Graduated response
Encyclopedia
Graduated response, also known as three strikes, is an approach, adopted in several countries, aimed at addressing online copyright infringement
.
In response to copyright infringement using peer-to-peer
software, the creative industries
, reliant on copyright, advocate what is known as a "graduated response" which sees consumers disconnected after a number of notification letters warning that they are infringing copyright. The content industry has thought to gain the co-operation of internet service providers (ISPs), asking them to provide subscriber information for IP addresses identified by the content industry as engaged in copyright infringement.
". Because "three strikes" was understood to refer to physical assault, the approach was later termed "graduated response". Media attention has focused on attempts to implement such an approach in France (see the HADOPI law
) and the UK (see the Digital Economy Act 2010
), though the approach, or variations of it, has been implemented in a number of other countries, or attempts are made to do so.
In a number of European countries early attempts to implement a graduated response have led to court cases to establish under which circumstances an ISP may provide subscriber data to the content industry. In order to pursue those that download copyrighted material the individual committing the infringing must be identified. Internet users are often only identifiable by their Internet Protocol address (IP address
), which distinguishes the virtual location of a particular computer
. Many ISPs allocate a pool of IP addresses as needed, rather than assigning each computer a never-changing static IP address. Using ISP subscriber information the content industry has thought to remedy copyright infringement, assuming that the ISPs are legally responsible for end user activity, and that the end user is responsible for all illegal activity connected to his or hers IP address.
In 2005 a Dutch court ordered ISPs in the Netherlands to not divulge subscriber information because of the way the Dutch content industry group had collected the IP address
es (Foundation v. UPC Netherlands
). According to Dutch law ISPs can only be ordered to provide personal subscriber data if it is plausible that an unlawful act occurred, and if it is shown beyond a reasonable doubt
that the subscriber information will identify the person who committed the infringing act. In Germany court specifically considered the right to privacy and in March 2008 the German Federal Constitutional Court ruled that ISPs could only give out IP address subscription information in case of a "serious criminal investigation". The court furthermore ruled that copyright infringement did not qualify as a serious enough offense. Subsequently, in April 2008, the Bundestag
(German parliament) approved a new law requiring ISPs to divulge the identity of suspected infringers who infringe on a commercial scale. In Spain the Spanish Supreme Court recently ruled that personal data associated with an IP address could only be disclosed in the course of a criminal investigation or for public safety reasons (Productores de Música de España v. Telefónica de España SAU). In Italy courts established that criminally liability does not extend to file sharing copyrighted material, as long as it is not done for commercial gain. Ruling on a case involving a copyright holder employed a third party to collect IP addresses of suspected copyright infringers, the Italian Data Protection Authority ruled in February 2008 that the systematic monitoring peer-to-peer
activities for the purpose of detecting copyright infringers and suing them.
has summarised the approach as follows:
and other national bodies. Consumers' association Which?
favours the initiative, calling measures "proportionate".
and the right to privacy.
and Britain
.
President Nicolas Sarkozy
backed the proposal to implement a graduated response law and the French government passed a three strikes policy in the HADOPI law
. The law was initially rejected by the Constitutional Council of France
for contravening the Constitution of France
and Declaration of the Rights of Man and of the Citizen
.
was one of the first countries to enact a three strikes policy, but its implementation was delayed for a month pending development of a code of practice and may be deferred indefinitely. It was revealed that the US was instrumental in the implementation of this policy.
copyright infringement
. In the report entitled Digital Britain the government includes plans for a mandatory "code" for ISPs to follow, as well as the creation of a government "Rights Agency" to help stakeholders deal with the issue of “civil copyright”. Under the proposed scheme the UK government would legislate a "Code on unlawful file-sharing" that’s ISPs would have to follow and would establish "appeals and standards of evidence". Since late 2009 Great Britain
's Lord Mandelson is pushing ahead with plans to impose a graduated response through the Digital Economy Bill, despite the Gower's report
and Lord Carter's Digital Britain
report advising against it. The Act has now been passed into law.
adopted a graduated response system in July 2009. Article 133bis of the Korean Copyright Act allows the Korean Copyright Commission to recommend ISPs to suspend the accounts of repeat file sharing offenders (as adjudged by the Commission) for six months. However, users' email accounts are not to be suspended.
to implement three strikes for a number of ISPs have resulted in court proceedings, the latest of which concerned data protection issues. See Internet censorship in Ireland
.
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
.
In response to copyright infringement using peer-to-peer
Peer-to-peer
Peer-to-peer computing or networking is a distributed application architecture that partitions tasks or workloads among peers. Peers are equally privileged, equipotent participants in the application...
software, the creative industries
Creative industries
The creative industries refers to a range of economic activities which are concerned with the generation or exploitation of knowledge and information...
, reliant on copyright, advocate what is known as a "graduated response" which sees consumers disconnected after a number of notification letters warning that they are infringing copyright. The content industry has thought to gain the co-operation of internet service providers (ISPs), asking them to provide subscriber information for IP addresses identified by the content industry as engaged in copyright infringement.
Early developments
The content industry's proposal for internet service providers to cut off Internet access to a subscriber who had received three warning letters of alleged copyright infringement was initially known as "three strikes", based on the baseball rule of "three strikes and you're outEnglish language idioms derived from baseball
American English has been enriched by expressions derived from the game of baseball. Sometimes referred to as "America's pastime," baseball has especially affected the language of other competitive activities such as politics and business....
". Because "three strikes" was understood to refer to physical assault, the approach was later termed "graduated response". Media attention has focused on attempts to implement such an approach in France (see the HADOPI law
HADOPI law
The French HADOPI law or Creation and Internet law was introduced during 2009 as a means to control and regulate internet access and encourage compliance with copyright laws...
) and the UK (see the Digital Economy Act 2010
Digital Economy Act 2010
The Digital Economy Act 2010 is an Act of the Parliament of the United Kingdom regulating digital media. Introduced by Peter Mandelson, Lord Mandelson, it received Royal Assent on 8 April 2010, and came into force on 8 June 2010 The Digital Economy Act 2010 (c. 24) is an Act of the Parliament of...
), though the approach, or variations of it, has been implemented in a number of other countries, or attempts are made to do so.
In a number of European countries early attempts to implement a graduated response have led to court cases to establish under which circumstances an ISP may provide subscriber data to the content industry. In order to pursue those that download copyrighted material the individual committing the infringing must be identified. Internet users are often only identifiable by their Internet Protocol address (IP address
IP address
An Internet Protocol address is a numerical label assigned to each device participating in a computer network that uses the Internet Protocol for communication. An IP address serves two principal functions: host or network interface identification and location addressing...
), which distinguishes the virtual location of a particular computer
Computer
A computer is a programmable machine designed to sequentially and automatically carry out a sequence of arithmetic or logical operations. The particular sequence of operations can be changed readily, allowing the computer to solve more than one kind of problem...
. Many ISPs allocate a pool of IP addresses as needed, rather than assigning each computer a never-changing static IP address. Using ISP subscriber information the content industry has thought to remedy copyright infringement, assuming that the ISPs are legally responsible for end user activity, and that the end user is responsible for all illegal activity connected to his or hers IP address.
In 2005 a Dutch court ordered ISPs in the Netherlands to not divulge subscriber information because of the way the Dutch content industry group had collected the IP address
IP address
An Internet Protocol address is a numerical label assigned to each device participating in a computer network that uses the Internet Protocol for communication. An IP address serves two principal functions: host or network interface identification and location addressing...
es (Foundation v. UPC Netherlands
UPC Netherlands
UPC Netherlands is the second largest cable operator in the Netherlands, providing cable television , broadband Internet, and telephone service to both residential and commercial customers.-History:...
). According to Dutch law ISPs can only be ordered to provide personal subscriber data if it is plausible that an unlawful act occurred, and if it is shown beyond a reasonable doubt
Reasonable doubt
Proof beyond a reasonable doubt is the standard of evidence required to validate a criminal conviction in most adversarial legal systems . Generally the prosecution bears the burden of proof and is required to prove their version of events to this standard...
that the subscriber information will identify the person who committed the infringing act. In Germany court specifically considered the right to privacy and in March 2008 the German Federal Constitutional Court ruled that ISPs could only give out IP address subscription information in case of a "serious criminal investigation". The court furthermore ruled that copyright infringement did not qualify as a serious enough offense. Subsequently, in April 2008, the Bundestag
Bundestag
The Bundestag is a federal legislative body in Germany. In practice Germany is governed by a bicameral legislature, of which the Bundestag serves as the lower house and the Bundesrat the upper house. The Bundestag is established by the German Basic Law of 1949, as the successor to the earlier...
(German parliament) approved a new law requiring ISPs to divulge the identity of suspected infringers who infringe on a commercial scale. In Spain the Spanish Supreme Court recently ruled that personal data associated with an IP address could only be disclosed in the course of a criminal investigation or for public safety reasons (Productores de Música de España v. Telefónica de España SAU). In Italy courts established that criminally liability does not extend to file sharing copyrighted material, as long as it is not done for commercial gain. Ruling on a case involving a copyright holder employed a third party to collect IP addresses of suspected copyright infringers, the Italian Data Protection Authority ruled in February 2008 that the systematic monitoring peer-to-peer
Peer-to-peer
Peer-to-peer computing or networking is a distributed application architecture that partitions tasks or workloads among peers. Peers are equally privileged, equipotent participants in the application...
activities for the purpose of detecting copyright infringers and suing them.
Approach
The graduated response may vary form country to country, though the European Data Protection SupervisorEuropean Data Protection Supervisor
The European Data Protection Supervisor is an independent supervisory authority whose primary objective is to ensure that European institutions and bodies respect the right to privacy and data protection when they process personal data and develop new policies.Peter Hustinx and Giovanni Buttarelli...
has summarised the approach as follows:
"...copyright holders using automated technical means, possibly provided by third parties, would identify alleged copyright infringement by engaging in monitoring of Internet users’ activities, for example, via the surveillance of forums, blogs or by posing as file sharers in peer-to-peer networks to identify file sharers who allegedly exchange copyright material. After identifying Internet users alleged to be engaged in copyright violation by collecting their Internet Protocol addresses (IP addresses), copyright holders would send the IP addresses of those users to the relevant Internet service provider(s) who would warn the subscriber to whom the IP address belongs about his potential engagement in copyright infringement. Being warned by the ISP a certain number of times would automatically result in the ISP's termination or suspension of the subscriber’s Internet connection.
Supporters
It has been promoted by the Recording Industry Association of AmericaRecording Industry Association of America
The Recording Industry Association of America is a trade organization that represents the recording industry distributors in the United States...
and other national bodies. Consumers' association Which?
Which?
Which? is a product-testing and consumer campaigning charity with a magazine, website and various other services run by Which? Ltd ....
favours the initiative, calling measures "proportionate".
Opposition
Many consumer rights groups have argued that the graduated response denies consumers the right to a fair trialRight to a fair trial
The right to fair trial is an essential right in all countries respecting the rule of law. A trial in these countries that is deemed unfair will typically be restarted, or its verdict voided....
and the right to privacy.
Graduated response laws
In October 2008 a number of other European countries were considering the implementation of a graduated response to copyright infringement via the internet, including FranceFrance
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
and Britain
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
.
France
In FranceFrance
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
President Nicolas Sarkozy
Nicolas Sarkozy
Nicolas Sarkozy is the 23rd and current President of the French Republic and ex officio Co-Prince of Andorra. He assumed the office on 16 May 2007 after defeating the Socialist Party candidate Ségolène Royal 10 days earlier....
backed the proposal to implement a graduated response law and the French government passed a three strikes policy in the HADOPI law
HADOPI law
The French HADOPI law or Creation and Internet law was introduced during 2009 as a means to control and regulate internet access and encourage compliance with copyright laws...
. The law was initially rejected by the Constitutional Council of France
Constitutional Council of France
The Constitutional Council is the highest constitutional authority in France. It was established by the Constitution of the Fifth Republic on 4 October 1958, and its duty is to ensure that the principles and rules of the constitution are upheld.Its main activity is to rule on whether proposed...
for contravening the Constitution of France
Constitution of France
The current Constitution of France was adopted on 4 October 1958. It is typically called the Constitution of the Fifth Republic, and replaced that of the Fourth Republic dating from 1946. Charles de Gaulle was the main driving force in introducing the new constitution and inaugurating the Fifth...
and Declaration of the Rights of Man and of the Citizen
Declaration of the Rights of Man and of the Citizen
The Declaration of the Rights of Man and of the Citizen is a fundamental document of the French Revolution, defining the individual and collective rights of all the estates of the realm as universal. Influenced by the doctrine of "natural right", the rights of man are held to be universal: valid...
.
New Zealand
New ZealandNew Zealand
New Zealand is an island country in the south-western Pacific Ocean comprising two main landmasses and numerous smaller islands. The country is situated some east of Australia across the Tasman Sea, and roughly south of the Pacific island nations of New Caledonia, Fiji, and Tonga...
was one of the first countries to enact a three strikes policy, but its implementation was delayed for a month pending development of a code of practice and may be deferred indefinitely. It was revealed that the US was instrumental in the implementation of this policy.
United Kingdom
In January 2009 the British government announced its plans to legislate a graduated response system for peer-to-peerPeer-to-peer
Peer-to-peer computing or networking is a distributed application architecture that partitions tasks or workloads among peers. Peers are equally privileged, equipotent participants in the application...
copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
. In the report entitled Digital Britain the government includes plans for a mandatory "code" for ISPs to follow, as well as the creation of a government "Rights Agency" to help stakeholders deal with the issue of “civil copyright”. Under the proposed scheme the UK government would legislate a "Code on unlawful file-sharing" that’s ISPs would have to follow and would establish "appeals and standards of evidence". Since late 2009 Great Britain
Great Britain
Great Britain or Britain is an island situated to the northwest of Continental Europe. It is the ninth largest island in the world, and the largest European island, as well as the largest of the British Isles...
's Lord Mandelson is pushing ahead with plans to impose a graduated response through the Digital Economy Bill, despite the Gower's report
Gowers Review of Intellectual Property
The Gowers Review of Intellectual Property was an independent review of UK intellectual property focusing on UK copyright law that was published in December 2006. The then Chancellor of the Exchequer Gordon Brown commissioned Andrew Gowers to lead the review in December 2005. The Review was...
and Lord Carter's Digital Britain
Digital Britain
The Digital Britain report was a policy document published in 2009, which outlined the United Kingdom Government's strategic vision for ensuring that the country is at the leading edge of the global digital economy....
report advising against it. The Act has now been passed into law.
South Korea
South KoreaSouth Korea
The Republic of Korea , , is a sovereign state in East Asia, located on the southern portion of the Korean Peninsula. It is neighbored by the People's Republic of China to the west, Japan to the east, North Korea to the north, and the East China Sea and Republic of China to the south...
adopted a graduated response system in July 2009. Article 133bis of the Korean Copyright Act allows the Korean Copyright Commission to recommend ISPs to suspend the accounts of repeat file sharing offenders (as adjudged by the Commission) for six months. However, users' email accounts are not to be suspended.
Ireland
Attempts in IrelandIreland
Ireland is an island to the northwest of continental Europe. It is the third-largest island in Europe and the twentieth-largest island on Earth...
to implement three strikes for a number of ISPs have resulted in court proceedings, the latest of which concerned data protection issues. See Internet censorship in Ireland
Internet censorship in Ireland
Internet censorship in Ireland is currently a controversial issue, including a drive to censor the Internet in Ireland starting in 2008 with the introduction of a graduated response policy followed by an effort to block certain sites which started in February 2009...
.
Related organizations
- Directorate-General for Information Society and Media (European Commission)Directorate-General for Information Society and Media (European Commission)EU Directorate General Information Society and Media or "DG Infso" is a Directorate-General of the European Commission.The current European Commissioner for Digital Agenda is Neelie Kroes and the Director-General is Robert Madelin....
- European Round Table of IndustrialistsEuropean Round Table of IndustrialistsThe European Round Table of Industrialists was born out of a growing preoccupation with thestate of the European economy in the early 1980s. Frequently diagnosed as “eurosclerosis”, the...
- World Summit on the Information SocietyWorld Summit on the Information SocietyThe World Summit on the Information Society was a pair of United Nations-sponsored conferences about information, communication and, in broad terms, the information society that took place in 2003 in Geneva and in 2005 in Tunis...
- World Intellectual Property OrganizationWorld Intellectual Property OrganizationThe World Intellectual Property Organization is one of the 17 specialized agencies of the United Nations. WIPO was created in 1967 "to encourage creative activity, to promote the protection of intellectual property throughout the world"....
- World Intellectual Wealth OrganisationWorld Intellectual Wealth OrganisationA World Intellectual Wealth Organization has been proposed as an alternative to the World Intellectual Property Organization. It would be dedicated to the research and promotion of novel and imaginative ways to encourage the production and dissemination of knowledge in ways that enrich...
Related topics
- Anti-Counterfeiting Trade AgreementAnti-Counterfeiting Trade AgreementThe Anti-Counterfeiting Trade Agreement is a proposed plurilateral agreement for the purpose of establishing international standards on intellectual property rights enforcement...
- CopyrightCopyrightCopyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
- Copyright infringementCopyright infringementCopyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
- CounterfeitCounterfeitTo counterfeit means to illegally imitate something. Counterfeit products are often produced with the intent to take advantage of the superior value of the imitated product...
- Digital rightsDigital rightsThe term digital rights describes the permissions of individuals legitimately to perform actions involving the use of a computer, any electronic device, or a communications network...
- Information freedom
- Secondary liabilitySecondary liabilitySecondary liability, or indirect infringement, arises when a party materially contributes to, facilitates, induces, or is otherwise responsible for directly infringing acts carried out by another party. The US has statutorily codified secondary liability rules for trademarks and patents; however,...