Graduated response, also known as three strikes, is an approach, adopted in several countries, aimed at addressing online copyright infringement.
In response to copyright infringement using peer to peer software, the creative industries reliant on copyright advocate what is known as a "graduated response" which sees consumers disconnected after a number of notification letters warning that they are violating copyright. The content industry has thought to gain the co-operation of internet service providers (ISPs), asking them to provide subscriber information for ISP addresses identified by the content industry as engaged in copyright violations. Consumer rights groups have argued that this approach denies consumers the right to due process and the right to privacy.[1][2]
The content industry's proposal for internet service providers to cut off 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 (see the HADOPI law) and the UK (see the Digital Economy Act 2010), though the approach, or variations of it, has been implemented in a number of other countries, or attempts are made to do so.[3]
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, and that the end user is responsible for all illegal activity connected to his or hers IP address.[2][4]
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 peer-to-peer activities for the purpose of detecting copyright infringers and suing them.[2]
The graduated response may vary form country to country, though the European Data Protection Supervisor has summarised the approach as follows:
"...copyright holders using automated technical means, possibly provided by third parties, would identify alleged copyright infringement by engaging in monitoring of Internet users’ activities, for example, via the surveillance of forums, blogs or by posing as file sharers in peer-to-peer networks to identify file sharers who allegedly exchange copyright material. After identifying Internet users alleged to be engaged in copyright violation by collecting their Internet Protocol addresses (IP addresses), copyright holders would send the IP addresses of those users to the relevant Internet service provider(s) who would warn the subscriber to whom the IP address belongs about his potential engagement in copyright infringement. Being warned by the ISP a certain number of times would automatically result in the ISP's termination or suspension of the subscriber’s Internet connection.[5]
It has been promoted by the Recording Industry Association of America and other national bodies.[6][7] Consumers' association Which? favours the initiative, calling measures "proportionate".[8]
In October 2008 a number of other European countries were considering the implementation of a graduated response to copyright infringement via the internet, including France and Britain.
In France President Nicolas Sarkozy backed the proposal to implement a graduated response law[2] and the the French government passed a three strikes policy in the HADOPI law. The law was initially rejected by the Constitutional Council of France for contravening the Constitution of France and Declaration of the Rights of Man and of the Citizen[9]
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. See Internet censorship in Ireland.[10]
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 and may be deferred indefinitely.[11]
In January 2009 the British government announced its plans to legislate a graduated response system for peer to peer copyright infringement. 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".[12] Since late 2009 Great Britain's Lord Mandelson is pushing ahead with plans to impose a graduated response through the Digital Economy Bill[13], despite the Gower's report and Lord Carter's Digital Britain report advising against it.[citation needed] The Act has now been passed into law.[14]
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.