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Innocent Users Falsely Accused of Copyright Violations
Are You Next?

by Bob Schmidt
Author of The Geek's Guide to Internet Business Success
Published by John Wiley and Sons

As discussed on a related page on provider.com dealing with false accusations of spamming, as ISPs increasingly come to play the role of Internet Big Brother, innocent Internet users are being falsely accused of spamming and now copyright violations -- and wrongly punished

Anyone with an email account or a website is at risk of being falsely accused of spamming. Now, anyone with an Internet account, especially high speed cable accounts, is at risk of being accused of --and having their account cancelled for--  supposedly illegal uploading or distributing copyrighted materials and violating the Digital Millennium Copyright Act

If you have a high speed account  with a cable company,  almost all of which are owned by entertainment conglomerates, you are especially at risk since they are all also in the movie production and music production business. They will do whatever the MPAA tells them to do. For these companies, stamping out copyright violations is fast becoming their only reason for existing. 

This story in Salon magazine describes what happened to one Time Warner cable subscriber who was singled out for supposedly uploading copyrighted materials via his cable modem account. As is true of anyone falsely accused of spamming, his ISP shut down his account without warning, and without proof. They simply took the word of the MPAA, just like ISPs take the word of MAPS, and shut him down. There is no reason to believe this is an isolated example. For every case reported in the press, who knows how many hundreds, possibly thousands, of others will be falsely accused?

Why is this happening? Because ISPs are, in effect, no more than private online country clubs. Like a country club member, Internet users have only those rights which are granted them by their ISP "club." The sad truth is, as far as the typical ISP is concerned, as an Internet user, you have no rights whatsoever. If you haven't abided by club rules -- or the ISP thinks you haven't --  you're out-- with no recourse, no right of appeal, and no due process. Evidently, ISPs are free to discriminate against anyone they choose, for any reason. If you've been an innocent victim of false accusations and had your email account or website shut down, tell me about it (email to victim@provider.com)

In addition, ISPs have foolishly allowed themselves to get sucked into a no-win position: they have bought into the absurd notion that the ISP is responsible for everything that goes out over the Internet and is the one who must do something about every Internet problem. Now, with high speed accounts being offered by cable companies, the fox is guarding the henhouse and users are bound to be the losers.

I predict this will only get worse. Ultimately, it  will affect every Internet user or someone they know. Eventually, every Internet user will have their Internet account shut down by a misguided, trigger-happy ISP either supposedly for spamming or for supposedly violating copyright laws.

An Internet User's Bill of Rights is entirely appropriate and should be developed now to address the completely outrageous imbalance of power between users and ISPs

One of the fundamental tenets of Internet users' rights should be the recognition that bandwidth is a publicly owned resource, no different than telephone, broadcast, cable and utilities. The ISP, merely a reseller, must  be required to relinquish all content control to the user. Does the electric company tell you what you can watch on tv or block tv commercials? Of course not. And ISPs should not be in the content regulation or prior censorship business, yet that is exactly what they are doing when they block email and when they shut down user accounts for supposed violations of copyright laws.

ISPs who are content producers have a conflict of interest. They should be barred from being ISPs --for the same reasons that movie studios were barred from owning movie theaters. This is the new form of monopoly in the Internet age and the inherent conflicts of interest should be prohibited by legislation, or, in the most extreme cases, broken up as anti-trust violations.

All of these problems stem from one cause and one cause alone: the privatization of public communications resources. When private companies take the place of government, laws are required to protect the public. If the government ran ISPs, and they wanted to shut you down, they would need to adhere to the rules of due process -- and have probable cause before taking action. Even then, the government would have to arrest you and convict you. 

This is far different than the situation today. ISPs can and do block email on an arbitrary basis. Their users have no idea who or what is being blocked or when or why.  The ISP decides, willy nilly, what email it wants to deliver and now it decides willy nilly who it wants to shut down for copyright violations. Drunk drivers have more rights than innocent Internet users. The ISP stands as judge, jury and executioner. This is a kangaroo court where consumers -- Internet users -- are guaranteed to lose.

ISPs should be common carriers offering service on a first come, first served basis to all who can afford it, just like the post office, the phone company, Federal Express and UPS. This is a no brainer. Instead, ISPs are "going postal" and killing off innocent email and innocent Internet users.

It is now clear that no one has any idea what the ISP is really doing. It is absurd for Internet providers to think that they know what is real mail and what is spam -- or worse that they know what is best for their users. How could they possibly know what is in your mail? There is only one way  -- your ISP has to read all of your email. How could your cable company possibly know what is being uploaded from your computer? Again, there is only one way -- your cable company has to look inside the files you are uploading. Is this really what you had in mind when you set up an Internet account? I doubt it. 

Until they are designated as common carriers, ISPs should at least be required by any law attempting to regulate digital copyright to provide a "cooling off" period or a grace period before punishing a customer suspected of -- and probably innocent of -- uploading copyrighted materials. That will at least help level the playing field for users.

Smart ISPs will not wait for a law. They will offer their customers these protections now, act like common carriers, and refuse to be held accountable for what's in everyone's email and everyone's upload stream.