Panel discussion on graduated response raises key issues

George Nathanael is a JD Candidate at Osgoode Hall Law School.

On January 27 in Washington, D.C., the Advisory Committee to the Congressional Internet Caucus held their annual State of the Net Conference. One panel discussion, entitled “Copyright Strikes: When Has a Pirate Graduated to Internet Exile?”, featured commentary on the concept of graduated response mechanisms (aka ‘three strikes’ systems), which can be used to curb the problem of illegal file sharing online.

Such mechanisms generally involve an ISP giving notice to one of its users about complaints that the user has been involved in copyright infringement. If the user’s infringing actions do not cease, then the ISP may impose some sort of penalty, such as cutting off internet access for a period of time. Four speakers, John Morris, John Robertson, Shira Perlmutter, and Matthew Schruers, were moderated by Tim Lordan, the executive director of the Internet Education Foundation.

John Morris, from the Center for Democracy and Technology, argued that in countries where a three strikes system is in place, there can often be a lack of due process. For each individual case there ought to be a review of whether infringement actually occurred, and perhaps even consideration of fair use issues. Additionally, he argued that it is extremely unfair to cut off internet access for an entire family due to the alleged actions of a 15-year-old file sharer. He proposed that the lawsuit route may be better because access is not cut off for everyone, and the consequences are targeted to the specific infringer. He brought up cases where courts determined that even convicted child pornographers do not deserve to have their internet access terminated. While he agreed that it is vital that society goes back to respecting copyright laws, he believed that lawsuits served as a good tool for educating young people that certain actions are illegal. Towards the end of the panel discussion he indicated that he was of the opinion that if such graduated response systems that currently exist in other countries were brought to the U.S., they would likely not pass constitutional challenge.

John Robertson is a Member of the U.K. Parliament and is involved in internet policy-making decisions. He stated that a variety of industries in the U.K. have been having problems with being rightfully paid for work that is being stolen by online pirates. This, along with lost revenue for the government in the form of taxes, is why he believes graduated response legislation is necessary. He stated that when a musician has his work copied and does not received anything for it, it is similar to having someone steal your car, drive it around, and then return it to you. But ultimately, graduated response legislation will be for the purposes of catching major online infringers who upload massive amounts of content, and his government is not in the game of criminalizing children who download a few songs. He wants to educate people and actually prevent them from getting involved in the legal system (such as through lawsuits), which is why notices are an excellent method of reducing copyright infringement.

Shira Perlmutter is the Vice President and Associate General Counsel, Intellectual Property Policy, at AOL Time Warner. She agreed with Mr. Robertson on a number of points, including the belief that a system with warnings will give users the opportunity to be educated and informed about the law, and will help them to avoid going to court. She said that there is evidence that an approach with notices is highly effective if people understand that there is a final deterrence. Suspension of internet access is the most straightforward deterrent, and it is not actually exile since users are still able to go to other ISPs or even internet cafés. With respect to due process, she believed that this can in fact be achieved with graduated response legislation, and even the recording industry is on board with the idea of having evidence of infringement meet set standards in order to qualify as enough to warrant notices being sent to users. She disagreed with Mr. Morris about lawsuits being a better choice than a three strikes system, because notices allow users to change their behaviour so that they are not dragged into the legal system and forced to spend thousands of dollars on legal services.

Matthew Schruers is Senior Counsel for Litigation and Legislative Affairs for the Computer and Communications Industry Association. He spoke a little about the differences between the current system in the U.S. and the laws that are in place or are developing in some European countries. He believes that the U.S. discriminates more between repeat copyright infringers who are guilty and those who have just been alleged to be breaking the law. This type of distinguishing is of the utmost importance if one values due process and wants any punishment to be proportional to the crime. The system in the U.S. is also more voluntary, and depends on contracts instead of legislation. He also had some words of praise for the Canadian system, where there exists a “gentleman’s agreement” about notifications without codification of this system. He seemed to believe that when ISPs give notice to users that they are carrying out infringing activity the users tend to stop, but this does not necessarily justify termination of internet access. Though lawsuits are generally viewed negatively as an alternative, this may be because of the disproportionately large statutory damages that come with a finding of infringement. In general, he did not believe that any top-down government mandates on ISPs to cut off service to users will prove successful.

The discourse was quite insightful and much less adversarial than we may be used to seeing in copyright policy talks. A video of the entire panel discussion can be found here.