Three Strikes, but Safe
April 17th, 2009 Posted in Copyright(cross-posted on PrawfsBlawg) Just before Easter, French lawmakers declined to approve an Internet piracy legislation that would have been arguably the most far-reaching law of its kind. Championed by leaders of the film and music industries (similar steps are being explored in the U.S.) as well as President Sarkozy, the law sought to diminish the illegal downloading of movies and songs via stringent, expansive measures that would limit and eventually terminate the Internet access privileges of repeat offenders for up to one year. Although the law failed to pass, 21-15, the fight is not over; the law will be up before the Parliament again before the end of the month. Its provisions are worth examining, not only because the “experiment” they present is perhaps “worth” the backlash, failure, or other risks; the law, to borrow a phrase from Justice Blackmun, launches a missile to kill a mouse–and I’m not sure the mouse would be, at the end, anything more than mostly dead (which, as we know, is slightly alive).
Although the three strikes component of the proposed law (first instance of illegal downloading gets the offender an emailed warning; second instance, a registered letter; the third time, the offender is denied Internet access for a period of three to 12 months) is its heart, what I find particularly interesting are the concurrent provisions which seem to strive to ensure that the offending parties are prohibited from circumventing the ban on their access. In addition to a ‘blacklist’ that would prevent disconnected users from shopping for alternate ISPs, the proposed law includes a measure which would limit public wi-fi access to a prescribed ‘white list’ of permissible sites, and requires wireless subscribers to secure their connections–no more feeding off of one’s neighbor’s signal.
Even if reasonable minds might differ as to the wisdom, propriety or, in the U.S., constitutionality (in terms of, for example, overbreadth) of these provisions–particularly the ‘white list’ measure–it seems to me that the parameters set up with the law are misguided. For one thing, capturing the actual downloader is elusive. For another, persons who want to download materials from others and/or who believe they have the right to disseminate material they’ve acquired are going to find a way to do so. When OiNK was shut down, new sites cropped up to serve its users. Of course, this could mean that the proposed law’s provisions are not stringent enough to create the hoped-for disincentive (the law it was meant to replace provided for prison time; with the new decision concerning Pirate Bay’s operators, that specter might have a stronger effect, as I’ll discuss in a subsequent post). But rather than play this game, lawmakers and the industry they are supporting with these laws should consider the collateral damage of legislation like this. If the law passes in round two, what message does that send? What inadvertent silencing is taking place? And for the industry, how long will they cling to a failing business model, hoping legislation will prop them up yet again?
