[LINK] leaked treaty, no policing role for ISPs in copyright breaches

[Steven Clark]

  On 8/09/2010 12:05 AM, stephen at melbpc.org.au wrote:
>  Piracy setback for movie giants
>  Louisa Hearn September 7, 2010 - 2:48PM

Note: I'm not an IP lawyer, though I have a background in the area may 
be getting rusty: my practical background is litigation (civil and 
criminal). I continue to be interested in the iiNet case for it's 
(potential) implications.

Comments that follow are based on my understanding of the issues, and 
are intended to elicit discussion, rather than be statements of law or 
whatever.

>  The movie giants appear to have lost key political backing in their
>  international efforts to police illegal downloading through ISPs,
>  throwing the legal spotlight back on to the long running piracy case
>  launched against iiNet in Australia.

What movie distributors seem to be expecting is that ISPs will do the 
'policing' *for* them. Expecting ISPs to bear the costs of monitoring 
and chasing down every (potential) breach of copyright seems to me to be 
somewhat different to the idea of 'through'.

>  Knowledge Ecology International, an organisation that investigates
>  intellectual property rights, claims to have published a leaked
[either it has, or it hasn't published it - perhaps "has published what 
it claims to be"?]
>  version of the most recent draft of an international copyright treaty
>  that does not prescribe a policing role for ISPs in copyright
>  breaches.
>
>  This international treaty, called the Anti-counterfeiting Trade
>  Agreement (ACTA), is an international effort to create a legal
>  framework that will guide policy makers tasked with setting national
>  copyright laws.

ACTA has the potential to change relationships between creators and 
producers, and producers and consumers, in many ways - some less subtle 
than others.

There is resistance to suggestions that 'users'/consumers have rights 
that might be put up against those of the creator or especially the 
producer of IP - including suggestions that privacy rights might need to 
be considered against IP rights. Certain producers are quite clear that 
they do not regard individuals interests to be as important as their own 
proprietary ones.

>  The film industry has been lobbying hard to make ISPs liable for
>  tracking users illegally downloading copyright content, and
>  implementing a three- strikes policy that cuts off infringers'
>  internet usage after three warnings.

Copyright is a personal property right, much like owning a car or a set 
of keys. Under existing Australian laws, owners of intellectual property 
are the ones (largely) responsible for 'policing' and protecting their 
ownership rights. This makes a lot of sense - particularly for copyright 
where there is no register that can be consulted. It is the owner of the 
right who is in the best position to know what they own.

The complication (for many people) is that since copying a game or a 
song does not destroy the original, nor does it prevent the original 
being enjoyed by the 'owner', it can be hard to see the harm done - 
unlike taking a car or the keys. Theft is intentionally depriving the 
owner of their property. It's hard for many to see how copying a CD 
deprives anyone of the CD - except that the CD is merely the physical 
embodiment of the thing over which the owner has copyright. By this I 
mean, we're used to thinking that having paid for a CD, we *own* it: in 
fact, at law, we merely own the physical object - we do not own the 
music or software it contains. It is not the CD per se that is 
protected, but rather its' contents.

What is 'stolen' in copyright 'theft' is the copyright owner's right to 
control who can copy (and distribute) their work. In practical terms, 
this becomes a right to obtain royalties or payments for each copy made 
- to get a return on their investment. What is stolen is income.

Traditionally, it is the copyright owner (or their licensee - eg record 
company or movie distributor) who must pursue breaches of copyright. The 
past few decades have seen serious challenges arise to the business 
models and distribution methods employed by distributors. And they're 
not happy about that.

By seeking to make *someone else* responsible for 'policing' their 
rights, distributors are attempting to push that burden onto others that 
they see as unfairly profiting from their investment (paying to be the 
monopoly exploiter of the copyright). If successful, this changes the 
economics of distribution - and is likely to have a range of social (and 
legal) effects that may not be obvious, or readily predictable (beyond 
ISP costs rising).

It might well clarify the whole mess a great deal to reframe 'copyright 
theft' or 'pirating' as loss of income - though that sounds much less 
sexy. What's *really* at risk is the monopoly model of IP exploitation. 
It's also under assault from parallel importation, which in a sense is a 
lot like 'piracy' except that legitimate importation does pay royalties 
to the owner/creator - it's just that competition squeezes profit 
margins ... and so on.

>  Although early rumours circulating about the treaty indicated ISPs
>  might be handed responsibility for policing this, the latest leaked
>  draft appears to back away from that scenario.
>
>  Rick Shera, a blogger and intellectual property lawyer for Lowndes
>  Jordan in New Zealand, writes on his blog that the draft appears to
>  "remove most, if not all, requirements for treaty countries to impose
>  third party liability on ISPs and other third party providers",
>  leaving only "a relatively benign set of provisions".

Imposing liabilities on third parties for the conduct of others is a 
complicated game to play. Insurers aren't keen, because - amongst other 
things - it increases the number and range of risk factors, and the 
parties who might be at risk. I wonder if governments are not keen on 
imposing additional costs and regulatory burdens on ISPs because they're 
concerned about the impact that will have on ICT-mediated commerce. If 
the middle-man is squeezed, and you can't live without him, *everyone* 
has to pay more to do *anything* online.

Other concerns arise too.

It is impossible for any carrier to ensure no one is misusing or abusing 
their service. Particularly when the volume of traffic is horrendous, 
and the ways in which that traffic can masquerade as other things are 
growing all the time. Not only would every ISP have to interrogate every 
packet right down to the last bit (in 'real time' o.O) but they'd have 
to be guessing about whether the data really is what it's represented to 
be. A few bits changed and the 'real' format of the file could be almost 
anything. Especially when broken up into hundreds, millions, of little 
pieces.

This raises privacy concerns. And security as well - no one wants a 
competitor snooping in their communications.

>  "The awaited decision on the iiNet appeal in Australia, heard last
>  month, becomes more important. In the absence of ACTA dictating third
>  party liability principles, iiNet will become the touchstone," he
>  writes.
>
>  In the eight-week iiNet trial, an Australian court examined whether
>  or not the ISP authorised customers to download pirated movies and
>  Justice Dennis Cowdroy found in February that the ISP was not liable
>  for the downloading activities of its customers.
>
>  Now that finding is being appealed against, the outcome of the case
>  will take on much wider significance, say industry watchers.

[pedants-hat-on: "is being appealed against" is an awful construct. 
'against' is unnecessary o.O :p]

>  Peter Coroneos chief executive of the Internet Industry Association
>  said that, although the treaty would come too late to influence the
>  outcome of the iiNet case, it could affect the outcome of cases
>  launched by the film industry in the future.
 >
>  He added that if the conditions proposed in the leaked draft treaty
>  prevailed, then the outcome of the iiNet case would be likely to have
>  a significant influence on future Australian piracy cases.
>
>  "Company obligations would be defined by the outcome of this case and
>  the subsequent appeal, but the treaty will have more weight in
>  setting up a de facto global standard," he said.
>
>  Steve Dalby, chief regulatory officer for iiNet said he had
>  previously received assurances that the new treaty would not imbue
>  ISPs with responsibility for policing the actions of their users with
>  a three- strikes policy.
>
>  "This is really a conversation that has being going on around the
>  world in a variety of jurisdictions ... but there is no fine detail
>  about how it all might work ... we've said it just isn't going to
>  work."

Indeed. And one that could stand broader discussion and exposure in 
Australia - especially outside industry media.

There are a lot of misunderstandings about what 'copyright' is and is 
not, how it works, and for whom - and why.

>  The Australian Federation Against Copyright Theft (AFACT), which
>  launched the court action against iiNet, did not want to comment
>  specifically on the leaked document, but a spokesperson said: "AFACT
>  has always maintained that ISPs have a responsibility to prevent
>  online copyright theft. With the opportunity to carry content comes a
>  responsibility to protect it. ISPs have a duty to ensure that their
>  profits do not come at the expense of the rights of the creative

This assertion is the raison d'etre for AFACT: to lobby for, and pursue, 
this kind of change to our copyright laws and practices.

-- 
Steven