3 Strikes. You’rree OUT!

This month has seen the momentum build on graduated response strategies in many parts of the world so I thought I’d take the chance to write a little on what’s been happening and examine some of the issues that have already begun to emerge.

New Zealand
In 2008 the New Zealand Government enacted Section 92 of New Zealand's Copyright (New Technologies) Amendment Act which will take effect at the end of February 2009. The provision states:

(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

The obligation is thus placed on ISPs to comply with the law regardless of the standard of evidence presented to them. While users may be able to sue the ISP for breach of contract in the event of a wrongful disconnection (depending on the specifics of the terms and conditions of the license agreement they enter into), ISPs are essentially forced to act to avoid prosecution by the content industry.

The Telecommunications Carriers Forum has referred to the law as ‘deeply flawed...’ and despite lobbying by musicians, the New Zealand Government has refused to reverse or delay the introduction of the law preferring to wait to assess the impact once it has been implemented.

France and the EU
France was the first country in the world to consider the implementation of a three strikes policy (graduated response policy) with respect to file sharers. France also set up the High Authority for the Distribution of Works and the Protection of Rights on the Internet (La Haute Autoritѐ pur la diffusion des oeuvres et la protection des droits sur internet, or HADOPI).

In October 2008 the European Parliament rejected the idea of an EU wide implementation of a three strikes policy. The EU Parliament instead voted to approve an amendment that recognises users right to privacy and civil rights through Amendment 138.

The vote was 314 against a three strikes policy and 297 in favour and the Amendment to the Bono Report on Cultural Industries was approved. The introduction of a three strikes policy was therefore possible only at the discretion of individual member countries.

However in December 2008 the French President Nicolas Sarkozy, who holds the European Council Presidency, had the amendment stripped from the final version of the legislation. He initially filed a complaint with the European Commission which was denied before taking the issue up with the EU’s Telecommunications Ministers who agreed to remove the amendment.

Italy
Recent reports indicate that Italy is also considering the introduction of a three strikes policy with the Italian Ministry of Culture signing an agreement with French officials agreeing to cooperate on anti-piracy issues.

England
In January this year the draft of a report, Digital Britain, was released which advocates the introduction of legislation to address the implementation of a three strikes policy in England. The report advocates legislating a three strikes code which will include the obligation to forward warning notices (currently undertaken through a voluntary Memorandum of Understanding), and would also make provisions for appeals and the standard of evidence. While there is scope to include additional sanctions at a later stage there is no suggestion at this stage of disconnecting repeat offenders. However the interim report does refer to the need to undertake targeted lawsuits against repeat offenders stating that ISPs should be required to assist with the identification of repeat copyright offenders and release personal details of account holders on receipt of a court order. Research suggests that a letter writing campaign on its own will not deter 37% of downloaders and preliminary reports from BPI suggest that the current letter writing campaign is not have the desired effect.

Ireland – Eircom
In January 2009 the Irish ISP Ericom settled a case with the IFPI by agreeing to implement a three strikes policy for file sharers which includes disconnection for repeat offenders. Under pressure to implement network filtering solutions and in the face of evidence that employees had joked about piracy on its network, the ISP sought to settle the dispute rather than risk secondary copyright liability. The recording industry subsequently announced an intention to seek similar agreements with other Irish internet service providers.

USA
In December 2008 the Recording Industry Association of America announced that it would no longer be suing individual file sharers seeking instead to work cooperatively with ISPs on a three strikes policy. At this stage no details have been released as to the nature of the scheme or whether this will include disconnections nor is it clear which ISPs, if any (rumours suggest AT&T and Comcast will cooperate), have agreed to participate in the scheme.

Emerging Issues
Of major concern is the reliability of IP addresses as a means to identify infringers. Some file sharing networks include fake IP addresses to help mask the identity of file sharers, and research has shown that current investigation methods are unreliable which creates concerns that innocent people will be unfairly targeted and those on two strikes who have reformed their behaviour may be disconnected on the basis of incorrect information.

Dynamic IP addresses have already proved to be problematic in the context of lawsuits for copyright infringement and while in real terms there was limited opportunity for courts to review the evidence (with most accused unable to afford to defend themselves in court) there was at least an established review mechanism in place. As was evident from the lawsuit campaign such strategies also fail to take into consideration that many internet accounts may have multiple users. With the introduction of graduated response policies there has been very little attention given to the establishment of mechanisms through which unfairly and wrongly targeted individuals may seek redress or compensation. This lack of due process opens up the possibility of abuse.

To whom the law or policies that are developed apply is also of concern. Whilst most people reading articles or hearing about these measures would most commonly reflect on the impact of commercial service providers, in effect these changes may impact on a far wider sector including universities, schools, libraries and businesses. These entities provide internet access and by definition can fall within the scope of internet service providers.

The impact on internet service providers is likely to be onerous. The independence of telecommunications service providers is of fundamental importance to the maintenance of a democratic society. By placing the burden on this sector there becomes a real potential for expansion of surveillance. The costs associated with the administrative implementation of a three strikes scheme is also of significance. If ISPs are required to employ additional staff to undertake reviews of logs, send out letters and respond to complaints this will drive up the cost of internet access for all consumers not just those breaking the law.

Questions also remain as to how long users will be disconnected, whether a centralised record will be maintained as to who has been disconnected and whether consumers will be required to pay out contracts for internet access which in some cases may be as long as a fixed two year period.

By far the most onerous result for countries that elect to pursue disconnection is the social impact of users losing their internet accounts. The potential loss of service may prevent access to many basic services including telephone, banking, government services, and for students may prevent educational research and study.

Further Reading
ZeroPaid, FAST Supports New Zealand's Three-Strikes Plan for File-Sharers (13 January 2009) <http://www.zeropaid.com/news/9954/FAST+Supports+New+Zealand%27s+Three-Strikes+Plan+for+File-Sharers> at 15 January 2009

TechDirt, New Zealand Gov't Refuses To Remove 'Guilt Upon Accusation' Clause In Copyright Act (30 January 2009) <http://www.techdirt.com/articles/20090129/1940383575.shtml> at 31 January 2009

NZ Herald, ISPs tread risky path with new rules on piracy (9 January 2009) <http://www.nzherald.co.nz/technology/news/article.cfm?c_id=5&objectid=10551079> at 12 January 2009

TechDirt, Musicians In New Zealand Protesting 'Guilt Upon Accusation' Plan (6 January 2009) <http://www.techdirt.com/articles/20090105/1232323289.shtml> at 7 January 2009

ArsTechnica, Kiwis rally opposition to NZ copyright bill (6 January 2009) <http://arstechnica.com/news.ars/post/20090106-kiwis-rally-opposition-to-nz-copyright-bill.html> at 7 January 2009

NetGuide, Petition to fight copyright law change (5 January 2009) <http://www.netguide.co.nz/index.php?option=com_content&task=view&id=849&Itemid=16> at 7 January 2009

Digital Music News, Sarkozy Starts Selling Three Strikes to Europe... (7 July 2008) <http://www.digitalmusicnews.com/stories_old/070708france> at 9 July 2008

ZeroPaid, French RIAA Announces Deadline to Ban File-Sharers from the Internet (8 May 2008) <http://www.zeropaid.com/news/9477/French+RIAA+Announces+Deadline+to+Ban+File-Sharers+from+the+Internet> at 10 May 2008

Digital Music News, European Parliament Rejects Three Strikes Proposal (26 September 2008) <http://www.digitalmusicnews.com/stories/092508eu> at 5 October 2008

TechDirt, European Parliament Rejects Laws Kicking File Sharers Off The Internet (25 September 2008) <http://www.techdirt.com/articles/20080925/1522352377.shtml> at 26 September 2008

Digital Music News, European Lawmakers Question French ISP Monitoring, Enforcement (14 April 2008) <http://www.digitalmusicnews.com/stories/041308EU> at 17 April 2008

EFF Deeplinks, EU Politicians Strike Back Against Three Strikes (7 April 20080 <http://www.eff.org/deeplinks/2008/04/eu-politicians-strikes-back-against-three-strikes> at 13 April 2008

ZeroPaid, European Parliament Rejects Plans to Disconnect File Sharers (11 April 2008) <http://www.zeropaid.com/news/9398/European+Parliament+Rejects+Plan+to+Disconnect+File-Sharers> at 13 April 2008

BBC News, Europe rejects anti-piracy plans (11 April 2008)
<http://news.bbc.co.uk/2/hi/technology/7342135.stm> at 13 April 2008

TechDirt, European Parliament Rejects IFPI Plan To Make ISPs Copyright Cops (10 April 2008) <http://www.techdirt.com/articles/20080410/165146815.shtml> at 13 April 2008

ZeroPaid, New Euro Telecom Package Paves the Way for France's '3 Strikes' Law (2 December 2008) <http://www.zeropaid.com/news/9867/New+Euro+Telecom+Package+Paves+the+Way+for+France%27s+%273-Strikes%27+Law> at 3 December 2008

TechDirt, European Council Rejects EU Parliament's Amendment Against Three Strikes Rule (2 December 2008) <http://www.techdirt.com/articles/20081201/0245052983.shtml> at 3 December 2008

ZeroPaid, Entertainment Industry Trying to Sneak 'Three Strikes Law' into EU? (25 November 2008) <http://www.zeropaid.com/news/9855/Entertainment+Industry+Trying+to+Sneak+%27Three+Strikes%27+Law+into+EU%3F> at 26 November 2008

TechDirt, Three Strikes Rule May Sneak Into EU Law, Despite Earlier Rejection (21 November 2008) <http://www.techdirt.com/articles/20081120/0305392897.shtml> at 23 November 2008

The Register, Academics warn of EU 'three strikes back door plan' (19 November 2008) <http://www.theregister.co.uk/2008/11/19/eu_three_strikes_warning/> at 21 November 2008

ZeroPaid, New Euro Telecom Package Paves the Way for France's '3 Strikes' Law (2 December 2008) <http://www.zeropaid.com/news/9867/New+Euro+Telecom+Package+Paves+the+Way+for+France%27s+%273-Strikes%27+Law> at 3 December 2008

TechDirt, Italian Politicians Look To Push Through French-Style 3 Strikes Law (21 January 2009) <http://www.techdirt.com/articles/20090121/0834043477.shtml> at 24 January 2009

TorrentFreak, Italy to Follow French 3 Strikes Model for P2P (21 January 2009) <http://torrentfreak.com/italy-to-follow-french-3-strikes-model-for-p2p-090121/ > at 31 January 2009

The Register, Digital Britain: A tax, a quango and ISP Snooping (29 January 2009) <http://www.theregister.co.uk/2009/01/29/digital_britain_tax_quango_and_enforcement/> at 31 January 2009

ArsTechnica, "Digital Britain" to legislate graduated response for ISPs (29 January 2009) <http://arstechnica.com/tech-policy/news/2009/01/digital-britain-will-legislate-graduated-response-for-isps.ars> at 31 January 2009

Digital Music News, The Piracy Riddle: Interim Digital Britain Report Emerges... (30 January 2009) <http://www.digitalmusicnews.com/stories/012909digital> at 31 January 2009

TechDirt, UK Gov't Insists That File Sharers Won't Be Kicked Off The Internet (27 January 2009) <http://www.techdirt.com/articles/20090126/1848153538.shtml> at 28 January 2009

ArsTechnica, UK official: ISP disconnection not part of "3 strikes" plan (26 January 2009) <http://arstechnica.com/tech-policy/news/2009/01/uk-official-isp-disconnection-not-part-of-3-strikes-plan.ars> at 28 January 2009

ZeroPaid, No -'3-Strikes' for UK File-Sharing Pirates (26 January 2009) <http://www.zeropaid.com/news/9975/No+%273-Strikes%27+for+UK+File-Sharing+Pirates> at 28 January 2009

ZeroPaid, UK ISPs Oppose File-Sharing Regulations (26 January 2009) <http://www.zeropaid.com/news/9978/UK+ISPs+Oppose+File-Sharing+Regulations> at 28 January 2009

Times, Music pirates will not be disconnected from the internet (26 January 2009) <http://entertainment.timesonline.co.uk/tol/arts_and_entertainment/music/article5586761.ece> at 28 January 2009

Digital Music News, The Disconnect on Disconnections: British Cut-Offs Appear Unlikely... (27 January 2009) <http://www.digitalmusicnews.com/stories/012609disconnect> at 28 January 2009

Digital Music News, BPI: Letter-Writing Campaign Not Getting Desired Results (20 January 2009) <http://digitalmusicnews.com/stories/011909isps> at 21 January 2009

TechDirt, UK Government To Force ISPs To Become Copyright Cops (19 January 2009) <http://www.techdirt.com/articles/20090116/0957263441.shtml> at 21 January 2009

Slyck, No Consensus Reached in UK P2P 'Problem' (15 January 2009) <http://www.slyck.com/story1821_No_Consensus_Reached_in_UK_P2P_Problem> at 21 January 2009

The Register, UK.gov 'to create anti-net piracy agency' (16 January 2009) <http://www.theregister.co.uk/2009/01/16/carter_anti_piracy_agency/> at 21 January 2009

Financial Times, Internet piracy regulations planned for UK (16 January 2009) <http://www.ft.com/cms/s/0/48141a1a-e35c-11dd-a5cf-0000779fd2ac.html?nclick_check=1> at 19 January 2009

The Register, UK.gov prepares for filesharing fracas (15 January 2009) <http://www.theregister.co.uk/2009/01/15/berr_p2p_consultation_responses/> at 19 January 2009

Digital Music News, Big Precedent: Irish ISP Adopting Three Strikes... (30 January 2009) <http://www.digitalmusicnews.com/stories/012909eircom> at 31 January 2009

TechDirt, Irish ISP Accused Of Copyright Violations Agrees To Implement Three Strikes (29 January 2009) <http://www.techdirt.com/articles/20090128/1855013560.shtml> at 31 January 2009

ZeroPaid, Irish ISP Agrees to Three-Strikes Policy For File-Sharers (29 January 2009) <http://www.zeropaid.com/news/9984/Irish+ISP+Agrees+to+Three-Strikes+Policy+for+File-Sharers> at 31 January 2009

Irish Times, Internet users face shutdown over illegal music downloads (29 January 2009) <http://www.irishtimes.com/newspaper/frontpage/2009/0129/1232923373331.html> at 30 January 2009

EFF Deeplinks, Irish ISP Agrees to Three Strikes Against Its Customers (28 January 2009) <http://www.eff.org/deeplinks/2009/01/irish-isp-agrees-three-strikes-against-its-users> at 30 January 2009

ArsTechnica, Irish ISP agrees to disconnect repeat P2P users (29 January 2009) <http://arstechnica.com/telecom/news/2009/01/irish-isp-agrees-to-disconnect-repeat-p2p-users.ars> at 29 January 2009

TechDirt, AT&T And Comcast Willing To Cut Off File Sharers (28 January 2009) <http://www.techdirt.com/articles/20090128/1543013559.shtml> at 30 January 2009

Digital Music News, RIAA Negotiations Continue... Disconnections Still Improbable (29 January 2009) <http://www.digitalmusicnews.com/stories/012809riaa> at 30 January 2009

CNet News, RIAA drops lawsuits; ISPs to battle file sharing (19 December 2008) <http://news.cnet.com/8301-1023_3-10126914-93.html> at 29 January 2009

The Star, The music industry's digital reversal (12 January 2009) <http://www.thestar.com/sciencetech/article/569203> at 15 January 2009

Digital Music News, The RIAA Story: Yet Another Hole Appears... (13 January 2009) <http://www.digitalmusicnews.com/stories/011208riaa> at 15 January 2009

TechDirt, No One Can Find ISPs Who Have Agreed To RIAA's 3 Strikes Plan (6 January 2009) <http://www.techdirt.com/articles/20090105/1639523290.shtml> at 7 January 2009

ZeroPaid, Major ISPs Deny Plans to Help RIAA (6 January 2009) <http://www.zeropaid.com/news/9944/Major+ISPs+Deny+Plans+to+Help+RIAA+Disconnect+File-Sharers> at 7 January 2009

Digital Music News, Any There There? RIAA Agreements Remain Flimsy, Unconfirmed... (4 January 2009) <http://www.digitalmusicnews.com/stories/122208riaa/view> at 5 January 2009

EFF Deeplinks, Laser Printers Found Guilty of "Making Available" Crimes (5 June 2008) <http://www.eff.org/deeplinks/2008/06/laser-printers-found-guilty-making-available-crime> at 13 June 2008

ZeroPaid, STUDY: BitTorrent Users Prone to False Copyright Infringement Claims (6 June 2008) <http://www.zeropaid.com/news/9535/STUDY%3A+BitTorrent+Users+Prone+to+False+Copyright+Infringement+Claims> at 7 June 2008;

TechDirt, Would You Believe Copyright Infringement Notices Are Based On Faulty Information? (5 June 2008) <http://www.techdirt.com/articles/20080605/1227001318.shtml> at 7 June 2008;

ArsTechnica, Study paints grim picture of automated P2p enforcement (5 June 2008) <http://arstechnica.com/news.ars/post/20080605-study-paints-grim-picture-of-automated-dmca-notice-accuracy.html> at 6 June 2008

ArsTechnica, 37% of P2P users say they'll ignore disconnection threats (18 January 2009) <http://arstechnica.com/news.ars/post/20090118-37-of-p2p-users-say-theyll-ignore-disconnection-threats.html> at 21 January 2009