There just seems to be something about the way that some people’s brains function (or not) when the word “piracy” is introduced. Over in Ireland, there’s been an incredibly long running battle over whether or not internet access providers need to kick people off the internet if they’ve been accused (not convicted) of file sharing three times. Such “three strikes” rules have been put in place in a few countries, and the evidence shows that they don’t work at all. Not even in the slightest. They don’t slow down the rates of piracy for any extended period of time (sometimes they show a very brief drop before people figure out other ways). They certainly don’t lead more people to buy content. France, famously, led the way with the very first three strikes law, which the country has already dropped.
Over in Ireland, the fight over three strikes has been going on for nearly a decade. Back in 2008, the recording industry sued Eircom, the large Irish ISP, claiming that the company was required by lawto implement a three strikes regime. Eventually, in an effort to avoid legal costs, Eircom caved andagreed to implement a three strikes plan, but with a condition: the recording industry also had to pressure competing ISPs to implement a similar plan so that Eircom customers didn’t go fleeing. The recording industry did just that. The ISPs pushed back and seemed to be vindicated when the Irish Data Protection Commission ruled that a three strikes plan violated consumer privacy, and Irish judges found no legal basis for such rules.
Of course, the recording industry fought back, and a court flat out rejected the Data Protection Commission’s findings, and insisted there wasn’t any privacy issue at all with three strikes.
And, thus, we get back to the lawsuits against ISPs with a judge now ruling against ISP UPC and making some rather astounding statements in the process. The judge, Brian Cregan, appears to have become a true believer in the myths that the recording industry is spreading, and to him “piracy” seems to justify any and all punishment, without any clear concern as to whether or not anyone’s actually broken the law, or whether or not three strikes plans even work. These quotes are fairly astounding:
Mr Justice Cregan said that there was “wholesale theft” taking place on the UPC network. He said that the constitutional rights of “a whole class of persons are not just being infringed but are being destroyed”. The downloading of music for free is destroying the intellectual property rights of creative artists and should be a matter of great concern in any civilised society, he said.
Except, that’s not true. Copyright infringement and “theft” are two separate (and very different) things. And, no constitutional rights are “being destroyed” at all. If someone’s rights are being harmed via copyright infringement, those individuals or companies have every right to bring legal cases against those who are the ones actually engaging in infringement. Arguing that ISPs should automatically cut people off of the entire internet based merely on accusations (that have a long history of not being accurate) would seem to be “destroying” the due process rights of many more people than any copyright infringement. Besides, I would also think that “a matter of great concern to any civilized society” would be things like “due process” and better enabling communications and access to information for all — like the internet does. But, no. If you happen to download a song you like without paying for it, apparently you should be barred from the internet.
“The current generation of writers, performers and interpreters of music cannot have their livelihoods destroyed by advances in technology which allow persons to breach their constitutional rights with impunity.”
Two points on this. Any realistic look at “the current generation of writers, performers and interpreters of music” would recognize that it is an amazing time to be a creative personbecause of the internet. Thanks to the internet, artists no longer are solely reliant on giant gatekeepers to pick them out of everyone else. Instead, they can use these platforms to create, to connect with fans, to promote, to distribute and to monetize their works. More words are being written, more videos are being filmed and more music is being recorded today than any time in history. It’s difficult to see how one can possibly square that reality with this fantasy world of Judge Cregan’s in which he believes that writers, performers and musicians are in trouble.
The reality is that it’s merely the business models of the old gatekeepers that have been challenged. But that is the nature of the free market. If you cannot keep up with the changing times, you go out of business. But Cregan has apparently decided that the world should always look like it did briefly in the 1980s, and the internet upsets all of that, so clearly, it’s the internet that should go.
Not only did Judge Cregan decide that UPC needs to put in place a three strikes plan, but that it should have to cover most of the costs itself, apparently blaming the technology itself for the struggles of the legacy recording industry:
Mr Justice Cregan said the cost of setting up this system had been put at between €800,000 and €940,000, three-quarters of which UPC had argued should be paid for by the music companies.
The judge said however given the music companies’ constitutional rights “are being destroyed” by UPC’s customers, he believed UPC should pay 80 per cent and the music companies the rest.
Cregan is apparently so sure of himself on this issue — despite what appears to be an astounding confusion over what’s actually happening in the world, that he further rejected UPC’s argument that this is a matter for the legislature, not the courts. Instead, Cregan seems to believe that the courts can magically will into place a new regulation kicking people off the internet. He further rejected requests to refer this matter to the European Court of Justice, insisting that his interpretation of the law is plenty.
Half a decade ago the Irish Recorded Music Association (IRMA) ended legal action against local ISP Eircom when the ISP agreed to force a so-called “three strikes” regime on subscribers.
The agreement saw IRMA-affiliated labels including Sony, Universal and Warner tracking Eircom subscribers online and Eircom forwarding infringement notices to alleged pirates. It was envisioned that those caught three times would be disconnected from the Internet.
In a follow-up move IRMA tried to force another ISP, UPC, to implement the same measures. UPC fought back and over the past several years the matter has dragged on through the Irish legal system.
In January 2015 the case was again before the Commercial Court, with IRMA looking to force a so-called “graduated response” scheme onto UPC and the ISP trying to avoid one and its costs.
The High Court handed down its ruling Friday and it amounts to a massive victory for the labels, a depressing defeat for UPC, and a major concern for the rest of Ireland’s ISPs.
Brushing aside arguments by UPC that it’s not an ISP’s job to police its subscribers’ activities online, Justice Brian Cregan sided almost entirely with the labels.
“The current generation of writers, performers and interpreters of music cannot have their livelihoods destroyed by advances in technology which allow persons to breach their constitutional rights with impunity,” he said.
After ordering UPC to implement a “three strikes” system including the disconnection of repeat offenders, the Judge then informed the ISP it would be picking up most of the bill.
According to Independent.ie the system will cost between 800,000 euros and 940,000 euros to set up. UPC offered to pay 25% of these costs but the Judge disagreed and ordered the ISP to pay 80%.
But it doesn’t end there. Yearly running costs are estimated to be between 200,000 and 300,000 euros or, to put it another way, close to one euro for each of UPC’s 360,000 subscribers.
Then, in a move apparently aimed at keeping costs down, the Judge ordered that the number of warning notifications going out to subscribers should be capped at 2,500 per month instead of the 5,000 originally proposed. That means that even if the staggering setup costs are ignored, each notice could cost 10 euros to send out.
The case was adjourned until next month to allow UPC and the labels to prepare submissions on how Justice Cregan’s order will be implemented. In the meantime the rest of Ireland’s ISPs will be nervously checking their bank balances in the event that they too are required to implement a similarly costly system.
After years of complaints from mainly Hollywood-affiliated companies and anti-piracy groups, Australia is now having to deal with its online piracy issues.
Faced with deadlock the government ordered ISPs and entertainment companies to find a solution and against a backdrop of failed negotiations, last week telecoms body Communications Alliance published a draft proposal on behalf of its ISP members.
Titled ‘Copyright Notice Scheme Industry Code‘, the document outlined a graduated response “three strikes”-style mechanism to deal with file-sharers. It was put together in concert with rightsholders, so it’s fair to assume Hollywood is somewhat satisfied with the framework.
The same cannot be said about Australia’s leading consumer group, however.
Choice, which has long warned against a file-sharing crackdown, says that current proposals raise the specter of a streamlined conveyor belt of consumers heading towards a notoriously litigious entertainment industry.
“Although an ‘education scheme’ to stop piracy sounds harmless, the proposed Code will actually funnel internet users into court actions where industry can seek unlimited amounts of money for alleged piracy, and provide a way for rights holders to gain access to your internet records and personal details so they can sue you or send you a letter demanding payment,” the group warns this morning.
Highlighting mechanisms already in place in the US, UK and New Zealand, Choice says that the proposals for Australia are the worst of the bunch. ‘Education’, ‘Warning’ and ‘Final’ notices could be followed by rightsholder access to subscriber details alongside threats of legal action and potentially limitless fines.
“The system proposed by the industry purports to be educational, but clearly has a focus on facilitating court actions. There is no limit on the amount of money that a rights holder can seek from the customer,” Choice explains.
Also under fire is consumer access to remedy should they have complaints about notices received in error, for example. While there is a system being proposed, access costs Internet subscribers $25, and even then the adjudication panel is far from impartial.
“If a consumer objects to any notice received, they can lodge a complaint with a largely industry-controlled body. There is no avenue for appeal if the consumer disagrees with the decision made,” Choice complains.
In order to raise awareness of these shortcomings, Choice says it has now implemented its own “three-strikes” program. And the first notice is about to go out.
“CHOICE is concerned that this scheme will funnel consumers into legal action, bypassing ordinary checks and balances. We’re sending an Education Notice to the Minister for Communications to let him know about the dangers of these ‘education’ measures for consumers,” the group says.
The notice to Malcolm Turnbull reads as follows:
You are receiving this Education Notice due to a complaint from the Australian public that it has detected the development of a damaging, industry-run internet policing scheme in your portfolio.This scheme will allow big Hollywood corporations to obtain consumers’ contact details and internet records from Internet Service Providers, based on unproven accusations.
There is no limit to the amount of money that could be sought in court. In the US, a student was recently ordered to pay $675,000 for downloading and sharing 30 songs.
You may not be aware of this anti-consumer scheme. Perhaps somebody else in your household accessed your internet account and provided instructions to your Department without your knowledge.
If you believe this is the case, please forward this notice to the person who may be responsible. If the Government is serious about addressing piracy, it needs to address the real causes of the problem: the fact that Australians pay far too much for content that is often delayed or completely unavailable..
We know that you are a well-educated consumer, so we ask you to step in before it is too late.
This Education Notice is your first warning. If Australian consumers detect further infractions, we reserve the right to take further action.
The warning letter is being “authorized” by the Australian public who are being asked to sign a petition in support of Choice’s position.
After just a few hours online the petition is already close to reaching its initial target but whether it will make any difference remains to be seen. It’s taken so long for the ISPs and Hollywood to agree on any action against piracy, it will take something huge to derail it now.
After developing a reputation for being some of the most prolific online pirates around, last year Australian citizens were told by the government that enough is enough.
Since years of negotiations between ISPs and entertainment companies had gone nowhere, service providers were told to propose voluntary measures to deter and educate pirating subscribers or have one forced upon them by law.
With a deadline looming, telecoms body the Communications Alliance has now published its draft proposal on behalf of its ISP members. Titled “Copyright Notice Scheme Industry Code”, the 34-page document hopes to pacify rightsholders and their allies in government by outlining a graduated response mechanism to deal with file-sharers.
“The Copyright Notice Scheme Code is designed to facilitate a cooperative industry-led copyright notice scheme through which
Internet Service Providers and the owners of copyright works will work to deter the practice of online copyright infringement and inform consumers about available and lawful content alternatives,” the draft begins.
“The Code provides for the creation of a copyright notice scheme under which ISPs will accept reports (in a prescribed format) from Rights Holders. The reports will identify Internet Protocol addresses that a Rights Holder alleges have been used to infringe copyright in online work of the Rights Holder. The reports will request that the relevant ISP notify the relevant Account Holders of the alleged infringements.”