The British Phonographic Industry (BPI) has written to two broadband ISPs, asking them to terminate the DSL connections of customers whom the BPI claims are engaged in infringing file-sharing. The BPI is basically asking to replace the “notice-and-takedown” regime that allows anyone to censor any web-page by claiming it infringes copyright with an even harsher regime: notice-and-termination, where the ability to communicate over the Internet can be taken away on the say-so of anyone who claims you’re doing something naughty with copyright.
It’s hard to imagine anything more perverse, really. Copyright is supposed to protect expression, but the BPI thinks that protecting its business should take precedence over due process or free speech. They want to be able to silence anyone whom they think might be breaking the law, without having to go to the expensive mediapathic bother of bringing a lawsuit, with evidence, and proving their case to a judge.
I actually attended a preliminary meeting on notice-and-termination the UN’s World Intellectual Property Organization (WIPO) last year. WIPO is the entity that gave us notice-and-takedown, which is now embedded in Europe through the EUCD and in the USA through the DMCA. Notice-and-takedown allows people claiming to be be rightsholders to have any web-page removed from the Internet just by claiming that it infringes their copyright. The Church of Scientology uses this all the time to shut up its critics, and Diebold used it to suppress the publication of a whistle-blower memo that detailed the critical failings in their voting machines (for more examples of bogus takedowns, see Chilling Effects).
The music and movie and software industries are notoriously careless with their takedown notices. ISPs receive thousands of these at a time, generated by software. Kids’ book-reports about Harry Potter, MP3s of lectures by university profs named Usher, and even copies of Linux are routinely mistaken for infringing materials by the takedown bots.
Notice-and-takedown is a censor’s best friend, but as the music and film industry can attest, it hasn’t made any kind of dent in copyright infringement. For one thing, it’s wholly ineffective against P2P file-sharing — notice-and-takedown only works on stuff hosted on an ISP’s web-server, not on a customer’s own PC.
The new proposal for notice-and-termination aims at creating an even more radical version of this judge, jury and executioner privilege the entertainment industry has secured for itself. Under notice-and-termination, you need only claim to be an aggrieved rightsholder to actually knock someone’s DSL circuit offline.
This sounds like something similar to notice-and-takedown, but there’s a gigantic difference: the cost of connecting a DSL circuit is vastly higher than the cost of putting some files on a web-server. Indeed, ISPs have told me that it can take years to recoup the cost of connecting a customer to the Internet.
If termination notices could be sent in the same volume (and with the same negligence) as takedown notices, it could potentially destroy ISPs, who would be forced to terminate customers — on the mere say-so of the entertainment industry — long before the customer had made a penny of profit for the ISP.
Indeed, I pointed this out to a rep of one of the industry lobby groups I met at WIPO and he agreed, but proposed a simple solution: ISPs could cripple their customers’ Internet connections, throttling their bandwidth, banning certain protocols and spying on file-transfers and terminating anything that might be an infringement. By prohibiting all large file-transfers, by constraining upload speeds, and by blocking any non-Hollywood-approved protocols, ISPs could ensure that their businesses wouldn’t be destroyed by an avalanche of termination notices.
And since this is being proposed as a United Nations treaty obligation, every ISP in the land would have the same restrictions, so no customer would be able to jump ship for a less censorious provider.
If this regime had been in place when VoIP was invented, there would be no VoIP — after all, the protocol didn’t exist, and for it to take hold, every ISP in the world would have to be convinced, a priori of its value and allow it at the firewall. Hell, this regime would have made the Web itself impossible; Tim Berners-Lee was smart enough to invent the Web, but would he have had the wherewithal to convince the world’s ISPs to let http on port 80 through their liability-limiting firewalls?
The BPI is floating a trial balloon here, but it’s not a coincidence that they’re proposing something already under discussion at WIPO. Getting countries or even major ISPs to adopt notice-and-termination paves the way for the creation of a takedown treaty — and the end of the Internet as we know it.
(via /.!)