Comment & Debate
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.
“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.”
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.
“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.”
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.
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.
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.
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.
“We have always said that oppressive and ultimately futile deterrents are not the solution to the music industry’s woes.”
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.”
‘Mere allegations of copyright infringement should not trump users’ rights. Copyright law is often complex and context sensitive, and only a court is qualified to adjudicate allegations of copyright infringement. Indeed, in Google’s experience, there are serious issues regarding the improper use and inaccuracy of copyright notices by rights holders.
“What’s the mechanism for ‘appealing’ a false allegation? How will subscribers be notified (i.e., what if your ‘third notice’ ends up caught in your spam folder, or your teenager intercepts the letters)? Will parents be held responsible for what their children are doing? Will neighbors be held responsible if they run open WiFi?”
“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.”
“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.”
“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 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.”
“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.”
“One must compare the cost of enforcing copyright using graduated response with the cost of not implementing such as system. When this analysis is done, graduated response to address copyright infringement can be fully justified from an economic perspective.”
“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.”
“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.”
“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.”
“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.”
“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.”
“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 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.”
“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?”
“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.”
“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.”
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