Repeat Infringer
| Autor | Luca Belli |
| Páginas | 271-272 |
271
Repeat Infringer
78 Repeat Infringer
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)
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
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