The Case for Copyright Reform (4 page)

This is where the Internet blocking issue stands in January, 2012.

When Commissioner Cecilia Malmström introduced her proposal to block
child abuse pictures in 2010, she insisted in public that this was about child
abuse images only, and not the beginning of a slippery slope towards general
Internet censorship. In a
keynote
speech at a conference on May 6, 2010
, she said:

”[T]he Commission’s proposal is about child
abuse images, no more no less. The Commission has absolutely no plans to
propose blocking of other types of content – and I would personally very
strongly oppose any such idea.”

Unless Ms. Malmström was actively lying at the time, it appears that she
had not been briefed about quite the full net blocking agenda by her colleagues
at the Commission, when she was given the task of introducing Internet
censorship in EU legislation. To block sites for alleged copyright violations
has been the goal of the copyright lobby all the time.

Shutting People Off The Internet

“Three strikes and you’re out”
is an expression that originates in baseball, and
which American politicians have turned into a legal principle. In the context
of Internet policy, “three-strikes” means that anyone accused of illegal file
sharing three times by the rights holders is shut off from the Internet.
“Graduated response” is another piece of jargon that is sometimes used and
means the same thing.

In France there is the
Hadopi law
,
where Internet service providers are required to shut down the connection for
Internet users after they have received two warnings that a copyright holder
suspects them of file sharing. In the UK, the
Digital
Economy Act
says essentially the same. Italy, not wanting to be
outdone in this race to the bottom, has proposed a
“one-strike”
law
, where a single accusation of copyright infringement would be
enough to have anyone banned from the Internet.

In essence, these laws leave it to the major film and record companies
to act as judge and jury and point out individuals that they suspect of of file
sharing, and then force the Internet service providers to execute the
punishment by unplugging the connection.

Leaving aside for the moment the question of whether it is a good idea
to let private companies take over the job of the legal system, how reasonable
is shutting people off the Internet in the first place?

Let’s consider what being disconnected actually means:

• A ban on studying.
Most
forms of education, in particular higher education, take Internet connectivity
for granted. If you are a student, you will need Internet access for everything
from practical things like finding out the schedule or turning in reports, to
finding facts about the subject matter you are studying. Studies show that a
majority of all students are file sharing. Should we cut off a majority of all
students from their courses, or should we settle for making an example out of
maybe 5-10% of them? What do the film and record companies think is a
reasonable sacrifice to make?

• A ban on running a business.
If you own a company, you are entirely dependent on the Internet today,
no matter what line of business you’re in. Contacting customers, updating your
homepage, ordering supplies, answering e-mail – maybe you’re selling
goods via the Internet. Is it reasonable that the family business will go
bankrupt because the fourteen-year old daughter in the family downloaded some
pop music? Cutting off the Internet connection does not only punish the guilty
party, but everyone in the household.

• A ban on talking to friends.
Especially younger people keep in touch via the net. It’s not strange
or unusual to have best friends that you have never met, that you only
socialize with using the Internet. This was not the case when most politicians
were young, but the world has changed. To suddenly be thrown into solitary
confinement is a very intrusive punishment, normally reserved for the most
hardened and dangerous of criminals in prison.

• Loss of citizen’s rights.
If you wish to partake in public debate, you need access to the
Internet today. Not only to keep up with the current issues, but also to be
able to make your voice heard, be it via your own blog, commenting on others’,
Tweeting, organizing or joining Facebook groups and events.

“If you children are naughty, we’ll take
your toy away from you,”
is in effect what the
politicians making these laws are saying to their citizens. But citizens are
not children, and have no reason to listen to that kind of arrogant attitude
from their elected representatives.

And the Internet is not a toy. It is an important part of society, and a
piece of infrastructure that everyone needs access to in order to function in
today’s world. Politicians who fail to acknowledge this should not be surprised
if the younger generation of voters finds them irrelevant.

Proportionality

In 2007, single US mother
Jammie Thomas
became a global file sharing martyr
after she had been sued by a
record company for 3.6 million dollars in damages. Her alleged crime was to
have shared 24 songs on Kazaa (which used to be one of the most popular early
file sharing services in the beginning of the ‘00s). The court convicted her,
but reduced the damages to $222,000. In Ms. Thomas’ case, that still amounted
to more than five times her yearly income.

In the almost five years that have passed since the original verdict,
the case has been appealed and re-appealed, and is still ongoing in January
2012. The damages have been going up and down in the various trials, from a
whopping $1,920,000 in a re-trial in 2009, to $54,000 after a decision by a
judge in 2011. The record company has declared that is not satisfied with this
decision, and that it will be seeking to have the damages raised again.

But whether it’s $2,000,000 or “merely” $50,000, this is clearly
disproportionate for file sharing 24 songs. No matter how many songs you or
your family members may have listened to without paying, you should not even
have to think about the risk that you might be forced to sell your house or
your car, or continue paying damages to record company for the rest of your
life. That simply isn’t proportionate.

In this case, it is not the money that the record company is after. They
know Ms. Thomas doesn’t have any, and yet they are said to have spent
$3,000,000 on litigating the case so far. They want to set an example, to scare
the general public into submission.

In the offline world, there is a long established principle of
proportionality, which is one of the cornerstones of a just legal system. But
the big rights holders have managed to persuade the legal system that this
principle should not be applied to petty crimes and misdemeanors occurring
online.

When it comes to copyright enforcement on the Internet, justice is blind
– with rage. And unfortunately, this applies not only to US courts, but
to European ones as well.

In Sweden in 2011, courts started handing out prison sentences to
ordinary file sharers that had been unlucky enough to get caught by the rights
holders’ organizations. So far, it has only been a handful of cases, and in
each of them the victim of the prosecution got the sentence suspended (since,
being ordinary citizens picked more or less at random, none of them had a
previous criminal record). But even so, from a legal point of view, the courts
found that they had committed a crime that was grave enough to merit prison.

Is this really what we want in our society? There was a time when you
could be sure that the headline “Sentenced to prison for listening to music
illegally” would refer to a country like Cuba, the Soviet Union, or Chile under
general Pinochet. Totalitarian regimes have always had the habit of putting
people in prison for listening to music illegally, in order to protect the
state against unwanted political influences.

But now we are seeing that headline being used to report court cases in
what ought to be respectable EU member states, like Sweden. The purpose this
time is not to protect the state against dangerous political thoughts, but to
protect the entertainment industry against having to adapt to technological
progress. But the sentences are the same: Prison for illegal music listening.
Do we really think that this is proportionate, and represents the right way
forward?

In 2008, a Danish man was
sentenced to
pay 160,000 Danish kroner
(21,000 euro) for allegedly having shared
13,000 songs on a Direct Connect network in 2005. The verdict was later
reduced by
the Danish Supreme court
in 2011, after 6 years of legal battles,
but the first two courts that handled the case both thought that 20,000 euro
was a perfectly reasonable punishment for an ordinary file sharer that happened
to get picked as a scapegoat by the entertainment industry lawyers.

To put this in perspective, 13,000 songs is not very much by today’s
standards. 30 years ago, you would have needed a whole room full of LP records
to have 13,000 songs, but today they will easily fit on a 64 GB USB stick in
your pocket, which can be copied in minutes. Technology has changed the way
that people think about and handle recorded music, especially for the younger
generation. It is probably hard to find a Danish teenager who has not
downloaded or shared a lot more than that.

Does this make it reasonable that all Danish families with teenagers
should live under the threat of having to fork up 20,000 euro if an
entertainment industry lawyer comes knocking at the door? Is listening to pop
music illegally really as bad as stealing a 20,000 euro car and destroying it?

Today, courts in Europe haves a lot of discretion when deciding how much
convicted file sharers have to pay in damages. This is why the Supreme Court
could reduce the damages in the Danish case. But this may change if the
European Parliament gives its consent to ratifying the controversial
Anti-Counterfeiting Trade Agreement, ACTA.

Although the name of this treaty suggests that ACTA would be about
commercial goods counterfeiting (which everybody, even the Pirate Party, agrees
is a bad thing that should continue to be illegal), the implications of ACTA
are much wider than that. In particular, ACTA aims to sharpen the enforcement
of copyright on the Internet, in an attempt at combating file sharing.

According to ACTA, the damages for illegal file sharing will be higher,
in some cases absurdly high.

In Article 9.1 of
the ACTA
agreement
, it says that

… In determining the
amount of damages
for infringement of intellectual property rights,
a [signing country’s] judicial authorities shall have the authority to
consider, inter alia, any legitimate measure of value the right holder submits,
which may include lost profits, the value of the infringed goods or services
measured by
the market price, or
the suggested retail price
.

(emphasis added)

In other words: To calculate the damages for having a disk full of
illegally copied songs, you would multiply the number of songs with the
suggested retail price for a song. But although this may look pretty harmless
at first glance, it will lead to very drastic consequences in practice.

A two-terabyte disk can hold roughly half a million songs. If you
calculate that at the market price of 1 euro per song, the damages for having a
2 TB disk full of music would be half a million euro.

Would that be proportionate or not? Remember that this is not an extreme
example, it is something that lots of teenagers do. Would it really be
proportionate that the family would have to sell their house and all their
possessions if they were found out?

Under current European laws, damages are (at least in principle) limited
to actual losses that the party that wins can show that he has actually
suffered. They have to be proportional. Not even the lawyers for a film or
record company would be able to convince a European court that they have
actually lost half a million euro in non-purchases from a teenager who has
never seen that kind of money in his life.