Three Strikes and You’re Offline
French President Nicolas Sarkozy recently noted that the Internet is not a lawless zone. On that, many of us agree. But then he went a step too far, trumpeting a law that would cut off Internet access to people who repeatedly download copyrighted content illegally. The law would have set up a “three-strike” system in which music labels and movie studios would monitor file-sharing web sites to identify computers that have illegally downloaded copyrighted content and then report suspected pirates to a government committee, which in turn would review cases and require ISPs to identify offenders.
Not surprisingly, the French Constitutional Council struck down the provision of the law that would cut off Internet access to repeated copyright offenders, finding it incompatible with the French Constitution and its due process protections. The Council ruled that the law will be enacted without the “three-strike” component. Instead, the government agency can only send out mail and email warnings to suspected pirates. If the agency wants to further sanction a suspected pirate, it would have to go to court.
The decision appears to be a narrow one, leaving open the possibility of Internet banning upon judicial review. On the one hand, this is a wise move given the likelihood that a computer’s involvement in mischief was truly the doings of a neighbor using its wireless router. Judicial review would address that scenario. On the other hand, it leaves open the troubling possibility of banning Internet use due to copyright violations. The protection of artistic creation can surely be accomplished by less extreme measures, i.e., ones that do not cut off a copyright offender’s exercise of basic freedoms in this networked age, from her right to express ideas, create artistic content, associate with religious groups, and make a living.
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