Did The Entertainment Industry Backdoor In Forcing ISPs To Kick People Offline, While Claiming It Did Not?

from the sneaky,-sneaky dept
by Mike Masnick
Techdirt
Jul. 09, 2011

Never underestimate just how sneaky entertainment industry lobbyists can be. They're able to push through all sorts of things that appear innocuous at first, but down the road turn out to be anything but. The ProIP Act (not to be confused with the PROTECT IP Act) is a perfect example of this. It had all sorts of awful provisions, originally, which lots of people protested about. But that allowed the industry to slip in a single "innocuous" provision almost entirely unnoticed. The provision that allowed feds to seize and forfeit "property" used for infringement. This provision got very little scrutiny, and the short discussions that were had about it concerned the ability of the feds to seize things like CD and DVD burners in commercial counterfeiting operations. Not something many people would have an issue with. But, instead, that provision has been used to justify Homeland Security's outright seizure of domain names under very questionable legal theories.

So forgive us for not taking some of the comments from the entertainment industry at face value. We've been burned many times before. As we noted in our post about the new "voluntary" agreement between the entertainment industry and top US ISPs, while the report tries to bend over backwards to insist that the "graduated response" plans don't include disconnecting from the internet, this really isn't true. First, it does push ISPs to cut people off from the web, which for most people is their internet access.

But, it gets even more pernicious than that. The EFF is pointing out a questionable bit of the agreement, which suggests the entertainment industry may be knowingly backdooring disconnections into the agreement by misinterpreting a section of the DMCA (which they also helped write):

The materials emphatically state that ISPs are not required to terminate subscriber accounts as a condition of the agreement with the content industry and that the collaboration does not amount to a “three strikes” regime. But the materials also take pains to assert that the DMCA “requires that the ISPs have in place a termination policy for repeat copyright infringers as a condition of availing themselves of the Act’s ‘safe harbor’ provision.” Translation: The content industry is staking its position that ISPs that don’t terminate subscribers after 5 or 6 alerts will lose their DMCA protection. There are plenty of arguments for why that position is wrong; given that an alert represents nothing more than an allegation untried by a court, we think loss of Internet access would be a draconian measure that Congress did not intend. Nonetheless, it may take an ISP willing to litigate the issue to make the argument.

In case it's not clear, the EFF is showing language that clearly suggests the entertainment industry believes that if ISPs don't kick off those accused (not convicted) of repeat infringing, they lose their own safe harbor protections under the DMCA. And, as we've seen with the way DMCA takedowns work, to nearly everyone, the threat of losing safe harbor protections is the equivalent of a requirement. No company wants to increase their liability, and thus, to avoid a potential claim that failing to kick a user off violates the DMCA, there seems like a good chance most of these ISPs will including kicking people offline entirely as an option here.

The obvious retort from the industry will be that this part is no different than what's been said in the past, because the DMCA has been in place for over a decade. However, while it may be true that the DMCA has been in place that long, no copyright holder has tested this theory that not kicking people off violates the DMCA. By putting it in this document, the entertainment industry is effectively putting ISPs on notice: saying that they may now start focusing in on this.

Pretty neat trick, huh? Claim upfront that the plan has no disconnections, while on the backend include language and a statement that clearly alerts ISPs that if they don't disconnect, they can face much greater liability.