Really it is the US copyrights industries. They have non-US equity owners and foreign allies, but if it weren't for the US companies that control global popular culture, particularly the eight movie studios that own the global dreck business and their corporate holders, this wouldn't be happening.

has started a push for laws that require ISPs to deny internet access to copyright violators. Known as “three-strikes laws,” proposals for such measures have cropped up around the world and so have vehement objections to their implementation. This outcry, which has not arisen for other instances of internet access prohibitions, indicates the extent to which people believe that a court is necessary before internet access can be taken away. In other words, the fervent opposition to three-strikes laws demonstrates that internet access has come to be viewed as a human right, at least by a significant segment of the population.

No, that doesn't follow. I don't make a "human rights claim" when some thug down the block claims to have a right to listen to my phone calls, or tries to steal the books off my shelves on the claim that they really belong to him. Nor do I have to believe in "the Internet as a human right" if he makes a corrupt deal with the telephone company to interrupt my service if he feels like it in order to extort money from me. I might think of the service as a human right, but my objection to the thug is distinct and unrelated. This is an unexplained logical lapse that drives the remainder of the essay off course.

Several countries have been using denial of internet access as a punishment for crimes already. In the United States, there’s the case of the former University of Texas student who was convicted for hacking into the school’s network.

Referring to probation conditions as punishment, which you do twice here, is both incorrect and misleading in a comparative context. The question whether a party can be asked to relinquish in return for an end to justified incarceration incident to criminal sentence freedoms he would otherwise be entitled to by law is not generally hard. No one is obliged to give him Internet service in prison, so he is not entitled to Internet service out of prison, regardless of whether Internet service is otherwise a right.

The punishment has also been explored in the US for individuals convicted of downloading child pornography. And in Singapore, an internet ban has been used as a punishment for a teenager convicted of Wi-Fi freeloading. However ridiculous or extreme these cases may be, they have one important factor in common: a court ordered the imposition of an internet ban for a particular individual after it found him or her guilty of a crime.

That's a common factor, as you say. But observation of a common factor is not an argument and it does not support an unstated inference.

And if so, what is the relevance of the preceding discussion to it? You need to help the reader to follow the development of an idea. This sentence creates discontinuity rather than establishing relevance.

One of the first such laws to be introduced was in New Zealand, and included primarily a provision that an "Internet service provider must have policy for terminating accounts of repeat infringers."Notably, this law places the entire onus of discovering and punishing copyright infringers on the ISP and provides no guidance about standards of proof or about establishing an appeals process. The UK proposal, similar to the New Zealand law, would require ISPs to enforce the law, with the added twist that if an ISP neglects to do so, it might be prosecuted itself.

I don't understand what an expression like "with the added twist" adds to comparative legal analysis. Two utterly different approaches, one based on setting standards for service providers and the other holding them vicariously liable for customers' infringement in the absence of measures to prevent sharing, are being described as similar, rather than different, and the difference, which seems fundamental, is described as though it were an ornament of some kind. If the difference is immaterial, you need to explain why.

The French version of a three-strikes law is more detailed, and considered to be the toughest yet introduced in the world. It calls for a new administrative agency, which would receive complaints from rights holders and would pass them on to ISPs, and which would oversee an appeals process.

So what does "tough" mean? Tough on rights-holders, who must deal with due process rather than making contractual bargains with ISPs they own or play golf with? Or tough on sharers, who are told that the State has joined hands with their oppressors, and will now administer justice according to the unjust laws that the State is already not changing? The debate in France is atypically tough, because La Quadature du Net has been an effective promotional instrument even as the Sarkozy administration has been unusually insensitive to the implicit anti-Americanism of French cultural life, and has been particularly supine in its dealings with the US industries. So government in a statist system with a pseudo-liberalized telecomms sector has pursued the industries' desire to have their barbed wire paid for by government with exemplary strength, and civil society fought back reasonably hard. In the UK, on the other hand, the telecomms sector would not have folded so easily unless forced by a combination of Rupert Murdoch and the example of the French, but civil society was supine, and now has a worse result. In the US, of course, legislation is impossible and the telecomms oligopolists have to be bribed, while the cable incumbents are mostly in bed with content anyway. Right now, for example, you have "three strikes" if you're a Time-Warner cable customer, but TW simply rolls over and lets MPAA kill-switch your Internet service, so they're not even the ones actually pulling the plug, and they reserve the right to be nice to your and give you a Hershey's kiss afterwards, so you're perfectly clear it wasn't them who abused you. Is that more or less tough, do you think? One of the thugs rapes you and the other pretends to be your friend so you'll keep giving him money every month while he spies on you for the other one, who might come back?

The NZ government faces a general election this year, with a strong possibility that Social Democrats will take over government, and with some elements of the social democratic coalition beginning to explore the intellectual and political ground of the Pirate Party movement in Scandinavia. A combination of free culture activism and an understanding that a guy who made money on The Lord of the Rings is not therefore the expert on what New Zealand needs from the global order of culture is a political force that will have some effect on the outcome.

But that assumes the existing socialist telecomms outcome, in which France Telcomm (now Orange) is officially a private entity competing with other entities in the market, but which has tacit incumbency on the condition that it offer everyone in France global-standard broadband at a reasonable price. So for Euro 40 /month everyone in France has 100Mb wired service. The French Constitutional Court said service was a right, not a fundamental human right. They didn't say government was now going to be obliged to provide it to everyone regardless of whether they paid Euro 40. When I go to Paris, I'm a human being, but I don't get free Internet service, and I can't even pay local prices. The Court said government couldn't interrupt service or provide for its interruption without a pretermination hearing. We used to believe this was true in the United States with respect to essential public support for individual existence, see Goldberg v. Kelly, back when we used to provide essential public support for individual existence. But we didn't say welfare was a fundamental human right, obviously: a Democratic President concerned about low poll numbers in an election year in which he was fated to win handsomely anyway only to be promptly impeached, but not for the astounding levels of political venality that financed his victory, agreed to the abolition of the hardly fundamental right to welfare for everybody receiving it, so we don't have it anymore now that roughly a fifth of American children live in poverty and long-term unemployment levels are as high as they were since the Great Depression. We just said that welfare was important to people and as long as government gave it to them they couldn't take it away without holding a hearing. That's what the French Constitutional Court said too, more or less, if you correct for rhetorical chest-pounding and political codswallop.

No. In Finland, the government said that within its next planning cycle, everyone in the country (except for 2,000 homes in really inconvenient places) will live within a kilometer of some telecommunications facility through which they could receive at least slow DSL connections. That completes a government mandate to provide the possibility of broadband connection so defined to everyone reached by the national infrastructure. This is not analytically the same as saying that Internet access is a fundamental human right (those 2,000 rural households also contain human beings, for example). It's not even exactly the same as making Internet access a legal right. You can't do comparative law by copying what CNET says: the guy who writes their doesn't know crap about law, and he's not a reliable source. You have to read things for yourself. If they are in Finnish, that can be difficult.

Now, as to Greece. How you go from a constitutional provision that says everyone has the right to participate in the information society to the proposition that Internet access is a fundamental human right I have no idea. One needs first to show what the guarantee of participation means, and one needs to know what the principles are that govern limitations on individual degrees of participation. I used to have a constitutional right of interstate travel in the United States, see Crandall v. Nevada, which was understood to mean a right to travel without "showing my papers," which was understood to be the mark of police states where that fundamental right was not honored. The US is now a country in which one has to show one's papers all the time when traveling. Have I still a fundamental human right? Is it more defeasible than I understood, or absent altogether, and how do I know other than to compare this with the police states I knew in my youth? Then there's implementation. If the Greeks have a fundamental human right to Internet access, than something is wrong in Greece, which according to the World Bank statistics on Internet penetration is denying that fundamental human right to slightly more than 58 percent of its population. Let's get real.

And the right to clean drinking water, that most of the world doesn't have, but which is utterly essential to life? "Rights" don't emerge from logic.

Not all human rights are bare necessities. For example, education has long been considered a human right, but is not strictly a necessity of life. Instead, education is considered a right because it provides for “the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms.” In much the same way, internet access is necessary for human dignity. This is not to say that access to the internet may never be denied to an individual. Indeed, rights such as liberty are suspended every day, but the suspension of human rights must be ordered by a court according to the provisions of the justice system.

You could say that Internet access is the method of facilitating the right to education, but neither of those rights exists, actually, and ending ignorance remains a struggle against power. Which is where rights come from: they are wrested from power through struggle, not deduced by logic and immediately applied.

So here you conclude by returning to the problems we have, of inequality and misuse of power. Your conclusion, in this context, seems to be that the solution to our problems lies in announcing that we have a fundamental human right not to have the problems anymore. The reader cannot be satisfied by that, and must feel, as I feel, that something has gone wrong with the essay to have wound up here. You need to avoid that appearance of tautology by focusing not on what we would call having solved our problems, but how we are actually to solve them.

It isn't necessarily that I think courts are such an amazing safeguard. One of the points I was trying to make is that internet access is a fundamental human right and therefore should be treated in the same way as other human rights. For other human rights to be taken away (ie liberty when someone is put in jail), court intervention is required. That's why I think removal of internet access should only be the result of a court's order. Whether courts are adequate safeguards for the protection of human rights overall is a separate, larger question. I would appreciate it if you have any suggestions for how I can make this point more clearly in my paper.

-- StephanieTrain - 15 Apr 2010

In that case, why do you think a court is such an amazing safeguard? The RIAA did a great job of proving that private actions for copyright infringement can work grave injustices. Furthermore, suing the most harmless end user infringers can be a profit maximizing strategy. See, Matthew Sag, Piracy: Twelve Year-Olds, Grandmothers, And Other Good Targets For the Recording Industry’s File Sharing Litigation, 4 NW. J. TECH. & INTELL. PROP. 133, 147, 154-55 (2006).

-- StephenClarke - 02 Apr 2010

Nikoloas, thank you for point out that interesting change in wording!

Stephen, I'm actually more concerned with the distinction between the two situations (ie when a private party strips the right to internet access and opposed to when a court does so). I think that there are situations in which internet access might arguably be stripped but that these circumstances should always be determined by a court.

-- StephanieTrain - 01 Apr 2010

Willful copyright infringement is a rarely prosecuted crime, but it is still a crime. We have become accustomed to ever-greater levels of civil enforcement against infringers, but criminal enforcement against infringers seems to remain infrequent. Viewed through the lens of U.S. copyright law, your paper really asks the question of whether private parties or prosecutors should be able to strip internet access away from people for copyright infringement. I doubt that is really the point you want to drive at, but the references in your introduction to stripping Internet access as a punishment for crimes raise the question. I think the deeper question you are driving at is whether copyright infringement is the kind of conduct that can justifiably be punished by stripping a person of Internet access. I think it can fairly be argued that Internet access is so important to the exercise of well-established rights that stripping access is a punishment that does not fit the “crime” of infringement.

-- StephenClarke - 30 Mar 2010

Hey Stephanie,

I enjoyed your essay. Indeed, I think that the argument that internet access should be perceived as a fundamental right is gaining momentum, as a reaction to the "three-strike" laws that are being drafted in some countries. You might also want to note that this view was also initially shared by the European Parliament in last year's debate on the reform of the European framework for electronic communications; it proposed an amendment to the legislation with the following wording: "No restriction may be imposed on the fundamental rights and freedoms of end-users, without a prior ruling by the judicial authorities, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, save when public security is threatened where the ruling may be subsequent." However, this amendment met strong opposition and it was finally adopted in a much more mild wording, in Directive 2009/136/EC ("This Directive neither mandates nor prohibits conditions, imposed by providers of publicly available electronic communications and services, limiting end-users’ access to, and/or use of, services and applications, where allowed under national law and in conformity with Community law, but lays down an obligation to provide information regarding such conditions. National measures regarding end-users’ access to, or use of, services and applications through elec­tronic communications networks shall respect the fundamental rights and freedoms of natural persons, including in relation to privacy and due process, as defined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.")

-- NikolaosVolanis - 24 Mar 2010

Thanks Brian! I fixed the typos that you pointed out and also cut down the word length. I just removed the block quote in the end in favor of quoting just one provision, because I'm not sure it added a whole lot to the essay.

The point you make about contractual remedies is interesting. Personally, I would hope that the solution is not to get to that point, which is why I argue that a court must issue a decision before internet access can be denied. Such intervention would I hope prevent abuse, though the claims that could be made after wrongful denial of access are interesting to consider.

I didn't address that provision of the DMCA because I was trying to limit my discussion to countries that have considered these proposals (and, as you pointed out, as I am already out of space!) but I do think that the article you cited is fascinating. Thanks for pointing it out!

-- StephanieTrain - 22 Mar 2010

I thought the essay made good points. Two resonated with me in particular: (a) that we don't need to increase the protective architecture of copyright law, and (b) that denial of internet access has a significant effect on folks. It seems that many of the laws in question just involve the termination of service from one ISP to a particular alleged repeat copyright infringer; that strikes me as a matter of contract law, and so while I agree that terminating service should perhaps involve some sort of appeal option you might consider saying more about that point.

The reason I agree that this basically contractual issue should perhaps have an appeal mechanism is because (a) with the uncertainty that surrounds fair use questions, it's sometimes hard to see when someone really is infringing, (b) rightsholders will often aggressively assert a user violated the law and unsophisticated (or sophisticated but lazy/risk-averse ISPs) could easily just take their word for it and boot you, and (c) in many locations, there are not realistic options if your ISP terminates your service, so in some sense the termination has a broader reach than the ISP-to-customer scenario suggests. I do think that the strongest points here are that there should be some remedies for people who are deemed to have "3 strikes" and are then cut off by their ISP.

I wonder if you think a breach of contract claim in that case is helpful? Or perhaps a tortious interference with contract claim if a rightsholder is falsely (or even maliciously) alleging copyright violation by the user. I suspect the ISP-customer service agreements are not pro-customer in such a situation, so probably not. And making the user sue to get back internet access is putting the burden in the wrong place for me. Do you think the market will keep the balance even - if ISPs terminate too often they'd lose users and so they will exercise restraint? I'm not sure the market has that power here, especially if the ISP is looking at e.g. a take-down notice from a rightsholder threatening to sue.

Lastly, you might consider mentioning the DMCA, section 512(i)(1)(A), since it relates to US law on repeat infringers and ISPs. There are a number of links online discussing its use, including this one from Chilling Effects. The DMCA, as noted in that article, presents an interesting quirk to the question you raise: assuming for a moment that we do have a right to internet access, do we have a right to access particular sites that are public (e.g. YouTube)? The DMCA repeat infringer provision pops up in the context of more than just AOL-type ISPs, since "service provider" gets a broad definition in parts of the DMCA.

Thanks for your thoughtful essay. I hope my comments are helpful and that you're having a good break.

Nice essay. Is it ready for comments from others or are you still working on it?

-- BrianS - 13 Mar 2010

Three-Strikes Laws in the Copyright Context

Reaction to Three-Strikes Laws

Internet as a Right?

The French Constitutional Council has hit upon a key issue with this statement. Much of the protest surrounding these various laws has dealt with concerns over the lack of court involvement, and it is clear that these laws have struck a nerve. This concern with court involvement speaks to a deeper issue about the relationship between expression and the internet. Along with France, Estonia, Finland and Greece have all made internet access a human right.

Conclusion

92A. Internet service provider must have policy for terminating accounts of repeat infringers

Three-Strikes Laws and The Human Condition: Is Access to the Internet a Right?

As the internet becomes an ever-larger part of daily life, the worldwide copyright industry has started a push for laws that require ISPs to deny internet access to copyright violators. Known as “three-strikes laws,” proposals for such measures have cropped up around the world and so have vehement objections to their implementation. This outcry, which has not arisen for other instances of internet access prohibitions, indicates the extent to which people believe that a court is necessary before internet access can be taken away. In other words, the fervent opposition to three-strikes laws demonstrates that internet access has come to be viewed as a human right, at least by a significant segment of the population.

Several countries have been using denial of internet access as a punishment for crimes already. In the United States, there’s the case of the former University of Texas student who was convicted for hacking into the school’s network. The punishment has also been explored in the US for individuals convicted of downloading child pornography. And in Singapore, an internet ban has been used as a punishment for a teenager convicted of Wi-Fi freeloading. However ridiculous or extreme these cases may be, they have one important factor in a common: a court ordered the imposition of an internet ban for a particular individual after it found him or her guilty of a crime.

The “three-strikes laws” that have been proposed by the copyright industry are very different. One of the first such laws to be introduced was in New Zealand, and included the following provision:

_92A. Internet service provider must have policy for terminating accounts of repeat infringers (1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer. (2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner._

Notably, this provision places the entire onus of discovering and punishing copyright infringers on the ISP and provides no guidance about standards of proof or about establishing an appeals process. The UK proposal, similar to the New Zealand law, would require ISPs to enforce the law, with the added twist that if an ISP neglec tots do so, it might be prosecuted itself. The French version of a “three-strikes law” is more detailed, and considered to be the toughest yet introduced in the world. It calls for a new administrative agency, which would receive complaints from rights holders and would pass them on to ISPs, and which would oversee an appeals process.

Opposition to these measures around the world has been loud and long. New Zealand faced an “internet blackout” during which protestors replaced their internet pages with a protest page denouncing the law. The New Zealand government decided to delay implementation of the law due to the pressure it faced and is currently working on amending the law.

The UK government has abandoned a formal three-strikes law approach and is instead exploring a compromise in which ISPs are still in charge of sending warning letters to copyright violators, but would not involve disconnection as a punishment. In France, opposition came not only from the internet community but also from the European Parliament and the French Constitutional Council. The Council stated in its ruling that “the internet is a fundamental human right that cannot be taken away by anything other than a court of law, only when guilt has been established there.”

The French Constitutional Counsel has hit upon a key issue with this statement. Much of the protest surrounding these various laws has dealt with concerns over the lack of court involvement, and it is clear that these laws have struck a nerve. This concern with court involvement speaks to a deeper issue about the relationship between expression and the internet. Along with France, Estonia, Finland and Greece have all made internet access a human right.

In this day and age a person prohibited from accessing the internet may not be able to hold down a well-paying job, or contribute meaningfully to public discourse. The internet has become so essential that it is almost impossible to imagine going an entire day without using it, as South Park has so sarcastically pointed out. Given that the internet has become so integral to our daily lives, it is logical to consider it a right. Not all human rights are bare necessities. For example, education has long been considered a human right, but is not strictly a necessity of life. Instead, education is considered a right because it provides for “the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms.” In much the same way, internet access is necessary for human dignity. This is not to say that access to the internet may never be denied to an individual. Indeed, rights such as liberty are suspended every day, but the suspension of human rights must be ordered by a court according to the provisions of the justice system.

If access to the internet is a right, how should such an obligation be interpreted? It might be to provide equal internet access to all, as some governments have undertaken. This may be a goal towards which more countries aim in the future. But, at the very least, such an obligation should prevent the government from detracting from the level of equality in internet access achieved at any given moment. Prohibiting certain people from accessing the internet contributes to greater inequality, though not all prohibitions of access should be treated equally. Denying internet access as a punishment for copyright violations, as distinct from as a punishment for crimes, seems especially problematic. If such measures were to go into effect, the copyright owners, who possess disproportionate speech capabilities already, would be able to dictate and push for further unequal access to speech without court intervention. More power does not need to be concentrated in the hands of the copyright industry. The recent proliferation of three-strikes laws can only undermine the freedom of expression. The vocal opposition to these laws, whether it stems from fear for the state of freedom of expression or from some more basic sense of need, indicates that internet access has achieved a certain level of credibility as a human right in and of itself.

-- StephanieTrain - 03 Mar 2010

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