The Law Society suggests courts should have the power to ban someone found guilty of a sufficiently serious on-line copyright breach from having any internet account for the period of an account disconnection penalty.
The suggestion is contained in the Society’s submission to the Commerce Select Committee on the Copyright (Infringing File Sharing) Amendment Bill. In the Bill as it presently stands, the ban only applies to the internet account used to commit the breach in question. The maximum suspension period is six months.
“During this period a subscriber can easily open an account with another ISP and immediately continue illegal file sharing,” says the Law Society’s submission. “There should be a power to allow the Court to order that the account holder cannot open an account with another ISP during the period of the suspension.”
With this contention the Society has “gone out on a limb”, says intellectual-property and ICT lawyer Rick Shera. “No other submission has suggested this,” he says.
One of the writers of the submission, Clive Elliott, also an IP and ICT lawyer, says such a penalty is not unusual. There is a lot of talk about internet access being a human right, but even if it is, the law is still entitled to abridge such rights as punishment for a sufficiently grave illegal act, Elliott says.
The chief body that levies penalties under the law as envisaged is the Copyright Tribunal. The Courts will only be involved, Elliott points out, in a case where someone has continued to break the law after repeated warnings.
If you commit a serious driving offence, he says, you are not just banned from driving the vehicle in which the offence has been committed; you are banned from driving any vehicle. If you are guilty of harassing your domestic partner, you may be served with an order which will also stop you from having contact with your children, even though you did not offend against them.
Shera says this is a false comparison. The offences Elliott refers to are crimes, he says; “copyright breach is a civil wrong” and a standard of punishment appropriate to a crime should not be applied.
“[There is] no indication of how the Society expects such a prohibition to be policed,” Shera says on his blog “or why it considers that the adverse consequences of complete termination are justified. In fact, to enforce this we'd have to adopt some sort of centralised blacklist a la France's HADOPI or as was at the last minute discarded from the Digital Economy Act in the UK. No thanks.”
Elliott acknowledges that a ban on having any internet account would be difficult to enforce, but the mechanics of this are not for the Law Society to work out, he says.
In any case, Elliott adds, what the Law Society suggests is not a complete ban on accessing the internet, just a ban on holding a personal account. The person under such a penalty can still go to an internet café, “to go on Facebook and all those other things you do on the internet”.
Computerworld suggested (as did Shera when interviewed) that paying taxes and doing accounts through an internet cafe would present grave risks. In such cases, Elliott says, the post or personal delivery is still an option.
However, this is not always available, Shera says. “The only way lawyers can conduct conveyancing transactions is by using the Government's Landonline internet portal,” he says on his blog. “If accepted, the Society's submission would prevent a repeat copyright infringing Society conveyancer from practising altogether.
“I don't condone copyright infringement for one moment,” he says, but how can my Society really suggest that preventing its members from practising is a fair penalty for copyright infringement?”