A recently formed plan to have ISPs police the internet by punishing copyright infringers is rapidly getting more and more interesting. If a user is accused of infringement, it appears that they can appeal, but their appeal must fit into one of six predefined defenses or the service provider isn't even interested in hearing about it.
The first thing that should be pointed out about this new plan, is that if you do feel you were accused unjustly, it'll cost you your hard earned dollars for the "privilege" of defending yourself. The fee to attempt to prove you are innocent is going to be $35. That by itself is pretty ludicrous, but it gets even better. Your appeal apparently won't be heard at all if it doesn't fit into one of six defenses. The worst part about all of this is that even if you aren't guilty of violating a copyright, there may be no way for you to prove it, due to the way that the process is laid out.
The six defenses that could be used to attempt to prove innocence are:
(i) Misidentification of Account - that the ISP account has been incorrectly identified as one through which acts of alleged copyright infringement have occurred.
(ii) Unauthorized Use of Account - that the alleged activity was the result of the unauthorized use of the Subscriber’s account of which the Subscriber was unaware and that the Subscriber could not reasonably have prevented.
(iii) Authorization - that the use of the work made by the Subscriber was authorized by its Copyright Owner.
(iv) Fair Use - that the Subscriber’s reproducing the copyrighted work(s) and distributing it/them over a P2P network is defensible as a fair use.
(vi) Misidentification of File - that the file in question does not consist primarily of the alleged copyrighted work at issue.
(vii) Work Published Before 1923 - that the alleged copyrighted work was published prior to 1923.
One of the most ridiculous parts of this is defense six. There is no mention at all in there of work that is a matter of public domain. While most work before 1923 is considered public domain, so are a good deal of works of various types published after 1923. That would mean if you were sharing a public domain work, put out after 1923, you couldn't use the fact that it was simply public domain as a defense. That seems like a tremendous oversight and even copyright law is careful to include language about public domain works.
One of the more upsetting parts of this whole business is that apparently you can only use the fact that you have an open WiFi network as a defense one time. That implies that you can get in trouble for making the choice to keep your WiFi network open (and there are reasons some might want to do so), even though there's nothing illegal about it. The specific language of the plan says,
"Except as set forth herein, this defense may be asserted by a Subscriber only one (1) time to give the Subscriber the opportunity to take steps to prevent future unauthorized use of the Subscriber’s account. Any subsequent assertion of this defense by a Subscriber shall be denied as barred, unless the Subscriber can show by clear and convincing evidence that the unauthorized use occurred despite reasonable steps to secure the Internet account and that the breach of such security could not reasonably have been avoided."
It's one thing to have ISPs attempt to police their corners of the internet against copyright infringement but it's quite another to take this guilty until proven innocent stance on the whole business. Furthermore you shouldn't have to pay to even have an appeal heard, nor should the defenses allotted to you be more ridiculous than copyright law itself.
How did the MPAA/RIAA get the ISPs to agree to this ridiculousness?
