Debate: Graduated response antipiracy laws

Is a "graduated response" to 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]

Users: Is graduated response respectful to users?

Pro

• Graudates response is respectful to users. 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 maintain user privacy. Nate Anderson. "IFPI: "Three strikes" efforts hit worldwide home run." ARS Technica. August 19, 2008: "For ISPs, the plan allows them to preserve user privacy (they don't generally turn any information over to the content owners), doesn't involve any filtering, and keeps the ISPs free from government mandates to police their networks."

• General statements supporting graduated response

Con

• Graduated response risks collecting too much data on users. Nate Anderson. "RIAA graduated response plan: Q&A with Cary Sherman." ARS Technica. December 21, 2008: "Does this mean ISPs now have an obligation to engage in enough data retention to reconstruct the activities of subscribers? If so, this will create a cache of data that will imperil our privacy in other ways, as the government and private litigants start demanding access to it."

• Targeting sanction to offending user could be difficult. "Graduated response." Open Rights Group: "whole families and shared households of internet users would be cut off from the internet as a result of one person’s unlawful activity. Which raises the question, who receives the sanction? The account holder? If so, what if it’s not the account holder carrying out the unlawful activity?"

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Pro

• 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."

Con

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Pro

• Graduated response is best compromise b/w stakeholders. Barry Sookman and Dan Glover. "Graduated response and copyright: an idea that is right for the times." Lawyers Weekly. January 20th, 2010: "A graduated response system that is proportionate, respectful of privacy, limited to clear cases of infringement, and supervised by the courts or other tribunals, is likely to be a win-win proposition for all stakeholders in Canada as well. It would accomplish the dual goals of reducing online piracy and increasing legitimate sales through consumer education and the knowledge that a deterrent exists if illegal file sharing does not cease."

Con

Government involvement: Can the government avoid involvement?

Pro

• W/o mandate, not all ISPs will join graduated response. "Graduated response." Open Rights Group: "in order to be workable, a voluntary agreement that encompasses all of the BPI’s proposals as they currently stand, would have to involve all existing (and future) ISPs. In reality, this is simply not going to happen unless the government intervenes."

• Graduated response does not require govt involvement. Nate Anderson. "IFPI: "Three strikes" efforts hit worldwide home run." ARS Technica. August 19, 2008: "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."

Con

• 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."

Universities:

Pro

• 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."

Con

Pro/con source

Pro

• Barry Sookman and Dan Glover. "Graduated response and copyright: an idea that is right for the times." Lawyers Weekly. January 20th, 2010

Con

• "French Net black-out against "graduated response'." February 28th, 2009

See also

External links and resources: