In January this year it was reported that ISPs in the United States had no intention of implementing a voluntary graduated response program for the illegal sharing of copyright material. This was recently supported by the USA signing a UN statement condemning the disconnection of internet users as a breach of the UN Covenant on Civil and Political Rights. This was despite earlier suggestions by the content industry that the enforcement of copyright law should be the responsibility of the Government. Now news this week that a voluntary graduated response program could be implemented as early as next month in the United States.
AT&T, Comcast, Verizon appear to be in the process of striking a deal with the content industry to introduce a range of measures designed to prevent or discourage the illegal sharing of music and film. The White House is also involved in the negotiations.
While disconnections do not seem to be part of the current equation repeat copyright infringers would receive notification that they have been detected sharing and following this sanctions such as throttling bandwidth speeds, limiting web access to the top 200 sites and compulsory participation in an education program are all being considered.
This seems to have come about due to the lobbying influence of the Motion Picture Industry which as joined the RIAA in calls for a graduated response program. The RIAA alone have been pushing for such a scheme since 2008.
This could lead to increased costs for consumers with ISPs reportedly splitting the cost of enforcement with the content industry. This includes innocent parties covering the costs of those that engage in file sharing.
Many argue that this is unlikely to have a positive effect on the sales of music and films with no direct correlation being made between sharing and lost sales. Indeed, what is more likely to happen is a further loss in sales with less exposure to new content and less opportunities for viral marketing.
This is an unfortunate development and one likely to have many more negative consequences rather than positive outcomes for artists. One can only begin to wonder what on earth the ISPs have to gain from this, with agreement to take on enforcement of intellectual property likely to open a can of worms that can never be overcome. This is a slippery slope and one that should not be embarked upon without judicial oversight.
Further Reading
TechDirt, Two Years After The RIAA Suggested ISPs Were Ready To Implement 3 Strikes, Most ISPs Have No Such Plans (5 January 2011) < http://www.techdirt.com/articles/20110105/03222912526/two-years-after-riaa-suggested-isps-were-ready-to-implement-3-strikes-most-isps-have-no-such-plans.shtml > at 17 January 2011
ArsTechnica, US, NZ, Sweden, others condemn "three strikes" Internet laws (14 June 2011) < http://arstechnica.com/tech-policy/news/2011/06/us-nz-sweden-others-condemn-three-strikes-internet-laws.ars > at 15 June 2011
ArsTechnica, IFPI: Fighting music piracy is a government job (21 January 2011) < http://arstechnica.com/tech-policy/news/2011/01/ifpi-music-piracy-hurts-us-but-fighting-it-is-governments-job.ars > at 22 January 2011
ArsTechnica, Big Content, ISPs nearing agreement on piracy crackdown system (23 June 2011) < http://arstechnica.com/tech-policy/news/2011/06/big-content-isps-nearing-agreement-on-piracy-crackdown-system.ars > at 27 June 2011
Digital Music News, ISPs Look Ready for 'Graduated Response'. But Isn't This 10 Years Too Late? (24 June 2011) < http://www.digitalmusicnews.com/stories/062311graduated > at 27 June 2011
ZeroPaid, AT&T, Comcast, Verizon to Implement “3-Strikes” Next Month? (23 June 2011) < http://www.zeropaid.com/news/93903/att-comcast-verizon-to-implement-3-strikes-next-month/ > at 27 June 2011
TechDirt, Why ISPs Becoming Hollywood Enforcers Won't Actually Solve Hollywood's Problem (23 June 2011) < http://www.techdirt.com/articles/20110622/23021514819/why-isps-becoming-hollywood-enforcers-wont-actually-solve-hollywoods-problem.shtml > at 27 June 2011
Monday, June 27, 2011
Thursday, June 23, 2011
iiNet goes to the High Court
News recently that the appeal by AFACT of the iiNet decision is likely to be made to the High Court of Australia on 12 August 2011. There is a further date of 2 September 2011 in case this date does not happen. It will be interesting to see whether the High Court grant leave to appeal - it is likely to take some time to get to trial if this is granted so dont expect any changes soon.
YouTube and Creative Commons
A few weeks ago it was announced that users uploading videos to YouTube are now able to select Creative Commons as a license option. At this stage this does not include all Creative Commons licenses but a simple attribution license that allows both commercial and non commercial uses of a video. This has taken some time with Creative Commons being around now for more than a decade and YouTube being launched over 6 years ago, but is definitely a step forward for those seeking to enable sharing of YouTube clips.
I have written before about the utter failure of Creative Commons licenses on file sharing networks with Limewire and now Frostwire both incorporating them into their file sharing services. The verification process rarely worked and many files were incorrectly licensed with no way of pulling the files down. This is unlikely to be an issue with YouTube as the DMCA and take down notice process will still apply.
What is interesting about this development however is the jurisdictional issues - Creative Commons has been ported to many countries with teams of people in each jurisdiction developing their own suite of licenses to suit the laws in each country. At this stage there is only one license available for use - a USA attribution license. It will be interesting to see whether the licenses developed in all Creative Commons jurisdictions become available for use or whether it is only the USA licenses that will be used.
48 hours of content is currently being uploaded to YouTube every minute of the day from countries all around the world. Furthermore, on its sixth birthday recently, the YouTube Facebook page stated that there have been over 3 billion streams of YouTube content. At the same time as announcing the availability of Creative Commons licenses on YouTube a Creative Commons video library containing 10,000 videos under CC BY from organizations such as C-SPAN, PublicResource.org, Voice of America, and Al Jazeera was also launched - within the first week this grew to 60, 000 videos - all available for remixing.
Further Reading
Creative Commons, CC News: YouTube Launches Creative Commons Support (7 June 2011) < http://creativecommons.org/weblog/entry/27606?utm_campaign=newsletter_1106&utm_medium=email&utm_source=newsletter > at 23 June 2011
YouTube, YouTube and Creative Commons: raising the bar on user creativity (2 June 2011) <
http://youtube-global.blogspot.com/2011/06/youtube-and-creative-commons-raising.html > at 23 June 2011
TechDirt, Youtube, Creative Commons And Why It's OK For You To License Your Artwork Any Way You Want (8 June 2011) < http://www.techdirt.com/articles/20110606/05351614562/youtube-creative-commons-why-its-ok-you-to-license-your-artwork-any-way-you-want.shtml > at 15 June 2011
I have written before about the utter failure of Creative Commons licenses on file sharing networks with Limewire and now Frostwire both incorporating them into their file sharing services. The verification process rarely worked and many files were incorrectly licensed with no way of pulling the files down. This is unlikely to be an issue with YouTube as the DMCA and take down notice process will still apply.
What is interesting about this development however is the jurisdictional issues - Creative Commons has been ported to many countries with teams of people in each jurisdiction developing their own suite of licenses to suit the laws in each country. At this stage there is only one license available for use - a USA attribution license. It will be interesting to see whether the licenses developed in all Creative Commons jurisdictions become available for use or whether it is only the USA licenses that will be used.
48 hours of content is currently being uploaded to YouTube every minute of the day from countries all around the world. Furthermore, on its sixth birthday recently, the YouTube Facebook page stated that there have been over 3 billion streams of YouTube content. At the same time as announcing the availability of Creative Commons licenses on YouTube a Creative Commons video library containing 10,000 videos under CC BY from organizations such as C-SPAN, PublicResource.org, Voice of America, and Al Jazeera was also launched - within the first week this grew to 60, 000 videos - all available for remixing.
Further Reading
Creative Commons, CC News: YouTube Launches Creative Commons Support (7 June 2011) < http://creativecommons.org/weblog/entry/27606?utm_campaign=newsletter_1106&utm_medium=email&utm_source=newsletter > at 23 June 2011
YouTube, YouTube and Creative Commons: raising the bar on user creativity (2 June 2011) <
http://youtube-global.blogspot.com/2011/06/youtube-and-creative-commons-raising.html > at 23 June 2011
TechDirt, Youtube, Creative Commons And Why It's OK For You To License Your Artwork Any Way You Want (8 June 2011) < http://www.techdirt.com/articles/20110606/05351614562/youtube-creative-commons-why-its-ok-you-to-license-your-artwork-any-way-you-want.shtml > at 15 June 2011
Thursday, June 16, 2011
Graduated Response and the UN
I have written about the many negative downsides to Graduated Response programs in the past but one that hasn't arisen until recently is that they are also a breach of the International Covenant on Civil and Political Rights.
It started with a UN Report in which a Special Rapporteur Frank La Rue stated:
While blocking and filtering measures deny access to certain content on the Internet, States have also taken measures to cut off access to the Internet entirely. The Special Rapporteur is deeply concerned by discussions regarding a centralized on/off control over Internet traffic. In addition, he is alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights. This also includes legislation based on the concept of graduated response, which imposes a series of penalties on copyright infringers that could lead to suspension of Internet service, such as the so-called three strikes- law in France and the Digital Economy Act 2010 of the United Kingdom... The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.
Article 19 states:
1. Everyone shall have the right to hold opinions without interference.
Since that time a statement was prepared and presented by Sweden at the UN Human Rights Council that was subsequently signed by 40 nations in which disconnections were condemned as being a disproportionate response to intellectual property violations. New Zealand signed this statement along with countries such as Brazil, Turkey, India, Japan and Poland.
In Australia recent reports indicate that MIPI no longer support disconnections as part of a Graduated Response program. While this has been met with some skepticism, AFACT still support disconnections as part of the wider measures to curb illegal file trading.
Further Reading
TechDirt, UN Report On Human Rights Condemns Three Strikes As Civil Rights Violation (3 June 2011) < http://www.techdirt.com/articles/20110603/04225614545/un-report-human-rights-condemns-three-strikes-as-civil-rights-violation.shtml > at 15 June 2011
ZeroPaid, UN Report: 3-Strikes is a “Violation of Human Rights” (3 June 2011) < http://www.zeropaid.com/news/93617/un-report-3-strikes-is-a-violation-of-human-rights/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+zeropaid+%28Zeropaid+File+Sharing+P2P+News%29 > at 15 June 2011
ZeroPaid, New Zealand Libraries Worry “3-Strikes” Could End Free Internet (25 May 2011) < http://www.zeropaid.com/news/93548/new-zealand-libraries-worr-3-strikes-will-end-public-wifi/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+zeropaid+%28Zeropaid+File+Sharing+P2P+News%29 > at 26 May 2011
TechDirt, New Zealand Libraries Considering Shutting Off Public Internet Access To Avoid Three Strikes Law (19 May 2011) < http://www.techdirt.com/blog/wireless/articles/20110518/01343314311/new-zealand-libraries-considering-shutting-off-public-internet-access-to-avoid-three-strikes-law.shtml > at 23 May 2011
ZeroPaid, Disconnecting File-Sharers Divides Australian MPAA, RIAA (7 June 2011) < http://www.zeropaid.com/news/93643/disconnecting-file-sharers-divides-australian-mpaa-riaa/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+zeropaid+%28Zeropaid+File+Sharing+P2P+News%29 > at 15 June 2011
ZeroPaid, New Zealand to Review Internet Disconnection After UN Criticism (6 June 2011) < http://www.zeropaid.com/news/93639/new-zealand-to-review-internet-disconnection-after-un-criticism/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+zeropaid+%28Zeropaid+File+Sharing+P2P+News%29 > at 15 June 2011
ZeroPaid, Kiwi Justice Minister: Govt “Will Not Reconsider” Internet Disconnection (8 June 2011) < http://www.zeropaid.com/news/93667/kiwi-justice-minister-govt-will-not-reconsider-internet-disconnection/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+zeropaid+%28Zeropaid+File+Sharing+P2P+News%29 > at 15 June 2011
TechDirt, Did The Recording Industry Really Step Back From Three Strikes? Or Is It Playing Word Games? (10 June 2011) < http://www.techdirt.com/articles/20110607/14543914594/did-recording-industry-really-step-back-three-strikes-is-it-playing-word-games.shtml > at 15 June 2011
TechDirt, New Zealand Politicians Who Supported Three Strikes Law Two Months Ago Now Worried It Violates Civil Rights (8 June 2011) < http://www.techdirt.com/articles/20110607/09032314591/new-zealand-politicians-who-supported-three-strikes-law-two-months-ago-now-worried-it-violates-civil-rights.shtml > at 15 June 2011
ArsTechnica, US, NZ, Sweden, others condemn "three strikes" Internet laws (14 June 2011) < http://arstechnica.com/tech-policy/news/2011/06/us-nz-sweden-others-condemn-three-strikes-internet-laws.ars > at 15 June 2011
ArsTechnica, UN report: "three strikes" Internet laws violate human rights (3 June 2011) < http://arstechnica.com/tech-policy/news/2011/06/un-free-speech-watchdog-blasts-three-strikes-rules.ars > at 15 June 2011
International Covenant on Civil and Political Rights (New York, 16 December 1966) < http://www.austlii.edu.au/au/other/dfat/treaties/1980/23.html > at 16 June 2011
It started with a UN Report in which a Special Rapporteur Frank La Rue stated:
While blocking and filtering measures deny access to certain content on the Internet, States have also taken measures to cut off access to the Internet entirely. The Special Rapporteur is deeply concerned by discussions regarding a centralized on/off control over Internet traffic. In addition, he is alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights. This also includes legislation based on the concept of graduated response, which imposes a series of penalties on copyright infringers that could lead to suspension of Internet service, such as the so-called three strikes- law in France and the Digital Economy Act 2010 of the United Kingdom... The Special Rapporteur considers cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.
Article 19 states:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
The report states that everyone has the right to freedom of expression through any type of medium :
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice...
This has been a particular problem in New Zealand where public libraries are even worried that they may have to stop providing free internet access to their patrons because of the threat of disconnections. There was some early suggestion that this UN Report could lead to a review of the disconnection policy in New Zealand but this no longer appears to be likely to happen.Since that time a statement was prepared and presented by Sweden at the UN Human Rights Council that was subsequently signed by 40 nations in which disconnections were condemned as being a disproportionate response to intellectual property violations. New Zealand signed this statement along with countries such as Brazil, Turkey, India, Japan and Poland.
In Australia recent reports indicate that MIPI no longer support disconnections as part of a Graduated Response program. While this has been met with some skepticism, AFACT still support disconnections as part of the wider measures to curb illegal file trading.
Further Reading
TechDirt, UN Report On Human Rights Condemns Three Strikes As Civil Rights Violation (3 June 2011) < http://www.techdirt.com/articles/20110603/04225614545/un-report-human-rights-condemns-three-strikes-as-civil-rights-violation.shtml > at 15 June 2011
ZeroPaid, UN Report: 3-Strikes is a “Violation of Human Rights” (3 June 2011) < http://www.zeropaid.com/news/93617/un-report-3-strikes-is-a-violation-of-human-rights/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+zeropaid+%28Zeropaid+File+Sharing+P2P+News%29 > at 15 June 2011
ZeroPaid, New Zealand Libraries Worry “3-Strikes” Could End Free Internet (25 May 2011) < http://www.zeropaid.com/news/93548/new-zealand-libraries-worr-3-strikes-will-end-public-wifi/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+zeropaid+%28Zeropaid+File+Sharing+P2P+News%29 > at 26 May 2011
TechDirt, New Zealand Libraries Considering Shutting Off Public Internet Access To Avoid Three Strikes Law (19 May 2011) < http://www.techdirt.com/blog/wireless/articles/20110518/01343314311/new-zealand-libraries-considering-shutting-off-public-internet-access-to-avoid-three-strikes-law.shtml > at 23 May 2011
ZeroPaid, Disconnecting File-Sharers Divides Australian MPAA, RIAA (7 June 2011) < http://www.zeropaid.com/news/93643/disconnecting-file-sharers-divides-australian-mpaa-riaa/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+zeropaid+%28Zeropaid+File+Sharing+P2P+News%29 > at 15 June 2011
ZeroPaid, New Zealand to Review Internet Disconnection After UN Criticism (6 June 2011) < http://www.zeropaid.com/news/93639/new-zealand-to-review-internet-disconnection-after-un-criticism/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+zeropaid+%28Zeropaid+File+Sharing+P2P+News%29 > at 15 June 2011
ZeroPaid, Kiwi Justice Minister: Govt “Will Not Reconsider” Internet Disconnection (8 June 2011) < http://www.zeropaid.com/news/93667/kiwi-justice-minister-govt-will-not-reconsider-internet-disconnection/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+zeropaid+%28Zeropaid+File+Sharing+P2P+News%29 > at 15 June 2011
TechDirt, Did The Recording Industry Really Step Back From Three Strikes? Or Is It Playing Word Games? (10 June 2011) < http://www.techdirt.com/articles/20110607/14543914594/did-recording-industry-really-step-back-three-strikes-is-it-playing-word-games.shtml > at 15 June 2011
TechDirt, New Zealand Politicians Who Supported Three Strikes Law Two Months Ago Now Worried It Violates Civil Rights (8 June 2011) < http://www.techdirt.com/articles/20110607/09032314591/new-zealand-politicians-who-supported-three-strikes-law-two-months-ago-now-worried-it-violates-civil-rights.shtml > at 15 June 2011
ArsTechnica, US, NZ, Sweden, others condemn "three strikes" Internet laws (14 June 2011) < http://arstechnica.com/tech-policy/news/2011/06/us-nz-sweden-others-condemn-three-strikes-internet-laws.ars > at 15 June 2011
ArsTechnica, UN report: "three strikes" Internet laws violate human rights (3 June 2011) < http://arstechnica.com/tech-policy/news/2011/06/un-free-speech-watchdog-blasts-three-strikes-rules.ars > at 15 June 2011
International Covenant on Civil and Political Rights (New York, 16 December 1966) < http://www.austlii.edu.au/au/other/dfat/treaties/1980/23.html > at 16 June 2011
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