Several major ISPs have revealed how they intend to implement the new six strikes law that intends to curb piracy. It has some major flaws and questionable procedures that the ISPs believe will educate the casual pirate. The ISPs plan on accomplishing this in three phases.

Despite the “six strikes” moniker, both Verizon and Time Warner talked about systems that work in three essential phases. First comes the “notice” phase, which simply involves letting users know they’ve been tracked on copyright-infringing sites. Verizon customers, for example, will send notifications to primary account holders via both e-mail and telephone. “We send a notice to the customer, saying there’s been an allegation [of] illegal activity with copyrighted files,” said Verizon VP Link Hoewing.

Most users will ignore this warning. Many people do not have their ISP’s email and, often, the one they used when they signed up isn’t in use anymore. A telephone call is also easily missed or ignored. Nothing will happen to the customer during this phase.

Next is the “acknowledgement” phase. This is when the customer will have to actually acknowledge having received those notices. Hoewing said his company’s customers will experience this as a pop-up window. The idea here is to make extra sure they’re getting to the right people. In a house or apartment with a shared Internet connection, he noted, five people may be using the same account, with just one person—likely not the account holder—engaged in copyright infringement.

Will this pop-up window be some sort of JavaScript redirect or some type of injection into the data stream that is normally illegal, but now is, somehow legal because the ISP is performing the injection? Will popup blocker block this pop-up? If it does, how do they intend to get around AdBlock Plus, Ghostery, Better Privacy, NoScript and other such programs? What if you don’t use your ISP’s DNS? Will you ever get the notice? If so, how do they intend on circumventing your DNS choice? Are they going to hijack a customer’s DNS choice to provide their pop-up?  Will the customer’s antivirus and/or malware detectors treat this injection of code as malicious?

Finally, there’s the “mitigation” phase. This is when users who have traded copyrighted files are actually punished, and Time Warner and Verizon take different tacks here. Verizon users will have their speeds throttled for between two and three days, said Hoewing. And even then, they’ll have the right to appeal the case, which will be handled by an independent arbitration firm, he said. (The user will have to pay a $35 filing fee for the appeal.) Before the speed reduction begins, subscribers will be given a 14-day advance notice.

The courts have already ruled that IP addresses do not equal people and that a person is under no obligation to secure their wi-fi. Why, then, must a person now pay $35 to an arbitration firm to appeal what the courts have already said cannot be proved in a court of law? What happens after the sixth strike? Will there be a lawsuit then?

Time Warner users will see popular websites blocked. “We’re constructing a soft landing area, where the customer is restricted in the type of browsing that they can do,” said Time Warner VP Fernando Laguarda. “If they appeal, all those measures are suspended pending the appeal.”

Why have we allowed corporations to become the legal system in this matter? If a company or corporation believes that another person has infringed upon their copyright, it is the job of the legal system and the courts to settle the matter, not some company that makes arbitrary rules and regulations that the general public has had no input on.

Both the content company participants and the ISPs emphasized that “education” is the goal, rather than lawsuits. “This is not about suing users at all,” said Ron Wheeler, a senior VP at Fox Broadcasting who was on the panel. “This system is not designed to produce lawsuits—it’s designed to produce education.”

Typically, in the United States, laws have reflected social norms. When it was first created, we believed that blacks were only 3/5 of a person. We banned interracial marriage and women were not allowed to vote. As society changed, we, as a nation, changed too. While file sharing is in no way comparable to the civil rights violations that humans have suffered, the majority of society in the twenty-first century do now view file sharing as something that should be illegal or be punished for, yet companies have turned into copyright police in an effort to hold onto an outdated model of business.

Does simply visiting a site that the ISPs don’t like, such as The Pirate Bay, count as infringement? What about visiting any site that has links to supposed infringement? These links happen on Twitter, YouTube, Facebook, legal torrent sites, and other very legitimate sites. If the user isn’t actively infringing, will merely visiting these sites count against them?

There has been no mention of what happens when you are accused of sharing something that you are legally allowed to do. For example, this writer currently has torrents running 24/7 of her unpublished novel, Linux Mint, and a few other items from the Internet Archive. Of particular note, Night of the Living Dead is out of copyright, however, do these ISPs know this? Does a person go back to the beginning of the six strike list once they prove they aren’t infringing on anyone’s copyright or do they simply proceed to the next strike?

The only people that will be scared of this new law will be those that don’t understand how the internet works. Your parents and grandparents will be terrified to download anything from the internet for fear that they will be caught in this six strikes law. By stating that they are not going after the heavy, serial pirates, the ISPs are admitting that they have no way of stopping them. They are also saying that they recognize most leaks of copyrighted material are leaked in-house by major studios and that they really don’t understand how the internet works or how to stop copyright infringement.

Instead of targeting casual pirates, or even those that are “serial” pirates, the ISPs should be investigating the underlying cause of piracy. Other countries have already begun to study the issue and have taken steps declaring that policies like six strikes are illegal. Until the American ISPs take a serious look at the underlying causes of piracy, nothing is going to change. The “serial pirates” will continue to use TOR, VPNs, VPS, I2P and other methods to circumvent the six strikes.

Image from Shutterstock.