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Asking a Better Question to Uncloak the Online Copyright Debate

The proverbial Pandora’s box that is opened whenever the topic of online copyright infringement is raised throws into sharp relief a host of challenges that have confounded policy makers, internet service providers and consumers for many years. Chief amongst them is how to strike an appropriate balance between protecting the rights of content owners while continuing to promote the interests of the public and preserving the benefits of the internet, given its unprecedented ability to facilitate the rapid dissemination of copyrighted content.

This challenge is not new and has remained the same even as the tools of popular choice for illegal downloading have re-incarnated over the years. The importance of achieving this balance is even acknowledged in the preamble to the WIPO Copyright Treaty of 1996.

The problem is that while striking an effective balance is the goal, that does not mean that asking how to achieve that balance in the context of online piracy is the appropriate question to pose. Balancing the interests of rights holders and end users is clearly a complex matter that does not lend itself to a single, universally accepted solution as this question would seem to imply (responses around the world to online copyright infringement support this notion). Despite this, it often is the question that is asked , even by key stakeholders in the debate—see for example the executive summary to the US Department of Commerce’s 2014 Internet Policy Task Force green paper.

Yet asking the right question is an incredibly important step in ensuring the solutions we come up with in response to online piracy are useful and appropriate in any given case, rather than haphazard and of questionable value. Given that debate around the issue has now raged on for several years, it is a prudent time to take a step back, examine developments across the globe and consider whether they provide us with an indication of how we can re-frame the fundamental question to move forward in a more cohesive fashion in the future.

Approaches to dealing with online piracy to date

In considering this, it’s useful to examine a cross-section of the approaches taken in different jurisdictions in response to online piracy. While many countries have no specific regime in place to address the issue—leaving it to rights holders to pursue potential infringers themselves under existing copyright laws—others have sought to develop a range of different solutions.

The UK, for example, originally planned to implement a regulatory scheme whereby, after a threshold number of infringement notices was sent to an end user, ISPs could be required by a court order to pass their details onto rights holders for potential prosecution. However, as with the USA’s Copyright Alert system , this was ultimately abandoned after significant pushback from ISPs in favour of a purely educative scheme (with the latter also including the possibility of potential reduction in speed or service quality for repeat infringers). France sought to adopt a more punitive approach under its controversial Hadopi law, which at first bore the threat of service suspension for repeat infringers, before moving to a purely fines-based system after the original law was considered unconstitutional and a disproportionate response to the problem. The French government also announced a shift in focus from end users to targeting sites that facilitate copyright infringement.

Australia originally had no specific regime in place to deal with online piracy, although after a sustained push by rights holders for action to be taken (given Australians are consistently argued to be amongst the highest per-capita downloaders of pirated content in the world) is now in the throes of a controversial debate about the implementation of a binding regime to enable rights holders to obtain subscriber details from ISPs after multiple infringement and education notices have been sent to them within a 12 month period (not entirely dissimilar to the three-strikes system that New Zealand has adopted). A separate law is also being considered in Australia that would enable websites set up for the primary purpose of facilitating copyright infringement to be blocked.

Moving towards a new model

These contrasting approaches suggest that it may be unrealistic to ever expect a single clear answer to emerge as to how online piracy should be dealt with across the globe. More significantly, it also suggests that the relevant question needs to be reframed from focusing on a philosophical consideration of how to strike an appropriate balance between the rights of content owners and the interests of other stakeholders in the internet ecosystem, to a more practical model that is jurisdiction-specific and takes into account a range of market-specific considerations.

In determining what that model could look like, I thought back to a presentation I delivered a few years ago at the Australian Computer Emergency Response Team’s (AUSCERT) annual national cyber security conference. During that presentation I discussed the challenges associated with attributing responsibility for unlawful conduct that occurs online given the borderless nature of the internet, and the inherent difficulty with consistently identifying and apprehending the perpetrators of such conduct in this environment. While the efficacy of investigative techniques for internet crimes continues to evolve, I argued that one way of determining where the burden of responsibility should lie for the social, financial and potentially political harms that flow from such conduct would involve a consideration of whether there were security precautions that could have been taken to mitigate the risk of that conduct occurring in the first place.

If so, the next step would be to consider who was in the best position to take those precautions, and determine the relative burden of responsibility accordingly based on whether those precautions were taken. Examples that I discussed included Denial of Service attacks, online banking fraud (with end users in both cases often having their machines compromised by cyber criminals due to a security vulnerability), and insecure software coding practices.

Applying the new model to online copyright infringement

In the case of online copyright infringement, consistently identifying the end users (or, more correctly, the IP addresses) responsible for illegal downloads is readily possible, and the risk of the infringement occurring cannot be mitigated through security precautions. Nevertheless, a modified form of this approach still provides a useful framework for considering the most appropriate way to determine where the burden of responsibility should lie in any particular instance, including whether a regulatory response to the problem is justified and what the scope of that response should be.

Specifically, consideration should be given to whether there are market failures that could be addressed in a particular jurisdiction to reduce the incentives for illegally downloading copyrighted content, and where the burden of responsibility most appropriately lies to address those market failures. If and when those failures have been addressed, then the principal burden should shift to those stakeholders who are best placed to minimize any further illegal downloads.

For example, one of the most common reasons put forward in Australia for the high levels of online piracy is that there is a failure in terms of the market’s ability to provide timely, legal and affordable avenues for accessing copyrighted content. Participants in a study by the Communications Alliance in Australia found that 43% believed that the market providing more timely and affordable access to copyrighted content would be a more effective response to online piracy than a regulatory response. The issue has most recently arisen with the HBO television series Game of Thrones, of which Australians are consistently identified as amongst the prolific pirates in the world. Previously, to watch the show legally meant paying for an expensive pay television subscription in a country where penetration rates for pay TV have remained consistently low as compared with the US. In addition, until recently access to video streaming services such as Netflix was not possible without the use of VPN tools to circumvent geo-blocking restrictions.

In such circumstances, it would appear that arguments militating against a strong regulatory response that place a greater level of responsibility on ISPs and end users are more compelling. That is not to say that educating end users on the pitfalls of online piracy becomes irrelevant. Rather, the principal burden should arguably be on the market itself to provide an adequate response that allows for more timely and affordable access to copyrighted content through legal avenues.

With the recent debut of streaming services such as Netflix in Australia, and more affordable access being made available through pay television to shows such as Game of Thrones, there is a credible argument that the market is starting to move towards providing end users with improved avenues of access to copyrighted content. Without seeking to move into a country-by-country analysis of online piracy, jurisdictions such as the UK and USA do not face the same level of market deficiencies in terms of access to affordable copyrighted content. Nevertheless, whilst per capita piracy rates of television and movie content are not as high as Australia, overall piracy rates remain significant enough to expose rights holders to substantial financial loss.

In each case, given that the market either has or is in the process of adjusting to the needs of end users to access copyrighted content, it may be entirely more justifiable to consider an approach to online piracy which imposes a higher level of binding responsibility on other participants in the internet ecosystem such as end users, website operators and service providers.

A new way forward in the debate

In reality, where a particular country ends up on the spectrum of different approaches to online piracy will also depend on the influence of and relationship between different stakeholders in that jurisdiction. Nevertheless, re-framing the entire online copyright infringement debate as one that examines whether the relevant market is functioning appropriately to provide timely and affordable access to copyrighted material—prior to considering the level of responsibility that other stakeholders in the internet ecosystem should assume for the problem—is an important step.

Focusing on this question provides a valuable framework for determining an appropriately tailored solution to the problem that takes into account the specific circumstances of a particular jurisdiction. This is likely to lead to more effective outcomes and less of a ‘trial and error’ approach that seems to have dictated the debate to date.

By Arun Raghu, Technology Policy Adviser

He is currently an adviser at Hivint, a startup cyber security consulting firm in Australia that is transforming the delivery of cyber security services by sharing the outcomes of consulting projects with other businesses in the community.

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One of the big objections about the Todd Knarr  –  Apr 22, 2015 7:15 PM

One of the big objections about the “notices followed by disconnection” (AKA 3-strikes) proposals is that they’re based purely on unproven accusations, not findings of infringement by a court. Under the standards of those proposals, *I* could shut off anyone’s Internet connection (including the MPAA’s, or yours) simply by making a suitable number of unfounded accusations. That those accusations wouldn’t stand up for 5 seconds in court is irrelevant in those proposals, the only thing that’d matter is that I made them. Most people have no problem with 3-strikes *if* it’s based on court findings of infringement rather than copyright holder accusations.

Of course, basing it on court findings runs up against the problem that the copyright holders almost universally *don’t want* to prosecute court cases for infringement. In the overwhelming majority of cases they withdraw the matter rather than even go through discovery if a defendant makes any response and especially if that defendant asks for discovery of their own. This is in my experience the major reason why the public has so little respect for the rightsholders, the actions in question look like a shakedown racket rather than a serious attempt to sue and so the public treats it like a shakedown attempt and I’m sure you can imagine how popular that is. That’s exacerbated by repeated demonstrations in the cases that did go through discovery that the processes the rightsholders use to identify infringing IP addresses are unreliable at best, identifying things like networked printers or computers that were powered off at the time in question. And we won’t even discuss the Viacom v. Google debacle, where Viacom claimed YouTube was hosting infringing videos that *Viacom themselves* were shown to have posted to YouTube *as promotional material* (and Google produced the written contract with Viacom covering the posting of that material).

I think the first question ought to be “What is the standard for showing infringement?”, and the above problems need to be straightened out. If as shown in the Viacom case the copyright holder themselves can’t distinguish legal material from infringing material, why should we let them proceed any further until they can?

Hi Todd,I think the questions you are Arun Raghu  –  Apr 23, 2015 3:51 AM

Hi Todd, I think the questions you are asking actually relate to a different issue. I'm considering what questions we should ask to determine the best approach to dealing with online piracy in a particular jurisdiction. The questions you've put forward are focused on individual cases and whether there are appropriate and sufficient grounds to prosecute. I agree that the 3-strikes proposals can be problematic to the extent they involve allegations of infringement about an IP address, but generally speaking most of the current regimes that exist around the world of this nature that have potential punitive consequences (New Zealand is the main one that comes to mind, and Australia's would also carry this possibility) generally have the involvement of some overarching body before anything like disconnection or fining occurs.

Unfortunately what I put forward aren't merely Todd Knarr  –  Apr 23, 2015 4:59 PM

Unfortunately what I put forward aren't merely individual cases, they're patterns that hold for the vast majority of cases here in the US (to the point that judges have recently begun noting in rulings that they find no evidence that the plaintiffs intend to actually pursue a suit if subpoenas are granted). When the "individual cases" amount to, the last time I looked, 95+% of the online piracy cases filed to date I can't see dismissing that as mere anecdote. I believe you're going to have a difficult time getting public acceptance of any approach to dealing with online piracy when the public questions whether the rightsholders actually intend to press their case or whether, based on the rightsholder's own track record, they merely intend to follow in the footsteps of shady collection agencies sending out cheap dunning letters and depending on the age-old lawyer's threat that "it'll cost you more to win in court than to just pay us off".

That may well be true. I'm not Arun Raghu  –  Apr 23, 2015 5:30 PM

That may well be true. I'm not really commenting on the merits of a specific approach as to how rights holders prosecute their case in an appropriate fashion - that's for policy makers to decide and it as a more granular level than the higher level 'model' I'm describing here. But concerns around speculative invoicing and launching court action with questionable evidence are certainly valid - in New Zealand, the approach has been to have a separate body outside of the court system to handle individual cases, which has been in place for a few years now.

Blood / stone John Levine  –  Apr 23, 2015 3:33 PM

I believe that Todd’s point, with which I agree, is that point of copyright is to encourage people to create material, with enriching the creators only as a means. (his is explicit in the U.S., but I think it’s understood in at least all other anglophone jurisdictions.)There is no social value in punishing people for pirating material they can’t get legally, since there is no loss of income to an owner who is unwilling to sell. If people can’t get Netflix in Australia, the solution is to give Netflix an incentive to make it available, not to give bigger sticks to foreign companies with no interest in Australians.

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