In a stretch even the most accomplished Yoga master would never attempt, an industry-funded dollar-a-holler group has told Congress that Internet Overcharging is a useful tool to combat online piracy.

On Tuesday, Daniel Castro, an analyst at the Information Technology and Innovation Foundation (ITIF), testified before the House Judiciary Committee on the issue of combating “rogue sites [that] operate in a low risk, high reward environment.”

In December 2009, ITIF proposed a number of policies to help reduce online copyright infringement, especially in countries that turn a blind eye to copyright enforcement. The purpose of these policies is to establish a robust enforcement mechanism to combat IP theft online. These recommendations include the following:

• Create a process by which the federal government, with the help of third parties, can identify websites around the world that are systemically engaged in piracy;
• Enlist ISPs to combat piracy by blocking websites that offer pirated content, allowing pricing structures and usage caps that discourage online piracy, and implementing notice and response systems;
• Enlist search engines to combat piracy by removing websites that link to infringing content from their search results;
• Require ad networks and financial service providers to stop doing business with websites providing access to pirated content;
• Create a process so that the private sector can consult with government regulators on proposed uses of anti-piracy technology;
• Fund anti-piracy technology research, such as content identification technology;
• Pursue international frameworks to protect intellectual property and impose significant pressure and penalties on countries that flout copyright law.

Castro’s idea of allowing providers to establish “pricing structures and usage caps” stands out like a sore thumb in the context of battling piracy because it is the only recommendation on the list that targets every broadband user with the same broad brush, punishing every customer whether they are engaged in piracy or not.

It would be like setting up roadblocks and searching every vehicle in a city to search for a shoplifter.  Every individual is found guilty before being proved innocent, and will be forced to pay higher prices regardless of the outcome.

The ITIF proposal runs contrary to years of efforts by Internet Service Providers to avoid being involved in the personal business of their customers.  In 2009, major ISPs wanted no part of enforcing a proposal from the record industry for a “three strikes, you’re out” plan.  Verizon, among others, made clear copyright enforcement was not their responsibility to police, although many ISPs are willing to forward copyright infringement notices to individual customers.

Castro’s testimony goes over the top when he blames his own suggested pricing antidote for “hurting law-abiding consumers who must […] pay higher prices for Internet access to compensate for the costs of piracy.”

Of course, no ISP has ever suggested they would use the extra revenue earned from Internet Overcharging to combat another industry’s piracy problem.

His sweeping indictment against consumers extends beyond nipping at their bank accounts on behalf of telecommunications companies who help fund the group he represents.  He also suggests those who oppose his piracy prescriptions are either in league with, or defenders of piracy — or other offenders ranging from criminal enterprises to kiddie porn peddlers.

Castro’s support for usage caps to control illicit online activities leaves collateral damage as far as the eye can see.  It also simply won’t work for many forms of piracy Castro complains about.  ISPs with usage caps go out of their way to note even the most draconian limits still allow thousands (if not hundreds of thousands) of songs to be downloaded — legal or otherwise.  Castro testified e-published books are now increasingly vulnerable to piracy, content compact and easy to obtain even with usage limits.  Combating websites dealing in counterfeit goods with usage limits isn’t even worth trying.

What Castro’s proposal will do is limit access to the growing amount of legitimate online video traffic.  While the author cites statistics that “one in four bits of traffic traveling on the Internet today is infringing content,” (taken from a report commissioned by NBC-Universal, who has a major interest in this battle) he ignores other facts.  Namely, more than three-quarters of all broadband traffic is legal and legitimate.  Nearly 20 percent of primetime broadband traffic is coming from companies like Netflix who are in the business of providing a legal alternative to video piracy.

Castro’s argument on usage caps simply falls apart: ISPs, who have never been particularly interested in being the enforcement divisions for Hollywood studios, should be given the right to limit broadband usage and raise prices to combat piracy even when most of that traffic heads for legitimate websites?

Public Enemy #1 for Content Theft circa 1981: The $1,400 VCR

Online piracy enforcement should not involve Internet Overcharging schemes, and arguments that it should only illustrate why so many consumers and public interest groups get nervous about industry-proposed enforcement mechanisms.  Too often, they ignore presumption of innocence before guilt, browbeat alleged offenders into settlements to avoid costly litigation — guilty or not, and turn over policing to an industry with a long track record of overreach to protect their business interests. The record speaks for itself:

• Demands to ban videotape recorders in the 1970s and early 1980s for “piracy reasons”;
• Tax cassettes and video tapes to cover alleged piracy losses in the 1980s;
• Tax blank digital media in the 1990s because of “rampant piracy”;
• Impose monthly “piracy recovery surcharges” on broadband users in the 2000s;

Now the industry wants to police the piracy problem on its own terms.  As before, the proposed solutions are worse than the problem.

Back to the future.  In 1981, ABC’s Nightline ran this report on the entertainment industry suing a VCR owner, retailers, and manufacturers for piracy over taping a television station with a videocassette recorder.  The concern in 1981 — technology was moving faster than copyright law could keep up.  Many of the yesterday’s players are part of today’s debate, including Universal, the company that purchased research indicting 20 percent of all Internet traffic as “illegal.” (Part 1 of 3 – 9 minutes – Courtesy WEWS-TV Cleveland, ABC News, and ‘videoholic1980s’)

Today’s piracy debate rehashes the same accusations of content theft, only the technology has changed.  One executive tells the Nightline audience he’s offended at being told the industry already earns enough.  The movie and television industry predicted calamity over the VCR more than 30 years ago, saying it would cost them billions in lost profits.  Hollywood eventually lost the argument against the VCR and their businesses turned out fine, earning billions in revenue selling videotapes of movies and television shows to consumers they were willing to sue just a few years earlier. (Part 2 of 3 – 9 minutes)

Before Washington is asked to join the panic-frenzy over online piracy, perhaps they should recall the same predictions of doom and gloom made by many of the same companies — predictions that were overstated.  Imagine if they had succeeded in banning the VCR?  Indeed, just as before, Hollywood stands to earn billions online when they make their content available for easy, legal viewing at a reasonable price.  Slapping usage limits on broadband consumers is the worst idea ever to promote legal viewing of digital content because it discourages customers from shopping for it.  (Part 3 of 3 – 4 minutes)

Canadians may soon get a license to steal, if songwriters have their way.

For $10 a month, Internet users will be able to beg, borrow, or openly steal as much music as they want, from anywhere they want, without legal reprisals.

The apparent “cry uncle” tactic against piracy comes from the Songwriters Association of Canada.

Eddie Schwartz, president of the group, says the monthly fee would be automatically tacked onto every Internet access account, raising more than $800 million annually.  Consumers who don’t want to pay the music sharing tax can “opt out,” if they notify the Association and agree not to engage in any online music sharing activity.

“The surest and swiftest way to dramatically reduce infringement is to give consumers an authorized way to music-file share. Once such an authorized system is in place, consumers who refuse to pay a reasonable license fee will clearly be choosing to infringe and can be dealt with accordingly,” reads Schwartz’s proposal.

Proceeds raised from the monthly tax will be diverted to songwriters, but not record companies — a matter the latter has taken notice of, claiming they have not been involved in the discussions.

This is not the first time the group has proposed a “music license fee.”  In 2007, the group tried to amend the Canadian Copyright Act to force service providers themselves to pay a tax on behalf of their file sharing customers.  The effort never made it out of Parliament.

This time, the group is talking directly with several unnamed Internet Service Providers about implementing the fee without seeking advance approval from the government.

Schwartz argues his proposal will monetize file sharing and eliminate enforcement headaches, because the group would only target individual infringers that refuse to pay the monthly license fee.  Schwartz says the majority of Canadians would support it.  He quoted recent studies that claim as many as 80 percent of all file-sharers would consent to a monthly fee if it eliminated their risk of prosecution.

But the government may take a dimmer view.  Many provinces forbid automatically billing consumers for services without their direct consent.  The so-called “negative billing” proposed by Schwartz would require a consumer to specifically opt out of the monthly charges.

Consumers are also likely to question higher charges for Internet service at a time when regulators are still reviewing usage-based billing schemes.  Considering the fees only cover songwriters, more than a few consumers are likely to wonder when Hollywood studios, television networks, software publishers, and record companies will come for their piece of the action — all have suffered to a similar degree from the underground trade of their products.

[Thanks to our reader Alex for sharing this news tip.]

Forget about peer-to-peer torrents, file sharing networks, and download sites.  They are so yesterday.  Newsgroups?  That’s so last month.  No, today’s targets of Hollywood’s copyright cops are online video streaming sites that make watching pirated movies and television shows simple.  So simple, many viewers may not even realize they are watching illicitly.

At issue are video streaming sites that take uploaded video files and use them as part of one-click streaming entertainment portals.

Websites like Megavideo deliver thousands of shows and movies to viewers who want to watch online.  These sites bypass video “pay-walls” that limit viewing thanks to an army of volunteers who capture copies of programming and then upload them to file storage sites.  Previously, those who wanted to watch had to download multi-part files and use software to put the pieces back together.  With online streaming of that content, it’s as easy as watching Hulu.

The Los Angeles Times lifted the lid on the world of underground online viewing in a piece that sounds the alarm for the next generation of video piracy:

Streaming video is the most visible sign of how Internet piracy has evolved since the days of Napster and its imitators. The new digital black market combines “cyberlockers,” such as Megaupload and Hotfile, which piracy experts say hold stores of pilfered content, with linking sites such as TVDuck and TVShack.cc, which act like an underground version of TV Guide, helping people locate bootlegged TV shows and movies. Some of these linking sites even contain reviews and recommendations that lend a patina of legitimacy.

[…]File-sharing remains the primary source for pirated digital copies of songs, movies, TV episodes and video games. But use has stagnated as media companies have enjoyed greater success in crippling or shutting down popular sites such as Mininova and Isohunt, said Eric Garland, chief executive of BigChampagne, a media tracking firm. Streaming and downloading from so-called cyberlockers are on track to surpass peer-to-peer use by 2013, according to the Motion Picture Assn. of America, Hollywood’s lobbying arm.

[…]The fear is nonetheless palpable throughout the entertainment industry. Executives worry that improvements in Internet speeds and in the software that compresses movie files into easy-to-distribute packages are making matters worse.

“It’s made streaming a lot less clunky than it was even three years ago,” said Darcy Antonellis, president of Warner Bros. Technical Operations.

[…]To strengthen the government’s hand against online piracy, Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and senior Republican member Orrin Hatch (R-Utah) on Monday introduced a bill that would give the Justice Department more tools to track and shut down websites devoted to providing access to unauthorized downloads, streaming and sale of copyrighted content.

The U.S. Copyright Group sells its services: "Congratulations! By reviewing our site you have decided to take the first step down an efficient, no-hassle and no-cost path to recovering losses due to illegal downloading and stopping film piracy. With well over seventy combined years of legal and technical experience, the US Copyright Group will work for you at no cost." For those they accuse of piracy, a quick and easy $1,500 cash settlement will make the nightmare go away.

Stop the Cap! already deals with a variety of ISP-invented Internet Overcharging schemes, but that doesn’t mean there aren’t more profit-making schemes out there.  For 50,000 movie downloaders who grabbed copies of Steam Experiment, Uncross the Stars, Gray Man, Call of the Wild 3D, or Far Cry, chances are a letter like this sent to Verizon customers was in the mail a few weeks ago, warning your identity was about to be disclosed:

Dear Customer:

This is to notify you that Verizon has received a deposition subpoena requiring the production of records associated with the following IP address:

(xx.xx.xx.xxx)

Verizon has no information as to the purpose of the deposition subpoena or has the nature of the action or investigation being undertaken. Any questions you have should be directed to the party who issued the deposition subpoena.

Please be advised that, unless Verizon is served with a motion for a protective order or a motion to quash by 12:00pm on May 13, 2010, Verizon intends to produce the records by the date specified in the deposition subpoena. Motion papers can be served upon Verizon via fax number xxx-xxx-xxxx.

If you are a Time Warner Cable customer, chances are your letter never arrived.  That’s because the Internet Service Provider is fighting back against what it considers requests that have grown “out of control.”

A group of Washington, D.C. lawyers calling itself the U.S. Copyright Group has developed a profit-making business scheme seeking quick cash settlements from those accused of downloading copyrighted movies created by independent producers.  The group has filed thousands of requests for identities of those behind the IP addresses logged while downloading movies produced by its clients.  While this isn’t new — the record industry used to file lawsuits to discourage piracy — the U.S. Copyright Group is among the rare breed that treats the offense of copyright infringement as a for-profit business opportunity.

Only the Group’s methods may in fact cost every consumer, pirate or not, higher broadband bills as providers deal with tens of thousands of demands for identification.

Time Warner Cable is among the ISP’s that have had enough.

They’re upset after being included in the U.S. Copyright Group’s latest trawling effort against those who downloaded Uwe Boll’s Far Cry.  Critics say the only real crime was the movie itself.  But Time Warner Cable faces combing through 809 IP addresses identified as theirs in hopes of identifying the presumed-guilty offenders, who will later receive U.S. Copyright Group’s legal threats and offers for a settlement.  For a provider that says it receives only 567 IP identity requests a month, almost entirely from law enforcement officials, the prospect of dealing with 809 more over a single obscure movie is daunting.

Time Warner wants the requests quashed — telling the court if it has to reply to this volume of requests, it will not be able to fulfill urgent law enforcement requests that pertain to suicide threats, child abduction, and even terrorism.  Besides, at an average cost of $45 per request, someone will have to pay.  That someone is eventually you — all to fulfill the profit motivations of a group of DC lawyers.  Even worse, the group demanded compliance within 30 days, quite a demand for four full-time workers (and one temp) who make up the ISP’s Subpoena Compliance team.

For those receiving advance warning that their identity is about to be disclosed, the settlement offer package that is certain to follow weeks later leaves little doubt about what outcome the Group wants for these cases — a quick settlement and no time inside an actual courtroom.

Making your copyright infringement allegation go away with a $1,500 confidential settlement is as easy as writing your credit card number in the appropriate box. You can even earn reward points!

The group even offers an online, easy-to-complete PDF settlement form with spaces to enter your Visa, Mastercard, or Discover card number to pay the $1,500 settlement.  You don’t even have to admit you did anything wrong, as long as they get their money.  If you regret your decision later on, however, look out.  If you open your mouth in public or online to disparage the agreement or your participation in it, you automatically owe a $15,000 penalty (plus costs) for breaching confidentiality.  You also sign away your rights to challenge the group in court, even if it later turns out you were wrongly identified.

While the U.S. Copyright Group cashes settlement checks they only had to ask to receive, the group doesn’t seem to mind increasing everyone else’s costs.

Ars Technica notes Time Warner thinks the entire approach to these lawsuits may be invalid:

Filing lawsuits can be expensive; Most federal courts charge a $350 filing fee per case, along with a new set of paperwork. Each case also creates another docket to keep track of, making thousands of cases an administrative nightmare.

Instead of going this route, plaintiffs have gone the RIAA route, simply filing mass lawsuits against groups of “John Does,” in some cases by the thousands. But, says TWC, channeling its inner Ray Beckerman, “It is not evident from the complaint in this case that there is anything common to the 2,094 defendants that would justify joining them in a single litigation… Courts facing these identical circumstances have repeatedly held that a plaintiff may not join in a single action multiple defendants who have allegedly downloaded or facilitated the download of copyrighted material at different times and locations.

“Thus, if the plaintiff wants to sue these 2,094 defendants, it owes this court 2,094 separate filing fees, and it must file individual actions. Plaintiff then would be unable to combine together a single, massive discovery request with which to burden non-party ISPs such as TWC.”

Third, plaintiff lawyers keep expanding the scope of their subpoenas. The first complaint filed alleged 426 infringing IP addresses belonging to TWC subscribers. But when the company finally received a subpoena, it found requests for 809 IP addresses.

Taken together, said TWC, these “discovery abuses” mean that the judge should quash the subpoena. Alternately, the judge should limit the plaintiff to 28 TWC subpoenas each month.

Regardless of your views on piracy, compliance on the terms the U.S. Copyright Group demands raises the prospect of increased costs for providers like Time Warner Cable — the same increased costs used repeatedly as justification for rate increases.  Turning copyright compliance into a for-profit business may enrich a select group of DC lawyers, but ultimately every broadband customer could pay the price.

The Electronic Frontier Foundation is not happy with the Federal Communications Commission’s proposed Net Neutrality rules because they come with built-in loopholes, the most egregious being a clause which allows providers to throttle, block or otherwise interfere with traffic that could consist of “the unlawful distribution of copyrighted works.”

The movie and recording industries have been attacking Net Neutrality for months, accusing it of providing a copyright-violating-free-for-all.  The FCC seems all-too-willing to adopt that meme, and write a convenient lobbyist-friendly loophole into Net Neutrality policies that would suggest provider interference with broadband networks is bad… except when this or that special interest redefines it as “good and lawful network management.”

For years, the entertainment industry has used that innocent-sounding phrase — “unlawful distribution of copyrighted works” — to pressure Internet service providers around the world to act as copyright cops — to surveil the Internet for supposed copyright violations, and then censor or punish the accused users.

From the beginning, a central goal of the Net Neutrality movement has been to prevent corporations from interfering with the Internet in this way — so why does the FCC’s version of Net Neutrality specifically allow them to do so?

The EFF is asking consumers to sign an online petition asking the FCC to yank that exception out of their proposed Net Neutrality rules, and let the industry use existing law enforcement methods to protect copyrighted works.  Of all the industries that seem to do just fine zealously efforting to protect its copyright interests, Hollywood and the music industry don’t need additional special protection clauses inserted into broadband policy law.

Law enforcement can use existing laws to chase crime, and most honest Internet Service Providers would tell you they don’t want to police their users.  Allowing this exception is a convenient backdoor to do what some have wanted all along — to throttle or block high volume network traffic like torrents and newsgroups, this time under the guise of taking a bite out of crime.

While directly appealing to the FCC might be more effective, signing the petition at least gives the EFF the ability to draw media and political attention to a worthy endeavor.

Let’s not repeat the same mistakes certain other major policy initiatives have endured this past year, where good intentions were steamrolled by lobbyists into a loophole-ridden, industry-protectionist horror show.

The best way to ensure an open and free Internet is to literally demand exactly that — no exceptions.