Posts Tagged ‘downloading’

What the EU Commissioner said on the Internet and Downloading

Saturday, July 11th, 2009

Commissioner Reding, the EU’s Commissioner for information society and media, has attracted a degree of attention planning an overhaul of internet downloading rules.

Her comments were part of a wide ranging speech on what the EU is doing and will be doing about broadband, access and …. So, what did she actually say?

After identifying access to digital content as the first of 4 priority issues, Ms Reding said:

1. My first and most important priority for Digital Europe is: To make it easier and more attractive to access digital content, wherever produced in Europe. The availability of attractive content that appeals to European viewers, listeners and readers will be decisive in driving further the take-up of high-speed broadband internet. It is therefore regrettable that we currently have an extremely polarised debate on the matter: While many right holders insist that every unauthorised download from the internet is a violation of intellectual property rights and therefore illegal or even criminal, others stress that access to the internet is a crucial fundamental right. Let me be clear on this: Both sides are right. The drama is that after long and often fruitless battles, both camps have now dug themselves in their positions, without any signs of opening from either side.
In the meantime, internet piracy appears to become more and more “sexy”, in particular for the digital natives already, the young generation of intense internet users between 16 and 24. This generation should become the foundation of our digital economy, of new innovation and new growth opportunities. However, Eurostat figures show that 60% of them have downloaded audiovisual content from the internet in the past months without paying. And 28% state that they would not be willing to pay.
These figures reveal the serious deficiencies of the present system. It is necessary to penalise those who are breaking the law. But are there really enough attractive and consumer-friendly legal offers on the market? Does our present legal system for Intellectual Property Rights really live up to the expectations of the internet generation? Have we considered all alternative options to repression? Have we really looked at the issue through the eyes of a 16 year old? Or only from the perspective of law professors who grew up in the Gutenberg Age? In my view, growing internet piracy is a vote of no-confidence in existing business models and legal solutions. It should be a wake-up call for policy-makers.
I f we do not, very quickly, make it easier and more consumer-friendly to access digital content, we could lose a whole generation as supporters of artistic creation and legal use of digital services. Economically, socially, and culturally, this would be a tragedy. It will therefore be my key priority to work, in cooperation with other Commissioners, on a simple, consumer-friendly legal framework for accessing digital content in Europe’s single market, while ensuring at the same time fair remuneration of creators. Digital Europe can only be built with content creators on board; and with the generation of digital natives as interested users and innovative consumers .

1. My first and most important priority for Digital Europe is: To make it easier and more attractive to access digital content, wherever produced in Europe. The availability of attractive content that appeals to European viewers, listeners and readers will be decisive in driving further the take-up of high-speed broadband internet. It is therefore regrettable that we currently have an extremely polarised debate on the matter: While many right holders insist that every unauthorised download from the internet is a violation of intellectual property rights and therefore illegal or even criminal, others stress that access to the internet is a crucial fundamental right. Let me be clear on this: Both sides are right. The drama is that after long and often fruitless battles, both camps have now dug themselves in their positions, without any signs of opening from either side.

In the meantime, internet piracy appears to become more and more “sexy”, in particular for the digital natives already, the young generation of intense internet users between 16 and 24. This generation should become the foundation of our digital economy, of new innovation and new growth opportunities. However, Eurostat figures show that 60% of them have downloaded audiovisual content from the internet in the past months without paying. And 28% state that they would not be willing to pay.

These figures reveal the serious deficiencies of the present system. It is necessary to penalise those who are breaking the law. But are there really enough attractive and consumer-friendly legal offers on the market? Does our present legal system for Intellectual Property Rights really live up to the expectations of the internet generation? Have we considered all alternative options to repression? Have we really looked at the issue through the eyes of a 16 year old? Or only from the perspective of law professors who grew up in the Gutenberg Age? In my view, growing internet piracy is a vote of no-confidence in existing business models and legal solutions. It should be a wake-up call for policy-makers.

I f we do not, very quickly, make it easier and more consumer-friendly to access digital content, we could lose a whole generation as supporters of artistic creation and legal use of digital services. Economically, socially, and culturally, this would be a tragedy. It will therefore be my key priority to work, in cooperation with other Commissioners, on a simple, consumer-friendly legal framework for accessing digital content in Europe’s single market, while ensuring at the same time fair remuneration of creators. Digital Europe can only be built with content creators on board; and with the generation of digital natives as interested users and innovative consumers .

She then gave 2 examples.

The first was facilitating online licensing across all 27 member states. [Why stop there? As Prof. Gans has pointed out, albeit inaccurately under the rubric of parallel imports, this is a global problem.]

The second is to create a modern set of rules to encourage the digitisation of books:

Let us be very clear: if we do not reform our European copyright rules on orphan works and libraries swiftly, digitisation and the development of attractive content offers will not take place in Europe, but on the other side of the Atlantic. Only a modern set of consumer-friendly rules will enable Europe’s content to play a strong part in the digitisation efforts that has already started all around the globe. (The Commissioner’s emphasis)

Read the full text of the Commissioner’s speech here (the downloading wars start about 80% of the way ‘down’).

The idea of looking at the issue from the eyes of 16 year olds, rather than people who grew up in the 50s and 60s, is rather Lessig-ian (watch the Ted Talk video).

Bit of a stretch, blaming the law professors though!

Meanwhile, the very same day, Euro publishers, demonstrating the “us” versus “them” mentality Commissioner Reding criticised, took the opportunity to open another front on their war against Google, linking and aggregating. Publishers’ announcement and Hamburg declaration via here.

post-publication postscript: Chris Anderson from Wired on “Free”, reviewed in NYT.

The Internet Wars (copyright campaign) come to ISPs down under

Tuesday, November 25th, 2008

The big movie studios have brought proceedings against iiNet, one of the larger (in a non-Bigpond sort of way) ISPs seeking to impose liability on the ISP for infringing downloading by its subscribers.

The Application is here (pdf) and the Statement of Claim is here (pdf).

Various analyses:

Nic Suzor has a detailed view here

Kim Weatherall here

Australian PC Mag here

The Film Industry outlines its position here

IPRoo carries a quote from the Internet Industry Association’s CEO here.

As you can see from this coverage, this has really set the cat among the pigeons.  The striking thing about this action, however, is that one might have characterised iiNet as a general purpose ISP, not existing just to promote infringing downloads like the Court’s found Mr Cooper’s mp3s4free.com or substantially like Kazaa.

Thus, the distinction propounded by the record companies in Cooper (at [123]) and both questioned and side-stepped by Branson J (at [40]) appears to be very squarely off the table. So, as many of the bloggers note, it is not too much of a stretch to claim that the future of the internet is at stake here.  Will the old Copyright Convergence Group‘s analogy to the postal system – imposing liability only on the person who introduces (posts) the material – be confirmed or will we, through the Courts, turn back into a closed, monitored system?

The ISPs can hardly be surprised:

(a) s 101(1A(c) expressly provides for the development of an industry code to establish norms;

(b) the copyright owners have directly attacked the ISPs in Eire;

(c) the UK government has “brokered” some sort of more “pro-active” role on ISPs too.

No doubt, if the matter goes to trial, we can expect to see a volume of evidence about the volume of iiNet’s P2P traffic vis a vis its other activities and, before then, perhaps some applications for discovery of traffic details.

Given that liability appears to be predicated on authorisation, it will also be particularly interesting to see how the movie producers circumvent the prohibition on intercepting communications over a telecommunications system and, perhaps, (if an ISP is a carriage service provider) the prohibition on use or disclosure of information the contents of any communication carried by a carriage service provider.

Jammie Thomas wins – sort of?

Friday, September 26th, 2008

Ms Thomas, a single mother of two, is was the first person successfully prosecuted to a substantive trial by the RIAA in the USA for copyright infringement by P2P file “sharing” – using KaZaa, she downloaded and “shared” 24 copies of protected sound recordings.

The jury awarded RIAA statutory damages of US$220,000 by the jury (or $9,250 per song file downloaded).

Well, (pending the appeal), it’s all coming unstuck – a bit.  The trial judge, of his own motion (they do things differently over there?), recalled the matter, heard further argument and has granted a retrial on the basis that his instruction to the jury was erroneous. 

Jury Instruction No. 15 was as follows:

“The act of making copyrighted sound recordings available for electronic distribution on a peer?to?peer network, without license from the copyright owners, violates the copyright owners’ exclusive right of distribution, regardless of whether actual distribution has been shown.”  

The error appears to be in those words “regardless of whether actual distribution has been shown”.  

US copyright law, like much in the US I guess, is rather different.  The US Copyright Act does not include a “making available” right (see art. 8 WCT and arts 10 and 14 WPPT).  In the funny way they do things there, copyright owners do not get an exclusive right to communicate a work electronically; rather they get – in addition to publication and reproduction rights – (1) a right to publicly perform it and (2) to distribute copies: see 17 USC §106, in particular (3):

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending.”   

The “public performance” right is how they provide control over broadcasting.  It turns out, however, that distributing copies requires that there be an actual distribution, not just a making available for distribution.

Four comments:

First, the trial judge has granted a new trial.  

Even on the narrow approach taken by the trial judge (putting to one side the potential for an appeal), Ms Thomas seems to be extremely exposed.  For example, the RIAA argued that the error didn’t matter because Ms Thomas infringed the copyright by downloading the recordings: an exercise of the reproduction right.  The trial judge noted that may well be right, but it was impossible to tell whether the jury awarded the US$220,000 damages on the basis of infringing the reproduction right or the erroneous instruction no. 15, or some combination of factors.

Similarly, the only proof of “distribution” was the copy downloaded by the RIAA’s private investigator.  Ms Thomas argued that this could never be a distribution because the copyright owner (and its authorised agents) can’t infringe its own copyright.  The trial judge rejected this:

The Court holds that distribution to MediaSentry can form the basis of an infringement claim.  Eighth Circuit precedent clearly approves of the use of investigators by copyright owners.  While Thomas did not assist in the copying in the same manner as the retail defendant in Olan Mills – by actually completing the copying for the investigator – or as the retail defendants in RCA/Ariola – by assisting in selecting the correct tape on which to record and helping customers copy – she allegedly did assist in a different, but substantial manner.  Plaintiffs presented evidence that Thomas, herself, provided the copyrighted works for copying and placed them on a network specifically designed for easy, unauthorized copying.  These actions would constitute more substantial participation in the infringement than the actions of the defendants in the Eighth Circuit cases who merely assisted in copying works provided by the investigators.   

That is, by using KaZaa, Ms Thomas placed (whether knowingly or not) unauthorised copies of the recordings in her “shared” file so that other KaZaa users could access it and copy it.  That would be sufficient for liability for distribution if a copy were shown actually to be distributed.  A retrial was necessary, however, because it wasn’t possible to tell how much that infringing act contributed to the damages award and how much as a result of the erroneous Jury Instruction No. 15.

Secondly, the trial judge’s interpretation of the distribution right seems somewhat narrower than what some people had been arguing: that distribution required distribution of physical copies, not transmission of electrons.

Thirdly, Ms Thomas’ imaginary Australian cousin, would not have much hope: see e.g. ss 31(1)(a)(iv) and 85(1)(c) of the Copyright Act 1968, bearing in mind the “communicate” is defined in s 10910 to mean

make available online or electronically transmit (whether over a path, or a combination of paths, provided by a material substance or otherwise) a work or other subject-matter, including a performance or live performance within the meaning of this Act.

and there would also be the small matter of the reproduction of the infringing copy on her computer.

She would not of course be exposed to statutory damages.  As Howard Knopf, over at Excess Copyright notes, the trial judge is extremely upset about the imposition of statutory damages in this context.

Although if the imaginary Australian cousin continued after receipt of a letter of demand “additional damages” might loom large: see Review v Innovative Lifestyle at [55] – [65] (a registered designs case).

Finally, trade war?  Well, not yet.  Who knows whether there will be an appeal and how long it will take.  In any event, the making available right is in the WIPO Copyright Treaty and the WIPO Performers and Phongrams Treaty.  These are not obligations that are required to be implemented by TRIPS and so are not subject to the WTO dispute resolution procedures.

But hey, may be Australian copyright owners could lobby the Australian government and get it to take matters up under the Free Trade Agreement procedures.  One can imagine (well fantasise is perhaps more accurate) that the US administration and Congress would be terrified at the offence to their treaty partner’s rights amidst all that Wall Street “flu”.  At least, it might be something to poke them back in the eye with (in due course and providing they are not wearing lipstick).

Case is Capitol Records Inc v Jammie Thomas here.