IP lawyer Stuart Langley wrote a fantastic analysis of the legal issues raised in my novel Pirate Cinema a guest-article for the wonderful Law and the Multiverse site. Langley does a very thorough job of looking at the real laws and legal problems behind the plot points in the book.
The McCauley’s internet access has been disconnected consistently with what appears to be an implementation of the United Kingdom Digital Economy Act 2010. Implementation of this act has been slow, but is expected to lead to notices and service disruption as early as 2014. The implementing code of this act obligates ISPs to respond to copyright infringement reports by notice to subscribers, maintain a list of subscribers that have received notices which can be disclosed to copyright owners under court order, and degrade or deny service to repeat offenders. The technical measures imposed by the law will be appealable; on paper the appeal processes appear designed to protect subscribers, however, the regulations on the appeal process have not yet been published. This foundational scenario in Pirate Cinema is plausible.
But whether it is acceptable to cut off internet access as punishment for violating how that service is used is another question. Because of the disconnection Trent’s father cannot find work, his mother cannot find medical care, and his sister’s schooling suffers. Is internet access is a public utility that should be more difficult to disconnect than summary and unilateral administrative action? As explained in Jim Rossi’s article Universal Service in Competitive Retail Electric Power Markets: Whither the Duty to Serve? 21 Energy L.J. 27 (2000), common law principles express a public utility having a higher obligation to provide service—to provide extraordinary levels of service, especially to small residential customers. These obligations include the duty to extend service, provide continuing reliable service, provide advanced notice of disconnection and to continue service even though a customer cannot make full payment. Public utilities can have terms of service and can terminate service for violations, commonly payment and safety related transgressions. One U.S. city proposed to cut off utility service for failure to pay speeding tickets, although using utility service as a tool to enforce other regulations seems very unusual and inconsistent with the common law “duty to serve”. The question posed by Pirate Cinema is timely as governments try to regulate internet access, they do so by treating it as a public utility. This will be a double edged sword in that one treated as a utility, society should, perhaps, have a higher duty to provide internet access and similarly higher barriers before disconnecting service, including greater due process and evidentiary protections for subscribers.
Pirate Cinema by Cory Doctorow
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