In that case, why do you think a court is such an amazing safeguard? The RIAA did a great job of proving that private actions for copyright infringement can work grave injustices. Furthermore, suing the most harmless end user infringers can be a profit maximizing strategy. See, Matthew Sag, Piracy: Twelve Year-Olds, Grandmothers, And Other Good Targets For the Recording Industry’s File Sharing Litigation, 4 NW. J. TECH. & INTELL. PROP. 133, 147, 154-55 (2006).

-- StephenClarke - 02 Apr 2010

Nikoloas, thank you for point out that interesting change in wording!

Stephen, I'm actually more concerned with the distinction between the two situations (ie when a private party strips the right to internet access and opposed to when a court does so). I think that there are situations in which internet access might arguably be stripped but that these circumstances should always be determined by a court.

-- StephanieTrain - 01 Apr 2010

Willful copyright infringement is a rarely prosecuted crime, but it is still a crime. We have become accustomed to ever-greater levels of civil enforcement against infringers, but criminal enforcement against infringers seems to remain infrequent. Viewed through the lens of U.S. copyright law, your paper really asks the question of whether private parties or prosecutors should be able to strip internet access away from people for copyright infringement. I doubt that is really the point you want to drive at, but the references in your introduction to stripping Internet access as a punishment for crimes raise the question. I think the deeper question you are driving at is whether copyright infringement is the kind of conduct that can justifiably be punished by stripping a person of Internet access. I think it can fairly be argued that Internet access is so important to the exercise of well-established rights that stripping access is a punishment that does not fit the “crime” of infringement.

-- StephenClarke - 30 Mar 2010

Hey Stephanie,

I enjoyed your essay. Indeed, I think that the argument that internet access should be perceived as a fundamental right is gaining momentum, as a reaction to the "three-strike" laws that are being drafted in some countries. You might also want to note that this view was also initially shared by the European Parliament in last year's debate on the reform of the European framework for electronic communications; it proposed an amendment to the legislation with the following wording: "No restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened where the ruling may be subsequent." However, this amendment met strong opposition and it was finally adopted in a much more mild wording, in Directive 2009/136/EC ("This Directive neither mandates nor prohibits conditions, imposed by providers of publicly available electronic communications and services, limiting end-users’ access to, and/or use of, services and applications, where allowed under national law and in conformity with Community law, but lays down an obligation to provide information regarding such conditions. National measures regarding end-users’ access to, or use of, services and applications through elec­tronic communications networks shall respect the fundamental rights and freedoms of natural persons, including in relation to privacy and due process, as defined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.")

-- NikolaosVolanis - 24 Mar 2010

Thanks Brian! I fixed the typos that you pointed out and also cut down the word length. I just removed the block quote in the end in favor of quoting just one provision, because I'm not sure it added a whole lot to the essay.

The point you make about contractual remedies is interesting. Personally, I would hope that the solution is not to get to that point, which is why I argue that a court must issue a decision before internet access can be denied. Such intervention would I hope prevent abuse, though the claims that could be made after wrongful denial of access are interesting to consider.

I didn't address that provision of the DMCA because I was trying to limit my discussion to countries that have considered these proposals (and, as you pointed out, as I am already out of space!) but I do think that the article you cited is fascinating. Thanks for pointing it out!

-- StephanieTrain - 22 Mar 2010