The Three Strikes And You Are Out Challenge

The UK Digital Economy Act 2010 (DEA), which comprises graduated response measures intended to prevent virtual intellectual property (IP) contravention has generated heated debate. While some research has started to investigate the provisions for dealing with online copyright infringement, little attention has been paid to the fact that technology is fast exceeding the confines of this legislation. Drawing on, inter alia, the provisions of the DEA, a number of online copyright infringement cases and some European Court of Human Rights (ECtHR) jurisprudence, this paper evaluates the suitability of the graduated response approach to copyright enforcement where internet subscribers alleged to be unlawfully file-sharing will be disconnected from the internet following increasingly strong warnings. The paper presents the findings of a case law research study of recent graduated response decisions, makes use of information obtained from publicly available sources and discusses a number of possible implications. In particular, it considers whether tracking software technology employed to detect alleged copyright infringers constitutes monitoring of personal internet usage under article 8 of the European Convention on Human Rights (ECHR) and whether detecting an IP address in this manner would be able to establish if any contravention of copyright has occurred. The paper also assesses the deterrent potential of the DEA process and whether in view of the double edge-sword of peer-to-peer technology its online copyright infringement provisions may be deemed proportionate. It suggests that given that as online copyright infringement takes place via non-P2P methods P2P is similarly employed for non-infringing purposes, in order to strike a fairer balance between the interests of copyright holders and users a global licensing scheme might be a better alternative instead of resorting to tactics, such as, terminating subscribers internet connections. 1. Background and Introduction Modification is a characteristic of Internet Services Providers (ISPs) behaviour with regard to unlawful Peerto-Peer (P2P) distribution of files on their networks. The modifications might eventually restrict the unlawful duplication of music, movies, video games, et cetera; this is rampant on the internet (Taylor R, 2008, p.1). As Sony Corp. of America v Universal City Studios Inc 464 US 417 (1984) [2] reflected, duplicating material is nothing new, analogue duplication however has limitations because of quality issues something that does not exist in digital duplication which is extremely precise and can be of sufficient quality that replication can occur almost indefinitely. Nevertheless, as the Department for Business Enterprise and Regulatory Reform (BERR) the Department for Culture, Media and Sport (DCMS) and Digital Britain Interim Report (2009, p.41) notes, digital duplications can frequently be exact and definitely of sufficient quality for continual employment. Manipulation of legal peer-to-peer systems can likewise permit any number of people to gain access to content. This has generated an opposition to paying for material, especially among adolescents, and a number of legislators say that access to material will have to be limited because there is no way of controlling payment. Indeed, countries, such as, France (Entraygues A, 2009), the UK (Stagg A, 2010), New Zealand (RudkinBinks J and Melbourne S, 2009), Taiwan (Chen E and Brown M, 2009) and South Korea (Yu, 2010) have implemented, or, are drafting, innovative law to enforce ‘graduated response’ measures where content owners and ISPs join forces to curtail online copyright infringement. Implementing this ‘three strikes and you