New Copyright Alert System Infringes The Constitution

The so called Copyright Alert System (CAS) or better known as Six Strikes is beginning this week and many ISPs including Comcast, AT&T, Verizon,  Time Warner and others will begin policing the Internet for the RIAA and MPAA. The ISPs will first send out warnings if their system determines there has been an unauthorized download coming from your IP address. If you get too many your service may be downgraded and even terminated completely. An entity set up by the ISPs, RIAA and MPAA called the Center for Copyright Information is charged with “educating” those accused and will hear your case for a $35 fee if you fight their charges.

There have been many cases lately where judges have ruled an IP address alone is not sufficient evidence of wrong doing and it in no way proves who did it or even whether any downloading occurred. If CAS relies solely on IP addresses then the standard of evidence is far below that of regular courts and even with regular courts many are falsely accused so the risk is even greater with this outfit.

The problem  is this scheme is blatantly unconstitutional. The Constitution grants Congress sole authority to enact copyright laws and only federal courts have jurisdiction to handle copyright cases and punish violators. The new Copyright Alert System (CAS), or “Six Strikes” does an end run around Congress and the Federal Courts and has set up a quasi-judicial system to punish copyright infringers apart from the federal courts.

There is zero transparency on the process of determining guilt with no apparent appeals process or due process. The process for determining infringers is secret and they alone decide your guilt or innocence.

Righthaven case law could come into place here. Righthaven is now a defunct copyright troll but in their hay-day they were threatening to take the domain names of those they were suing for copyright infringement. Courts ruled that there was no provision in copyright law to award a domain name as part of a copyright infringement suit. Likewise there is no provision in copyright law for an ISP to deny or ramp down service as a punishment for copyright infringement. The ISPs along with the RIAA and MPAA are creating their own law and extra-judicial system to punish copyright violators.

Call your ISP and let them know this system is unacceptable and will not even have the desired effect of reducing piracy. Call your Congressmen and Senators and let them know their authority is being infringed upon. It is a blatant hypocrisy for the RIAA and MPAA to set up a system to go after alleged infringers when they themselves are infringing on the Constitution.

This will undoubtedly fail like similar attempts in France and New Zealand and everything else the RIAA and MPAA  have tried but on the way a lot of innocent people will be victimized by this sham. The only thing that will mitigate piracy is to offer legitimate alternatives and adapt to a changing market place.

Related story from Arstechnica:  What the 1930s fashion industry tells us about Big Content’s “six strikes” plan

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  1. #1 by Mike Masnick on February 27, 2013 - 4:16 am

    Hmm. While I have many, many problems with the CAS, I don’t see how it’s a Constitutional issue at all. It is an agreement between private entities concerning how they will treat certain customers. The Constitution is irrelevant to that agreement…

  2. #2 by Ken Bingham on February 27, 2013 - 7:25 am

    Mike

    I understand their is an agreement but agreements cannot run counter to law. They are attempting to do the job of the Federal Courts mainly because they did not get laws such as SOPA passed and they are taking matters into their own hands doing an end run on Congress and the Federal Courts.

  3. #3 by Ken Bingham on February 27, 2013 - 7:38 am

    For instance two companies cannot agree that you waive your right to fair use by doing business with them. Some companies try and put language into agreements that are completely unenforceable by law such as waiving your right to sue or as you have written in techdirt some companies and individuals have put in agreements that you cannot criticize them. These agreements run counter to law so they have no real legal standing.

  4. #4 by Mike Masnick on February 27, 2013 - 11:05 am

    Hi Ken,

    I think you’re simply incorrect on this one. Nothing in a private agreement concerning how an ISP treats your account runs “counter to law.” An ISP has a right to serve anyone however they want.

    I agree that CAS is bad, but there isn’t a constitutional issue here. There is no giving up of your rights under this system.

    • #5 by Ken Bingham on February 27, 2013 - 1:56 pm

      Mike

      Yeah I could be wrong and it wouldn’t be the first time. I expect this to be challenged in court when warnings start going out and this could be an argument a victim could use if they chose to sue their ISP for any action taken because of the CAS system. I do agree that an ISP has the right to discontinue service and can put provisions in their terms of service that allow them to disconnect if you are abusing the system. I think where the problem lies is the arrangement that amounts to the RIAA/MPAA and the ISPs setting up a quasi-court system and could even run into anti-trust problems as described in the arstechnica article. and dealing out punishment and I am very concerned that their standard of evidence will be very weak. For one thing the burden rests entirely on the customer not necessarily the person who may have done the downloading. As you have pointed out in Techdirt posts anyone running an open wifi is at risk.

      • #6 by Shane on February 27, 2013 - 7:02 pm

        Sorry Ken, but Mike is dead on here. There is simply no reason that this can be seen as a constitution issue. A private company which can choose to serve you or not, as they choose, have told you exactly what reasons they will terminate service. They are even giving you six warnings. What is your complaint?

        The real reason this should be an issue is that amazon, Netflix, Apple, and many other companies have shown that the model to fight piracy is to provide the product people are pirating as cheaply and easily available as possible, and then take in the money. The heavy handed approach just alienates people. As shown by your response. It is a stupid idea they have, but for practice, not constitutional reasons.

  5. #7 by Larry Bergan on February 27, 2013 - 8:52 pm

    This is probably not a constitutional issue, but a complex one. I’ve watched movies for free on the internet on legal sites and usually use iTunes to pay for movies I want to keep.

    I think it’s a good thing that these companies plan to give us a warning, every time we illegally download something, because I have no idea what all of the intricacies are, and I don’t want to deny people of making the money they deserve for their efforts. I think the popular perception is that movies are easy to make and actors/actresses don’t work very hard. I, totally reject that notion.

    That being said, I don’t think movie makers, basketball players, lobbyists, CEO’s, or hedge fund manipulators always deserve to leave the rest of us in the financial dust. There is a reason some of these, and other, professions are considered to be “the usual suspects”.

    brewski can note that I didn’t include teachers in that category.

  6. #8 by Larry Bergan on February 28, 2013 - 12:04 am

    Ken:

    In case you haven’t noticed, OneUtah has been sequestered lately.

    Why are you posting here when you will probably not get any responses?

  7. #9 by Larry Bergan on February 28, 2013 - 12:20 am

    OneUtah isn’t on dialup. We’re on the pony express.

  8. #10 by Larry Bergan on March 1, 2013 - 1:42 pm

    Cliff fixed it. We’re back on the bullet train!

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