Law in the Internet Society

Behind Closed Doors: ISPs Set to Implement Six-Strikes Policy

-- By AndrewHarmeyer - 19 Dec 2012


The “six strikes” system proposes to reduce copyright infringement by everyday Internet users through a combination of “educational” and mitigation measures, ranging from pop-up notifications to a throttled connection or even a temporary service disconnection. The first draft of my paper focused on my concerns over the lack of transparency and unfairness in six strikes, which is a joint effort between ISPs and major content owners, and was created with no input from the public. As pointed out in Professor Moglen’s first round of comments, sophisticated technology users will likely be unaffected by six strikes. For “Joe Consumer,” however, six strikes underscores the need for easy to implement free software, such as the FreedomBox, for privacy protection that does not intimidate unsophisticated users.

Getting Around Six Strikes

Sophisticated web users who are already concerned with Internet privacy should be unaffected by six strikes, as there are several ways to circumvent that system. Six strikes uses a third party, MarkMonitor, to track the downloading of copyrighted files to an otherwise unsuspecting user’s IP address. The solution is relatively straightforward – if the IP address that MarkMonitor? matches to an allegedly improper download does not match the user’s own IP address, then there is a dead end and the user retains his or her privacy on the Internet.

One way to achieve this is a proxy. A proxy is an intermediate computer that communicates on behalf of your computer. MarkMonitor? would track your proxy’s IP address instead of your own. If your connection to the proxy is encrypted, then your ISP cannot tell what you are downloading; it only knows that you are connected to a proxy. Another option is a Virtual Private Network (VPN), which mimics a private local network using a public network such as the Internet. The communications over the VPN are encrypted; similar to using a proxy, MarkMonitor? cannot associate your downloading activity with your own IP address. It should be noted, however, that the VPN provider is still able to see your activity, so it is important to find one you trust. If the provider keeps a log of its users’ activities and is subject to subpoena, then do not assume your activities are fully anonymous.

But What About “Joe Consumer?”

For the technologically unsophisticated user, six strikes is a different story. Before taking this course and writing this paper, I had no idea what a VPN or a proxy is, as used in a technology setting. It appears the average ISP subscriber that does not take measures to protect its privacy, or does not even know these measures exist, is subject to prying by six strikes through MarkMonitor? . The head of six-strikes, Jill Lesser, acknowledges that users with technical know-how will be able to skirt the system. But according to Lesser, the purpose of six strikes is not to dissuade what she calls “sophisticated pirates;” instead, the aim of the system is to “go[] after Joe Consumer.”

So how does six strikes change the status quo for “Joe Consumer?” Content owners already can track downloading and can serve subpoenas on ISPs, seeking the IP addresses of users so they can file John Doe lawsuits. Now, users will instead receive measures that ratchet up in their level of severity, from “educational warnings” to full-blown mitigation measures, but the possibility of lawsuits is left open, and a user’s acknowledgment of the aforementioned warnings serves as pretty good evidence of willfulness in an infringement suit.

My biggest problem with six strikes continues to be the lack of transparency and fairness in its appeals process. As discussed in my first paper, the normal presumption of innocence inherent in our legal system is turned upside down because evidence of infringement, which is collected by the content owners themselves, is accepted as true, and the burden is imposed on the user to pay $35 to obtain review by an arbitrator. Six strikes provides a one-time freebie for users with an open WIFI that claim someone else must have downloaded copyrighted works through their connection. As Professor Moglen points out, this is a non-issue if the WIFI owner had a FreedomBox because each user accessing the open WIFI connection will retain its privacy. But six strikes is probably counting on some users securing their WIFI instead of being berated with warnings because they prefer not to deal with the hassle.


I think most “Joe Consumers” care about their privacy, but some may just accept six strikes and some privacy loss in general as a cost of using the Internet. Some are probably unaware of the tools they can use to protect their privacy. To my classmates reading this paper, I suggest researching the use of proxies, VPNs, and other privacy protecting free software such as Tor. But still – there may be other “Joe Consumers” who have heard of these tools but are intimidated by technology or view the technology as difficult to implement. The FreedomBox, which is a personal plug server that runs free software and can be used to protect personal privacy, is a solution for this group of “Joe Consumers.” But first, the Freedom Box must be widely available and, probably more importantly, it must be available at a reasonable cost.

The revision makes a little more technical sense, but only a little. No one needs a VPN "provider": if you have cooperating endpoints, there's no need for a service provider at all. My personal devices and computers are connected by a VPN with no one in the middle. The same is true of all the devices used by everyone at SFLC, including the devices we use for voice communications. So what you say about VPNs, like most of what you said in the first draft about "six strikes," is more misleading than leading.

We're still short a reasonable account of the political economy. Your "Joe Consumer" isn't consuming just anything: for six strikes to be relevant, he is consuming material that infringes the copyrights of oligopolists who want him to stop. The ISPs are people who want Joe Consumer to burn as many bits as possible, provided that his doing so doesn't cost them burdensome enforcement efforts on behalf of other people, that will reduce their profits on the bits Joe Consumer "consumes." The "six strikes" nonsense is a way of continuing to help Joe Consumer burn as many bits as possible while pretending to improve the oligopolists' control over "content" while maintaining maximum profitability. If you explain how to exploit those divisions in order to assist "Joe Consumer" to do something more important than watch movies without paying for them, you would be doing the reader a significant service.

FreedomBox is free software. Its price is zero. It runs on small cheap hardware that costs, now, if you pick, say, Rasberry Pi, in the neighborhood of $30. Soon it will be installed by children in Android-powered dishwashers, refrigerators, coffee-pots. They will cost more. But why will that matter? The point is that "the Internet of things" will be powerable by software that provides secure communications to everyone at small additional cost. The point is to defeat despotism, not to watch movies without paying for them. See above.

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:

Note: TWiki has strict formatting rules for preference declarations. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of these lines. If you wish to give access to any other users simply add them to the comma separated ALLOWTOPICVIEW list.


Webs Webs

r5 - 23 Aug 2014 - 19:31:21 - EbenMoglen
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM