I thought the essay made good points. Two resonated with me in particular: (a) that we don't need to increase the protective architecture of copyright law, and (b) that denial of internet access has a significant effect on folks. It seems that many of the laws in question just involve the termination of service from one ISP to a particular alleged repeat copyright infringer; that strikes me as a matter of contract law, and so while I agree that terminating service should perhaps involve some sort of appeal option you might consider saying more about that point.

The reason I agree that this basically contractual issue should perhaps have an appeal mechanism is because (a) with the uncertainty that surrounds fair use questions, it's sometimes hard to see when someone really is infringing, (b) rightsholders will often aggressively assert a user violated the law and unsophisticated (or sophisticated but lazy/risk-averse ISPs) could easily just take their word for it and boot you, and (c) in many locations, there are not realistic options if your ISP terminates your service, so in some sense the termination has a broader reach than the ISP-to-customer scenario suggests. I do think that the strongest points here are that there should be some remedies for people who are deemed to have "3 strikes" and are then cut off by their ISP.

I wonder if you think a breach of contract claim in that case is helpful? Or perhaps a tortious interference with contract claim if a rightsholder is falsely (or even maliciously) alleging copyright violation by the user. I suspect the ISP-customer service agreements are not pro-customer in such a situation, so probably not. And making the user sue to get back internet access is putting the burden in the wrong place for me. Do you think the market will keep the balance even - if ISPs terminate too often they'd lose users and so they will exercise restraint? I'm not sure the market has that power here, especially if the ISP is looking at e.g. a take-down notice from a rightsholder threatening to sue.

Lastly, you might consider mentioning the DMCA, section 512(i)(1)(A), since it relates to US law on repeat infringers and ISPs. There are a number of links online discussing its use, including this one from Chilling Effects. The DMCA, as noted in that article, presents an interesting quirk to the question you raise: assuming for a moment that we do have a right to internet access, do we have a right to access particular sites that are public (e.g. YouTube)? The DMCA repeat infringer provision pops up in the context of more than just AOL-type ISPs, since "service provider" gets a broad definition in parts of the DMCA.

Thanks for your thoughtful essay. I hope my comments are helpful and that you're having a good break.

Nice essay. Is it ready for comments from others or are you still working on it?

-- BrianS - 13 Mar 2010

Three-Strikes Laws in the Copyright Context

Reaction to Three-Strikes Laws

Internet as a Right?

The French Constitutional Council has hit upon a key issue with this statement. Much of the protest surrounding these various laws has dealt with concerns over the lack of court involvement, and it is clear that these laws have struck a nerve. This concern with court involvement speaks to a deeper issue about the relationship between expression and the internet. Along with France, Estonia, Finland and Greece have all made internet access a human right.

Conclusion

92A. Internet service provider must have policy for terminating accounts of repeat infringers

Three-Strikes Laws and The Human Condition: Is Access to the Internet a Right?

As the internet becomes an ever-larger part of daily life, the worldwide copyright industry has started a push for laws that require ISPs to deny internet access to copyright violators. Known as “three-strikes laws,” proposals for such measures have cropped up around the world and so have vehement objections to their implementation. This outcry, which has not arisen for other instances of internet access prohibitions, indicates the extent to which people believe that a court is necessary before internet access can be taken away. In other words, the fervent opposition to three-strikes laws demonstrates that internet access has come to be viewed as a human right, at least by a significant segment of the population.

Several countries have been using denial of internet access as a punishment for crimes already. In the United States, there’s the case of the former University of Texas student who was convicted for hacking into the school’s network. The punishment has also been explored in the US for individuals convicted of downloading child pornography. And in Singapore, an internet ban has been used as a punishment for a teenager convicted of Wi-Fi freeloading. However ridiculous or extreme these cases may be, they have one important factor in a common: a court ordered the imposition of an internet ban for a particular individual after it found him or her guilty of a crime.

The “three-strikes laws” that have been proposed by the copyright industry are very different. One of the first such laws to be introduced was in New Zealand, and included the following provision:

_92A. Internet service provider must have policy for terminating accounts of repeat infringers (1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer. (2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner._

Notably, this provision places the entire onus of discovering and punishing copyright infringers on the ISP and provides no guidance about standards of proof or about establishing an appeals process. The UK proposal, similar to the New Zealand law, would require ISPs to enforce the law, with the added twist that if an ISP neglec tots do so, it might be prosecuted itself. The French version of a “three-strikes law” is more detailed, and considered to be the toughest yet introduced in the world. It calls for a new administrative agency, which would receive complaints from rights holders and would pass them on to ISPs, and which would oversee an appeals process.

Opposition to these measures around the world has been loud and long. New Zealand faced an “internet blackout” during which protestors replaced their internet pages with a protest page denouncing the law. The New Zealand government decided to delay implementation of the law due to the pressure it faced and is currently working on amending the law.

The UK government has abandoned a formal three-strikes law approach and is instead exploring a compromise in which ISPs are still in charge of sending warning letters to copyright violators, but would not involve disconnection as a punishment. In France, opposition came not only from the internet community but also from the European Parliament and the French Constitutional Council. The Council stated in its ruling that “the internet is a fundamental human right that cannot be taken away by anything other than a court of law, only when guilt has been established there.”

The French Constitutional Counsel has hit upon a key issue with this statement. Much of the protest surrounding these various laws has dealt with concerns over the lack of court involvement, and it is clear that these laws have struck a nerve. This concern with court involvement speaks to a deeper issue about the relationship between expression and the internet. Along with France, Estonia, Finland and Greece have all made internet access a human right.

In this day and age a person prohibited from accessing the internet may not be able to hold down a well-paying job, or contribute meaningfully to public discourse. The internet has become so essential that it is almost impossible to imagine going an entire day without using it, as South Park has so sarcastically pointed out. Given that the internet has become so integral to our daily lives, it is logical to consider it a right. Not all human rights are bare necessities. For example, education has long been considered a human right, but is not strictly a necessity of life. Instead, education is considered a right because it provides for “the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms.” In much the same way, internet access is necessary for human dignity. This is not to say that access to the internet may never be denied to an individual. Indeed, rights such as liberty are suspended every day, but the suspension of human rights must be ordered by a court according to the provisions of the justice system.

If access to the internet is a right, how should such an obligation be interpreted? It might be to provide equal internet access to all, as some governments have undertaken. This may be a goal towards which more countries aim in the future. But, at the very least, such an obligation should prevent the government from detracting from the level of equality in internet access achieved at any given moment. Prohibiting certain people from accessing the internet contributes to greater inequality, though not all prohibitions of access should be treated equally. Denying internet access as a punishment for copyright violations, as distinct from as a punishment for crimes, seems especially problematic. If such measures were to go into effect, the copyright owners, who possess disproportionate speech capabilities already, would be able to dictate and push for further unequal access to speech without court intervention. More power does not need to be concentrated in the hands of the copyright industry. The recent proliferation of three-strikes laws can only undermine the freedom of expression. The vocal opposition to these laws, whether it stems from fear for the state of freedom of expression or from some more basic sense of need, indicates that internet access has achieved a certain level of credibility as a human right in and of itself.

-- StephanieTrain - 03 Mar 2010

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