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".
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.
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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