3 Strikes Copyright

The Times reported last month that the UK government were considering following the French lead and introducing a '3 strikes and you're off the Net' law for suspected copyright infringement. The music industry in the form of the IFPI and the BPI are very supportive of the idea, the ISPs less so.

Lilian Edwards gave a very interesting presentation on the legal aspects of a possible 3 strikes law in the UK at the OII's Musicians, fans and online copyright event at LSE last week.

Lilian began by asking if the government has a role here what are the angles? And then went on to say:

The music industry in Europe has followed their counterparts in the US in suing users of P2P networks but EU courts have been generally less willing to process such cases as efficiently as the US court system. In addition it does not seem to be very good business practice to sue your customers.

ISPs, supported by the e-commerce directive, can issue takedown notices for allegedly defamatory or copyright infringing material but this is not really scalable. Another option is the for ISPs to share of anonymised logs but music companies can do that anyway. The most useful thing that ISPs can do for the music labels is to link an IP address to an individual ISP subscriber. The Totalise v Motley Fool Internet defamation case in 2001 made it legitimate for an ISP to reveal personal information in this way despite arguably contravening section 35 of the Data Protection Act and many ISP's own privacy policies. The automatic rubber stamping of the revelation of personal data allowed under the DMCA in the US is arguably not permissible in the EU (see the Sheffield Wednesday case from 2007 where the UK High Court ruled that comments made on a fan's website, though technically defamatory, were still sufficiently trivial that they did not merit invading personal privacy to the extent that the club's directors should be allowed to access the identity of the 7 individuals making those comments.) In Canada the situation is similar to the EU where, in 2004, the Canadian federal appeal court refused to allow the music industry access to the identity of ISP customers suspected of engaging in copyright infringement.

But the disclosure of identity is just the first step in the process of going to court or issuing a cease and desist threat. This takes time and money and is not streamlined and it can lead to lots of embarrassment as we have seen in the US where 8 year olds and dead people get threatened and sued. These kinds of cases are very visible and not good public relations for the industry. So the music industry in particular would prefer a simple notice and disconnect model instead of a difficult, time consuming, costly, transparent and public process.

However, they need all the ISPs to agree or it is no use. At the moment, however, in the UK at least, they can't get everyone to agree.

And following on from a commitment made in the wake of the Gowers Review of Intellectual Property in the UK, without a voluntary agreement on the part of the industries concerned, the UK government are going to consult on legislation to sort it all out. There are no details yet on what form such legislation might take and it was heartening to hear from a representative of the government earlier in the day that they had no fixed ideas in the area. One rumor, persistently doing the rounds, however, was that the UK was considering following the French with a 3 strikes law - a warning, a short suspension of services and then you're off the net for good sequence of strikes issued against people suspected of engaging in copyright infringement via the Net. There are absolutely no details available though the the hypothetical UK version of the proposal. How, for example to appeal a false accusation? What the arbitration process might be? Access to courts and visible/transparent due process when things go wrong for all parties. 4 Japanese ISP associations are apparently considering something similar to the 3 strikes approach.

Whatever form such a proposal might take it raises a number of legal objections.

Due process?
If we withdraw access to the Net from a large number of people in the UK (and 6 million plus are considered to be engaged in copyright infringement via the Net in the UK alone), should such withdrawal be by a closed industry procedure? Practical considerations mean that for the scheme to be workable on the part of the ISPs it would have to be automated and internal to the ISPs. No impartial process or judge would be overseeing it (as is happening in the French case). But we have to realise that ISPs are not Net police but service providers. They are not set up for policing. In court copyright infringement would have to be increased to the standard of a criminal infringement because withdrawal of access to the Internet feels very much like a criminal sanction.

In addition there is a presumption of guilt not innocence. The person linked to the IP address identified as an alleged source of infringement is automatically assumed to be guilty and has the burden of proving their innocence. There are a large number of ways that people might be wrongly accused - there are a lot of reasons why the person linked to the IP address - i.e. the formal ISP subscriber - might not be the infringer. It could be other family members or their friends or others accessing open wireless access points (wifi piggybacking), or trojans enabling remote control of that machine.

There should be an absolute commitment to starting with a presumption of innocence rather than a presumption of guilt by an industry with an economic stake in an outcome whereby someone is held responsible.

Will legal access be available to the accused? Or does someone have to be cut off first? Article 6.1 of the European Convention on Human Rights (ECHR) and every substantive international human rights instrument guarantees the right to due process. Is access to the Net itself a basic human right? Article 36 of the ECHR would suggest so or at least it is very close. The French scheme is better than an unmediated scheme since it allows for the access to an independent tribunal with the oversight of a judge.

Even if we could overcome these problems, there is a serious legal question about whether a 3 strikes law is a proportionate response to the specific problem. According to the recent Promusicae case in the European Court of Justice the rights of the music labels to protect their copyrights must be balanced with the basic human rights of users of the Net. Having access to the Net is now a basic part of nearly everyone's life in the developed world and it relates to basic rights to

• free expression
• freedom of association
• education
• and employment

and the ECHR and every other serious international charter of rights says that if a law is not proportionate it is not legal. As Lilian said in the immediate aftermath of the Promusicae decision:

"the Court finally held that, turning to fundamental rights in the EC Charter, if the fundamental rights to property, and to privacy (which appear therein, as well as in the ECHR) appear to come into conflict when EC Directived are implemented in national laws , well, then , IP does not take precedence over privacy (or vice versa): instead, national courts must "make sure that they do not rely on an interpretation of [national laws] which which would be in conflict with these rights." (para 68) Put it plainly: IP rights do not trump DP rights, says the ECJ.

In other words also - my interpretation purely, now - although the ECJ have not said that laws requiring automatic disclosure of personal data to rights holders to protect IP rights would be illegal under the PECD, a serious warning has been issued to national legislatures not to be pushed into passing such laws, without considering first if rights of protection of personal data are being taken properly into account."

In other words, even with the legitimate aim of defending or protecting copyrights, the ECJ clearly instructed member state governments that they are not to endanger human rights or proportionality. Lilian actually thinks that this part of the decision was a clear dicta from the court aimed directly at the kind of 3 strikes notice and disconnect schemes the French have implemented and others are considering.

More on Musicians Fans and Online Copyright when I get the chance.