By Drew Wilson
The three strikes law concept has been falling on hard times in these last few months. The only country we haven’t heard about much that has implemented a three strikes law is South Korea. Now we have. Apparently, the laws have resulted in numerous takedown requests, multiple suspensions and little in the way of results when it comes to stopping piracy. Human rights organizations are calling on the government to re-examine the laws due to, in part, possible violations of human rights.
Hailed as the be-all, end-all solution to stopping Internet piracy, rightsholders from major multinational corporations have been trying to push the three strikes law in multiple countries over the last few years. A few countries caved from the the lobbying pressure and implemented such laws to keep the foreign corporations happy. It seemed that implementation meant that the laws were successful for these rightsholders as they pressured other countries to follow suit because of this new “international standard” for stopping piracy. Yet, what were the results of these laws? Did it slow down piracy in the end? Are music sales exploding on the charts? Unfortunately, it seems that everywhere such a law or policy was implemented, failure ensued.
In France, the three strikes law is known as HADOPI. Enforced by a government entity by the same name, strike notices have been sent to numerous individuals accused of copyright infringement. France also had the dubious distinction of being one of the first countries to implement such laws. As a result, rightsholders went to various other countries afterwards to try and lobby for an implementation of similar laws. Apparently, getting a country to implement a three strikes law meant that the law was successful regardless of the results of implementation. Unfortunately for three strike law advocates, the results of the implementation of the law was grim. Innocent people not only received strike notices, but some even received their third strike. Questions also surfaced on how HADOPI could legally be enforced in France. ISPs weren’t exactly thrilled about the law due to the increased cost of doing business (IP lookups on the ISP side aren’t exactly free after all). There were several other missteps along the way including the ironic case of the HADOPI logo infringing on copyright. Still, the law forged ahead in spite of it all. Now that we are well into the laws implementation, serious questions have been raised about how much money it has cost to, in the words of one lawmaker, send out e-mail. One of the goals of the law was to stem the flow of piracy and get people to go back to the record stores to buy music once again. The actual results appear to be that pirates are using more sophisticated means to get what they want that are less detectable. At the same time, music sales continued to plummet as if the law had no measurable effect on the music sales trends at all.
New Zealand implemented implemented their own variation of the three strikes law. According to diplomatic cables obtained by Wikileaks, the law was pushed, bought and paid for by the United States government. The controversial law fist officially became known as section 92a for the citizens of New Zealand. Despite widespread outrage and blackout protests across the Internet, the law was ultimately passed and implemented. The end results follow a familiar trend. Potentially innocent people wound up getting fined under the law and one revelation pointed out that record labels (namely RIANZ) spent $250,000 just to retrieve $616.57 in fines at one point. Suffice to say, a pattern is emerging here.
The United States has its own variation of the three strikes law (in this case, a six strike policy). It’s not really a law per-se, but rather, a policy agreement between ISPs and rightsholders. Both industries formed an organization called the Copyright Alert System (CAS) to enforce the policy. Earlier this year, it was revealed that strike notices were to be sent through web browser sessions. In other words, users would receive pop-up messages when they open their web browser should they receive a copyright notice. That revelation has been widely criticized on numerous fronts including the potential for it to be a security disaster for users. One thing to note is the fact that it’s still early days for the rollout of this particular policy, but if the experience of the other countries are anything to go by, similar problems are likely to pop up sooner or later like innocent people being swept up in this.
South Korea is the fourth country that has implemented such a law. Until recently, we really didn’t know how things were going over there on that front. The Electronic Frontier Foundation (EFF) recently published an article on the matter and the results of the law aren’t very good. From the EFF:
But back in Korea, the entertainment industry’s experiment in Internet enforcement has been a failure. Instead of tackling a few “heavy uploaders” involved in large scale infringement, the law has spiraled out of control. It has now distributed nearly half a million takedown notices, and led to the closing down of 408 Korean Internet users’ web accounts, most of which were online storage services. An investigation led by the Korean politician Choi Jae-Cheon showed that half of those suspended were involved in infringement of material that would cost less than 90 U.S. cents. And while the bill’s backers claimed it would reduce piracy, detected infringement has only increased as more and more users are subject to suspensions, deletion, and blocked content.
This Wednesday, Korea’s National Human Rights Commission recommended that the three strikes law be re-examined, given its unclear benefits, and its potential violation of the human rights to receive and impart information and to participate in the cultural life of the community.
Mr. Choi and twelve other members of the Korean National Assembly have taken the first step in that reform. Last week, they announced plans to introduce a law that would repeal three strikes, as well as ensure that ISPs have no need to pro-actively spy on their own users for signs of copyright infringement. Newly formed Korean digital rights group, OpenNet, along with is working hard to drum up political support for this initiative.
The rightsholders have reacted with alarm to the prospect of copyright reform in Korea, and have already begun heavy lobbying for the abandonment of Choi’s initiative. They badly need Korea to maintain this law, even if it damages Korea’s own economy and their citizen’s civil liberties. It’s not surprising that they have already been making frequent calls and meetings with Mr. Choi and other Korean politicians. If Korea rejects three strikes as a disaster, why should anyone else maintain its injustices?
So, ultimately, we have four countries that have implemented variations of the three strikes law: New Zealand, France, the United States, and South Korea. All four have apparently been a policy failure in various, yet seemingly similar ways.
The question at this stage might be, now that we know that such a law has had no success anywhere, is the law dead? The answer, unfortunately, no. Despite the multiple failings of the law, rightsholders have been pressuring various other countries to implement similar laws. One example of this is Australia.
Another way in which this law is making an appearance is in various trade agreements. Provisions that pressure other countries to implement a three strikes law have been spotted in Trans-Pacific Partnership (TPP) and the Comprehensive and Economic Trade (CETA) agreements. While these agreements are often sold to the public as merely agreements to open up trade relationships and bring down trade barriers, the details reveal that these agreements contain laws such as the three strikes laws.
So, where do things go from here? It’s unfortunate, but things are likely to only get worse before they get better. In countries where the laws have been implemented, the problems will likely continue to fester and get worse. Rightsholders, in the mean time, will likely continue to pressure other countries to implement, what is now obvious, a fatally flawed law. In the midst of all of this, there will be continued tension between these foreign entities and the populations of each country thanks, in part, due to legitimate concerns surrounding such a concept to enforce copyright.
Drew Wilson on Twitter: @icecube85
