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Three strikes - the FAIR way

I've been thinking about this three-strikes rule for the removal of Internet access based upon real or accused copyright infringement.

This is an issue in France as the country has adopted the HADOPI legislation.
This provides for:
  • identifying content theft according to the IP address and sending an email to the person said to be using that IP address at that time, but this alone has numerous problems:
    • How accurate is the ISPs records of who has what IP address at what time? My IP address changes at random intervals (approx every third day). Are the ISP records accurate to the exact second?
    • You can identify, at best, which internet box was connected to that IP address. It is not possible to say which user was connected, if it was a member of the family or a friend or even a third party who may or may not have had permission.
    • While my Livebox is supplied with WPA encryption enabled by default, this is crackable in about half an hour. Depending on the source, you might find that WPA is quicker to crack than the known-to-be-insecure WEP. But, given all of this, on war-driving in local towns, a fair few boxes from other providers are unencrypted.
    • It gets worse. Of those that were unencrypted, around 50% were misconfigured and attempting access to took me to the router configuration. Worse yet, the admin/admin login combination worked on more than one of them.
      Yes. I am saying I was able to sit in my car and potentially reconfigure somebody's router. I can only assume it is somebody completely clueless of technology to leave their system so open. In fact, how many people are aware that most WiFi-enabled internet boxes are supplied with the WiFi pre-activated? If they connect a desktop computer using a cable, they may have no idea about WiFi.
    • There's more. There is a remaining 50% of the open routers. Around three quarters of what was left prompted me to log in to the access point. This seemed to be mainly to check that I had the time/credit credentials for access to the hotspot. I recall this was the Neuf box via SFR. The remaining small number acted as an open hotspot. I was given a page with a lot of incredibly tiny Ts&Cs to read, with an Accepter button. Like McDonald's, I ignored that and typed into the URL box and... it worked.
      How does the HADOPI work if your internet box is acting as a hotspot? Were the users even aware of the hotspot ability of their internet box? It would appear that YOU are responsible for people using your hotspot - even if you have no knowledge of such use, you might be at work while somebody in the cafe across the road is using your router's hotspot facilities to download movies and such. And this is your problem...
    There is no guarantee the email was received by anybody, and it seems that there is no possibility for judicial process at this stage. You are accused, end of. To further confound matters - and this should be considered unlawful - the email sent apparently specifies the time of the claim but does not say what the objection is regarding or who the claimant is. This is a gross abuse of privilege - everybody accused should have a inalienable right to know WHAT and WHO.
  • You will be expected to secure your equipment, but as I show above, that might be like asking the cute secretary in the office down the hall to repair her car when it goes wrong...
    Mainwhile your ISP/HADOPI/copyright holders expected to monitor your connection for six months looking for further offences.
    If a repeated offence is suspected (emphasis on this, not PROVEN, only suspected) a letter will be sent by registered delivery to the address associated to the account. This letter will be a repeat of the information described in the email, so I think we can assume - yet again - the object of the complaint and who is complaining will be omitted from this letter.
  • Following this, your connection will then be monitored for a year. Upon a further infraction (real or imagined), the ISP will be required to suspect internet access for a period of between two months and a year. In addition, you will be blacklisted so you can't sign up to another ISP.
    Suspension of service does not interrupt billing. Furthermore costs involved in suspending/reconnecting your service (which I would imagine could be steep as they could charge whatever the hell they wanted) will need to be factored in as well.
    From Wiki: Recourse to a judicial court is not possible for the first two steps of the procedure, and the last step is not stoppable by judicial recourse. The charge of the proof is on the connection owner.

On June 10 2009, the constitutional council declared the main part of the bill unconstitutional, therefore making it useless. The council found that the law violated the 1789 Declaration of the Rights of Man and of the Citizen, and in particular presumption of innocence, separation of powers and freedom of speech. [source: Wiki]

The law may have been found to be useless, but it is apparently still an active law? Does this mean that an organisation who decides not to reveal themselves or their complaint can go through the motions of initiating the three strikes to take down your internet access leaving your recourse to fight back legally... if you know how... if you can afford it?

I describe all of the above because the French managed to bring to pass a highly unfair and uncontitutional law. This law has been enacted at our expense to safeguard the media industry for the short term as they are unwilling to admit that their business model is failing, and their refusal to enter into meaningful discussion regarding downloads and global licencing shows they would rather bury their heads in the sand and involve important governmental figures to push through unlawful legislation. The removal of DRM in music has been a slow and painful process, and recent nonsense regarding Amazon with eBook pricing and DRM support in various eBook readers, likewise the developments for excessive DRM in future video formats - we do not need to change. An outdated outmoded business practice needs to change.

This is all very important as similar discussions are taking place in the United Kingdom, overseen by Lord Mandelson. Those of you who don't have a sick feeling in your stomach are either foreigners or politically unaware. Let's just say that in my opinion, decisions being made will not be made based upon what is best for us, nor what is best for the country.


The only way this is going to be fair is to provide it as a possible remedy for copyright infringement. No, not for the recording industry, but for everybody. This ought to be implied by the current set of laws as favouring one business sector and ignoring other copyright infringements is both hypocritical and itself most likely unlawful (the law applies universally, not based upon who you are).

If, of course, this means a fifteen year old schoolgirl can take a massive media service off the net (at least in the countries with three-strike rule), then so be it. Either the government respects people's rights in their creations and takes it seriously, or it is just ass-licking an industry in its death throes.

Thus, I propose that the only valid interpretation of three-strikes is that, based upon the legislation enacted for the recording industry against us consumers, we turn this on its head to protect our intellectual property on-line. If a website, any website [see note], gets three strikes (and not necessarily from the same person), it is ordered to be taken down. It is the only FAIR way to work this heinous cockup of a law which seems to neatly sidestep existing legislation regarding copyright infringement. Oh, note while you are at it, that laws such as HADOPI won't replace existing copyright infringement legislation. You can have your internet access yanked and then have your sorry ass dragged to court. At least in court they might need to cough up some actual evidence, but if it is anything like the DADVSI's time in jail and accompanying €300,000 fine, I don't hold out much hope for logic and sanity.
It's a sad day indeed when ripping off a CD and passing around copies to strangers gets you a stronger punishment than murdering somebody.

With its potentially copyright-abusing book scanning plans, Google ought to be pretty worried.

Note from above: there will, of course, need to be an 'out' for sites that accept user-submitted content; but upon three strikes there, they should then be legally obliged to review all submissions prior to placing them online, and a further three strikes... bye bye!


Does this sounds like something that could termilly kill the Web2.0rhea? Quite possibly. Ill-conceived legislation is going to do more harm than good. The only way to let common sense prevail is to turn the tables and call for some high profile sites to be taken down. So if you have produced we content, it's time to pay a visit to the big boys (well, a Google search might be quicker) to see if anything has been borrowed without authorisation. Remember, if you have created something, you have automatic copyright in your work. In some places (like the US) you will be told you need to register with the relevant copyright authority, however this is arguable as it not only flies in the face of the Berne convention, but also Article I, Section 8, Clause 8 of the Constitution.
In many parts of Europe it helps to add the © logo, but this is not even necessary. All you need to be able to do is show that you are the creator of the material in question. A legal bod will be able to provide accurate guidance, but I would have thought in the case of a photograph that having others taken in the same place at the same time , composites from editing, etc, will be good for showing you are the rights holder.

My own personal method is to slightly widescreen my pictures. I crop a little off of the top and the bottom. If I find one of my pictures used in a context I do not approve of (I always have the choice not to start a ruccus), I know I will have pretty solid proof of ownership as my original pictures will be larger and contain content not present on the version(s) on my site. No other copy of said content in the world will offer this, thus the content can only have originated from me.

Anyway, the moment your government enacts a law like this is the moment you stop downloading all those CAM DivXs (! ☺) and look to seeing if you can spin this one around. Start a blog. Find a forum. Co-ordinate efforts. Look for the slightest misuse of Creative Commons material or GNU source or whatever and clobber away. The more big important websites that get issued with takedowns, the more the government gets protested because you and I both know that big important commercial sites will wiggle and squirm if a takedown notice actually occurs (but getting that far will be a near-impossible struggle), the more they might think such stupid legislation needs to be repealed, the insigator(s) fired, and something better and more appropriate considered.

Need I mention that the current negotiations for ACTA, the latest set of agreements regarding this on a far wider scale (it covers counterfeiting in general as well) are taking place in secret? It's worth looking at the Wiki page linked to see what else is going on behind closed doors.


Your comments:

Please note that while I check this page every so often, I am not able to control what users write; therefore I disclaim all liability for unpleasant and/or infringing and/or defamatory material. Undesired content will be removed as soon as it is noticed. By leaving a comment, you agree not to post material that is illegal or in bad taste, and you should be aware that the time and your IP address are both recorded, should it be necessary to find out who you are. Oh, and don't bother trying to inline HTML. I'm not that stupid! ☺ ADDING COMMENTS DOES NOT WORK IF READING TRANSLATED VERSIONS.
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All Your Base Are Belong To Us [Rick], 6th March 2010, 03:35
The so-called "Mandybill" (it's a bill being promoted by Lord Mandelson) is involved in the ins and outs of copyright protection in the online world. It is unlikely to have a three-strikes system, however penalties could be fairly severe. 
However, in an amazing perversion of reality... well, let me quote from TheRegister: What the Mandybill does is formally regulate orphan works, copyright material where the author can't be found. It also grants special status, complete with immunity, to institutions to publish the works. 
In other words, our content is ours. Oh, and your content? That's ours too. 
Look at the comments page on the above linked story. Makes my feelings known.
Rick, 6th March 2010, 03:41
Actually, thinking about it, we ought to dissolve current copyright arrangements. Commercial interests have pissed all over the concept from all directions, and copyright as it stands is no longer fit for purpose, at least in an on-line sense. 
A replacement needs to be tabled and PUT TO REFERENDUM (given that ACTA shows we cannot trust our leadership to act in the interests of the people they are supposed to represent).

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