Copyright Vs. The Internet (Part 2)


Thank you for all your interesting feedback and comments on Part 1. Here’s the second part in my update of this complex and vital subject…

Working For The Clampdown?
In order to demonstrate that increased control and regulation of the internet is both imminent and innevitable, I offer below a few country cases which are meant to highlight what is happening in a few key territories.

What has happened/happening in these countries will almost certainly form the basis upon which similar laws are based in many other countries, as all of them are ultimately tied together in some way via global laws, treaties and organisations (WTO/TRIPS, WIPO etc).

Indeed, if copyright is a topic of deeper interest, I would suggest starting with an overview on Wikipedia, and then having a look at some key international sites such as the WTO (TRIPS) and WIPO as well as the relevant governing body within countries or territories holding particular interest (the WIPO site provides links to most of these).

USA – The World Cop?
Perhaps nowhere else is the free internet lobby or the rebel mentality as entrenched as here. That being said, nowhere else are the copyright industries so large or so vitally important to the economy.

During the election campaign, many downloaders thought President Obama might be their friend. Well, any such thoughts were quickly extinguished once he took office and quickly nominated several RIAA anti-piracy stalwarts to the most senior positions at the Justice Department (read my TMV post on the subject here).

In any case, Obama’s strategy on copyright reform remains blurry, as this article published on points out. In the context of global economic crisis, a turbulent Middle East and and War in Afghanistan, it is my opinion that Copyright reform will simply receive the level of Presidential attention it might otherwise deserve, and so it seems unlikely that the US will be the one to innovate in the area of legislative and regulatory reform. That job will probably be left to other countries with slightly less on their plate at the moment.

(that being said, they are still fond of their ‘Shit Lists & Letters’, and just recently placed best friend and biggest trading partner Canada on their Piracy List)

Sweden – The Troubled Child
What can we say about the home of Pirate Bay, Spotify and the dreaded ‘DarkNets’?  Whatever will go right or wrong with a regulated internet and copyright protection, you just get the feeling that a lot of the pitched battles will be fought here first.

Having been the home of piracy for so long, Sweden has just broke new ground on the other extreme and slapped a 1 year jail sentence on the founders of Pirate Bay along with a £1m fine (the music and movie plaintiffs were requesting £9m). This is the first time the operators of file sharing networks have truly had the book thrown at them and faced long-term incarceration. Whether this will be a deterrent anywhere outside of Sweden is anyone’s guess right now.

But what we can say, apparently, is that when file sharing sites were shut down in Sweden a few weeks ago, internet traffic in and out of Sweden dropped by a whopping 33% pretty much overnight.

With the Pirate Bay guys looking set to appeal, the story is likely far from over here. In any case, Sweden is a good case in how going ‘pillar to post’ in the approach to copyright law and enforcement is probably not ideal. Create the conditions for a problem and then go over the top in your repsonse to its bit part players?

Consistency and fairness must surely represent best approach. I think it’s also known as Rule of Law.

New Zealand – The Early Leader
New Zealand has been one of the leaders in establishing legal measures to control the harsher effects of digital copyright infringements by rendering ISPs (under the Copyright Act of 1994) responsible for copyright by forcing them to terminate customer’s access where there has been repeated infringement.

Section 92A of the Act specifically requires ISPs “to adopt and implement a policy that provides for the termination, in appropriate circumstances, of a repeat infringer.” This provision is actually mirrored in section 116AH of the Australian Copyright Act of 1968 which recently received media attention surrounding iiNet.

The New Zealand law requires copyright owners to inform ISPs of infringements, which shifts the policing burden onto the ‘victims’, really. The major potential problem with this is it allows for a lot of scope in the term “infringement”, and what might constitute reportable breaches from one content owner may differ from another, leading to confusion, particularly among younger users.

Interestingly, New Zealand has also begun to address downloaders in the workplace as well whereby content owners can issue letters to the employer stating the observed copyright breaches. If behaviour from the commercial internet connect persists, then the telecoms supplier/ISP is required to attribute the breach to the whole organisation’s internet account and not the individual employee. To avoid termination, organisations must have an internal policy that addresses copyright infringement, effectively putting people’s jobs at risk where they are caught downloading or sharing from their place of work.

This potential quagmire involving downloading at the workplace demonstrates the need for most (if not all) territories to engage in wholesale review of copyright. Tinkering at the edges will only get you so far. ISPs require uniform rules and ‘content watch lists’ to work from. The copyright industries should be made to pay for  a large share of the auditing and policing of these lists, with consumer advocate groups and public auditors gaining full access to their work.

France – Part Of The New Wave?
Recently, the implementation of Europe’s first “3 Strikes Law” for downloaders only escaped becoming law by the slimmest of margins when it was rejected by the French Judiciary. In the end, it seems it was the fact that ISP subscribers would have been forced to continue to pay their ISP bills even after being cut-off from the actual service that didn’t sit that well with the judges.

In any case, President Sarkozy clearly has a hard-on for copyright abusers and I fully expect Gallic legislators to make the small tweaks required to make this law passable and and for it to become law in the autumn of this year.

In my opinion, if/when this revised legislation is passed, it will illuminate a practical way forward for many other countries, and could well resonate well beyond Europe. Indeed, while France stumbled briefly, Taiwan has actually pipped them by actually pushing through their own variant of the ‘three strikes’ law, as reported here in the Hollywood Reporter.

The Way Forward: Common Sense
Should individuals downloading copyrighted material face jail? Personally I don’t think so. It smacks of crushing a walnut with a sledge hammer, really. But in lieu of sweeping changes to copyright law, should there be penalties? Yes, I believe there should.

In fact, if I am to believe in the greater Rule of Law upon which most of modern society is based, my hands are actually tied on this. But whatever penalties we decide upon, they should be fair and proportional.

The French approach mentioned above seems to come close in my view, but even it seems a bit harsh, based as it is on “three strikes” protocols that were originally put in place in America in order to deal with major repeat criminals.

I would suggest that there’s a solution for handling downloaders that is based on something we are already very good at managing: the humble driver’s licence:

It might not seem obvious, but a ‘demerit points’ approach could be repeated for copyright infringers and offer a more incremental, flexible way forward. Download a few tracks every week, you get a letter and 1 point. Download 50G of content a week, get a letter and 4 points. Accumulate 12 points in a given 12 month period, lose your internet for a year. Stay clean for a 12 month period, points get dropped.

I am sure there are problems with this approach, but it seems to work for the drivers of cars who do have the right to travel from A to B, but not in a way that is so fast it endangers my right to life.

It really is time we brought this common-sense approach to copyright infringement and got on with our lives. It’s inevitable in any case and there really are bigger fish to fry. Take for example the issue of digital privacy. It seems everyone, including governments, international bodies, advertisers and even social networks are all after exploiting our digital cookie crumb trails in one way or another, and that personally, scares me one hell of a lot more than paying for a few tracks and films.

Spies Like Us?
Will encryption be the next battleground? Practically the same day as the Pirate Bay dudes were thrown in the slammer, Sweden’s first commercially available “Darknet” ISP, Relakks, was launched.

What Darknets provide are the sort of encryption and masking technology that was historically the sole preserve of spies, cryptographers, mathematicians, people with their fingers on the triggers of nuclear arsenals and, um, Google execs.

Nowadays, even little Billy can gain access to this technology for 10 bucks a month. I have no idea how you tell what anyone is swapping over one of these connections, and I think the point is that you can’t. And to be honest, with news that European governments and advertisers are now spying on us (whether we know it or not), I’m almost tempted to say forget bloody copyright, we might actually need encryption to our rights to privacy and free speech, especially if the forces of advertising evil move beyond the fixed line and begin combining mobile web browsing data with location-based info:

“There’s McLellan, walking past Miccie D’s…let’s push him a wap voucher for a big fat grease burger. We know he loves the junk food. The pig.”

Has the war on public encryption just begun? Is the WEP Encryption on your WiFi router about to be declared a crime against humanity (and copyright)? Will public and private ‘spying’ give rise to a new wave of encryption-based tech wars and put everything back to square one?

Who knows. Personally, I am more confused about all this than ever.

Other readers also read:

Copyright Vs. The Internet (Part 1)

O Tenenbaum, O Tenenbaum

Morality in the Digital Age


Discussion4 Comments

  1. The criminalization of music fans proceeds apace. “Be a music fan, go to jail.”

    “To a first approximation, every PC owner under the age of 35 is a felon.” – Clay Shirky.

  2. The New Zealand law, Section 92A, has been scraped and they’re redoing it from scratch, see:

    Your section on ‘the way forward’ seems correct to me but I think that there’s a necessary addition to it. The internet is a great big copying machine… it’s made copying so cheap that for copyright to be worth anything then copyright enforcement needs to be equally cheap, but against this you must maintain due process.

    Many of these schemes do away with due process and rely on allegations of copyright infringement. New Zealand’s S92A law wasn’t about “repeated infringement” per se, but more around “repeated alleged infringement”. There was no court, no experts to decide, no quality of evidence – and so ISPs would likely weigh up who would cause them more risk: the accused or the accuser. ISPs couldn’t replace the courts.

    Copyright law has historically been around commercial large-scale infringement that was worth taking to court, not personal infringement. Targeting personal infringement must still have due process and as artists we should stand up for what’s right.

    The legal alternative needs to be made available. A lot of music and most movies are not available for legal purchase online.

    Darknets can be free and integrated into P2P clients (eg, Limewire). The issue forcing P2P underground and making it untraceable (Eg, Tor) is obviously a more general issue about encouraging a technology arms-race. A subtle approach is needed.

    But we must have due process, and ultimately it’s not 1990 any more — there’s better money to be made by changing.

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