The French Revolution 2.0: Copyright and the Three Strikes Policy by Eldar Haber

Abstract: Internet file-sharing of copyrighted materials created a struggle between right holders, Internet Service Providers (ISPs), and file-sharers. After several different attempts to resolve the struggle, many countries began to debate the possibility of a Three Strikes Policy (3SP), which includes, inter alia, providing for the termination of subscriptions and accounts of repeat infringers in appropriate circumstances. This policy has thus far been implemented by way of legislation in Taiwan (2009), South Korea (2009), France (2010), the United Kingdom (2010) and New Zealand (2011), and by means of private ordering in Ireland (2010). It is still under consideration elsewhere. The 3SP is portrayed as a panacea for Internet-related infringements.This article examines the legal, social, and economic implications of implementing the 3SP as a solution to copyright infringements through file-sharing. I discuss the potential impact on the right to privacy, due process rights and free speech. I locate the 3SP within the emerging framework of Users’ Rights and criticize it. I argue that the 3SP is an inappropriate attempt to strengthen right holders’ power over users and might reshuffle and jeopardize the balance set in the copyright regime between the interests of authors and those of the public. I therefore propose an alternative version of the 3SP. Furthermore, I argue that the 3SP is yet another link in a chain of a criminal paradigm set in copyrights, meaning that some copyright law policies will probably continue to shape in accordance with criminal law, despite copyright’s civil law rationales. I claim that this paradigm shift in copyright law will continue through global legislation. Finally, I conclude that the 3SP is not the proper means for resolving illegal file-sharing issues. Rather, it is an inappropriate attempt to fight copyright infringements and should not be implemented anywhere, at least not yet.
Keywords: Copyright, Graduated Response, Three Strikes Policy, 3 Strikes, File-Sharing, Criminalization, Criminal Copyright, Copyright Enforcement

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