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Will Three Strikes Laws Take the Field in U.S. Copyright Ballgame?

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When the U.S. enacted the Digital Millennium Copyright Act in 1998, giving the force of law to the World Intellectual Property Organization (WIPO) Copyright Treaties, it created what appeared to many a strict regime for the enforcement of copyright on digital platforms. Though other countries also enacted laws ratifying the treaties, many failed to go as far as the DMCA in supporting technical protection measures against hacking and placing strict limits on the “safe harbors” for ISPs against liability for copyright infringement committed by users.

A decade later, the U.S. regime is looking downright permissive. Earlier this year, the French Parliament passed a controversial new law giving the government power to disconnect people from the Internet if they fail to heed repeated warnings to stop sharing copyrighted files, making France the first country to impose a formal  “three-strikes” regime. Last week, the British government introduced a bill to give itself similar powers. In Ireland, the largest ISP, Eircom, is under court order to disconnect repeat infringers, while in South Korea those caught uploading files (though not downloading) can also be cut off. Earlier this month, an effort within the European Parliament to prohibit France-style three-strikes laws throughout the EU, which once seemed certain, was defeated after months of debate.

Suddenly, it’s the U.S., with its carefully delineated DMCA safe harbors, that seems out of step. But it may not stay that way for long. Although no one is yet talking openly of a formal effort to create a three-strikes regime in the U.S., the events in Europe are adding impetus to the growing interest among regulators and even broadband service providers here in subjecting Internet users to much closer scrutiny. U.S. media companies won a significant victory at the Federal Communications Commission last month when the agency agreed to include language in its proposed net neutrality rules stipulating that nothing in the eventual regulation would prohibit the use of technical measures to block or monitor the transfer of copyrighted content. While ISPs in Europe have been strongly critical of three-strikes laws, in the U.S. ISPs have quietly begun to cooperate with media companies in “test” programs of notifying subscribers when they’re suspected of file-sharing. (At our recent Bunker Series event in San Francisco, participants in these initiatives said they’re highly effective, with as many as 90 percent responding to a first notice.)

Online civil liberties groups, meanwhile, have raised alarms over the Anti-Counterfeiting Trade Agreement (ACTA) currently being negotiated by the U.S. and a handful of other rich countries, fearing it could create new international obligations on the U.S. that could require it to enact a three-strikes regime. While those fears may be overstated, it’s no overstatement to suggest there is a growing global trend, at least within the developed world, toward closer monitoring and stricter enforcement of intellectual property rights on the Internet.

Exactly how that trend will play out in the U.S. is not yet clear. A France-style regime would raise real constitutional questions here and face fierce political opposition. But the next year is likely to see a series of pitched battles over the proper scope of IP rights on digital platforms and the obligations of service providers to enforce them.

What to look for:

  • ACTA negotiators hope to complete work on the treaty in the first half of 201o. While the agreement would not require formal Senate ratification, it’s certain to touch off renewed controversy over U.S. obligations once the final language is revealed;
  • The net neutrality proceeding will ultimately draw the U.S. into the worldwide debate over three-strikes and content filtering;
  • The Google Books case, which has already created friction between the U.S. and Europe over IPR protections, will fuel further friction in the U.S. between service providers and copyright owners.

Should be an interesting year.

Question of the week

Do you think a three-strikes law would have a meaningful impact on file sharing in the U.S.?