Sunday, June 14, 2009

Overseeing the Three Strikes Policies

There were some interesting developments in France recently with the Constitutional Council refusing parts of the proposed three strikes legislation. I have written earlier about the growing trend to disconnect users from the internet and some of the implications this is likely to have.

The policy itself is flawed for a number of reasons. One concern is the fact that it prevents people from communicating on a whole range of levels – as we all know internet access is a fundamental component of modern life and has a much greater social function than simply the sharing of music. It is the most open and immediate form of communication available enabling each and every person to communicate with friends, family, their local communities, their interest groups, the government and the world at large. Being disconnected from the internet because of the sharing of culture, from a basic free speech perspective, is an unjustifiable and disproportionate loss of human rights.

Furthermore with respect to the sharing of culture itself, the policy is both counter intuitive and counter productive.

The purpose of culture is to communicate. The underlying aim of entertainment or education is secondary to the broader aim of enabling connections and the exchange of ideas. Disconnecting users undermines the very intent of producing culture in the first place. Simply put, the sharing of culture is a natural and inherent component of its creation – most (but not all) artists recognise the importance of this but corporations typically do not.

In addition, these policies are counterproductive. Reactionary punishment for something that has occurred in the past is only of benefit when it outweighs the costs. While cutting a user off the internet may act as a deterrent to that person and perhaps others in the future, the more likely result is one in which alternative means of sharing are developed.

Disconnecting one user from the internet may simply result in another household member needing to have the internet connection in their name. It remains impossible to police who in that household is using the internet at a particular moment in time and as such it is unlikely to prevent the offender from sharing culture again in the future. The ever increasing development of digital devices with vast storage capacity means that the sharing of culture can take place on or off the internet and disconnections are more likely to make this harder to track and monetise than stop it from happening altogether.

The bigger problem and one that the music industry appears to either be ignoring or ignorant of, is that this policy actually stops users from consuming culture in ‘legitimate ways’. Not having internet access at all prevents users from accessing iTunes just as much as it stops them from using BitTorrent or Limewire. The collateral damage of these policies is therefore greater than what their implementation can achieve.

Countries that consider disconnection as the most appropriate sanction include France, New Zealand, Taiwan and South Korea. While France and New Zealand are both in the process of reworking their legislation, Taiwan has passed laws which appear to introduce a non mandatory disconnection regime. South Korea is the only country with a mandatory policy in place at present. In Ireland one ISP has agreed to implement a three strikes policy that includes disconnections, as part of a settlement agreement for a secondary copyright liability claim. Steps to introduce the policy nationwide have not been successful to date. It has also been reported that Italy is considering the introduction of a three strikes policy which has the ultimate penalty of disconnection.

In other countries, alternative penalties are being considered. The recording industry in the United States is in the process of trying to get ISPs to voluntarily embrace the policy but without disconnections. Some six month after the initial announcement not one ISP has agreed to implement the process. Similar moves are underfoot in the UK with increasing pressure on the government to introduce the policy, with the slow down of internet connections rather than disconnection being the ultimate sanction. Early next week the final Digital Britain Report is expected to recommend the introduction of this policy.

In all of these circumstances there is a common concern regarding the lack of judicial oversight. It is imperative that we ask the questions: why do we have judges and why is it okay that they be removed from this process?

Speaking broadly about legal systems in general, regardless of whether they are adversarial or inquisitorial, judges take a particular place in the system of democracy. Their independence from government and institutions (including corporations) is fundamental to their role. They are adjudicators that decide disputes based on evidence according to the laws which (in theory?) reflect the standards of the community. Largely only accountable through the media or on appeals, those that are placed in this position of authority must have extensive training in their field(s). In some areas of law strict liability is imposed by the legislature which removes their discretion however in many other areas they must have the capacity to make a qualitative determination of often complex and detailed events. The reasoning for their decisions forms a basis of knowledge on which others can act in the future to exercise their rights.

The desire of the content industry to remove the judiciary from the determination of copyright disputes is primarily born from concerns about efficiency and cost. In effect the three strikes policies seek to create a strict liability offence for the sharing of culture – where the presumption is of guilt and the offence proved by default rather than the more typical approach of innocence as a presumption. Much like a speeding ticket, the desire is to place the liability on the holder of the internet account without the opportunity for it to be rebutted. But here there is often more than one driver, there could be many potential users of an account and without the opportunity to defend an accusation, there remains implicit potential for injustice. Indeed, the name 'Graduated Response' appears to be a misnomer - there is no real graduation - there are 2 warnings and then the ultimate price is paid.

The costs of justice are well known. As has been well evidenced and a matter of much contention in the mass lawsuit campaign against individual users, the average person simply does not have the financial resources to defend themselves against civil litigation by major record labels - instead being forced to settle disputes regardless of whether they were personally liable. While this system was excruciatingly imperfect it nonetheless allowed some opportunity for redress.

The recording industry incurred costs too. While those that were forced to settle most likely covered some of the costs involved in their investigation, the initiation of John/Jane Doe lawsuits, the sending out of letters of demand and the running costs of the settlement payment centre, these expenses nonetheless existed and detracted from the viability of the initiative. It seems there was also momentum and assistance building for those seeking to defend these actions and this would have added significantly to the costs of the program, only being offset by the potential for massive damages payouts in the event that the lawsuit was successful.

The other aspect to the judicial system is time. There is often a significant delay between the commencement of litigation and the time when a matter is heard. Furthermore, there are often delays in the hearing of cases with some taking a number of months and there is an extensive delay in the hearing of appeals which are more likely in emerging areas of law or contention.

The aim of the three strikes policies are therefore to allow for the quick and inexpensive determination of disputes. Having said that; the French proposal was expected to cost $40 million to implement annually – money that should be in the pockets of artists. But as a society, what price do we place on free speech? Is this the type of human right that should be calculated quickly and cheaply?

Of course the content industry would respond with arguments about ‘theft’ and ‘property’. But as a community are we blind to the inherent implications of these policies? In my view the court system, imperfections and all, is a fundamental aspect of democracy and the oversight of the judiciary is of paramount importance to a legislative system corrupted by capitalism. Every bureaucracy makes mistakes and no matter what procedures are in place there remains opportunity for human and technological error and there must be a forum to redress complaints. The vulnerable and the weak need these avenues to remain open and we are all in that position when major corporations collude to achieve their profit lines. While the majority of internet connections are in the name of the parents, it is the children that will suffer.

France has seen the need for continued involvement of dispute resolution mechanisms, but so far, is the only country to have done so.

Further Reading

The New York Times, French Council Defangs Plan to Crack Down on Internet Piracy (10 June 2009) <> at 12 June 2009

TechDirt, French Constitutional Council Guts 'Three Strikes' As Unconstitutional (10 June 2009) <> at 12 June 2009

The Register, France suspends Three Strikes (10 June 2009) <> at 12 June 2009

ZeroPaid, France’s Top Court Rules “Three-Strikes” Unconstitutional (10 June 2009) <> at 12 June 2009

WashingtonPost/The Associated Press, New French law on Internet piracy meets skepticism (21 May 2009) <> at 29 May 2009

ZeroPaid, French Minister - Three Strikes Law Would See 1000 Disconnections Daily (24 May 2009) <> at 28 May 2009

ZeroPaid, French Arts Community Revolts Against French Three Strikes Legislation (30 April 2009) <> at 3 May 2009

ZeroPaid, French ISPs: 'Three-Strikes' will cost us $40 mill Annually (10 March 2009) <> at 12 March 2009

TechDirt, Italian Politicians Look To Push Through French-Style 3 Strikes Law (21 January 2009) <> at 24 January 2009

TechDirt, Study Says File Sharers Would Ignore Warning Letters; Recording Industry Gets The Wrong Message (10 June 2009) <> at 12 June 2009

ZeroPaid, UK ISP: Idea of Stopping File-Sharing is “Very Naive” (9 June 2009) <> at 12 June 2009

TechDirt, British Government Says No To Three Strikes (5 June 2009) <> at 8 June 2009

BBC News, Web pirates placed in 'slow lane' (4 June 2009) <> at 8 June 2009

ZeroPaid, UK Minister Says “Three-Strikes” too Draconian (5 June 2009) <> at 8 June 2009

ArsTechnica, UK ISPs refuse to play Internet copyright cops (12 May 2009) <> at 15 May 2009

TechDirt, Irish ISPs Point Out They're Under No Obligation To Follow Three Strikes Policy (17 March 2009) <> at 18 March 2009

The Register, Irish ISPs rally against record label anti-piracy threat (17 March 2009) <> at 18 March 2009

Digital Music News, Irish ISPs Battle Back Against Three-Strikes... (19 March 2009) <> at 20 March 2009, Irish ISPs Reject Labels' 'Three Strikes' Demand (19 March 2009) <> at 20 March 2009

ArsTechnica, Blackout Ireland rallies support against P2P disconnections (5 March 2009) <> at 6 March 2009

Slyck, Ireland says Yes, Germany No to 3 Strikes (3 February 2009) <> at 4 February 2009

The Register, Irish ISP Eircom in 'three strikes' file sharer crackdown (3 February 2009) <> at 4 February 2009

Digital Music News, Big Precedent: Irish ISP Adopting Three Strikes... (30 January 2009) <> at 31 January 2009

TechDirt, Irish ISP Accused Of Copyright Violations Agrees To Implement Three Strikes (29 January 2009) <> at 31 January 2009

ZeroPaid, Irish ISP Agrees to Three-Strikes Policy For File-Sharers (29 January 2009) <> at 31 January 2009

EFF Deeplinks, Irish ISP Agrees to Three Strikes Against Its Customers (28 January 2009) <> at 30 January 2009

Digital Music News, France Says No, But What About the US? (11 June 2009) <> at 12 June 2009

Digital Music News, 6 Months, 0 Disconnecting ISPs: RIAA Still Coming Up Short... (4 June 2009) <> at 8 June 2009

TechDirt, Six Months And Still No ISPs Officially Signed Up On The RIAA's Program (4 June 2009) <> at 8 June 2009

Computerworld, Work continues on Copyright Act (4 May 2009) <> at 6 May 2009

TechDirt, New Zealand Denies It's Scrapping Copyright Laws (4 May 2009) <> at 5 May 2009

National Business Review, Entire Copyright Act to be scrapped (1 May 2009) <> at 3 May 2009

TechDirt, New Zealand Officials To Scrap Copyright Law; Start From Scratch (30 April 2009) <> at 3 May 2009

ArsTechnica, "3 strikes" strikes out in NZ as government yanks law (23 March 2009) <> at 29 March 2009

TechDirt, Musicians In New Zealand Protesting 'Guilt Upon Accusation' Plan (6 January 2009) <> at 7 January 2009

ZeroPaid, South Korea to Become 1st Country with "Three Strikes" for File Sharers? (29 March 2009) <> at 30 March 2009

TechDirt, South Korea The Latest To Introduce Three Strikes Plan (11 March 2009) <> at 12 March 2009

ZeroPaid, Taiwan Passes “Three-Strikes” Anti-P2P law (28 April 2009) <> at 29 April 2009

TechDirt, Taiwan Sorta, But Not Really, Approves Three Strikes Law (28 April 2009) <> at 29 April 2009

The Register, Billy Bragg: Three-strikes lobbying is 'shameful' (20 May 2009) <> at 22 May 2009

ZeroPaid, U2’s Band Manager Praises France’s “Three-Strikes” Law (8 April 2009) <> at 11 April 2009

ArsTechnica, Google: Internet disconnection a "disproportionate" penalty (17 March 2009) <> at 23 March 2009

ArsTechnica, 37% of P2P users say they'll ignore disconnection threats (18 January 2009) <> at 21 January 2009

OpenContentAustraliaResearchReview, Graduated Response Update (29 March 2009) <>at 14 June 2009

OpenContentAustralia, NZ Delays Guilt Upon Accusation (25 February 2009) <> at 29 March 2009

Digital Music News, Pirate Bay Martyrdom Continues... The Decision Stands (12 June 2009) <> at 12 June 2009

The Local, 'Pirate Bay judge not biased': court (8 June 2009) <> at 12 June 2009

ZeroPaid, Court Review Says Pirate Bay Trial Judge Not Biased (8 June 2009) <> at 9 June 2009

EFF, RIAA v. The People: Five Years Later - White Paper (September 2008)
<> at 14 June 2009

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