Several people have pointed out to me that according to the SMH, like the UK government,

[t]he Rudd Government is considering a three-strikes policy against computer users who download songs illegally.

According to the SMH,

The Government will examine new legislative proposals being unveiled in Britain this week to target people who download films and music illegally. Internet service providers (ISPs) there might be legally required to take action against users who access pirated material.

Communications Minister Stephen Conroy said the Government was aware of the views put by the music industry for a code of conduct for ISPs to address file-sharing by subscribers.

“We will also examine any UK legislation on this issue [including any three-strikes policy] with particular interest,” he said.

Now, admittedly, I’m an academic in Queensland – I’ve got no idea what is going on in Canberra. But it is worth noting that (a) it would be really weird if the Australian government did not ‘observe with interest’ what happens in the UK, (b) it would be equally weird if the Australian government did not ‘consider’ proposals put by industry, and (c) none of this is new – industry (in the form of MIPI most significantly) have been making this argument for some time (here, here.)

So I’m not presently feeling the need to spend a lot of time on this. Let’s just summarise the main problems with this approach, shall we?

  1. Such proposals are inconsistent with the presumption of innocence. Inevitably, notice and terminate policies involve the music industry IP enforcement groups identifying an IP address (not a person, of course, an address of a computer) alleged to be infringing, that information is sent to the ISP; there are warnings, possible disconnection. At no point in this process, it would seem, does any independent tribunal or court determine whether the wrong has happened, and whether the right person has been identified (perhaps this might happen if there were an appeal process. How often would that apply? Would there be a presumption of innocence or guilt on the part of the person terminated? How independent would the decision-maker be?). (By the way, some other people have put considerable thought into how an informal system for managing mass copyright infringement might work: eg the Lemley and Reese piece, available here: One of the distinguishing features of that proposal was that there would be a third party neutral arbiter – not the copyright owner, not the ISP.)
  2. The systems used to identify infringers are by no means foolproof: something which has been clearly shown in the context of the RIAA lawsuits against individuals in the US. There, a small percentage of cases have been shown to be commenced against the wrong person. It’s a small number, but when you’re talking about cutting off someone’s internet service, isn’t that significant?
  3. It is not at all obvious why copyright owners should get special treatment in the form of the government stepping in and requiring third parties to enforce their rights for them. We do not have ‘three strikes’ disconnection policies for defamers, for spammers, for online stalkers and harassers, or phishers. What is the argument that copyright owners deserve special protection here? (and before you start telling me that ‘there’s more copyright infringement online’, please go and have a look at analyses of how much spam there is flowing over the intertubes. And have a little think about how much spam costs business.)
  4. How is any ‘notice and terminate’ proposal consistent with the acknowledged importance of broadband to economic and educational opportunities? Now, MIPI in the past have asserted that nothing in their proposal would prevent a person thus disconnected from getting a broadband connection from another supplier. Two problems with that. It assumes, first, that there is more than one supplier (is that true everywhere in Australia? Are you sure?). Second, how long is it before we see questions on ISP connection application forms asking whether you have previously been disconnected (and pricing structures that state a higher price in such circumstances?).
  5. Where more than one person uses an internet connection, notice and terminate is collective punishment: for one person’s wrongs, you punish a whole group/family/household.
  6. There are always going to be serious problems with the ‘notice’ side of things. No matter what steps you take to ‘ensure’ that sufficient ‘notice’ is given before termination, you cannot ensure that the relevant people in a household receive the notice – unless, perhaps, you insist on individually addressed letters being sent to every member of the household. This is particularly true where adults share houses. Having lived in many sharehouses, there is absolutely NO guarantee that other members of the house would receive notices prior to disconnection (letters are addressed to the account holder, other members of the house may never see the notices). You may also have issues of identification (identifying who, of the several in the household, has engaged in copyright infringement). These problems are multiplied in the case where the person engaging in copyright infringement happens not to live at the house, or move on. The problems would be further multiplied if ‘notices’ were sent by email. Emails disappear, are caught in filters, are not read, are deleted… Sorry, but that’s just the nature of the beast.
  7. Such proposals tend to assume an account-holder who, if other people are using the account, is able to impose discipline on those other users. Fine when the accountholder is a parent and the infringer a child. Not fine when the accountholder is an adult sharing a house wiht other adults. Or where the account-holder is a parent but also an infringer. Cutting off the kids’ access for homework…. ick.

So these are all problems. Some just represent irreducible costs; others could be reduced but with increased cost of the system. Good policy-making requires, at the very least, balancing costs against benefits. Do we think the benefits would be significant? I’m not convinced, because I think you could pretty much guarantee people would find other ways to continue infringing to a similar extent. Think anonymising software. Think hard-drive to hard-drive copying. And you’re back to square one, but with a significant increase in costs to ISPs (costs which would be passed on to consumers no doubt).

Now, MIPI have also previously touted this idea as being a better alternative than MIPI starting to sue individual consumers. I admit I’m torn on that. I don’t really want to see individuals sued, largely because it would inevitably involve selective enforcement: the sins of the mass visited on the small number of individuals sued in order to ‘make a point’. Informal systems have some advantages – depending on how they are framed.

However, at least if individuals were sued, rather than disconnected, (a) the cost of enforcement would lie on the copyright owners, and (b) consumers, and media, and everyone else, would be clear on what was happening, who it was initiated by, and, in fact, that it was happening. The ‘advantage’ of the lawsuit option is that it is public – and that everyone takes responsibility for their action. That is not necessarily a bad thing, on all sides. And in the case of Australia, unlike the US, damages are linked to the harm suffered by the copyright owner, so the threat of exorbitant fines of the Jammie Thomas variety would not be there. In other words, if MIPI decides to sue individuals, it will, in so doing, at least have to articulate its reasons, justify them to the Australian population at large, and to politicians. Politicians, too, would need to observe the effects of copyright laws and to justify them to the Australian people. I think that’s only appropriate, rather than going through the back door of managing it all second hand through the ISPs.