Graduated response (also known as three strikes) is a protocol or law, adopted in several countries, aimed at reducing unlawful
file sharing
File sharing is the practice of distributing or providing access to digital media, such as computer programs, multimedia (audio, images and video), documents or electronic books. Common methods of storage, transmission and dispersion include r ...
.
In response to online
copyright infringement
Copyright infringement (at times referred to as piracy) 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, s ...
, 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
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...
, 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
An Internet service provider (ISP) is an organization that provides services for accessing, using, or participating in the Internet. ISPs can be organized in various forms, such as commercial, community-owned, non-profit, or otherwise privatel ...
(ISPs), asking them to provide subscriber information for
IP addresses
An Internet Protocol address (IP address) is a numerical label such as that is connected to a computer network that uses the Internet Protocol for communication.. Updated by . An IP address serves two main functions: network interface ident ...
identified by third parties as engaged in copyright infringement.
Early developments
The content industry's proposal for
internet service providers
An Internet service provider (ISP) is an organization that provides services for accessing, using, or participating in the Internet. ISPs can be organized in various forms, such as commercial, community-owned, non-profit, or otherwise privatel ...
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.
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
An Internet Protocol address (IP address) is a numerical label such as that is connected to a computer network that uses the Internet Protocol for communication.. Updated by . An IP address serves two main functions: network interface ident ...
), which distinguishes the virtual location of a particular
computer
A computer is a machine that can be programmed to Execution (computing), carry out sequences of arithmetic or logical operations (computation) automatically. Modern digital electronic computers can perform generic sets of operations known as C ...
. 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.
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
UPC Nederland ( en, UPC Netherlands) was the second largest cable operator in the Netherlands, providing cable television (digital and analogue), broadband Internet, and telephone service to both residential and commercial customers.
In early 2015 ...
''). 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
Beyond a reasonable doubt is a legal standard of proof required to validate a criminal conviction in most adversarial legal systems. It is a higher standard of proof than the balance of probabilities standard commonly used in civil cases, becau ...
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
The Bundestag (, "Federal Diet") is the German federal parliament. It is the only federal representative body that is directly elected by the German people. It is comparable to the United States House of Representatives or the House of Commons ...
(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
The Supreme Court ('', TS'') is the highest court in the Kingdom of Spain. Originally established pursuant to Title V of the Constitution of 1812 to replace —in all matters that affected justice— the System of Councils, and currently regula ...
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
Peer-to-peer (P2P) computing or networking is a distributed application architecture that partitions tasks or workloads between peers. Peers are equally privileged, equipotent participants in the network. They are said to form a peer-to-peer n ...
activities for the purpose of detecting copyright infringers and suing them is not allowed.
Approach
According to Barry Sookman and Dan Glover, the main characteristics of these initiatives are:
*"Rights holders monitor P2P networks for illegal downloading activities"
*"Rights holders provide ISPs with convincing proof of infringements being committed by an individual at a given IP address"
*"Educational notices are sent through an ISP to the account holder informing him or her of the infringements and of the consequences of continued infringement and informing the user that content can be lawfully acquired online"
*"If the account holder repeatedly ignores the notices, a tribunal may take deterrent action, with the most severe sanctions reserved for a court"
Reception
The British consumers' association named "''
Which?
''Which?'' is a United Kingdom brand name that promotes informed consumer choice in the purchase of goods and services by testing products, highlighting inferior products or services, raising awareness of consumer rights and offering independen ...
''" favours the initiative, calling measures "proportionate". Some
consumer rights
Consumer protection is the practice of safeguarding buyers of goods and services, and the public, against unfair practices in the marketplace. Consumer protection measures are often established by law. Such laws are intended to prevent business ...
groups have argued that the graduated response denies consumers the
right to a fair trial
A fair trial is a trial which is "conducted fairly, justly, and with procedural regularity by an impartial judge". Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, th ...
and the
right to privacy
The right to privacy is an element of various legal traditions that intends to restrain governmental and private actions that threaten the privacy of individuals. Over 150 national constitutions mention the right to privacy. On 10 December 1948 ...
.
Graduated response laws
France
In
France
France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...
President
Nicolas Sarkozy
Nicolas Paul Stéphane Sarközy de Nagy-Bocsa (; ; born 28 January 1955) is a French politician who served as President of France from 2007 to 2012.
Born in Paris, he is of Hungarian, Greek Jewish, and French origin. Mayor of Neuilly-sur-Se ...
backed the proposal to implement a graduated response law and the French government passed a three strikes policy in the
HADOPI law
The French HADOPI law or Creation and Internet law (french: Haute Autorité pour la Diffusion des Œuvres et la Protection des droits d'auteur sur Internet, ; or, loosely in English, "Supreme Authority for the Distribution of Works and Protection o ...
.
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."
An academic study by researchers at
Wellesley College
Wellesley College is a private women's liberal arts college in Wellesley, Massachusetts, United States. Founded in 1870 by Henry and Pauline Durant as a female seminary, it is a member of the original Seven Sisters Colleges, an unofficial g ...
and
Carnegie Mellon University
Carnegie Mellon University (CMU) is a private research university in Pittsburgh, Pennsylvania. One of its predecessors was established in 1900 by Andrew Carnegie as the Carnegie Technical Schools; it became the Carnegie Institute of Technology ...
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.
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.
However, writing in ''
Le Monde
''Le Monde'' (; ) is a French daily afternoon newspaper. It is the main publication of Le Monde Group and reported an average circulation of 323,039 copies per issue in 2009, about 40,000 of which were sold abroad. It has had its own website si ...
'', Damien Leloup and Jeremiah Baruch attribute the decline in digital piracy and sales increase to the introduction of a new iPhone. 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."
New Zealand
New Zealand
New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island count ...
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. It was revealed that the US was instrumental in the implementation of this policy.
South Korea
South Korea
South Korea, officially the Republic of Korea (ROK), is a country in East Asia, constituting the southern part of the Korea, Korean Peninsula and sharing a Korean Demilitarized Zone, land border with North Korea. Its western border is formed ...
adopted a graduated response system in July 2009. 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 Digital Britain report was a policy document published in 2009, which outlined the United Kingdom Government's strategic vision for ensuring that the country is at the leading edge of the global digital economy.
The Digital Economy Act 2010 wa ...
'' 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". The Act has now been passed into law.
Voluntary graduated response
Ireland
Attempts in
Ireland
Ireland ( ; ga, Éire ; Ulster Scots dialect, Ulster-Scots: ) is an island in the Atlantic Ocean, North Atlantic Ocean, in Northwestern Europe, north-western Europe. It is separated from Great Britain to its east by the North Channel (Grea ...
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
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 ...
established a voluntary graduated response scheme known as the Copyright Alert System.
[
] The Copyright Alert System was abandoned on January 30, 2017.
Effects of graduated response laws
In 2014, an academic research paper by
copyright
A copyright is a type of intellectual property that gives its owner the exclusive right to copy, distribute, adapt, display, and perform a creative work, usually for a limited time. The creative work may be in a literary, artistic, education ...
law academic Rebecca Giblin examined the evidence about whether the graduated response laws in
France
France (), officially the French Republic ( ), is a country primarily located in Western Europe. It also comprises of Overseas France, overseas regions and territories in the Americas and the Atlantic Ocean, Atlantic, Pacific Ocean, Pac ...
,
New Zealand
New Zealand ( mi, Aotearoa ) is an island country in the southwestern Pacific Ocean. It consists of two main landmasses—the North Island () and the South Island ()—and over 700 smaller islands. It is the sixth-largest island count ...
,
Taiwan
Taiwan, officially the Republic of China (ROC), is a country in East Asia, at the junction of the East and South China Seas in the northwestern Pacific Ocean, with the People's Republic of China (PRC) to the northwest, Japan to the nort ...
,
South Korea
South Korea, officially the Republic of Korea (ROK), is a country in East Asia, constituting the southern part of the Korea, Korean Peninsula and sharing a Korean Demilitarized Zone, land border with North Korea. Its western border is formed ...
,
the UK
The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain, is a country in Europe, off the north-western coast of the continental mainland. It comprises England, Scotland, Wales and North ...
,
Ireland
Ireland ( ; ga, Éire ; Ulster Scots dialect, Ulster-Scots: ) is an island in the Atlantic Ocean, North Atlantic Ocean, in Northwestern Europe, north-western Europe. It is separated from Great Britain to its east by the North Channel (Grea ...
and the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
were achieving their aims.
It found little to no evidence that these graduated responses were either successful or effective.
See also
*
Effects of file sharing
*
Anti-Counterfeiting Trade Agreement
The Anti-Counterfeiting Trade Agreement (ACTA) is a plurilateral agreement, multilateral treaty for the purpose of establishing international standards for intellectual property rights enforcement that did not enter into force. The agreement aims t ...
*
Counterfeit
To counterfeit means to imitate something authentic, with the intent to steal, destroy, or replace the original, for use in illegal transactions, or otherwise to deceive individuals into believing that the fake is of equal or greater value tha ...
*
Digital rights
Digital rights are those human rights and legal rights that allow individuals to access, use, create, and publish digital media or to access and use computers, other electronic devices, and telecommunications networks. The concept is particular ...
*
Information freedom
* ''
In terrorem
IN, In or in may refer to:
Places
* India (country code IN)
* Indiana, United States (postal code IN)
* Ingolstadt, Germany (license plate code IN)
* In, Russia, a town in the Jewish Autonomous Oblast
Businesses and organizations
* Independ ...
'' (a legal quality of the graduated educational notices)
*
Secondary liability
Secondary liability, or indirect infringement, arises when a party materially contributes to, facilitates, induces, or is otherwise responsible for directly infringing acts carried out by another party. The US has statutorily codified secondary li ...
References
{{DEFAULTSORT:Graduated Response
Copyright enforcement
Recording Industry Association of America