Online Piracy: Challenging the 'three strikes' approach

Filed Under: Featured, Law & order

The 'graduated response' strategy to stopping illegal online filesharing has been replicated in countries around the world from South Korea to New Zealand, France and the UK.

Copyright. Image from Shutterstock

Whilst the sanctions and legal process differ, the general 'three strikes or you're out' approach works by sending warnings to customers about copyright infringement allegations against them, telling them to stop or face the consequences.

These laws are often controversial, and are frequently seen as the result of extensive government lobbying by the film and music industry to protect their out-dated business models.

Nevertheless, the proponents argue they lose vast sums of money from piracy which diminishes the economic growth of creative industries, thus making such laws necessary.

The controversy often lies in the draconian and disproportionate punishments, which go far beyond a casual slap on the wrist.

In New Zealand, for example, a presumption of guilt lies on the alleged infringer, and if they can't disprove the charges, they can face fines up to NZ $15,000 or a maximum six month internet disconnection for repeat infringement.

In France, the law allows a judge to order internet disconnection for up to one year, or alternatively a €1500 fine.

It is this well-established French "Hadopi" system that three years on has now been called into question this week by the French Culture Minister, Aurélie Filippetti.

Aurélie FilippettiAurélie Filippetti condemns the regulator as a waste of money, citing its failure to develop alternative legal download services, and questions the proportionality of disconnecting repeat offenders from the internet.

It costs a whopping €12 million per year for its 60 officers who send around 1 million emails annually.

Although nobody has actually been disconnected under the law, 314 cases have gone through their warnings and then referred for prosecution.

Hadopi is currently under broader review, and its future and funding are uncertain as Filippetti feels its utility has not been proven.

So, what warning might the Hadopi experience provide for other younger graduated response policies, particularly for the UK?

The UK government has recently restarted the push for enforcement of the Digital Economy Act (DEA). Whilst it was rushed onto the statute books back in 2010, enforcement has repeatedly been postponed.

Skull. Image from ShutterstockFollowing the failure of an appeal against the DEA by Talk Talk and BT in March this year the regulator Ofcom reopened their consultation on the draft operational DEA code last month.

The new text states that as of 2014 copyright owners who identify sources of illegal downloading can report this information to the relevant ISPs.

From there, the ISP tracks down the infringing subscriber and posts them notification letters warning them to stop illegally downloading content.

If the subscriber ignores the warnings and receives three of these letters within 12 months, their details are added to an anonymised "Copyright Infringement List".

Once on this list, copyright owners can then seek a court order demanding the ISP hand over the information needed to begin legal action against the infringer.

Whilst the threat of litigation is clearly a pretty big incentive to stop illegally downloading, punishment without changing the underlying reason for such behaviour can only do so much.

As noted above, Hadopi has been criticised for not developing legal alternatives. The Ofcom Code however pushes for directing of users to legal, licensed services, and stresses the need for development of attractive online content services.

IPO reportThis reflects recommendations for reform made in last year's UK Government-commissioned "Digital Opportunity: A review of Intellectual Property and Growth" report, where Professor Ian Hargreaves noted, "Emphasising enforcement as an alternative to improved digital licensing and modernised copyright law is the wrong approach. Action is needed on all fronts. "

He continued, "The role for Government is to facilitate the provision of readily available legitimate digital content, to reshape copyright law where it is out of touch and to support this with effective measures to educate consumers and to enforce the law."

It seems that heavy-handed enforcement and pointing infringers to a few overpriced legal content access services won't be enough to truly address piracy. The content providers who only rely on the big stick of demonising and chasing illegal downloaders need to do more to find their elusive carrot.

Until there are enough innovative, responsive business models allowing quality, low cost access to legal content, (such as licensed streaming) it is difficult to see how copyright owners can realistically compete with the alternative of free, on demand pirated content.

Copyright and Skull icon images from Shutterstock.

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14 Responses to Online Piracy: Challenging the 'three strikes' approach

  1. Richard · 1154 days ago

    When we're at the point where NASA's own footage of the Curiosity landing was removed from YouTube due to copyright claims made by two-bit news stations, then handing over control of people's lives to the media industry is a particularly stupid idea.

    As for legal options, I think The Oatmeal summed it up best:

  2. Claire · 1154 days ago

    Musicians and authors who have provided some of their works for free online have seen their sales soar. Without radio providing free distribution of songs, most musicians and bands would never get the fan base that enables them to make a living.

    Draconian copyright enforcement measures do not help the artists. Instead, they provide a funding stream to middlemen and distributors who are still using a business model made obsolete by the internet.

    These middlemen grossly exaggerate the value of what has been pirated (see Rob Reid's TED talk on the "$8 billion iPod"), and pass little if any of their plunder on to the original artists (the people the copyright system is supposed to be protecting). Furthermore, their efforts have closed down countless small music venues and have done real harm to the artists.

    We need to completely revamp intellectual property law and the enforcement of it. Cracking down on piracy is NOT the way to do it.

    • Crosbie Fitch · 1154 days ago

      That was all so well said, but then you contradicted yourself with "We need to completely revamp intellectual property law and the enforcement of it."

      I think you'll find it better to say "We need to abolish copyright, patent and trademark aka 'intellectual property law'".

    • Richard · 1154 days ago

      Once again, The Oatmeal sums it up best:

  3. Michael · 1154 days ago

    Piracy actually involves the unlawful sale of copyrighted material. A person who's simply downloading/sharing the content isn't strictly engaging in piracy.
    Anyway, the influence the media industry and the response to this are both massively disproportionate. We don't see this level of attention paid to more serious Internet-related crimes where genuine victims are involved.

    • Andrew Ludgate · 1154 days ago

      Piracy actually involves taking someone else's vessel on the high seas by force, if you want to be pedantic. Copyright infringement has been defined as piracy in many ways by many groups, each of which believe their way is the best. As copyright itself varies from country to country, the term, unless used in its broadest sense (copying intellectual property which you have not been granted the privilege to copy) it tends to distract from the real issue: what does copyright law grant, and to who? Is this still fairly balanced in the current socioeconomic climate? How is it enforced?

  4. Internaut · 1153 days ago

    I predict that it won't be long, before all computers will operate but only if the special 'chip' is active. The chip will examine what is being up/downloaded and if it does not fit a certain criteria, it doesn't up/download, but flashes a warning instead. The ability to install such devices is already available.

    They laughed at George Orwell - but not any more.


  5. John · 1153 days ago

    As an artist, I like to decide for myself what I give away as free and what I sell for profit. The consumer has no right to make that decision for me. When that decision is stolen from me, I lose incentive and inspiration to create. I am not alone. As more artists are robbed, there will be less originality and the world will grow increasingly beige.

    • Toiny · 1153 days ago

      There is already very little originality in music. It's caused by "artists" like you whose only interest is in making money.

      • John · 1153 days ago

        I'm actually a composer of classical music fyi. I write scores (sonatas, orchestrations, choral pieces, etc...). And I was referring to the piracy of sharing PDFs and photocopying. It's hard enough to find a publisher, but its even harder when people think that they can just upload and share whatever they want. I'm not in it to be rich. I'm a piano and music theory teacher who writes on the side. If you want originality in music, support the creators and teachers, and respect the control they deserve over their own output. And even if someone is the type of "artist" you're thinking of, who are you to justify intellectual theft?

      • Alison · 1151 days ago

        "whose only interest is in making money"

        Ummm - yes. If that is their profession, why are they not entitled to earn money for their efforts if you choose to access them?

        As John said, it is up for the artist to decide how they want to distribute it, not for the customer. If you don't like the way it is being distributed, or the cost - then it is your choice not to purchase it.

        As for this piece appearing on a software companies site - what is Sophos policies to piracy? Maybe they should do away with the activation codes, verification checks etc and make it more readily available if they were really serious about helping everyone defeat the scourge of viruses and malware. It smacks of double standards for Sophos to be telling entertainment how to run their business whilst charging premium prices for their own product.

  6. Jack · 1151 days ago

    After reading the posts that precede me, I must say that having been in a very competitive area (software) and other areas that I have experience in, I have to say that without Copyright, Patent and other laws that protect 'idea's (Intellectual Property) we will be lost. As the musician has stated, if he can't sell what he produces, he can only do it as a hobby. As for the person stating they only want money, I pay no attention other than words under my breath on how ignorant can he be. I would ask those people, what they do for a living? Do they actually produce anything that requires thinking? If no, then they would have no idea about 'ideas'.

    [Post edited for length]

    Many people sound like the 'young' generation that think everything belongs to them without compensation to anyone. This is quite obvious in the today world.

    I agree that there are problems, but as such anyone can complain that it isn't working, so if you can't come up with an alternative then you could be one of the problems. I would love to tell you how to fix this, but I really can't think of a way that both creator and consumer can equally work out who gets what. These concepts have been around for many years and are draconian, you are all welcome to come up with some way to reward the creators and get it out to consumers without theft. There is always some theft, but minimize that you could make a fortune.

    Those that think music should be free, why don't you make some music people want and give it away? I feel bad about programmers that work for someone and get a salary, then get nothing after a release and the company continues to make money over and over on the same product and the programmers get only their salary. Of course we could all start businesses! They label most of us consumers for a reason.

  7. writer · 1151 days ago

    'It seems that heavy-handed enforcement and pointing infringers to a few overpriced legal content access services won't be enough to truly address piracy.'

    Oh, come on. £6 a month for Netflix is 'overpriced'? Be realistic. The notion that content thieves are rallying against 'expensive' services in some 'noble' quest has long been invalid.

    The sad fact is that content sharers are digital burglars - there's a reason they decided to steal content in the first place, and that is because they're dishonest. They have no intention of paying. Content theft online is a mentality, and not a logistical problem waiting to be resolved.

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About the author

Lachlan Urquhart is a legal academic from Edinburgh, Scotland who has completed an LL.B at the University of Edinburgh and recently concluded a postgraduate LL.M in Information Technology and Telecommunications Law at the University of Strathclyde. For more articles from Lachlan, visit his blog.