Three Strikes Rule: Sleeping for Seven Months

Last month I requested the South Korean government to disclose information on the three strikes rule that came into effect on July 23, 2009. Surprisingly there was no single case in which the rule has been actually applied or considered to be applied.

This is surprising because the government, backed by copyright industries, claimed, when it strongly supported the introduction of the rule, that wilful repeat infringers (called 'heavy uploaders') were about 1,000 and most of the illegal file sharing took place in around 150 ISPs (largely in web storage service providers). Due to the heavy uploaders and ISPs having a symbiotic relationship with them, the loss to the copyright industry was said to amount to approximately 2 trillion KRW (in 2007). Relying upon the overestimated number, the government proclaimed that the three strikes rule was of urgent necessity for saving the copyright industries that were going to wither away.

According to Article 133bis of the Korean Copyright Act, the Minister of Culture, Sports and Tourism (MCST) may order ISPs to take a measure: (i) to suspend for a period shorter than 6 months a user account of a repeat infringer [1] (Para 2); or (ii) to shut down for a period shorter than 6 months a web site [2] that allows a file uploading and has been ordered by MCST at least three times to stop an illegal filing sharing (Para 4). These are key provisions of the Korean three strikes rule.

When the rule was introduced, the notice-and-takedown system was also revised. Under the revised system, the Copyright Commission (a governmental body) may recommend ISPs to warn against an illegal material transmitter or to delete or cease to transmit the illegal material (Article 133ter). From July 23 to December 31, 2009, the Commission sent ISPs 24,394 recommendations and ISPs fulfilled what was recommended in 24,030 cases. This means 100% compliance by ISPs (the remaining notices were not serviced due to unknown address or close of business of ISPs). Table 1 below shows the recommendations sent by the Commission to ISPs from July 23, 2009 to January 31, 2010, and table 2 illustrates the measures taken by ISPs upon the Commission’s recommendations for the same period of time.

Table 1: Recommendations by the Copyright Commissions

Year	Recommendations (Warning)	Recommendations (Delete or Cease to Transmit)	Suspension of User Account	Total
2009 (From July 23)	12,420	11,974	0	24,394
2010 (to January 31)	2,555	2,500	0	5,055

Table 2: Measures Taken by ISPs upon the Commission’s Recommendations

Year	Measures by ISPs (Warning)	Measures by ISPs (Delete or Cease to Transmit)	Suspension of User Account	Total
2009 (From July 23)	12,237	11,793	0	24,030
2010	2,549	2,494	0	5,043
* Warnings and takedown notices of 376 were due to close of business or unknown address of ISPs.

This tells us two things. First, the three strike rule is redundant and unnecessary. Its urgent necessity proclaimed by the government and copyright industries turns out to be untrue. Second, the notice-and-takedown system did work. The figure of 100% compliance by ISPs shows it worked too much. To ISPs, the compliance to the Commission’s recommendations is the easiest and cheapest way. What we have to concern is its chilling effect on freedom of speech and on everyone’s right to access to information.

[1] The ‘repeat infringer’ refers to one who has been warned or noticed to cease to transmit illegal material more than three times by ISPs. The warning or the notice by ISPs is to be made upon an order by MCST and such an order has to be issued after consultation with the Copyright Commission. The warning is directed to those who conduct illegal reproduction or transmitting copyrighted works, and the notice requires ISPs to delete or stop transmission of the illegally reproduced material.

The ‘user account’ refers to an account provided by an ISP in question for identifying or managing users. It includes user accounts provided by the same ISP other than the account used in the transmission of the illegally reproduced material. However, a user’s email account is excluded.

[2] For the ‘web site,’ Article 133bis uses the term ‘bulletin board,’ a definition of which is provided in other law (“Act on Promotion of Information and Communications Network Utilization and Information Protection”). According to it, a ‘bulletin board’ refers to “regardless of its name, a computer programme or a technological device that enables a user to post information such as sign, character, voice, sound, image or video on an information telecommunication network for the purpose of disclosing the information to the public. A bulletin board that may be shut down under the three strikes rule is broad to cover what is operated for commercial purposes or provides convenience for users.

* The MCST describes the Korean three strikes rule in a slightly different nuance here.