Graduated Response Systems

James Gannon is an Osgoode Hall alumnus and is currently an articling student at McCarthy Tétrault.

Much attention has recently been paid to proposed legislation that would require Internet Service Providers (ISPs) to step up their efforts to prevent subscribers from downloading copyright-protected content through the Internet connections they provide. These initiatives are often described as “three-strikes” laws, although the term is misleading since the nature of sanctions imposed on repeat infringers varies to a great extent between the different schemes proposed. A better term to describe these initiatives is a “graduated response” system. Essentially, the ISP issues a series of escalating warnings and sanctions to subscribers who persist in pirating content over the Internet, culminating in the termination of the subscriber’s account with the ISP after a number of warnings have been ignored.

What these proposals represent is a fundamental shift in the content industry’s approach to tackling the serious issue of mass online piracy. Back in December 2008, the Recording Industry Association of America (RIAA) formally announced that it would end individual-level lawsuits and concentrate instead on working with leading American ISPs to implement graduated response policies. In his 2009 Digital Music Report, International Federation of the Phonographic Industry (IFPI) President John Kennedy stated that the future for commercial digital content depends specifically on “engaging ISPs in protecting intellectual property rights”.[1]

The industries most affected by Internet piracy have begun to recognize that online infringement is best dealt with by collaborating and partnering with online intermediaries. These entities include not only ISPs and web hosting companies, but also websites such as Google and user-generated content sites that are abused by a small number of their user-base to make copyright-protected works available online. Websites such as YouTube have generally been open to working with content creators to prevent the use of their services to pirate protected works, including taking measures to terminate repeat violators’ accounts. The content industry is optimistic that this model of cooperation can extend to other online entities such as ISPs in a similar manner.

Admittedly, graduated response initiatives have had mixed success thus far. For example, last month, the government of New Zealand postponed the implementation of its graduated response bill. Although there was vocal opposition to the measures, serious debate over the proposed copyright amendments was mired due in part to misunderstandings pertaining to key provisions of the new law (for instance, opponents took advantage of the confusion surrounding the term “three-strikes” to international observers unfamiliar with the baseball analogy). Elsewhere, similar proposals have experienced a much more positive response. Lawmakers in South Korea recently passed a bill that would call for ISPs to implement sanctions against subscribers found to be repeatedly infringing copyright works.

A variety of cooperation models between rights-holders and intermediaries have been proposed at many levels, in both the public and private sectors. Some models, such as the one recently approved by the Korean legislature, have placed the responsibility of supervising subscriber activity directly on the ISPs. Others, such as the EU IPRED directive that was recently implemented in Sweden, simply requires ISPs to pass on information of infringing activity to the appropriate rights-holder organization. Whether or not any particular model of graduated response receives widespread international adoption, it is becoming increasingly clear that cooperation with online intermediaries is emerging as the predominant strategy in the fight against pervasive online piracy.

[1] IFPI, Digital Music Report 2009, available at