>>
> I suppose a Hulu subscriber could dispute the charge or file a suit (class
> action?) for damages: "Hulu took my money, but didn't provide the services
> they advertised." As an ISP, some of us might even be in a position where we
> encounter losses due to Hulu's (mis)classification resulting in customers
> moving to the competition; I would think that would be sufficient grounds for
> a suit.
The problem here is that identifying class members is very hard (most class
members wouldn’t realize why they were not getting Hulu, and Hulu probably
either quickly corrects the problem on their end or blames the ISP), meaning
they wouldn’t realize their ability to join the class.
As an individual customer, Hulu will refund your money and tell you to piss
off. That’s about all you’re likely to recover in the court case, too.
As an ISP, there might be something there, but, you’d have to prove that you
had a significant number of customers that left for that specific reason and
you’d have to show the actual damages that resulted. Easy to estimate, very
hard to prove.
So in this particular case, I think Hulu is tragically safe from being held
accountable.
I think the best solution would be something like this…
If congress were to revise the DMCA to provide a provision similar to the
following:
1. Digital Rights Management
Content producers and Content owners have the right to enforce their copyright
through automated means
known as “Digital Rights Management” (DRM).
DRM mechanisms may include, but are not limited to any of the following:
+ IP Address based geographical location inference and content limitations
+ Efforts to avoid delivery of services to users of Virtual Private
Networks
+ Software locks or limitations preventing playback based on machine
configuration, software status,
or other variables.
+ Self-destructive content
2. Duties of Content Producers and Content Owners
Content producers and Content owners must, however, ensure that any form of DRM
employed in this
process does not in any way curtail the legitimate rights of end users who have
lawfully purchased,
licensed, or otherwise through fair use or other mechanism obtained legitimate
rights to the content.
3. Rights of Consumers
The fair trade commission shall maintain a mechanism for consumers to report
and document instances
where their content rights have been infringed, abridged, or otherwise hindered
by DRM. Through this
process, the FTC shall investigate all credible complaints and make a
determination of fact whether
the consumer’s rights were violated.
In such an instance where the FTC determines consumers rights were violated,
the Content Owner,
Content Producer, and any Content Providers involved shall be jointly and
severally liable for the following
damages:
+ Restitution to each affected consumer of the full cost (if any)
born by the consumer in obtaining the
infringed rights.
+ A DRM free copy of the content in the same format(s) and usable
with the same playback
mechanism(s) provided to each affected consumer.
+ A fine payable to the united States not to exceed $10,000 per
incident per affected consumer.
+ Reimbursement to the FTC for all costs of the investigation and
any process(es) related to
enforcement of any judgment resulting from the investigation.
In the event that a Content Owner, Producer, or Provider wishes to appeal an
FTC ruling, the appeal
shall be heard in the circuit court of appeals covering the largest fraction of
the affected consumers known
to be affected at the time of the ruling. While awaiting said hearing, the
restitution to affected consumers
and DRM free copy shall be provided not less than 60 days after the initial
ruling.
Owen
