Long-time readers will remember the appalling way in which the UK's Digital Economy Act was brought in – with no research, no debate, and no democracy. At its heart lies the infamous "three strikes" idea: if you are alleged – not proved, but merely alleged – to have shared files online on three occasions you will be subject to some punishment. Originally that was cutting off your hand, er, your Internet connection, but as the discussions over implementing this unjust and punitive law have dragged on, it's become less clear how it will actually work.
Fans of this disproportionate approach like to point to France, which actually came up with the idea in the first place (and you thought it was a civilised country), as an example to follow. Actually, France's experience with the three-strikes law – known there as "Hadopi" after the body that overseas it – shows that it has been an unmitigated disaster.
Even laughably transparent attempts to sex up some statistics on the dissuasive effect of three strikes, couldn't hide the fact that Hadopi's first victim turned out to be innocent, but was convicted anyway. More recently, we have evidence that the main effect of the Hadopi law has been to move people away from P2P systems, where they can be monitored, to streaming and locker sites, where they can't.
In fact, even Hadopi seems to have recognised this, and has commissioned a report on how it might tackle them [.pdf]. It's full of extremely bad and disproportionate ideas, but I wanted to highlight one in particular for this blog. Here's the relevant section, which explores the various ways filtering could be imposed on the hapless French population:
The software that provides the Net surfer with passage from one server to another or access to various resources on the Web, could also play a role. From a technical point of view, filtering might be implemented through the installation of a module on the user's system (a plug-in). [But] the user could then change the software, or not install the module, which would limit the effectiveness of this solution. Filtering implemented at the operating system level could in this respect appear more effective, because it would be built-in to the computer. Moreover, there would be fewer actors that would need mobilising, although they would be foreign companies, which raises the issue of voluntary contributions by industry players to French regulatory efforts.
Leaving aside the issue of what Microsoft or Apple might think and do here, this paragraph shows a hilarious ignorance of how open source works – the idea that the French government could go to companies like Canonical or Red Hat and ask them to build automatic filtering into their products for France. Even if they were forced by law to comply, it would be pointless: people could simply strip the filtering module out of the open source code. Or, more likely, they'd download an ordinary distro from elsewhere.
If the French authorities want to continue down this insane road of attempting to filter everybody's connection at the operating system level, they would have to make free software illegal, and also to block all connections to sites offering it around the world. Clearly, this way lies madness, and shows why the whole three-strikes approach, and the idea that you can stop people from downloading unauthorised copies from the Internet, is doomed to failure.
It is also completely unnecessary. Alongside the technical illiteracy that the Hadopi report displays, it also daft from an economic viewpoint. After all, the current proposals are trying to stop people from using data lockers and streaming sites. These differ from most P2P systems in that people generally pay to use them. This proves – contrary to the copyright industry's mantra – that even people who are downloading unauthorised copies are willing to pay to access that material.
This, in its turn, shows that the problem of piracy really comes down to pricing: if the recording and film industries priced their products more reasonably – at roughly the level that people pay to access streaming and locker sites, say – then people would most likely switch, since they would be obtaining material from official, rather than unofficial sources. Indeed, we already have evidence of this: when authorised streaming services were launched in Scandinavia, the number of people downloading illegally was halved. And no wonder: often people only resort to unauthorised downloads because the copyright industries refuse to make the material available at a reasonable price, in a suitable format, or at all.
This is why the three-strikes edifice is a complete waste of money. Moreover, it will never work, because there are always ways to circumvent blocks and filtering measures if people are determined enough. Meanwhile, the collateral damage to everybody's civil liberties in terms of the surveillance that is brought in, and the move to a "guilty until proven innocent" regime, is enormous.
It is truly scandalous that instead of telling the copyright industry to start serving customers properly, politicians in the UK and elsewhere have chosen to bring in illiberal, punitive laws that are designed to shore up ancient intellectual monopolies meant for an age of analogue scarcity, not today's digital abundance.