Graduated response

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Graduated response (also known as three strikes) is a protocol or law, adopted in several countries, aimed at reducing unlawful file sharing.

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In response to online copyright infringement, the creative industries, who are reliant on copyright, advocate a "graduated response" that sees infringers sent a series of notifications, warning those who have been alleged to have infringed copyright, plus additional information on how to secure their Internet connection and details of legal alternatives. Repeat-infringers risk intermediate technical measures such as bandwidth reduction, protocol blocking and, in a worst-case scenario, temporary access suspension. The content industry has gained the co-operation of internet service providers (ISPs), asking them to provide subscriber information for IP addresses identified by third parties as engaged in copyright infringement. [1]

Early developments

The content industry's proposal for internet service providers to throttle, temporarily suspend, or disconnect Internet access to a subscriber who had received three warning letters of alleged copyright infringement was initially known as "three strikes", based on the baseball rule of "three strikes and you're out". Because "three strikes" was understood to refer to physical assault, the approach was later termed "graduated response". Media attention has focused on attempts to implement such an approach in France and the UK, though the initiative, or variations of it, has been implemented in a number of other countries, or attempts are made to do so. [2]

In a number of European countries early attempts to implement a graduated response have led to court cases to establish under which circumstances an ISP may provide subscriber data to the content industry. In order to pursue those that download copyrighted material the individual committing the infringing must be identified. Internet users are often only identifiable by their Internet Protocol address (IP address), which distinguishes the virtual location of a particular computer. Many ISPs allocate a pool of IP addresses as needed, rather than assigning each computer a never-changing static IP address. Using ISP subscriber information the content industry has thought to remedy copyright infringement, assuming that the ISPs are legally responsible for end user activity, therefore commuting an offence, and that the end user is responsible for all illegal activity connected to their IP address. And if you commit such crime, you could be sentenced to up to 45 years in incarceration. [1] [3]

In 2005 a Dutch court ordered ISPs in the Netherlands to not divulge subscriber information because of the way the Dutch content industry group had collected the IP addresses (Foundation v. UPC Netherlands ). According to Dutch law ISPs can only be ordered to provide personal subscriber data if it is plausible that an unlawful act occurred, and if it is shown beyond a reasonable doubt that the subscriber information will identify the person who committed the infringing act. In Germany court specifically considered the right to privacy and in March 2008 the German Federal Constitutional Court ruled that ISPs could only give out IP address subscription information in case of a "serious criminal investigation". The court furthermore ruled that copyright infringement did not qualify as a serious enough offense. Subsequently, in April 2008, the Bundestag (German parliament) approved a new law requiring ISPs to divulge the identity of suspected infringers who infringe on a commercial scale. In Spain the Spanish Supreme Court recently ruled that personal data associated with an IP address could only be disclosed in the course of a criminal investigation or for public safety reasons (Productores de Música de España v. Telefónica de España SAU). In Italy courts established that criminally liability does not extend to file sharing copyrighted material, as long as it is not done for commercial gain. Ruling on a case involving a copyright holder employed a third party to collect IP addresses of suspected copyright infringers, the Italian Data Protection Authority ruled in February 2008 that the systematic monitoring of peer-to-peer activities for the purpose of detecting copyright infringers and suing them is not allowed. [1]

Approach

According to Barry Sookman and Dan Glover, the main characteristics of these initiatives are: [4]

Reception

The British consumers' association named " Which? " favours the initiative, calling measures "proportionate". [5] Some consumer rights groups have argued that the graduated response denies consumers the right to a fair trial and the right to privacy. [1] [6]

Graduated response laws

France

In France President Nicolas Sarkozy backed the proposal to implement a graduated response law and the French government passed a three strikes policy in the HADOPI law. [1]

A survey by the agency responsible for implementing the law suggested the approach was having a positive effect on behaviour. "The report claims that 50% of all French believe HADOPI is a positive initiative, which runs contrary to many press reports claiming the French overwhelmingly rejected the law. Half the respondents of the survey also said HADOPI motivated them to access online content 'more often legally.' And 72% of the 100 people who personally received a HADOPI warning or knew of someone who did said they either ended or reduced illegal downloading." [7]

An academic study by researchers at Wellesley College and Carnegie Mellon University found that public awareness of the initiative corresponds with an increase in French iTunes sales, far higher than in any other European country over the same period. [8]

Accounting for the fact that our independent variable is in log terms, these estimates indicate that iTunes track sales units rose about 25.5% in the control group after March 1, 2009 but by 48% in France, indicating that French iTunes track sales were 22.5% higher on average than they would have been in the absence of HADOPI. Similarly, album sales units rose by 42% in the control group but 67% in France, indicating that HADOPI increased iTunes album sales an average 25% per week in France. [9]

However, writing in Le Monde , Damien Leloup and Jeremiah Baruch attribute the decline in digital piracy and sales increase to the introduction of a new iPhone. [10] Consequently, co-authors of the study examined sales data for various devices, including the iPhone, and found that "the change in iOS device penetration in France between 2008 and 2009 is nearly the same as the change in penetration in the control countries, and if anything the change in iOS device penetration is smaller in France than in the control countries when measured from 2008 to 2010." For this and other reasons "it seems very unlikely that iOS device sales could have driven the disproportionate increase in French iTunes sales" and "we continue to believe that our data provide compelling empirical evidence that the HADOPI law made a difference in French music sales." [11]

New Zealand

New Zealand was one of the first countries to enact a three strikes policy, but its implementation was delayed for a month pending development of a code of practice. [12] It was revealed that the US was instrumental in the implementation of this policy. [13] [14]

South Korea

South Korea adopted a graduated response system in July 2009. [15] Article 133bis of the Korean Copyright Act allows the Korean Copyright Commission to recommend ISPs to suspend the accounts of repeat file sharing offenders (as adjudged by the Commission) for six months. However, users' email accounts are not to be suspended.

United Kingdom

In January 2009 the British government announced its plans to legislate a graduated response system through the Digital Economy Act 2010. In the report entitled Digital Britain the government includes plans for a mandatory "code" for ISPs to follow, as well as the creation of a government "Rights Agency" to help stakeholders deal with the issue of "civil copyright". Under the proposed scheme the UK government would legislate a "Code on unlawful file-sharing" that's ISPs would have to follow and would establish "appeals and standards of evidence". [16] The Act has now been passed into law. [17]

Voluntary graduated response

Ireland

Attempts in Ireland to implement three strikes for a number of ISPs have resulted in court proceedings, the latest of which concerned data protection issues. Only one ISP is still using this law in effect.

United States

In 2011, a consortium known as the Center for Copyright Information established a voluntary graduated response scheme known as the Copyright Alert System. [18] [19] The Copyright Alert System was abandoned on January 30, 2017.[ citation needed ]

Effects of graduated response laws

In 2014, an academic research paper by copyright law academic Rebecca Giblin examined the evidence about whether the graduated response laws in France, New Zealand, Taiwan, South Korea, the UK, Ireland and the United States were achieving their aims. [20] It found little to no evidence that these graduated responses were either successful or effective.

See also

Related Research Articles

Arts and media industry trade groups, such as the International Federation of the Phonographic Industry (IFPI) and Motion Picture Association of America (MPAA), strongly oppose and attempt to prevent copyright infringement through file sharing. The organizations particularly target the distribution of files via the Internet using peer-to-peer software. Efforts by trade groups to curb such infringement have been unsuccessful with chronic, widespread and rampant infringement continuing largely unabated.

File sharing is the practice of distributing or providing access to digital media, such as computer programs, multimedia, program files, documents or electronic books/magazines. It involves various legal aspects as it is often used to exchange data that is copyrighted or licensed.

<span class="mw-page-title-main">Odex's actions against file-sharing</span> Legal actions against illegal downloading activities

Odex's actions against file sharing were Japan copyright owners' pre-action discovery to Singapore Internet Service Providers (ISPs) to request for subscribers details in Singapore who were traced to illegal download activities of their licensed anime series. Odex is a Singapore-based company that licenses and releases anime for local and regional Southeast Asian consumption. As Japanese copyright owners are located in Japan, Odex, being holder of the Japanese anime license in Singapore, were appointed to submit legal documents and court proceedings on their behalf in Singapore.

The Prioritizing Resources and Organization for Intellectual Property Act of 2008 is a United States law that increases both civil and criminal penalties for trademark, patent and copyright infringement. The law also establishes a new executive branch office, the Office of the United States Intellectual Property Enforcement Representative (USIPER).

<span class="mw-page-title-main">Online Copyright Infringement Liability Limitation Act</span> 1998 U.S. federal law

The Online Copyright Infringement Liability Limitation Act (OCILLA) is United States federal law that creates a conditional 'safe harbor' for online service providers (OSP), a group which includes Internet service providers (ISP) and other Internet intermediaries, by shielding them for their own acts of direct copyright infringement as well as shielding them from potential secondary liability for the infringing acts of others. OCILLA was passed as a part of the 1998 Digital Millennium Copyright Act (DMCA) and is sometimes referred to as the "Safe Harbor" provision or as "DMCA 512" because it added Section 512 to Title 17 of the United States Code. By exempting Internet intermediaries from copyright infringement liability provided they follow certain rules, OCILLA attempts to strike a balance between the competing interests of copyright owners and digital users.

<span class="mw-page-title-main">Copyright infringement</span> Usage of a copyrighted work without the authors permission

Copyright infringement is the use of works protected by copyright without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display or perform the protected work, or to make derivative works. The copyright holder is typically the work's creator, or a publisher or other business to whom copyright has been assigned. Copyright holders routinely invoke legal and technological measures to prevent and penalize copyright infringement.

<span class="mw-page-title-main">Recording Industry Association of America</span> Trade organization representing the recording industry in the U.S.

The Recording Industry Association of America (RIAA) is a trade organization that represents the music recording industry in the United States. Its members consist of record labels and distributors that the RIAA says "create, manufacture, and/or distribute approximately 85% of all legally sold recorded music in the United States". RIAA is headquartered in Washington, D.C.

Internet censorship in Ireland is a controversial issue with the introduction of a graduated response policy in 2008 followed by an effort to block certain file sharing sites starting in February 2009. Beyond these issues there are no government restrictions on access to the Internet or credible reports that the government monitored e-mail or Internet chat rooms. Individuals and groups could engage in the expression of views via the Internet, including by e-mail. Irish law provides for freedom of speech including for members of the press, and the government generally respects these rights in practice. An independent press, an effective judiciary, and a functioning democratic political system act jointly to ensure freedom of speech and of the press.

The French HADOPI law or Creation and Internet law was introduced during 2009, providing what is known as a graduated response as a means to encourage compliance with copyright laws. HADOPI is the acronym of the government agency created to administer it.

<span class="mw-page-title-main">Digital Economy Act 2010</span> United Kingdom legislation

The Digital Economy Act 2010 is an Act of the Parliament of the United Kingdom. The act addresses media policy issues related to digital media, including copyright infringement, Internet domain names, Channel 4 media content, local radio and video games. Introduced to Parliament by Lord Mandelson on 20 November 2009, it received Royal Assent on 8 April 2010. It came into force two months later, with some exceptions: several sections – 5, 6, 7, 15, 16(1)and 30 to 32 – came into force immediately, whilst others required a statutory instrument before they would come into force. However some provisions have never come into force since the required statutory instruments were never passed by Parliament and considered to be "shelved" by 2014, and other sections were repealed.

ACS:Law was a United Kingdom law firm specialising in intellectual property law. Prior to 2009, its most notable case was the defence of a British national accused of public indecency in Dubai. The firm is best known for its actions against persons allegedly infringing copyright through peer-to-peer file sharing. The firm ceased pursuing file sharers in January 2011 and ceased trading on 3 February 2011.

Christopher Sabec is an entertainment attorney, manager, and entrepreneur who has worked with Dave Matthews Band, Hanson, the Jerry Garcia Estate and Tea Leaf Green. Sabec is also the co-founder and CEO of Rightscorp, Inc., the copyright monetization company.

<span class="mw-page-title-main">Copyright (Infringing File Sharing) Amendment Act 2011</span>

The Copyright Amendment Act 2011 is an Act of the Parliament of New Zealand which amends the Copyright Act 1994.

Copyright Alert System (CAS) was a voluntary industry effort to educate and penalize internet users who engage in the unauthorized and unlawful distribution of copyrighted works via peer-to-peer file sharing services. The program was operated by the Center for Copyright Information, a consortium consisting of the Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA), and the internet service providers AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon.

The Center for Copyright Information (CCI) is an American organization focused on advocacy and initiatives in support of copyright law. The CCI aims to educate the public about copyright law; coordinates with copyright owners and Internet service providers (ISPs) about issues related to online copyright infringement; assists with the design, implementation, review, and promotion of an online infringement notification and mitigation system ; collects and disseminates online infringement data; and promotes lawful means of obtaining copyrighted works. The organization was created as a partnership between industry associations, including the Motion Picture Association of America, the Recording Industry Association of America, and five major American Internet service providers.

<span class="mw-page-title-main">Ley Sinde</span>

Ley Sinde, is a provision in Spain's Sustainable Economy Act designed to address internet copyright infringements. The bill passed the final legislative hurdle and was made law Friday December 30, 2011. The law created a new intellectual property commission designed to review requests from copyright holders about websites that they claim infringe upon their copyright. The commission has the authority to determine whether to take action against the website or content intermediaries such as the internet service provider (ISP) or hosting provider. The commission's ruling is evaluated by a judge, with the goal of completing the entire review process within 10 days. The law has a provision that also requires content intermediaries to respond more quickly than under previous law: websites determined to be in violation of copyright law must be taken down within 48 hours. Finally, the law has a significant impact on individual privacy rights: it allows impacted parties to seek the identity of those they believe to have infringed on their copyright. This clause reversed precedent set by a 2008 European Court of Justice’s ruling in Promusicae v. Telefónica barring IP holders from demanding the identity of copyright infringers from ISPs. There was strong international pressure, predominantly from the United States, for the creation of this legislation while it was strongly opposed by bloggers, journalists and tech professionals in Spain. Deputy Prime Minister Soraya Sáenz de Santamaría said that the aim of the law was "to safeguard intellectual property, boost our culture industries and protect the rights of owners, creators and others in the face of the lucrative plundering of illegal downloading sites."

Rightscorp. Inc is a Los-Angeles based copyright enforcement company, which locates alleged copyright violators and collects money from legal damages as well as out of court settlements on behalf of the copyright holder(s). Rightscorp manages copyrights of videos, music, and video games.

Geo-blocking, geoblocking or geolocking is technology that restricts access to Internet content based upon the user's geographical location. In a geo-blocking scheme, the user's location is determined using Internet geolocation techniques, such as checking the user's IP address against a blacklist or whitelist, GPS queries in the case of a mobile device, accounts, and measuring the end-to-end delay of a network connection to estimate the physical location of the user. The result of this check is used to determine whether the system will approve or deny access to the website or to particular content. The geolocation may also be used to modify the content provided, for example, the currency in which goods are quoted, the price or the range of goods that are available, besides other aspects.

File sharing in Singapore relates to the distribution of digital media in that country. In January 2019, there were about 12,971,500 households connected with a broadband connection to the Internet in Singapore. There are also many public Internet access points such as public libraries and Internet cafes.

Maverickeye UG is a copyright enforcement company that is based in Germany. It detects and retraces copyright infringement using software technology.

References

  1. 1 2 3 4 5 Klosek, Jacqueline (9 October 2008). "United States: Combating Piracy And protecting privacy: A European Perspective". Mondaq.
  2. ↑ Anderson, Nate (19 August 2008). "IFPI: "Three strikes" efforts hit worldwide home run". Ars Technica. Retrieved 26 July 2010.
  3. ↑ Herseth Kaldestad, Oyvind (28 February 2008). "ISP liability: Norwegian Consumer Council warns consumers not to sign letter of guilt". Forbrukerradet. Archived from the original on 26 October 2008.
  4. ↑ Sookman, Barry. & Glover, Dan. 'Graduated response and copyright: an idea that is right for the times', The Lawyers Weekly, January, 2010.
  5. ↑ Law firm to quit chasing file sharing pirates Which? 9 April 2010.
  6. ↑ Herseth Kaldestad, Oyvind (9 September 2008). "Norwegian Consumer Council calls for Internet complaint board". Forbrukerradet. Archived from the original on 27 October 2008.
  7. ↑ Pichevin, Aymeric. HADOPI Study Says France's Three-Strike Law Having Positive Impact on Music Piracy Archived 2012-02-29 at the Wayback Machine , Billboard. May 16, 2011.
  8. ↑ Pefanner, Eric. Copyright Cheats Face the Music in France, New York Times. February 19, 2012.
  9. ↑ Danaher, Brett, Smith, Michael D., Telang, Rahul and Chen, Siwen, The Effect of Graduated Response Anti-Piracy Laws on Music Sales: Evidence from an Event Study in France, SSRN, January 21, 2012.
  10. ↑ Hadopi, source de la croissance d'iTunes? Le Monde. 24 January 2012.
  11. ↑ Brett Danaher, Michael D. Smith, Rahul Telang Did the Enactment of HADOPI Cause an Increase in iTunes Music Sales in France?, infojustice.org, March 14, 2012.
  12. ↑ "Government delays introduction of controversial 'S92A'". 3 News . 2009-02-23. Retrieved 2009-03-16.
  13. ↑ Wilson, Drew (2011-05-01). "New Zealands Three Strikes Law was Pushed, Bought and Paid for by the US – Wikileaks". Zeropaid . Retrieved 2012-02-20.
  14. ↑ Lasar, Matthew (2011-05-03). "WikiLeaks: US offered to bankroll New Zealand piracy crackdown". Ars Technica . Retrieved 2012-02-20.
  15. ↑ Asian Patent Attorney's Association (18 November 2009). "Annual Report 2009 – Korea" (PDF).
  16. ↑ Anderson, Nate (29 January 2009). ""Digital Britain" to legislate graduated response for ISPs". ArsTechnica.
  17. ↑ "Controversial UK anti-piracy law finally passed". Telecoms Europe. Archived from the original on 30 June 2012. Retrieved 9 April 2010.
  18. ↑ Anderson, Nate (July 7, 2011). "Major ISPs agree to "six strikes" copyright enforcement plan". Ars Technica. Retrieved 2013-02-26.
  19. ↑ Engleman, Eric (July 7, 2011). "AT&T Joins Verizon in Fight Against Web Piracy of Movies, Music". Bloomberg.
  20. ↑ Giblin, Rebecca (February 7, 2014). "Evaluating Graduated Response". Columbia Journal of Law & the Arts. 37 (2): 147–210. doi:10.7916/D8PR8644.
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