False accusations have long been a subject for those sceptical of a three strikes law. Given the complexity of tying an IP address to a subscriber is much too complicated for any form of automated system, it should come as no surprise for sceptics to find out that people are wrongfully receiving notices for copyright infringement.
Record labels have been pressuring ISPs to implement a three strikes law in Ireland for years. In fact, in 2008, the record labels went to the extreme length of suing Irish ISP Eircom in a bid to get them to implement a three strikes law. In 2009, the ISP folded to pressure and agreed to implement a three strikes law for its users. Then, as of 2010, Eircom implemented the three strikes policy on their subscribers much to the outrage of many people including the Pirate Party of Ireland.
There’s plenty of ways to be critical of a three strikes law or policy. One way is to be critical of the technical nature of such a policy. It’s all well and good to be able to find an IP address on a file-sharing network, but it’s quite a different matter of actually tying that to an actual person. For instance, one person could by hijacking someone’s IP address via an insecure Wifi network. Even marginally secure Wifi networks won’t guard against any possible threat. Back in 2010, a USB device circulated the Chinese marketplace that would crack in to Wifi networks. Ultimately speaking, one person could be using someone else’s IP address to share copyrighted material unbeknownst to the actual subscriber. Of course, there;s also the study even further back in 2008 which showed that even a printer could be framed for copyright infringement.
So really, it’s should come as no surprise to copyright observers that false accusations are being made even with a three strike policy present. That was certainly the case, as EDRI points out, in Ireland when 300 users received first strike notices over infringements they never even committed. According to IT Law in Ireland, Eircom is investigating the matter and offered the following explanation:
This was due to a software failure caused when the clocks went back last October, it said.
As was noted in the posting, it’s very peculiar that there is an effort to take on the enormous task of identifying people via IP address, yet, this same effort can’t even account for daylight savings time. It get’s even more interesting:
The DPC said it was investigating the complaint “including whether the subject matter gives rise to any questions as to the proportionality of the graduated response system operated by Eircom and the music industry”
This is unsurprising – when the Eircom / IRMA three strikes settlement was being agreed the Data Protection Commissioner identified significant data protection problems with it. These problems remain, notwithstanding the deeply flawed High Court judgment which approved of the system – a judgment which, for example, decided on the question of whether or not IP addresses are personal data without once considering the views of the Article 29 Working Party. It is not surprising that the Data Protection Commissioner was not convinced by that judgment (the judgment was problematic at least in part because the Commissioner was not represented – the only parties before the court had a vested interest in the system being implemented). However, until a concrete complaint arose no further action could be taken.
The complaint in this case has now triggered that action, and it seems likely that the Commissioner will reach a decision reflecting his previous views that using IP addresses to cut off customers’ internet connections is disproportionate and does not constitute “fair use” of personal information. If so, the Commissioner has the power and indeed the duty to issue an enforcement notice which would prevent Eircom from using personal data for this purpose – which would ultimately seem likely to put the matter back before the courts.
Indeed, there have been numerous legal questions surrounding a three strikes law. Early this month, Frank La Rue, the UN’s Special Rapporteur on freedom of opinion and expression said that a three strikes law was a violation of the International Covenant on Civil and Political Rights.
What all this seems to suggest is the crumbling of the attempt to implement a global three strikes law. Even if secret agreements like ACTA or TPP say that countries must implement a three strikes law, it now runs in to obstacles such as the UN Rapporteur and complaints about false accusations.
I would go so far as to say that the window of opportunity to force a global three strikes law is passing. It certainly was more possible three years ago to try and force countries to implement a three strikes law, but now it is becoming increasingly difficult to not only persuade countries to implement them, but to make sure countries that have some form of implementation to keep the policy in place.