Argument: The graduate response policy constitutes an invasion of privacy by the state

Graduated response would require huge amounts of monitoring and logging of all internet traffic using technical systems called ‘deep packet inspection’ (DPI) equipment. This means that a computer program will look in close detail at all of the information someone sends over the internet in order to check whether it violates some protocol, for example a ‘fingerprint’ of copyrighted data that the content creator put in.

This means a copyright holder, or a third party paid by the copyright holder to monitor internet traffic, suddenly has access to everything every consumer sends over the internet. This is a massive violation of privacy. Given the fact that advertising companies are already using DPI illegitimately for targeted advertising, it is obvious that content companies will also feel tempted to ‘do more’ with all that data they suddenly have access to. [1]

[1] Angela Daly, ‘The Legality of Deep Packet Inspection’, 2010. Presented at the First Interdisciplinary Workshop on Communications Policy and Regulation 'Communications and Competition Law and Policy – Challenges of the New Decade', University of Glasgow 17 June 2010. URL for download: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1628024

Candidate 1: "A graduated response is the fairest way to enforce copyright legislation

First, the sanction after three warnings can be tailored to fit general notions of justice, the punishment need not be severe and could fit the crime: maybe a consumer would be cut off of the internet for only two weeks, or only cut off from accessing download sites but still be allowed to access government and banking sites, or receive a small fine.

Secondly, the consumer has ample time to change his or her behaviour: a consumer can insist on infringing copyright at least two times before the sanction takes place. The consumer can easily avoid being cut off (even temporarily), meaning the punishment likely doesn’t even have to take place. [1]

[1] Barry Sookman, ‘Graduated response and copyright: an idea that is right for the times’, January 10th, 2010. URL: http://www.barrysookman.com/2010/01/20/graduated-response-and-copyright-an-idea-that-is-right-for-the-times/"
Candidate 2: "ISPs will gladly cooperate with graduated response

Almost a decade ago, ISPs engaged in a competitive battle to gain as much broadband penetration as possible. Now that markets have matured and broadband penetration has more or less ‘maxed out’ in developed countries, ISPs need to find new value propositions to attract customers. One of these value propositions is being able to offer high quality content at high speeds. To be able to offer this, ISPs will need the cooperation of content providers – who can ask something in return, like graduated response. [1] That this actually happens is borne out by the fact that in many countries ISPs are actually getting together to make sector-wide agreements, for example in the USA where the major ISPs have agreed to implementing graduated response. [2]

[1] Olivier Bomsel and Heritania Ranaivoson, ‘Decreasing copyright enforcement costs: the scope of a graduated response’. 2009. Review of Economic Research on Copyright Issues, Volume 6(2), p. 13 – 29. URL for PDF: http://hal-ensmp.archives-ouvertes.fr/docs/00/44/65/31/PDF/Rerci.pdf

[2] David Kravets, Wired, ‘ISPs to Disrupt Internet Access of Copyright Scofflaws’, July 7, 211. URL: http://www.wired.com/threatlevel/2011/07/disrupting-internet-access/"
Candidate 3: "Graduated response is not a massive privacy violation

Firstly, ISPs already use Deep Packet Inspection right now, to engage in what they call ‘network management’, like checking whether users aren’t hogging up bandwidth by downloading too much via peer-to-peer software. But moreover, it is hard to see how exactly every form of deep packet inspection is a privacy violation: the inspecting is done by automated software and only checks for infringements. If no infringement is detected, no one will know what was ‘in the information packet’. Take the example of monitoring for the presence digital watermarks: basically, the monitoring-software has a database of specific ‘watermarks’ that content holders put into their videos, for example a unique combination of pixels. The software only checks whether that combination is present. If it’s not present, the software has no way of ‘seeing’ the information itself. Hence, even though it might sound scary, the technology can be designed in such a way that one can prevent it from becoming privacy violation. [1]

[1] see wikipedia: Digital Watermarking"
Candidate 4: "A graduated response will be an effective deterrent

Research has shown that consumers are likely to stop downloading from unauthorized sources when warned by their ISP. For example: Seven out of ten (72%) UK music consumers would stop illegally downloading if told to do so by their ISP, and 90 per cent of consumers would stop illegally file-sharing after two warnings from their ISP. [1]

This shows that the threat of a possible disconnection together with a friendly warning is enough to stop most consumers from downloading from illegal source. The reasoning behind it is simple: consumers can now download without a cost, a graduated response mechanism first raises awareness scaring off those who are only casually downloading out of convenience and then heightens the expected cost of infringement and thus makes it more likely consumers will use legal sources. [2] [1] IFPI, Digital Music Report 2009. 2009. URL for PDF: http://www.ifpi.org/content/library/dmr2009-real.pdf

[2] Olivier Bomsel and Heritania Ranaivoson, ‘Decreasing copyright enforcement costs: the scope of a graduated response’. 2009. Review of Economic Research on Copyright Issues, Volume 6(2), p. 13 – 29. URL for PDF: http://hal-ensmp.archives-ouvertes.fr/docs/00/44/65/31/PDF/Rerci.pdf"
Candidate 5: "The unauthorised downloading of copyrighted material should be addressed and prevented by the state

Copyrighted material is intellectual property: someone worked hard for it to produce it. Downloading this content without paying the proper rights holder for it amounts to theft.

Furthermore, downloading copyrighted material from an unauthorized source creates an impossible market for producers of copyrighted content, because they have to ‘compete with free’. Why would the average consumer want to pay for a download from an authorized website, when she can get the same movie from a pirate-site for free? To build a commercially viable content industry online, we need to protect this industry from the unfair competition of the parallel market. [1]

[1] Piotr Stryszowski , Danny Scorpecci, Piracy of Digital Content. 2009, OECD Publishing. URL for purchase: http://www.oecdbookshop.org/oecd/display.asp?CID=&amp;LANG=EN&amp;SF1=DI&amp;ST1=5KS..."
Candidate 6: "Graduated response can be done prudently

Many companies have ‘Terms of Agreement’, violation of which automatically leads to cancellation of service. Suppose you don’t pay your library subscription for a year: no one would complain of ‘lack of due process’ if your subscription was subsequently cancelled. A Graduated response policy is no different.

Moreover, the graduated response policy can be made to fit the rules of due process. For example, in the French HADOPI-law, after a third violation, the case gets referred to an ‘expedited judicial procedure’, typically used for minor traffic violations, after which that judge will decide.

Compare this to the unfairness before a graduated response policy is implemented: copyright holders might detect and sue one single consumer and extract a very heavy penalty, whilst the rest of the downloading consumers got away. Both the uncertainty and the height of the fine made the situation before a graduated response-policy an ‘enforcement lottery’. [1]

[1] Nathan Lovejoy, JOLT Digest ‘Procedural Concerns with the HADOPI Graduated Response Model’, January 13, 2011. URL: http://jolt.law.harvard.edu/digest/copyright/procedural-concerns-with-the-hadopi-graduated-response-model"

Graduated response is not a massive privacy violation

Firstly, ISPs already use Deep Packet Inspection right now, to engage in what they call ‘network management’, like checking whether users aren’t hogging up bandwidth by downloading too much via peer-to-peer software. But moreover, it is hard to see how exactly every form of deep packet inspection is a privacy violation: the inspecting is done by automated software and only checks for infringements. If no infringement is detected, no one will know what was ‘in the information packet’. Take the example of monitoring for the presence digital watermarks: basically, the monitoring-software has a database of specific ‘watermarks’ that content holders put into their videos, for example a unique combination of pixels. The software only checks whether that combination is present. If it’s not present, the software has no way of ‘seeing’ the information itself. Hence, even though it might sound scary, the technology can be designed in such a way that one can prevent it from becoming privacy violation. [1]

[1] see wikipedia: Digital Watermarking
