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ACTA and the Overblown Threat of Piracy

by danps Sat May 8th, 2010 at 05:13:40 AM EST

A secretly negotiated international treaty recently had a draft released.  It has all the earmarks of a consumer-hostile power grab by the entertainment industry, happily aided by the Obama administration.

For more on pruning back executive power see Pruning Shears.


No Associated Press content was harmed in the writing of this post

The Anti-Counterfeiting Trade Agreement (ACTA) has been largely negotiated behind closed doors, and only recently was an official draft made public.  The Obama administration even declared an early draft classified in refusing to comply with a Freedom of Information Act request.  (Negotiating in secret seems to be an emerging theme.)  It eventually made its way to Wikileaks despite this reluctance, but in general the American government has led the way in keeping a lid on it as much as possible.  We therefore have no way of knowing what the next developments will be, nor when they will occur.

There is a lot to look at in the draft, but the linchpin may be the legal status of Internet service providers (ISPs).  Up to now ISPs have been protected by what in the US is called a safe harbor provision.  Basically, ISPs are regarded as providing dumb pipes that their customers can use to transmit whatever they want.  This makes sense on the face of it; an ISP is no more responsible for an illegal activity by its users than a phone company is when crimes are plotted (or committed) using their services.  Take away safe harbor and the Internet as we know it will disappear, replaced by something vastly smaller, slower, fragmented and closed.

The alternative to safe harbor is what David Kravets called "the holy grail of Internet-IP [Intellectual Property] enforcement, staunchly backed by the Motion Picture Association of America [MPAA] and the Recording Industry Association of America [RIAA]," so-called "three strikes" laws.  Under these provisions a rights holder makes an infringement complaint to an ISP, and that counts as a "strike" against the user.  After three such complaints the user would be kicked off the ISP - and the Internet.

In her analysis of the draft Gwen Hinze of the Electronic Frontier Foundation wrote it would "facilitat[e] an ISP practice of Internet user disconnection on the basis of copyright holder allegations of copyright infringement."  Allegations, not proof.  The legal system is entirely circumvented here.  No judicial review of the allegations, no proof needs to be offered, nothing.  The complaint gets made, it counts as a strike.  If a paranoid and trigger happy company that prefers to shoot first and ask questions later lodges an abundance of specious complaints based on sketchy, absent or incorrect data, too bad.

Moreover, if infringing activity happens over a shared network address like a wireless router, if someone in the next apartment piggybacks onto your wi-fi connection and uses it for piracy, you are on the hook.  If your stupid kid shares music on a file sharing or social network without your knowledge, you are out of luck.  This all assumes legitimate violations, too.  Since an allegation is all that is needed, imagine the havoc a disgruntled ex-spouse could wreak.

Keep in mind the MPAA and RIAA have already established themselves as completely malevolent actors in this area.  Witness the surreal legal odyssey of Jammie Thomas, fined $1.92 million ($80,000 each for the sharing of 24 songs!) by a jury in the first major decision of an Internet IP case brought by the RIAA.  The judge has since reduced the amount, but the case has been dragging on for years now.

Or consider how an industry-funded report screamed that there was "$53 billion lost to software piracy in 2008 alone, and claim[ed] that the costs of IP infringement may reach $1 trillion in the next several years."  The only reputable study on it says such estimates are wildly inflated (via).  Then there is the claim that infringement dwarfs bank robbery (via).  They even floated the idea (I swear to God this is true and I urge you to click on the link if you don't believe me) of having the Department of Homeland Security deployed to movie theaters to make sure no one tries to record the latest blockbuster (via).

The punchline in all of this is, it's bad for business.  For the past few years I have been a music scavenger, putting lots and lots of MP3 sites in my RSS feed and downloading the tracks they post.  It is a great way to hear new artists, but it exists in a legal gray area.  But because of them I have bought new CDs by Citay, Von Lmo and White Hinterland so far this year, and on June 8th I'll buy the new one from Grace Potter.  Prior to this I had not bought an album in years.  There is a business model in there, where you give people free access to tons of stuff and they end up happily parting with more of their hard earned money.  Instead of trying to refine that alchemy, ACTA proponents would rather blow up the lab.

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by danps (dan at pruningshears (dot) us) on Sat May 8th, 2010 at 05:13:58 AM EST
The article describing a "safe harbor" doctrine, presumed to limit the liability of internet service providers (ISPs) to adverse judgements of service subscribers copyright infringements, contains failed links to the Online Copyright Infringement Liability Limitation Act ("OCILLA"), engrossed as Sec. 512 in the Digital Millennium Copyright Act ("DMCA").

The correct reference is H.R. 2281 ENR, or "Digital Millennium Copyright Act" (Enrolled as Agreed to or Passed by Both House and Senate). The correct section citation is Title II, Sec. 512. (The text cannot be hotlinked to thomas.gov. Click through the Title II anchor in index of the reference above.)

Sec. 512. Limitations on liability relating to material online

      `(a) TRANSITORY DIGITAL NETWORK COMMUNICATIONS- A service provider shall not be liable for monetary relief, or, except as provided in subsection (j), for injunctive or other equitable relief, for infringement of copyright by reason of the provider's transmitting, routing, or providing connections for, material through a system or network controlled or operated by or for the service provider, or by reason of the intermediate and transient storage of that material in the course of such transmitting, routing, or providing connections, if--

            `(1) the transmission of the material was initiated by or at the direction of a person other than the service provider;

            `(2) the transmission, routing, provision of connections, or storage is carried out through an automatic technical process without selection of the material by the service provider;

            `(3) the service provider does not select the recipients of the material except as an automatic response to the request of another person;

            `(4) no copy of the material made by the service provider in the course of such intermediate or transient storage is maintained on the system or network in a manner ordinarily accessible to anyone other than anticipated recipients, and no such copy is maintained on the system or network in a manner ordinarily accessible to such anticipated recipients for a longer period than is reasonably necessary for the transmission, routing, or provision of connections; and

            `(5) the material is transmitted through the system or network without modification of its content....

This statement in the article "10 Years of the DMCA: Safe Harbor Provisions" is inaccurate.

The ISP safe harbor provisions distinguish between Internet access providers such as Comcast and Verizon, and content hosts such as YouTube.

Sec. 215 does not distinguish between ISPs and telecom operators; in fact, the law recognizes classes of equipment owner/operator and equipment operator ("service provider") are all common carriers a/k/a "dumb pipes." This the salient explanation of "safe harbor" conditions as applicable to businesses, for example, Comcast (owner/operator) and YouTube (operator) in accord with definitions of carrier types (e.g. radio, television broadcaster) codified by the Telecommunications Act. Most important, the section distinguish between the service provider (ISP), whether commercial business or not, and service subscriber a/k/a customer a/k/a user. Specifically, Title II, Sec. 512 states:

    [1] (k) DEFINITIONS-

            `(1) SERVICE PROVIDER- (A) As used in subsection (a), the term `service provider' means an entity offering the transmission, routing, or providing of connections for digital online communications, between or among points specified by a user, of material of the user's choosing, without modification to the content of the material as sent or received.

            `(B) As used in this section, other than subsection (a), the term `service provider' means a provider of online services or network access, or the operator of facilities therefor, and includes an entity described in subparagraph (A)....

Over all, US Code affirms consumers' personal, constitutional protections and responsibilities to trade injunctions. It also assures the state's privilege to search for and seize alleged contraband.

Diversity is the key to economic and political evolution.

by Cat on Sat May 8th, 2010 at 09:35:40 AM EST
Thanks for the clarification, Cat.
by danps (dan at pruningshears (dot) us) on Sat May 8th, 2010 at 10:00:22 AM EST
[ Parent ]
European Tribune - ACTA and the Overblown Threat of Piracy
For the past few years I have been a music scavenger, putting lots and lots of MP3 sites in my RSS feed and downloading the tracks they post.  It is a great way to hear new artists, but it exists in a legal gray area.  But because of them I have bought new CDs by Citay, Von Lmo and White Hinterland so far this year, and on June 8th I'll buy the new one from Grace Potter.  Prior to this I had not bought an album in years.

You are such a pirate. When John Kennedy - the IFPI chairman, not the dead president - testified in the Pirate Bay trial he made clear that the big problem with Pirate Bay was that they interfered with the return on the marketing campaigns. The problem is not that people are unwilling to pay for music, but that they fail to do it at the time and place of the record companies choosing. And then who will pay the record companies executives?

Clearly we need to destroy the internet instead.

Sweden's finest (and perhaps only) collaborative, leftist e-newspaper Synapze.se

by A swedish kind of death on Mon May 10th, 2010 at 11:07:51 AM EST
Found the quote:

Live: John Kennedy, IFPI | Rick Falkvinge (PP)

- What does R&D mean in this context?

- The music industry has become very good at providing a constant supply of new music. The weekly charts around the world change on a weelky basis. There is a continuous demand of new music, and the record compnaies have very sophisticated methoids of finding new artitsts. 20% of rvevenuse are spent on finding new artists. It has been claimed that this is not needed anymore, but htat's completetly incorrect and I think people are beginning to understand that.

- In what way are your marketing campaigns hurt by The Pirate Bay?

- In any industry, when you bring a product to market, there is a particular stage in which you intend to make your connection with the public. A particular stage in which you launch your product. And all your marketing spent particularly in the musicc industry is designed to make a major impact in week one after release. You want to present your product to the public, media and retailers as a major success. In an ideal world, you want your record to go to #1. This is not always possible, so you set a realistic target. You intend that record to sell a set number to meet a certain target. But if the product is made available on Pirate Bay before that date, then purchases are taken out of the market and because of the illegal use of music, the legal use is seen to underperform. In some countries, this can have a dramatic effect. In Sweden, if you lost a thousand sales in the first week, your record, instead of going to #5, it will be at #20. If you were aiming at #10, which would be very good for a new artist, you would be at #75. If you were aiming for #20, also good for a new artist, you may not chart at all.

So if you buy Von Lmo instead of Lady Gaga (as you should) not only do you not buy Lady Gaga but might send her further down the sales list by buying a record from an artist not backed by the marketing. Bad consumer. Companies has a right to payola.

Sweden's finest (and perhaps only) collaborative, leftist e-newspaper Synapze.se

by A swedish kind of death on Mon May 10th, 2010 at 11:16:06 AM EST
[ Parent ]


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