Copyright Privacy

One, Two, Three…Out


three strikesThe issue regarding liability of internet intermediaries has garnered much interest post Shreya Singhal v. Union of India. Under Indian law, the normal course of action to be followed by an intermediary when unlawful content (such as content violating copyright laws) has been posted online is to remove the impugned content from the website; in certain jurisdictions, in addition to “take-down provisions” we have what is known as the “three strikes” rule, a draconian legislation aimed at pressurizing Internet Service Providers (ISPs) to terminate the internet connection of the user.

Also known as ‘graduated response’, the three strikes law derives its name from the game of baseball wherein a batter who misses three pitches is said to be struck out.

The three strikes rule was evolved to combat online copyright infringement such as illegal peer-to-peer (P2P) file sharing. According to this rule, each time a person infringes someone’s copyright online, he would be sent a copyright infringement notice and where he commits copyright infringement for a third time, he would risk band-with reduction or even termination of his internet connection by the ISP. The efficacy of this law depends primarily on the co-operation of ISPs since internet users are identified by their IP addresses which are allocated by the ISPs.

The three strikes rule is antithetical to net-neutrality and chokes freedom of speech online, by effectively cutting off internet access. What makes the three strikes rule draconian is that it denies users against whom copyright infringement has been alleged to have an opportunity to deny the infringement claim, thereby denying them a right to fair trial; it is often enough for the rights holder to furnish ISPs with convincing proof of infringements being committed by an individual at a given IP address”.

There are also concerns that the three strikes rule violates the privacy of internet users since under the graduated response law copyright holders can get ISPs to turn over subscriber information to them. Privacy laws are strictly enforced in Europe and courts have been known to respect the privacy of individuals over claims of copyright infringement; this has led to stake-holders lobbying the governments of various countries to amend their copyright legislations to incorporate the three strikes law.

The French Government, which had passed the Hadopi “three strikes” law in 2009, struck down the law in 2013 when France’s Constitutional Council ruled that internet access is a basic human right and the Hadopi law breached the privacy rights of citizens. The Hadopi law provided for cutting off of a person’s internet connection for up to a year for repeated copyright infringement; it also disallowed the defence of ‘open wi-fi access’ thereby penalizing internet users who failed to secure their internet connection from being used for copyright infringement. The Hadopi law has been replaced by a system of fines, where the value of fine increases with each copyright infringement by the same user.

In 2010, the United Kingdom passed the Digital Economy Act which sought to criminalize illegal P2P file sharing on the basis of the three strikes rule. Owing to the lack of proper implementation mechanism, the law could never become operative and the UK decided to replace the law with a “six strikes” system, commencing in 2015. Known as the Voluntary Copyright Alert Programme (VCAP), the scheme would warn internet users four times that they are violating copyright and the users would be sent educational material relating to copyright infringement with no action taken thereafter.

In 2013, USA adopted a six strikes approach (also known as ‘Copyright Alert System’ or ‘CAS’) wherein ISPs would send copyright alerts to errant P2P site users after which punitive measures against the habitual defaulters would be adopted. US has adopted the six strikes approach by way of voluntary anti-piracy agreement between Motion Picture Association of America (MPAA), Recording Industry Association of America (RIAA) and five major ISPs in USA such as AT&T, Cablevision, Comcast, Time Warner Cable and Verizon. The exact nature of the punishment was however never officially announced but some of the graver punitive measures include slowing down of a user’s internet speed to a crawl (known as ‘throttling’). The CAS is administered through the Centre for Copyright Information (CCI), a collaborative effort between the MPAA, RIAA and the five ISPs in USA.

Appeal to an ISP against a copyright alert would entail a fee of $35 which could be waived if the appeal is granted or in case of financial hardship to the internet user.

The six strikes approach differs ostensibly from the three strikes rule in this that the objective of the former is to “educate” instead of punish the pirates. However, ISPs are obligated to turn over the IP addresses of repeat offenders to the MPAA and RIAA who may seek a Court order requiring the ISP to turn over the personal information of the infringing user. The Memorandum of Understanding (MoU) between the MPAA, RIAA and the 5 ISPs states, “The Content Owner Representatives [MPAA / RIAA] or any other member of the Participating Content Owners Group may use such reports or data as the basis for seeking a Subscriber’s identity through a subpoena or order or other lawful process. For the avoidance of doubt, the Parties agree that the Content Owner Representatives may share such reports with the other members of the Participating Content Owners Group.”

Some of the other countries which have adopted graduated response laws are New Zealand and South Korea.

Various studies have been undertaken to determine how effective anti-piracy measures such as the three strikes laws have been. Researchers have concluded that the three strikes laws have not been successful in deterring online pirates, who often devise ways to circumvent the graduated response laws, by resorting to other illegal means not covered by such laws. Further, users of file-sharing sites often thwart monitoring attempts through use of proxy servers.

What does seem to curb online piracy is the rise of services such as Netflix and Spotify which offer legal downloading of music and movies at affordable prices to the consumers.

In August 2010, a High Level Committee on Piracy recommended that India should adopt three strikes law to combat online piracy (covered on the blog here); at present, three strikes laws do not exist in India.

Conclusion:

Not only are graduated response laws ineffective at curbing online piracy, such laws also give rise to a host of new problems (we had reflected on some of these problems on the blog here). For instance, the restrictions imposed under the graduated response laws would also prevent internet users from accessing the internet for non-infringing purposes. Secondly, such laws seem to create a strict liability inasmuch as they punish internet users irrespective of whether they possessed a guilty mind to infringe copyright. Further, should an internet user choose to share a file illegally using an open network in public places such as libraries or airports, the three strikes laws would result in the choking of such public networks.

It also leads one to wonder whether copyright infringement warrants such harsh laws that result in violating a person’s free speech and expression by cutting off internet access. In my opinion, the punishment in this case is disproportionate to the offence alleged to have been committed. It bears noting that in online piracy, commercial gain is seldom the objective of the pirate. Restricting a person’s freedom of speech appears to me to be too unjust a punishment for copyright infringement. If any penalty should be imposed at all, it should be imposition of fines as is the norm under French law. Alternatively, as evidenced by Netflix and Spotify, the availability of low-cost content to users would go a long way in curbing piracy online.

Devika Agarwal

Devika Agarwal

Devika is a Policy Analyst at Nasscom. She first started writing on Spicy IP in 2013 when she was awarded the Spicy IP Fellowship, which sparked her passion for writing on IP. Devika is interested in copyright and technology law.

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