The Graduated Response – sometimes referred to as the “Three Strikes” approach – is a response to copyright infringement on the Internet. Right holders have proposed that Internet Service Providers supplying access to the Internet should exercise practical remedies against infringement based on their control of the subscriber’s connection. This concept has proved controversial with many ISPs and Internet commentators. However, it is being implemented in a number of countries, sometimes pursuant to a statutory framework.
Under a Graduated Response system, when a computer operating at a particular Internet Protocol address is detected making available a copyright file without the right holder’s consent, the ISP notifies the subscriber of the alleged infringement of copyright, warning of possible sanctions. If infringements continue to be detected at IP addresses allocated to the particular subscriber, further warnings are sent to him. After a defined number of warnings, the ISP applies some kind of practical sanction to the subscriber so as to prevent or discourage continued infringement using the connection. In its classic formulation, the degree of sanction escalates with the detection of successive infringements.
The sanction can consist of the blocking of traffic using certain Internet protocols (such as specific peer-to-peer systems, such as BitTorrent), the slowing, suspension or cancellation of the subscriber’s Internet access or the application of more sophisticated forms of technical intervention, such as filtering. Of course, technical interventions, such as traffic blocking, can be applied outside a Graduated Response system.
In practice, Graduated Response systems as currently implemented involve a legal or administrative consequence, rather than an immediate practical sanction, such as suspension of access. These qualified systems are the result of opposition to the pure Graduated Response concept, and represent an attempt to interpose a regulator or judge between the alleged infringer and the imposition of the stipulated sanction.
The Graduated Response has provoked controversy around the world. In an opinion of 5 June 2010, published of his own accord, Peter Hustinx, European Data Protection Supervisor, attacked “three strikes schemes” as amounting to an unjusitified limitation of fundamental rights. In a report of 16 May 2011 to the Human Rights Council of the United Nations, Special Rapporteur Frank La Rue, expressed himself to be “alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights. This also includes legislation based on the concept of ‘graduated response’, which imposes a series of penalties on copyright infringers that could lead to suspension of Internet service, such as the so-called “three strikes-law” in France and the Digital Economy Act 2010 of the United Kingdom” (A/HRC/17/27, at paragraph 49).
Despite opposition from pressure groups and vigorous political lobbying against it, the concept is being tested in various jurisdictions. However, there are as yet only limited data as to its effectiveness in reducing online infringement.