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Although lawsuits by the Recording Industry Association of America (RIAA) against Internet users suspected of illegal file-sharing have gained widespread publicity in recent years, people seeking to share and download free music online may soon face a new type of obstacle.
The Obama administration recently expressed its intention to continue the Bush-era policy of supporting fines of up to $150,000 per violation of the Copyright Act, despite the argument that these large fines are excessive. Lately, however, the RIAA has begun to turn its enforcement focus away from such litigation and toward private action through Internet service providers (ISPs).
Instead of private litigation, a new “three strikes” rule would require ISPs to discontinue Internet access for users whom the recording industry alleges are infringing on its copyrights. Under the rule, the record companies would inform ISPs of the suspected infringers’ IP addresses. The ISPs would warn these users after the first and second violations, disconnecting them from the Internet only if after notice and an opportunity to stop any illegal activity there is a third violation. Other proponents have suggested that variations of the rule could impose graduated penalties, such as slower Internet service, for such users.
Importantly, the three strikes rule would also operate outside the jurisdiction of U.S. courts, establishing a worldwide anti-piracy initiative that does not require the involvement of any particular government. Recording industry representatives have already begun working with foreign ISPs and governments to encourage service providers worldwide to implement a three strikes rule. One Irish ISP has agreed to adopt the policy, and France recently passed a law that could soon require French ISPs to enforce the rule.
Critics find numerous flaws with the record industry’s proposed rule. First and foremost, they point out that enforcement would be based only on accusations, rather than proof of infringement. As of now, the end users would have no effective means of contesting the allegations. Critics also argue that total disconnection from the Internet is a disproportionate response to isolated instances of file-sharing, and that the rule could cause entire companies to lose their Internet connections if a few employees are suspected of copyright infringement.
The principal enforcers of the would-be rule also cite costly obstacles. ISPs would lack protection from lawsuits brought by both record industry representatives and end users who are dissatisfied with the providers’ implementation of the rule. Furthermore, French ISPs have pointed out that enforcing the three strikes rule could cost them over $40 million each year–costs that may eventually shift to consumers since the law contains no provision for reimbursement by the government or the recording industry.
In response to these arguments, the government of New Zealand has indefinitely suspended plans to implement a law that would require ISPs to enforce a three strikes rule. The policy has also generated controversy in Britain, and German lawmakers have rejected the idea on the basis of privacy concerns and resistance from ISPs.
In light of the serious questions surrounding the rule’s fairness, feasibility, and cost, such hesitance is warranted. While a private system of enforcement that would transcend jurisdictional boundaries is an intriguing proposition, methods of enforcing the rule and principles underlying its application demand further consideration before it can become a fair and workable alternative to litigation.
– Erica Youngstrom
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