Copyright Infringement: A Modest Proposal

The UK government's Canute-like efforts to stem the tide of online copyright infringement have plumbed new depths, it seems:

Proposals to suspend the internet connections of those who repeatedly share music and films online will leave consumers with a bill for £500 million, ministers have admitted.

The Digital Economy Bill would force internet service providers (ISPs) to send warning letters to anyone caught swapping copyright material illegally, and to suspend or slow the connections of those who refused to stop. ISPs say that such interference with their customers’ connections would add £25 a year to a broadband subscription.

As Mike Masnick points out:

Note, of course, that the music industry itself claims that £200 million worth of music is downloaded in the UK per year (and, of course, that's only "losses" if you use the ridiculous and obviously incorrect calculation that each download is a "lost sale").

So this absurd approach will actually cost far more than it will save, even accepting the grossly-inflated and self-serving figures from the music industry.

Against that background, I have a suggestion.

Given that the UK government seems happy for huge sums of money to be spent on this fool's errand, why not spend it more effectively, in a way that sustains businesses, rather than penalising them, and which actually encourages people not to download copyrighted material from unauthorised sources?

This can be done quite simply: by giving everyone who wants it a free Spotify Premium subscription. These normally cost £120 per year, but buying a national licence for the 10 million families or so who are online would presumably garner a generous discount - say, of 50% - bringing the total price of the scheme to around £600 million, pretty much the expected cost of the current plans.

As I can attest, once you get the Spotify Premium habit, you really don't want to bother with downloading files and managing them: having everything there, in the cloud, nicely organised, is just *so* convenient (well, provided you don't lose your connection). I'm sure that my scheme would lead to falls in the levels of file sharing that the government is looking for; and anyway, it could hardly be worse than the proposals in the Digital Economy bill.

Update: On Twitter, Barbara Cookson suggested a clever tweak to this idea: "absolution for ISPs who include #spotify as part of package". Nice.

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ACTA as the (Fool's) "Gold Standard"

I've noted before that at the heart of the ACTA negotiations there is a con-trick being played upon the world: insofar as the mighty ones deign to pass down any crumbs of information to us little people, it is framed in terms of the dangers of counterfeit medicines and the like, and how we are being "protected". But, then, strangely, those counterfeit medicines morph into digital copies of songs - where there is obviously no danger whatsoever - but the same extreme measures are called for.

Unfortunately, the European Union has now joined in the parroting this lie, and is now pushing even harder for ACTA to be implemented:

The European Union appears to be preparing for adoption of the “gold standard” of enforcement, the Anti-Counterfeiting Trade Agreement (ACTA), as intellectual property law expert Annette Kur from the Max Planck Institute of Intellectual Property, Competition and Tax Law said it is now called.

At a conference of the Swedish EU Presidency on “Enforcement of Intellectual Property with a Special Focus on Trademarks and Patents” on 15-16 December in Stockholm, representatives from EU bodies, member states and industry supported a quick enforcement of ACTA, according to participants. A representative of the Justice, Freedom and Security Directorate General of the European Commission, presented a plan for a quick restart of a legislative process in the EU to harmonise criminal law sanctions in the Community.

Worryingly:

Only two members of Parliament attended the conference in Stockholm, which despite its high-level panels was not much publicised by the Swedish presidency. Not even an agenda had been published beforehand

That is, the inner circle of the EU, represented by the EU Presidency, was clearly trying to minimise scrutiny by the European Parliament, which has historically taken a more balanced view of intellectual monopolies and their enforcement. That matters, because:

Under the Lisbon Treaty, the European Parliament would be kept informed of the negotiation process in a manner similar to the Council, a Commission expert said. Furthermore, the ACTA text would be approved both by the Parliament and the Council.

In other words, the European Parliament now has powers that allow it to block things like ACTA, should it so desire. That's obviously a problem for those European politicians used to getting their way without such tiresome democratic obstacles.

Despite this shameful attempt to keep everything behind closed doors, the presentations show that even among those with access to the inner circle there are doubts about ACTA's "gold standard". Here's what the academic Annette Kur said in her presentation [.pdf]:

Using the public concern about serious crimes like fabrication of fake and noxious medicaments as an argument pushing for stronger legislation on IP infringement in general is inappropriate and dangerous

It is dangerous because it obscures the fact that to combat risks for public health is not primarily an IP issue

It is inappropriate because it will typically tend to encourage imbalanced legislation

Similarly Kostas Rossoglou from BEUC, the European Consumers’ Organisation, was deeply worried by the following aspects [.pdf]:

Counterfeiting used as a general term to describe all IPR Infringements and beyond!!!

Broad scope of IPRED Directive – all IPR infringements are presumed to be equally serious!!!

No distinction between commercial piracy and unauthorised use of copyright-protected content by individuals

No clear definition of the notion of “commercial scale”

Things are moving fast on the ACTA front in Europe, with a clear attempt to steamroller this through without scrutiny. This makes it even more vital that we call out those European politicians who try to justify their actions by equating counterfeiting and copyright infringement, and that we continue to demand a more reasoned and balanced approach that takes into account end-users as well as the holders of intellectual monopolies.

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SFLC Gets Busy Around BusyBox

Contrary to some public perceptions, the Free Software Foundation is not keen on litigating against those who fail to respect the terms of the GNU GPL. Here's what Eben Moglen, very much the legal brains behind the organisation, told me a decade ago....

On Open Enterprise blog.

Digital Britain, Analogue Thinking

Clocking in at 238 pages, the final Digital Britain report is an impressive piece of work. It provides a comprehensive survey of how many aspects of British life are being transformed by the transition from the old world in which information is largely stored and transmitted in an analogue format, to one that is inherently digital. Moreover, to its credit, the report is suffused with a sense that this is an epochal and exciting change, not just a minor change of emphasis.

That's the good news.

The bad news is that the report is riddled with old, analogue thinking that vitiates most of its proposals....

On Open Enterprise blog.

RIAA Fines: Not so Fine

Yesterday I told the story of RMS and his magic bread, and what it taught us about sharing; here's the negative corollary, courtesy of Charles Nesson:

Imagine a law which, in the name of deterrence, provides for a $750 fine [the lower threshold for statutory damages] for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew she was speeding.

Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put into the hands of a private, self-interested police force that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs on the order of $3,000 to $7,000 in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that almost every single one of these fines goes uncontested, regardless of whether they have merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in a federal courtroom.

That, of course, is the precisely the situation for copyright infringement: how can this be just?

Go Charlie, go.

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Let's Drop this Insulting “Digital Piracy” Meme

Until recently, piracy referred to the lawless times and characters of the 17th and 18th centuries – or, if closer to the present, to artful/humorous representations of them in books, theatre and film. This has allowed the media industries to appropriate the historical term, and re-fashion it for their own purposes. And they have been highly successful: even normally sane journalists now write about “software piracy”, or “music piracy”....

On Open Enterprise blog.

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"Piracy Law" Cuts *Traffic* not "Piracy"

This story is everywhere today:

Internet traffic in Sweden fell by 33% as the country's new anti-piracy law came into effect, reports suggest.

Sweden's new policy - the Local IPRED law - allows copyright holders to force internet service providers (ISP) to reveal details of users sharing files.

According to figures released by the government statistics agency - Statistics Sweden - 8% of the entire population use peer-to-peer sharing.

The implication in these stories is that this kind of law is "working", in the sense that it "obviously" cuts down copyright infringement, because it's cutting down traffic.

In your dreams.

All this means is that people aren't sharing so much stuff online. But now that you can pick up a 1 Terabyte external hard drive for less than a hundred quid - which can store about a quarter of a million songs - guess what people are going to turn to in order to swap files in the future?

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SCO What? It's Patently over for Copyright

Remember SCO? It's a once-important company that developed a death-wish by suing IBM in 2003. As Wikipedia explains...

On Open Enterprise blog.

Is the EU Acting Duplicitously Over ACTA?

As I and many others have noted, the current negotiations over the Anti-Counterfeiting Trade Agreement (ACTA) are, on the one hand, shrouded in secrecy for the general public, while on the other, being conducted in close consultation with media industries. This leads to the doubly deplorable situation that an important treaty is being negotiated to favour a particular industry without allowing those most affected by it – the tax-paying public – to even offer comments on it.

One measure of the growing impossibility of sustaining this position was the release by the EU of its “fact sheet” on ACTA, last updated in January. This smooth-talking document attempts to assuage the concerns of the little people, assuring us:

ACTA is about tackling large scale, criminal activity. It is not about limiting civil liberties or harassing consumers.

ACTA will not go further than the current EU regime for enforcement of IPRs – which fully respects fundamental rights and freedoms and civil liberties, such as the protection of personal data: This Community acquis on IPR enforcement is without prejudice to national or Community legal provisions in other areas, in particular in the area of personal data protection, as regulated by the Data Protection Directive and the Directive on privacy and electronic communications.

ACTA is not designed to negatively affect consumers: the EU legislation (2003 Customs Regulation) has a de minimis clause that exempts travellers from checks if the infringing goods are not part of large scale traffic. EU customs, frequently confronted with traffics of drugs, weapons or people, do neither have the time nor the legal basis to look for a couple of pirated songs on an i-Pod music player or laptop computer, and there is no intention to change this.

Of course, in the absence of any details about what the treaty contains, it's hard to tell whether this is just palliative spin or not.

Fortunately, the sunlight of openness is beginning to pierce even the sepulchral gloom of the ACTA negotiation process, and leaks of its current text are beginning to seep out. The news is not good, as Michael Geist explains:

The Border Measures proposals are also still subject to considerable disagreement. Some countries are seeking de minimum rules, the removal of certain clauses, and a specific provision to put to rest fears of iPod searching customs officials by excluding personal baggage that contains goods of a non-commercial nature. The U.S. is pushing for broad provisions that cover import, export, and in-transit shipments.

The proposals call for provisions that would order authorities to suspend the release of infringing goods for at least one year, based only on a prima facie claim by the rights holder. Customs officers would be able to block shipments on their own initiative, supported by information supplied by rights holders. Those same officers would have the power to levy penalties if the goods are infringing. Moreover, the U.S. would apparently like a provision that absolves rights holders of any financial liability for storage or destruction of the infringing goods.

...

The Criminal Enforcement proposals make it clear that the U.S. would like ACTA to go well beyond cases of commercial counterfeiting. Indeed, their proposal would extend criminal enforcement to both (1) cases of a commercial nature; and (2) cases involving significant willful copyright and trademark infringement even where there is no direct or indirect motivation of financial gain. In other words, peer-to-peer file sharing would arguably be captured by the provision. The treaty would require each country to establish a laundry list of penalties - including imprisonment - sufficient to deter future acts of infringement. Moreover, trafficking in fake packaging for movies or music would become a criminal act as would unauthorized camcording.

Now, it may well be that the EU is fighting tooth and nail against the intrusive border control measure, and the criminalisation of P2P file sharing – both of which would certainly “limit civil liberties” and “harass” consumers. But the best way for the EU to demonstrate its bona fides would be to bring the negotiations out into the open.

It is clear that the scope of this treaty is far reaching: indeed, there is a clear attempt to use it to slip in very powerful clauses that would over-ride national and international legislation. This is simply unacceptable. Moreover, if it turns out that the EU is *not* fighting the above moves, it is nothing short of scandalous that it should be acting in such a duplicitous fashion over ACTA – in which case, those responsible for following this course should be called on to resign.

No, It's a *Wrongs* Agency

From The Reg:

Following its failure to foster voluntary solution between ISPs and rights holders, the government will create a new agency and regulations to clamp down on copyright infringement via peer-to-peer networks, it's reported today.

A proposal for a body called the Rights Agency will be at the centre of anti-internet piracy measures, according to the Financial Times, which cited sources who had read a draft of Lord Carter's report on Digital Britain. The Rights Agency will be introduced alongside a new code of practice for ISPs and rights holders, to be overseen by Ofcom, according to the leaked draft. The final report is due out by the end of this month.

So, tell me, what about *our* rights - of fair dealing/fair use, of the ability to create mashups and remixes? Funny that the UK government is only interested in preserving the 18th century rights of business, rather than the 21st rights of its citizens. Every time they come up with daftness such as this, they show just how out of touch with the modern world they are.

RIAA Gets...Cunning

People seem to be jumping to all the wrong conclusions on this:

After years of suing thousands of people for allegedly stealing music via the Internet, the recording industry is set to drop its legal assault as it searches for more effective ways to combat online music piracy.

The decision represents an abrupt shift of strategy for the industry, which has opened legal proceedings against about 35,000 people since 2003. Critics say the legal offensive ultimately did little to stem the tide of illegally downloaded music. And it created a public-relations disaster for the industry, whose lawsuits targeted, among others, several single mothers, a dead person and a 13-year-old girl.

Think that the RIAA is getting sensible? Think again: it's just getting clever:

Instead, the Recording Industry Association of America said it plans to try an approach that relies on the cooperation of Internet-service providers. The trade group said it has hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider's customers making music available online for others to take.

Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. If the customers continue the file-sharing, they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether.

Yup, it's that old favourite: three strikes and you're out...

Coming Down Hard - in Favour of Downloads

A study about downloading finds:

Music companies need to stop resisting and accept that illegal downloading is a fact of 21st-century life

...

"The expectation among rights holders is that in order to create a success story, you must reduce the rate of piracy," Garland said. "We've found that is not the case."

The authors of the study argue that music rights holders need to find "new ways" and "new places" to generate income from their music, rather than chasing illegal downloads – for example, licensing agreements with YouTube or legal peer-to-peer websites. In other words, they ought to do the musical equivalent of giving away free ice-cream and selling advertising on the cones.

So far, so boring - I and others have been writing this stuff far ages. Except for one tiny detail: the study comes not from deranged bloggers like me, or crypto-communists bent on underming the entire capitalist system, but was conducted

by the MCPS-PRS Alliance and Big Champagne, an online media measurement company.

In other words, *their own research* shows that their *fight* is hopeless. Will they listen? Don't hold your breath....

The Egregious Economist

I continue to be gobsmacked by the egregious stupidity of The Economist:

Commercial piracy may not be as horrific as the seaborne version off the Horn of Africa.... But stealing other people’s R&D, artistic endeavour or even journalism is still theft.

Not only is it not as horrific as what occurs off the Horn of Africa, it is a total insult to parrot such a stupid, loaded metaphor, which consciously tries to equate the two. And for the six billionth time, it's *not* theft, no matter how many times you repeat it: it's infringement.

Nothing is stolen: you still have your R&D, your artistic endeavour or even your journalism. What has happened is that others may be making use of those, possibly against some laws in certain jurisdictions. Quite how terrible that might be depends on many factors, not least the scale and intent.

Maybe it would be better if The Economist put the paywall back to protect innocent minds from its idiocies.

Associated Press Decides to Look Stupid

I'm currently engaged in a legal disagreement with the Associated Press, which claims that Drudge Retort users linking to its stories are violating its copyright and committing "'hot news' misappropriation under New York state law." An AP attorney filed six Digital Millenium Copyright Act takedown requests this week demanding the removal of blog entries and another for a user comment.

The Retort is a community site comparable in function to Digg, Reddit and Mixx. The 8,500 users of the site contribute blog entries of their own authorship and links to interesting news articles on the web, which appear immediately on the site. None of the six entries challenged by AP, which include two that I posted myself, contains the full text of an AP story or anything close to it. They reproduce short excerpts of the articles -- ranging in length from 33 to 79 words -- and five of the six have a user-created headline.

So that's about 99.999% of the blogosphere that's violating copyright according to AP. How about if we help Associated Press by never linking to any of their stories...that should make them *really* happy. (Via Scott Rosenberg.)

The Problem Isn't Infringement, it's Indifference

One of the interesting side-effects of the increasing number of artists making their work freely available with great success is that it demonstrates a deep and hitherto unappreciated facet of creativity: that the main problem is never "infringement" but simply indifference. That's why artists should be making it as easy as possible for people to access and share their work.

If any domain needed to understand this, it's poetry. Now don't get me, wrong, I love poetry: I am probably one of the few human beings alive who has read all of Spencer's The Faerie Queene, Byron's Don Juan and Wordworth's The Prelude (don't ask), but the sad fact is practically nobody reads poetry today. So what's the solution? Why, making it freely available:

By now, Poetree.coop has probably been shut down.

While it lasted, it was the best-designed, richest source of p2p poetry sharing available online. Only a typical lunk-headed heavy-handed ploy by the inner circle of poets was able to shut it down.

All the classics were there: Rod McKuen, Roald Dahl, even the Dr. (Seuss) himself. In addition, you could find the complete poetry of Percy Bysshe Shelley, Samuel Taylor Coleridge and even Thomas Moore.

So, amidst all of these gems, what happened? Why the controversy?

Alisha Grant, spokesperson for the Geraldine R. Dodge Foundation, had this to say, "We applaud the work of the FBI in shutting down this travesty of copyright. If we want great poetry, America, we're going to have to pay for it."

Oh, of course, it doesn't matter whether anyone *reads* your poetry, so long as you get paid for it. The idea that a real poet might be more concerned with the latter - and worry about the dosh later - is clearly an outmoded idea.

Maybe that's why nobody reads poetry.

Update: OK, so apparently this was an April Fool's Day joke: shame on me. What I *really* meant to write about was this, where the above comments still apply.

Getting the Facts About Copyright Infringement

Copyright infringement is an emotive area, generating more by heat than light. Hard facts are hard to come by, which makes this mammoth report on the subject in the UK particularly valuable. It's full of good stuff, but for me the killer was page 209, which looked people's attitudes to copyright infringement.

Here are the numbers: 70% don't think that legal download sites have the range of materials that illegal ones do and 64% would pay for stuff if it were available. As for the "three strikes and you're out" idea, 70% said they would stop if they got an email from they're ISP - but practically the same number, 68%, thought it very unlikely that they'd get caught anyway, suggesting that things aren't quite as black and white as some would have us think. (Via TorrentFreak.)

Bring on the Ferrets

A dissertation on copyright in 19th-century America may not sound exactly like beach reading, but the fact is that US law in this area affects the rest of the world - not least because of the US's heavy-handed attempts to extend its application around the globe:

With the rise of digital reproduction and the expansion of the Internet, copyright issues have assumed tremendous prominence in contemporary society. Domestically, the United States is awash in copyright-related lawsuits. Internationally, fears of copyright violation strongly influence U.S. foreign policy, especially with China. Hardly a week goes by without some new copyright-related headline in the news. In a globalized world with cheap digital reproduction, copyright matters.

That law has been shaped by the 19th-century experience. And what a century:

The bill in substance provides that […] copyright patents shall be granted to foreigners; they may hold these monopolies for forty-two years; the assigns of foreigners may also obtain copyrights; all postmasters and customs officers throughout the United States are constituted pimps and ferrets for these foreigners; it is made the duty of postmasters to spy out and seize all books going though the mails that infringe the copyrights of foreigners; if an American citizen coming home brings with him a purchased book, it is to be seized on landing unless he can produce the written consent of the man who owns the copyright, signed by two witnesses. Who the said owner may be, in what part of the world he lives, the innocent citizen must find out as best he can, or be despoiled of his property.

The source of this heated prose of pimps and ferrets? The May 19, 1888 issue of Scientific American.

Be Afraid, Verizon, Be Very Afraid

On Open Enterprise blog.

Don't Steal This Book, Michael

The Kindle is a breakthrough device, in many ways analogous to the first iPod. Just as the iPod brought MP3 players to the masses, the Kindle will be the device that introduces ebooks to many people.

And while Apple sells lots of songs legally on iTunes, the vast majority of content on most iPods comes from home-ripped CDs or was obtained in violation of copyright laws. I expect the same thing with the Kindle. Users may buy a book or two on Kindle, but many users will simply steal the content they want to read.

Sorry, Michael, violating copyright laws is very different from "stealing", as you should know. Moreover, "home-ripped CDs" are not even violations of copyright laws in many jurisdictions (and shouldn't be in any, since it's clearly a fair use/fair dealing.) Confusing these facts simply plays into the hands of the copyright bullies.