In this post I’m going to briefly note just how bad an idea it is, for citizens, that ISPs and content providers are working together to resolve ‘copyright infringement’ without having a substantial degree of government involvement.
Rules of the game
Perhaps you’re familiar with baseball (or California penal rules). In either case, you’ll have heard of the ‘three strikes and you’re out’ rule. In baseball, this would mean that a batter returns to the dugout, and another person attempts to swat a ball and race towards first base. In the penal system, it indicates that you’ve committed enough criminal offenses that you’re going to have the book thrown at you . . . the next person behind you in court can then try to argue why they’re innocent, and go free (first base?).
Viva la France!
France has recently set in place a three-strikes rule – if you are caught infringing on copyright three times, then you will have your Internet access terminated for a year. The question that arises is this: what happens if someone uses your computer without permission? How can you appeal any incorrect or unjust decision? What does this have the effect of doing to a member of a rural community, where the ‘net has become a core way of communicating with the world at large and their government representatives? What role do citizens play in how a core system of communications, that they have come to rely on, is being affected by corporate interests?
With governments around the world demanding that copyright groups and ISPs find a workable solution to infringement that doesn’t tie up court systems, the three-strikes model is gaining ground. This is significant, as it would shift the role of ISPs from passively watching content as it streams across and out of their network, to a more active analysis of what individuals are doing on their networks. This shift in activity corresponds with the increasingly common deployment of Deep Packet Inspection technologies throughout ISP networks, technologies that shift through each piece of data that a person transmits to, and receives from, the ‘net. With these technologies, along with digital ‘fingerprints’ to look for, ISPs will be able to either prevent their users from infringing on most copyright (should the system be designed with a user-designated ‘censoring’ mode), as well as more effectively identify when they might be in the midst of, or preparing to, infringe.
What happens when a six-year old child is ‘caught’ downloading something to the family computer a few times? Should the parents lose all access to the ‘net for a year, or should they return to disciplining the child? What happens when someone files a copyright infringement notice, but it turns out that a person’s computer had been taken over by spyware? What systems are in place to address these issues?
An ISP isn’t the police, nor is it a part of the judiciary. Given this, why shouldn’t the courts be the solution to copyright infringement? The response is often that it would clog up the courts, but this presumes that the laws that are being applied to individuals, but were prepared to account for businesses infringing, are the ‘right’ kinds of laws for individual citizens. Should a person really be charged the same amount for showing their friends a copy of a hallowed Simpsons clip as a corporation that is using it for corporate promotion? There seems to be an analytic difference between these two groups, and this is a difference that needs more attention before these kinds of ‘three-strike’ rules are set into place.