Online Piracy legislation: Wikipedia to go on strike over SOPA

The discussion of the US Stop Online Piracy Act (SOPA) has been causing plenty of noise online.  Wikipedia is planning a strike this week – for 24 hours they are going to pull the plug on their site.  This will no doubt grab the attention of their estimated 25million daily visitors!

Jimmy Wales, founder of Wikipedia has (according to the Guardian):

  “been a persistent critic of Sopa, calling it “the worst internet legislation I have ever seen.””

This is one of many voices against the proposed legislation.  Last year the BBC reported:

“The founders of Google, Twitter and eBay have signed a strongly worded letter criticising controversial US legislation ahead of a debate in Congress… Sopa was introduced by Judiciary Committee chairman Lamar Smith, a Texas Republican, who said the legislation was designed to “stop the flow of revenue to rogue websites… that profit from selling pirated goods without any legal consequences”.”

Yesterday however, The Guardian reported that:

“Congress ready to drop Sopa vote after White House says it would not support legislation that threatens openness of internet”

Again from the Guardian:

“…while Sopa now looks severely damaged, Protect IP is still up for a vote on 24 January and there is widespread support among politicians for tighter control of the internet”

Of course there is support for this legislation.  Whilst it seems the voices against have been most successful in capturing media headlines, there are also compelling arguments in support of legislation (see video below).

What is clear is that striking a balance between infringement and fair use is very difficult to legislate for….  Fair Use is a concept that we often rely on in our work so it’s worth taking the time to exploring the wider issues.

Final comment from the Guardian:

…So far, the Sopa battle has been largely fought out in the tech, media, and business pages. All that could change Wednesday when Wikipedia goes dark.”

Read the official legal docs

Some background Q&As

IPR systems around the world; report from the Office of the United States Trade Representative (USTR)

I first saw this item via the AgIP news agency.  It’s aggregated from the Office of the United States Trade Representative: “USTR Releases Annual Special 301 Report on Intellectual Property Rights”

The annual report looks into how well trading partners protect IPRs.  To compile the report the US Trade Representative office reviewed 77 trading partners.  Of particular interest view the following section online:

SECTION I. DEVELOPMENTS IN INTELLECTUAL PROPERTY RIGHTS PROTECTION AND ENFORCEMENT

It includes details of action plans and initiatives that the US govt is undertaking in order to strengthen IPR regimes in countries they trade with, including capacity building efforts.

New Fashion Law Institute

Further to Francesca’s Re Manning’s post on September 1st “the changing styles of intellectual property“, Kai Ryssdal of NPR’s Marketplace interviewed Susan Scafidi, the director of Fordham University’s new Fashion Law Institute. 

You can read or listen to the short interview at: http://marketplace.publicradio.org/display/web/2010/09/13/pm-confronting-piracy-in-the-world-of-fashion/

And visit the Institute’s web site at: http://law.fordham.edu/fashion-law-institute/fashionlaw.htm

Working in partnership with CFDA (Council of Fashion Designers of America, the key sponsor) the Institute will provide Fordham Law students with opportunities to become leaders in this emerging field. Students will develop skills in diverse areas of the law that affect the fashion industry, including intellectual property, business and finance, international trade and government regulation, and consumer culture and civil rights.

When asked about copyright, Scafidi commented:

You cannot copyright a fashion design in the United States at this point. However, I have been very involved working on legislation* that would permit copyrighting of fashion designs, or rather a very, very short-term form of copyrighting — a three-year copyright. A good fashion lawyer needs to know the basics of the intellectual property system, but also get creative and borrow from areas of intellectual property law that might apply. We’re talking about the trademarks that protect labels and logos, for example. So it’s about getting creative with the lot out there and learning to apply it to the special needs of the fashion industry…..

And finished with:

….So fashion law is catching up with how the culture is starting to perceive fashion.

Scafidi comes across as someone who has learned how to “connect the dots”, and we can expect to see some innovation in this sector where, traditionally, the pirates have ruled. 

* Shumer’s, no doubt.

Post written by Peter Bloch, consultant to CAS-IP

Copyright laws: pirates pushing for reform

Some of our readers may remember the Pirate Bay saga and the attempts of various government to control the material displayed by Internet Service Providers (ISP). For those of you who don’t, please refer to our blogs of 30 April, 20 May, 1 June, and 12 June 2009.

The Swedish Pirate Party (Pirat Partiet), which is pressing for reforming copyright law in a way that suits customers in a practical way (taking an entirely fresh approach, not dissimilar to what we suggested in our  Copyright 2010, albeit with somewhat different conclusions!), is planning to assist Pirate Bay by launching its own ISP, which would offer customers a series of broadband services in full respect of privacy. Details are in the link at the bottom of the article.

The issue of how to deal with uncooperative ISPs – either in Europe or further afield – has already been exercising the minds of Europe’s politicians. The European Commission tried and failed to have a measure introduced into the EU’s 5-year security plan last year (the “Stockholm Programme”), but did succeed in persuading the EU Council of Ministers in April to adopt a policy statement earlier this year which foresees the destruction of entire ISPs and web resources deemed to be behaving illegally, through “the revocation of Domain Names and IP addresses”. Interestingly, the USA has already managed to make an entirely legitimate European company disappear from the web using a similar strategy, without attracting much publicity or protest. This incident also did not seem to persuade EU politicians of the dangers of such an approach

It is also interesting that the European Parliament reacted very quickly to the Council proposal mentioned above. Only a few weeks after the Council adopted its text, the Parliament passed a Resolution stating that it:

 “considers that, in addition to the governance principles set out by the Commission, governments should also implement the following principles: protection of the integrity of the global internet and freedom of communication by avoiding any regional measures, such as revocation of IP addresses or domain names in third countries.”

 Joe McNamee, Advisor of European Digital Rights, says:

 “the Pirate ISP will probably lead European politicians to the next stage in the game of digital whack-a-mole approach where legislators find disproportionate ways of “solving” particular symptoms of the general copyright malaise. Their policies have always failed miserably (by treating the symptom and not the cause) and always leave us with a whole new range of damaging unintended consequences”.

Launch of ISP: http://www.readwriteweb.com/archives/swedens_pirate_party_launches_its_own_isp.php

Council Conclusions: http://www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/jha/114028.pdf

European Parliament resolution: http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2010-0208

US destruction of European websites: http://www.nytimes.com/2008/03/04/us/04bar.html?_r=1&scp=1&sq=enom&st=nyt

EDRi article on online censorship: http://www.edri.org/edrigram/number8.9/Cecilia-Malmstrom-censorship

Many thanks Joe for your contribution to this post!

Post written by Francesca Re         Manning of CAS-IP

Three strikes strikes back

As readers may remember from the blog that Kay Chapman posted on 26 June 2009, the French government initally failed to implement a system whereby internet users repeatedly accused by private companies (and/or individual copyright owners) of breaching copyright would be disconnected and blacklisted by the Internet Service Providers (“ISP”). However, Lord Mandelson, UK First Secretary of State, is strongly campaigning to pass a law which gives the government the power to disconnect internet users who continue to allegedly infringe copyright after a number of warnings.

This would mean that alleged infringers would not have the right to prove the contrary and present their case in court. But if this was considered unconstitutional in France, will it not be unconstitutional in the UK? Or would not having a written constitution give the government some legitimacy?! Further, it seems unlikely that the law will contribute to decreasing the percentage of infringers, as the savvy ones will simply turn to encryption. Isn’t the concern of enforcers that the use of encryption will make their job so difficult that the UK government will reconsider the proposed law?

Joe McNamee, Advocacy Coordinator at European Digital Rights commented:

“perhaps the most fascinating aspect of the whole campaign is the “analysis and evidence” aspect, with regard to the costs and expected benefits of the measures.”

According to the Digital Britain report, the cost for ISPs (to be borne ultimately by consumers, obviously) is set at a total of 290-500 million pounds while the unjustified and unexplained “benefit” (the profit, if the figures are correct, going to record labels) of 1700 million is plucked from the air and contradicts credible and recent research that file sharing as either no impact, or is even provides a positive benefit to the music industry (http://www.news.harvard.edu/gazette/2004/04.15/09-filesharing.html, https://casipblog.wordpress.com/2009/04/27/copyright-enforcement-new-challenges-for-new-markets%E2%80%A6).

Its doubtful that the current UK government will be able to pass the law before the next election, after which Gordon Brown’s and his party face an uncertain future…so watch this space. The silence of the Tories on this issue, however, has been deafening.

Looking at the impact on developing countries, where there are already issues about set rules and enforcement, would Ghana (where piracy is a major concern), for example, be able to overcome such obstacles and build an efficient music industry? If, however, copyright laws were re-thought and seriously adapted to the new era, perhaps it could serve everyone’s interests, including the authors and the users.

Post written by Francesca Re Manning, consultant to CAS-IP

Piracy for development?

 The Washington Post.com: Piracy worked for us, Romania president tells Gates 

According to the Washington Post, Romanian President Traian Basescu recently told Bill Gates:

“Piracy helped the young generation discover computers. It set off the development of the IT industry in Romania,”

No doubt it wasn’t the first time “piracy” has boosted an industry, and certainly won’t be the last.  Piracy can, at least in some cases, be in the eye of the beholder.

Bill Gates unsurprisingly made no comment… 

Thanks to Sebastian Derwisch, consultant to CAS-IP for sending me the link.

Copyright enforcement v constitutional rights

http://www.theregister.co.uk/2009/06/10/france_three_strikes_hadopi_suspended/
There has been an interesting development in France’s attempt to reduce illegal downloading of copyrighted materials.  The idea was to implement a “three strikes and you are out” rule, the penalty being suspension of internet connection to those repeatedly infringing copyright through illegal downloads. 

According to the Register,

“Judges deemed that two parts of the legislation …contravened two major areas of the 1789 Declaration of the Rights of Man and Citizen”.

They go on to report however that:

“the French Government would resubmit the law to Parliament, taking account of the Court’s objections”

France isn’t the first country to try (and so far fail) and implement such a system.  ZeroPaid.com reports similar stories from both Spain,  and New Zealand.

Seems the possibility that such measures could help reduce internet piracy by up to 70% are just too tempting despite the controversy? (see reference to the “Digital Britain Report”  again on ZeroPaid.com)