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Graduated Response

Video Overviews by Carlie McCulloch and Jonathan Chabowski

Several jurisdictions around the world have introduced ‘graduated response’ or ‘three-strikes’ regimes. These are designed to require ISPs to pass on notices of alleged infringement to their users. Rightsholders employ private investigation or monitoring firms to detect the IP address of computers that appear to be filesharing their content, predominantly over the BitTorrent protocol. Rightsholders are able to trace this IP address as far as an ISP. They then send notices to the ISP, and ask ISPs to match the IP address and time details against a particular user account.

Most graduated response schemes require ISPs to issue warning letters to the subscriber who has been matched in this way. Some schemes go further, and require ISPs to take other actions. The French HADOPI scheme famously required ISPs to disconnect users who received three allegations of infringement – although this was eventually struck down by the French Constitutional Council. The French Scheme was replaced with an administrative regime; several other jurisdictions, including New Zealand and South Korea, have introduced administrative regimes that can impose these types of technical penalties on users, but they have not been widely used.

Other schemes provide for expedited preliminary discovery proceedings once subscribers have received a certain number of allegations of infringement. These procedures variously allow rightsholders to apply to the ISP, a regulatory body, or a court, to reveal the identity of the subscriber. Rightsholders may then proceed to issue warnings, offers to settle, or initiate legal proceedings against the subscriber.