The Case for Copyright Reform

provision. The review sets out pivotal changes which threaten that protecting role of mere conduit. Notably, the Commission wants to introduce a pan-European notice and action scheme. This is based on other ‘notice and takedown’ schemes (such as the one in the American DMCA law) but with an important difference. The proposed EU scheme uses the word ‘action’ instead of ‘takedown’, where action could mean asking hosts to take down content, but also would seem to mean blocking of content by ISPs on request:

The notice and action procedures are those followed by the intermediary internet providers for the purpose of combating illegal content upon receipt of notification. The intermediary may, for example, take down illegal content, block it, or request that it be voluntarily taken down by the persons who posted it online.

In addition, the Commission wants to bring payment providers into ‘co-operation’ schemes between ISPs and rights-holders. This would mean asking the likes of PayPal, Mastercard, and Visa to block payments to websites or content providers, at the request of rights-holders:

Cooperation between stakeholders, in particular internet providers, rights-holders and payment services, in the European Union and the US, may also help to combat illegal content.

Both the notice and action, and the payment ‘co-operation’ schemes pre-empt another European Commission review – the IPR Enforcement directive (IPRED). The IPRED review will consider EU-wide policy for enforcing copyright on the Internet. It is not clear whether the payments ‘co-operation’ would be positioned within the e-commerce directive or IPRED, or both.

Both directives are under the remit of the French Commissioner Michel Barnier, who is understood to be close to President Sarkozy.

This is where the Internet blocking issue stands in January, 2012.

When Commissioner Cecilia Malmstrom introduced her proposal to block child abuse pictures in 2010, she insisted in public that this was about child abuse images only, and not the beginning of a slippery slope towards general Internet censorship. In a keynote speech at a conference on May 6, 2010, she said:

[T]he Commission’s proposal is about child abuse images, no more no less. The Commission has absolutely no plans to propose blocking of other types of content – and I would personally very strongly oppose any such idea.

Unless Ms. Malmstrom was actively lying at the time, it appears that she had not been briefed about quite the full net blocking agenda by her colleagues at the Commission, when she was given the task of introducing Internet censorship in EU legislation. To block sites for alleged copyright violations has been the goal of the copyright lobby all the time.

Shutting People Off The Internet

“Three strikes and you’re out” is an expression that originates in baseball, and which American politicians have turned into a legal principle. In the context of Internet policy, “three-strikes” means that anyone accused of illegal file sharing three times by the rights holders is shut off from the Internet. “Graduated response” is another piece of jargon that is sometimes used and means the same thing.

In France there is the Hadopi law, where Internet service providers are required to shut down the connection for Internet users after they have received two warnings that a copyright holder suspects them of file sharing. In the UK, the Digital Economy Act says essentially the same. Italy, not wanting to be outdone in this race to the bottom, has proposed a “one-strike” law, where a single accusation of copyright infringement would be enough to have anyone banned from the Internet.

In essence, these laws leave it to the major film and record companies to act as judge and jury and point out individuals that they suspect of of file sharing, and then force the Internet service providers to execute the punishment by unplugging the connection.

Leaving aside for the moment the question of whether it is a good idea to let private companies take over the job of the legal system, how reasonable is shutting people off the Internet in the first place?

Let’s consider what being disconnected actually means:

• A ban on studying. Most forms of education, in particular higher education, take Internet connectivity for granted. If you are a student, you will need Internet access for everything from practical things like finding out the schedule or turning in reports, to finding facts about the subject matter you are studying. Studies show that a majority of all students are file sharing. Should we cut off a majority of all students from their courses, or should we settle for making an example out of maybe 5-10% of them? What do the film and record companies think is a reasonable sacrifice to make?

• A ban on running a business. If you own a company, you are entirely dependent on the Internet today, no matter what line of business you’re in. Contacting customers, updating your homepage, ordering supplies, answering e-mail – maybe you’re selling goods via the Internet. Is it reasonable that the family business will go bankrupt because the fourteen-year old daughter in the family downloaded some pop music? Cutting off the Internet connection does not only punish the guilty party, but everyone in the household.

• A ban on talking to friends. Especially younger people keep in touch via the net. It’s not strange or unusual to have best friends that you have never met, that you only socialize with using the Internet. This was not the case when most politicians were young, but the world has changed. To suddenly be thrown into solitary confinement is a very intrusive punishment, normally reserved for the most hardened and dangerous of criminals in prison.

• Loss of citizen’s rights. If you wish to partake in public debate, you need access to the Internet today. Not only to keep up with the current issues, but also to be able to make your voice heard, be it via your own blog, commenting on others’, Tweeting, organizing or joining Facebook groups and events.

“If you children are naughty, we’ll take your toy away from you,” is in effect what the politicians making these laws are saying to their citizens. But citizens are not children, and have no reason to listen to that kind of arrogant attitude from their elected representatives.

And the Internet is not a toy. It is an important part of society, and a piece of infrastructure that everyone needs access to in order to function in today’s world. Politicians who fail to acknowledge this should not be surprised if the younger generation of voters finds them irrelevant.

Proportionality

In 2007, single US mother Jammie Thomas became a global file sharing martyr after she had been sued by a record company for 3.6 million dollars in damages. Her alleged crime was to have shared 24 songs on Kazaa (which used to be one of the most popular early file sharing services in the beginning of the ‘00s). The court convicted her, but reduced the damages to $222,000. In Ms. Thomas’ case, that still amounted to more than five times her yearly income.