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Author Topic: Memorandum of Understanding (no need for SOPA)  (Read 6533 times)

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Offline kat

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Memorandum of Understanding (no need for SOPA)
« on: March 25, 2012, 08:43:49 PM »
Long post warning again.

Summary: there's a private agreement between Copyright holders and network service providers coming into force in July that will mean what you do is to be monitoring with respect to copyright infringements. P2P networks are of particular interests. In affect, users will be regarded in principle as being guilty of infringement by the very act that they are being actively monitored for it. You have no say in this as a user except to switch providers to an ISP that has not signed up to the Memorandum of Understanding - this isn't public policy so there is no political recourse, no member of Parliament/Congress that can be called.



Apparently, on July 1st this year, Internet Service Providers, in North America at least, will 'switch on' the active tracking of network traffic for the purposes of monitoring Copyright infringement.

There was, apparently, no need for SOPA, PIPA the ACTA or indeed any other such 'public policy', because behind closed doors an agreement was made between the Motion Picture Association of America (MPAA), the Recording Industry Association of America (RIAA) and various network carriers - Comcast, Cablevision, Verizon, Time Warner and other service providers. Penned as the "Memorandum of Understanding", the basic gist of the document is for ISP's to actively monitor traffic flowing around their respective networks for Copyright infringement. Upon discovery ("... notifications of allegations of Online Infringement made via P2P networks and applications"), end-users are to be presented with 'educational warnings' and/or 'prompted' to seek out legitimate sources of the content they are looking for.

It's very clever stuff really. Have a read of this entire section and see if it makes sense (this section deals specifically with P2P networks).
Quote
sec.A. The Content Owner Representatives will develop and maintain written methodologies, which shall be adopted by the applicable Content Owner Representative, for identifying instances of P2P Online Infringement that are designed to detect and provide evidence that the identified content was uploaded or downloaded or copied and offered on a P2P network to be downloaded through a bit torrent or other P2P technology. Each Participating ISP will develop and maintain methodologies, which shall be adopted by the applicable Participating ISP, to match Internet Protocol (“IP”) addresses identified by the Content Owner Representatives to the Participating ISP Subscribers’ accounts, to keep a record of repeat alleged infringers, and to apply Mitigation Measures (as defined in Section 4(G)(iii) below). Such Content Owner Representative and Participating ISP methodologies are collectively referred to herein as the “Methodologies”. The goal of these Methodologies shall be to ensure that allegations of P2P Online Infringement, related records, and the application of any Mitigation Measures are based on reliable, accurate, and verifiable processes and information.

What the above means in real money is that the Center for Copyright Information ("CCI") wants ISP's to actively collect data on what users are doing, the kicker being that in doing so, liability with respect to the 'correctness' and 'accuracy' of any such information is quite firmly dropped into the laps of an ISP (collecting agent); in effect they are being 'tasked' with finding "methodologies" that tie IP addresses to particular account holders in such a way as to be irrefutable evidence of infringement, whilst at the same time washing their (CCI) hands of any wrong-doing if the data turns out to be incorrect - this is, not so incidentally, why the new IPv6 technology is being pushed so hard, it has very little to do with "running out of IP4 numbers". Rather it's about tagging an IPv6 'fingerprint' to all connected devices (IP4 and IP6 numbers differ in that the latter is supposed to act more akin to a permanent and locked identifier or network address, similar to a house or property number - the occupants may change but the number is always the same). Talk about having your cake and eating it and the cherry sat atop the one inch thick icing. The really, really, clever 'lawyer speak' is this, the document itself (and by extension the CCI) never once mention how data is to be collected, it just says that it should. This again gets the CCI off-the-hook with respect to the associated privacy issues that type of data collection would entail.

To make sure everyone is playing ball and by the same rules a, not exactly, "Independent Expert" is employed by the CCI who reports, in confidence, with respect to the effectiveness of the aforementioned "methodologies" - ones says "not exactly" because this so called "Independent Expert" is approved by the committee (sec.B "The selection of the Independent Expert shall require approval by a majority of the members of the Executive Committee.") which makes the position more akin to that of a person playing a role in a rigged jury - if the CCI approve the appointment, then all they need do is appoint someone to play along with the role. The same is to be said with respect to consulting "privacy experts"; only those meeting approval will be sought (sec.B "In addition, the Independent Expert will (i) review the Methodologies with recognized privacy experts agreed to by a majority of the Executive Committee"). All of this is carried out under the auspices of an NDA so the public would never know anything with regards to the experts findings.

Your ISP Terms of Service and/or Acceptable Use Policy will change to the following;
Quote
sec.F: ... (i) copyright infringement is conduct that violates the Participating ISP’s AUP or TOS and for which a Subscriber may be legally liable; (ii) continuing and subsequent receipt of Copyright Alerts (as defined in Section 4(G) below) may result in the Participating ISP taking action by the application of Mitigation Measures (as defined in Section 4(G)(iii) below); and (iii) in addition to these Mitigation Measures, the Participating ISP may also adopt, in appropriate circumstances, those measures specifically authorized by section 512 of the Digital Millennium Copyright Act (“DMCA”) and/or actions specifically provided for in the Participating ISP’s AUP and/or TOS including temporary suspension or termination, except that nothing in this Agreement alters, expands, or otherwise affects any Participating ISP’s rights or obligations under the DMCA.

Which again puts the liabilities of implementing the Memorandum of Understanding firmly into the hands of ISP's, they will be solely responsible for enacting 'policy' with regards to infringements and not the CCI, effectively removing their need to submit evidential based DMCA requests. In fact, if ISP's are 'policing' their networks, one could certainly argue the case that there's no need for DMCA at all, thus removing yet another protection against arbitrary and summery 'justice'.

The warnings forming the 'educational' aspect of this entire process (sec.G) aren't warnings per-say. Instead they should be regarded as incremental steps which coerce users into admitting wrongdoing in the same/similar way to the TSA's policy of 'enhanced pat-downs' offer 'choice' and 'recourse to say 'no'' - "your Mortons Fork driving me towards a Hobson's Choice leaves me no alternative but to take position with Buridan's Ass" - either click this and admit wrongdoing (irrespective as to the factual basis of that - the appearance of the warning is implicit that the person receiving it has been summarily judged to be infringing), or go elsewhere.

User do have resource and remedy though. Done through the use of an online form, the 'accused' is provided a list of options;
  • Misidentification of Account
  • Misidentification of Account
  • Authorization
  • Fair Use
  • Misidentification of File
  • Work Published Before 1923
However, as with the above, users have to provide a "... defense [that] adequately and credibly demonstrates ..." not having done what is being accused. The only way to do this is to naturally self-incriminate ones self irrespective as to the truthfulness of the claim. In other words the provided options mean users are being asked to prove, to the Right holders (sec.H.i), a negative - in principle (although this would never happen *cough*), a user could be accused of infringement using the barest of 'evidence' (after-all, there is absolutely no defining criteria with regards to how much 'evidence' Right holders are required to have to make a claim - the agreement simply mentions the 'type') with the burden of proof being on the users head to disprove this rather than the accusers. That's right, users are appealing to the Right holders and not a fully independent Reviewer. The nomenclature is deliberately misleading. So to is the reference to not using the outcome of a review in a court of law. This doesn't mean evidence gather in the pursuit of a review won't be used.

So, if you've got this far down the page, first congratulations are in order, and second you may have started to notice that a lot of this seems familiar. It is. In principle SOPA, PIPA and the ACTA were all worded to be construed in pretty much the same way - Right holders given the 'force of law' to do what they're previously agreed to in private, business-to-business. So one has to wonder why SOPA, PIPA, et-al were needed except to bestow said 'Force of Law' into the hands of a corporation to wield as they see/saw fit (the law would allow them that ability - because it would authorise them to be accuser, jury, judge and executioner).

Additional Reading



Offline ratty redemption

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Re: Memorandum of Understanding (no need for SOPA)
« Reply #1 on: March 25, 2012, 10:14:03 PM »
interesting, thanks for posting this kat. i read your entire post but not the links. i'm not sure i understood all of it but am curious to see how this starts being put into practise, and how many users will end up getting slapped on the wrist, or worse.

Offline kat

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Re: Memorandum of Understanding (no need for SOPA)
« Reply #2 on: March 26, 2012, 12:04:19 AM »
Well... all the above is not the worst of it. Aside from the fact that this allows private companies to arbitrarily do what they're planning to do, it also sets a very dangerous precedent with regards to the general policing of *any* content online (+cloud services anyone)... If it's OK for corporations to agree behind closed doors, and without public consultation, something that has a direct effect on the user, who's to say that same principle isn't put into place to block other content said-same companies deem as needing to be policed. If it's in the public interest to block access shouldn't that be determined by public policy where users generally have a reasonably independent avenue for recourse (assuming politicians haven't been bought off through campaign contributions), unlike corporations where they control and determine everything relative to their bias.

The irony I suppose though is that perhaps in policing the network, ISP's and providers *can* be held liable for the consequences of users actions. If little Timmy/Tammy gets their grubby mitts on content via the usual channels, then with the network being policed for that content, who is to be blamed/prosecuted for access? Once you go down that road, it becomes very much shades of grey - unless that agree to give themselves big, fat, giant waivers (note: obviously some content is pretty much universally repugnant, however there are laws already in existence that specifically deals with that stuff that have little to do with the Internet itself).

As an addendum to the original post... the signatories to the agreement are all involved in content production in one way or another; Comcast has a controlling stake in NBC for example; Verizon, being one of the largest US network providers has content agreements with the likes of Apple and so on, and so forth. In other words, the agreeing parties are vested interests with no contrary points of view being considered.

 

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