Innocence of the act is no defence

It seems that a 40-year-old Frenchman who was summoned to court in France under the French anti piracy ‘HADOPI’ three strikes legislation for illegally downloading pirated music, has found himself on the receiving end of a conviction – even though it was his wife who illegally downloaded the two Rihanna songs in question. 

PC World report that Alain Prevost was fined for failing to secure his Wi-Fi network after Prevost self-incriminated himself by admitting he knew his wife illegally downloaded the songs. Under French law the “three strikes” are as follows: first, an email message is sent to the alleged offender: Secondly if the alleged offender illegally downloads copyrighted material again within the next six months, a certified letter is sent to the alleged offender: Thirdly if the alleged offender does not stop downloading illegally within one year from the receipt of that letter, the offender's Internet Service Provider (ISP) is required to suspend their Internet access. 

According to TorrentFreak, content owners have identified a total of three million French IP addresses associated with piracy since October 2010. Of these three million IP addresses identified, 1.15 million were eligible for a first strike, 102,854 eligible for a second strike, and 340 eligible for a third. Of those 340 just 14 were referred to French prosecutors. Prevost’s defence  (apart from not actually committing the infringing acts) was that whilst he did receive the first and second communications, he actually took himself offline as he was divorcing his wife, and whilst prosecutors say he did not respond at all, he said he did respond to the third letter and his wife’s lawyer sent a letter to the HADOPI agency. Prevost also says that as he was offline he received no further emails from HAPOI. He was then summoned to Paris to explain himself, but he didn't want to pay the cost of travel for such a (what he assumed) trivial matter. He was then summoned to his local Police station and despite explaining it was his wife who was the guilty party, ended up in court. 

The report says that even with his wife (ex-wife?) as a witness, Prevost was found guilty by le Tribunal de Police de Belfort of failing to secure his Wi-Fi network, and was fined 150 euros. The court did not terminate his Internet connection. If any of our French readers can add to the detail of this report by way of comment, this blogger would be very grateful. 

New Zealand approaches 'third strike'

The 'Three strikes' regime in New Zealand is fast approaching implementing the 'third strike' against three alleged persistent copyright infringers who are facing the possibility of NZ$15,000 fines in the Copyright Tribunal. 

So far some 2,700 warning letters have been sent out under the Kiwi's graduated response system, mostly at the behest of the Recording Industry Association of New Zealand and three customers of Telecom New Zealand are now facing court sanctions. The telecoms company said it did not know what its role would be in the Tribunal, saying that was for the Tribunal to determine and maintained what the carrier's role in the system was administrative only, simply passing on warning letters from those copyright owners who allege infringement to their customers who are identified by their IP address.

http://www.theregister.co.uk/2012/09/05/kiwi_three_strikes_out/

Hadopi "failure" a warning for the UK?

The French government is counting the cost of administering the ‘Law Hadopi’ copyright enforcement: Hadopi, the body charged with hunting down repeat infringers under France’s three-strikes law, has sent a million warning e-mails and 99,000 registered letters although just 134 cases have been examined for prosecution and no cases have as yet resulted in an Internet user being disconnected. Hadopi has a payroll of over 60 and annual costs have now reached a reported 12 million Euros,  prompting French culture minister Aurélie Filippetti to describe the system as “unwieldy, uneconomic and ultimately ineffective”. Filippetti told Le Nouvel Observateur that Hadopi had also failed in a key part of its mission, to foster legal content to replace illegal downloads prompting the French government to  launch a consultation to re-examine it's response Internet piracy with Filippetti talking of a post-Hadopi future. 

In a separate interview, Pierre Lescure, head of the commission into the “Future of Piracy” and a former boss at Canal+, endorsed Filippetti’s stance, saying he attaches “great importance” to the development of legal offers, and that the temptations to piracy are so great “only a priest would not yield” saying “The error of Hadopi was to focus on the penalty”, telling Le Nouvel Observateur. “If one starts from the penalty, it will fail”, adding that the sanction of disconnection is, for now, unenforceable.

The French system had been heralded as a success by many in the content industries who pointed to a reduction in online piracy and illegal downloading of music and films – although a January 2011 poll in France indicated that 49% of French Internet users continue to illegally download music and video.  The obvious reluctance of the Minister and the commission head to support Hadopi is a glum reminder for supporters of the three strikes provisions in the UK’s Digital Economy Act -  even if implemented in the UK it seems a  three strikes scheme might be an expensive industry funded failure. 

http://www.theregister.co.uk/2012/08/06/hadopi_under_fire/

Kiwi ISP boss says that three strikes is the wrong model

Allan Freeth, The chief executive of New Zealand ISP TelstraClear, has spoken out against his country’s Copyright (Infringing File Sharing) Amendment Act 2011, which comes into force on September 1st. The New Zealand legislation is another example of the 'three strikes' legislative approach adopted by France, South Korea and which will be implemented in the UK. The Act introduces a set of penalties (described by some as 'draconian', others as 'inffective') that impose fines and possible account suspension for infringing activities, and it involves Internet Service Providers in the process of identifying and notifying account holders based on IP addresses.

Freeth said that “TelstraClear respects copyright and supports the ability of rights owners to realise value from their intellectual property. But a business model that has to be propped up by specific legislation in this way is flawed and needs to change,” adding The new law will not help copyright owners defend their rights" and “It may encourage parents to take more notice of what their kids are doing online, and that’s a good thing. But it won’t stop those who really want content from getting it.”

Freeth said his company’s market research found definitive reasons why people illegally downloaded content which were: (a) the legal product takes too long to become available; (b) it costs too much; (c) the packaging and distribution of physical music, movies and games is unnecessary and costly; and (d) they believe the business model is outdated and out-of-touch.

Three main themes emerged from TelstraClear’s study which hopes to reconcile the financial needs of content owners and creators with customers’ expectations for content in a broadband world. One was to forge stronger bonds between the artists and the audience, which the respondents thought would result in reducing the overhead costs of traditional business practices major companies and therefore lowering the cost of legitimate content. Second was to implement different business models, such as advertising supported, sponsored, or getting lower quality for free and paying for improved quality. Third was to distinguish between consumers who copy for personal use and people who profit from illegally copying and selling content, with the latter receiving harsher punishment.

Freeth said “Instead of bringing in a law that we believe will not and cannot work, our government should be breaking monopolies, allowing personal choice and letting New Zealanders experience information and entertainment when the rest of the world does” adding “Instead, it has chosen to introduce a law that could turn ordinary Kiwis into law-breakers.”

http://www.theregister.co.uk/2011/08/17/telstraclear_sticks_it_to_download_police/

OOOO errrr missus, the claws are out in DEB debate

The record label’s trade body, The BPI, has published research by Ovum which rather spookily comes out just at the time when debate about the Digital Economy Bill is in full spate, and even more spookily suggests that if the six biggest internet service providers were to launch internet packages that had a licensed digital music service bundled in this year, the extra revenue they could generate on an annual basis by 2013 would be £103 million, assuming there was a "medium adoption scenario" which would be be equivalent to 41% of the total U.K. digital music market in 2009. The report also found that bundled music services could reduce ISP subscriber churn rates saying that "A big ISP with around 3.5 million customers would generate indirect value of more than £20 million per year if its bundled music service cuts churn by just 10%” and going to on say that “with the right service platform, user experience and merchandising strategy, ISPs have an opportunity to reach a green-field digital music market that mainstream download-to-own services such as iTunes do not reach today”. Commenting on the report, the BPI’s Geoff Taylor said

"It's increasingly clear that it isn't smart for an ISP to just be a 'dumb pipe'. This report shows that the revenue potential of digital music services alone makes sound economic sense for ISPs. UK music companies want to innovate and develop exciting new digital offerings. ISPs such as Virgin Media have recognised that legal digital music services offer a more exciting and profitable future than continued widespread piracy".

Now I am not sure if the likes of BT, Virgin and AOL like being called a ‘dumb pipe’ (a new one to me) but TalkTalk’s response (usually newsworthy when it comes to three strikes and ISPs’ policing the internet) was marvellously catty, with a spokesperson telling TorrentFreak

"TalkTalk thanks the BPI for its strategic business advice. Though some may question the value of such insight from an industry which has failed to acknowledge the impact of new technology on its own business models and is pressing the Government to criminalise its biggest customers".

Meeeeeeowwwwww


http://www.dmwmedia.com/news/2010/03/08/report-uk-isps-could-reap-155m-music-services

Are blissed out online shoppers statistically confused?

New research from Consumer Focus, the UK’s consumer watchdog, says that nine out of ten consumers who are aware of online music services, have only heard of two established brands – iTunes and Amazon and Consumer Focus says that the survey of nearly 2,000 people shows that the music industry is failing to promote the many legal alternatives – four in ten people had never heard of a single online service. Unsurprisingly the music industry said it was a “fallacy” to imply that awareness of legal music services is low and Geoff Taylor, the chief executive of the BPI, the record industry trade body, said: “It’s just not credible to suggest that people who are downloading illegally haven’t heard of iTunes, Amazon or other legal music services” adding “our much larger, more recent and targeted online survey shows that awareness of legal music services among internet users is almost universal”. I have to say, it does somewhat depend on who Consumer Focus surveyed – my great aunt, who is reasonably computer savvy, knows what a download is (in theory) but would not be able to name a single online service as she only uses CDs. It is also fair to say that with their market dominance both Apple’s iTunes and Amazon would be expected to poll significantly and it would be interesting to see exactly what was asked and of whom. Without that information the statistic is as meaningless as the record industry’s own use of the statistic that “95% of all downloads are illegal” (IFPI), somehow trying to equate this to a 95% loss of actual sales of recorded music.

The survey has added spice to the ongoing debate about the relevance of a ‘three strikes’ law which would be used to disconnect persistent illegal download offenders as envisaged in the Digital Economy Bill, and of course the new High Court injunctive powers set out in Lord Tim Clement Jones’ recent House of Lords amendment to the Bill. I the red corner the BPI’s Geoff Taylor said “The measures in the Digital Economy Bill are precisely what is needed to encourage illegal downloaders to move across to those legal services” whilst in the blue corner Jill Johnstone, International Director, Consumer Focus, said: “The music industry is shooting itself in the foot by not promoting legal online music services. If file sharing is causing the damage the music industry claims, why aren’t they putting more effort in to promoting the legal alternatives?” adding “Before we go down the enforcement road it is only fair to ask the music industry to do more to make people aware of the legal options". The BPI's Harris Interactive research of 3,442 respondents in November 2009showed 96% had awareness of iTunes/Amazon/7 Digital/HMV (etc); that 87% had awareness of subscription services like Napster, eMusic (etc); that 87% had awareness of music direct from artists sites; that 86% had awareness of being able to obtain music via mobile handsets; and on streaming services, 55% had awareness of Spotify, 52% had awareness of last.fm and 31% had awareness of We7.



http://www.telegraph.co.uk/technology/news/7392178/Music-industry-failing-to-promote-legal-alternatives-to-piracy.html

http://www.tmcnet.com/usubmit/-consumer-focus-more-must-be-done-make-consumers-/2010/03/07/4660749.htm

And for more research on comsumers' views on 'outdated' copyright laws in the UK see http://www.consumerfocus.org.uk/news/outdated-copyright-law-confuses-consumers

Lib Dems scupper Clause 17 of the Digital Economy Bill

Controversial Clause 17 of the Digital Economy Bill which was designed to allow ministers, rather than parliament, the right to introduce new copyright rules has been dropped following a last minute move by the Liberal Democrats to amend the proposed legislation in the House Of Lords. Liberal Democrat Lords Razzall and Clement-Jones proposed an amendment which could see UK Internet Service Providers forced to block web sites with a high proportion of copyright-infringing content with the key passage in the amendment saying:

"The High Court shall have power to grant an injunction against an [internet] service provider, requiring it to prevent access to online locations specified in the order of the Court."

A further statement in the amendment says that this would apply when a substantial proportion of the content accessible at or via each specified online location infringes copyright.

The amendment, if successful, is a double whammy for ISPs as the High Court’s new powers would be available to the content industries alongside the proposed new ‘Three Strikes’ provisions. It remains unclear whether the new powers could be used against sites (rather than ISPs) such as Oink! or The Pirate Bay which do not host any infringing content themselves but provide links to infringing content - although if widely drafted the amendment would potentially bring in a the concept of ‘authorising infringement’ into UK law. Tim Clement-Jones (pictured) explained the motive behind the amendment thus

“I believe this is going to send a powerful message to our creative industries that we value what they do, that we want to protect what they do, that we do not believe in censoring the internet but we are responding to genuine concerns".

The blog world was up in arms with widespread rumours that, if the Bill passed, content owners could easily misuse the new powers especially against video-sharing sites like YouTube, which do host infringing content uploaded by users - until they are made aware of its presence on their platform and take it down.

Open Rights Group director Jim Killock told reporters:

"This would open the door to a massive imbalance of power in favour of large copyright holding companies. Individuals and small businesses would be open to massive 'copyright attacks' that could shut them down, just by the threat of action. This is exactly how libel law works today: suppressing free speech by the unwarranted threat of legal action. The expense and the threat are enough to create a 'chilling effect'".

At the beginning of the week Lord Puttnam said that the Bill was being rushed through parliament without sufficient scrutiny, and that legislators were subject to an "extraordinary degree of lobbying" from copyright holders.

The Digital Economy bill is currently in the report stage at the House of Lords before its third reading in the Commons. Whether it will receive assent before the upcoming general election remains to be seen. Lord Puttnam said of the current Bill

"What will end up leaving this chamber... and going to the Commons is a bill that none of us is particularly proud of. It will be a spatchcock that does part of the work it was intended to do but not all of it."

Australian court finds safe harbour for ISPs

Australia's Federal Court has ruled that Internet Service Providers cannot be held liable for copyright infringements committed by their subscribers, dealing a blow to content owners in a closely-watched lawsuit against Australian Internet Service Provider iiNet. Justice Dennis Conroy found that whilst it was shown that iiNet had knowledge that its customers were committing copyright infringement, this knowledge did not equate to "authorizing" the activities ruling “While I find that iiNet had knowledge of infringements occurring, and did not act to stop them, such findings do not necessitate a finding of authorisation. I find that iiNet did not authorise the infringements of copyright of the iiNet users”. The case was brought by AFACT (the Australian Federation Against Copyright Theft) on behalf of a consortium of film and TV companies and centred on the ISP’s liability for illegal file-sharing committed by its customers. AFACT had asked for damages and wanted iiNet to be forced to disconnect any customers it knew were illegally sharing music online. The ISP had refused to forward file-sharing warning notices to its subscribers on behalf of the studios, saying they violated privacy provisions in Australian law. Instead, iiNet had taken to forwarding the notices from copyright holders to the police, along with its own terms and conditions showing it prohibited copyright infringement.

It is now likely that the Australian government will review legislation with a suggested move to enact a three strikes system.

http://www.dmwmedia.com/news/2010/02/04/aussie-court-isps-not-liable-users039-copyright-infringement

Australian content owners looks to courts for three strikes law

Australia's Federal Court is expected to fast-track a decision in a case brought by AFACT (the Australian Federation Against Copyright Theft) on behalf of a consortium of film and TV companies against the Australian internet service provider iiNet. The case centres on the ISP’s liability for illegal file-sharing committed by its customers. AFACT are suing for damages, and want iiNet to be forced to disconnect any customers it knows are illegally sharing music online. In France and Taiwan a ‘three strikes’ law is already in place and in the UK a similar regime is planned as part of the new Digital Economy Bill which Culture Secretary Ben Bradshaw believes will become law before the next election. Controversy still surrounds the role of ISPs and mobile companies in regulating their customers illegal activities, and in the UK Talk Talk’s boss Charles Dunstone has said he might fight the three-strikes law in court if his lobbying efforts to stop the anti-piracy system becoming law fails.

In all the countries where the new system is in place it has been brought in by the legislature, although in the US MGM v Grokster held that those who induce infringment are liable for the resulting acts of infringement by third parties. In Australia it seems that the content industries are looking to a civil action, hoping that a successful action against an internet provider over the issue will set an important precedent – which the legislature could then formalize. There is ,of course, no guarantee that the claim will succeed. In the UK the BPI have been hesitant to take a civil law action against the organisers of the Oink file sharing service, accepting a case would probably have to go to the Supreme Court for a final ruling. Indeed criminal charges against founder Alan Ellis failed in the Crown Court and a recent claim by the IFPI against Baidu in China for providing links to infringing sites failed in the Beijing No. 1 Intermediate People's Court.

AFACT and iiNet had both presented their arguments in court last October and a ruling on the matter was not expected until later this year. However it was announced yesterday that a judgment will now be made next Thursday. Following the court hearings last Autumn, iiNet's CEO Michael Malone told reporters he was confident his company would win the case, saying: "We do not, and never have supported, encouraged or authorised illegal sharing or downloading of files in breach of the copyright laws". Even if iiNet win, it is likely the government will give some time to reviewing copyright rules, which might result in a three-strikes system being introduced in all events - although I imagine Australian ISPs and mobile companies will be as vocal as Dunstone has been in the UK, telling reporters that if the Digital Economy Bill does become law his company will refuse to send out warning letters and will consider "all options" for challenging three-strikes through the courts saying "I think there is a problem if an industry thinks its business model will be saved by legislation. While the music industry focuses on getting these laws through, it won't be concentrating on reinventing its business - which it obviously needs to do as its model is out of date. Its customers have gone on strike and turned to piracy because the old model doesn't work. There is no need to pursue this letter-sending and disconnection policy, when [record companies] can just individually prosecute people who have violated copyright rules".

http://www.telegraph.co.uk/technology/7079982/TalkTalk-would-fight-Digital-Economy-Bill-in-court.html
http://newsblog.thecmuwebsite.com/
http://news.bbc.co.uk/1/hi/england/tees/8461879.stm

U2 can appeal, Mr Tenenbaum

Joel Tenenbaum, who was ordered to pay $675,000 for infringing 30 sound recordings after his jury trial in the USA, is to ask for a re-trial. Among other claims, lawyers for Tenenbaum say that the verdict was unconstitutionally excessive - the argument being that a penalty of $22,500 a song is “obviously unreasonable” – although it is of course well within statutory limits. The US Copyright Act allows penalties ranging from $750 to $150,000 per infringement at the jury’s discretion. Indeed the jury’s decision in the Tenenbaum case is not without precedent: in the USA’s first major file sharing claim, single mum Jammie Thomas-Rasset was ordered by a Minnesota court to pay $1.92 million for file sharing 24 songs.

Now Charles Nesson, Tenenbaum’s attorney and Harvard academic (pictured in a rather fetching turtle neck ensemble) wants U.S. District Judge Nancy Gertner to reduce the damages to the minimum $750 a song or give the Boston graduate student a new jury trial saying “Given the fact that Tenenbaum was one of many millions of people sharing music and that the plaintiffs have failed to show any actual damages from Tenenbaum’s particular actions, this award is obviously “so severe and oppressive as to be wholly disproportionate to the offense and obviously unreasonable”. It is fair to say that the Recording Industry Association of America (RIAA) has now wound down its high profile campaign to sue individual file sharers and downloaders, but this doesn’t detract from the fact that Tenenbaum was convicted on his own admission and the jury’s award well within statutory parameters. It seems likely that whilst the judiciary may be unhappy about the level of damages awarded in both these cases, it is unlikely to take a proactive role in reducing them – leaving this to Congress. As for Congress, as the movie, television and music industries continue to ask for greater protection, it seems unlikely that the legislature bow to pressure to reduce statutory penalties. Nesson is also asserting that Tenenbaum’s 2004 file sharing on Kazaa and Limewire was protected by the US fair use doctrine — a suggestion that online file sharing is permissible. In Tenenbaum’s Massachusetts trial Judge Gertner would not allow this defence to proceed and quite frankly it’s hard to see why this would be allowed to proceed in a second trial. Dowloading files without paying is surely never going to constitute ‘fair use’.

In fact it seems likely that countries will in all probability move to stregthen rather than loosen copyright protection. In the US, the RIAA, the Motion Picture Association of America and others are lobbying Congress and internet service providers to adopt a “three strikes” policy in which internet access would be cut off for repeated infringement. This legislation exists in Taiwan, in New Zealand and (nearly it seems) exists in France – and has been included by Business Secretary Lord Mandelson in the Digital Economy Bill which is in the committee stage the UK. This week U2 frontman Bono heralded the intervention of the movie industry as a potential savior for the ailing music saying that file swapping and sharing hurt the creators of cultural products. Bono argued “the only thing protecting the movie and TV industries from the fate that has befallen music and indeed the newspaper business is the size of the files” pointing out that “the immutable laws of bandwidth” indicate that technology is just a few years from allowing viewers to download entire movies in just a few seconds adding “A decade’s worth of music file-sharing and swiping has made clear that the people it hurts are the creators—in this case, the young, fledgling songwriters who can’t live off ticket and T-shirt sales”! Interestingly the singer pointed out that the US effort to stop child pornography and China’s effort to suppress online dissent indicate that it is “perfectly possible to track” Internet content and felt that the movie and TV industries may succeed where the music and newspaper industries have failed saying “Perhaps movie moguls will succeed where musicians and their moguls have failed so far, and rally America to defend the most creative economy in the world, where music, film, TV and video games help to account for nearly 4 percent of gross domestic product”.

ISP TalkTalk's head of regulation Andrew Heaney responded by telling reporters: "It is outrageous to equate the need to protect minors from the evils of child pornography with the need to protect copyright owners. As a society we have accepted that it is appropriate and proportionate to intrude on people's internet use by blocking access to sites that host child abuse images. To suggest that sharing a music file is every bit as evil as child abuse beggars belief" adding "Bono obviously does not understand how simple it is to access copyright protected content without being detected. P2P file-sharing can be spotted (albeit at great cost) but there are dozens of applications and tools out there which allow people to view content for free and no amount of snooping can detect it". ISPs currently argue that it would cost each and every ISP customer about £25 a year to reimburse ISP’s for tracking and stopping net piracy.

http://www.wired.com/threatlevel/2010/01/riaa-verdict-is-unreasonable/
http://www.manilatimes.net/index.php/tech-times/8976-u2s-bono-calls-for-control-over-internet-downloads

Hadopi Part II - the return of three strikes ...

France's much debated internet piracy law, the so called loi Hadopi which introduces a ‘three strikes’ approach to persistent illegal downloaders and fileswappers and which would allow authorities to disconnect repeat infringers, has passed through the lower house of parliament in a revised form. The law, supported by President Sarkozy, was passed by 285 votes to 225, with the Socialists, Greens and other left-wing parties opposing it and the ruling UMP party voting in favour. The bill must still be approved by the French parliament and may still face another challenge in the constitutional court.

A previous version of the law, approved by parliament in June, was rejected by France's constitutional court who said that it wasn’t happy with proposed new body that would have had the power to cut Internet access ruling that the new body could only have the power to issue warnings and that any disconnections could only be ordered by a judge. Record companies, film producers and French artists have supported the bid to crack down on Internet piracy, which recording industry body SNEP estimates has destroyed 50 percent of the value of the French recorded music market in six years but consumer groups have objected strongly and critics, including the Socialists, say the law will be easily subverted by anyone determined to download content online. Under the new version of Hadopi, the new authority will investigate suspected cases of piracy and will have the power to issue two written warnings before a judge can order an Internet connection to be disconnected and a fine of up to 30,000 euros ($43,900). The law will also oblige anyone with a Wi-Fi connection to block non-authorized users from using the connection.

In the UK, the topic is equally divisive; After (Lord) Peter Mandelson suggested that the UK could adopt a similar three strikes approach, a sharp divide opened up between the record and film industries (who strongly supported the move) and the Featured Artists Coalition, the British Academy Of Songwriters, the Music Managers Forum and the Music Producers Guild who were far more worried about the effect of content owners suing fans. Nick Mason (Pink Floyd), Dave Rowntree (Blur), Billy Brag and Ed O'Brien (Radiohead) are spearheading the FAC's alternative approach which acknowledges that file sharing can damage record sales but can also stimulate the sale of records, downloads, merchandise and concert tickets and cross generations with Mason saying "the last thing we want to be doing is to go to war with our fanbase. Filesharing means a new generation of fans for us".

But now Lily Allen and Patrick Wolf have said they are not convinced by the FAC’s position and Allen, in particular, says that it's all well and good for FAC supporters like O'Brien and Mason to oppose tougher measures against net users who steal music because they've already made their money. Allen, writing on her MySpace blog said: "Mason, O'Brien and the Featured Artists Coalition say that file-sharing's '”like a sampler, like taping your mate's music, but mix tapes and recording from the radio are actually very different to the file sharing that happens today ... in digital land pirated tracks are as good quality as bought tracks, so there's not a need to buy for better quality. The Featured Artist Coalition also says file-sharing's fine because it 'means a new generation of fans for us'. This is great if you're a big artist at the back end of your career with loads of albums to flog to a new audience, but emerging artists don't have this luxury. Basically the FAC is saying 'we're alright, we've made it, so file-sharing's fine', which is just so unfair to new acts trying to make it in the industry". Allen went on to say "If this sounds like I'm siding with the record [company] bosses, I'm not. They've been naive and complacent about new technology - and they've spent all the money they've earned on their own fat salaries not industry development ... [and] I don't think what's out there [ie legitimate digital services] is perfect. It's stupid that kids can't buy anything on the internet without credit, forcing them to steal Mum's credit card or download illegally. It's this kind of thing that the record company bosses, artists, broadband providers and government should be sitting down and discussing. [But] file-sharing's not okay for British music. We need to find new ways to help consumers access and buy music legally, but saying file-sharing's fine is not helping anyone - and definitely not helping British music. I want to get people working together to use new digital opportunities to encourage new artists".

Patrick Wolf, who recently released an album funded by fan-to-band investment company Bandstocks, echoed Allen saying on his own MySpace blog: "I don't have a Liberace helicopters and limousine lifestyle. I'm currently deciding whether I spend the last of my earnings this year from touring on recording the string and choir section of my new album or on the rent until December - just an example of how a lot of other musicians have it". Saying "I dreamt as a teenager I would be able to buy a house one day, somewhere peaceful so that I could focus on writing and composing and perhaps set up a gorgeous studio with all the instruments I have collected to record and produce other bands. In the early 2000's it seemed likely, but file-sharing means that most musicians will probably just make ends meet their whole life now and most musicians dreams will have to be put aside for need for part time work and doing the odd gig and free download-only single made on Garageband".

Stuck in the middle of all of this is UK Music, the cross-sector music body headed up by ex Understone frontman, Radio Authority member and record label executive Feargal Sharkey who somehow needs to bring together the diverse views of it's membership – which includes labels, retailers, publishers, managers and artists. UK Music issued a new (somewhat vague) statement trying to demonstrate some unity on the issue saying "In context of an evolving licensed digital music market, we believe that government intervention is extremely welcome and that, subject to assessment, [media regulator] OfCom should be granted appropriate and proportionate powers as directed by the Secretary of State" although Sharkey added "Like all of society, like all creative businesses, the UK's commercial music industry reflects a wide spectrum of viewpoints and opinions. Discussions over recent weeks have drawn us much closer together and helped us to realise with greater certainty our shared vision of the future. We continue to welcome the government's support and intervention, both of which will be vital to ensure that those who create and invest in music have the opportunity to deliver their full potential and reap the benefits, rewards and promises of an ever-evolving digital marketplace".

http://www.reuters.com/article/lifestyleMolt/idUSTRE58E5DE20090915
CMU Daily 16 September 2009 http://www.thecmuwebsite.com/

Photo: Nick Cordes (@ Glastonbury 2009)

"No magic wand", but CISAC praises new French law

It's no surprise that the International Federation of Societies of Authors and Composers (CISAC) has welcomed the adoption of the Loi Hadopi by the French Parliament. In a press release the organisation says:

"CISAC welcomes the adoption of the Law on the “Protection of Creation on the Internet” by the French Parliament. The 2.5 million creators and 222 authors’ societies represented by CISAC hail the determination of the French Government and Parliament to guarantee the future of creation and the creative industries in today’s digital world. The law introduces a “graduated response” to tackle piracy of creative works on the Internet through education and is accompanied by an encouragement to expand legitimate offerings of creative content. The text also reaffirms that authors’ rights continue to apply on the Internet and that creators should be remunerated for the use of their works.

Eric Baptiste, Director General of CISAC, the international organisation representing authors’ societies worldwide, declared: “This law is not going to solve everything with the wave of a magic wand. But one of the great virtues of the text lies in the awareness of the value of creative works and the economic system underpinning creation. Today, thousands of people work in the wake of creators and artists. Creative freedom and cultural diversity will have no future if the mass plundering of their works continues, depriving creators of their means of subsistence, the creative industries of their financing and, ultimately, depriving the public itself of new works without which culture is lifeless.”

This law is the result of a will to cooperate shared by the authorities representing creators, the creative industries and Internet service providers...".

CISAC is right about it being "no magic wand" --if this law is to produce the desired changes it will first need to overcome the attitudes and habits of thought of a generation of computer-literature consumers of culture who have so far proved resistant to traditional copyright notions. I also wonder: CISAC's constituent organisations represent 2.5 million creators. What proportion of them while pleased to belong to societies that fight for their copyright interests, are themselves unlawful file-sharers? It's a bit like speed limits on the roads: we all agree that they are a good thing for other people ...

The 'three strikes' movement gathers pace

As previously reported here on At Last ... the 1709 Copyright Blog, the French Assembly have finally approved the ‘Creation and Internet’ bill that will cut Internet connections to those who repeatedly download music and films illegally. The legislation, which has extensively lobbied for by the music and film industries, gives Internet users two warnings for acquiring illegal music or film downloads. After a third infraction, Internet connections would be cut. Whist France is the first European country to target Internet users in such a way, Sweden’s IPRED law forces ISPs to reveal the names of people attached to IP addresses suspected of sharing copyrighted music, movies, other files without permission and this in itself resulted in a 33% drop in internet traffic presumably as potential fileswappers thought twice and downloaders considered the risk. President Sarkozy supports the new French law but critics say the bill will intrude on Internet users' civil liberties and will be difficult to enforce. Final approval in the French Senate is expected tommorrow (13th May).

And now in the UK a collection of trade bodies representing content owners including the British Phonographic Industry (BPI), the UK Film Council, actors' union Equity and the Federation Against Copyright Theft have used London’s Creative Economy Conference to put pressure on the government to force ISPs to take a more proactive role in policing online piracy – and again pushed for the ultimate sanction of internet disconnection to be introduced under a ‘graduated response’ system. BPI boss Geoff Taylor told the event:

"An endless free lunch for consumers when it comes to digital content is unsustainable. Unless ministers strengthen proposals for ISPs to deal with illegal behaviour online a 'creative crunch' will follow - investment in new British talent will ultimately dry up. The internet cannot be a place where respect for the law is abandoned. Even though the music business is creatively fit and strong, free-loading reduces investment in new music and in turn threatens the jobs of thousands of young people working in A&R, recording, marketing and promotion".

Taylor called on the government to do three things in the final draft of its much previously reported 'Digital Britain' report:

"To recognise that the music sector has already transformed its business models online; to take seriously the argument that a "write and sue" policy will not be effective; and to use the time available in this parliament to introduce legislation requiring ISPs to act against persistent illegal downloaders".

In response the Internet Service Provider Association issued the following statement:

"ISPA continues to dispute calls from some elements of the creative industries for the disconnection of users or technological measures as a method of dealing with potential infringers of copyright online. ISPA members have consistently explained that significant technological advances would be required if these measures are to reach a standard where they would be admissible as evidence in court. ISPs and consumer groups consider disconnection of users to be a disproportionate response, a view that was recently supported by the European Parliament".

The ISPA are referring to the European Parliament’s recent rejection of attempts by EU governments (notably France) to crackdown on illegal downloaders. The measures were part of EU proposals to update Europe-wide telecommunications rules to allow something approaching ‘three strikes’ but the European Parliament voted 407 to 57 to throw out a compromise reached with EU governments that would have allowed member states to cut off Internet access to people who download illegal copies of movies or records. Lawmakers reinstated an earlier demand that "no restriction may be imposed on the fundamental rights and freedoms of ... users, without prior ruling by the judicial authorities." Viviane Reding, the EU's Telecoms Commissioner said the move was "an important restatement of the fundamental rights of EU citizens." These proposals will now work their way through the rest of the European legislative process, and could still hit other hurdles but if passed will surely invalidate France’s proposed three strikes plan which does not rely on courts to arbitrate.

See also links to Techdirt, Billboard, USA Today and IPtegrity

Taiwan adopts "three strikes" law

Taiwan's legislature has passed an amendment to the island's Copyright Act aimed at discouraging digital copyright infringement over peer-to-peer networks and increasing the responsibility of Internet Service Providers. First off, the country has adopted the much debated ‘three strikes’ system where web users who continue to access unlicensed sources of content after receiving two warnings could lose their internet connections – or at least have access restricted. Whilst a number of countries have looked at this system, so far only France and New Zealand have seriously considered implementing 'three strikes' into law. In France the much criticised proposals are still working their way through the French parliament after a temporary set back when the government failed to get a majority in the National Assembley just before Easter. In New Zealand the Government is still trying to work out how to implement their new law.

The Taiwanese government has introduced the system in order to achieve its two stated aims of cracking down on internet piracy - without flooding the courts with lawsuits from foreign content owners against the providers of file-sharing services or individual file-sharers further overburdening struggling court. It seems the new law means that repeat offenders will have their internet access "restricted" rather than automatically cut off. That could mean temporary suspensions rather than long term denial of service, something that might appease consumer rights bodies as well as the ISPs who don’t want to lose customers (although they equally don’t want to be liable for customers' illegal downloading activities).

Commenting on reports that ISPs could cut off consumers who have downloaded illegal content by mistake, Margaret Chen, Deputy Director General of Taiwan's Intellectual Property Office (TIPO), told reporters:

"That's not really the point. These people are doing something they shouldn't be doing in the first place. Besides, there are lots of ways to restrict Internet access besides cutting it off entirely".

TIPO added that The P2P amendment will "significantly redress the problems of copyright infringement" in a statement. The new laws will also give ISPs ‘safe harbour’ protection although this is balanced by provisions ensure rights owners can have infringing content removed – Billboard says that the new law is based on the 2005 U.S. Supreme Court decision against Grokster and that the ISP liability amendment allows rights holders to either claim their rights via judicial proceedings, or else follow a "notice and takedown" procedure to have copyright infringing content removed.

Le Loi Hadopi

The Register has provided English-language coverage of today's breaking news that France has all but passed the controversial 'three-strikes-and-you're-out' law, designed to stamp out rampant file-sharing and illegal downloading of copyright-protected works. The new law is nicknamed the loi Hadopi, because it creates a "High Authority" (Haute autorité pour la diffusion des œuvres et la protection des droits sur Internet), which will monitor and regulate the use of the internet in France. According to The Register,

"The principle behind the law is simple. Anyone suspected of illegal downloading of material on the internet will receive two letters: a first and a second warning. The first warning will recommend that the user check to make sure that no one is surfing on the back of an unsecured Wi-Fi connection: but it will also point out that it is the subscriber’s responsibility to make sure their net access is properly safeguarded".