A week of copyright in the news: a roadmap for the year ahead?

Yes, I do love reading newspapers! This Kat, dissatisfied with the scratchers commonly available, has developed the habit of sharpening his claws on some fresh newspapers, keeping a sharp eye out for IP articles, welcomed with a loud meow. In the past week, neighbours complained about an upsurge of feline sounds, whose origin has, so far, remained mysterious. Before unveiling the mystery, in his first post, this guest Kat would like to address his best greetings to the IPKat readers, with whom he looks forward to exchanging ideas, thoughts and reflections in the months ahead. The news that caught this Kat's attention, in the last seven days [perhaps ten, suggests Merpel], show that the role and extent of copyright law is still at the centre of a never-ending debate. The development of the information society, characterized by the possibility of a constant, almost instantaneous exchange of information, has certainly heightened the contrast between the needs to protect the contents’ creators, to ensure the dissemination of their works and to allow widespread access to them. On January 12, several sources reported that Verizon, one of the largest ISPs in the US, was about to unveil the implementation of a 'six-strike' warning system, to detect and deter potential acts of infringement carried out through the online exchange of copyright protected material. The system, properly known as Copyright Alert System, was developed by the Centre for Copyright Information, "a collaborative effort between U.S. content creators in the movie and music industries and leading IPSs to help educate the public and deter copyright infringement and offer information about legal content options and protecting personal computers from unintentional file sharing through P2P networks" [Merpel thought that underlying meaning was a concept reserved to poems and novels ...].

According to IBTimes, the six strike system works as follows. The first two warnings are delivered via email and automatic voicemail, notifying the user of the copyright owners’ complaint and providing "a link to information on how to check if file sharing software is operating on [the] computer [and] where to find information on obtaining content legally". Strikes 3 and 4 redirect the user to a webpage where he/she can review the alerts, while viewing "a short video about copyright law and the consequences of copyright infringement": the user is then requested to acknowledge the receipt of the alerts (an action that doesn’t require admission of engaging in infringing activities, according to Verizon). Warnings 5 and 6 allow the alleged infringer to choose among three options (sanctions?): "agree to an immediate temporary (2 or 3 day) reduction in the speed of your Internet access service to 256kbps (a little faster than typical dial-up speed) [or] agree to the same temporary (2 or 3 day) speed reduction but delay it for a period of 14 days [or] ask for a review of the validity of [the] alerts by the American Arbitration Association".

Similar systems have been introduced in a few other countries, including France and New Zealand, drawing severe criticism. This Kat’s recollection of the most critical issues concerning the ‘graduated response' systems include: their compatibility with fundamental rights (see P. K. Yu, Intellectual Property and Human Rights in the Nonmultilateral Era), privacy and with the TOS existing between the ISPs and the users; the lack of a judicial review before sanctions are administered; the inversion of the burden of proof; the impossibility of establishing the real user that committed the alleged infringement; the proportionality of fines and sanctions; the lack of any rules concerning the liability of ISPs and copyright owners for wrongly issued notices and the risk of false positives. Similar concerns, as readers recall, doomed the fate of ACTA (the Anti-Counterfeiting Trade Agreement), rejected by the European Parliament in July 2012. The Commission opted to ask the Court of Justice to issue an Opinion on the compatibility of ACTA with the EU Law, but later withdrew the question (the Commission explained that the withdrawal was a result of a "question" asked by the CJEU, but never disclosed the Court’s request - to dig deeper into the mystery, look here and here).

On the other hand, content creators argued that the graduated response system aimed at educating the user and enhancing his/her awareness towards copyright law and the consequences of infringements. Albeit one could point to the dissuasive scope of the system, rather than to the persuasive one, the first reports show that few strikes ended up in the courts. In the past three years, Hadopi (Haute Autorité pour la diffusion des œuvres et la protection des droits sur internet), the French governmental organization deputed to the application of a three strike system, sent 1.15 million first warnings, 100,000 second warnings and 340 third warnings, according to sources. Only 14 cases have been further investigated and 2 people convicted, although only one received a 150 Euro fine. Economists noted, however, that the system seems to have caused an increase in the legal sale of multimedia content through iTunes France.

Meanwhile, in Milan, a court ordered Italian ISPs to block access to several websites which provided unauthorized streaming of live football events, licensed and broadcasted by the Italian TV network Mediaset. La Repubblica reported that the judge applied art. 171, c. 1, lett. a-bis, l. of Law 633/1941 (concerning the communication to the public, through a digital network, of works protected under IP law), stating that

"although football matches cannot be considered as an intellectual creation, their broadcasting, ... if characterized by a technical and creative contribution of the authors, is included within the works protected as intellectual creations".

Readers certainly remember the CJEU's ruling in Joined Cases C-403/08 (FAPL) and 429/08 (Karen Murphy), where the Court held that a "national legislation which prohibits the import, sale or use of foreign decoder cards is contrary to the freedom to provide services and cannot be justified either in light of the objective of protecting intellectual property rights or by the objective of encouraging the public to attend football stadiums", since "the Premier League matches ... cannot be considered to be an author’s own intellectual creation and, therefore, to be ‘works’ for the purposes of copyright in the European Union". The IPKat, as well as many commentators, expressed doubts as to the rightfulness of the conclusion reached by the Court. The Italian judge now seems to have claimed that the broadcasting feed, as the result of the technical and artistic work of a production team which manages, matches and mixes the images coming from several cameras, deserves to be considered as an intellectual creation, protected by IP law.

A journalist of the newspaper Corriere della sera immediately set to find out whether the court's order had succeeded in disrupting the unauthorized streaming of sport events in Italy [Merpel thinks that playing with colourful balls of wool is a much better pastime...]. Not surprisingly [indeed!], the journalist and his friend enjoyed an evening of free sport, without any disservice. On a more interesting note, the article observed that the streaming websites were filled with ads, concluding its remarks with a rhetorical question: "could it be that copyright owners are fighting the wrong enemy?"

The University of South Carolina provided an intriguing and timely answer to this question, analysing "the rise of ad-supported pirate networks". Relying on data provided by the Google Transparency Report, the USC’s research evidenced that "in the last five years, a large number of new advertising networks now service the seemingly infinite advertising inventory of the broadband era [and that] much of that inventory sits on more than 150,000 pirate entertainment sites". The study also recalled another recent report, ‘The Six Business Models of Copyright Infringement’, funded by Google and the firm PRS for Music on Brands, which "investigated advertising networks and their support of the major pirate movie and music sites", finding that "advertising financed 86% of the P2P search sites that feature illegally distributed content". Researchers concluded that the findings "clearly indicate that many major brands are not aware that they are, in fact, the key source of funds for the piracy industry". This Kat was also puzzled by a couple of minor news. The first concerned the Linköping Computer Museum, which put on display the first server of the notorious website The Pirate Bay, accompanied by a label which celebrates "50 years of file-sharing". The second is the introduction of the BBK BitTorrent Certified Box, a device that allows customers to view multimedia files stored on external USB disks or to directly stream content from bit-torrent files, via an online connection. This Kat doesn’t dare to predict the fate of such a device, which certainly lends itself to legit uses, as well as unlawful ones, but is unsure whether Merpel would agree [she whispered something about Betamax, secondary liability and similar things…]. However, he cannot help but think that a culture which openly rejects the copyright system runs the serious risk of hindering the widespread dissemination of culture and information, rather than helping it.

Turning to this last aspect, the Guardian commented on Amazon’s introduction of the new AutoRip service, which allows any customer, who recently purchased a music CD from the online retailer, to download or stream the songs in MP3 format. The report welcomed the service, but criticized its onerous terms of service. This Kat, who routinely wonders where he left his CDs, believes that the initiative, albeit improvable, could help offset the potential obsolesce of some media, enabling customers to continue enjoying the content purchased, in a different form [now, adds Merpel, if only something similar happened for my collection of the Aristocats, both in DVDs and printed books, I would gladly trade some milk for it…]. This news mainly summarizes some of the most controversial issues concerning copyright law that still await a clear, balanced answer, perhaps as soon as this year. This Kat endeavoured on an attempt to summarize some of the questions (but he is certain that readers could add many more questions to the list). Should copyright law focus on fighting the end users’ infringing activities or the activities of those who help, support or facilitate them? Is it more efficient to sanction or educate? How can fair dealing and fair pricing be conjugated? What is the effect of pricing strategies on piracy? What is the best way to protect authors' interests, without preventing widespread access to knowledge? A balanced answer to the last question appears to be fundamental to allow the development of our society and the creation of future intellectual works. In that regard, the death of 26 year old Aaron Swartz, best known for contributing to the creation of the RSS protocol and to the social-news site Reddit, is the latest news to report. In 2011, notes the New York Times, Swartz was "indicted on federal charges of gaining illegal access to JSTOR, a subscription-only service for distributing scientific and literary journals, and downloading 4.8 million articles and documents, nearly the entire library". He justified his actions with a manifesto, asserting that sharing information "[is] called stealing or piracy, as if sharing a wealth of knowledge were the moral equivalent of plundering a ship and murdering its crew [, but] sharing isn’t immoral — it’s a moral imperative". "Only those blinded by greed", he added, "would refuse to let a friend make a copy". The manifesto referred mainly to out-of-copyright content, but also advocated the lawfulness of sharing scientific data, articles and information.

Although Swartz’s arguments raise several objections and appear not to take into account the importance of ensuring adequate remuneration to all those involved in the process of creating knowledge and protection to their creations, this Kat recognizes that his ideas strongly differed from those that inspire ad-supported streaming websites or services that blatantly offer, advertise and facilitate the illegal exchange of copyrighted content. If a lesson can be learnt from such a sad news, it is probably the necessity to enhance authors' and users' awareness of their reciprocal, interdependent roles and rights.