Two thousand and eight was a good year for Apple’s iTunes store with it surpassing 5 billion downloads in its 5th year of operation.[1] It became ranked as the 2nd most popular music store in the United States next to the physical retailer WalMart.[2]
YouTube began including click to buy links on the bottom of its pages containing EMI content, enabling viewers to directly link with stores such as iTunes and Amazon, with the intention of expanding to other US copyright owners before going global .[3]
While there was some talk of iTunes launching a subscription service nothing to date has eventuated.[4]
The Copyright Royalty Board also determined that mechanical royalty rates of 9.1 cents or 10.5% of tracks sales would remain static for the next five years.[5] iTunes had expressed concern earlier that any increase in this rate would have resulted in the store operating at a loss and being unsustainable.[6] The National Music Publishers Association was seeking a rise from 9 cents to 15 cents per paid download while Apple and others from the DIMA were seeking a reduced rate.[7]
Some artists such as Kid Rock, AC/DC and The Eagles elected not to sell their latest releases through iTunes preferring other stores that enabled them to sell full albums rather than singles.[8] Another artist, Estelle, signed to Warner, experimented with removing her single from iTunes once it had become popular in the hope that more people would purchase the album.[9]
The tendency for the per track download arrangement to destroy the profitability and artistic integrity of artists was of concern. In 2007 US consumers downloaded 844 million tracks from digital music stores compared with only 50 million digital albums.[10]
Others noted the benefits to consumers and the prior history of record labels placing one or two popular tracks on an album and deliberately filling the rest of the space on the album with lesser quality tracks, as a distinct advantage over the album only culture.[11] Some argue however that not putting music in easy to purchase places simply encourages customers to access it through illegal download services.[12]
The lack of prominence on iTunes of independent and smaller selling artists has led to many independent labels and artists establishing their own paid download sites catering to a niche audience and enabling greater self promotion and fan exploration.[13] Furthermore, Apple makes around 30% of every purchase from its store (with the funds being primarily directed toward running costs) and selling independently enables these artists to be more competitive.[14]
In a separate issue China blocked iTunes for a short while with the release of The Art of Peace Foundation’s album Songs for Tibet which included a 15 minute track from the Dalai Lama apparently resulting in the censorship of the site.[15] Later reports indicated that access was restored to iTunes but not to the album itself preventing people from within China from purchasing it.[16] Other reports suggested that access was subsequently restored to the album at a later time.[17]
[1] Digital Music News, The iTunes Store: Five Years, Five Billion Song Downloads (20 June 2008) <http://www.digitalmusicnews.com/stories/061908itunes> at 26 June 2008
[2] Digital Music News, iTunes Becomes Second Largest Music Retailer, Fuzzy Math Applies (27 February 2008) <http://www.digitalmusicnews.com/stories/022608fuzzy> at 28 February 2008
[3] AFP, YouTube links to online stores in money-making move (8 October 2008) <http://afp.google.com/article/ALeqM5jRxMsYH4iZreyrPK_Pr4-8M30RJQ> at 10 October 2008; TechDirt, EMI Sets Up Its Own Online Store As YouTube Tries Selling Music (8 October 2008) <http://www.techdirt.com/articles/20081007/2140232485.shtml> at 10 October 2008; Digital Music News, YouTube Trying eCommerce; iTunes, Amazon On Board (8 October 2008) <http://www.digitalmusicnews.com/stories/100708youtube> at 10 October 2008
[4] ZeroPaid, Apple in Talks with Record Labels for unlimited iTunes (20 March 2008) <http://www.zeropaid.com/news/9338/Report%3A+Apple+in+Talks+with+Record+Labels+for+Unlimited+iTunes> at 22 March 2008
[5] SiliconValley/Associated Press, Copyright board leaves music royalty rate unchanged; Apple had threatened to shut iTunes (2 October 2008) <http://www.siliconvalley.com/news/ci_10620493> at 5 October 2008; SiliconValley/Associated Press, Federal copyright board to set digital music royalties (1 October 2008) <http://www.siliconvalley.com/news/ci_10611112?nclick_check=1> at 5 October 2008; Digital Music News, Mechanicals Staying Steady on Paid Downloads... (3 October 2008) <http://www.digitalmusicnews.com/stories/100208rates> at 5 October 2008; TechDirt, Copyright Royalty Board Keeps Download Rates The Same; iTunes 'Saved' (3 October 2008) <http://www.techdirt.com/articles/20081002/1807062438.shtml> at 5 October 2008
[6] SiliconValley/Associated Press, Copyright board leaves music royalty rate unchanged; Apple had threatened to shut iTunes (2 October 2008) <http://www.siliconvalley.com/news/ci_10620493> at 5 October 2008; SiliconValley/Associated Press, Federal copyright board to set digital music royalties (1 October 2008) <http://www.siliconvalley.com/news/ci_10611112?nclick_check=1> at 5 October 2008; Digital Music News, Mechanicals Staying Steady on Paid Downloads... (3 October 2008) <http://www.digitalmusicnews.com/stories/100208rates> at 5 October 2008; TechDirt, Copyright Royalty Board Keeps Download Rates The Same; iTunes 'Saved' (3 October 2008) <http://www.techdirt.com/articles/20081002/1807062438.shtml> at 5 October 2008
[7] Digital Music News, Oh the Drama: Royalty Decisions Await; iTunes Ultimatum Surfaces (1 October 2008) <http://www.digitalmusicnews.com/stories/093008royalty> at 5 October 2008; The Register, Apple screws songwriters (again) (1 October 2008) <http://www.theregister.co.uk/2008/10/01/apple_itunes_threat/> at 5 October 2008
[8] ArsTechnica, Album-loving artists blame iTunes for changed music tastes (28 August 2008) <http://arstechnica.com/news.ars/post/20080828-album-loving-artists-blame-itunes-for-changed-music-tastes.html> at 1 September 2008; CNet News, AC/DC's iTunes boycott is on Highway to Hell (14 October 2008) <http://news.cnet.com/8301-1023_3-10066360-93.html> at 16 October 2008; Wall Street Journal, More Artists Steer Clear of iTunes (28 August 2008) <http://online.wsj.com/article/SB121987440206377643.html> at 1 September 2008
[9] ArsTechnica, Album-loving artists blame iTunes for changed music tastes (28 August 2008) <http://arstechnica.com/news.ars/post/20080828-album-loving-artists-blame-itunes-for-changed-music-tastes.html> at 1 September 2008; TechDirt, Looks Like That Plan To Remove Songs From iTunes Didn't Work Out So Well (11 September 2008) <http://www.techdirt.com/articles/20080910/2119052228.shtml> at 14 September 2008; Wall Street Journal, More Artists Steer Clear of iTunes (28 August 2008) <http://online.wsj.com/article/SB121987440206377643.html> at 1 September 2008
[10] Wall Street Journal, More Artists Steer Clear of iTunes (28 August 2008) <http://online.wsj.com/article/SB121987440206377643.html> at 1 September 2008
[11] ArsTechnica, Album-loving artists blame iTunes for changed music tastes (28 August 2008) <http://arstechnica.com/news.ars/post/20080828-album-loving-artists-blame-itunes-for-changed-music-tastes.html> at 1 September 2008; CNet News, AC/DC's iTunes boycott is on Highway to Hell (14 October 2008) <http://news.cnet.com/8301-1023_3-10066360-93.html> at 16 October 2008; Wall Street Journal, More Artists Steer Clear of iTunes (28 August 2008) <http://online.wsj.com/article/SB121987440206377643.html> at 1 September 2008
[12] TechDirt, Bands Avoiding iTunes For The Wrong Reasons (28 August 2008) <http://www.techdirt.com/articles/20080827/2214562116.shtml> at 1 September 2008
[13] ArsTechnica, Indie labels bypass iTunes, give digital sales a shot (17 March 2008) <http://arstechnica.com/news.ars/post/20080317-indie-labels-bypass-itunes-give-digital-sales-a-shot.html> at 18 March 2008
[14] Wall Street Journal, More Artists Steer Clear of iTunes (28 August 2008) <http://online.wsj.com/article/SB121987440206377643.html> at 1 September 2008
[15] The Register, iTunes, and Sting, banned from China (22 August 2008) <http://www.theregister.co.uk/2008/08/22/itunes_blocked_china_tibet/> at 28 August 2008; The Register, China pardons iTunes (but not Sting) (26 August 2008) <http://www.theregister.co.uk/2008/08/26/china_pardons_itunes/> at 28 August 2008; Digital Music News, Developing: Apple Investigating Chinese iTunes Store Block (25 August 2008) <http://www.digitalmusicnews.com/stories/082208china> at 28 August 2008; TechDirt, China Blocks iTunes After Olympic Athletes Download Pro-Tibetan Music (21 August 2008) <http://www.techdirt.com/articles/20080821/0312442052.shtml> at 25 August 2008; guardian.co.uk, China blocks iTunes music store (21 August 2008) <http://www.guardian.co.uk/music/2008/aug/21/china.blocks.itunes> at 25 August 2008; Digital Music News, Will the Ban Boost Sales? Tibet Album Pushes Past 10,000 (22 August 2008) <http://www.digitalmusicnews.com/stories/082108tibet> at 25 August 2008
[16] The Register, China pardons iTunes (but not Sting) (26 August 2008) <http://www.theregister.co.uk/2008/08/26/china_pardons_itunes/> at 28 August 2008; TechDirt, China Realizes It Doesn't Need To Block All Of iTunes (26 August 2008) <http://www.techdirt.com/articles/20080825/2219562089.shtml> at 28 August 2008
[17] Digital Music News, iTunes Reinstated In China... Tibet Album Now Included (27 August 2008) <http://www.digitalmusicnews.com/stories/082608ituneschina> at 28 August 2008
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
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