Why €œThree Strikes€� Will Fail


Recently, I've been writing much about the threat of the “three strikes and you're out approach” to dealing with copyright infringement, culminating in a post last week about France's misguided enshrining of the idea in law.

The danger is that this will provoke a kind of domino effect, whereby media companies around the world will start saying: “well, France has it, why haven't we?” So, given that the “three strikes” idea looks like it is turning into reality, it's worth considering what the technical responses to it might be.

One is likely to be decidedly low-tech. The “three strikes” approach attempts to deal with sharing of media materials by monitoring what is downloaded and uploaded. So a trivial circumvention is to do everything offline.

Today you can buy a 1 Terabyte external hard disc for less than £100 – that's big enough to store well over a quarter of a million songs, and thousands of films. Bringing along such a hard disc to a party and swapping files is already taking place, and the “three strikes” laws will simply ensure that sales of high capacity discs will increase dramatically.

Slightly more sophisticated users will avoid problems by using Virtual Private Networks (VPNs). Since these are encrypted, it won't be possible for ISPs to inspect the packets as they pass through their sites. And you won't even need to be a technical whiz to set these up: new, easy-to-use offerings are bound to appear to fill the demand that the “three strikes” legislation will stoke.

Indeed, one has appeared already, from none other than The Pirate Bay, called IPREDator (a reference to IPRED, the “Intellectual Property Rights Enforcement Directive”, a particularly badly-drafted piece of work from the European Union):

IPREDator is a network service that makes people online more anonymous using a VPN. It costs about 5 EUR a month and we store no traffic data.

As people turn to swapping from hard discs and via VPNs, so the “three strikes” approach will prove less and less effective (assuming it is effective at all).

This, in its turn, will probably lead to calls from the media industry to ban VPNs/encryption, and for young people to be randomly stopped and searched for dodgy Terabyte drives.

And so the game of cat and mouse will go on, until one day people realise that propping up moribund business models through bad laws simply brings the law itself into disrepute – which actually threatens the fabric of society rather more than swapping files.