March 18, 2008 | By Danny O'Brien

Three Strikes, Three Countries: France, Japan and Sweden

The music and movie industries have been making a concerted attempt to introduce a "three strikes" rule for Net users in many countries simultaneously — pressuring ISPs to throw their customers offline, possibly permanently, if the rightsholders report that they have been infringing.

The response by national ISPs and governments has varied: in the same week as Japanese ISPs declared they would voluntarily follow such a scheme, Sweden's Ministers for Justice and Culture came out strongly (Swedish article) against shutting down subscribers in their country.

The furthest ahead in its plans is France. IFPI lobbied for, and applauded France's Olivennes Report, an agreement brokered last year between the ISPs, rightsholders and the French government to enforce such a system. (Denis Olivennes, the author of the report, is also the director of FNAC, France's largest record shop chain).

The Olivennes agreement (translated here) and the law that is expected to reinforce its proposals later this year, essentially bypass due process in favor of a governmental authority that will take complaints from rightsholders, and suspend individuals net use on the say-so of those complaints:

This authority will be given the personnel and technical means to warn and to sanction. On the basis of a complaint from righholders, directly or via structures entitled by law to investigate infringements of rights, it will send out in its name, via the Internet service providers, electronic warning messages to the owner of the subscription. In cases of repeat infringement, it will apply, or will refer the matter to the judge in order to have applied, sanctions against the owner of the subscription. These sanctions will range from the suspension of access to the Internet to the termination of the Internet subscription.

This authority will have the power to apply sanctions on access providers who do not respond, or do not do so in a diligent manner, to its injunctions. It will publish monthly statistics on its activities; o This authority will also have, under the control of the judge, the ability to request technical providers (hosting services, access providers, etc.) to take any measures necessary to prevent or put an end to injury caused by the content of an online communication service.

The French authority will also compile a public list of citizens banned in this way: a public list of those who will be exiled from the Internet. ISPs must also co-operate with rightsholders to introduce "effective filtering" and monitoring technology.

In other words: the due process and privacy rights of users are sacrificed in the search to stamp out infringement, and a disproportionate punishment (being thrown off the major communications system of the 21st century for a few corporate accusations) put in place for those accused of the crime. Banning from the Internet is something that until now has been reserved for those who the courts feel are dangerous hackers; now it will be wielded by the entertainment industry.

The Japanese scheme is "voluntary", with no governmental involvement, but the agreement is hardly voluntary for Net users: the Japanese proposal has been agreed to by four major ISP groups, representing almost all of the broadband market: the consent of an effective monopoly.

In both Japan and France, no consideration has been made of how such a powerful and automatic banning system would affect everyday Net users, or the wider infrastructure. Many have noted that "three strikes" could end open wi-fi, or mesh networks; that companies and individuals could be framed by malicious third parties, or disgruntled insiders; that the agreements turn ISPs against their own users, encouraging them to filter and monitor their customers' traffic.

The Swedish government, in rejecting "three strikes", noted that shutting down an Internet subscription was "a wide-reaching measure that could have serious repercussions in society". That's the kind of wider policy consideration that France and Japan needs to consider. This is more than a fight between the entertainment and broadband industries: this is about infrastructure, and citizen's access and freedoms online. But right now, some countries seem to be falling over themselves to discover its disadvantages — without any true investigation into what will happen to their citizens or their networks if they do.


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