Three-strikes policies under fire

08 Jun 2011

ITEM: A UN report released on Friday has blasted graduated response/three strikes laws that aim to cut Internet services for alleged copyright infringers, saying that such laws may violate the International Covenant on Civil and Political Rights.

The report [PDF] – prepared by Frank La Rue, the UN's Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression – says that La Rue is “alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights”, to include graduated-response laws that impose increasing penalties with service cut-off a last resort:

The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights. The Special Rapporteur calls upon all States to ensure that Internet access is maintained at all times, including during times of political unrest.

Moreover, the report calls on countries that already have graduated response/three strikes laws in place – like New Zealand – to repeal or amend them to remove service cutoff as a penalty.

The UN report also criticizes the notice-and-takedown system, saying that it’s “subject to abuse by both State and private actors”, and that it lends itself too easily to self-censorship on the part of intermediaries like YouTube. A lack of transparency in the notice-and-takedown process doesn’t help matters.

It will be interesting to see what regulators do in the wake of the report – or, more importantly, the various music and film industry associations that have pushed regulators, legislators and trade representatives to adopt three-strikes laws as a deterrent to filesharing.

Early reports from Australia (where the Australian Federation Against Copyright Theft (AFACT) unsuccessfully tried to force the issue by suing ISP iiNet) suggest that while AFACT isn’t impressed with the UN report, some music-industry groups are changing their tune.

Sabiene Heindl, general manager of Music Industry Piracy Investigations (MIPI, the music industry's anti-piracy arm that has also advocated three-strikes), told the Sydney Morning Herald that MIPI that it would still seek “mitigation measures” for copyright infringers, but not to the point of terminating accounts.

That’s in Australia, mind. Other heavyweight groups like the RIAA, MPAA and IFPI have yet to comment on the UN report at post time, possibly due to being too distracted by the launch of the latest piracy threat: Apple’s iCloud service.

In any case, the UN report is a good start. Three-strikes was never a good idea, and was always going to be at loggerheads sooner or later with the concept that broadband access is a basic right. Still, I'd be surprised if at least some content industry groups let the report go unchallenged without making a legal case for three-strikes under international law.

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