Sunday, May 10, 2009

Three Strikes OUT?

Internet piracy is rampant. The content owners have tried to stop it but it is mostly a game of whack-a-mole when you go after the pirate p2p sites and leeching sites. So the content owners have been working on a strategy for a few years  to institute what is called "graduated response".  Essentially, internet vendors spider the internet looking for pirate content and identify IP addresses with pirate content. These IP addresses are passed on to ISPs with the request that the ISPs notify the owner of the computer using the IP address that pirate content is being uploaded/downloaded from the address and inform that owner that if the uploads/downloads of pirate content continue internet service will be discontinued for some period of time. Some ISPs voluntarily are sending out these notices and most receiving the notices stop uploading/downloading pirate content after one notice. This type of graduated response program is also called a "3 strikes" program,  for obvious reasons.

France is considering making 3 Strikes a law. One of the legislative bodies passed it but a month ago the other legislative body failed to pass it. It will come up for a vote again soon. Unfortunately, it is getting nothing but bad press and to some extent some of the bad press is the fault of a content owner. TF1 fired one of its employees who protested the law to his MP.  TF1 learned of the protest from the French government who claims it was only providing the protest email to TF1 for information and not to get the employee fired.  This latest debacle in addition to the failure to have enough support at the last vote on 3 Strikes makes you wonder if France is really trying to sabotage the process rather than support it.  The European Parliament has voted against 3 Strikes unless overseen by a judicial process which renders it essentially ineffective since the idea is to have the ISPs act rather than have litigation over every act of piracy.  

People who oppose 3 Strikes do so on a few grounds.  One I have heard is that everyone has the right to internet access as if it were a fundamental human right.  3 Strikes does give some due process but does not have judicial oversight for the reasons stated above.  Hard to see why internet access should be a right rather than a privilege.

Another objection has to do with the methodology for determining the content that is uploaded or downloaded from an IP address.  Some fear that use of the technologies to identify content for "censorship" will allow governments to send notices based political speech. Some governments like China already block dissenting political speech.  Others like Germany are considering laws to require ISPs to filter child pornography.  ISPs in China cooperate with the government but in other countries fight any restrictions on what may be on their bandwidths.  After all, the more content you have, the more money you make. It is all just good business.  Unfortunately, when the content is piracy, the ISPs' good business is on the backs of the content owners who in this day and age do not see anywhere near the returns on their investments that they did in the golden age of the studio system and record companies.  Costs of production and distribution now are astronomical for the content industries, particularly the studios.  ISPs charge for their services but are happy to push "free speech" i.e free content to make sure their pipes are full.  If the internet were really free, maybe everyone should be entitled to free access.  Then the telecommunications industry may understand what the content industry faces with its losses due to people getting the fruits of its investments for free.

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