Repeat Infringer

Author: Luca Belli

The concept of ‘Repeat infringement’ has been established by the Digital Millennium Copyright Act (DMCA), passed by the US in 1998. This piece of legislation originally aimed at protecting digital innovators while preserving the ability of copyright holders to prevent activities that may infringe upon their rights.

Most relevantly, DMCA, §512 grants so-called safe harbor protections to the intermediaries that act on actual or constructive knowledge of copyright infringement and “adopt and reasonably implement, and inform subscribers and account holders (…) of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders (…) who are repeat infringers”. 

In this perspective, ‘repeat infringer’ refers to the number of times a user has been identified as an infringer. According the DMCA § 512 a written repeat infringer policy, consisting of a set of guidelines that detail when a users’ infringing activity will result in termination of their account access. In this policy, the intermediary must explicit how often a user must be successfully accused of copyright infringement before the account for the user is terminated (Sawicki, 2006)¹.

Moreover, to take advantage of the safe harbour protections, an intermediary must “reasonably implement” the repeat infringement policy. As such, upon receiving a copyright infringement notice, demanding takedown of specific content, both the complaint and its outcome must be recorded, to be able to identify when the infringer repeats their infringement. The intermediary records allow to identify users who accumulate a quantity of infringements deemed as sufficient to trigger the repeat infringer policy, which imply the closure of the user account and the blocking of his or her IP address.

A well-known version of the repeat infringer mechanisms has been established by France with its “three strikes” or “graduated response” system. This system, created in 2009 by the HADOPI Law, is implemented by an administrative authority HADOPI (Haute Autorité pour la diffusion des œuvres et la protection des droits sur Internet), which acts on reports of suspected infringement from rightsholder groups. Based on the reports, HADOPI can contact, warn, and sanction any French Internet users. The system is based on the understanding that this graduated approach may persuade the infringers to change their behaviour. 

Importantly, a study by Arnold et al. (2014)² examining empirical data on first five years of implementation of the French three-strikes rule has found that the HADOPI system has not deterred individuals from engaging in digital piracy and that it did not reduce the intensity of illegal activity of those who did engage in piracy.

References

1. Sawicki, A. (2006). Repeat Infringement in the Digital Millennium Copyright Act. University of Chicago Law Review:     Vol. 73: Iss. 4, Article 7. Available at: https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=5386&context=uclrev.
2. Arnold, Michael A. and Darmon, Eric and Dejean, Sylvain and Pénard, Thierry, Graduated Response Policy and the Behavior of Digital Pirates: Evidence from the French Three-Strike (Hadopi) Law (May 28, 2014). Available at: http://dx.doi.org/10.2139/ssrn.2380522