Policing the Internet: Illegal Downloads and ‘Three Strikes’ Laws

Australia made the news last year for being world leaders in … illegally downloading Game of Thrones. This year, we’ve added Breaking Bad to our dubious ‘most downloaded’ trophy cabinet. Online piracy is clearly more rampant than ever.

It seems increasingly likely that the government may have to intervene and write a code on internet piracy into copyright law, after talks to negotiate a voluntary agreement to tackle piracy have effectively fallen apart.

Until recently, copyright holders, government agencies and the three major internet service providers (Telstra, Optus and iiNet) were on the brink of agreeing to a negotiated approach. They were to implement a graduated copyright warning and enforcement system, under which users who breach copyright with illegal downloads would be sent a series of warnings, with penalties if they fail to comply.

Talks broke down in December 2012, when iiNet withdrew, arguing that it’s not the role of ISPs to ‘play police’ or protect the rights of third parties (the copyright holders). This May, Optus withdrew too.

iiNet argued that the ‘root cause’ of copyright infringements is ‘limited accessibility to desirable content and the discriminatory and high cost of content in Australia, and that it should not be their role to police their customers.

New research from Monash University, released last week, considers ‘three strikes’ laws in France, New Zealand, Taiwan, South Korea, the UK, Ireland and the US – and comes to the conclusion that they are largely ineffective and fail to steer users towards legitimate content sources.

It’s been more than three years since the first countries began implementing ‘three strikes’ responses, which oblige ISPs to issue graduated warnings to account holders accused of infringing copyright.

New Zealand introduced a three strikes system in 2011. France’s HADOPI agency has the power to shut down the internet access of copyright infringers. A recent report recommended that the agency be shut down and the law softened.

If the three strikes system doesn’t work, what will? Should it be the job of ISPs to police their customers? Or is it up to copyright holders to make illegal downloads less attractive as an option?

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