Debating Three Strikes, not the Problem it’s Supposed to Fix
Debating Three Strikes, not the Problem it’s Supposed to Fix
Debating Three Strikes, not the Problem it’s Supposed to Fix

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    The New York Times yesterday ran an article detailing some of the debates around three-strikes laws, such as the one recently rejected by the French Parliament. What struck me about the article, though was the way in which it was framed. Here are the opening lines:

    Is Internet access a fundamental human right? Or is it a privilege, carrying with it a responsibility for good behavior?

    That is the question confronting policy makers as they try to bring Internet access to the masses while seeking to curb illegal copying of digital music, movies and video games.

    The United States Congress held hearings last week on the growing problem of piracy, which the American entertainment industry says accounts for the loss of $20 billion a year in sales. Several lawmakers vowed to increase scrutiny of international markets where piracy is widespread.

    But if events in Paris last week are any indication, legislative solutions will not be easy. French lawmakers rejected an antipiracy plan championed by President Nicolas Sarkozy, where the Internet connections of people who ignored repeated warnings to stop using unauthorized file-sharing services would have been severed.

    Beginning the article in this way suggests that the choices are access or piracy. And that's a totally false dichotomy. Three strikes is but one of many potential ideas about how to reduce online infringement, and it's not a particularly good one. Throwing out three strikes doesn't prevent lawsuits against individual infringers, and it doesn't prevent notice-and-takedown regimes. But what's important to note is that the debate here is not on copyright infringement, but on the rightness or wrongness of one particularly flawed “solution” to that problem.

    There's a reason that opponents to such proposals (like us) focus on the access question—it's because the harms caused by cutting off access are more fundamental and sweeping than the prospective benefit in reducing infringement. So much so that advocates might just focus more on that than pointing out that there are other, better ways of reducing infringement (if that's your goal) and even more ways to make more money (which can happen in spite of, and in some cases, because of, infringement).

    Focusing on the access question doesn't directly address the infringement question, though, so it might look to a casual observer as though opponents of three strikes laws are trying to change the subject. We're not. But just as the broad and fundamental questions of free speech must necessarily be brought to bear when the initial issue is something as trivial as unsightly clothing, the broad and fundamental questions of access to knowledge, information, and the Internet must be brought to bear on three strikes laws. When the solution is so out of proportion to the problem, discussing the problem often seems beside the point.

    I'm not suggesting that we stop talking about the access issues with regard to three strikes by any means; I just want to make sure that we don't forget to inform the press and the public that three strikes isn't the only solution to infringement. (In fact, it might not be a solution to infringement at all.)

    Access to communications might be a right, but, like speech and other rights, it also certainly comes with responsibilities. But abusing those responsibilities doesn't require forfeiture of that right. We don't bar slanderers from ever speaking again, prevent phone phreaks from picking up a handset, or refuse to send fire or police services to tax cheats.

    And this is ignoring all the potential victims of a three strikes law who, in the case of the New Zealand proposal, might get kicked off the network based purely upon repeated accusations. ( Now there's a handy structure for those who want to play a prank on someone—take them (or their laser printers) offline by spoofing their IP address and sending a few mp3s around.)

    That's one of many arguments that gets lost in the shuffle if the debate is framed as it has been in this NYT article. Rights to access might be the most basic or fundamental arguments against three strikes, but they might not always be the most convincing place to start. Hopefully the whole range of arguments against three strikes will have more room to be aired than is often available in the confines of a short, 800-word piece.