The Electronic Frontier Foundation (EFF) has responded to the July 6 “Memorandum of Understanding” (MOU) between big content and ISP’s that outlined a graduated response scheme of “copyright alerts” for enforcing user compliance with respect to content distribution models. The responses detailed include notices, education and, ultimately, restrictions on access. The EFF notes the involvement of NY Governor Andrew Cuomo in the process, no doubt building on his earlier success of removing Usenet from all local major ISPs.
The EFF’s main bones of contention are that 1) the “education” involved is big content propaganda and omits all mentions of fair use or other adverse legal aspects; 2) that the public was at no point consulted in the process. It is noted that, on the latter point, that the Center for Copyright Information (CCI), set up to administrate the six-strikes system,will have a three-person advisory board to voice the concerns “from relevant subject matter and consumer interest communities.” The subscribers, who’s fees will be paying for the entire effort, and who will be subject to its mandates, have no direct representation whatsoever.
Why representation? Noting an egregious lack of due process in the provisions the EFF suggests that, if the public had been consulted, some of the following considerations might have been included:
- The burden should be on the content owners to establish infringement, not on the subscribers to disprove infringement.
- Subscribers should be able to assert the full range of defenses to copyright infringement.
- Content owners should be accountable if they submit incorrect infringement notices.
- Subscribers should have adequate time to prepare a defense.
- There should be adequate assurances that the reviewers are neutral.
Read more: The “Graduated Response” Deal: What if Users Had Been At the Table?