Is it appropriate to "ban" someone from the Internet for downloading someone else's music? Is turning someone into an Internet exile a proportionate punishment for illegal file sharing?
The French have passed such a law, and the British, led by the queen, have proposed legislation. Some companies that produce music and video seem to be encouraging similar approaches across Europe and in the U.S.
Meanwhile, the U.S. and other countries may be considering it in secretive world trade negotiations.
The particulars may vary, but the basic idea calls for escalating responses by Internet service providers (ISPs) to repeated allegations of online copyright infringement, up to and including total disconnection. This type of ISP enforcement has come to be known as a "three strikes" or "graduated response" rule, and it is fraught with problems.
Here's how such a plan might work: an ISP is alerted that one of its subscribers is engaged in some action that may be a copyright violation. The subscriber receives a warning, making it clear that someone is watching.
If there is further alleged infringement, the subscriber receives another, more sternly-worded notice about the alleged illegal action. At some point, if the behavior continues, the ISP takes the matter into its own hands and starts imposing concrete sanctions, including suspending the connection – effectively turning the subscriber into a kind of Internet exile for a significant period of time.
Proponents hope this approach will streamline the copyright enforcement process so rights holders need not pursue each infringer individually, a time- and cost-intensive process.
The scope and length of disconnection can vary, as can the process to punishment. Startlingly, judicial determination of infringement is not always required. For example, the British proposal would empower a regulatory agency to establish the criteria for suspension.
The French law establishes a one-year suspension as a supplemental penalty to be imposed by a hearing process. The French law takes the extra step of barring a subscriber, not just from his or her present Internet provider, but also from any other ISP, imposing total (though not permanent) exile on an infringer.
While we have seen no specific proposals in the U.S. yet, it is clear that major U.S. copyright interests are pushing for ISPs to take a proactive role in fighting infringement. There have been reports that major copyright interests are looking to make deals with ISPs to adopt some kind of "graduated response" regime, as well as asking policymakers to encourage such an approach.
The three strikes concept, in one form or another, could very well be a live issue on this side of the Atlantic in the near future.
To be clear, copyright infringement on the Internet remains a problem, and enforcement against infringers is a necessary and appropriate part of a viable copyright system. Moreover, having ISPs forward warning notices to alleged infringers could be a useful step for reducing infringement without resorting to cumbersome lawsuits — all while appropriately leaving the dispute squarely between the copyright holder and the alleged infringer.
However, a three strikes policy leading to Internet exile raises serious red flags.