Three strikes rules for internet piracy

2009-10-16

in Economics, Geek stuff, Internet matters, Law, Politics, Rants

Charline Dequincey with her violin

The British ISP TalkTalk has been working to show why banning people from the internet, based on unproven allegations of piracy, is a bad idea. Specifically, they have highlighted how many people still use WEP to protect their wireless networks from use by strangers, despite the fact that WEP encryption is easily compromised. That means it is easy for someone to use software tools to access a nearby network and then use it for illegal purposes. My own experience with wireless networks has demonstrated that people really will use them for criminal purposes if they can gain access.

Beyond that, the idea of cutting people off on the basis of three accusations alone runs fundamentally contrary to the presumption of innocence in our system of justice. It would inevitably be abused by copyright holders, and it would inevitably lead to innocent people being cut off from the internet, an increasingly vital part of life for almost everyone. Indeed, Finland recently declared broadband access a right.

To me, the fact that laws like this may well emerge in France, the UK, and elsewhere seems like another example of just how badly broken our intellectual property (IP) systems are, and how badly skewed they are towards protecting the rights of IP owners rather than the public at large. We would be a lot better off if patents were granted more selectively, if licensing of them was mandatory, if copyright was less well defended and expired sooner, and if fair use rights were more effectively legally enshrined. Here’s hoping ‘pirate parties’ continue to proliferate, pushing back the IP laws that have become so unfairly weighted towards those who own the content.

After all, it needs to be remembered that there is nothing libertarian or natural about IP protection. Rather, content owners are having their property claims enforced by the mechanisms of the state. The justification for this is supposed to be that doing so serves the public interest; if that is no longer the case, the laws ought to be watered down or scrapped.

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{ 15 comments… read them below or add one }

R.K. October 16, 2009 at 1:12 pm

After all, it needs to be remembered that there is nothing libertarian or natural about IP protection.

Libertarians generally believe that protecting justly aquired property is a legitimate or even a necessary role for the state. In particular, they think this applies to things that you create yourself, whether it is a log cabin or a painting.

State enforced IP law might not be ‘natural’ (what about the state is?), but it is arguably part of the libertarian tradition.

Tris October 16, 2009 at 5:06 pm

“Libertarians generally believe that protecting justly aquired property is a legitimate or even a necessary role for the state.”

The slip, of course, is to equivocate IP with P. While you could argue that P is natural (and on Hegelian days, I would too), IP is most certainly created at a specific (relatively late) point in history, with particular goals in mind, by people who could debate the relative merits of calling IP property or not.

. October 16, 2009 at 5:16 pm

Telcos and Hollywood ask Canadian govt for right to secretly install spyware, listen in on your network connection — ACT NOW!

C-27 is the Canadian anti-spam bill that comes out of committee on Monday. The opposition Liberals have proposed amendments which appear to have been drafted by copyright and telecom lobbyists. They would allow for surreptitious installation of computer programs and – even more outrageously – would allow copyright owners to secretly access information on users’ computers.

The bill contains an anti-spyware provision, yet the Liberal motion would allow for the collection of personal information on a computer without authorization if the collection is related to a “investigating a breach of an agreement or a contravention of the laws of Canada.” Note that that is private sector surveillance, not the police.

On top of these provisions, the Liberals have also tabled motions to extend the exemptions for telecom providers including allow telecom providers to engage in a host of activities – right down to scanning for and removing computer programs – without permission.

. October 16, 2009 at 5:20 pm

All publicly funded content should be in the public domain

The real question here is, since CBC content is funded by the public, shouldn’t the public own it? Or at least have access to it? Actually, the CBC archives are just the tip of the iceberg: the overwhelming majority of stuff made for Canadians with Canadians’ money is inaccessible to Canadians.

In Canada, movies are supported by Telefilm, TV by the Canadian Television Fund, books and art by The Canada Council for the Arts, and so on. But most of this stuff isn’t distributed very well or for very long, and you can only get your hands on a fraction of it.

So I want to put forth one more contrarian position: I think that any publicly funded content should (within, say, 5 years of its creation) be released to the public domain.

Milan October 16, 2009 at 5:25 pm

It does seem plausible that laws on IP should be different from those on real property, given how fundamentally different the two things are in nature. Copying a house is expensive or impossible. Copying a computer program is trivial.

How should the law be set up to both:

  1. Encourage people to produce great stuff, whether it is books or music or photography or drugs or whatever and
  2. Ensure that the maximum level of benefit occurs, when these things are used?

To me, striking that balance requires that we assert more strongly that the ‘rights’ people have to intellectual property are contingent on the benefit they provide to the public at large, not the individual producer. That does leave a role for incentives, but could block abuses like patent trolling and copyright violation campaigns that themselves violate privacy and key freedoms.

Milan October 16, 2009 at 5:30 pm

As for libertarianism, it is odd how it has problems with both scarcity and situations where unlimited copying is easy.

When something cannot really be duplicated indefinitely, such as arable land or the ability of the atmosphere to absorb pollution, it becomes impossible to satisfy the Lockean Proviso of leaving as much and as good for others.

When something can be copied infinitely, libertarianism fails to take into account how the artificial restriction of that copying may be harmful. Extreme libertarians might say that someone who invents a drug that cures AIDS but decides not to let anyone manufacture it is perfectly within their rights. Most people, however, would recognize that such a view of intellectual property is abhorrent in its consequences.

. October 17, 2009 at 3:28 pm

“He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his candle at mine, receives light without darkening me.”

Thomas Jefferson, 1813

Tris October 18, 2009 at 4:51 am

“Extreme libertarians might say that someone who invents a drug that cures AIDS but decides not to let anyone manufacture it is perfectly within their rights. Most people, however, would recognize that such a view of intellectual property is abhorrent in its consequences.”

who gets to decide what libertarian means? Who draws the distinction between negative and positive rights, between permissible and impermissable harms? Who decides which e xternalities will be counted, and which ignored in the name of individual freedom? These terms are used and repeated, as of they meant something clear and uncontentious.

Milan October 18, 2009 at 7:33 pm

As far as Canadian copyright reform goes, it is a good idea to call or email your MP and let them know what you think.

. October 22, 2009 at 10:02 am

Singer In Grocery Store Ordered To Pay Royalties

“An assistant at a grocery store in Clackmannanshire, Scotland, was ordered by the Performing Right Society (PRS) to obtain a performer’s license and to pay royalties because she was informally singing popular songs while stocking groceries. The PRS later backed down and apologized. This after the same store had turned off the radio after a warning from the PRS. We have entered an era where music is no longer an art for all to enjoy, but rather a form of private property that must be regulated and taxed like alcohol. “Music to the ears” has become ‘dollars in the bank’.”

. October 22, 2009 at 4:13 pm

EU Paves the Way For Three-Strikes Cut-Off Policy

“The European Parliament has surrendered to pressure from Member States (especially France) by abandoning amendment 138, a provision adopted on two occasions by an 88% majority of the plenary assembly, and which aimed to protect citizens’ right to Internet access. The move paves the way for an EU wide policy supporting arbitrary restrictions of Internet access. Under the original text any restriction of an individual could only be taken following a prior judicial ruling. The new update has completely removed this, meaning that governments now have legal grounds to force Internet providers (ISPs) into disconnecting their customers from the Internet (i.e. such as when ‘suspected’ of illegal p2p file sharing).”

. October 23, 2009 at 10:48 am

European Internet sinking fast under 3-strikes proposals

By Cory Doctorow on politics

Things look bad for the European Internet: “3 strikes” (the entertainment industry’s proposal for a law that requires ISPs to disconnect whole households if one member is accused — without evidence or trial — of three copyright infringements) is gaining currency. Efforts to make 3-strikes illegal are being thwarted by the European bureaucracy in the EC.

The Pirate Party, which holds a seat in the European Parliament, proposed legislation that said, essentially, that no one could be disconnected from the Internet without a fair trial. When the proposal when to the European Commission (a group of powerful, unelected bureaucrats who have been heavily lobbied by the entertainment industry), they rewrote it so that disconnection can take place without trial or other due process.

On the national level, France’s Constitutional Court have approved the latest version of the French 3-strikes rule, HADOPI, which has created a kind of grudging, joke oversight by the courts (before your family’s Internet connection is taken away, a judge gives the order 1-2 minutes’ worth of review, and you aren’t entitled to counsel and the rules of evidence don’t apply — the NYT called it similar to “traffic court”). Under this rule, there is now a national list of French people who are not allowed to be connected to the Internet; providing them with connectivity is a crime.

The only bright light is that this will play very badly in the national elections coming up in many European jurisdictions; the Swedes, in particular, are likely to kick the hell out of the MPs who voted for criminal sanctions for downloading and replace them with Pirate Party candidates, Greens, and members of other parties with a liberal stance on copyright.

. October 28, 2009 at 11:30 am

UK Law Enforcement Is Against “3-Strikes”

Now that the UK is discussing plans for some form of 3-strikes regime to discourage file-sharing, TechDirt reports that the fans of due process have picked up unlikely allies: the law enforcement and spying establishments fear that a 3-strikes policy would result in far more encryption on the Net, greatly complicating their jobs.

. October 28, 2009 at 2:35 pm

“Three Strikes” To Go Ahead In Britain

David Gerard writes “Lord Peter Mandelson has carefully ignored the Gowers Report and the Carter Report, instead taking the advice of his good friend David Geffen and announcing that ‘three strikes and you’re out’ will become law in Britain. The Open Rights Group has, of course, hit the roof. Oh, and never mind MI5 and the police pointing out that widespread encryption will become normal, hampering their efforts to keep up with little things like impending terrorist atrocities. Still, worth it to stop a few Lily Allen tracks being shared, right?”

. October 30, 2009 at 9:30 am

“Even more radical is the Mandelson proposal to disconnect entire families from the internet if a single member — or a neighbour who uses their internet connection — is accused, without proof, of violating copyright. Leave aside the fundamental injustice of collective punishment, a practice so abhorrent that it is outlawed in the Geneva Convention; think instead of the utter disproportionality of this.

The internet is an integral part of our children’s education; it’s critical to our employment; it’s how we stay in touch with distant relatives. It’s how we engage with government. It’s the single wire that delivers freedom of speech, freedom of the press and freedom of assembly. It isn’t just a conduit for getting a few naughty free movies, it is the circulatory system of the information age.”

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