In the early 1990s, California adopted a controversial law on penalties for repeat offenders. The law model, which became known as “three strikes and you’re out”, was applied to the culprit after the third offence, with sentences up to life imprisonment. In the USA, where criminal law only seems to go one way – to show that politicians are ”tough on crime” – it is recognised today, however, that the “three strikes and you’re out” model leads, in many cases, to criminal sanctions that are totally disproportionate to the crime committed.

Fortunately, in Europe, we don’t use the “three strikes and you’re out” model in criminal law. Whenever the “three strikes and you’re out” concept has been mentioned, it has been associated with the attempts by various organisations to formulate an approach to combatting internet piracy. According to the legislation proposed by these organisations, an internet user may be deprived of access to the internet by an ISP if he has already been served with two warnings to stop illegal internet piracy.

Although you probably cannot claim the right to have an internet connection – either via a public computer in a library or in a private home – is a right protected under freedom of communication in the European Convention on Human Rights, Article 10. Many – including myself – believe that the ability for a citizen to exchange information between the individual and the many, in a modern information-based society that relies heavily on digital data exchange, is probably one of the most important rights to be enshrined in the constitution of an open and democratic society.

Any attempt to prevent or impede internet access should be viewed with great skepticism, and such a restriction should only be pursued where there are very compelling arguments to justify it. The benefits to society delivered by such restrictions should therefore clearly be proved as probable, if not documented outright, so as to be weighed against the obvious disadvantages.

Major international rights groups that organise and lobby for the economic interests behind the production and distribution of movies and music, and their Danish sister organisations, have long been trying to prevent what they call internet piracy (and what others, in particularly lawyers, would rightly call intellectual property violations).

Regardless of whether the level of piracy is as widespread as is alleged by the right holders, and whether the economic consequences – and particularly the losses suffered by the rights holders –are as significant as has been alleged (there are indications that this is not the case), it is beyond doubt that intellectual property violations are rife on the internet because many users do indeed upload and download copyrighted material without permission  from the copyright holders. The copyright holders are obviously well within their rights to call upon the powers that the law has assigned to them.

Over the last 10 to 15 years, the clear strategy for rights holders, in their efforts to prevent piracy, has been to sue more or less everyone they could think of, which meant not only the users they suspected of illegal file sharing, but also the middlemen, in the form of file-sharing services, who were considered ”partners in crime”.

This strategy has essentially proven entirely unsuccessful. The costs of this failed strategy have affected both internet users and technology companies (file-sharing services), which, rightly or wrongly, have been open to lawsuits, and the rights holders and their organisations, when law suits have often led to bad publicity for the rights organisations.

The alleged extent of illegal file sharing and other intellectual property violations on the internet does not seem to have slowed or reduced to any significant degree; perhaps even the contrary. The only winners in this failed strategy have been the lawyers who represented the rights holders in courts.

In recognition of the strategic failure a few years ago, rights organisations changed the strategy on one important point: instead of taking direct action against individual internet users who committed unlawful acts, they chose to focus on the intermediaries – whoever made it possible for internet users to access the internet, i.e. the ISPs.

Initial attempts have been made, with a certain amount of success through the ISPs, to prevent users’ access to certain websites where – it has been argued – there was a significant amount of immaterial violations.

But the nucleus of this new strategy has been the so-called “three strikes and you’re out” model, which, as far as I know, was a term and a terminology that rights organisations introduced themselves. Subsequently, rights holders have attempted to distance themselves from this terminology, since it obviously brings up negative associations with the aforementioned criminal laws in the US.

The rights holders’ associations have had some success with enacting legislation in France (the HADOPI legislation) and England, whereby an ISP may be required to terminate the agreement with a user, so that the user no longer has access to the internet, if the user has received two notices to stop alleged illegal activity on the internet and ignored them. The rights holders’ associations have also attempted to introduce such legislation at EU level. Most recently, the European Parliament voted for a report that recommends a “three strikes and you’re out” regimen to the commission for legislation (Gallo report adopted: A stab in the back of citizens’ freedoms).

In Denmark, a true “three strikes and you’re out” solution, to deny internet access to repeat offenders, has not yet resonated with the majority of politicians. Most politicians believe, however, that ”something must be done to prevent piracy.” This notwithstanding, there is currently no evidence, from a societal perspective, supporting the need for further regulation.

The situation today is that in Denmark we have not even started a proper discussions about the need to further protect copyright holders’ interests, for example, by introducing even more restrictive intellectual property rights. Such added restrictions would hinder the otherwise positive developments, and the realisation of the major economic growth potential, stemming from building a knowledge society based on new services and new business models.

But because of the – in my opinion – undocumented need to ”do something”, the Danish Culture Ministry appointed a committee (in Danish) to look at the problem and propose a solution. The premise of the work of this committee under the Ministry of Culture has, alas, not been properly debated and assessed. The committee’s work is problematic for several reasons. Firstly, the committee’s work and procedures are quite closed and not transparent, as it is not possible for the wider public to follow it. This reminds us very strongly of the problematic work of the WTO Agreement on ACTA.

Secondly, it seems quite clear that its members are not at all representative of the interests that should be considered when the committee makes its report and its recommendations. As usual, I am sad to say, there is a clear preponderance of representatives from traditional rights holders’ organisations, including representatives from all the usual organisations and associations representing producers, record companies, etc.

Unfortunately, it seems that there is just one single representative of internet users: the Danish Consumer Council. With all due respect to the Consumer Council, it would be quite fair and reasonable to include among the members of the committee at least some representatives from an additional organisation with a clear focus on citizens’ rights, in connection with representing the internet.

The opinion reportedly likely to be expressed by the committee is, unfortunately, one that might be seen as a precursor for an outright “three strikes and you’re out” model. The solution – according to the report (in Danish) – proposed by the committee will involve rights holders, via a technical solution, in first identifying certain IP addresses from which – as deemed by the rights holders – the extent of uploading that takes place is viewed as suspicious in relation to any intellectual property violations.

The rights holders will then forward the identified IP numbers to ISPs, who will then be obligated to reveal the identities of the real users behind the IP numbers; i.e. without the court review that is required today. Then two ”warning letters” will be sent – either by a public board, by the rights holders or through the ISPs – which make the identified users aware that they or their household are suspected of doing something illegal in connection with the use of their internet connection.

The proposed solution does not seem to imply that non-compliance with the warning letter by its recipient will have any direct implications in relation to litigation, compensation or otherwise. Nor does the solution appear to suggest that the rights holders shall be made aware of the identity of the users in question, should the ”suspicious” behaviour continue. In such cases, the rights holders would, as now, have to seek a court order under which, if granted, the ISP would be obligated to release the identity.

Of course, it is of some comfort that, within the expected recommendations from the committee, there does appear to be provision for a genuine “three strikes and you’re out” model that includes the option to cut someone off the internet. However, even though the prima facie solution expected to be proposed by the committee could appear relatively harmless, there is still reason to sound the alarm and oppose such an approach from the perspective of common citizens and internet users.

As I see it, the expected solution is, at best, a costly attempt to implement a form of awareness about internet piracy with the general public. At worst, the solution is just the first step toward the realisation of the rights holder organisations’ strategy to implement a true “three strikes and you’re out”  solution. The eventual consequence may be that internet users risk having their connection to the internet cut off, and thus being left out of the information society.

If rights holders want to do something about the alleged extent of illegal activities on the internet, and the alleged losses they suffer thereby, they should continue to inform and “educate” people to do more to respect copyright when using the internet. This is fair enough, but any such campaign should be funded by rights holders entirely, and ISPs should not become involved in it.

Any obligations imposed upon ISPs would result in expenses that would be directly reflected in the price that people pay for their internet connection. And even marginal price increases would have a direct impact on the use of the internet, which in turn would have a negative impact on the realisation of the great benefits for society that are made possible through the use of the internet.

Any attempt to involve ISPs in a form of ”policing role” toward internet users would also be problematic from the point of view of legal due process. Allowing private players, who legitimately seek to maximise their profits, to perform this kind of public office or function should always be avoided as a matter of principle.

It is also unlikely that the so-called ”warning letter” will not have any evidentiary or other legal consequence in later proceedings. It is unlikely that a court would not subsequently take into account that the accused or the defendant had previously received warning letters as part of a publicly approved solution regarding alleged illegal conduct.

It is problematic if a distorted presumption of the committing of illegal activities should be formed, based on evidence obtained through a scheme in which no legal consequences have been associated with the issuing of ”warning letters”.

If there is, finally, a need to do anything in relation to the prevention of piracy, then it would be desirable for any such action to be examined carefully to determine whether it is appropriate and whether it could be practically feasible to establish some form of independent handling body. Such a body could be either private or placed in the court system, and should have enough legal knowledge to assess all cases of illegal use of the internet in connection with intellectual property violations.

It’s also very much the perceived viewpoint that the legal review of such cases will be undertaken in a now-decentralised Danish judicial system in which local expertise around the country’s courts will often lack such insight and professionalism that the outcome of a case is uncertain, and mostly dependent on the number of lawyers available to represent you, since lawyers are useful for these and other cases like injuries and accidents is good to get the right professionals for this, and there are sources and sites such as https://www.spauldinginjurylaw.com/areas-served/cumming/personal-injury-attorney/ where you can find them. This uncertainty is clearly not for the public benefit.

In the meantime, I urge everyone who agrees with the objections I have expressed above, and can see the problems with the expected solution, to contact both politicians and interest groups to express opposition to such a solution.

In particular, it is important for all businesses that want to monetise their business online, and that do not base their business model on the ”old fashioned” approach to the sale of copyrighted material as represented by the rights holders’ organisations, to contact their trade associations and draw their attention to the fact that it is in these companies’ interests to oppose the anticipated solution of the committee.