Could U.S. copy France's three-strikes antipiracy law?

Update at 10:05 a.m. PDT: On Wednesday, France's Senate also passed the bill, according to the Associated Press.

The French National Assembly has passed an antipiracy bill that sets a very dangerous precedent.

The "Creation et Internet" bill which passed the lower house of France's parliament by a vote of 296 to 233, is a "three-strikes-you're-out" act that could suspend Internet access for up to a year to anyone caught three times downloading or sharing copyrighted files. The law would not need a trial or court order to be enforced.

The fact that Internet access could be suspended without a trial tempts me to joke that the law is "downright un-American" (it's also downright un-European), but that would be a bit too smug because it could happen here.

There have been proposals from some in the entertainment industry to enlist Internet service providers in the U.S. to use similar sanctions to punish alleged copyright violators.

Until late last year the Recording Industry Association of America's strategy for dealing with alleged copyright violators was to slap them with a lawsuit. But in December, it announced that it would abandon that practice in favor of working with service providers to apply pressure to customers accused of copyright violations.

Graduated response
Although it's hard to find online references to what exactly what sanctions the RIAA has in mind, CEO Mitch Bainwol, told a congressional committee in May 2008 that his organization is encouraging ISPs "to work with the content community to adopt effective marketplace solutions to digital copyright theft" and that the "RIAA and our member companies have been engaged in constructive discussions with a number of ISPs about ways to address the piracy problem, including mechanisms like graduated response policies...."

Graduated response is generally regarded as a euphemism for a series of warnings followed by sanctions including slowing down, limiting, suspending, or even terminating service.

There have been press reports that AT&T's Internet service division has agreed to participate in a graduated response program. But the company says that while it is taking some steps to curb piracy on its network, it has denied any intention of terminating or suspending service for people accused of copyright violations.

Verizon Communications, which is also a major Internet service provider, has repeatedly said that it will not participate in such a program.

Charter Communications, however, has said that it "reserves the right to suspend or terminate the accounts of repeat copyright infringers." And, if you read the terms of service or acceptable use policy of most ISPs, you'll probably find a clause that prohibits using the service to store, post or transmit content that constitutes an infringement of third-party intellectual property rights.

In December, RIAA president Cary Sherman provided some explanation of the organization's graduated response initiative in an interview with Ars Technica.

Can it happen here?
Gigi Sohn, president of digital-rights advocate Public Knowledge, worries that this can happen here.

"The recording industry and Hollywood have a lot of friends in Congress," she said in an interview. "Their aim is to get as many of these laws passed in other countries so that they can come to Congress and say 'others are doing it.'" Europe, she added, "is like a petri dish." She also says that major ISPs, including phone companies like AT&T and Verizon are (like cable companies) now in the business of providing TV service, which makes them dependent on the entertainment industry for programming.

I'm not arguing that we should ignore people who willfully violate the copyright law, especially if they are illegally making copyrighted works available to others. I'm personally offended by those who unjustly profit off of other people's labor, and I was once party to a legal proceeding and an eventual settlement against someone who repeatedly plagiarized my syndicated newspaper columns. I agree that copyright holders should have the right to defend their intellectual property but only in ways that are consistent with our (and many other countries') constitution and legal system.

What bothers me about the French legislation and those "voluntary" proposals that are floating around here in the United States is that they could impose a severe sanction without benefit of a trial.

Taking away someone's Internet access can result in denying them the ability to make a living, to study, to purchase travel, or to obtain health information. It can even limit their ability to express themselves, which makes it a possible First Amendment issue. For some people, it could be even more severe than a short jail sentence.

I'm certain that there situations where convicted criminals should be barred from the Internet for their crimes, but I don't want to leave an incredibly punitive decision like that to a company, an industry association, or a government bureaucracy. A sanction that harsh should only be made by a judge or jury after the accused gets a chance to confront the accuser and put up a defense.

This post has been adopted from a column that originally appeared in the Palo Alto Daily News.