CDIP 1: Online Piracy

CDIP 1: Online PiracyBut hey. I went to jail for my cause and your TV shows. What did you do?TRIPS, Art. 51, footnote 14Goods which are copies made without the consent of the right-holder and which are made directly or indirectly from an article where the making of that copy would have constituted an infringement of a copyright.

Copyright holder has the exclusive right to distribute his work. Piracy is the unauthorised reproduction, or distribution of such work.

PiracyKorean Film Council - online pirated film market worth $742.7 million annually, calculated at the rates of legal usage fees.MPAA - $6.1 billion annuallyMicrosoft, Adobe - $13.5 billion to software pirates in Europe, $58.8 billion globally.

Conflicting numbers; how did they get here?

Churning NumbersGreed-based want because its free. E.g. TV shows, music, etc. that is also available through other networks, softwaresNeed-based educational books (Libgen)Curiosity-based access what isnt available. E.g. movies, music that arent accessible

Legally - All illegalMorally some/all pardonable (SOPA/PIPA protest)

This is where the law fails. So, what do we do?

50 Shades of PiracyUploaders and downloaders are liableWebsites merely provide a platform (intermediaries)Lots of legal material, yet shut down The Pirate Bay caseBlocks dont work gazillion reasons

Resolution?What About the Websites?I. Promotion of free speech v. restrictionsArt. 10, ECHR freedom of expression (freedom to impart information v. protection of authors rights)Art. 19, ICCPR freedom of expression (same as above)Art. 27, UDHR freedom to enjoy creativity of others (enjoy the arts v. protection of authors material interests)

Legal IssuesUniversal Studios, Inc. v. Corley - amendments to the U.S. copyright law in the DMCA unconstitutionally eliminated fair use.Fair use allows copyright to be infringed in certain circumstances. E.g. parodyfair use has never been held to be a guarantee of access to copyrighted material in order to copy it by the fair users preferred technique or in the format of the original...

Copyright stifles legitimate activities, including freedom of expression.

Freedom of Expression v. CopyrightAshby Donald v. France 1. Conviction for infringing copyright by publicly communicating copyright protected material is an infringement of freedom of expression (Art. 10, ECHR). 2. Conviction valid if i. necessary; ii. prescribed by law; iii. pursues a legitimate aimDifference between expression that contributes to an issue of public debate and commercial speech.

Commercial nature of websites activities?Freedom of Expression v. CopyrightWebsites transfer information. No storage.Legitimate contentContributory infringement Art. 8(3), InfoSoc Directive: Member states shall ensure that that rightholders are in a position to apply for an injunction against intermediaries whose services are used by a third party to infringe a copyright or related right.

Art. 14, eCommerce Directive: Notice and takedown regime for services that store information if awareness of illegal activity is apparent.

The Intermediaries ArgumentDaily Motion case: Daily Motion must be deemed to have been aware of facts and circumstances that would lead one to believe that illicit videos are being posted, that it therefore falls to Daily Motion to take responsibility, without passing the fault solely onto the users, once the company has deliberately furnished the users the means to commit the wrongful act.

In Re Aimster Copyright Litigation: Recognizing the impracticability of a copyright owners suing a multitude of individual infringers, the law allows a copyright holder to sue a contributor to the infringement instead, as an aider.MGM v. Grokster One infringes contributorily by intentionally encouraging direct infringement, and infringes vicariously by profiting from direct infringement while declining to stop it.Lawful uses immaterialThree criteria:(1) the defendant promoted the infringement-enabling virtues of its device; (2) the defendant failed to filter out infringing uses; and (3) defendants business plan depended on a high volume of infringement.The Pirate Bay case discussionWebsites keep resurfacing laws arent uniformChange countries, etc.

Traffic does not decrease BREIN v. Ziggo/XS4ALLProxies, other methods of breaching

Problematic liability system Canada: notice and notice system ISPs need to send infringement notices; sometimes attached fines.U.S. six strike system warnings, then punishment

Problems with RestrictionsData is incorrectly calculated - Would the college student watching the pirated movie download have otherwise seen the movie in the theater, subscribed to Netflix or bought the DVD? Would the person buying a pirated DVD at a Chinese market actually have bought the genuine article otherwise? The answers to such questions are hard to determine. But it does seem fair to assume that not every pirated copy of an audiovisual work represents lost revenue to the content producer.

Michael Geist i. Librarians, people focused on digital issues, etc. will buy the book regardless of whether it is freely available online. ii. Might have purchased the book, but dont because there is a free version available. Financial loss. iii. Would not have purchased the book or even been aware of it, but find it through open access. Likes, buys the book. If group three is larger than group two, the publisher ends up ahead. iv. Would not buy the book but choose to download it never have been purchasers.Publicity Geist analysis media that would not be accessible in any way

Access to people redefine the role of media?

Benefits from PiracyRestrictive i.Catch the perpetrators directly. Strict ISPactionii. Cut fundingiii. Uniform international policy

Liberal i. New revenue model; Content IDMonetize, distribute revenueSolutions