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Public Knowledge has written (and unfortunately will probably continue to write) a great deal about the problems with "Three Strikes." Three Strikes is the policy pushed by some content rightsholders and ISPs whereby ISPs cut off users when rightsholders accuse users of illegally downloading content. History has shown that rightsholders are not overly concerned with casting a wide net for copyright infringers, and that users have limited recourse to challenge a false accusation. The story of Cathi “Cat” Paradiso, is another example of how these policies can go horribly wrong. It is also an opportunity to reconsider the term “Three Strikes.”
Paradiso’s story, unfortunately, will sound familiar to just about anyone who is aware of Three Strikes. The 53-year-old grandmother works from home as a technical recruiter – as she pointed out, her livelihood depends on her ISP’s reliability. In this case, her ISP is Qwest. One day she got a call from her ISP informing her that her Internet service was being suspended. She was told she illegally downloaded films and TV shows like Zombieland and South Park.
Even though Paradiso insisted to her ISP that she had no idea what they were talking about, it was not until the press started asking questions (in this case Greg Sandoval at CNET) that Qwest actually investigated Paradiso’s claims of innocence. Upon investigation it turned out that Paradiso, just like 12 year old girls, dead people who hated computers when they were alive, 66 year old ‘computer neophytes’, and people in hospitals before her, was not responsible for the downloading.
It would be easy to use this case as an example of why Three Strikes, with its lack of due process and general opacity, is a horrible idea. In fact, it is an example of why Three Strikes, with its lack of due process and general opacity, is a horrible idea. But that’s not all.
“Three Strikes” is a Misnomer
In this case, as in so many others, Three Strikes is a misnomer. First of all, Paradiso claims that she never received any letters or emails alerting her that she had been accused of illegal downloading. That means that she didn’t even get three strikes. MPAA/RIAA favorite “Graduated Response” is inappropriate as well. There was just one response: you are about to be suspended. That can hardly be called graduated.
Three Strikes is not just a misnomer because the number of strikes is wrong. It is also a misnomer because of the consequences it implies. In baseball, when you strike out the game goes on. You will probably get another chance to bat. You also get to keep playing in the field.
That is not what happens when your ISP cuts off your Internet. In many cases, consumers only have one choice of broadband provider. Even if customers have more than one choice, this sentence should stand as a stark warning:
Paradiso said she was also told that she would have a hard time acquiring new service as the other ISPs in the area would know her name and what she did.
Today, when you can use a broadband Internet connection to work from home, look for a job, register to vote, or schedule a doctor’s appointment, having your Internet suspended is not the same as being “out.” Having your Internet suspended is being exiled.
No One Should be Exiled
You will need to go to Harold for erudite examples of exile. From me, you get 1995 Sylvester Stallone vehicle Judge Dredd. In Judge Dredd, Judge Dredd is wrongfully accused of murder and is exiled into the vast wasteland beyond the walls of Mega City. Believe it or not, the experience of Judge Dredd provides insight into cutting off people’s Internet.
First, even Judge Dredd gets a hearing with an opportunity to challenge the evidence of his accusers before being punished. Any policy that results in someone getting suspended from the Internet should at least strive to the due process standard granted to Judge Dredd.
Second, Judge Dredd is madness. When we are considering a policy that can be compared to Judge Dredd, it is time to take a step back. As I pointed out above and in the past, the Internet is more than forums discussing cats. It is critical civic and cultural life. Permanently cutting people off from the Internet is something that arguably should never happen. At a minimum it should require some level of real due process.
After all, I could use the phone to commit any number of crimes and no one would suggest that I be permanently cut off from phone service. I could use a phone to perpetrate massive financial fraud. I could use a phone to coordinate the robbery of a warehouse. I could even use a phone to call in a hit on a rival. In each of these cases, when (or if) I got out of jail, it is unlikely that the phone company would refuse to connect me.
Unlike Mega City, or Verona, or Thebes, we don’t exile people. We do put them in jail or fine them, but we do not cast them out of our city into the wilderness. Fortunately for rightsholders, people who violate copyright can already be thrown in jail or fined (after being granted due process, of course).
What is happening right now, with ISPs selectively implementing programs that kick people off of the Internet when rightsholders ask them to is unjust. The idea of exiling them without due process makes about as much sense as Judge Dredd 2.