Monday, December 1, 2008
Year in Review: Copyright Law Other Countries
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Year in Review: Copyright Law EU
Three Strikes
France was the first country in the world to consider the implementation of a three strikes policy (graduated response policy) with respect to file sharers.[1] France also set up the High Authority for the Distribution of Works and the Protection of Rights on the Internet (La Haute Autoritѐ pur la diffusion des oeuvres et la protection des droits sur internet, or HADOPI).[2] In response to the new authority and the powers conferred upon it the Electronic Frontier Foundation stated:
“As judge, jury, and executioner of "three strikes", HADOPI is born with wide-ranging powers over all French Internet users. The High Authority acts on reports of suspected infringement from rightsholder groups. Based on those accusations alone it can contact, warn, suspend and finally deny Net service to any French citizen. The High Authority has the right to obtain and peruse a year's worth of personal records from ISPs in the pursuit of their targets. They can order ISPs to include new filtering systems into their infrastructure, and can fine them up to 5,000 euros if they provide Net service to anyone on placed on the Authority's national Internet blacklist.”[3]
In October 2008 the European Parliament rejected the idea of a EU wide implementation of a three strikes policy.[4] The EU Parliament instead voted to approve an amendment that recognises users right to privacy and civil rights through Amendment 138:[5]
"(ga) applying the principle that no restriction may be imposed on the rights and freedoms of end-users, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, without a prior ruling by the judicial authorities, except where dictated by force majeure or by the requirements of preserving network integrity and security, and subject to national provisions of criminal law imposed for reasons of public policy, public security or public morality."[6]
The vote was 314 against a three strikes policy and 297 in favour and the Amendment to the Bono Report on Cultural Industries was approved.[7] The introduction of a three strikes policy is therefore possible only at the discretion of individual member countries.[8]
This followed a decision of the European Court of Justice in February 2008 that European Community law does not oblige EU member states to implement laws enabling the disclosure of internet account holders identities. The case, Promusicae v Telefonica concerned the Spanish music rights holders association request for user identities from the ISP Telefonica for the purposes of file sharing litigation.[9]
Other countries to consider a three strikes policy include Denmark where ISPs lobbied strongly against such as measure.[10] Australia, Japan and the United Kingdom also expressed some interest in introducing a three strikes scheme.[11]
ISP Filtering
In the process of considering the implementation of a three strikes policy the European Parliament also voted against the implementation of ISP based filtering with Amendment 139 stating:
“(g) applying the principle that end-users should be able to access and distribute any content and use any applications and/or services of their choice, subject to national provisions of criminal law imposed for reasons of public policy, public security or morality.”[12]
[1] Digital Music News, Sarkozy Starts Selling Three Strikes to Europe... (7 July 2008) <http://www.digitalmusicnews.com/stories_old/070708france> at 9 July 2008; ZeroPaid, French RIAA Announces Deadline to Ban File-Sharers from the Internet (8 May 2008) <http://www.zeropaid.com/news/9477/French+RIAA+Announces+Deadline+to+Ban+File-Sharers+from+the+Internet> at 10 May 2008;
[2] ZeroPaid, French RIAA Announces Deadline to Ban File-Sharers from the Internet (8 May 2008) <http://www.zeropaid.com/news/9477/French+RIAA+Announces+Deadline+to+Ban+File-Sharers+from+the+Internet> at 10 May 2008
[3] ZeroPaid, French RIAA Announces Deadline to Ban File-Sharers from the Internet (8 May 2008) <http://www.zeropaid.com/news/9477/French+RIAA+Announces+Deadline+to+Ban+File-Sharers+from+the+Internet> at 10 May 2008
[4] Digital Music News, European Parliament Rejects Three Strikes Proposal (26 September 2008) <http://www.digitalmusicnews.com/stories/092508eu> at 5 October 2008
[5] TechDirt, European Parliament Rejects Laws Kicking File Sharers Off The Internet (25 September 2008) <http://www.techdirt.com/articles/20080925/1522352377.shtml> at 26 September 2008
[6] Digital Music News, European Parliament Rejects Three Strikes Proposal (26 September 2008) <http://www.digitalmusicnews.com/stories/092508eu> at 5 October 2008
[7] Digital Music News, European Lawmakers Question French ISP Monitoring, Enforcement (14 April 2008) <http://www.digitalmusicnews.com/stories/041308EU> at 17 April 2008; EFF Deeplinks, EU Politicians Strike Back Against Three Strikes (7 April 2008) <http://www.eff.org/deeplinks/2008/04/eu-politicians-strikes-back-against-three-strikes> at 13 April 2008; ZeroPaid, European Parliament Rejects Plans to Disconnect File Sharers (11 April 2008) <http://www.zeropaid.com/news/9398/European+Parliament+Rejects+Plan+to+Disconnect+File-Sharers> at 13 April 2008
[8] Digital Music News, European Parliament Rejects Three Strikes Proposal (26 September 2008) <http://www.digitalmusicnews.com/stories/092508eu> at 5 October 2008; BBC News, Europe rejects anti-piracy plans (11 April 2008) <http://news.bbc.co.uk/2/hi/technology/7342135.stm> at 13 April 2008; TechDirt, European Parliament Rejects IFPI Plan To Make ISPs Copyright Cops (10 April 2008) <http://www.techdirt.com/articles/20080410/165146815.shtml> at 13 April 2008
[9] EFFector, EU Law Does Not Require ISP to Hand Over Customers' Identity Data in Alleged Filesharing Case (6 February 2008)Vol. 21, No. 04 <http://www.eff.org/deeplinks/2008/01/eu-law-does-not-require> at 7 February 2008
[10] Digital Music News, Three Strikes? Danish ISPs Say No, No, No... (17 September 2008) <http://www.digitalmusicnews.com/stories/091708denmark> at 21 September 2008
[11] The Star, A Swing and a Miss for 'Three Strikes' Policy (21 April 2008) <http://www.thestar.com/sciencetech/article/416484> at 26 April 2008
[12] Digital Music News, European Parliament Rejects Three Strikes Proposal (26 September 2008) <http://www.digitalmusicnews.com/stories/092508eu> at 5 October 2008
France was the first country in the world to consider the implementation of a three strikes policy (graduated response policy) with respect to file sharers.[1] France also set up the High Authority for the Distribution of Works and the Protection of Rights on the Internet (La Haute Autoritѐ pur la diffusion des oeuvres et la protection des droits sur internet, or HADOPI).[2] In response to the new authority and the powers conferred upon it the Electronic Frontier Foundation stated:
“As judge, jury, and executioner of "three strikes", HADOPI is born with wide-ranging powers over all French Internet users. The High Authority acts on reports of suspected infringement from rightsholder groups. Based on those accusations alone it can contact, warn, suspend and finally deny Net service to any French citizen. The High Authority has the right to obtain and peruse a year's worth of personal records from ISPs in the pursuit of their targets. They can order ISPs to include new filtering systems into their infrastructure, and can fine them up to 5,000 euros if they provide Net service to anyone on placed on the Authority's national Internet blacklist.”[3]
In October 2008 the European Parliament rejected the idea of a EU wide implementation of a three strikes policy.[4] The EU Parliament instead voted to approve an amendment that recognises users right to privacy and civil rights through Amendment 138:[5]
"(ga) applying the principle that no restriction may be imposed on the rights and freedoms of end-users, notably in accordance with Article 11 of the Charter of Fundamental Rights of the European Union on freedom of expression and information, without a prior ruling by the judicial authorities, except where dictated by force majeure or by the requirements of preserving network integrity and security, and subject to national provisions of criminal law imposed for reasons of public policy, public security or public morality."[6]
The vote was 314 against a three strikes policy and 297 in favour and the Amendment to the Bono Report on Cultural Industries was approved.[7] The introduction of a three strikes policy is therefore possible only at the discretion of individual member countries.[8]
This followed a decision of the European Court of Justice in February 2008 that European Community law does not oblige EU member states to implement laws enabling the disclosure of internet account holders identities. The case, Promusicae v Telefonica concerned the Spanish music rights holders association request for user identities from the ISP Telefonica for the purposes of file sharing litigation.[9]
Other countries to consider a three strikes policy include Denmark where ISPs lobbied strongly against such as measure.[10] Australia, Japan and the United Kingdom also expressed some interest in introducing a three strikes scheme.[11]
ISP Filtering
In the process of considering the implementation of a three strikes policy the European Parliament also voted against the implementation of ISP based filtering with Amendment 139 stating:
“(g) applying the principle that end-users should be able to access and distribute any content and use any applications and/or services of their choice, subject to national provisions of criminal law imposed for reasons of public policy, public security or morality.”[12]
[1] Digital Music News, Sarkozy Starts Selling Three Strikes to Europe... (7 July 2008) <http://www.digitalmusicnews.com/stories_old/070708france> at 9 July 2008; ZeroPaid, French RIAA Announces Deadline to Ban File-Sharers from the Internet (8 May 2008) <http://www.zeropaid.com/news/9477/French+RIAA+Announces+Deadline+to+Ban+File-Sharers+from+the+Internet> at 10 May 2008;
[2] ZeroPaid, French RIAA Announces Deadline to Ban File-Sharers from the Internet (8 May 2008) <http://www.zeropaid.com/news/9477/French+RIAA+Announces+Deadline+to+Ban+File-Sharers+from+the+Internet> at 10 May 2008
[3] ZeroPaid, French RIAA Announces Deadline to Ban File-Sharers from the Internet (8 May 2008) <http://www.zeropaid.com/news/9477/French+RIAA+Announces+Deadline+to+Ban+File-Sharers+from+the+Internet> at 10 May 2008
[4] Digital Music News, European Parliament Rejects Three Strikes Proposal (26 September 2008) <http://www.digitalmusicnews.com/stories/092508eu> at 5 October 2008
[5] TechDirt, European Parliament Rejects Laws Kicking File Sharers Off The Internet (25 September 2008) <http://www.techdirt.com/articles/20080925/1522352377.shtml> at 26 September 2008
[6] Digital Music News, European Parliament Rejects Three Strikes Proposal (26 September 2008) <http://www.digitalmusicnews.com/stories/092508eu> at 5 October 2008
[7] Digital Music News, European Lawmakers Question French ISP Monitoring, Enforcement (14 April 2008) <http://www.digitalmusicnews.com/stories/041308EU> at 17 April 2008; EFF Deeplinks, EU Politicians Strike Back Against Three Strikes (7 April 2008) <http://www.eff.org/deeplinks/2008/04/eu-politicians-strikes-back-against-three-strikes> at 13 April 2008; ZeroPaid, European Parliament Rejects Plans to Disconnect File Sharers (11 April 2008) <http://www.zeropaid.com/news/9398/European+Parliament+Rejects+Plan+to+Disconnect+File-Sharers> at 13 April 2008
[8] Digital Music News, European Parliament Rejects Three Strikes Proposal (26 September 2008) <http://www.digitalmusicnews.com/stories/092508eu> at 5 October 2008; BBC News, Europe rejects anti-piracy plans (11 April 2008) <http://news.bbc.co.uk/2/hi/technology/7342135.stm> at 13 April 2008; TechDirt, European Parliament Rejects IFPI Plan To Make ISPs Copyright Cops (10 April 2008) <http://www.techdirt.com/articles/20080410/165146815.shtml> at 13 April 2008
[9] EFFector, EU Law Does Not Require ISP to Hand Over Customers' Identity Data in Alleged Filesharing Case (6 February 2008)Vol. 21, No. 04 <http://www.eff.org/deeplinks/2008/01/eu-law-does-not-require> at 7 February 2008
[10] Digital Music News, Three Strikes? Danish ISPs Say No, No, No... (17 September 2008) <http://www.digitalmusicnews.com/stories/091708denmark> at 21 September 2008
[11] The Star, A Swing and a Miss for 'Three Strikes' Policy (21 April 2008) <http://www.thestar.com/sciencetech/article/416484> at 26 April 2008
[12] Digital Music News, European Parliament Rejects Three Strikes Proposal (26 September 2008) <http://www.digitalmusicnews.com/stories/092508eu> at 5 October 2008
Year in Review: ISP Liability
Following directly on from the earlier posts regarding the Higher Education Act and individual lawsuits for file sharing both in the United States and in other countries over the past 12 months, there have been additional events which have effected the position of internet service providers. In the United States legislation was passed with respect to higher education institutions and in Australia a case was commenced questioning the protection of the safe harbours afforded to ISPs under the Copyright Act.
United States
The response to file sharing and copyright infringement has varied enormously across campuses in the United States. As mentioned in earlier posts, some universities are attempting to block the subpoena process, others such as Stanford are disconnecting students and charging large reconnection fees.
One university, Bowling Green State University introduced a three strikes scheme whereby first time offenders were disconnected from the internet for 24 hours, second time offenders were disconnected for 2 weeks and third time offenders were disconnected for the remainder of the semester.[1]
In legal proceedings the universities were also characterised as uncooperative by representatives of the content industry because they claimed that responding to the subpoena and pre litigation letter process was creating an undue burden on their resources.[2] Despite the dramatic increase in the number of subpoenas and letters received on campuses, the content industry argued that previous cooperation should be taken as evidence of capability to facilitate this process.[3]
In August 2008 the Higher Education Act was passed which required all universities and colleges to take steps to address illegal file sharing on campus.[4]
While the legislation does not stipulate the specific requirements or prevention measures that must be implemented, the expectation is that at a minimum this will include an education campaign regarding the computer use policies of the institution, and may eventually lead to the imposition of p2p monitoring programs, filtering, providing access to legal services and the use of traffic shaping technology.[5] Speculation suggests that in the event that there is not widespread adoption of technological prevention measures that the content industry will lobby to make these mandatory.[6]
A study released in October 2008 which reviewed data across 321 institutions estimated the cost of implementing the requirements of these laws to be in the vicinity of $US350,000 to $US500,000 annually for each college or university.[7]
There was some concern that these policies would unfairly discriminate against colleges that do not have on campus accommodation as they would be required to implement the same prevention measures despite the far lesser likelihood that students would be downloading illegally.[8] In a further study conducted by Educause in October 2009, of the campuses that have residence halls, 97.9% of the 1016 surveyed offered internet connections with 85% of those being at speeds greater than 10Mbps and 44% 100 Mbps and faster.[9]
The Educause survey also highlighted that 15% of US colleges and universities currently provide campus sponsored music or movie download services with a further 17% planning on introducing them.[10] Some 39% of doctoral colleges which are typically the largest universities, already offer free download services.[11]
In response to the changes introduced by the Higher Education Act, Illinois State University began prohibiting the use of file sharing software on its network and released BirdTrax in August 2008, a website directing students to legal download services.[12]
Australia
There was similar pressure on ISPs in Australia.
There were numerous calls from the content industry for commercial internet service providers to become more heavily involved in policing the content transferred on their network. However, Peter Coroneos head of the Australian Internet Industry Association rejected this suggestion and stated that the disconnection of file sharers from the internet was seen by them to be a disproportionate response.[13]
In addition to this, a case was also commenced which seeks to test further the safe harbour provisions afforded to ISPs under the Copyright Act.[14] Legal action was commenced by Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, Inc. and the Seven Network against iiNet for failing to prevent its customers from engaging in illegal file sharing.[15] The action was filed in November 2008 in the Federal Court of Australia with proceedings expected to commence on 17th December 2008.[16]
Expansion of Responsibility
The expansion of ISP responsibility for content passed over networks was referred to in a discussion paper called The Future of Copyright released by the Cato Institute in June 2008. In the article written by Rasmus Fleischer, which concerns the ever increasing lobbying efforts of the content industry to seek stronger and stronger copyright laws, it was noted that ISP responsibility is not something conveniently attributed to large corporations:
Yet in the name of ISP responsibility, virtually any Internet user might be called to account by the recording industry. Here's why: In discussions about so-called ISP responsibility, it is crucial to remember that big telecom companies are far from the only existing "operators of electronic communications networks and services." This is the actual definition of an ISP, used within the European Union bureaucracy, but by this definition, you may be one, too. The U.S. Digital Millennium Copyright Act is equally vague: It defines a "service provider" as a "provider of online services or network access, or the operator of facilities therefor," leading many to wonder whether libraries, employers, or private individuals operating routers might also qualify as ISPs.Given such a broad definition, any company or person sharing connectivity, as well as anyone hosting a blog or a web forum, could, in the name of "ISP responsibility," be obligated to register the identities of users and to deliver them to copyright enforcers on request. The range of possible abuses is enormous. Attempts to save an already broken policy will mean an ever more absurd sequence of follow-up regulations.[17]
[1] TechDirt, Bowling Green University Enforces New Three-Strikes Anti-P2p Plan (23 October 2008) <http://www.zeropaid.com/news/9823/Bowling+Green+University+Enforces+New+Three-Strikes+Anti-P2P+Plan> at 29 October 2008
[2] EFF Deeplinks, Universities Quietly Fighting Back Against RIAA Tactics (11 August 2008) <http://www.eff.org/deeplinks/2008/08/universities-quietly-fighting-back-against-riaa-ta> at 22 August 2008; TechDirt, Universities Realize That The RIAA Is Taking Advantage Of Them In Lawsuits On Students (12 August 2008) <http://www.techdirt.com/articles/20080812/0229461957.shtml> at 20 August 2008; ZeroPaid, Universities Penalized for Past RIAA Cooperation (14 August 2008) <http://www.zeropaid.com/news/9698/Universities+Penalized+for+Past+RIAA+Cooperation> at 20 August 2008; The Chronicle of Higher Education, Antipiracy Campaign Exasperates Colleges (issue date: 15 August 2008) <http://chronicle.com/free/v54/i49/49a00104.htm> at 12 August 2008
[3] EFF Deeplinks, Universities Quietly Fighting Back Against RIAA Tactics (11 August 2008) <http://www.eff.org/deeplinks/2008/08/universities-quietly-fighting-back-against-riaa-ta> at 22 August 2008; TechDirt, Universities Realize That The RIAA Is Taking Advantage Of Them In Lawsuits On Students (12 August 2008) <http://www.techdirt.com/articles/20080812/0229461957.shtml> at 20 August 2008; ZeroPaid, Universities Penalized for Past RIAA Cooperation (14 August 2008) <http://www.zeropaid.com/news/9698/Universities+Penalized+for+Past+RIAA+Cooperation> at 20 August 2008; The Chronicle of Higher Education, Antipiracy Campaign Exasperates Colleges (issue date: 15 August 2008) <http://chronicle.com/free/v54/i49/49a00104.htm> at 12 August 2008
[4] CNet News, Mixed reviews for illegal file-sharing on campus (1 August 2008) <http://news.cnet.com/8301-1023_3-10005089-93.html> at 12 August 2008; Los Angeles Times, Piracy provision aims at universities (16 March 2008) <http://www.latimes.com/technology/la-na-piracy16mar16,1,3958660.story> at 18 March 2008; ZeroPaid, US Congress Pass Anti-Campus File Sharing Requirements (12 February 2008) <http://www.zeropaid.com/news/9259/US+Congress+Passes+Anti-Campus+File-sharing+Requirements> at 13 February 2008; TechDirt, House Approves Bill To Require Universities To Offer Students Music Services Politics (8 February 2008) <http://www.techdirt.com/articles/20080207/232136204.shtml> at 8 February 2008
[5] CNet News, Mixed reviews for illegal file-sharing on campus (1 August 2008) <http://news.cnet.com/8301-1023_3-10005089-93.html> at 12 August 2008; EFF Deeplinks, Congress Bows to Big Content, Scapegoats Higher Ed (4 August 2008) <http://www.eff.org/deeplinks/2008/08/congress-bows-big-content-scapegoats-higher-ed> at 7 August 2008
[6] TechDirt, Congress Moves Forward With Plan To Make Universities Copyright Cops (31 July 2008) <http://www.techdirt.com/articles/20080731/0259111850.shtml> at 6 August 2008
[7] ZeroPaid, Anti-P2p Higher Education Act May Cost Some Colleges $500,000 Annually (24 October 2008) <http://www.zeropaid.com/news/9817/Anti-P2P+Higher+Education+Act+May+Cost+Some+Colleges+%24500%2C000+Annually> at 25 October 2008
[8] ZeroPaid, Anti-P2p Higher Education Act May Cost Some Colleges $500,000 Annually (24 October 2008) <http://www.zeropaid.com/news/9817/Anti-P2P+Higher+Education+Act+May+Cost+Some+Colleges+%24500%2C000+Annually> at 25 October 2008
[9] ArsTechnica, Download services increasingly popular with universities (9 October 2008) <http://arstechnica.com/news.ars/post/20081009-39-of-big-us-universities-now-offer-school-sponsored-music-movies.html> at 12 October 2008
[10] ArsTechnica, Download services increasingly popular with universities (9 October 2008) <http://arstechnica.com/news.ars/post/20081009-39-of-big-us-universities-now-offer-school-sponsored-music-movies.html> at 12 October 2008
[11] ArsTechnica, Download services increasingly popular with universities (9 October 2008) <http://arstechnica.com/news.ars/post/20081009-39-of-big-us-universities-now-offer-school-sponsored-music-movies.html> at 12 October 2008
[12] ZeroPaid, ISU Begins Blocking P2p, Launches 'Bird Trax' (27 August 2008) <http://www.zeropaid.com/news/9720/ISU+Begins+Blocking+P2P%2C+Launches+%27BirdTrax%27> at 28 August 2008
[13] ABC, ISPs called upon to crackdown on pirates (5 August 2008) <http://www.abc.net.au/news/stories/2008/08/05/2324663.htm?section=entertainment> at 12 August 2008; ZeroPaid, Australian ISPs Still Reject Idea of Becoming Copyright Police (9 August 2008) <http://www.zeropaid.com/news/9690/Australian+ISPs+Still+Rejects+Idea+of+Becoming+Copyright+Police> at 12 August 2008
[14] ZeroPaid, Aussie Movie & TV Industry Sues ISP for Allowing Piracy (20 November 2008) <http://www.zeropaid.com/news/9852/Aussie+Movie+%26+TV+Industry+Sues+ISP+for+Allowing+P2P+Piracy> at 21 November 2008; The Age, Film Companies Sue iiNet 'for allowing piracy' (20 November 2008) <http://business.theage.com.au/business/iinet-sued-for-allowing-piracy-20081120-6cjo.html> at 21 November 2008; TechDirt, Movie Studios Sue Australian ISP For Not Waving Magic Wand And Defeating Piracy (20 November 2008) <http://www.techdirt.com/articles/20081120/1214592902.shtml> at 21 November 2008
[15] ZeroPaid, Aussie Movie & TV Industry Sues ISP for Allowing Piracy (20 November 2008) <http://www.zeropaid.com/news/9852/Aussie+Movie+%26+TV+Industry+Sues+ISP+for+Allowing+P2P+Piracy> at 21 November 2008; The Age, Film Companies Sue iiNet 'for allowing piracy' (20 November 2008) <http://business.theage.com.au/business/iinet-sued-for-allowing-piracy-20081120-6cjo.html> at 21 November 2008; TechDirt, Movie Studios Sue Australian ISP For Not Waving Magic Wand And Defeating Piracy (20 November 2008) <http://www.techdirt.com/articles/20081120/1214592902.shtml> at 21 November 2008
[16] ZeroPaid, Aussie Movie & TV Industry Sues ISP for Allowing Piracy (20 November 2008) <http://www.zeropaid.com/news/9852/Aussie+Movie+%26+TV+Industry+Sues+ISP+for+Allowing+P2P+Piracy> at 21 November 2008; The Age, Film Companies Sue iiNet 'for allowing piracy' (20 November 2008) <http://business.theage.com.au/business/iinet-sued-for-allowing-piracy-20081120-6cjo.html> at 21 November 2008; TechDirt, Movie Studios Sue Australian ISP For Not Waving Magic Wand And Defeating Piracy (20 November 2008) <http://www.techdirt.com/articles/20081120/1214592902.shtml> at 21 November 2008
[17] TechDirt, Copyright Has Stretched So Far That It Has Broken (10 June 2008) <http://www.techdirt.com/articles/20080609/1950311357.shtml> 13 June 2008
United States
The response to file sharing and copyright infringement has varied enormously across campuses in the United States. As mentioned in earlier posts, some universities are attempting to block the subpoena process, others such as Stanford are disconnecting students and charging large reconnection fees.
One university, Bowling Green State University introduced a three strikes scheme whereby first time offenders were disconnected from the internet for 24 hours, second time offenders were disconnected for 2 weeks and third time offenders were disconnected for the remainder of the semester.[1]
In legal proceedings the universities were also characterised as uncooperative by representatives of the content industry because they claimed that responding to the subpoena and pre litigation letter process was creating an undue burden on their resources.[2] Despite the dramatic increase in the number of subpoenas and letters received on campuses, the content industry argued that previous cooperation should be taken as evidence of capability to facilitate this process.[3]
In August 2008 the Higher Education Act was passed which required all universities and colleges to take steps to address illegal file sharing on campus.[4]
While the legislation does not stipulate the specific requirements or prevention measures that must be implemented, the expectation is that at a minimum this will include an education campaign regarding the computer use policies of the institution, and may eventually lead to the imposition of p2p monitoring programs, filtering, providing access to legal services and the use of traffic shaping technology.[5] Speculation suggests that in the event that there is not widespread adoption of technological prevention measures that the content industry will lobby to make these mandatory.[6]
A study released in October 2008 which reviewed data across 321 institutions estimated the cost of implementing the requirements of these laws to be in the vicinity of $US350,000 to $US500,000 annually for each college or university.[7]
There was some concern that these policies would unfairly discriminate against colleges that do not have on campus accommodation as they would be required to implement the same prevention measures despite the far lesser likelihood that students would be downloading illegally.[8] In a further study conducted by Educause in October 2009, of the campuses that have residence halls, 97.9% of the 1016 surveyed offered internet connections with 85% of those being at speeds greater than 10Mbps and 44% 100 Mbps and faster.[9]
The Educause survey also highlighted that 15% of US colleges and universities currently provide campus sponsored music or movie download services with a further 17% planning on introducing them.[10] Some 39% of doctoral colleges which are typically the largest universities, already offer free download services.[11]
In response to the changes introduced by the Higher Education Act, Illinois State University began prohibiting the use of file sharing software on its network and released BirdTrax in August 2008, a website directing students to legal download services.[12]
Australia
There was similar pressure on ISPs in Australia.
There were numerous calls from the content industry for commercial internet service providers to become more heavily involved in policing the content transferred on their network. However, Peter Coroneos head of the Australian Internet Industry Association rejected this suggestion and stated that the disconnection of file sharers from the internet was seen by them to be a disproportionate response.[13]
In addition to this, a case was also commenced which seeks to test further the safe harbour provisions afforded to ISPs under the Copyright Act.[14] Legal action was commenced by Village Roadshow, Universal Pictures, Warner Bros Entertainment, Paramount Pictures, Sony Pictures Entertainment, Twentieth Century Fox Film Corporation, Disney Enterprises, Inc. and the Seven Network against iiNet for failing to prevent its customers from engaging in illegal file sharing.[15] The action was filed in November 2008 in the Federal Court of Australia with proceedings expected to commence on 17th December 2008.[16]
Expansion of Responsibility
The expansion of ISP responsibility for content passed over networks was referred to in a discussion paper called The Future of Copyright released by the Cato Institute in June 2008. In the article written by Rasmus Fleischer, which concerns the ever increasing lobbying efforts of the content industry to seek stronger and stronger copyright laws, it was noted that ISP responsibility is not something conveniently attributed to large corporations:
Yet in the name of ISP responsibility, virtually any Internet user might be called to account by the recording industry. Here's why: In discussions about so-called ISP responsibility, it is crucial to remember that big telecom companies are far from the only existing "operators of electronic communications networks and services." This is the actual definition of an ISP, used within the European Union bureaucracy, but by this definition, you may be one, too. The U.S. Digital Millennium Copyright Act is equally vague: It defines a "service provider" as a "provider of online services or network access, or the operator of facilities therefor," leading many to wonder whether libraries, employers, or private individuals operating routers might also qualify as ISPs.Given such a broad definition, any company or person sharing connectivity, as well as anyone hosting a blog or a web forum, could, in the name of "ISP responsibility," be obligated to register the identities of users and to deliver them to copyright enforcers on request. The range of possible abuses is enormous. Attempts to save an already broken policy will mean an ever more absurd sequence of follow-up regulations.[17]
[1] TechDirt, Bowling Green University Enforces New Three-Strikes Anti-P2p Plan (23 October 2008) <http://www.zeropaid.com/news/9823/Bowling+Green+University+Enforces+New+Three-Strikes+Anti-P2P+Plan> at 29 October 2008
[2] EFF Deeplinks, Universities Quietly Fighting Back Against RIAA Tactics (11 August 2008) <http://www.eff.org/deeplinks/2008/08/universities-quietly-fighting-back-against-riaa-ta> at 22 August 2008; TechDirt, Universities Realize That The RIAA Is Taking Advantage Of Them In Lawsuits On Students (12 August 2008) <http://www.techdirt.com/articles/20080812/0229461957.shtml> at 20 August 2008; ZeroPaid, Universities Penalized for Past RIAA Cooperation (14 August 2008) <http://www.zeropaid.com/news/9698/Universities+Penalized+for+Past+RIAA+Cooperation> at 20 August 2008; The Chronicle of Higher Education, Antipiracy Campaign Exasperates Colleges (issue date: 15 August 2008) <http://chronicle.com/free/v54/i49/49a00104.htm> at 12 August 2008
[3] EFF Deeplinks, Universities Quietly Fighting Back Against RIAA Tactics (11 August 2008) <http://www.eff.org/deeplinks/2008/08/universities-quietly-fighting-back-against-riaa-ta> at 22 August 2008; TechDirt, Universities Realize That The RIAA Is Taking Advantage Of Them In Lawsuits On Students (12 August 2008) <http://www.techdirt.com/articles/20080812/0229461957.shtml> at 20 August 2008; ZeroPaid, Universities Penalized for Past RIAA Cooperation (14 August 2008) <http://www.zeropaid.com/news/9698/Universities+Penalized+for+Past+RIAA+Cooperation> at 20 August 2008; The Chronicle of Higher Education, Antipiracy Campaign Exasperates Colleges (issue date: 15 August 2008) <http://chronicle.com/free/v54/i49/49a00104.htm> at 12 August 2008
[4] CNet News, Mixed reviews for illegal file-sharing on campus (1 August 2008) <http://news.cnet.com/8301-1023_3-10005089-93.html> at 12 August 2008; Los Angeles Times, Piracy provision aims at universities (16 March 2008) <http://www.latimes.com/technology/la-na-piracy16mar16,1,3958660.story> at 18 March 2008; ZeroPaid, US Congress Pass Anti-Campus File Sharing Requirements (12 February 2008) <http://www.zeropaid.com/news/9259/US+Congress+Passes+Anti-Campus+File-sharing+Requirements> at 13 February 2008; TechDirt, House Approves Bill To Require Universities To Offer Students Music Services Politics (8 February 2008) <http://www.techdirt.com/articles/20080207/232136204.shtml> at 8 February 2008
[5] CNet News, Mixed reviews for illegal file-sharing on campus (1 August 2008) <http://news.cnet.com/8301-1023_3-10005089-93.html> at 12 August 2008; EFF Deeplinks, Congress Bows to Big Content, Scapegoats Higher Ed (4 August 2008) <http://www.eff.org/deeplinks/2008/08/congress-bows-big-content-scapegoats-higher-ed> at 7 August 2008
[6] TechDirt, Congress Moves Forward With Plan To Make Universities Copyright Cops (31 July 2008) <http://www.techdirt.com/articles/20080731/0259111850.shtml> at 6 August 2008
[7] ZeroPaid, Anti-P2p Higher Education Act May Cost Some Colleges $500,000 Annually (24 October 2008) <http://www.zeropaid.com/news/9817/Anti-P2P+Higher+Education+Act+May+Cost+Some+Colleges+%24500%2C000+Annually> at 25 October 2008
[8] ZeroPaid, Anti-P2p Higher Education Act May Cost Some Colleges $500,000 Annually (24 October 2008) <http://www.zeropaid.com/news/9817/Anti-P2P+Higher+Education+Act+May+Cost+Some+Colleges+%24500%2C000+Annually> at 25 October 2008
[9] ArsTechnica, Download services increasingly popular with universities (9 October 2008) <http://arstechnica.com/news.ars/post/20081009-39-of-big-us-universities-now-offer-school-sponsored-music-movies.html> at 12 October 2008
[10] ArsTechnica, Download services increasingly popular with universities (9 October 2008) <http://arstechnica.com/news.ars/post/20081009-39-of-big-us-universities-now-offer-school-sponsored-music-movies.html> at 12 October 2008
[11] ArsTechnica, Download services increasingly popular with universities (9 October 2008) <http://arstechnica.com/news.ars/post/20081009-39-of-big-us-universities-now-offer-school-sponsored-music-movies.html> at 12 October 2008
[12] ZeroPaid, ISU Begins Blocking P2p, Launches 'Bird Trax' (27 August 2008) <http://www.zeropaid.com/news/9720/ISU+Begins+Blocking+P2P%2C+Launches+%27BirdTrax%27> at 28 August 2008
[13] ABC, ISPs called upon to crackdown on pirates (5 August 2008) <http://www.abc.net.au/news/stories/2008/08/05/2324663.htm?section=entertainment> at 12 August 2008; ZeroPaid, Australian ISPs Still Reject Idea of Becoming Copyright Police (9 August 2008) <http://www.zeropaid.com/news/9690/Australian+ISPs+Still+Rejects+Idea+of+Becoming+Copyright+Police> at 12 August 2008
[14] ZeroPaid, Aussie Movie & TV Industry Sues ISP for Allowing Piracy (20 November 2008) <http://www.zeropaid.com/news/9852/Aussie+Movie+%26+TV+Industry+Sues+ISP+for+Allowing+P2P+Piracy> at 21 November 2008; The Age, Film Companies Sue iiNet 'for allowing piracy' (20 November 2008) <http://business.theage.com.au/business/iinet-sued-for-allowing-piracy-20081120-6cjo.html> at 21 November 2008; TechDirt, Movie Studios Sue Australian ISP For Not Waving Magic Wand And Defeating Piracy (20 November 2008) <http://www.techdirt.com/articles/20081120/1214592902.shtml> at 21 November 2008
[15] ZeroPaid, Aussie Movie & TV Industry Sues ISP for Allowing Piracy (20 November 2008) <http://www.zeropaid.com/news/9852/Aussie+Movie+%26+TV+Industry+Sues+ISP+for+Allowing+P2P+Piracy> at 21 November 2008; The Age, Film Companies Sue iiNet 'for allowing piracy' (20 November 2008) <http://business.theage.com.au/business/iinet-sued-for-allowing-piracy-20081120-6cjo.html> at 21 November 2008; TechDirt, Movie Studios Sue Australian ISP For Not Waving Magic Wand And Defeating Piracy (20 November 2008) <http://www.techdirt.com/articles/20081120/1214592902.shtml> at 21 November 2008
[16] ZeroPaid, Aussie Movie & TV Industry Sues ISP for Allowing Piracy (20 November 2008) <http://www.zeropaid.com/news/9852/Aussie+Movie+%26+TV+Industry+Sues+ISP+for+Allowing+P2P+Piracy> at 21 November 2008; The Age, Film Companies Sue iiNet 'for allowing piracy' (20 November 2008) <http://business.theage.com.au/business/iinet-sued-for-allowing-piracy-20081120-6cjo.html> at 21 November 2008; TechDirt, Movie Studios Sue Australian ISP For Not Waving Magic Wand And Defeating Piracy (20 November 2008) <http://www.techdirt.com/articles/20081120/1214592902.shtml> at 21 November 2008
[17] TechDirt, Copyright Has Stretched So Far That It Has Broken (10 June 2008) <http://www.techdirt.com/articles/20080609/1950311357.shtml> 13 June 2008
Friday, November 28, 2008
Music with a Message
Here are some of the songs I am going to play on my radio program this weekend. I am very excited to be playing five tracks from The Herd – its hard to pick my favourite from this list they are such a great band but if pushed to choose perhaps I would say 2020 or Its Time to Face the Truth are two that stand out.
Billy Bragg, Help Save the Youth of America
Billy Bragg, Days Like These
Billy Bragg, Ideology
Eliot, Freedom of Speech
Pitch Black, Speech (Freedom of Speech Remix)
Mamie Brown and the Birmingham Movement Choir, I’m on My Way
Freedom Singers, Ain’t Gonna Let Nobody Turn Me Around
Woody Guthrie, 1913 Massacre
Simple Minds, Mandela Day
Peter Tosh, Equal Rights
Neville Brothers, Sister Rosa
Our Land Our Home, Forgotten Tribe
Our Land Our Home (Goanna), Solid Rock
Joe Glazer, Preacher and the Slave
Joe Glazer, There’s Power in a Union
Tracy Chapman, Talkin About a Revolution
John Lennon, Imagine
No FX, Franco UnAmerican
Neil Young, Lets Impeach the President
John Butler Trio, Fire In the Sky
Edwin Starr, War
Meredith Brooks, Bitch
No Doubt, Just a Girl
The Herd, Time to Face the Truth
The Herd, 2020
The Herd, The King is Dead
The Herd, 77%
The Herd, Emergency
Country Joe McDonald, Save the Whales
Julian Lennon, Saltwater
Jamiroquai, Emergency on Planet Earth
U2, Sunday Bloody Sunday
Billy Bragg, Help Save the Youth of America
Billy Bragg, Days Like These
Billy Bragg, Ideology
Eliot, Freedom of Speech
Pitch Black, Speech (Freedom of Speech Remix)
Mamie Brown and the Birmingham Movement Choir, I’m on My Way
Freedom Singers, Ain’t Gonna Let Nobody Turn Me Around
Woody Guthrie, 1913 Massacre
Simple Minds, Mandela Day
Peter Tosh, Equal Rights
Neville Brothers, Sister Rosa
Our Land Our Home, Forgotten Tribe
Our Land Our Home (Goanna), Solid Rock
Joe Glazer, Preacher and the Slave
Joe Glazer, There’s Power in a Union
Tracy Chapman, Talkin About a Revolution
John Lennon, Imagine
No FX, Franco UnAmerican
Neil Young, Lets Impeach the President
John Butler Trio, Fire In the Sky
Edwin Starr, War
Meredith Brooks, Bitch
No Doubt, Just a Girl
The Herd, Time to Face the Truth
The Herd, 2020
The Herd, The King is Dead
The Herd, 77%
The Herd, Emergency
Country Joe McDonald, Save the Whales
Julian Lennon, Saltwater
Jamiroquai, Emergency on Planet Earth
U2, Sunday Bloody Sunday
Year in Review: International Copyright Issues
The primary concern regarding international copyright developments in 2008 was the secret negotiation of the ACTA treaty – Anti Counterfeiting Trade Agreement – between the United States of America, the European Union, Canada, Australia, New Zealand, Japan, South Korea, Switzerland and Mexico.[1]
As the text of the agreement has not been made public and public interest groups have not had an opportunity to contribute it is unclear what the treaty will impose in terms of new intellectual property law and enforcement. Speculation as to the terms suggests that the agreement will impose mandatory ISP level filtering and monitoring of users accounts, the disclosure of user identities, a three strikes proposal, the need for countries with high rates of physical piracy to register and monitor the sale of discs and the materials used to produce discs, increased criminal and civil penalties including the criminalisation of peer to peer file sharing, greater enforcement of intellectual property laws and border searches of personal devices.[2]
The majority of the information to date on the terms of the agreement has been from leaks published on the internet.[3] Lobbying against the secrecy of the negotiations, in September 2008 100 international public interest groups signed a letter demanding that the process be opened for public consultation.[4]
In September 2008 the US Trade Representative held an open hearing and explained that the agreement was focused on ‘criminal enforcement, border measures, civil enforcement, optical disc piracy and IPR enforcement issues relating to internet distribution.’[5] Claims that the agreement would result in the border inspection of personal computing devices were dismissed.[6]
In October 2008 two high profile politicians from the United States, Senators Patrick Leahy (D-VT) and Arlen Specter (R-PA) wrote to the Bush administration expressing concern that the terms of the agreement would negatively impact on Congress’s ability to make constructive policy changes in the future.[7] They suggested that the agreement should not contain provisions relating to the liability or obligations of internet service providers nor deal with issues relating to digital rights management technology.[8]
[1] Wired, Anti-Counterfeiting Trade Agreement: Fact or Fiction? (15 September 2008) <http://blog.wired.com/27bstroke6/2008/09/international-i.html> at 21 September 2008; TechDirt, Canada Takes ACTA Secrecy To New Levels (29 July 2008) <http://www.techdirt.com/articles/20080728/1914061820.shtml> at 31 July 2008; ZeroPaid, ACTA Negotiations to Continue Next Week (23 July 2008) <http://www.zeropaid.com/news/9645/ACTA+Negotiations+to+Continue+Next+Week> at 23 July 2008; TechDirt, Entertainment Industry Continues To Try To Sneak Copyright Expansion Through ACTA (8 July 2008) <http://www.techdirt.com/articles/20080703/0301501586.shtml> at 9 July 2008; TechDirt, We Need More Sunlight On ACTA: Where Is The Mainstream Press? (4 June 2008) <http://www.techdirt.com/articles/20080603/1247531301.shtml> at 6 June 2008
[2] ZeroPaid, Report - ACTA Stalled Amid War Between Australian ISPs and Copyright Industry (20 September 2008) <http://www.zeropaid.com/news/9766/Report+-+ACTA+Stalled+Amid+War+Between+Australian+ISPs+and+Copyright+Industry> at 21 September 2008; ZeroPaid, Over 100 International Public Interest Organizations Demand ACTA Be Made Public (17 September 2008) <http://www.zeropaid.com/news/9754/Over+100+International+Public+Interest+Organizations+Demand+ACTA+Be+Made+Public> at 21 September 2008; ZeroPaid, ACTA Negotiations to Continue Next Week (23 July 2008) <http://www.zeropaid.com/news/9645/ACTA+Negotiations+to+Continue+Next+Week> at 23 July 2008; ArsTechnica, RIAA's ACTA wishlist includes gutted DMCA, mandatory filters (30 June 2008) <http://arstechnica.com/news.ars/post/20080630-inside-the-riaas-acta-wishlist.html> at 4 July 2008; ZeroPaid, US Proposes 'Pirate Bay Killer' Trade Agreement (24 May 2008) <http://www.zeropaid.com/news/9511/US+Proposes+%27Pirate+Bay+Killer%27+Trade+Agreement> at 5 June 2008
[3] ZeroPaid, Another Critical ACTA Leak Surfaces (1 August 2008) <http://www.zeropaid.com/news/9669/Another+Critical+ACTA+Leak+Surfaces> at 6 August 2008
[4] ZeroPaid, Over 100 International Public Interest Organizations Demand ACTA Be Made Public (17 September 2008) <http://www.zeropaid.com/news/9754/Over+100+International+Public+Interest+Organizations+Demand+ACTA+Be+Made+Public> at 21 September 2008; TechDirt, Groups Demanding That ACTA Negotiations Be Made Public (16 September 2008) <http://www.techdirt.com/articles/20080916/1839352286.shtml> at 21 September 2008
[5] TechDirt, The ACTA Hearing: USTR Claims There's Nothing To See Here... Move Along Politics (25 September 2008) <http://www.techdirt.com/articles/20080924/1732262362.shtml> at 26 September 2008
[6] TechDirt, The ACTA Hearing: USTR Claims There's Nothing To See Here... Move Along Politics (25 September 2008) <http://www.techdirt.com/articles/20080924/1732262362.shtml> at 26 September 2008
[7]ZeroPaid, Senators Push for Transparency for ACTA (4 October 2008)<http://www.zeropaid.com/news/9788/Senators+Push+for+Transparency+for+ACTA> at 5 October 2008; ArsTechnica, Key senators oppose DRM, ISP filtering in secret ACTA treaty (3 October 2008) <http://arstechnica.com/news.ars/post/20081003-key-senators-oppose-drm-isp-filtering-in-secret-acta-treaty.html> at 5 October 2008; TechDirt, Even Senators Who Want Stronger Copyright Laws Are Worried About ACTA (3 October 2008) <http://www.techdirt.com/articles/20081003/0029142439.shtml> at 5 October 2008
[8] ArsTechnica, Key senators oppose DRM, ISP filtering in secret ACTA treaty (3 October 2008) <http://arstechnica.com/news.ars/post/20081003-key-senators-oppose-drm-isp-filtering-in-secret-acta-treaty.html> at 5 October 2008; ZeroPaid, Senators Push for Transparency for ACTA (4 October 2008)<http://www.zeropaid.com/news/9788/Senators+Push+for+Transparency+for+ACTA> at 5 October 2008; TechDirt, Even Senators Who Want Stronger Copyright Laws Are Worried About ACTA (3 October 2008) <http://www.techdirt.com/articles/20081003/0029142439.shtml> at 5 October 2008
Thursday, November 27, 2008
Economic Contribution of Australian (c) Industries
Price Waterhouse Coopers and the Australian Copyright Council have just released a report into the economic contribution of Australian copyright industries.
There are a number of interesting points to the report with findings that 837,507 people or 8% of the Australian workforce are employed by copyright industries (compared with 8.3% in 1996). The industries generated economic value equal to 10.3% of gross domestic product and $6.873 billion in exports or 4.1% of total Australian exports.
The value added of copyright industries has grown from $58.9 billion in 1995/96 to $97.8 billion in 2006/2007. Core copyright industries compounded annual growth over this period was 5.1% per year and across all related industries 4.7% per year with the greatest growth value being in software and databases (10.4%) with music theatrical productions and operas growing 2.7% per year.
Core industries have also experienced compound annual growth in employment with software and databases increasing 7.3% per year and music, theatrical productions and operas increasing 1.4% per year. There has also been an increase in the average wage of those engaged in these industries up from $51,572 in 1995/96 to $61,355 in 2006/2007.
This report does not paint a picture of an industry in distress but shows that while there has been some overall drop in the percentage of Australians employed in the copyright industries that there continues to be some growth in both the core and related industries that depend on intangible works.
Further Reading
Australian Copyright Council/Price Waterhouse Coopers, Making the Intangible Tangible: The Economic Contribution of Australia's Copyright Industries (November 2008) <http://www.copyright.org.au/bcepv04.pdf> at 27 November 2008
There are a number of interesting points to the report with findings that 837,507 people or 8% of the Australian workforce are employed by copyright industries (compared with 8.3% in 1996). The industries generated economic value equal to 10.3% of gross domestic product and $6.873 billion in exports or 4.1% of total Australian exports.
The value added of copyright industries has grown from $58.9 billion in 1995/96 to $97.8 billion in 2006/2007. Core copyright industries compounded annual growth over this period was 5.1% per year and across all related industries 4.7% per year with the greatest growth value being in software and databases (10.4%) with music theatrical productions and operas growing 2.7% per year.
Core industries have also experienced compound annual growth in employment with software and databases increasing 7.3% per year and music, theatrical productions and operas increasing 1.4% per year. There has also been an increase in the average wage of those engaged in these industries up from $51,572 in 1995/96 to $61,355 in 2006/2007.
This report does not paint a picture of an industry in distress but shows that while there has been some overall drop in the percentage of Australians employed in the copyright industries that there continues to be some growth in both the core and related industries that depend on intangible works.
Further Reading
Australian Copyright Council/Price Waterhouse Coopers, Making the Intangible Tangible: The Economic Contribution of Australia's Copyright Industries (November 2008) <http://www.copyright.org.au/bcepv04.pdf> at 27 November 2008
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