UN Disapproves of Three Strikes Digital Executions

I am not a very big fan of the Anti-Counterfeiting Trade Agreement (ACTA). In essence, the secret agreement looks like an attempt to institute a wide swath of changes related to intellectual property without all that pesky legislation, public comment, etc. This black cauldron has birthed all sorts of interesting horrors (dramatic much?) but perhaps the most terrifying is the specter of three-strikes internet termination policies.  Read more about this terror here, here, here, here, and here.

So my heart grew three sizes when I read that a UN report on Human Rights soundly denounced any automatic Internet termination plan (I'm looking in your direction HADOPI):

Beyond the national level, the Anti-Counterfeiting Trade Agreement (ACTA) has been proposed as a multilateral agreement to establish international standards on intellectual property rights enforcement. While the provisions to disconnect individuals from Internet access for violating the treaty have been removed from the final text of December 2010, the Special Rapporteur remains watchful about the treaty’s eventual implications for intermediary liability and the right to freedom of expression. . . . The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.

To be fair, the use of "disproportionate" is a bit strange here. If you can't ever cut off internet access, then why use proportional language. I agree that the language used doesn’t match up well with the concepts. Here, the backers of three-strikes laws are taking a utilitarian tact, arguing based on monetary loss or depressed creativity. In contrast, the opponents are discussing the issue in terms of fundamental rights. It could be that the UNHR is picking up the language of the Industry and forcing those terms on an otherwise purely rights-based argument. This could be an attempt to defend against the Entertainment Industry’s argument that stricter IP punishments are needed in the face of rampant piracy and habitual offenders. 

The report ends on a pleasing Falcon Punch, calling for the repeal of any existing IP laws "which permit users to be disconnected from Internet access." I doubt ACTA's drafters will be moved by this plea, but hey, a boy can dream. In the face of ACTA and the looming PROTECT Act ("We had to burn the Internet in order to save it"), we need all the help we can get.

Andrew Moshirnia is a recent graduate of Harvard Law School. He came perilously close to linking to a Falcon Punch remix, then thought better of it, then did it anyway. He posted an earlier verson of this post on justenrichment.com.

Last updated on June 22nd, 2011

   
 
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