Image by Si McMahon, click for Flickr

Further progress was made in the Newzbin saga last week when the High Court ordered BT to prevent its subscribers from accessing the website.  You may recall that the site had hopped abroad to the Seychelles, escaping the reach of the UK courts (or so it thought).  However, despite its emigration, the Motion Picture Association has succeeded in finding another way to attack its user base.

The blocking order, the first of its kind in the UK, requires BT to implement technology similar to that used to block sites featuring child abuse.  The technology works via a mechanism similar to email SPAM blockers you might use yourself, or web browser plugins used by many to hide adverts on web pages.  The ISP will return to the courtroom in October to iron out the details, but in the meantime the case is suggested by commentators to have been partly behind a recent Digital Economy Act (DEA) u-turn.

One of the significant provisions of the DEA, heralded by some as a key weapon for copyright holders, was intended to allow the blocking of infringing websites.  Not implemented in full by the DEA, the details were still to be finalised by secondary legislation.  However, following an announcement by the Business Secretary Vince Cable it seems this may never happen, as Ofcom is to review the policy.  Echoing the not-uncommon opinion that the DEA is outdated before it has even had an impact, Mr. Cable said “We’ve discovered that the drafting of the original laws, which took place a year or so ago, were not tight”.

A real problem with the intersection of copyright law and technology is the phenomenal pace at which technology develops, in stark contrast with the gears of the legislature.  A mixed bag all round, with the film industry cheering the result of the Newzbin case on the one hand, but unhappy with the possible loss of the DEA’s teeth on the other, some believe that blocking measures may not even be feasible with BT’s current technology.

James Blessing, a member of the Internet Service Providers’ Association remarked that “Trying to put Newzbin and other sites into the same blocking technology would be a bit like shutting down the M1. It is not designed to do that.”

Popular concerns include flood-gates and censorship – “What will qualify a site to be worthy of blocking? Who makes the decisions about what people are allowed to see online?” asks Peter Bradwell, a campaigner for the Open Rights Group, who says of the ruling: “if the goal is boosting creators’ ability to make money from their work then we need to abandon these technology naive measures, focus on genuine market reforms, and satisfy unmet consumer demand”.

While Mr. Blessing’s statement may be true as far as CleanFeed goes, the technology will likely be available to implement the blocks in the near future. However, as with most DRM (even DRM applied to an entire country) those with enough determination will find a way through the wall.

In the meantime, it seems that the internet, an invention aimed at breaking down barriers, is slowly becoming cluttered with ‘walls’ – firewalls (not criticising virus protection); pay-walls; the ‘great firewall of China’; and now this.  Where next?

Freedom of Expression
This right is deeply entrenched in law with the European Convention of Human rights (in the UK with the Human Rights Act) and now the EU’s version the Charter of Fundamental Rights.

That is not to say it is an absolute right, rather, it is expected that countries are able to encroach on this when needed.
However the Convention and Charter regulate how this is done and for how long.

One of the main controls is to ensure any encroachment has a solid legal basis (see article 52 (1) ).

Another consideration is that the inroad into an individual’s freedom of expression should be proportionate to the outcome sought (don’t use a sledge hammer to crack a nut).

Practically speaking, with the onset of the Lisbon treaty the CJEU must now consider the Charter to have the same validity as any other EU treaties, meaning when they address a problem, which affects the single market for example and the application of EU laws, they must also consider the effect on the Charter.

It is precisely within this frame that the AG last week considered a measure taken by a Court in Belgium to address illegal file sharing.

Scarlet v SABAM
The SABAM is the Belgian equivalent of PRS, a royalty collecting agency representing music artists.

They successfully applied to the lower court of Bruxelles for an injunction against an ISP named Scarlet.

The scope of the injunction was to monitor, identify, filter and block communications where illegal file sharing was taking place, the duration of the injunction was indefinite and the cost of managing this was to be borne by the ISP entirely.

Scarlet appealed against the legality of this injunction to the Court of Appeal of Bruxelles, who deferred the question to the CJEU.

The particular question put to the CJEU was whether the domestic law relied upon by the judge, set in the context of the Charter and other EU laws including data protection, could legitimise granting such a far-reaching remedy.

Important to note here the lower Court relied upon a domestic law, which allows it to give an order to cease copyright infringement. But even more interesting was that this law was in itself a transposition of EU law (article 8(3) of directive 2001/29 and article 11 of directive 2004/48).

So the question essentially touched on not only whether Belgian law could warrant such an injunction but also whether the underpinning EU law could support this type of action.

The AG’s Opinion
The AG thought not (see in particular section E  of Opinion; currently the opinion is only available in French but can be auto translated by Google Translate ) For the AG, under the Charter, the quality of any law should be sufficiently precise that others can be certain of its effects and adjust their behaviour accordingly. Using the words of the European Court of Human Rights the AG said the law should be “formulated with sufficient precision […]  to foresee […] the consequences which a given action may entail” (para 94)

To expand further on this notion, the AG referred to a Turkish case brought to the European Court of Human Rights where the law in question gave the power to chief prison officers to intercept and retain prisoner correspondence if the officer thought the contents were “embarrassing” (Footnote 85 of the Opinion). It was thought such a law did not indicate with sufficient clarity the scope and conditions for the exercise of this power by those authorities.

So details are crucial if a law is to be in line with the Charter, primarily, so people can foresee the consequences.

In this case, from the point of view of Scarlet, the adoption by the lower court of this injunction was an extraordinary measure, both difficult to foresee and due to the serious economic consequences smacked more of being arbitrary.

The ISP was demanded to achieve the result of blocking illegal file sharing but the solution of how this could be done was completely innovative.

Also the injunction gave no guarantee of how subscribers’ personal data would be protected. Nor did it provide any recourse for appeal by affected subscribers.

On this basis, the AG concluded the national law and by implication EU law could not have given authorisation for such a measure. Essentially there was no solid basis in law for this remedy when read in light of the Charter.

Digital Economy Act
If the Court decides to follow this Opinion then other EU countries who are rolling out new laws to combat internet copyright infringement may take more time to stamp out the details of their laws rather than handing over general powers to the judiciary or executive.

How may this affect the UK and the Digital Economy Act?

The UK is obliged to check compatibility with the Human Rights Act (HRA) when passing any new law.

Lord Mandelson okayed the Digital Economy Bill in the Commons but when the bill reached the House of Lords Joint Committee of Human Rights, concerns were raised about so-called ‘skeletal measures’ where powers are granted under the Act and the detail worked out in secondary legislation.

In fact, the Joint Committee said it was “impossible [to] assess fully” whether the Bill is compatible with the HRA due to the lack of detail. Not a good sign. (see in particular 1.28).

One such example of a ‘skeletal measure’ is Article 18 of the Act which allows for the secretary of state to introduce ‘technical measures’ to limit access to the internet for alleged infringing subscribers.

This particular measure is currently under judicial review by the high court but this SABAM Opinion could be the tipping point for a declaration of incompatibility with the Human Rights Act, or maybe there is a referral to the CJEU in the waiting.

Luckily for the government a referral to the CJEU would not see the Digital Economy Act being scrutinised in the same way as Belgium law has been under the Charter. The UK added a few provisos when giving the Charter the force of law with the Lisbon treaty, one of those was to preclude the CJEU from judging whether a UK law violates the Charter (see article 1 of protocol 7).

Interestingly the Telegraph have noted that the Government are circumventing the need to even rely upon article 18 Digital Economy Act by opening “talks between ISPs and the music industry to encourage a voluntary agreement on a list of websites that would be blocked”.

In conclusion, in the UK, it is understandable for the government to grant some general powers rather than type out every possible detail in the law when addressing copyright infringement. This is particularly true in the field of technology and the internet, where flexibility is needed to adapt to this ever changing environment. But at the same, it is equally important in light of the essence of the SABAM opinion to ensure sufficient precision in the law to ensure its validity when placed under European human rights scrutiny.

IP addresses are used to route communications between computers connected to the internet, and could be said to work in a similar way to postcodes.  A number of companies have previously engaged in the practice of tracking file sharers by their IP address, hoping to discourage piracy online, but the Swiss Court found that these details are personal information, and given that the data is generally collected without the consent or knowledge of the users this is in breach of privacy legislation.

It is important to note that this is not the final word on the matter, and that some jurisdictions disagree with this view, for example both Irish and French courts have in the past ruled that IP addresses are not necessarily personal information.  Consensus will involve considerable collaboration on an international level, and when reached may have a significant impact on the way people use the web.

Your IP address on its own does not identify you, and in order to match an IP address to a particular internet connection it is generally necessary to obtain a court order forcing the relevant ISP to hand over the information.  On the other hand, there are a variety of techniques which, in some cases, can shed a little light on the identity of a user from their IP address.  These are for the most part more effective at identifying larger organisations, who may have been allocated a block of IP addresses, and so be identifiable through RIPE (one of five Regional Internet Registries) or by using similar methods.  Other less accurate methods include geolocation, using  online databases such as IP2Location.  These approaches are often unreliable, and even where it is possible to identify a particular internet connection, it is not certain who was responsible for activity online as many different people might be using the same IP address by routing their communication through the same connection via a wireless network.  It will be interesting to see how this issue is dealt with in future, as many more cases are likely to arise where connecting an IP address to a particular person is central to the outcome.

This is just one of a whole host of issues that have arisen in relation to online identity, which is of growing concern as people submit more and more personal information to social networks like Facebook, and as businesses pay more attention to their reputation on the internet.

On a related note, it is not just an IP address that can connect a person to activity online.  Users of membership sites such as Twitter or YouTube are distinguished by their username – which they choose themselves, and which do not need to be their real name.  Perceived by some as a significant problem with material online, much of it is posted anonymously using pseudonyms.  If you find defamatory content online, there is more often than not no quick way to identify the culprit.  In such cases, recourse to the courts is the only option; recently a US court ordered Google to release information connected with the identities of two YouTube users who had posted videos  of a business consultant without permission, and incorporating offensive remarks about her.  If cases like these are successful and well publicised, internet users may become more cautious when making comments online.

Finally, another issue bringing online anonymity into the spotlight recently is the offensive launched by the group Anonymous against proponents of intellectual property, called Operation Payback.  The group have claimed responsibility for the bringing down of a range of websites including the UK Intellectual Property Office.  One of the principal difficulties in identifying those who are culpable for the attacks lies in differentiating malicious connections from honest ones.  The attacks are classed as distributed denial of service (DDoS), and rely on huge volumes of users connecting to the target website at once to overload it – finding out which connections are bona fide is far from a straightforward task.

There is a tension between protecting the privacy of internet users and enabling law enforcement online, and this debate is likely to rage on for the foreseeable future, so we plan to keep our eyes peeled.

The controversial legislation sets out a three strikes approach to enforcement.  On receipt of a notice, an ISP is expected to send a warning email to the owner of the internet connection involved, and deliver up their identity.  A second suspected offence leads to a certified letter, setting out similar information, including the IP address involved, and the time of the offence.  Finally, a third strike can lead to the suspension of the subscriber’s internet connection.

The scale of the operation is colossal, the initial number of notices sent out being projected in the tens of thousands per day and only set to increase.  In light of the controversy surrounding copyright enforcement against filesharers, particularly where enforcement mechanisms rely on automated software to log IP addresses, it is no surprise that many have spoken out against the law.  What is newsworthy, is that one French ISP, ‘Free’, believes that it has found a loophole in the legislation that will allow it to avoid sending these warning emails, and as a consequence potentially protect its customers from sanctions.

Guillaume Champeau, commenting on this Techdirt article, explains the reasoning like this:

[In] order to face penalties before the court, internet subscribers must have received at least one previous warning by paper mail.  [The law] also says that in order to send this paper mail, the HADOPI must have been noticed of new infringements which must have occurred within [the] 6 months after [a warning] e-mail was sent.  Therefore, if the e-mail was never sent, no paper mail can be sent … and the users can’t face penalties.  Currently the law does not mandate an ISP to send the e-mails.

While taken at face value this might appear to be a good selling point for internet users prone to file sharing, the reality is that the approach set out above still involves the identity of subscribers being forwarded to the government agency.  Subscribers will just be unaware of this fact.  If, or more likely, when, action is taken to plug this alleged loophole, many users could be shocked to find that they are already part of the way towards having their access suspended – notably, losing access does not absolve a subscriber of their liability to their ISP for the service, so users could find themselves paying for an internet connection they can’t use.

It will be interesting to see how this episode unfolds.  More importantly, if the French approach is successful, are we likely to see it used as a model on which our own laws will be based in future?  Earlier this year, OFCOM published a consultation paper proposing a draft code of practice under the Digital Economy Act, which we have written about before here and here.  The draft code proposes a similar three strikes rule, but has faced substantial opposition from ISPs, and so it remains to be seen what the final document will look like.

This victory closely followed a previous one earier this year against Viacom. In this case Viacom accused Google of “massive intentional copyright infringement” but the Manhattan Judge ruled against this. Viacom had claimed that thousands of copyrighted videos were posted on YouTube, which Google had known and done nothing about. However, the Judge declared, “Mere knowledge of prevalence of such activity in general is not enough. The provider need not monitor or seek out facts indicating such activity” and ruled in favour of Google. Google were deemed to be protected under safe harbor provisions in the DMCA as they immediately removed the material once they were notified of the infringing content.

However, for some, the almost blanket amnesty afforded to hosts seems to lead to judgments where the evidence is not engaged with as closely as it should be. It was even thought that the Viacom judgment was maybe a little rushed, because seemingly the solution was evident or it was evident that Viacom was going to appeal –which it did.  But on the point of evidence Viacom did not assist the integrity of their case when it transpired that they had uploaded some of the content which they claimed had been infringed.

Nonetheless, both these rulings respresent landmark victories. Google called the ruling concerning Telecinco a “clear victory for the Internet and the rules that govern it”. If Google had not been successful in achieving victories in these two cases then the way people use the Internet could have significantly changed. David Sohn, a lawyer for the Center for Democracy and Technology, said: “Without this decision, user-generated content would dry up and the Internet would cease to be a participatory medium“.

The outcome of the two cases brought against YouTube can be viewed as a positive sign from other high profile sites such as Facebook who also relies heavily on user generated content. Without these victories the knock-on consequences of the cases could have been dire news for a number of different sites and for the way the Internet runs as a whole.

While this publicity stunt is likely to incense many of those who have been striving to combat infringement online, in other parts of the world copyright owners have a different take on the issues entirely.  The popular Brazilian Technobrega movement, rather than taking expensive legal action against music sharing, has embraced it wholeheartedly.  Technobrega artists make money not from CD sales, but from live performances.  To encourage ticket sales for these shows they actively promote the free distribution of their works, with no expectation of receiving royalties.  They hand their material over to street distributors, who will copy and sell these on themselves, each copy acting as an advertisement for the artist’s live shows.

This is not the only illustration of differing attitudes towards copyright in Brazil.  Following an invitation for public comment on copyright legislation, proposals have been put forward in support of legalizing file sharing in exchange for levies on the provision of broadband internet connections.  While the feasibility of the proposals remains unclear, the Brazilian approach is refreshing, and even goes so far as to include sanctions to discourage the use of DRM to hinder fair use of copyright material.

It can be argued that cultural and economic differences between jurisdictions have a considerable bearing on whether or not certain changes to copyright legislation are practical, but it is difficult to ignore the widespread dissatisfaction with the traditional approach.  It will be interesting to see the impact of the Brazilian reforms once they are finalised, and implemented.

Piracy of films and music has been around for years.  Now, with the introduction of E-readers such as the Kindle and the iPad, could eBook piracy become a problem?

When the iPad was introduced, BitTorrent book downloads went up 78% in the few days after the device went on sale.  This suggests that new technology such as the iPad could lead to increased piracy of books. This is not a completely new problem but, previously, actually producing a pirated book online was difficult. Original files were needed, and someone with enough time to scan the book onto a computer.  In contrast, sharing e-books is a much simpler task.

When Dan Brown’s novel ‘The Lost Symbol’ hit stores September last year it managed to sell more digital copies than hardback ones.  Along with this came, 24 hours after its release, pirated copies of the book available on popular file-sharing sites such as Bit-Torrent and Pirate Bay. Within days the pirated version was downloaded over 10,000 times. This could indicate the way books are headed in the future.

EBook piracy is still a relatively small problem currently. Only a few hundred eBooks are pirated per week. However, this is because ownership of eBook readers is still far from ubiquitous.  Compared to the market penetration of MP3 players, the number of people who own E-readers is marginal.  As devices become more affordable, these numbers are likely to rise, and publishers could face the same struggle against piracy as the music industry.

So far the tactics employed by publishing companies include the use of DRM, delaying electronic editions of their books, or completely refusing to make their books available digitally.

DRM has proved too unsuccessful for the music industry and does not effectively prevent people from producing pirated copies of files.  Arguably it just serves to aggravate those who have purchased files legally.

The approach of the publishers of Stephen King’s novel ‘Under the Dome’ was to delay the release of eBook versions of the novel. This decision proved unsuccessful, and had a negative impact on book sales.  Nor was it successful in preventing pirated versions of the book emerging – these surfaced within the next few days.  J.K. Rowling refused to publish her books digitally – yet her Harry Potter series is currently one of the most pirated titles. All the books are available to download online by fans who have scanned in or transcribed her books onto computers.

So, it will be interesting to watch to see how publishers handle this problem, and whether publishing faces the same fate as the music industry.

In September 2008, when EA released the much hyped video game Spore, they incorporated a DRM scheme viewed by many as draconian, and unnecessary.  The scheme placed restrictions on the number of computers on which the game could be installed, and required authentication for online play.

However, despite making use of the latest DRM technology, the game was cracked in 24 hours, and made available 2 days before the initial Australian release.  The copy protection evoked so much criticism and outrage, that in 2008 the game became the most pirated title in history.   This was not the end of the affair though, in the same year the publisher was targeted by a class action lawsuit on the grounds that the nature of the DRM software was not disclosed to purchasers, and remained on a user’s computer even after un-installation of the game.

DRM is used to try and prevent people being able to pirate games, however in this case many legitimate purchasers said that they felt they were being punished for buying a legal copy, as their use of the software was limited to a greater extent than if they had downloaded an illegal copy, free of the protection.  The reaction against the DRM in Spore was so great that when EA released The Sims 3 a year later they decided to make the game completely free of copy protection.

More recently, in March this year, Ubisoft announced that they would be shipping a new type of DRM along with their games, that would kick players out of their game without saving their progress if their Internet connection dropped. First the game is verified and then the users settings are saved online through a Ubi.com account.  This means that PC gamers who are not connected to the internet, or are away in an area without internet access, will not be able to play.  As predicted by commentators online, Ubisoft’s new DRM was broken in less than 24 hours.

Cases like these illustrate how poorly considered DRM usage can be counterproductive, and instead of discouraging piracy can in fact drive people towards it, so that they can play games without so many restrictions.

However, some DRM schemes have proved successful.  These include services like the iTunes music store, or in the world of video games, Valve’s Steam service.  The key to their success? Offering legitimate users far more value than that available through illegitimate means.  Steam is essentially a distribution network, like iTunes for games rather than music, but it does incorporate DRM similar to the Ubisoft scheme described above.  Opinion is divided when it comes to some aspects of the service – for example users may be forced to upgrade their games even when they don’t want to, and it is necessary to be connected to the internet when installing a game, but at the same time there are significant advantages.

With Steam, users no longer need to worry about maintaining a collection of CDs or DVDs, as they can download games they have purchased anywhere, anytime, and play them on any computer.  There is a huge library of available titles, including free games, and the service also offers community interaction between players.

You can read an interesting take on the benefits of this approach in relation to piracy here.

Although DRM may seem like an attractive means for game publishers to discourage piracy, it is difficult to implement in a way that does not alienate fans by imposing arduous restrictions, driving them to seek out illegitimate copies.  Even sophisticated DRM schemes are readily circumvented, and can lead to resentment on the part of legitimate buyers, and so it is clear that a careful balance must to be struck between the benefits offered by legitimate copies, and the limitations imposed by the copy protection used.

Along with the growth in popularity of gaming, has come an increase in videogame piracy.  Just as with films and music, games consist of intellectual property that can be copied, and distributed.  The industry has grown to make gaming a $60 billion dollar market, and the issue of illegal downloading is now serious cause for concern to publishers.

The way games are used by consumers is very different to the way music and film are used.  While a film might be seen once or twice a year, games can offer hours and hours of single player game play, and in a multiplayer environment the entertainment value of a game can often increase with time.  While music is consumed passively, players interact with game environments.  So what does this mean for game piracy?

While the music and film industries go after their consumers in court, both alienating buyers and racking up legal fees, the nature of games gives publishers a range of far better options.

• Demos
  It is sometimes argued by infringing downloaders that they want to sample the material before purchasing it – perhaps wanting to see the film to know if it was worth adding to their DVD collection, or wanting to listen to some of the tracks on an album before buying the whole thing.  For game publishers this is easy to address, as they have been doing for years, by releasing time, or feature limited, demos of their titles.
  Where practical, some publishers also release ‘beta’ versions of their games, allowing users to get a taste of what the finished version will be like, to provide feedback, and to generate marketing buzz.  This has been effective with games such as Blizzard’s Starcraft 2, and the Halo Reach beta given to buyers of the most recent title in the Halo Franchise – Halo ODST.
• Additional In-Game Content
  As explained above, one of the major differences between games, and other media, is that players interact with the game environment, and if taken into account as part of the design process games can be built ready to accept additional content – this might be new levels, characters, weapons or even features.

  Technical measures often make it possible to restrict the release of bonus content to licensed copies through activation, license codes, and other means.  By doing so, publishers not only discourage piracy, but increase the lifespan of a game and add a revenue stream.

• Multiplayer Networks
  One form of additional functionality worth mentioning on its own is multiplayer play.  By restricting access to gaming servers to licensed copies, publishers provide a powerful disincentive to use a pirated copy, for example Xbox Live operators are able to ban those using infringing copies from the multiplayer servers.

  Where the multiplayer aspect of a game is central to its use, an even more effective business model emerges.  Massively Multiplayer Online Role Playing Games (MMORPGs) based on subscription models, can effectively eliminate the threat posed by piracy.  Possibly the most successful game ever, World of Warcraft, attracts monthly subscription revenue in the tens of millions of dollars.

  

All of these are powerful tools by which the games industry can combat piracy, without resorting to legal action.

While game piracy is an issue of mounting concern, it is a different beast as compared to music and film copyright infringement, and has the potential to be approached from a very different angle.