The beginning of wisdom is in learning to call things by their right name
-Translation of a Chinese proverb
Buckle in. This is going to be a long one.
Earlier this year AT&T announced that they were planning on implementing a "6 strike" policy for subscribers concerning copyright violations. If the documents leaked this week are in fact actual training documents from AT&T, it looks like they are going to follow through with that announcement beginning on November 30. The next sound you hear will be AT&T repeatedly kicking their customers in the teeth. And they aren't alone.
The plan goes something like this: as an AT&T subscriber, you are ultimately responsible for anything done through your connection. Period. If a content provider files a first claim against you, AT&T will send you a strongly worded letter telling you that you have violated copyright law and that you are being watched. The scale escalates from there - future violations will cause AT&T to block access to You Tube and Facebook until you successfully pass an online copyright re-education class, and will continue to escalate until you hit the sixth strike. At that point, AT&T gives you the boot and you no longer have Internet access.
Look, I get that copyright violation is a major problem. Some of the reasons for this are self-inflicted by content providers and some because there are people who just want something for nothing. These are arguments for another day and another post. Today, though, I am concerned about the way in which this happens and what that means to your (and my) civil liberties. At the heart of this is the notion that the Internet is a commodity rather than a medium - it is something you buy, not a communication channel like the telephone and cellular systems, the TV spectrum, general radio frequencies and more. Viewed as such, it is not a regulated business but instead is governed by contract law.
That's the contract between you and AT&T (or Comcast or Time-Warner or Cox or...). Its the thing you click past quickly when agreeing to the "terms of service" so you can get to Facebook.
The problem lies in how you can be accused of copyright violation. A content provider using an automated tool decides that someone using your connection has done something illegal with a property they own. More often than not, this same automated process files a copyright violation complaint with your Internet Service Provider (or ISP). The automated process does not know it is you specifically, it simply knows that someone at your Internet address perpetrated the violation, and the report shows the address. The ISP walks that address back through their system and decides that, at the time, the address was assigned to you. Because this is the first recorded violation, the system automatically generates the letter and it is mailed to you.
Two things leap out at me immediately in that description. First, there are no people involved in the process. With the high number of complaints filed every hour, it would be virtually impossible for any organization to handle the complaints manually, so by needs this is an automated process.
Second, though, is the automated process itself. Its broken. And there is nothing we can do to fix it because the content owners won't acknowledge that it is broken. And how is it broken, you may ask? Because the organization filing the complaint is not necessarily the copyright originator (or even the content provider), the trail back to the material is obfuscated at best. Go with me on this - it is a real world example that happened to a well-known tech podcast. On one of their shows the host played a tech commercial from a US company that aired in South America. A TV station in Brazil which aired the commercial and which also streams their content flagged the commercial as a content violation because their automation program recognized the signature of the commercial as something they had aired. Their automation program filed the complaint, and for a brief time the content was taken down from You Tube. Never mind the fact that the host did not get the commercial from their stream (he picked it up from the tech company themselves) or the fact that the TV station did not own the content (they were paid to air a commercial) or that the automation program could not specifically define what content was in violation or that the complaint was any more substantive than "this company illegally used our content".
I wish that this was an isolated issue, but the truth is that it happens literally thousands of times per day. Companies like You Tube initially adopted a "shoot first" policy and simply removed content when faced with a complaint. To their credit they are now forcing complainers to provide additional proof of violation or face penalties under the DMCA, but the problem remains that from the standpoint of the podcaster, the violation is from a vague source with no idea what content in particular is in violation. The podcaster has to figure out on their own what went wrong, and then the burden of proof that they are not in fact in violation is squarely on their shoulders.
Back to AT&T (and Comcast and Time-Warner and Cox et al). There is currently no indication that AT&T intends to require content providers to prove violation or for that matter even specify what content was violated. And you, as the account owner, are liable for anything that is done on the wire to your house whether or not you are actually responsible. This is very much like having your car stolen and used in a crime, and then having the police show up at your door to arrest you as an accomplice. Your car. You are responsible.
Let's set up a real world scenario. You are a student living at home and participating in a research project with a group of students at your school. As a part of the research for this project, each team member puts together spreadsheets with project data related to their piece of the puzzle. In order to have constant access to this data, you set up a peer to peer network to share the files with the other team members. You are constantly pulling in their numbers, comparing them to yours, updating your data - and the rest of the team is doing the same.
In steps a movie studio or a record company. Because peer to peer networks tend to have a lot of copyright violators trading music or movies, their automation tools look at ISP traffic for commonly used peer to peer protocols. Your project is noticed as it enters a particularly busy phase. As the content provider can't see what the traffic actually contains (and, because the spreadsheets are likely the same size as most MP3 files), they assume you are trading files illegally and their automation tool files a complaint with AT&T, who in turn alerts you that you are in violation of copyright law. Over the course of the next few weeks as your project continues, you continue to get notices up to the point where AT&T cuts off your service.
Extreme? How about this one: you leave for two weeks vacation and in your absence the housesitter you hired downloads a couple of movies with your high speed connection. When you return, you find that you have violated copyrighted content a couple of times, failed to respond and now you have to take an online course in order to access Facebook.
Because Internet access is a commodity and not a medium, you only have the "rights" that you and the ISP agree to in your contract. And because of the legalized monopolies that cable providers have in any community, there are few choices and practically no avenues for you should you find yourself in one of the situations above. A nameless, faceless company in an overzealous attempt to protect intellectual property can falsely accuse you and without due process you can lose access to a medium which - for people like me - may also govern their livelihood. There is no court of appeals and no due process. You don't get to face your accuser and more often than not, you don't even get to know at any more specific level what your crime actually was. You are guilty because this organization says you are. Case closed.
I could go on, but hopefully by now you have an idea just how insidious this plan is. It turns the people who are selling us service into our police department enforcing civil matters (not criminal - make a note of that), and puts them into a position to throw the kill switch on the very people who are providing their revenue. In the grand scheme of their numbers, your little account means nothing compared to, say, Cleveland. But in the traditional short-sightedness that the media industry seems to be famous for, we can expect an exponential increase in reported incidents once it becomes easier for the providers (not the ISP's) to gain traction on a complaint, and that is just bad business because they are closing their own electronic distribution channels to clients. It would be like Best Buy deciding that, because you may or may not have purchased a TV at Sears, well they are going to block the street in front of all their stores for just you so you can't buy a TV from them. Go after the customers who want to consume your product rather than finding ways to make it easier for those customers to buy your product in the first place.
What can we do about it? Well, I can no more jump ship from my current ISP to another than I could will myself to be taller and thinner. Because of the community monopolies cable providers have, I just don't have the choice in high speed broadband. The only recourse I have - and by "I" I mean all of us - is to put pressure on our elected officials. With only a few weeks until the election (Presidential, House and numerous Senate races, not to mention state and local elections), it is time to find out where your candidates stand on copyright law and the DMCA. How does your elected official feel about allowing ISP's to wield supreme power over what should be considered a protected medium the same as telephone service? Will he or she stand up to bullying by companies looking to protect their monopoly or will he or she protect your constitutional right to due process?
We need to call this what it is: it is an industry who is digitally clueless attempting to get another industry to act contrary to their own interests by enforcing civil law based on the notion that someone has violated that law without benefit of evidence or recourse should the claim be spurious.
The time to stand up for a free and open Internet is now. We have to hold our elected officials accountable for the loss of personal freedoms we have suffered in the last two decades. The line has to be drawn here and allowed to creep no further. Tell your Congressman, Representative (state, local and national), Mayor, Councilman and yes - even your President - that we cannot let business and government continue to trample out rights. The Internet is a meeting hall no different than the ones our elected officials govern from, it is our community voice no different than the TV and radio airwaves the FCC governs, and it is our repository of knowledge no different than our local library. The market needs to learn to compete in the digital world, they need to realize that those who provide the on-ramp are not responsible for how people drive on the freeway, and our government should not allow the market to serve as our judge, jury and executioner (especially in civil matters) without proper due diligence on their part.