Does The 'Three Strikes' Approach Work, In Any Sense? Here's The Evidence

from the just-the-facts dept

Last week we reported on the suspension of Hadopi's one and only suspension, as France moved away from using Internet disconnection as a punishment. That manifest failure of the scheme that pioneered the three strikes approach makes a new paper from the Australian scholar Rebecca Giblin, called "Evaluating graduated response", particularly timely. As its title suggests, this is a review of the three strikes approach in the light of the experiences in the five countries that have adopted it: France, New Zealand, Taiwan, South Korea and the UK -- even though the latter has still not put it into practice.

The paper begins with a review of those schemes, as well as of the two "voluntary" approaches adopted by the US and Ireland. This makes it probably the best single source for details of how all those implementations of the idea work, and is worth reading for that alone. But the real focus of this research lies elsewhere. As Giblin explains, her paper is not looking at important aspects of the three strikes approach such as lack of due process, privacy, transparency, accuracy and proportionality, because these have been addressed elsewhere. Instead, she says:

its focus is on identifying, synthesizing and evaluating the evidence of the effects of the various graduated response schemes in order to determine the extent to which they are achieving any of the copyright law's aims.
Or, to put it more simply: does three strikes work, in any sense?

The first issue she looks at is to what extent graduated response reduces copyright infringement. Most of her analysis concerns Hadopi, simply because we have far more information about it than about the other schemes around the world. Here's what Giblin found on this score:

every figure it cited in support of the claim that the French law reduces infringement was supplied by one or more organizations that is closely allied to the interests of major rightholders, and which, in several cases, has a strong and obvious vested interest in promoting graduated response. None of them appear to have been subjected to peer review or have made their full reports or methodologies available for public scrutiny.
It's the old story: research "proving" the efficacy of harsh enforcement measures turns out to be have been commissioned by the copyright companies, and usually comes without any methodology that can be examined in order to establish its trustworthiness. But Giblin has been able to bring together what few facts have been released about Hadopi, and comes up with some interesting results:
working from the information that has been made publicly available, this analysis demonstrates that, if you're going to take anything from the [Hadopi warning] notice volume data, it's that the amount of infringement committed between the issue of first and second notices might actually have increased.
In other words, far from decreasing illegal downloads, Hadopi seems to have led to an increase. As she summarizes:
France has been described as "very much the gold standard for graduated response public law". However, when the data is carefully considered, there is scant evidence that the law actually reduces infringement. Since the dearth of infringement actions in its first three years of operation cannot be explained by a reduction in infringement, the most likely remaining explanation is simply that it is not very well equipped to identify and process the most egregious repeat offenders.
Giblin then goes on to consider to what extent graduated response maximizes authorized uses. The point is that supporters of the three strikes approach often claim that it will push people to legal channels. In this section we meet the Danaher study, which purported to show Hadopi had a positive impact on iTunes sales in France. But as we noted last year, an alternative explanation is that the introduction of new iPhone models produced the observed peaks in iTunes sales -- something with which Giblin concurs:
the resulting graph demonstrates a far more powerful correlation between the iTunes sales and French users' Google searches for "iPhone" than for searches for "HADOPI".
And adds:
Even if there was some "Hadopi effect" as suggested by the Danaher study, there is no evidence of its replication or sustainment in the recorded music or audio-visual environments.
Giblin summarizes:
As this analysis has demonstrated, there’s little persuasive evidence showing a causal link between graduated response and increased legitimate usage.
The final question she addresses is to what extent graduated response promotes learning and culture by encouraging the creation and dissemination of creative materials. That's an issue, because you would hope that three strikes approaches would lead to more creativity, not just fewer unauthorized downloads. But as Giblin points out:
An under-recognized feature of many existing graduated responses is that their design ensures that not all content (or content owners) are treated equally.
That's hugely important for smaller countries that have brought in or are contemplating bringing in three strikes approaches, since it means that it may not do their local music industry much good. Here's what she observed happening in New Zealand, for example:
Every case has involved infringements of music performed by international artists such Beyoncé, Coldplay and Elton John. Not a single local New Zealand artist has featured. This can be at least partly explained by the fact that the biggest international artists are most likely to attract the most interest from illegal downloaders, and thus have a greater chance of detection. However, the clear message is that infringers are only at risk if they step on the toes of powerful international rightholders. Other content owners and creators, who may also be facing serious challenges from widespread infringement, effectively receive less protection than the majors.
But overall, Giblin finds that the three strikes approach has been so ineffectual that these structural biases probably don't matter much:
given the lack of evidence that graduated response does anything to reduce infringement or increase legitimate markets, these structural biases in favor of Big Content may have little or no effect in practice.
She concludes with some key points:
International regulators considering implementation of new graduated responses must be surer than ever to carefully consider the policy aims they wish to achieve, and to evaluate whether the proposals on the table would actually help to do so. And regulators who have already enacted graduated response laws should take a close look at the evidence and consider whether it is desirable to maintain them in their current forms. If not, perhaps they should follow the French lead and rollback or repeal. Much can be done to design copyright law in ways that will help achieve desired aims. But the graduated responses in place right now overwhelmingly fail to do so.
This is an important piece of work, because for the first time it gathers a wide range of evidence on whether three strikes actually achieves any of its possible aims. As such, it should be indispensable reading for policy-makers contemplating taking this route, not least because the well-documented failure of the costly French Hadopi scheme must call into question whether it is even worth considering at all.

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Reader Comments (rss)

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  1.  
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    Ninja (profile), Sep 17th, 2013 @ 7:55am

    We should stop associating HADOPI to France as a whole. It's a result of Sarkozy pure and simple. Maybe the French could be "blamed" for putting that piece of garbage in the place he was.

     

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  2.  
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    Anonymous Coward, Sep 17th, 2013 @ 9:44am

    Oooh, this is gonna be good.

    * grabs popcorn *

    * hits f5 repeatedly *

     

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  3. This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Sep 17th, 2013 @ 9:53am

    Merely a matter of tuning, then.

    "not very well equipped to identify and process the most egregious repeat offenders." -- The minion seems here to agree and to assert that computers can't track and collate networks so well as police do for motor vehicle traffic. That's clearly just wishful thinking: "the most egregious repeat offenders" CAN be caught, and should be.

    "Much can be done to design copyright law in ways that will help achieve desired aims." -- So, say how! -- We must first convince young people that stealing is stealing, that $100 million movies are definitely not yours to "share" just because you have gadgets. It's difficult to explain the complexities of modern industrial finance and production to people who just want mindless entertainment for free, right NOW.

    "But the graduated responses in place right now overwhelmingly fail to do so." -- That's almost arguing for draconian. As I'm not going to read the paper, I'll just repeat my fairly safely assumed assertion that more draconian would eventually work. Not that I'm arguing for it: this is just a think piece, kids.

     

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  4.  
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    Anonymous Coward, Sep 17th, 2013 @ 10:01am

    Re: Merely a matter of tuning, then.

    no, what it actually means, is:

    Stop fucking spending public money on policing your shit when that money can be better spent elsewhere.

     

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  5.  
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    Ninja (profile), Sep 17th, 2013 @ 10:03am

    Re: Merely a matter of tuning, then.

    Bla bla, bla bla bla bla bla. - said ootb in an incomprehensible foamy stream of words.

    We must first convince young people that stealing is stealing

    You can't convince people of something that is fundamentally wrong and, worse, socially accepted. And that's why the MAFIAA will eventually die and be replaced.

    It's difficult to explain the complexities of modern industrial finance and production to people who just want mindless entertainment for free, right NOW.

    It's difficult to explain the complexities of social interactions and customs to people who just feel entitled to money regardless of their crappy efforts to make them worth said money.

    I'll just repeat my fairly safely assumed assertion that more draconian would eventually work

    Years, and I can say almost decades, of ramping up efforts and more draconian laws have done nothing to even diminish file sharing now. It simply doesn't work. And trying it over and over again will not make a failure work when it's conceptually flawed. No matter how much you try to save the buggy whip industry, no amount of legislation will help a failed business.

     

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  6.  
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    That One Guy (profile), Sep 17th, 2013 @ 10:12am

    Re: Merely a matter of tuning, then.

    North Korea essentially had the death penalty for file sharers, and it still didn't stop them. Meanwhile anytime a service like Netflix enters the picture in a country piracy rates plummet.

    Given these two pieces of information, it's abundantly clear, if you want to reduce piracy, the stick is useless, go for the carrot.

     

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  7.  
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    Anonymous Coward, Sep 17th, 2013 @ 10:17am

    Re: Merely a matter of tuning, then.

    "It's difficult to explain the complexities of modern industrial finance and production to people who just want mindless entertainment for free, right NOW."

    If you have to spend an hour explaining to people why something is illegal, then you will never be able to enforce the law. Especially if the law makes simple, socially acceptable acts - like uploading a film of a baby dancing to a popular song, or smoking pot - illegal.

    The ball is on your side. Society has informally and almost overwhelmingly decided that certain things are no longer illegal or immoral. It is up to you to come up with a reasonable explanation why they should be.

    Your move.

    "I'll just repeat my fairly safely assumed assertion that more draconian would eventually work."

    Are you familiar with human history?

    Repression breeds unrest...and the graveyard of kings and tyrants is littered with victims of civil unrest.

     

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  8.  
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    Anonymous Coward, Sep 17th, 2013 @ 10:17am

    Re: Merely a matter of tuning, then.

    I get it...so if its proven that 3 strikes doesn't work, just throw more money at it because *something* is better than nothing?

    That's fine with me. As long as it's YOUR money. Personally, I'd like you MPAA/RIAA sympathizers to start putting up YOUR OWN CASH for this ineffective bullshit. After all, preserving your outdated business model is your own financial responsibility.

     

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  9.  
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    Rikuo (profile), Sep 17th, 2013 @ 10:19am

    Re: Merely a matter of tuning, then.

    Let me guess, you just ignore the fact that copyright once had the most draconian punishment possible applied to it at one point: execution. And that failed to stop anyone from copying. What are you going to cry for now? Banishment to hell?

     

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  10.  
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    DannyB (profile), Sep 17th, 2013 @ 10:21am

    Three Strikes WORKS

    Three Strikes does work. It works as a great source of comedy. However it is eclipsed by Prenda.

     

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  11.  
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    Anonymous Coward, Sep 17th, 2013 @ 10:26am

    Tom Giovanetti does a good job dismantling this clearly biased "study": http://www.ipi.org/policy_blog/detail/about-that-graduated-response-doesnt-work-paper

     

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  12.  
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    DannyB (profile), Sep 17th, 2013 @ 10:27am

    Re: Re: Merely a matter of tuning, then.

    I think what would work is to put labels on music that explain that home taping of this phonograph record onto cassette tapes is an infringement of copyright that could subject you to civil and criminal penalties.

    Now that would work!

    No, really.

     

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  13.  
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    Anonymous Coward, Sep 17th, 2013 @ 10:35am

    Theft is the the act of depriving someone of their physical property. Theft is covered under common law.

    Copying is the act of manufacturing a second object that is identical to the original object. Copying is not covered under common law.

    That is why copying is covered covered under an entirely separate section of law, called copyright law.

    Therefore, to call copying an act of theft is factually wrong. As defined by the common law.

     

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  14.  
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    S. T. Stone, Sep 17th, 2013 @ 10:38am

    Re: Merely a matter of tuning, then.

    "the most egregious repeat offenders" CAN be caught, and should be

    And what will happen when those repeat offenders get caught? Do you think piracy will go away?

    Any prohibition creates an underground. If you break through to that underground and prohibit it, that prohibition creates a new underground that becomes harder to find. Any attempt to curb piracy through arrests and lawsuits and new copyright laws will create a harder-to-find underground of filesharing.

    Better business models, better copyright laws (ones that took the public interest into account), and a better economy would ‘fix’ a good chunk of the piracy problem on their own.

    So, say how!

    Why should she have to come up with an entire plan to alter, change, and otherwise rewrite copyright from the ground up?

    This study offers a look at policies that, when examined closely, don’t work at all — not at copyright itself.

    But if you want a good idea of how to change copyright to make it more in-line with what the technology of today allows, I’ll give you a few ideas:

    • A single global copyright to get around the asinine problem of dealing with international markets and the red tape of international copyrights
    • A return to limited copyright terms (let’s say ten years) and, at most, two extensions on said term; if you publish a book at thirty and renew your copyright twice, that gives you thirty years to make your bank before your work becomes public domain (for corporately-owned/work-for-hire copyrights, the term goes for the full thirty no matter what)
    • A nullification of the entire idea of post-death copyright, which basically allows an estate to control and lock up culture they may have had no hand whatsoever in producing; when an artist dies, all of their work goes into the public domain, no questions asked
    • Fair Use becomes a right, not a defense
    • No prosecution/lawsuits over non-commercial ‘private use’ infringement (e.g. I download an album to ‘try before I buy’)

    I suspect you’ll take issue with all of those ideas for one reason or another, but at least I have ideas on how to slay the beast. Aside from letting the beast overrun the world, what ideas do you have that could shift the balance of copyright back towards benefitting the general public instead of the major media conglomerates?

    We must first convince young people that stealing is stealing, that $100 million movies are definitely not yours to "share" just because you have gadgets.

    1.) Copying is not theft.

    2.) If the technology allows for the easy transmission/sharing/etc. of those hundred-million-dollar movies, maybe the media conglomerates should convince young people to use legal avenues that have an equal selection to the average torrent site, equal quality videos, more convenience, and a fair price. You don’t win hearts by shooting them.

    They could also try making better movies for lower price tags, but we all know that won’t happen outside of the independent circuit.

    It's difficult to explain the complexities of modern industrial finance and production to people who just want mindless entertainment for free, right NOW.

    It’s just as difficult to explain dirty tricks such as Hollywood Accounting to people who do want to support the artists behind their favorite movies/music/etc.

    I'm not going to read the paper

    I come to your comments to get a glimpse of the ‘other side’ of my argument, and every so often, I do find myself agreeing with you. But even if I disagree with you on a fundamental basis, I still read your entire comment and give you the benefit of the doubt.

    When you openly admit that you can’t bother to do the same and give your positions — wait, strike that, reverse it — your beliefs some critical thought, it shatters what little credibility you have left around here.

    more draconian would eventually work

    No, it wouldn’t. People generally think of the torture of a prisoner as one of the most draconian acts imaginable. Torture under the guise of information gathering often results in false information due to the tortured prisoner saying whatever they feel they must say to escape the torture. Relying on more draconian methods of torture would likely yield even worse results — and that doesn’t even include the death of the prisoner.

    If we took copyright to its fullest, most draconian extent, it would clearly sit in defiance of the First Amendment and kill off culture faster than a Family Guy cutaway joke kills humor. ‘More draconian’ will never work in the long run.

    And now, ladies and gentlemen, Mr. Conway Twitty.

     

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  15.  
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    Anonymous Coward, Sep 17th, 2013 @ 10:42am

    yet again in reports here concerning the '3 strikes' law in EU, there is no mention that terminating someone from being able to connect to the Internet, is against EU law! that is fact and applies to the whole of the EU. dont believe me? check out the reports written by Rik Falkvinge.
    the reason for not including any information on the effectiveness of these laws is because, as the report states, they are completely ineffectual. there is no way that the industries are going to admit to that, particularly when they keep trying to get new laws introduced and dictate the direction of all the so-called 'Trade Agreements' that they are included in when discussions are underway but no one from the public side is allowed to attend, let alone be a part of! it also shows that the interest for this and other measures is purely from the major labels, over international stars. as with the majority of more local artists and labels, there is virtually no interest shown by the major labels. to me it proves that the interest is, in actual fact, in the amount of money that is contributed by a 'big name' artist as opposed to a less famous one. the emphasis being not on the artist as the labels keep prompting politicians and governments to take notice of but on the amount of money the labels attribute to their bank accounts from the different 'classes' of artist. in other words, if the labels were worried about the artists as they keep claiming, it shouldn't/wouldn't matter how much the artists were contributing individually, it should just be about 'protecting' the artists, not their individual worth!

     

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  16.  
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    Jeff, Sep 17th, 2013 @ 10:48am

    Does it work? That is the question.

    In fame of Zero Puncuation...

    Does The 'Three Strikes' Approach Work, In Any Sense? Short answer, no.

    Long answer? Noooooooooooooooo - ooooooooooooooooo - ooooooooooooooooo - ooooooooooooooooo - ooooooooooooooooo - ooooooooooooooooo.

     

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  17.  
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    Anonymous Coward, Sep 17th, 2013 @ 10:56am

    Re:

    So, the guy from IPI isn't biased either?

     

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  18.  
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    Anonymous Coward, Sep 17th, 2013 @ 10:56am

    You know, I really don't care about this copyright thing. My issue is with the way business and politics have become bedfellows to turn it into some sort of insane monster out to slay any who would dare share culture. The whole copyright issue has become on snarled ball of shit. It no longer does what was supposed to do.

    It's been hijacked by monied interests into something that is as alien to a person as the North Star is. Simply for the Average Joe, there is no inherent belief in obeying what is written. For any law to be truly effective, it must be one that people believe is right. Jacking up penalties and punishments aren't effective or there would be no need for punishments for murder. No I'm not saying murder is right. I'm saying that the death penalty does not stop murder.

    The punishments and the expectations of copyright law as it now exists for Average Joe is something to take delight in breaking. Used to be it was sticking it to the man. Now since people have been stuck to so much, it's returning the favor. No amount of changing laws will change this. It won't bring people back to the market. What the industry should have went for was good will. It went for cut throat money instead.

    It has received what it sowed.

     

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  19.  
    identicon
    Anonymous Coward, Sep 17th, 2013 @ 10:59am

    Re: Merely a matter of tuning, then.

    "the most egregious repeat offenders" CAN be caught, and should be.

    Study after study show these people are also the best customers. In what would does it make sense to attack your best customers?

     

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  20.  
    identicon
    Anonymous Coward, Sep 17th, 2013 @ 11:00am

    Re:

    If you think that 10 paragraphs of ad hominem followed by 2-3 paragraphs of vague "nuh-uhs!" and claims of evidence with no citations is a "good job."

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Anonymous Coward, Sep 17th, 2013 @ 11:08am

    Re: Re: Merely a matter of tuning, then.

    It's difficult to explain the complexities of modern industrial finance and production to people who just want mindless entertainment for free, right NOW.

    This is largely irrelevant for music and ebooks, as production consists of posting a file to a server. A good editor or producer has value, but they could sell their services rather than relying on gaining the copyright. These days it is easy for an author or musicians to develop an audience before looking for professional support. This give them a better chance of developing their own style, rather than being put in a box by a professional editor or producer.

     

    reply to this | link to this | view in thread ]

  22.  
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    That One Guy (profile), Sep 17th, 2013 @ 11:11am

    Re: Re: Merely a matter of tuning, then.

    The one where 'making more money' isn't the real aim, but 'controlling or destroying the competition' is.

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Anonymous Coward, Sep 17th, 2013 @ 11:12am

    Re: Merely a matter of tuning, then.

    > I'll just repeat my fairly safely assumed assertion that more draconian would eventually work. Not that I'm arguing for it: this is just a think piece, kids.

    That's never worked, nor your assumption that "We must first convince young people that stealing is stealing," considering that no theft is taking place, only a copy is being made.

    If you actually managed to do any form of research, rather than spouting off bullshit rhetoric, you'd understand that the only way to compete with piracy, is to offer affordable competing services that are easier to use. Source: Steam Gaming Platform / Netflix.

     

    reply to this | link to this | view in thread ]

  24.  
    identicon
    Anonymous Coward, Sep 17th, 2013 @ 11:48am

    Re: Re: Merely a matter of tuning, then.

    That is too true in all areas of life.

    The way to teach children good and bad is positive reinforcement and not harsh punishment.

     

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  25.  
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    Anonymous Coward, Sep 17th, 2013 @ 11:52am

    Re: Re: Merely a matter of tuning, then.

    I think a face to face conversation with OOTB is possibly the worst punishment known to man!

     

    reply to this | link to this | view in thread ]

  26.  
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    Anonymous Coward, Sep 17th, 2013 @ 12:03pm

    Re: Re: Re: Merely a matter of tuning, then.

    Dude?! You're fucking sick to even suggest that... It's overkill I tell you!

    I'd take an anal chainsaw raping over OOTB.

     

    reply to this | link to this | view in thread ]

  27.  
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    Memphis Slim San, Sep 17th, 2013 @ 12:04pm

    Re:

    Same guy wrote a piece supporting Intellectual Ventures... nuf said.

     

    reply to this | link to this | view in thread ]

  28.  
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    John Fenderson (profile), Sep 17th, 2013 @ 12:12pm

    Re: Re: Re: Merely a matter of tuning, then.

    But if you want to train someone to be blindly obedient, you need to use a stick. And you need to use it in an arbitrary and unpredictable way, so that the subject of your program can't accurately determine what will trigger the punishment and what won't.

    Wait, that sounds familiar...

     

    reply to this | link to this | view in thread ]

  29.  
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    John Fenderson (profile), Sep 17th, 2013 @ 12:14pm

    Re:

    I agree. Copyright as it exists now is a symptom, not the actual disease.

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Anonymous Coward, Sep 17th, 2013 @ 12:19pm

    Re:

    Tom Giovanetti does a good job dismantling this clearly biased "study":

    That's not a dismantling. That's a "this woman hangs around with people I don't like."

     

    reply to this | link to this | view in thread ]

  31.  
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    Ferel (profile), Sep 17th, 2013 @ 12:35pm

    Re: Merely a matter of tuning, then.

    The one in need of tuning is you, blue. A _lot_ of tuning.

     

    reply to this | link to this | view in thread ]

  32.  
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    Anonymous Coward, Sep 17th, 2013 @ 2:46pm

    Re: Merely a matter of tuning, then.

    Sorry little boy blue, you can't drown out facts with vague sophistries like 'stealing is stealing.' It failed. Get over it. Move on with your life.

     

    reply to this | link to this | view in thread ]

  33.  
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    Anonymous Coward, Sep 17th, 2013 @ 2:53pm

    Re:

    If by 'dismantling' you mean 'making a fool of himself by putting up a wall of ad homs' then sure.

     

    reply to this | link to this | view in thread ]

  34.  
    identicon
    Anonymous Coward, Sep 17th, 2013 @ 2:56pm

    Re: Re:

    Followed by 3 more paragraphs of ad hominem at the end.

     

    reply to this | link to this | view in thread ]

  35.  
    identicon
    Anonymous Coward, Sep 17th, 2013 @ 5:16pm

    Re: Re: Re: Re: Merely a matter of tuning, then.

    I'd take anal raping OOTB with a chainsaw...

     

    reply to this | link to this | view in thread ]

  36.  
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    Anonymous Coward, Sep 17th, 2013 @ 5:19pm

    Let's review 3 strikes in France:

    - Sent out a fuckton of letters.
    - Caught one person.
    - Proved said person wasn't the guy they were after.
    - Sued him anyway.
    - New government threatened to cut funding.
    - Managed to send out more letters despite reduced resources, meaning either they were purposefully not sending out letters before or they were grossly incompetent at doing so.
    - Punishment gets waived anyway.

    Only the likes of out_of_the_jackass could support this much fail.

    out_of_the_blue just hates it when due process is enforced.

     

    reply to this | link to this | view in thread ]

  37.  
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    techflaws (profile), Sep 17th, 2013 @ 10:44pm

    Re: Merely a matter of tuning, then.

    As I'm not going to read the paper, I'll just repeat my fairly safely assumed assertion that more draconian would eventually work.

    Exhibit A: The war on drugs. Thanks for playing.

     

    reply to this | link to this | view in thread ]

  38.  
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    Sheogorath (profile), Sep 23rd, 2013 @ 2:57am

    Re: Re: Merely a matter of tuning, then.

    Any attempt to curb piracy through arrests and lawsuits and new copyright laws will create a harder-to-find underground of filesharing.
    Or lead to greater confusion as in the case of someone I know who once got caught and had to pay a fine, and who now believes that if you pay for media you never infringe copyright, and you always infringe if you don't. I've tried to explain to her that my books from Project Gutenberg aren't infringing because they belong to me already, just as they belong to everybody, and my copy of 'Download This Song' by MC Lars is A-OK because I downloaded it for free with the artist's direct permission, but she still thinks I broke the law because she doesn't understand that copyright infringement only occurs where copying takes place without permission where it's required, whether or not the end user has made a payment for their copy.

     

    reply to this | link to this | view in thread ]


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