There is no robust, objective evidence of the failure or success of the 3 strikes law that I’m aware of. With the first hearing under the law scheduled to be heard by the Copyright Tribunal next month, it could be argued that it’s too early to tell. However, according to the very knowledgeable Dr Rebecca Giblin of Monash University, the law is likely to end up as a failure. Earlier this month she published a paper On the (New) New Zealand Graduated Response Law (and Why It’s Unlikely to Achieve Its Aims) which “outlines a number of technical and practical reasons why it’s unlikely to achieve its aims.”
Rebecca is an expert in peer-to-peer file sharing, including authoring the book Code Wars, and a Board member of the Australian Digital Alliance (“Righting the copyright imbalance”). In this post, I take a look at a her paper. Quick answer: her reasoning and conclusions that the law will have “limited success” are sound but, in my opinion, misses a few key points.
Aims of the 3 strikes law
The paper identifies two broad aims of the law based on the parliamentary debate (Second and Third Reading):
1. Act as a low-cost, high volume alternative to traditional methods of deterring copyright enforcement.
2. To ‘provide appropriate protection for creative industries’ and to ensure that such industries ‘adapt to changing technologies and the changing market place for creative works’.
Considering the aims of the law carefully is important as concluding failure/success depends on being clear about what it was trying to achieve in the first place. The parliamentary debate and other papers associated with enacting the law in fact point to there being five aims of the law, to provide:
1. Appropriate protection for New Zealand creative industries so that they can continue to provide jobs for New Zealanders and continue to contribute to the economy.
2. Copyright owners with a low-cost, effective, simple, and fast-track additional channel for enforcement measures against illegal file-sharing.
3. An alternative to traditional methods of deterring copyright infringement.
4. Educate Internet users, in particular youth and their parents, about the rights of copyright owners and the issues relating to the sharing of copyright works via the Internet.
5. Effective limitation of ISP liability from illegal file-sharing by their customers (i.e. a safe harbour).
A sixth aim, to punish serious copyright infringers by suspending their Internet accounts, was kept on the books but has not yet come into force.
Not a sentient Internet
I can’t cover the aims of the law without taking a dig at the now infamous ‘Skynet’ statement of National MP Jonathan Young who said, “Do members remember The Terminator? I am sure they do… In that film a computer system called Skynet ruled the world. It was like the Internet today. The Internet creates so many opportunities, but also along with those opportunities comes the infringement of people’s rights. This legislation is about bringing some order to the chaos that surrounds the globe because of technology.”
No. The aim of the law wasn’t to stop the chaos caused by a sentient Skynet or the Internet.
However, to be fair to the MP, he was the only person in the parliamentary debate that quoted from what I consider to be the most relevant and important book relating to the impact of the Internet on the New Zealand creative industries- Yochai Benkler’s The Wealth of Networks. Unfortunately, he completely twisted the key messages of the book to favour support for the law change. While the ‘Skynet’ reference got the headlines, The Wealth of Networks quote should have shown MPs, even those supporting the law, didn’t really grasp the real issues in protecting New Zealand creative industries.
Whether or not the law is doomed to fail in achieving its aims as Dr Rebecca Giblin’s paper suggests will be the subject of
another the next post. [Update: the third and final post in the three part series has now been published.]