the law for the Digital Economy of June 21th, 2004, the French government is proposing to give to several of its ministries the power to order the censorship of online content that harms or otherwise puts at risk public order and security, the protection of minors, of public health, national defence, or physical persons1.
Clearly, the definition of these categories of content are both vague and overreaching. Such censorship measures - whether they consist in the removal or filtering of content - would be directly undertaken by the government, without any decision by a judicial authority. In practice, they would apply to all kinds of websites or online news services2.
Last week, the private company responsible for enforcing France's "three strikes" copyright law was found to be massively insecure
, prompting France to suspend the program. Under France's HADOPI copyright law, households lost their Internet connection if they received three accusations of copyright infringement committed on their network. TMG, the private contractor that maintained the system, suffered a massive breach when hackers showed that they hadn't taken even the most rudimentary steps to secure their servers.
Now, Ars Technica reports that it's not just TMG's security that's flawed -- the breach has also revealed that its data-gathering system is as untrustworthy as its perimeter security:
TMG's server was running a custom-written administration program coded in Delphi. It had the unusual security feature of not requiring any authentication at all, allowing anyone connecting to port 8500 to send commands to the server. The commands it supports are limited--shutdown or reboot the computer, stop or start a peer-to-peer client, and update the software on the server--but due to their shoddy design these commands are sufficient to allow hackers to do whatever they want. The update command connects to an FTP server, retrieves a file, and then executes it--all without authentication--and rather than connecting to a specific FTP server, it allows the server to be specified when the update command is given.
French "three strikes" anti-piracy software riddled with flaws
This allows an attacker to set up their own FTP server, put their malicious program onto the server, and then tell the TMG system to update from the hacker-controlled server. In this way, they can make the TMG server run whatever software they want. If all of TMG's anti-piracy servers are running the same administrative program, then they are all susceptible to being attacked in this same, trivial way.
(Image: Drapeau Hadopi, a Creative Commons Attribution (2.0) image from 17962689@N08's photostream)
TMG, a private contractor that administers France's HADOPI copyright system, has been hacked, resulting in a temporary suspension of HADOPI. Under HADOPI, people who use an Internet connection where one or more users have been accused of multiple acts of copyright infringement lose their Internet access for a year. TMG was in charge of storing the entertainment industry's enemies list of networks that had been used by accused infringers, and their security was basically nonexistent. The hack resulted in a dump of administrative material and IP addresses, and the head of the HADOPI agency announced that they would not gather IP addresses while they got their house in order. The UK has a plan to gather the IP addresses of networks used by accused infringers as well -- will they pick a better contractor to administer it than France did?
The problems appear to be real. Eric Walter, the head of France's HADOPI antipiracy agency that administers the "three strikes" regime, took to Twitter to tell the world that "par mesure de précaution l' #hadopi a décidé de suspendre provisoirement son interconnexion avec #TMG" [as a precautionary measure, #hadopi decided to temporarily suspend its interconnection with #TMG].
France Halts 'Three Strikes' IP-Address Collection After Data Leak
This temporary suspension of the interconnect agreement means that TMG -- the only private firm cleared to collect the IP addresses needed for HADOPI to function -- can't provide new addresses for the moment.
French tech sites like Numerama have run with the story, posting lists of questions that "need to be answered" by HADOPI and by French data-security authority CNIL.
(Image: HADOPI, a Creative Commons Attribution (2.0) image from goodvibez's photostream)
In a fascinating interview with TVOntario's Search Engine podcast, Michael Geist describes and predicts the likely outcome of the years and years of wrangling over Canada's new copyright bill,
, which includes a sweeping DRM clause that makes it illegal to modify your own equipment, even if you're not otherwise breaking copyright law, making it one of the most radical DRM laws in the world. Michael sees reason to hope for a more moderate C-32 in its final form -- I hope he's right.
It All Comes Down to This on Copyright?
New Zealand's three-strikes Internet law is back. Under this proposed copyright law, people who are accused without proof of multiple copyright infringements can eventually face disconnection from the Internet, along with their families. A substantively similar law was passed and then rescinded in 2009, after enormous public outcry. The parliamentary committee responsible for the legislation describes it as being based on the presumption of guilt (not innocence, as is customary in democratic societies).
Such fines would be levied by a Copyright Tribunal after a particular account holder racked up several notices, and these notices would adopt a "guilty until proven innocent" approach. As the committee report puts it, "an infringement notice establishes a presumption that infringement has occurred, but this would be open to rebuttal where an account holder had valid reasons, in which case a rights holder would have to satisfy the tribunal that the presumption was correct. We consider that such a change would fulfill more effectively the aim of having an efficient 'fast-track' system for copyright owners to obtain remedies for infringements."
New Zealand P2P proposal: guilty until proven innocent
It's hard to argue with the logic of speed here; creating a presumption of liability certainly will "fast-track" the process, though concerns about accuracy remain. As a New Zealand legal blogger noted this week, almost one-third of all New Zealand copyright litigation fails because rightsholders can't actually show they own the copyright and that the copyright is governed by New Zealand law. And Google has previously indicated that large percentages of the infringement claims it routinely receives are defective in some way.
InternetNZ, which runs the top-level .nz Internet domain, said in a statement that the new presumption of liability "reverses the burden of proof in the regime by saying that rights owners' notices will be considered conclusive evidence of infringement, with alleged infringers having to prove they have not done so. This reversal of proof is not a welcome development, and our initial view is that it should not be passed by Parliament."
(Image: Blackout, a Creative Commons Attribution (2.0) image from leighblackall's photostream)
France's HADOPI administrator (which processes copyright accusations against Internet users) is now receiving 25,000 complaints a day
. A family whose household attracts three unsubstantiated complaints is disconnected from the Internet for a year. Meanwhile, use of non-P2P downloading sites to get access to infringing copies is way up.