Could U.S. copy France's three-strikes antipiracy law?

Update at 10:05 a.m. PDT: On Wednesday, France's Senate also passed the bill, according to the Associated Press.

The French National Assembly has passed an antipiracy bill that sets a very dangerous precedent.

The "Creation et Internet" bill which passed the lower house of France's parliament by a vote of 296 to 233, is a "three-strikes-you're-out" act that could suspend Internet access for up to a year to anyone caught three times downloading or sharing copyrighted files. The law would not need a trial or court order to be enforced.

The fact that Internet access could be suspended without a trial tempts me to joke that the law is "downright un-American" (it's also downright un-European), but that would be a bit too smug because it could happen here.

There have been proposals from some in the entertainment industry to enlist Internet service providers in the U.S. to use similar sanctions to punish alleged copyright violators.

Until late last year the Recording Industry Association of America's strategy for dealing with alleged copyright violators was to slap them with a lawsuit. But in December, it announced that it would abandon that practice in favor of working with service providers to apply pressure to customers accused of copyright violations.

Graduated response
Although it's hard to find online references to what exactly what sanctions the RIAA has in mind, CEO Mitch Bainwol, told a congressional committee in May 2008 that his organization is encouraging ISPs "to work with the content community to adopt effective marketplace solutions to digital copyright theft" and that the "RIAA and our member companies have been engaged in constructive discussions with a number of ISPs about ways to address the piracy problem, including mechanisms like graduated response policies...."

Graduated response is generally regarded as a euphemism for a series of warnings followed by sanctions including slowing down, limiting, suspending, or even terminating service.

There have been press reports that AT&T's Internet service division has agreed to participate in a graduated response program. But the company says that while it is taking some steps to curb piracy on its network, it has denied any intention of terminating or suspending service for people accused of copyright violations.

Verizon Communications, which is also a major Internet service provider, has repeatedly said that it will not participate in such a program.

Charter Communications, however, has said that it "reserves the right to suspend or terminate the accounts of repeat copyright infringers." And, if you read the terms of service or acceptable use policy of most ISPs, you'll probably find a clause that prohibits using the service to store, post or transmit content that constitutes an infringement of third-party intellectual property rights.

In December, RIAA president Cary Sherman provided some explanation of the organization's graduated response initiative in an interview with Ars Technica.

Can it happen here?
Gigi Sohn, president of digital-rights advocate Public Knowledge, worries that this can happen here.

"The recording industry and Hollywood have a lot of friends in Congress," she said in an interview. "Their aim is to get as many of these laws passed in other countries so that they can come to Congress and say 'others are doing it.'" Europe, she added, "is like a petri dish." She also says that major ISPs, including phone companies like AT&T and Verizon are (like cable companies) now in the business of providing TV service, which makes them dependent on the entertainment industry for programming.

I'm not arguing that we should ignore people who willfully violate the copyright law, especially if they are illegally making copyrighted works available to others. I'm personally offended by those who unjustly profit off of other people's labor, and I was once party to a legal proceeding and an eventual settlement against someone who repeatedly plagiarized my syndicated newspaper columns. I agree that copyright holders should have the right to defend their intellectual property but only in ways that are consistent with our (and many other countries') constitution and legal system.

What bothers me about the French legislation and those "voluntary" proposals that are floating around here in the United States is that they could impose a severe sanction without benefit of a trial.

Taking away someone's Internet access can result in denying them the ability to make a living, to study, to purchase travel, or to obtain health information. It can even limit their ability to express themselves, which makes it a possible First Amendment issue. For some people, it could be even more severe than a short jail sentence.

I'm certain that there situations where convicted criminals should be barred from the Internet for their crimes, but I don't want to leave an incredibly punitive decision like that to a company, an industry association, or a government bureaucracy. A sanction that harsh should only be made by a judge or jury after the accused gets a chance to confront the accuser and put up a defense.

This post has been adopted from a column that originally appeared in the Palo Alto Daily News.

[nodash]

I hope they do not copy that idea. It will be an infringement of France's Intellectual Monopoly. :)

Yeah, I said it right: Intellectual Monopoly not Intellectual Property. There not such thing as IP. Why not? Because property (as in your possessions) confers the right to use as long as they do not infringe on the right of others. Simple, right?

Intellectual Monopoly on the other hand assumes the right to prohibit. You cannot play my song in your radio without a license or you cannot make a copy of that CD and send it to your cousin.

Now, the only reason why Intellectual Monopoly holders get away with it is because they use violence or the threat of violence to go after those that "infringe" their monopoly.

The only way to fix this is to repeal all IM laws and regulations because there will never be a happy medium so no attempt reform will fix what was broken from the beginning.

[umbrae]

I doubt any law here would survive a legal challenge. I even doubt the French law will survive since it is in conflict with EU laws, but time will tell. We get closer to having our credit card automatically charged when we hear a song or catch glimpse of a movie every day. It would be nice to have the government work for the people again.

[Renegade Knight]

Go for it, but mirror it. Ban the Media Companies from digital distribution of any kind, if they make three false accusations of piracy that are shown to be fair use.

[neil_turkewitz]

Larry Magid expresses sympathy for the plight of creators in a sea of infringement, but counsels that "A sanction that harsh (i.e. termination of an ISP account) should only be made by a judge or jury after the accused gets a chance to confront the accuser and put up a defense." But that is indeed what is introduced via a system of notices contemplated by the French system. The alleged infringer is given multiple opportunities to confront his or her accuser, and to either protest innocence or modify his or her practices. And not just once! No one has proposed that termination of a user account be the response to an allegation of infringement--just to repeated indifference to such allegations.

In the absence of ISP engagement in providing notice to its users, copyright owners' sole mechanism for trying to address online infringement is to sue first and to talk later. In order to obtain the identity of the direct infringer, copyright owners must first file lawsuits against unnamed parties. Only after undertaking this expensive and time-consuming process is the copyright owner able to have a discussion with the alleged infringer. This may satisfy legal due process considerations, but is an inefficient mechanism for trying to address an infringement problem of massive dimension.

This brings us back to France and graduated response. Isn't it much saner and fairer to alert users that there are accusations that their accounts are being used for infringing purposes and give them an opportunity to address such allegations before bringing litigation? And for a user that ignores multiple notices from his or her ISP, is it really unreasonable to suspend or terminate their ISP account? At that stage, that person is involved in willful and presumably commercial scale infringement. Would the initiation of a criminal action be more satisfactory than the suspension or termination of a user 's ISP account?

[Chris_Castle]

I heard an EFF representative at a conference in which they tried to roil up the crowd by asking "Should Silicon Valley let Hollywood tell them what to do?" The desired answer, of course, was "no" but begged the real question which is if "Hollywood" can't, can Bollywood? Can Seattle? Can Austin? Can New York? Can London? Can anyone? The answer, of course, is they can if they can afford the lawyers and get a final, nonappealable judgment.

It's very easy to drum up wedgism by trying to roil the crowd against "Hollywood" but it is well to remember that the same law protects independent artists, songwriters and independent labels. Or it's supposed to, anyway. These small businesses can ill afford the litigation that seems to be necessary to protect themselves against the cruel theft of labor value in the "catch me if you can" and "make me" environment.

No one who supports the false innovation of parasitic technology seems to be very excited about helping independent artists, songwriters or independent labels enjoy their economic rights. But they are very excited about making sure that the playing field is slanted against these small businesses when someone comes up with an affordable way for the average artist to protect themselves.

The "defense" that seems to be put up most frequently by users of parasitic technology is that the technology--such as Bit Torrent--is purposely designed in such a way that it is difficult to enforce these rights.

The threshold question you have to ask yourself is whether you want to have a professional creative class--journalists, artists, songwriters, illustrators, cartoonists, the lot. If you don't, then oppose three strikes. If you do, I don't see how you can't support it.

So if you don't want creators to be able to enforce their rights, then I suggest that you donate your own job to your cause, Mr. Magid--before you have it ripped off. And if you're not prepared to do that, you should ask yourself why.