Three-strikes rule for illegal downloaders

Umeh: ISPs may be worried about how the three-strikes rule will be implemented

On 12 February, The Times reported that a draft consultation green paper to be released by the government will recommend a three-strikes rule against the illegal download of copyright content such as music or films.

The proposed rule is designed to be enforced by internet service providers (ISPs), and will legally oblige them to suspend and terminate the account of any subscriber repeatedly caught downloading illegal content. This might sound like an excellent idea to some, but will it work as intended?

The proposal regime could require ISPs to take three steps when dealing with illegal content downloading, which are as follows:

1. Send a warning email to the suspected user account;
2. Suspend account if caught downloading illegal content again; and
3. Terminate the user account on the occasion of a third offence.

On the one hand, this move is welcomed by those bodies that represent the interests of industry stakeholders. These organisations, which include the likes of the BPI and IFPI, are rightly concerned with the protection of copyright works that make up the primary revenue source of the creative industry.

But on the other hand, end users or consumers of media, and perhaps even the ISPs themselves, may be justifiably worried about how it will be implemented.

From a practical point of view, the three-strikes rule seems like a perfectly reasonable approach to solving the vexing and costly issue of illegal downloads. Because ISPs are de facto gatekeepers of the internet, they can therefore be seen as the logical and practical choice to police the content that passes through their servers.

There are precedents in countries such as France and the US, which have already adopted a similar rule.

However, early reactions to the proposal have also identified some fairly obvious obstacles. For example, how will ISPs prove an internet account holder is guilty of illegally downloading content?

Implementing the three-strikes protocol will undoubtedly bring some cost implications for ISPs, in addition to the negative PR associated with targeting their own customers and the terminated user can just sign up with another ISP, unless there is some shared register of offenders.

Alternatives include the pre-emptive adoption of a self-regulatory process as defined and agreed by the ISPs; the application of a blanket surcharge on all ISP accounts to enable free-for-all file sharing, as suggested by the Songwriters Association of Canada; or the creation of better-value propositions, such as the BBC iPlayer, which can compete with ‘free’ or illegal content.

Overall, the proposed three-strikes rule may yet be another stepping stone that needs to be tried, tested and perhaps discarded on the never-ending quest for an equitable online future for the commercial, creative and consumer stakeholders groups.

Jude Umeh is author of the BCS DRM blog, which can be found at: www.tinyurl.com/3ark38