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Debate: Graduated response antipiracy laws

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Revision as of 16:10, 19 April 2010

Are "graduated response" policies for unlawful P2P file sharing justified?

Background and context

Graduated response, also known as three strikes, is an initiative, adopted in several countries, aimed at addressing the problem of online Copyright infringement. In response to copyright infringement using peer to peer software, the creative industries reliant on copyright advocate what is known as a "graduated response" which sees consumers disconnected after a number of notification letters warning that they are violating copyright. The content industry has thought to gain the co-operation of internet service providers (ISPs), asking them to provide subscriber information for ISP addresses identified by the content industry as engaged in copyright violations.
Consumer rights groups have argued that this approach denies consumers the right to due process and the right to privacy.[1] Barry Sookman and Dan Glover outline the proposal below in a January 2010 Lawyers Weekly article: "Graduated response, which has been implemented in jurisdictions such as France, Taiwan, and South Korea, and which is in the process of being enacted in the UK and New Zealand, is viewed by many policy makers as a fair and effective means of addressing the problem of online unauthorized file sharing. Although each country has adopted or proposes different balances, the key characteristics of these systems are: (1) rights holders monitor P2P networks for illegal downloading activities; (2) rights holders provide ISPs with convincing proof of infringements being committed by an individual at a given IP address; (3) educational notices are sent through an ISP to the account holder informing him or her of the infringements and of the consequences of continued infringement and informing the user that content can be lawfully acquired online; and (4) if the account holder repeatedly ignores the notices, a tribunal may take deterrent action, with the most severe sanctions reserved for a court."[2] While the Anit-counterfeiting Trade Agreement was rumoured to have initially considered the proposal for a graduated response, three strikes system, they clarified in April of 2010 that: "While the participants recognise the importance of responding effectively to the challenge of Internet piracy, they confirmed that no participant is proposing to require governments to mandate a ‘graduated response’ or ‘three strikes’ approach to copyright infringement on the Internet."[3]


Users: Is graduated response respectful to users?


  • Graudates response is the least draconian option. Barry Sookman and Dan Glover. "Graduated response and copyright: an idea that is right for the times." Lawyers Weekly. January 20th, 2010: "Graduated responses systems are not intended to be anti-consumer or heavy handed. To the contrary, user interests and their privacy and procedural rights are respected. Instead of being hauled into court for copyright infringements, users receive multiple notices before any action is taken by rights holders. These notices provide ample opportunities to change consumer behaviour from unauthorized file sharing to purchasing content legally. When proceedings are taken, there are procedural safeguards to ensure that sanctions are only imposed on the real offenders, and that they are proportionate."
  • Graduated response helps avoid litigating against consumers. The Recording Industry Association of America and the Motion Picture Association of America have sued illegal downloaders for billions of dollars over the years, claiming up to $150,000 in damages for a single illegal download. This is excessive and overly taxing on consumers. The most important element of graduated response is that it avoids these draconian lawsuits in favor of a warning system and then a far less costly sanctions system.
  • Graduated response protects creative arts for fans. Graduated response helps protect the creative music and video arts, enabling independent, small, medium, and even large artists, actors, and production studies to make more of the high quality products that fans love.
  • Graduated response protects creative arts, lowers prices. By protecting creative arts, graduated response will lower the transaction costs for the entertainment industry, making it possible for artists and production companies to charge less for albums and songs.
  • Three strikes responds only to future illegal downloads. It is important that, given the culture of acceptability surrounding illegal filesharing (particularly among youth), that past bad behavior not be punished. Instead, three strikes and graduated response appropriately responds only to future instances of illegal downloads.
  • Graduated response educates fans about copyright/arts. It is important that movie watchers and music fans understand how these industries work, and how copyright laws are essential to their future. Graduated response can be viewed as an educational campaign, as much as a warning and punitive system, for establishing a new respect and cultural appreciation for how these industries and artists make money. Because so many young people don't understand these fundamentals, and take them for granted, such an educational push and cultural shift is very important.


  • Graduated response is a draconian policy Andrew Heaney, director of strategy and regulation at TalkTalk: "We have always said that oppressive and ultimately futile deterrents are not the solution to the music industry's woes."[4]
Computer & Communications Industry Association President Ed Black said in a statement: "This is not about flagrant copyright infringement, which we oppose. This is about using an Uzi to combat mosquitoes."
  • Graduated response does not achieve any greater justice. "Graduation response." Open Rights Group. June 30th, 2008: "If it is not the BPI’s intention to replace the current judicial process with a more administrative one that cuts corners, why replace the current judicial process at all? Any new system would surely be the subject of so many appeals that we’d soon arrive back to where we are now anyway (on the hopeful assumption that the interests of justice and fairness would be given due regard). Article 6 of the European Convention on Human Rights[14] (to which the UK is a party by virtue of the Human Rights Act 1998) requires that all citizens be given access to a fair trial in situations where the rights and freedoms of the individual are threatened with sanctions. If the government legislates in this area, there is a serious danger that justice, and access to justice, will be undermined."
  • Graduated response could shut-down public Internet hubs. "'Three strikes' for the Web." Los Angeles Times Editorial. April 13, 2010 "One danger is that the duties and liabilities they impose could prompt those who provide Internet access in public spaces -- coffee shops, libraries, universities and the like -- to stop or limit their services to avoid any risk of even innocent infringement. That would be a step backward for Britain's efforts to promote ubiquitous broadband."

Copyright law: Is copyright law worthy of this kind of protection?


  • Copyrights on creative works must be enforced. Barry Sookman. "The costs and benefits of graduated response in copyright enforcement." Barry Schookman Blog. February 1st, 2010: "Copyright infringement is a negative externality. It raises transaction costs and inhibits investment in the creative industries. Avatar would never have been able to attract a 500 million dollar investment if this 3D movie was as easy to freely copy (free-riding) as a standard 2D video. [...] The question is then: how to internalize copyright enforcement? The cost-benefit analysis which needs to be made is not just comparing the cost of enforcing copyright with the “savings” of not enforcing copyright. It is comparing the cost of enforcing copyright with the cost of leaving copyright unenforced. Indeed, in the phase of the digital roll-out, the benefits of the digitization could temporarily outweigh the costs of not enforcing copyright. But now that digitization is ubiquitous, there is less benefit and much higher cost with not enforcing copyright."


  • Graduated response unecessary; laws/punishment already exist. Intellectual Property Office of Singapore (IPOS) spokesperson Tan Mei Jue: "Illegal downloading and illegal file-sharing are violations of copyright law in Singapore, and there are remedies in our copyright law for copyright holders to take appropriate legal action against copyright infringers.
Cyril Chua, a partner at a Singapore law firm ATMD Bird & Bird and specializing in IP and technology, supported the stance taken by The Intellectual Property Office of Singapore: [The local police force has] all the powers under the Criminal Procedure Code to compel ISPs to disclose the identity of frequent downloaders of pirated materials [...] All it would take is a few high-profile prosecutions. Once the public is aware that [illegal content] downloaders are prosecuted, they would stop," said Chua. "While some may claim that this is akin to using a sledgehammer to crack a pea, this is clearly the most effective method. The only unresolved issue is whether the police would have the bandwidth to handle such cases."[5]
  • Govts will use ISPs to catch more than pirates. Computer & Communications Industry Association President Ed Black said in a statement: "Once we turn our ISPs into law enforcement agents, governments with much worse human rights records are going to demand the ISPs use this same technology that catches copyright infringers to catch political dissidents."

Efficacy: Can graduated response help lower piracy?


  • Graduated response warnings effectively deter further piracy. Susan Butler, a veteran musioc-industry reporter who now manages the publication Music Confidential, reporting on a trial of how graduated response effects user behavior: "The trial revealed that the vast majority of subscribers stopped the activity after receiving notices, says Ciccone. With each subsequent notice, another 50% stopped the activity. Only a relative handful of subscribers continued the activity after receiving notices. These results support the conclusion that a notice program can have a very big impact on piracy. These results were consistent with studies in other countries, added Bloss-Baum."[6]
  • Infringement will persist, but graduated response helps. Patrick Ross. "ISPs and Graduated Response." Copyright Alliance. March 31st, 2009: "There will always be infringers. In Seattle, I had lunch with some of the anti-DRM speakers. One boasted to me about how active he was in using torrent services to infringe; it was easy, he said, and argued that if technology allows it then it can’t really be wrong. But most of us can be persuaded to play by the rules when it no longer seems to be in our interest to break them. The effect of these letters show that."
  • Graduated response is used in many countries. Nate Anderson. "IFPI: 'Three strikes' efforts hit worldwide home run."ARS Technica. August 19, 2008: "while most coverage of such ideas has focused on the French and English context, Perlmutter averred that the idea has actually gained significant worldwide traction. Governments seem to like throwing content owners and ISPs into a room and demanding that they work out some solution (often under threat that the government will simply legislate one otherwise), and graduated response appears to be least objectionable to both parties."
  • Colleges have used own graduated reponse systems. Barry Sookman and Dan Glover. "Graduated response and copyright: an idea that is right for the times." Lawyers Weekly. January 20th, 2010: "Colleges and universities have really been engaged in their own form of graduated response for many years. If you take a look at what universities have been doing, they have escalating sanctions for people who have been identified as repeat infringers. Something as simple as, for example, at Stanford, where they charge a $100 reconnection fee for somebody who fails to respond to a first notice. Then a second offense is $500 and a third [time] offender has network privileges terminated and to regain access, they have to pay a $1,000 fee. That's a very clear graduated response system. [...] Others will just give a warning the first time, and the second time they might do a temporary disconnect for 24 hours, and a third time they might refer you to the judicial affairs system. Every school has its own variation, but they've really been implementing informal graduated response."


  • Enforcing a mandated graduated response is unworkable. "Graduated response." Open Rights Group: "the consequences of the government legislating to force the BPI’s proposals into effect would be both unwanted and unworkable. The result would be to replace the current judicial process with an administrative one: ISPs could surely not be expected to carry out reviews of such cases on their merits – they would neither be qualified to do so, nor would they have the resources to do so. It is hard to imagine anything other than a rubber-stamping process, by which users would be cut off at the drop of a hat."
  • Global use of graduated response has been mixed. "Estimating The Cost of a Three-Strikes and You're Out System." Michael Geist Blog. January 26, 2010: "the truth is implementation in many countries is a mixed bag. Countries such as Germany and Spain have rejected it, acknowledging criticisms that loss of Internet access for up to a year for an entire household is a disproportionate punishment for unproven, non-commercial infringement. [...] Those countries that have ventured forward have faced formidable barriers. New Zealand withdrew a three-strikes proposal in the face of public protests (a much watered-down version was floated at the end of last year), the UK's proposal has been hit with hundreds of proposed amendments at the House of Lords, and France's adventure with three-strikes has included initial defeat in the French National Assembly, a Constitutional Court ruling that the plan was unconstitutional, and delayed implementation due to privacy concerns from the country's data protection commissioner."

Enforcement: Can graduated response be effectively enforced?



  • Govt in graduated response invites mission creep. David Sohn. "Graduated response: Inviting FCC Mission Creep?" Center for Democracy and Technology. February 24, 2010: "What's wrong with that? It's an invitation to major mission creep. "The FCC's job is to execute and enforce federal communications law. It has no authority and no role in enforcing other laws. Lots of unlawful activity -- from intellectual property infringement to racketeering to securities fraud to deceptive advertising -- may occur over or using communications networks. But that doesn't make it the FCC's job to police such activity. The FCC's focus is, and should remain, promoting the availability of high quality communications capabilities in the United States -- not policing what users do with those capabilities. [...] In addition, the only reason to involve the FCC would be to force the entities the FCC regulates -- communications providers, and in particular ISPs -- to start actively policing I.P. infringement. Having government force ISPs to take on this new role should raise serious red flags."

Economics: Is graduated response economically valuable?


  • Graduated response gives protections needed for investment. Barry Sookman and Dan Glover. "Graduated response and copyright: an idea that is right for the times." Lawyers Weekly. January 20th, 2010: "While graduated response will never eradicate online infringement altogether, it would also give rights holders and ISPs the necessary protection they need to develop innovative business models such as the subscription plans created by European ISPs like Orange and BSkyB, and by mobile providers such as Nokia and Sony Ericsson. Bringing together graduated response with these access-based models would give users a safe, affordable and reliable means to get the creative content they desire while fostering innovation, creativity, competition and investment in intellectual property."
  • Costs of unenforced copyright laws has grown. Barry Sookman. "The costs and benefits of graduated response in copyright enforcement." Barry Schookman Blog. February 1st, 2010: "in the phase of the digital roll-out, the benefits of the digitization could temporarily outweigh the costs of not enforcing copyright. But now that digitization is ubiquitous, there is less benefit and much higher cost with not enforcing copyright. Worse, if copyright is poorly enforced at the end user level — with free-riding going unpunished — then incentives are given to innovators to help the consumer to free-ride. The longer this signal lasts, the higher the cost of copyright enforcement."


  • Graduated response would severely damage small ISPs. "Estimating The Cost of a Three-Strikes and You're Out System." Michael Geist Blog. January 26, 2010: "The disparate impact between big and small Internet providers highlights another hidden cost of three-strikes systems - the negative effect on the competitive landscape for Internet services. The UK estimates that the costs on small Internet providers are so great that consideration should be given to exempting them entirely, since the additional burden would result in decreased competition. The same report identifies the disproportionate harm to wireless carriers, who would face massive capital costs and be placed at a competitive disadvantage."
  • Unfair to force ISPs to respond to piracy. ISPs are not responsible for pirates and they are not the music industry, which suffers from piracy. They should not, therefore, be forced to punish pirates through graduated response.

Pro/con source



See also

External links and resources:

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