The debut of the 6-strikes system is now on us, and yet we have to wonder why it’s here in the first place. The US already has a robust court system for dealing with alleged infringers (and tens of thousands that have been targeted by it over the last few years can attest to that) as well as a notice-and-takedown system in the DMCA. So why do we need another system, this graduated response setup?
In a nutshell, those other two systems are not effective at doing what the people behind it want it to do. They would like copyright elevated to a minor deity, where infringement is dealt with as the ‘blasphemy’ some think it should be. Only if you accept the copyright as the inviolable and unsullied holy of holies can you get into heaven. To that end, anything that’s remotely copyrightable must be protected at all costs from use by the lesser people (anyone that’s not a major entertainment corporation or a politician).
Something like that anyway. Let’s call it COPYRighteousness.
So why the new system, what’s with the existing laws? Simply put, they’re not as effective as the COPYRighteous want them to be. From their perspective, both the court system and the DMCA have major flaws, which hamper their effectiveness. So let’s look at these flaws.
The DMCA has a notice-and-takedown system in it. This means that if you send a host or other person a DMCA notice, they’re supposed to take it down, or be liable for it in court. While it’s a US law, it’s been effectively applied around the world.
How it works
Someone who feels their work is being infringed can send a notice to the host requesting it be taken down. The work should be taken down immediately, for the intermediary to preserve safe harbour (immunity from liability because they’re just a conduit). Then if so desired, the alleged infringer can file a counter-notice to have the work restored. At that point the accuser then has to file a lawsuit.
Why it’s used
It’s often used to take down large swathes of content. A single notice can contain multiple links – one DMCA notice I recall seeing sent to Mininova many years ago contained a 1000 line spreadsheet of infringing content to be removed. It’s also cheap, and quick to do. There are form letters that can be filled out, and it’s just a simple email to send. Did I also mention you don’t have to have any real proof, not proof that you are the rights holder, but also that the link is even infringing! How great is that!
As an added bonus, there’s no real consequences for filing false, misleading, inaccurate or flat out lying notices. What consequences are in the act, have never been enforced, and the one case that has gone to court over heretical “fair use” has taken more than 5 years, and may result in damages of less than $2000 – chickenfeed. And there was one case of a plain false claim being called out, but thats one from millions. Really good odds.
The main issue of DMCA notices is that they’re overused. The quick and simple nature, and the lack of any real checks and balances in filing a notice, has meant that they’re significantly abused. The website Chilling Effects has significant numbers of DMCA notices, and over at TorrentFreak they’ve covered lots of cases of false DMCA notice claims. This means their impact has been diminished in many cases, reducing their effectiveness, so file more and threaten to sue to put them in place!
It's also easy to have a counter-notice filed (and there are form letters for that too) which undermines their use as a tool to effectively control media consumption by the masses. Once a counter-notice has been filed, you have to resort to a lawsuit.
Finally, some sites (like the heathen TPB) just don’t care about US laws, since they’re not in the US. This means companies have to resort to the courts, and file a lawsuit.
This is the heavyweight method of enforcement. You’re going to get a resolution one way or the other, and you’re not going to be subtle about it. Instead you’ll use the full weight of the law to get what you want, and get it sorted. And there’s also the benefit that you can get damages!
How it works
You take your evidence to a lawyer, and ask them to file a lawsuit. The lawsuit is filed with the court and then it proceeds. It’s pretty obvious how it works. DUH!
Why it’s used
It’s a court! While you can file a DMCA counter-notice (rightly or wrongly) you can’t act as arbitrarily as you can with a DMCA notice. Your actions and activities are on record and did I mention the damages? They can range from $250 to $150,000 per infringement, and if you just threaten this, you can often get them to roll over and take it down, and maybe settle with you out of court. Nice eh? You can sometimes also get other restrictions or beneficial decisions, and during discovery, you get to have a good root around for whatever you need.
It also costs money to defend against you, so if you price things right, you can make it cheaper to have them accept guilt, say sorry, and pay up; than to fight it, and risk massive damages on top of legal costs. Freetard parasitical thieves call this "copyright trolling" and don't seem to like it - heathens.
Cost! It’s f^&*ing EXPENSIVE to file a lawsuit against a person. You have to hire a lawyer, collect the evidence, then file the case, all of which costs money. And even then you’re often filing against a John Doe (that is an as-yet unidentified person). Once they get notified, they can get involved, and thus we have the SECOND problem – time. These cases can drag on for years. All while racking up expensive legal costs you may never recover!
Then there’s the evidence problem. A growing number of courts have cottoned on to the fact that the level of evidence in most infringement cases is not great, bordering on non-existent, and have started throwing out cases. Meanwhile, the cases has dragged on for years, and cost you a lot and you’ve got little to show for it.
Then there’s also the massive problem of consequences for inaccurate, or false claims, which precludes a lot of copyright enforcement actions. Holding copyright enforcers to account for their errors, inaccuracies or over-enthusiastic activities goes against the divine right of the CopyRighteous, and is not pleasant at all.
So what we need are some alternatives. Ideally, we need something that has some kind of teeth to it, but without the judicial oversight that has been destroying so many promising enforcement actions. It needs to have the near-zero evidence requirements, the burden of proof on the defendant, and the lack of consequences for false/inaccurate/mistaken claims from DMCA notices. It also needs some means of enforcement, a cost to defend ($35), and a sense of legal inevitability from court proceedings.
Thankfully the 6 strikes process manages all of this. And it adds in some additional benefits, such as getting rid of that pesky independent judge, in favour of a private arbitration company, who really honestly promises they won’t just rule in favour of the group that hired them.
BONUS! In another master stroke, the ISP’s (who have often resisted efforts to use the courts) are on the OTHER side here, and are active partners in the program, and that pesky hurdle has been turned to an advantage.
All in all, the 6 strikes program is one that really benefits the COPYRighteous by taking the benefits of the DMCA and the court systems enforcement and combining them into a new whole, where the flaws of each, ruthlessly exploited by those blaspheming filesharers are neutralised.
The REAL Summary
Unless you're a media company, this stuff really sucks for you. Basically, it’s a DMCA notice system, where the easy counter-notice is instead replaced with a pay-to-arbitrate system. Instead of judges which have started to throw out the farcical “evidence”, you have an arbitration company paid by one side (hint: NOT YOUR SIDE) and while you have sanctioned for being accused 6 times, there are absolutely ZERO penalties for filing 1 million false notices.
Oh, and the independent audit of the system, they lied about it, were caught, said they'd re-review it (yeah, because I'm sure they'll find they're jobs are totally not needed) and found everything ok (see, what a surprise!). Despite the 'evidence' provider flagging it's clients OWN SITES as infringing.... What an encouraging situation.
The bottom line – we got screwed by the COPYRighteous AGAIN.