ISPs and "Three Strikes"

Over the past few years in an effort to stymie innovation to their industry, the content providers – the RIAA, MPAA, et al – have gone on a relentless pursuit to sue anyone and everyone involved in any sort of file sharing which resulted in unauthorized distribution of their copyrighted works (I will refrain from using the term “piracy” because this issue is not related to boarding another’s ship and/or pillaging and raping, as well I am not referring to selling bootlegs). For years they have sued anyone supposedly caught sharing their works on peer-to-peer (P2P) networks: grandmothers, children, deceased, people who don’t even own computers; and the list goes on and on. The thought behind this was to scare people away from the ease of grabbing music online; when the content providers refuse to change their distribution models to reflect that of their customer’s desires and instead aim to keep it just the same as it’s always been for the last half a century, the best they can do is to try and put the cat back in the bag.

But after years and years of suing their customers with little change, the content providers have started targeting ISPs to do their dirty work. They have come up with the “three strikes and you’re out” idea, and many ISPs are beginning to implement it. The EU has let up on France so they can now implement it, Italy thinks downloading should be a crime, Ireland – and now, South Korea.

The idea being the “three strikes and you’re out” idea is simple at first. On the first occasion that a copyright holder notifies the ISP that one of their customers is infringing on their copyright, the ISP notifies the customer – first warning. The customer then can receive up to two more warnings in the same fashion after which their connection will be terminated.

The idea sounds simple and sounds like it may work, except for one glaring problem: the copyright holder is not required to provide any proof! This smacks in the face of due process.

You get accused of unlawful behavior three times by an outside business and you lose access to something you’re paying for. No trial. No requirement of proof of an actual crime. Nothing more than “you’re guilty” is needed to terminate your access to the Internet.

No provisions are made to provide the customer any outlets to appeal the accusations. In the United States, the power company cannot cut off a customer’s electricity without some kind of legal recourse. The city cannot turn off a customer’s water or sewer. While it has yet to be classified as such, the Internet is fast becoming a utility. Internet access is no longer something that’s nice to have. For many people it is the ability to communicate to family, an essential part of employment, the way to conduct finances, and a host of other facets of people’s lives. Cutting off Internet access with nothing more than an accusation is not akin to cutting off someone’s health club membership or tanning salon access; the Internet is becoming an essential part of daily life. In most areas of the U.S. there are monopolies, and, if you’re really lucky, there will be more than one option for an ISP. With these monopolies around as the only options for getting online, what recourse do customers have to get back online when they get blacklisted?

I find it interesting that the U.S. is willing to spend millions and millions of dollars of public money to make sure that every home is online and yet enact laws which make it easy to kick people offline. You can’t have it both ways.

As a side note, during my time in Japan in 2006 my ISP, USEN, had already instituted this policy of “graduated response.” They allowed a third-party company operating in China to listen in on traffic and flag customers at which point USEN’s customer service department would then call and warn me. They are always ahead in the technology game.