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Ready for comments. | | | As the internet becomes an ever-larger part of daily life, the worldwide copyright industry has started a push for laws that require ISPs to deny internet access to copyright violators. Known as “three-strikes laws,” proposals for such measures have cropped up around the world and so have vehement objections to their implementation. This outcry, which has not arisen for other instances of internet access prohibitions, indicates the extent to which people believe that a court is necessary before internet access can be taken away. In other words, the fervent opposition to three-strikes laws demonstrates that internet access has come to be viewed as a human right, at least by a significant segment of the population. | |
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< | Several countries have been using denial of internet access as a punishment for crimes already. In the United States, there’s the case of the former University of Texas student who was convicted for hacking into the school’s network. The punishment has also been explored in the US for individuals convicted of downloading child pornography. And in Singapore, an internet ban has been used as a punishment for a teenager convicted of Wi-Fi freeloading. However ridiculous or extreme these cases may be, they have one important factor in a common: a court ordered the imposition of an internet ban for a particular individual after it found him or her guilty of a crime. | >
> | Several countries have been using denial of internet access as a punishment for crimes already. In the United States, there’s the case of the former University of Texas student who was convicted for hacking into the school’s network. The punishment has also been explored in the US for individuals convicted of downloading child pornography. And in Singapore, an internet ban has been used as a punishment for a teenager convicted of Wi-Fi freeloading. However ridiculous or extreme these cases may be, they have one important factor in a common: a court ordered the imposition of an internet ban for a particular individual after it found him or her guilty of a crime. | | |
Three-Strikes Laws in the Copyright Context | | | | |
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< | Notably, this provision places the entire onus of discovering and punishing copyright infringers on the ISP and provides no guidance about standards of proof or about establishing an appeals process. The UK proposal, similar to the New Zealand law, would require ISPs to enforce the law, with the added twist that if an ISP neglec tots do so, it might be prosecuted itself. The French version of a three-strikes law is more detailed, and considered to be the toughest yet introduced in the world. It calls for a new administrative agency, which would receive complaints from rights holders and would pass them on to ISPs, and which would oversee an appeals process. | >
> | Notably, this provision places the entire onus of discovering and punishing copyright infringers on the ISP and provides no guidance about standards of proof or about establishing an appeals process. The UK proposal, similar to the New Zealand law, would require ISPs to enforce the law, with the added twist that if an ISP neglec tots do so, it might be prosecuted itself. The French version of a three-strikes law is more detailed, and considered to be the toughest yet introduced in the world. It calls for a new administrative agency, which would receive complaints from rights holders and would pass them on to ISPs, and which would oversee an appeals process. | | |
Reaction to Three-Strikes Laws | | | Nice essay. Is it ready for comments from others or are you still working on it? | |
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> | Edit: Since you marked it ready for review, I am revising this comment to include my thoughts. I marked a few areas with red text that seem to be typos. For the block-quoted portion on section 92A, perhaps make it more clear that the first line is the title? It read like a strange sentence as is until I followed the link and saw it was not a sentence, it was the title. Also, in my Word processor count, the essay seems to come out to around 1100 words. You might want to cut it back to the 1000 word limit mentioned here.
I thought the essay made good points. Two resonated with me in particular: (a) that we don't need to increase the protective architecture of copyright law, and (b) that denial of internet access has a significant effect on folks. It seems that many of the laws in question just involve the termination of service from one ISP to a particular alleged repeat copyright infringer; that strikes me as a matter of contract law, and so while I agree that terminating service should perhaps involve some sort of appeal option you might consider saying more about that point.
The reason I agree that this basically contractual issue should perhaps have an appeal mechanism is because (a) with the uncertainty that surrounds fair use questions, it's sometimes hard to see when someone really is infringing, (b) rightsholders will often aggressively assert a user violated the law and unsophisticated (or sophisticated but lazy/risk-averse ISPs) could easily just take their word for it and boot you, and (c) in many locations, there are not realistic options if your ISP terminates your service, so in some sense the termination has a broader reach than the ISP-to-customer scenario suggests. I do think that the strongest points here are that there should be some remedies for people who are deemed to have "3 strikes" and are then cut off by their ISP.
I wonder if you think a breach of contract claim in that case is helpful? Or perhaps a tortious interference with contract claim if a rightsholder is falsely (or even maliciously) alleging copyright violation by the user. I suspect the ISP-customer service agreements are not pro-customer in such a situation, so probably not. And making the user sue to get back internet access is putting the burden in the wrong place for me. Do you think the market will keep the balance even - if ISPs terminate too often they'd lose users and so they will exercise restraint? I'm not sure the market has that power here, especially if the ISP is looking at e.g. a take-down notice from a rightsholder threatening to sue.
Lastly, you might consider mentioning the DMCA, section 512(i)(1)(A), since it relates to US law on repeat infringers and ISPs. There are a number of links online discussing its use, including this one from Chilling Effects. The DMCA, as noted in that article, presents an interesting quirk to the question you raise: assuming for a moment that we do have a right to internet access, do we have a right to access particular sites that are public (e.g. YouTube)? The DMCA repeat infringer provision pops up in the context of more than just AOL-type ISPs, since "service provider" gets a broad definition in parts of the DMCA.
Thanks for your thoughtful essay. I hope my comments are helpful and that you're having a good break. | | | -- BrianS - 13 Mar 2010 | |
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