'Three strikes and you're out' is not a game

This isn't baseball, and I wonder if perhaps the Irish High Court should really take note of that.

Three strikes laws are nothing new. They are the type of law, however the wording actually states, that disconnects a person's Internet connection after they have been accused of a third copyright infringement. They are law, or are in the process of becoming law, in Sweden, the UK, and France.

They are also a waste of time and money, a threat to human rights, and a threat to the livelihood of anyone involved in the creative arts.

In January 2009, Eircom signed a deal with the major music labels to disconnect persistant filesharers. This is not a law, per se, but a simple agreement between them and the IRMA - if they receive notice of evidence of filesharing against a particular connection three times, that connection is cut off. There was a High Court challenge regarding the legal status of an IP address as personal data, but that has now been resolved, and the agreement can go into full force. This is even worse than a law - there is no oversight, no accountability. And with Eircom signing up to this, the IRMA will have the leverage to bully other ISPs into accepting the same deal, or face being sued.

So. Let's hypothesise. Eircom receives a notice that a particular IP address has downloaded an infringing file. They duly send out the notice to the mailing address associated with that IP - they have no way of knowing whether the notice is accurate or not, and little reason to care.

But is that evidence accurate? It may not be, if it's similar to the system used in the UK by ACS:Law. The Internet Service Providers Association in the UK was not convinced. See BeingThreatened for more information on this. The content in question also may not be infringing - in Viacom's lawsuit against Youtube, for example, there were a hundred clips listed as infringing when Viacom had uploaded them itself! Fair use is not mentioned, so background music in a home video you share with your relatives abroad may get you disconnected (legally, it's still infringing material) - and we have no assurances as yet that the IRMA will not pursue people in that fashion. This, by the way, is the same organisation that claimed that people who copied music to their iPods from their CD collection were breaking the law.

Does the evidence actually point to your computer? It may not. The IP address points to your connection; your gateway to the Internet, as it were. Several computers in one house all use the same gateway. They have no way of telling which computer connected to that gateway actually did the infringing.

What if the gateway belongs to a business with a dozen employees? Maybe a rented accomodation, where students are coming and going all the time? A school? How do you tell who actually did it, and who is just a bystander? What if the culprit hacked into the connection, as many savvy users can, without the owner's knowledge - through a wireless router, for example? The IRMA apparently doesn't care, and Eircom stands to lose more through getting sued than it does by losing one customer's business.

But nothing can change the fact that this is punishment on accusation; the customer is guilty until proven innocent. It's like getting arrested for being nearby when a crime occurs, and the actual criminal is let free to break the law again. And Eircom will likely lose many customers as they move to other ISPs, but that is a stalling tactic at best if the IRMA manage to foist their agreement on all Irish ISPs.

I did state, though, that this is a waste of time and money. Allow me to expand on that.

The entire point of this agreement is to discourage copyright infringement, and encourage the legal sale of creative works. I'm sure it looked good on paper, but in practice, it simply does not work. Sweden saw a drop in filesharing traffic after implementing the IPRED law, but the levels simply bounced back and even increased. People moved to streaming sites, or bought VPNs that encrypted their activity and essentially let them fileshare with impunity. And the question of whether IPRED actually increased legal sales is up for debate; an increase was seen, but was that a result of the law, or of better availability of legal music through sites such as Spotify? Correlation does not equal causation. Attitudes to filesharing remained largely the same, and to date there have still been no IPRED convictions.

The lesson to be learned here is, as I've said before, that people will get the content they want in the manner they want, and laws that are easily circumvented by the technologically astute are hardly going to stop them. The time and money spent by the IRMA and Eircom on this is simply a waste - it will not even slow down piracy, if the figures from Sweden are anything to go by, and it is certainly not guaranteed to catch the actual pirates.

That the three strikes laws are a threat to human rights is quite clear; they are a threat to free speech, and the free access of individuals to information. Internet access is considered so important by the EU that it adopted an Internet freedom provision in the Telecoms Package last year, in which "the right to an effective and timely judicial review shall be guaranteed" in the case of disconnection because of copyright infringement. Alas, this provision only applies to states, not private ISPs... Technically, what Eircom and the IRMA are doing is legal, but that doesn't make it right.

But these laws are also a threat to people involved in the creative arts. I think I should know about this, as I am a person involved in the creative arts. The reason is simply this: the law disconnects people from the Internet. It cuts them off from the greatest communication medium the world has ever seen.

Without access, they cannot talk about my books on their blog. They cannot tweet about me, the author. They cannot buy a paper copy of my book as a present for someone. They cannot discuss my books with other fans. They cannot buy merchandise from me. They cannot find out about book signings.

They certainly can't buy my damn ebook.

The greatest challenge facing me, as an aspiring author, is obscurity. It's the same challenge facing all but the biggest names in music, books, and movies. And it makes me goddamn furious that the IRMA and licensing authorities like them feel that they can cut me off from my fans because of filesharing. Piracy isn't right, and I know I'd rather not see my books pirated, but this is not the answer! Removing one major avenue for people to consume and purchase media will not encourage them to consume and purchase elsewhere; in fact, if they're disconnected because they have an infringing copy of my work, it could damage my reputation as an author because they are likely to blame me personally!

I do not want my name connected with such idiocy, especially when there is money to be made by creative individuals who understand the power of the Internet. The Irish High Court certainly don't have a clue, judging by the comments of Mr. Justice Charleton. They should have done even the most basic research on other implementations of three strikes, and how they affected filesharing. They might have noticed how an IP address may not correspond to the infringer, and how there is enormous scope for innocent people to be disconnected. They might have considered other effects of disconnection such as inability to pay bills online, inability to complete coursework, inability to do business, inability to spend money on legitimate sites.

The fact that they seem to have ignored all this suggests to me that they are not treating this issue with the respect it deserves. They are not acting in the best interests of Irish citizens.

'Three strikes and you're out' is not a game.