TechnoLlama » Three-strikes

Does Spain need to change its copyright law?

Andres — Tue, 18 May 2010 09:05:51 +0000

(via TechDirt) The New York Times has published an interesting article about how copyright owners are urging for a change in Spanish copyright law (as an aside, I should find another word to describe articles linked in this blog, “interesting” is seriously over-used). Allegedly, Spain is the pirate capital of Europe, in 2008 illegal movie downloads reached 350 million copies, in the same year 1.2 billion tracks were downloaded using P2P services. According to the IFPI, the Spanish music market has shrunk to a third of what it was in 2001. These figures have prompted repeated threats from Hollywood that it will quite simply abandon the market because it is not worth it.

The Spanish government has responded passing a new law that will allow it to close down copyright infringing sites in an easier manner. Last year, there were suggestions that another piece of legislation would create a three-strikes regime similar to HADOPI and the Digital Economy Act, this was the Sustainable Economy Law (Ley de Economía Sostenible), but the proposed final text does not include this measure.

The question is, does Spain require new laws to begin with, or is the problem deeper? As a signatory to TRIPS, the Berne Convention, the WIPO Copyright Treaty, and as a member of the EU, one could argue that Spain should already have a legal framework capable of dealing with piracy, but this is not the case. The problem does not seem to be the law, but the lack of willingness to apply it. Repeatedly, Spanish judges have been producing rulings in favour of file-sharing sites and against copyright owners.

Time and time again, anglophone media sources comment that the current situation is caused by the Spanish culture. There is a certain tone of derision in some of the coverage, almost as if the press expects nothing else from those Mediterranean countries that lack respect for proper fiscal policies, queuing, towel management and intellectual property. The New York Times article comments that this is not such a far-fetched theory because piracy is seen as freedom to consume, which is a cultural backlash from the Franco years. There may be something to this theory. Even judges seem reluctant to interpret the law in favour of the copyright industries.

The culture of sharing seems to be entrenched in the Spanish psyche. An anti-piracy campaign with the logo reading “Against Piracy: Defend Your Culture” was immediately spoofed to produce pro-sharing slogans. “Share Your Files: Defend Your Culture”, and other similar ones (pictured above).

This is a complicated issue. If piracy is culturally entrenched, then changing the law might do little, particularly if judges continue to rebel against pro-copyright issues and refuse to apply the law in their favour.

And to conclude, here is a funny story (or depressing, if you are in in copyright maximalist camp). In 2006, SGAE , the largest collecting agency in Spain, predicted that internet piracy would be vanquished in 5 years time. They better hurry!

ACTA and intermediaries

Andres — Wed, 21 Apr 2010 19:53:06 +0000

So, the text of the Anti-Counterfeiting Trade Agreement (ACTA) has been released. Much of what I’ve read so far brings me back to an earlier comment I made regarding one of the early drafts. If you don’t feel like reading the link, the gist of what I said is that the agreement was not particularly cumbersome, but that it contained two points of concern, the export of American punitive and statutory damages, and the criminalisation of a wider range of copyright infringement. Not much has happened to change my mind from that opinion. I have been advocating a “wait and see” approach to ACTA. Some of the leaks have worried me, but personally I do not think that the agreement will have the wide-ranging nefarious effect advertised. There is however, room for concern.

Having the full text really helps one to get an idea of what the changes to existing national legislation in the member states will really look like. Others have been talking about various aspects of the text. One of the most important issues dealt by the agreement is that it might have a huge effect on intermediary services. Habitual readers may have heard me talk repeatedly about how the current system of intermediary liability favours limited indemnity as long as intermediaries remove infringing content once notified. Some of the most interesting litigation in recent years has been directed precisely at trying to erode the limitation of liability, for example, in the case of iiNet and Eircom. Will ACTA change the current regime?

One big change in the new treaty is that it seems to overhaul the intermediary liability regime. For example, Article 2 establishes the obligation for signatory states to issue an injunction not only against infringers, but also against intermediaries:

“[2. The Parties [may] shall also ensure that right holders are in a position to apply for an injunction against [infringing] intermediaries whose services are used by a third party to infringe an intellectual property right.]”

This is very broad , and it pprovides a change to existing rules. For example, in the UK’s CDPA, s97A reads:

“97A.-(1) The High Court (in Scotland, the Court of Session) shall have power to grant an injunction against a service provider, where that service provider has actual knowledge of another person using their service to infringe copyright.” [Emphasis mine]

Notice that current law requires that the intermediary should have actual knowledge of the infringement taking place, while the ACTA text does not require such a thing. It would be possible then that courts could issue injunctions against service providers even if they have no knowledge of the infringement, which is a big change to the current system.

Later, The current text of Article 2.18 (3) seems to leave the current system of intermediary indemnity intact. It says:

“3. Without prejudice to the rights, limitations, exceptions, or defenses to [[ patent, industrial design, trademark and][copyright or related rights]][intellectual property rights] infringement available under its law, including with respect to the issue of exhaustion of rights, each Party [confirms that] [shall provide for] [civil remedies as well as limitations, exceptions, or defenses with respect to the application of such remedies, are available in its legal system in cases of third party liability[or liability for those who authorize infringement, or both] for [[patent, industrial design, trademark and][copyright or related rights]][intellectual property rights] infringement.”

This paragraph is rather vague, but I read it as pretty much leaving the current situation intact. The problem begins when we start looking at the optional texts. Option 1 seems to have been drafted by Google. It recognises that it infringement takes place under the vigilance of intermediary service providers, so it asks member states to provide limitations to liability only if the infringement occurs by:

“(i) automatic technical processes, and
(ii) the actions of the provider’s users that are not directed or initiated by that provider and when the provider does not select the material, and
(iii) the provider referring or linking users to an online location,
when, in cases of subparagraphs (ii) and (iii), the provider does not have actual knowledge of the infringement and is not aware of facts or circumstances from which infringing activity is apparent;”

So, this limitation of liability clause favours automated processes, and also the absence of editorial oversight. What is interesting, (iii) creates a new exception to liability by clearly stating that linking to infringing content is not in itself an offence. I am guessing this sub-section was included there by Google. This section however goes back to the existing UK regime, as it requires actual knowledge of the infringement taking place. Option 1 also seems to implement American Safe Harbour provisions, as it requires service providers to have clear removal policies, as well as working expeditiously to remove content. Further evidence that ACTA is mostly exporting DMCA protection worldwide. Option 2 is similar, but rather more concise.

So what’s in store for intermediaries? The good news is that American service providers which already operate under the DMCA take-down regime will not be affected. The bad news is that other service providers will have to revamp their take-down procedures to DMCA-style levels.

As evidenced by the take-down of Downfall parodies from YouTube, I fear for the future. Funnily enough, a video of Hitler denouncing ACTA has been taken down for copyright violation. Rather poignant, is it not?

What’s the effect of piracy to the economy? Nobody knows!

Andres — Fri, 16 Apr 2010 08:02:47 +0000

(via Ars Technica) Just a couple of weeks ago yours truly was bemoaning the preposterous abuse of statistics in order to produce a set of dodgy figures about the cost of piracy to the European economy. Now a U.S. government institution has produced a report that pretty much tells us similar points, namely, that it is difficult to try to assess the damage to the economy done by copyright infringement and counterfeiting. The Government Accountability Office has published the report entitled “Observations on Efforts to Quantify the Economic Effects of Counterfeit and Pirated Goods” (pdf here). It makes for a fascinating read.

One of the first points that struck me is that this is a professional document with no evident agenda. It is refreshing to read a document dealing with copyright infringement that does not try to score points, use grandiloquent and overemphasised rhetoric, and that simply tells it like it is. For example, the report goes at great lenghts to always distinguish between counterfeiting and online copyright infringement, a small distinction that is sometimes left out other debates. The report tries to paint a balanced view of piracy effects. For example, while listing various negative effects of piracy, the report mentions some possible positive consequences:

“There are also certain instances when IP rights holders in some industries might experience potentially positive effects from the knowing consumption of pirated or counterfeit goods. For example, consumers may use pirated goods to “sample” music, movies, software, or electronic games before purchasing legitimate copies, which may lead to increased sales of legitimate goods. In addition, industries with products that are characterized by large “switching costs,” may also benefit from piracy due to lock-in effects. For example, some experts we spoke with and literature we reviewed discussed how consumers after being introduced to the pirated version might get locked into new legitimate software because of large switching costs, such as a steep learning curve, reluctance to switch to new products, and search costs incurred by consumers to identify a new product to use.
Some authors have argued that companies that experience revenue losses in one line of business—such as movies—may also increase revenues in related or complementary businesses due to increased brand awareness. For instance, companies may experience increased revenues due to the sales of merchandise that are based on movie characters whose popularity is enhanced by sales of pirated movies. One expert also observed that some industries may experience an increase in demand for their products because of piracy in other industries. This expert identified Internet infrastructure manufacturers (e.g., companies that make routers) as possible beneficiaries of digital piracy, because of the bandwidth demands related to the transfer of pirated digital content. While competitive pressure to keep one step ahead of counterfeiters may spur innovation in some cases, some of this innovation may be oriented toward anticounterfeiting and antipiracy efforts, rather than enhancing the product for consumers.”

The reports main contribution to the debate however, is that it points out what many of us have been saying for quite a while, it is very difficult to assess economic impact because of faulty methodology and lack of data. For example, the report is adamant that data collection is one big issue, as many industry reports rely heavily on “fragmentary and anecdotal evidence”. One of the most important parts of the report is that it downright recognises that economic impact rests largely on substitution rates (the amount of people who would buy something, but do not because they prefer to obtain pirated copies); here we are blind, as we simply do not have a good indication of what substitution rates apply. The report concludes:

“While experts and literature we reviewed provided different examples of effects on the U.S. economy, most observed that despite significant efforts, it is difficult, if not impossible, to quantify the net effect of counterfeiting and piracy on the economy as a whole. For example, as previously discussed, OECD attempted to develop an estimate of the economic impact of counterfeiting and concluded that an acceptable overall estimate of counterfeit goods could not be developed. OECD further stated that information that can be obtained, such as data on enforcement and information developed through surveys, “has significant limitations, however, and falls far short of what is needed to develop a robust overall estimate.” One expert characterized the attempt to quantify the overall economic impact of counterfeiting as “fruitless,” while another stated that any estimate is highly suspect since this is covert trade and the numbers are all “guesstimates.””

So, whenever you read or hear anyone from the industry claiming huge losses, just pass along this report to them. I would like to think that this will be discussed at ACTA negotiations, but I am not that naive.

Digital Economy Bill passes

Andres — Thu, 08 Apr 2010 09:39:09 +0000

The Dark Lord of the Sith never rests

So, what many suspected has come to pass, our deepest fears confirmed and one of the worst possible texts adopted. The Digital Economy Bill has gone through the wash-up process in the very last day of this Parliament. I am expecting others to go into the detail of what is actually in the Bill soon enough, this morning I feel neither the inclination nor the will to go through the document. However, just browsing through the online version of the Bill, it seems like the final text is not up yet, as it still contains clause 43 on orphan works, which I believe was dropped last night.

What I want to comment on is something deeper, and perhaps more important in the long run than that arising from the letter of the law. The UK Parliament has been suffering since the expenses scandal broke last year. Public perception of politicians is at the lowest point in this country, just at the same time as they call a general election. So what do they do to regain the trust of the people? Pass a controversial piece of legislation with the most undemocratic process possible, with minimal discussion, while being witnessed by thousands of constituents who have no other recourse than being thoroughly disgusted and disillusioned by the entire process.

One of the things that has struck me the most about the debate is the amount of public sentiment that it has generated. It has been discussed in Radio 4′s Now Show (relevant clip here), it has been the subject of a Panorama investigation, and a very critical clip from the Culture Show. A call to tell MPs to give the Bill proper oversight prompted a staggering letter-writing campaign of 20,000 people. During the debates, thousands tuned in to the BBC’s website to watch the proceedings live, and the Twitter stream #debill describing the third debate accumulated thousands of tweets, and became the second trending topic worldwide, as people in other countries became interested as well and retweeted what was happening in the UK. My own tweets about the Digital Economy Bill got retweeted from people in Colombia, India, Australia, Mexico and the United States, just to name a few. The public outcry on Twitter was such that the #debill hashtag beat Manchester United and Justin Bieber as trending topics.

Something important and wonderful was happening online. This is the type of democratic engagement that politicians supposedly dream of. They want our votes, they want us to care, they want us to be involved. Unless it is about something that has already been decided and negotiated by the powers-that-be, in that case we just become a nuisance, part of an annoying self-referential minority that can be easily ignored. It’s back to business as usual. It is precisely this disconnect between genuine public interest and the vested interest of powerful lobbyists what is destroying democracy. When people tuned in to watch the debate online, they could witness with their own eyes just how undemocratic the entire system is. Letters do not matter, what matters is the sickening toadying MP making reference to Feargal Sharkey’s Undertones, while sycophantily winking at him in the stands.

However, politicians anger geeks at their own peril. We are packing code, and we ain’t afraid to use it. Already there has been a beautiful mash-up (or whash-up, geddit?) singing that Creativity is the Enemy. Thousands of Twitter users have signed up to oppose the Bill. There is already a list of who voted No, and a staggering website with an indication of who was present during the second reading of the Bill. I do not expect the geeks to take this one lying down.

What’s up with the Anti-Counterfeiting Trade Agreement?

Andres — Wed, 10 Mar 2010 10:07:30 +0000

"I find your lack of copyright enforcement disturbing"

If you follow technology news services and blogs that are vaguely interested in digital rights issues, you must already have heard about ACTA, the Anti-Counterfeiting Trade Agreement. This is a multilateral trade agreement between the EU, the US, Mexico, Canada, Australia, South Korea, New Zealand and a few others, currently negotiated in secret that is set to tackle copyright infringement issues. As the name indicates, the aim of the agreement is to tackle counterfeiting. However, the most controversial aspect is that various sources have disclosed that the agreement is set to export some of the worst maximalist legislation out there, particularly in an attempt to curb illegal file-sharing. For the most detailed in-depth analysis of what has been happening so far, Michael Geist’s blog is the place to be. Nonetheless, I have been meaning to take stock and write a synopsis of what has happened so far for my own benefit. If you are confused about the various claims and counter-claims, I hope you find this useful.

The main problem with ACTA is that the negotiations have been closed. Secrecy leads to fear, fear leads to hate, hate leads to anger, anger leads to the Dark Side. One problem that I have noticed, and which has already been picked up by some defenders of the agreement, is that some of the language attacking ACTA seems to be rather overboard. This is an agreement that will end Web 2.0 services, it will eradicate the Internet as we know it and replace it with an alien reptilian replicant. So I have decided to go through what we know about the agreement so far. It must be pointed out that this is the perfect time to take stock, the next round of negotiations is coming up in April, so if there is something to be worried about, we should make a fuss right now.

So what do we really know about the agreement? Relatively little. Because of the secret negotiations, we only have had some leaks here and there. I will not recount the history of the talks (for that, again, I refer you to Michael Geist), but I will only mention that the agreement has been in negotiation since 2008, and that, as mentioned, the process has been shrouded in secrecy. Had it not been for some whistleblowers like Geist, ACTA would now be in an almost final stage with little or no public oversight whatsoever. Whatever one may think about some of the more colourful and fanciful speculation out there, the spotlight cannot hurt, ad we will not be taken by surprise.

So, what does the text say? The most important leak so far came in mid-February, and it was precisely what we were hoping to see, namely Article 2.17: Enforcement procedures in the digital environment (pdf here). The text starts out in a seemingly innocuous manner:

“Each Party shall ensure that enforcement procedures, to the extent set forth in the civil and criminal enforcement sections of this Agreement, are available under its law so as to permit effective action against an act of, trademark, copyright or related rights infringement which takes place by means of the Internet, including expeditious remedies to prevent infringement and remedies which constitute a deterrent to further infringement.”

This is frustrating, as we do not have the current civil and criminal enforcement sections. There are some earlier proposals out there (here and here), and a European leak with country positions regarding civil enforcement here, but we do not have a clear idea of what the final text will look like. Two things are worrying however. As EU representatives have mentioned, current European copyright obligations do not mention specifically criminal and civil liabilities, but “adequate legal protection…” Another worrying aspect from the existing civil liability section is that ACTA exports the DMCA’s infamous statutory damage provisions, as it asks other countries to calculate damages in the following manner:

“[I]n determining the amount of damages for infringement of intellectual property rights, its judicial authorities shall consider, inter alia, the value of the infringed good or service, measured by the market price, the suggested retail price, or other legitimate measure of value submitted by the right holder.”

This means that we might see some of the most outrageous American copyright enforcement damages, such as the Jammie Thomas-Rasset and Joel Tenenbaum cases, exported to jurisdictions where damages are nowhere near what is proposed. The other concern is that the civil enforcement section could contain a three-strikes clause. We just do not know yet.

Paragraph 2 is a bit odd. It requires the enactment of third party liability, but this is surely already part of most agreements, so why include it here? My guess is that this is setting up the stage for continuing the war against intermediaries that is being waged at the moment. The language is broad enough as to include almost anything.

Paragraph 3 creates rules that will allow service providers, intermediaries and third parties to operate despite what has been mentioned in paragraph 2. In other words, Paragraph 3 will export American safe harbours and notice and take-down regimes. What bothers me is that Paragraphs 2 and 3 create a noxious environment in which third party liability is the rule, not the exception. Intermediaries will be liable with two exceptions. The first one reads:

“[Each party shall] (a) provide limitations on the scope of civil remedies available against an online service provider for infringing activities that occur by:
(I) automatic technical processes and
(II) the actions of the provider’s users that are not directed or initiated by that provider when the provider does not select the material, and
(III) the provider referring or linking users to an online location when, in cases of subparagraphs (II) and (III), the provider does not have actual knowledge of the infringement and is not aware of the facts or circumstances from which infringing activity is apparent [...]“

So, if you are an intermediary, you have to make sure that all of your processes are automated, that you do not exercise any editorial and selection process whatsoever, and you make your best effort not to know anything that happens with your providers. Otherwise you might be liable. The second exception is:

“(b) condition the applicantion of the provisions of subparagraph (a) on meeting the following requirements:
(I) an online service provider adopting and reasonably implementing a policy to address the unauthorized storage or transmission of materials protected by copyright or related rights except that no Party may condition the limitations in subparagraph (a) on the online service provider’s monitoring its services or affirmatively seeking facts indicating that infringing activity is occurring; and
(II) an online service provider expeditiously removing or disabling access to material or activity, upon receipt of legally sufficient notice of alleged infringement, and in the absence of a legally sufficient response from the relevant subscriber of the online service provider indicating that the notice was the result of a mistake or misidentification. Except that the provisions of (II) shall not be applied to the extent that the online service provider is acting solely as a conduit for transmissions through its system or network.”

As stated, this pretty much exports DMCA notice-and take down. You must have a policy to take down content as soon as you’re told, and must make sure to take down the content ASAP.

Paragraphs 4-6 are also DMCA export provisions, as they make it an obligation to export the DMCA’s anti-circumvention provisions, particularly criminal liability for breaking DRMs. Paragraph 6 specifically talks about rights management information (mostly metadata integrity).

So, what’s the verdict? It’s too early to tell. I will reserve full comment until I get to see a reliable draft of the civil and criminal enforcement sections. So far, I do not particularly like what I have seen. I agree with people like Ben Sheffner and Nate Anderson who comment that what we have seen of ACTA does not affect the United States that much, they already have the mother of all maximalist copyright protection. However, their comments seem rather short-sighted, and tend to forget that there are lots of other countries who will sign the agreement. The provisions are already in US law, so don’t worry, they would come to you anyway in some shape or another.

The problem that I have with exporting DMCA-level of protection is that Americans have a huge counterbalance to those provisions in the shape of Fair Use dcotrine. We do not. We have fair dealing, an exhaustive list of exceptions and defences. We get the DMCA, but without any balance. Why is it that the American copyright system seems keen to export maximalism, but not fair use?

Hopefully, there seems to be some opposition building up this side of the Atlantic. Stay tuned.

Update: The European Parliament has voted in favour of opening up the ACTA negotiation 633-13. Things are getting interesting.

Landmark ISP liability case decided in Australia

Andres — Fri, 05 Feb 2010 10:02:34 +0000

What did you say Skippy? ISPs are not liable for the infringement committed by their customers?

As was mentioned last week, we have been expecting an important ruling with regards to internet service provider (ISP) liability from Australia. Behold Roadshow Films Pty Ltd v iiNet Limited [2010] FCA 24. This is a case of tremendous importance because it is one of the first skirmishes in the brewing struggle between content owners and intermediaries (I use the term intermediaries on purpose, as the wider dispute encompasses companies such as Google).

iiNet is an Australian internet provider, which was sued by Australian film producer Roadshow Films, part of the Village Roadshow conglomerate. However, the real power behind the suit was the weight provided by several Hollywood studios, including Warner, Columbia, 20th Century, and Sony Pictures. The question at the heart of the proceedings was whether an ISP is to be held liable for the copyright infringement committed by its customers. Call me cynical, but it seems like the film studios chose Australia as the first place to test this theory because Australian copyright law holds secondary infringement as direct infringement. In other words, anyone making available copyright works will be held similarly liable, whether they do so directly or indirectly.

This is a lengthy and complex ruling, but it is remarkable that it has fallen upon a judge that seems to get the importance of the ruling in the wider context, and also who got the technical complexities involved. Cowdroy J has managed to wade through the technical issues with exceptional clarity, and has produced a ruling that should become an instant classic. The judge accurately identifies that the case hinges on two simple questions. Have the iiNet customers infringed copyright directly? The answer is yes. Has iiNet authorised the copyright infringement of its users by failing to take steps to stop it from happening? Here the answer is no. The reasoning behind the negative answer is set out clearly:

“12. Firstly, in the law of authorisation, there is a distinction to be drawn between the provision of the ‘means’ of infringement compared to the provision of a precondition to infringement occurring. The decisions in Moorhouse, Jain, Metro, Cooper and Kazaa are each examples of cases in which the authorisers provided the ‘means’ of infringement. But, unlike those decisions, I find that the mere provision of access to the internet is not the ‘means’ of infringement. There does not appear to be any way to infringe the applicants’ copyright from the mere use of the internet. Rather, the ‘means’ by which the applicants’ copyright is infringed is an iiNet user’s use of the constituent parts of the BitTorrent system. iiNet has no control over the BitTorrent system and is not responsible for the operation of the BitTorrent system.
13. Secondly, I find that a scheme for notification, suspension and termination of customer accounts is not, in this instance, a relevant power to prevent copyright infringement pursuant to s 101(1A) [...]
14. Thirdly, I find that iiNet simply cannot be seen as sanctioning, approving or countenancing copyright infringement. The requisite element of favouring infringement on the evidence simply does not exist. The evidence establishes that iiNet has done no more than to provide an internet service to its users. This can be clearly contrasted with the respondents in the Cooper and Kazaa proceedings, in which the respondents intended copyright infringements to occur, and in circumstances where the website and software respectively were deliberately structured to achieve this result.
15. Consequently, I find that the applicants’ Amended Application before me must fail.”

This conclusion is both astute and well informed, as it takes into account the very clear distinction between an internet service provider, and the producer of software designed specifically to authorise copyright infringement, such as Kazaa. Cowdroy J goes in detail through some of the most relevant aspects of the technology, namely the intricacies of Bittorrent transactions, and also whether the identification of customers is reliable. To me one of the most important parts of the ruling is that we get a very clear legal explanation of the Bittorrent protocol:

“70. To use the rather colourful imagery that internet piracy conjures up in a highly imperfect analogy, the file being shared in the swarm is the treasure, the BitTorrent client is the ship, the .torrent file is the treasure map, The Pirate Bay provides treasure maps free of charge and the tracker is the wise old man that needs to be consulted to understand the treasure map.
71. Whilst such an analogy grossly oversimplifies the situation it will suffice for present purposes. It demonstrates that all of the constituent parts of the BitTorrent protocol must work together before a person can access the file sought. In this judgment the Court will refer to all the constituent parts together as the ‘BitTorrent system’.
72. Such analogy also demonstrates that a number of deliberate steps are required to be taken by a person to bring about the means to infringe the applicants’ copyright. The person must download a BitTorrent client like Vuze, seek out .torrent files related to copyright material from websites, and download those .torrent files and open them in their BitTorrent client. Thereafter, the person must maintain connection to the internet for as long as is necessary to download all the pieces. The length of this downloading process will depend on the size of the file, the number of peers in the swarm and the speed of those peers’ internet connections.”

The other remarkable part of the ruling is that we get a very detailed insight into the technology involved in the detection of repeat infringers. The applicants use a Bittorrent client called DtecNet, which singles out infringing torrents identified by the content owners, and starts downloading from the participant sharers in the swarm. The agent downloads a full copy of the file to establish that this is indeed an infringing copy, and then identifies IP addresses in the iiNet network. The agent would then download one piece of the full file from a specific IP address, and would continue to download a piece every 24 hours from the same address. This technical operation was able to establish that there were indeed iiNet customers sharing infringing files repeatedly, but here is where one of the most interesting findings takes place. Cowdroy J accurately points out that the infringement is much less widespread than previously beieved, and particularly, seemed to express doubt as to the efficiency of matching IP addresses with specific customers. Another interesting technical issue that came to bear on the liability issue was the fact that the applicants were trying to paint a picture that a large portion of an infringer’s broadband use would be dedicated to illegal filesharing, while the evidence was to the contrary.

Turning to the legal aspects, one of the most important questions in the ruling is whether each time a user connects to the internet it should be considered as a fresh count of making the work available to the public, or whether the first action, namely downloading the .torrent file and seeding it, would be one single count. Cowdroy J opines:

“310. [..] The Court finds that it is the wrong approach to focus on each individual piece of the file transmitted within the swarm as an individual example of an ‘electronic transmission’. The BitTorrent system does not exist outside of the aggregate effect of those transmissions, since a person seeks the whole of the file, not a piece of it. In short, BitTorrent is not the individual transmissions, it is the swarm. It is absurd to suggest that since the applicants’ evidence only demonstrates that one piece of a file has been downloaded by the DtecNet Agent from each iiNet user (in some cases more than one, but not many more), the applicants cannot prove that there have been ‘electronic transmissions’ by iiNet users of the applicants’ films. But it is equally absurd to suggest that each and every piece taken by the DtecNet Agent from an iiNet user constitutes an individual ‘electronic transmission’ infringement.
311. The correct approach is to view the swarm as an entity in itself. The ‘electronic transmission’ act occurs between the iiNet user/peer and the swarm, not between each individual peer. One-on-one communications between peers is the technical process by which the data is transferred, but that does not mean that such level of detail is necessarily what the communication right in s 86(c) focuses upon. While the DtecNet evidence cannot prove directly that an iiNet user has ‘electronically transmitted’ a film to the swarm (it can only show that the data has been ‘electronically transmitted’ to the DtecNet Agent acting as a peer in the swarm) the evidence is sufficient to draw an inference that in most cases iiNet users have done so. “

There are many other legal aspect treated, most of them are specific to Australian copyright law. The most relevant from an international perspective, and one that has been highlighted elsewhere, is that the ruling seems to seriously attack the viability of three-strikes approaches to copyright infringement. Firstly, there is a lengthy discussion about the legal reliability of evidence obtained by agents acting on behalf of the copyright owners, when by definition those agents are licensed by the owner to undertake actions that would otherwise be infringing, namely, collect copies from the internet. Secondly, there is the troublesome issue of how such evidence should be suspect in the first place. Cowdroy J says:

“631. [...] the Court finds that it would not be appropriate to construe the safe harbour provisions such that there is an expectation on the [ISP] to terminate its subscribers at the request of a person who does not swear to the truth of his statement, and is an employee of an organisation whose precise legal status vis-à-vis the relevant copyright owners and exclusive licensees is not at all clear. Allegations of copyright infringement are serious charges which are potentially defamatory. Further, AFACT (the Australian copyright enforcement agency) enjoys no status as an authority invested with power to issue legally enforceable directions.”

This paragraph should be printed out and handed out to the Lords currently discussing the Digital Economy Bill (wink, wink, ORG). We cannot possibly build a system of punishment that relies entirely on suspect accusations without any legal recourse. The very principles of fairness and due process of law are at stake here.

What a refreshing ruling from Down Under. Unfortunately, another copyright case from the land where women glow and men plunder has overshadow this more important development.

I just smiled and gave me a vegamite sandwich.

Letters from the ISP front

Andres — Thu, 28 Jan 2010 10:24:13 +0000

"They are getting closer, I can hear their lawsuits at night"

Anyone who has been paying attention to the War on Piracy will have noticed that the emphasis has shifted from the user to the internet service provider. As content owners discovered that attempts to enforce their rights against users backfired and/or had no noticeable effect, they began returning to the strategy of trying to make the service providers liable for the infringement committed by their customers.

The first barrage in the war took place when content owners managed to get Irish ISP Eircom to promise that it would disconnect repeat offenders. Then an Australian copyright conglomerate (representing several U.S. content giants) sued iiNet for copyright infringement incurred by its customers, and we should get a ruling next week.

These lawsuits however are only a small part of the global strategy. As it has been repeatedly posted here and elsewhere, the end-game for the content providers is of course to make ISPs liable through the inclusion of three-strikes clauses into copyright law. New Zealand and France have attempted to do just that with mixed results, and in the UK we are currently experiencing a similar threat through the Digital Economy Bill. But it is in ACTA where the final battle will take place. The inclusion of three-strikes provisions in a wide-ranging bilateral agreement between some of the most developed countries in the world will almost undoubtedly spell the end of intermediary indemnity, and more importantly, it might well spell the end of ISPs as we know them.

Update: And to complicate things even more, Virgin Media says that it will use deep-packet inspection software to monitor potential infringing material.

Edinburgh ORG meeting reminder

Andres — Fri, 22 Jan 2010 16:39:03 +0000

Quick reminder that the Open Rights Group is holding a meeting in Edinburgh this Sunday:

How to talk to your MP and get them to change the Digital Economy Bill (Edinburgh)
Sunday, January 24, 2010 from 2:00 PM – 5:00 PM (GMT)

Gain the confidence to talk and write to your MP

Rehearse talking to your MP one on one
Find out what MPs will ask you
Learn how to write to your MP and get a response
Meet other people campaigning against disconnection without trial in the Digital Economy Bill

Open Rights Group wants to help you get your voice heard: by helping you to talk to your MP.

Booking an appointment with your MP and saying what you think is easier than you might think.

And talking to your MP is the most effective way to make sure Parliament knows how unpopular and bad disconnection without trial really would be. In this short session, you can try out talking to your ‘MP’ or watch someone else having a go, and learn how to get your points across in a way that an MP will understand.

How did OiNK get away?

Andres — Tue, 19 Jan 2010 09:39:39 +0000

"I'm not criminally liable for secondary infringement, officer!"

It was supposed to be the British equivalent of high-profile cases such as PirateBay and the Jamie Thomas trial. It was supposed to act as a clear deterrent to a new generation of file-sharers against widespread copyright infringement. Instead, Alan Ellis, the founder of torrent tracking site OiNK has been acquitted of the charges of conspiracy to defraud. How did this case turn from sure thing to nightmare for the music industry?

OiNK was not your typical torrent tracker site. Websites such as PirateBay, Isohunt, and TorrentReactor are free to use and available to the wider public. OiNK was a free-of-charge closed service, available only by invitation from an existing member, which could be obtained by paying $5 USD. The site also operated through donations, which amounted to a staggering $300,000 USD. OiNK’s statistics are impressive, it boasted 200,000 registered users, and it facilitated the exchange of 21 million files. I am going to go out on a limb here and claim that most of those files were infringing copies.

So, it is clear that OiNK was in the wrong, and the fate of Mr Alan Ellis was sealed, right? Not really. The problem seems to have been that prosecutors chose to charge Mr Ellis with conspiracy to defraud, instead of anything related to copyright infringement. This meant that they had to prove Mr Ellis was trying to defraud his customers, when it was clear that he was offering a service, and his clientèle knew fully well what they were getting into. No fraud then.

Why didn’t the prosecution try for copyright infringement offences? For example, s107 CDPA establishes criminal offences for various copyright infringement acts made “in the course of business”. As Mr Ellis was clearly profiting handsomely from his services, it could be argued strongly that he was infringing copyright for commercial gain. Or can it? The main problem with torrent sites is precisely that no infringing copies are kept on the servers, and that the trackers act simply as facilitators. Using a real-world analogy, torrent sites are more akin to bar lounges where illicit goods change hands. Nonetheless, s107 also covers secondary infringement offences, such as communicating infringing copies to the public, which one might think is precisely what a torrent site does. However, the wording of UK copyright law is problematic in this respect, as it seems entirely drafted with physical copyright infringement in mind. For example, s108 CDPA says:

“108.-(1) The court before which proceedings are brought against a person for an offence section 107 may, if satisfied that at the time of his arrest or charge-
(a) he had in his possession, custody or control in the course of a business an infringing copy of a copyright work, or
(b) he had in his possession, custody or control an article specifically designed or adapted for making copies of a particular copyright work, knowing or having reason to believe that it had been or was to be used to make infringing copies,
order that the infringing copy or article be delivered up to the copyright owner or to such other person as the court may direct.”

This clearly assumes that criminal commercial infringement will take place through some physical medium, and seems to preclude facilitating online acts. It seems then that prosecutors were not sure to obtain a conviction through copyright infringement. OUT-Law makes a good point that the best way to proceed was to pursue OiNK for authorising copyright infringement, which is a civil offence for secondary infringement (see s24(2) CDPA).

Good news for OiNK may be bad news for the rest of us, as I am afraid that the music industry may use this verdict to push for stronger copyright protection in the upcoming Digital Economy Bill. It is clear that some torrent sites operate at the very fringes of acceptable behaviour. As some independent musicians have pointed out in an interesting Guardian blog article, torrent sites may be guilty of not doing enough to curb infringement. If legislators are presented with an idea of a virtual Wild West where everything goes, we may be in for a rough awakening when the Bill eventually gets through Parliament.

Debating the Digital Economy Bill: Exercise in futility?

Andres — Thu, 03 Dec 2009 10:37:48 +0000

The House of Lords debated yesterday the Digital Economy Bill, and I use the phrase “debate” in the loosest possible sense. What we got was a depressingly one-sided affair replete with misrepresentation, misunderstanding of the core issues, swallowing the industry’s figures without question, and corroboration that the House of Lords is an anachronistic, anti-democratic institution replete with sickening back-slapping, old-boy cronyism and undeserved deference. It was sort of sad to see Lords mentioning each other’s past acquaintances and current past-times in policy discussion: “M’lohrd Wheelbarrow of Borington knows full well everything there is to know about telecommunications as he was chairman of the Big Whig Association of Teleprompters. He also has extensive contacts in the industry, wink-wink-nudge-nudge, hur, hur, hur”.

The first thing one must note from this debate is how some of the country’s legislators cannot tell the difference between theft and infringement. It was also infuriating to hear Lord Fowler act as nothing more than an industry spokesperson, repeating old and tired one-sided statistics that have no bearing in reality. In one telling paragraph in his speech, he quoted James Clayton, an investor for the film industry:

“One of the films we co-financed recently was ‘Wolverine’, a spin-off of the ‘X Men’ series, released at the start of May. Shortly before release in April, a partially completed version of the film found its way onto the web. It was downloaded four million times and Fox, who are our partners on the film, estimate that it probably knocked $20 million to $30 million off the box office”.

The only reason why Wolverine had an atrocious drop at the box office has nothing to do with the fact that it was made available online, and everything to do with the small and insignificant detail that it was a steaming pile of post-digestive refuse. When is the industry going to stop blaming piracy for its own lack of quality?

Lord Razzall continued the trend by erecting a monumental straw-man and then proceeding to knock it down. He said:

“[...] to use copyrighted material without the appropriate payment is actually theft, and we have no sympathy for the suggestion coming from certain quarters that all information on the internet should be free, irrespective of the copyright position. Although many 18 year-olds-or even 17 year-olds-would take that position, we do not think that that is the correct position to take. [...] we think that education in this area is very important. There is a whole universe of people out there who genuinely believe that everything on the internet is free. They do not realise that they are in breach of copyright when they download music or a film, so the industry and the Government need to work together to ensure that there is proper education on that.”

I do not know anyone who thinks that information online is free. Lord Razzall seems to misunderstand the phrase “information wants to be free”, which has entirely different connotations to what he means. This paragraph also falls into the blatantly silly assumption that file-sharing is done by pimply teenagers, and that education will somehow knock it out of them. The reality of course is more nuanced, and until we have clear recognition that the demographics are more varied, we will continue getting regulatory solutions that are drafted towards teenagers and lonely students.

The low point of the proceedings came when the Bishop of Manchester mentioned that piracy breaks the Lords commandment “Thou shall not steal”. Better argument in favour of secularism I have never heard.

I am a glass half-full kind of person, so I must recognise that there were some positive things in the debate. Lord Razzall at least mentioned proportionality and the principle of “innocent until proven guilty”. He also seemed very reluctant to give excessive power to the government to amend substantive copyright law through statutory instrument. Lord Razzall also was the only one to mention format-shifting, and hopefully we might get some change to the patently absurd status quo in the UK on that respect.

In another positive note, Lord Lucas was surprisingly clear-headed, and I felt that he was perhaps the only one who tried to imbue a bit of balance to the debate. He said:

“Lastly, I want to speak about copyright. I should declare my interest as my main activity outside this House is in producing copyrighted material and selling it in book form and very substantially on the internet, so the basic protections that copyright law offers are extremely important to me. However, I think that the Bill has to be careful to ensure that it looks after the proper interests of citizens. We have always allowed citizens leeway under copyright law. You can lend books to friends and, as has been said, you can even copy your music and put it on to different kit. It is well known that newspapers are read by many more people than buy them, and certainly I am happy to borrow them when they are left behind on buses. I think it is entirely reasonable that people have got used to a reasonable level of sharing of copyrighted material between friends and within small communities, so that it does not have to be purchased again for every instance that it is used. The figures produced to show the losses incurred by the creative industries through illegal downloads do not represent those losses, but reflect infringement of copyright. It is not at all certain how many songs or films would actually have been purchased if people had had to pay for them. Many of the people who are downloading in this way are not in a position to pay for more than they do already, so one must be careful about the terminology one uses.”

This brings me to the point of this post. The blogosphere, the Twittersphere, and pretty much anyone with an interest in digital copyright has already been making their opinions felt (see here and here). It is disheartening to see industry propaganda being wheeled out time and time again, and all of the informed and eloquent discussion seems to go unnoticed. I remember watching Lord Mandelson’s presentation of the Digital Economy Bill, where he clearly dismissed ORG and any other activists as a small digital minority of cyber-obsessives. The same thing happened during yesterday’s debate, where Lord Fowler made the following statement:

“The internet has achieved many good things, but it is equally clear that it has made that kind of abuse possible. It is clear that public interest heavily argues for action to be taken to prevent such abuse taking place. I understand that there are other views. We have all been inundated with advice on this matter. If you go to a recent BBC blog, you will see that three pages of what was intended as an objective discussion of the position was followed by 23 pages of comment, mostly from people who were passionately opposed to action being taken.”

So, 23 entire comment pages were filled with dissenting views, yet His Lordship did not believe that such vigorous display of democratic engagement was worth more mention than to demonstrate how the public’s opinion is to be summarily dismissed in order to serve the public interest, which seems to be suspiciously aligned to the interest of the big copyright industry. “Yes little people, you may tweet, blog and comment all you like, but we know better, and we will not deign to address any of your arguments”.

How do you counter such level of arrogance? Is it worth making more noise, if we will be continuously ignored?