Argument: 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 1: "Graduated response is a draconian punishment

Citizens these days rely on their internet connection for their everyday lives: banking transactions, filing tax forms, and other forms of essential communication are all done online. Cutting access to these basic services is a draconian punishment: it basically amounts to making daily life a whole lot harder. Even if essential services were to remain accessible to the offender they could lose access to things somehow considered less vital such as their online social life. The punishment in no way is proportionate to the ‘crime’ of downloading a song that would have cost 99 cents on iTunes."
Candidate 2: "Downloading isn’t a crime

Downloading content is not comparable to theft of material things, like cars: after downloading the original owner can still use his or her own copy.

Moreover: governments have always allowed consumers some leeway for replicating content for themselves under the ‘private copying exception’ or ‘fair use’-policy. [1] Before the internet came along, this exception ensured it was legal that one person could copy a song from a radio broadcast transmission for personal use. Why should downloading a song from the internet be any different?

Finally, research has shown that those who download the most from pirate sites are also the ones who buy the most music online legally – why would the content industry want to punish their biggest and most loyal customers?. [2]

[1] Natali Helberger &amp; P. Bernt Hugenholtz, ‘No place like home for making a copy: private copying in European copyight law and consumer law’. 2007. Berkely Technology Law Journal, volume 22, p. 1061 -1098. URL for PDF: http://www.ivir.nl/publications/helberger/BTLJ_2007_3.pdf

[2] Ars Technica, ‘Study: pirates biggest music buyers. Labels: yeah, right’. April 2009. URL: http://arstechnica.com/media/news/2009/04/study-pirates-buy-tons-more-music-than-average-folks.ars"
Candidate 3: "Consumers will find ways to evade detection

Evading detection for most of the surveillance methods are relatively easy: consumers could start relying on proxy servers to hide their IP-addresses or start encrypting everything they share online to avoid being detected by fingerprinting-software.

In fact, recent experience in France with its Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet (HADOPI) law suggests that despite a graduated response-policy, piracy is actually on the increase. [1] This shows that graduated response won’t do what it is supposed to do; stem online piracy.

[1] Torrentfreak, ‘Piracy Rises In France Despite Three Strikes Law’, March 9, 2010. URL: http://torrentfreak.com/piracy-rises-in-france-despite-three-strikes-law-100609/"
Candidate 4: "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 5: "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 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 a draconian punishment

Citizens these days rely on their internet connection for their everyday lives: banking transactions, filing tax forms, and other forms of essential communication are all done online. Cutting access to these basic services is a draconian punishment: it basically amounts to making daily life a whole lot harder. Even if essential services were to remain accessible to the offender they could lose access to things somehow considered less vital such as their online social life. The punishment in no way is proportionate to the ‘crime’ of downloading a song that would have cost 99 cents on iTunes.
