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American ISPs To Become Real Copyright Cops?

We live in a dangerous time when ISPs – largely to head off potential federal regulations – establish private arrangements with copyright holders to disrupt Internet subscribers from accessing certain content. Sandoval notes that,

Last July, Comcast, Cablevision, Verizon, and Time Warner Cable and other bandwidth providers announced that they had agreed to adopt policies designed to discourage customers from pirating music, movies and software over the Web. Since then, the ISPs have been very quiet about their antipiracy measures.

But during a panel discussion here at a gathering of U.S. publishers, Cary Sherman, CEO of the Recording Industry Association of America, said most of the participating ISPs are on track to begin implementing the program by July 12.

[Subscribers] will also be informed of the risks they incur if they don’t stop pirating material. The ISP then can ratchet up the pressure. The ISPs can choose from a list of penalties or what the RIAA calls “mitigation measures” that include throttling down the customer’s connection speed to suspending Web access until the subscriber agrees to stop pirating. The ISPs can waive the mitigation measure if they choose.

This isn’t a small matter: rights holders regularly make errors when they assert that a person is engaging in infringing behaviour. Rights holders assume that taking ISP subscribers hostage – by throttling or otherwise impacting their online behaviours – will (a) cause subscribers to cease potentially infringing behaviour; (b) lead subscribers to acquire content in non-infringing ways. I suspect that, instead, we’ll witness a ratcheting up of anonymization and encryption schemas to limit file sharing surveillance practices.

Many will say that ISP collaboration is just the next stage of an ongoing cat-and-mouse game but, in so saying this, may fail so see the larger implications of this game. In the UK, worries that the content industry might get powerful new legal capabilities via the Digital Economy Act led the security and intelligence services to protest a copyright-related bill. It wasn’t that the services were supportive of infringement but instead that, by encouraging regular citizens to evade and hide their online actions online for consumer gain, the services’ capabilities to monitor for threats to national security would be degraded.

That’s not a small matter. You may be pleased – or not – that the security and intelligence services’ operations might be hindered. Regardless, your stance doesn’t mitigate the fact that copyright legislation threatens to have far reaching impacts. Using ISPs as traffic cops that establish antagonistic relationships with their subscribers is poor business for the ISPs and potentially makes national security issues more challenging to combat. We need to have a far more holistic accounting of what new copyright capacities and actions mean for society generally and, in the process, get away from narrowed discussions that obfuscate or externalize the full potentialities that accompany the (prospective) criminalization broad swathes of the population.

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How Canada’s Copyright Legislation Will Be Used

In a well-timed piece that aligns with Canada’s new copyright legislation, Techdirt describes how content owners will likely use new digital locks provisions:

The real reason why they want anti-circumvention even when there’s no copyright infringement is because it gives them a veto on any new technology. All they have to do is put in some sort of weak digital lock and suddenly the company has to “negotiate” a deal or they can be sued out of existence.

It isn’t a hypothetical ‘could content owners sue innovators into the ground’ but an action that has, and does, occur in the US. Kaleidescape, a DVD jukebox company, has been served an injunction in the US even though they enable higher degree of anti-infringement encryption than already exists on DVDs.

This is just wrong: innovative services that add value to existing products should be permitted to thrive, not be forced to beg permission to exist. The network neutrality movement is all about enabling innovators to innovate, citizens to speak, and services to interact without having to beg permission of network owners. The copyright cartels are busy crafting – and getting passed – laws that undermine the next-generation capabilities of our communications systems to protect historical revenue streams.

There comes a time that next-generation systems need to be adopted, that revenue canabalization has to occur, and new processes tested and brought to market. Our ‘new’ copyright laws are a direct threat to such innovation and risk leaving North America in a cultural ghetto at the bequest of large, democratically unrepresentative, rights holders.

How Notice-and-Takedown Hurts Real People

Under DMCA rules a copyright holder can request that content hosts, such as Flickr, take down content that is believed to infringe on the holders’ copyright. Hosts will typically take down content and subsequently notify whomever posted it. The poster can then respond (after the content is already down) to argue that they were within their rights to post the content either because (a) it was the poster’s own content; (b) it was posted under fair use provisions.

Some copyright holders assert that notice-and-takedown is an acceptable approach (others insist that even this is too onerous, and that the hosts themselves should be responsible for policing their users) on the basis that if there is an error then a poster can try and remedy the take down order. Unfortunately, this assumes that whatever is taken down can be, or is, replaced in full after the order is issued. As a recent Techdirt article reveals, this isn’t always the case:

As the system “works” today, it’s open to misuse. And despite claims from proponents of the DMCA process, there’s more at stake than simply the single item in question. With one false DMCA notice, the entire history of a popular photo was erased, taking with it the story of how this “alphabet” came to be. The “notice-and-takedown” process is very obviously broken, resulting in the sort of situation Gorman has described.

When you consider the amount of damage that a single mistaken DMCA notice can do, it’s amazing that this process is still considered to be “fair” by its users. This is yet another strong argument for a notice-and-notice process in which companies and individuals would have a chance to file a counterclaim before the content is deleted, rather than having to assert their claim post-takedown and be left to clean up the resulting mess.

As someone who writes professionally I am genuinely sympathetic to copyright holders: I get that there are prospective revenue losses from infringement and acknowledge that digital copying imposes challenges for historical business models and processes. This said, if a copyright holder demonstrably fails in its due diligence when issuing a notice-and-takedown then it should be held liable, just as it is attempting to hold liable a potentially infringing user. There must be some kind of equity in the notice-and-takedown system or, better, a move to a notice-and-notice system (such as in Canada) to limit the harms that arise from poorly targeted take down efforts.

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MegaUpload’s Shutdown: Financial Implications for Artists

Mike Masnick points out something that a large portion of the media missed in initial discussions surrounding the MegaUpload seizures:

There’s a key point in all of this that we missed in our earlier analysis about paid accounts at Megaupload. In the indictment, the government seems to assume that paid accounts are clearly all about illegal infringing works. But that’s not always the case. In fact, plenty of big name artists – especially in the hip hop world – use the paid accounts to make themselves money. This is how they release tracks. You sign up for a paid account from services like Megaupload, which pay you if you get a ton of downloads. For big name artists, that’s easy: of course you get a ton of downloads. So it’s a great business model for artists: they get paid and their fans get music for free. Everyone wins. Oh… except for the old gatekeeper labels.

There were certainly a large number of files that were potentially infringing – with the ability to ascertain whether something is or isn’t infringing being impossible to conduct automatically using digital systems because of legal ambiguities – but there were also many clearly non-infringing files. Those that were directly uploaded by artists for download were amongst this latter category.

While some artists who have already made it big might suffer a decrease in revenue/earnings, but still enjoy a life dedicated to creating new works, those who have yet to ‘break through’ will suffer disproportionately from losing an easy-to-use service that could generate some revenue. The smallest artists lose, the largest lose, and consumers lose. I’m not even certain that the labels themselves ‘win’, insofar as generating bad will likely hinders their ability to establish strong (positive) brand relationships with prospective consumers.