This House would use a graduated response to combat unauthorised file-sharing of copyrighted material

File sharing, for the purposes of this debate, is providing access to or getting access to software, video, music or other media files for free that you would normally have to pay for. File sharing outside of the control of the copyright holder has become a major problem for media companies who blame it for lost revenues as their content is illegally copied and shared over the internet reducing the demand for the legal product. ‘Graduated response’, sometimes also called ‘three strikes’, is a policy copyright holders are calling for to combat online copyright infringement. Graduated response means that copyright holders would use automated technical means to monitor the activities of internet users, for example via surveillance of forums and blogs, posing as file sharers in peer-to-peer networks or via an automatic copyright filter applied to internet traffic (‘fingerprinting’ of ‘watermarking’). If a copyright infringement is detected, the copyright holder will collect the Internet Protocol address (IP-address, the address your internet service provider uses to identify your computer) and then report the infringer’s IP-address to its internet service provider (ISP). The ISP will then warn the owner of the IP-address. After they have been warned a certain number of times, the ISP can terminate or suspend the subscriber’s internet connection, or send a fine for copyright infringement.

This casefile focusses on the specific policy of graduated response, and only minimally deals with the larger ethical/legal question whether downloading copyrighted content from an unauthorized source should be considered illegal. 

Title 
The unauthorised downloading of copyrighted material should be addressed and prevented by the state
Point 

Copyrighted material is intellectual property: someone worked hard for it to produce it. Downloading this content without paying the proper rights holder for it amounts to theft.

Furthermore, downloading copyrighted material from an unauthorized source creates an impossible market for producers of copyrighted content, because they have to ‘compete with free’. Why would the average consumer want to pay for a download from an authorized website, when she can get the same movie from a pirate-site for free? To build a commercially viable content industry online, we need to protect this industry from the unfair competition of the parallel market.[1]

[1] Piotr Stryszowski , Danny Scorpecci, Piracy of Digital Content. 2009, OECD Publishing. URL for purchase: http://www.oecdbookshop.org/oecd/display.asp?CID=&LANG=EN&SF1=DI&ST1=5KS...

Counterpoint 

Downloading isn’t a crime

Downloading content is not comparable to theft of material things, like cars: after downloading the original owner can still use his or her own copy.

Moreover: governments have always allowed consumers some leeway for replicating content for themselves under the ‘private copying exception’ or ‘fair use’-policy.[1] Before the internet came along, this exception ensured it was legal that one person could copy a song from a radio broadcast transmission for personal use. Why should downloading a song from the internet be any different?

Finally, research has shown that those who download the most from pirate sites are also the ones who buy the most music online legally – why would the content industry want to punish their biggest and most loyal customers?.[2]

[1] Natali Helberger & P. Bernt Hugenholtz, ‘No place like home for making a copy: private copying in European copyight law and consumer law’. 2007. Berkely Technology Law Journal, volume 22, p. 1061 -1098. URL for PDF: http://www.ivir.nl/publications/helberger/BTLJ_2007_3.pdf

[2] Ars Technica, Study: pirates biggest music buyers. Labels: yeah, right’. April 2009. URL: http://arstechnica.com/media/news/2009/04/study-pirates-buy-tons-more-music-than-average-folks.ars

Title 
A graduated response will be an effective deterrent
Point 

Research has shown that consumers are likely to stop downloading from unauthorized sources when warned by their ISP. For example: Seven out of ten (72%) UK music consumers would stop illegally downloading if told to do so by their ISP, and 90 per cent of consumers would stop illegally file-sharing after two warnings from their ISP.[1]

This shows that the threat of a possible disconnection together with a friendly warning is enough to stop most consumers from downloading from illegal source. The reasoning behind it is simple: consumers can now download without a cost, a graduated response mechanism first raises awareness scaring off those who are only casually downloading out of convenience and then heightens the expected cost of infringement and thus makes it more likely consumers will use legal sources.[2]
[1] IFPI, Digital Music Report 2009. 2009. URL for PDF: http://www.ifpi.org/content/library/dmr2009-real.pdf

[2] Olivier Bomsel and Heritania Ranaivoson, ‘Decreasing copyright enforcement costs: the scope of a graduated response’. 2009. Review of Economic Research on Copyright Issues, Volume 6(2), p. 13 – 29. URL for PDF: http://hal-ensmp.archives-ouvertes.fr/docs/00/44/65/31/PDF/Rerci.pdf

Counterpoint 

Consumers will find ways to evade detection

Evading detection for most of the surveillance methods are relatively easy: consumers could start relying on proxy servers to hide their IP-addresses or start encrypting everything they share online to avoid being detected by fingerprinting-software.

In fact, recent experience in France with its Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet (HADOPI) law suggests that despite a graduated response-policy, piracy is actually on the increase.[1] This shows that graduated response won’t do what it is supposed to do; stem online piracy.  

[1] Torrentfreak, ‘Piracy Rises In France Despite Three Strikes Law’, March 9, 2010. URL: http://torrentfreak.com/piracy-rises-in-france-despite-three-strikes-law-100609/

Title 
A graduated response is the fairest way to enforce copyright legislation
Point 

First, the sanction after three warnings can be tailored to fit general notions of justice, the punishment need not be severe and could fit the crime: maybe a consumer would be cut off of the internet for only two weeks, or only cut off from accessing download sites but still be allowed to access government and banking sites, or receive a small fine.

Secondly, the consumer has ample time to change his or her behaviour: a consumer can insist on infringing copyright at least two times before the sanction takes place. The consumer can easily avoid being cut off (even temporarily), meaning the punishment likely doesn’t even have to take place.[1]

[1] Barry Sookman, ‘Graduated response and copyright: an idea that is right for the times’, January 10th, 2010. URL: http://www.barrysookman.com/2010/01/20/graduated-response-and-copyright-an-idea-that-is-right-for-the-times/

Counterpoint 

Graduated response is a draconian punishment

Citizens these days rely on their internet connection for their everyday lives: banking transactions, filing tax forms, and other forms of essential communication are all done online. Cutting access to these basic services is a draconian punishment: it basically amounts to making daily life a whole lot harder. Even if essential services were to remain accessible to the offender they could lose access to things somehow considered less vital such as their online social life. The punishment in no way is proportionate to the ‘crime’ of downloading a song that would have cost 99 cents on iTunes. 

Title 
The graduate response policy constitutes an invasion of privacy by the state
Point 

Graduated response would require huge amounts of monitoring and logging of all internet traffic using technical systems called ‘deep packet inspection’ (DPI) equipment. This means that a computer program will look in close detail at all of the information someone sends over the internet in order to check whether it violates some protocol, for example a ‘fingerprint’ of copyrighted data that the content creator put in.

This means a copyright holder, or a third party paid by the copyright holder to monitor internet traffic, suddenly has access to everything every consumer sends over the internet. This is a massive violation of privacy. Given the fact that advertising companies are already using DPI illegitimately for targeted advertising, it is obvious that content companies will also feel tempted to ‘do more’ with all that data they suddenly have access to.[1]   

[1] Angela Daly, ‘The Legality of Deep Packet Inspection’, 2010. Presented at the First Interdisciplinary Workshop on Communications Policy and Regulation 'Communications and Competition Law and Policy – Challenges of the New Decade', University of Glasgow 17 June 2010. URL for download: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1628024

Counterpoint 

Graduated response is not a massive privacy violation

Firstly, ISPs already use Deep Packet Inspection right now, to engage in what they call ‘network management’, like checking whether users aren’t hogging up bandwidth by downloading too much via peer-to-peer software. But moreover, it is hard to see how exactly every form of deep packet inspection is a privacy violation: the inspecting is done by automated software and only checks for infringements. If no infringement is detected, no one will know what was ‘in the information packet’. Take the example of monitoring for the presence digital watermarks: basically, the monitoring-software has a database of specific ‘watermarks’ that content holders put into their videos, for example a unique combination of pixels. The software only checks whether that combination is present. If it’s not present, the software has no way of ‘seeing’ the information itself. Hence, even though it might sound scary, the technology can be designed in such a way that one can prevent it from becoming privacy violation.[1]

[1] see wikipedia: Digital Watermarking

Title 
ISP will not cooperate with a graduated response policy
Point 

The graduated response model requires cooperation from all Internet Service Providers. If just one ISP refuses, users will flock towards that ISP to be able to keep on downloading. Therefore there will always be an incentive to be the ISP that refuses so as to gain custom from others who have agreed to cooperate. ISPs will also have an incentive to not cooperate because the cost of monitoring and identifying is large, and significantly more so for smaller ISPs: initial estimates of the cost of graduated response for ISPs were around 500 million pounds over a period of ten years.[1]

[1] Michael Geist, ‘Estimating the cost of a three strikes and you’re out system’, January 26, 2010. URL: http://www.michaelgeist.ca/content/view/4731/135

Counterpoint 

ISPs will gladly cooperate with graduated response

Almost a decade ago, ISPs engaged in a competitive battle to gain as much broadband penetration as possible. Now that markets have matured and broadband penetration has more or less ‘maxed out’ in developed countries, ISPs need to find new value propositions to attract customers. One of these value propositions is being able to offer high quality content at high speeds. To be able to offer this, ISPs will need the cooperation of content providers – who can ask something in return, like graduated response.[1] That this actually happens is borne out by the fact that in many countries ISPs are actually getting together to make sector-wide agreements, for example in the USA where the major ISPs have agreed to implementing graduated response.[2]

[1] Olivier Bomsel and Heritania Ranaivoson, ‘Decreasing copyright enforcement costs: the scope of a graduated response’. 2009. Review of Economic Research on Copyright Issues, Volume 6(2), p. 13 – 29. URL for PDF: http://hal-ensmp.archives-ouvertes.fr/docs/00/44/65/31/PDF/Rerci.pdf

[2] David Kravets, Wired, ‘ISPs to Disrupt Internet Access of Copyright Scofflaws’, July 7, 211. URL: http://www.wired.com/threatlevel/2011/07/disrupting-internet-access/

Title 
The graduated response is a violation of the basic right to due process
Point 

Detection of copyright infringement isn’t usually done by a detective sitting behind a computer. It relies on software like automated crawlers and fingerprinting, often created by commercial vendors and hired by the copyright holders. This software automatically sends detected infringements to the ISP, without someone actually checking if this allegation is correct. This means many consumers can be unjustly accused of copyright infringement.

Moreover, most graduated response policies proposed require no judicial intervention at all for the sanction to be invoked. This means private organisations get to decide who has committed a crime and deserves the punishment. The ISPs and copyright holders therefore act as accuser, prosecution, judge and executioner. On top of this if a consumer would go to court, he would also face a reversal of the burden of proof: since he is suing against being fined, he has to prove that he is not guilty, a reversal of the presumption of innocence.[1]

[1] Peter K. Yu, ‘The Graduated Response’. 2010. Florida Law Review, Volume 62. Available for download (PDF) at: http://ssrn.com/abstract=1579782

Counterpoint 

Graduated response can be done prudently

Many companies have ‘Terms of Agreement’, violation of which automatically leads to cancellation of service. Suppose you don’t pay your library subscription for a year: no one would complain of ‘lack of due process’ if your subscription was subsequently cancelled. A Graduated response policy is no different.

Moreover, the graduated response policy can be made to fit the rules of due process. For example, in the French HADOPI-law, after a third violation, the case gets referred to an ‘expedited judicial procedure’, typically used for minor traffic violations, after which that judge will decide.

Compare this to the unfairness before a graduated response policy is implemented: copyright holders might detect and sue one single consumer and extract a very heavy penalty, whilst the rest of the downloading consumers got away. Both the uncertainty and the height of the fine made the situation before a graduated response-policy an ‘enforcement lottery’.[1]

[1] Nathan Lovejoy, JOLT Digest ‘Procedural Concerns with the HADOPI Graduated Response Model’, January 13, 2011. URL: http://jolt.law.harvard.edu/digest/copyright/procedural-concerns-with-the-hadopi-graduated-response-model

Bibliography 

Ars Technica, Study: pirates biggest music buyers. Labels: yeah, right’. April 2009. URL: http://arstechnica.com/media/news/2009/04/study-pirates-buy-tons-more-music-than-average-folks.ars Last consulted: December 21, 2011.

Ars Technica, ‘Google: Internet disconnection a "disproportionate" penalty’. March 2009. URL: http://arstechnica.com/tech-policy/news/2009/03/google-cutting-internet-access-for-p2p-abuse-disproportionate.ars Last consulted: December 21, 2011

Olivier Bomsel and Heritania Ranaivoson, ‘Decreasing copyright enforcement costs: the scope of a graduated response’. 2009. Review of Economic Research on Copyright Issues, Volume 6(2), p. 13 – 29. URL for PDF: http://hal-ensmp.archives-ouvertes.fr/docs/00/44/65/31/PDF/Rerci.pdf Last consulted: December 21, 2011

Angela Daly, ‘The Legality of Deep Packet Inspection’, 2010. Presented at the First Interdisciplinary Workshop on Communications Policy and Regulation 'Communications and Competition Law and Policy – Challenges of the New Decade', University of Glasgow 17 June 2010. URL for download: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1628024 Last consulted: December 21, 2011

Natali Helberger & P. Bernt Hugenholtz, ‘No place like home for making a copy: private copying in European copyight law and consumer law’. 2007. Berkely Technology Law Journal, volume 22, p. 1061 -1098. URL for PDF: http://www.ivir.nl/publications/helberger/BTLJ_2007_3.pdf Last consulted: 21 december 2011

Michael Geist, ‘Estimating the cost of a three strikes and you’re out system’, January 26, 2010. URL: http://www.michaelgeist.ca/content/view/4731/135  Last consulted: December 21, 2011

David Kravets, Wired, ‘ISPs to Disrupt Internet Access of Copyright Scofflaws’, July 7, 211. URL: http://www.wired.com/threatlevel/2011/07/disrupting-internet-access/?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A%20wired27b%20%28Blog%20-%2027B%20Stroke%206%20%28Threat%20Level%29%29 Last consulted: December 21, 2011

IFPI, Digital Music Report 2009. 2009. URL for PDF: http://www.ifpi.org/content/library/dmr2009-real.pdf Last consulted: December 21, 2011

Nathan Lovejoy, JOLT Digest ‘Procedural Concerns with the HADOPI Graduated Response Model’, January 13, 2011. URL: http://jolt.law.harvard.edu/digest/copyright/procedural-concerns-with-the-hadopi-graduated-response-model  Last consulted: December 21, 2011

Piotr Stryszowski , Danny Scorpecci, Piracy of Digital Content. 2009, OECD Publishing. URL for purchase: http://www.oecdbookshop.org/oecd/display.asp?CID=&LANG=EN&SF1=DI&ST1=5KSKH79BQZ9T Last consulted: December 21, 2011

Barry Sookman, ‘Graduated response and copyright: an idea that is right for the times’, January 10th, 2010. URL: http://www.barrysookman.com/2010/01/20/graduated-response-and-copyright-an-idea-that-is-right-for-the-times/ Last consulted: December 21, 2011

Torrentfreak, ‘Piracy Rises In France Despite Three Strikes Law’, March 9, 2010. URL: http://torrentfreak.com/piracy-rises-in-france-despite-three-strikes-law-100609/ Last consulted: December 21, 2011

Peter K. Yu, ‘The Graduated Response’. 2010. Florida Law Review, Volume 62. Available for download (PDF) at: http://ssrn.com/abstract=1579782 Last consulted: December 21, 2011

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