Forced negotiations and industry codes won’t stop illegal downloads

Attorney-General George Brandis and Communications Minister Malcolm Turnbull announced yesterday that they expect internet service providers (ISPs) to work with copyright owners to help police infringement.

ISPs will have to agree to a new industry code that passes on warning notices to their customers when copyright owners make allegations of infringement against them. They will also have to start handing over the personal details of subscribers who have several allegations against their name.

The government also plans to introduce an obligation for ISPs to block access to file sharing websites such as The Pirate Bay.

These announcements are better than the government’s last attempt to force ISPs to negotiate, which would have made a mess out of copyright law for everyone. But there are still real problems, and the measures will probably increase the cost of internet access for little, if any, benefit.

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Should social network platforms enforce human rights? IGF 2014 Dynamic Coalition on Platform Responsibility

At the 2014 Internet Governance Forum, the Dynamic Coalition on Platform Responsibility met to discuss the role of private intermediaries in enforcing social norms and law.

One of the most interesting points made by Rebecca McKinnon was that corporations have some (limited) responsibility to protect human rights (see further UN, ‘The Corporate Responsibility to Respect Human Rights’ (2012)).

The UN Guiding Principles on Business and Human Rights explain that

The responsibility to respect human rights is a global standard of expected conduct for all business enterprises wherever they operate. It exists independently of States’ abilities and/or willingness to fulfil their own human rights obligations, and does not diminish those obligations. And it exists over and above compliance with national laws and regulations protecting human rights.
Addressing adverse human rights impacts requires taking adequate measures for their prevention, mitigation and, where appropriate, remediation.

The obligation is pretty light, but it provides an interesting way to look at many current regulatory questions. Whether we’re talking about the ‘Right to be Forgotten‘ or responses to hate speech or revenge porn, it becomes very interesting to decouple the obligations of platforms from their potential liability.

The Dynamic Coalition is trying to work through some of these issues. The Coalition’s first steps will be to focus on the compatibility of platform Terms of Service with human rights standards, and evaluate the processes of due diligence that have emerged for enforcing those standards. The group expects to provide a preliminary report by the end of the year – you can get involved by joining the mailing list.

You can watch a video archive of the event below – or see the transcript here.

The game of clones and the Australia tax: divergent views about copyright business models and the willingness of Australian consumers to infringe

In a forthcoming issue of the UNSW Law Journal, Paula Dootson and I write about the effect of restrictive copyright licensing practices on the willingness of consumers to infringe copyright. This builds on Paula’s PhD work, and we present qualitative evidence to support the common intuition that the lack of access to legitimate content distribution channels increases the willingness of consumers to infringe copyright. But surpisingly, consumers do want to pay for access at a fair price if they can, and they’ll go to significant lengths to do it (like setting up a VPN to access netflix or itunes from another region).

We’ve made a pre-publication draft of the article available.
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Intermediary liability: two submissions to AGD Online Copyright Infringement consultation

We’ve just lodged two submissions to the Attorney-General’s Department consultation on Online Copyright Infringement.

The first submission is from the QUT IP & Innovation Law research group. This submission gives a good overview of a few important points:

  • Copyright infringement in Australia at the moment should be thought of as predominantly a market problem, and we should look for market solutions.

  • Graduated response schemes are unlikely to be effective, but they pose serious risks for due process and the rule of law.

  • The proposed changes would create serious uncertainty in authorisation liability, while at the same time probably won’t actually achieve the Government’s goal.

  • There’s no evidence that website blocking is likely to be effective.

The second submission is on behalf of Creative Commons Australia and the Organization for Transformative Works. This one focuses on the proposal’s likely chilling effects on free expression and the flow of knowledge and culture.

I should also say how incredibly proud I am of QUT IP law students in putting the first submission together. They worked really hard over the short review period and produced a really good piece of work.

Brandis’ leaked anti-piracy proposal is unrealistic

Originally posted on The Conversation by Nicolas Suzor and Alex Button-Sloan.

The Australian Government has proposed Internet Service Providers (ISPs) should monitor and punish Australians who download and infringe copyright.

In a discussion paper circulated by Attorney-General George Brandis, and leaked by Crikey last Friday, the government proposes a sweeping change to Australian copyright law that would force ISPs to take steps to prevent Australians from infringing copyright.

What these steps might be is very vague. They could include blocking peer-to-peer traffic, slowing down internet connections, passing on warnings from industry groups, and handing over subscriber details to copyright owners.

The move comes in response to claims that Australians are among the biggest downloaders of films and television series. Under intense pressure from Hollywood and Foxtel, the government wants to do something to combat copyright infringement.
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KAFTA copyright language hints at overturning iiNet decision, is wholly unsupported by evidence

Kim Weatherall has an excellent analysis of the proposed IP chapter of the Korea – Australia Free Trade Agreement. You should go read it now.

One of the most concerning things is that the agreement would require Australia to give

An unclear, potentially extensive undertaking to ‘provide measures’ to ‘curtail’ ‘repeated copyright infringement on the Internet’ (note – not copyright piracy; not copyright infringement causing substantial prejudice to copyright owners – but any repeated infringement);

This type of wording hints at an obligation to legislatively overturn the iiNet case, or to introduce something like graduated response (three-strikes) or website blocking. As Kim points out, the provision wouldn’t actually require this, but including the language has strong rhetorical force.

Let’s not mince words; this is just stupid. We don’t have the evidence that stronger copyright laws are required, we don’t have evidence that graduated response works, but it is problematic for due process, and there is absolutely no reason, if it is required, that we should entrench these kind of obligations in bilateral trade agreements, where we can’t easily modify them. This isn’t evidence-based policy; it’s abdicating our legislative responsibility to serve the interests of foreign rightsholders. It really makes no sense.

The Marrakesh Treaty could bring the world’s books to the blind

Originally published in The Conversation by Nicolas Suzor and Suzannah Wood.

An estimated 285 million people worldwide are visually impaired. Some 90% of those live in developing nations, where less than 1% of the world’s books are available in a form they can read.

In developed countries, the situation is only marginally better: only around 7% of the world’s books are accessible to print-disabled people.

The right to read is part of our basic human rights. Access to the written word is crucial to allow people to fully participate in society. It’s important for education, political involvement, success in the workplace, scientific progress and, not least, creative play and leisure. Equal access to books and other cultural goods is also required by international law.

The technology now exists to deliver books in accessible electronic forms to people much more cheaply than printing and shipping bulky braille copies or books on tape. Electronic books can be read with screen readers and refreshable braille devices, or printed into large print or braille if needed.

Now that we have this technology, what’s been referred to as the global “book famine” is a preventable tragedy.

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Borrowing a Stairway to Heaven: did Led Zeppelin rip off a riff?

Originally posted in The Conversation by Nicolas Suzor and Eleanor Angel.

More than 40 years after the release of Stairway to Heaven, English rock band Led Zeppelin are facing allegations that its iconic guitar riff was stolen from Taurus, a song released in 1968 by the American rock band Spirit.

The two riffs are clearly similar: they share a four-bar instrumental guitar passage with similar harmony, tempo and stylistic features. Businessweek has created a short game where you can test your skill at telling the two apart.

But is this enough for Spirit to demand a share of the credit – and the royalties?

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Free-riding, cooperation, and ‘peaceful revolutions’ in copyright (post-print draft)

I have a new article in press with the Harvard Journal of Law & Technology. I’m interested in comments on the post-print draft. Abstract:

Modern copyright law is based on the inescapable assumption that users, given the choice, will free-ride rather than pay for access. In fact, many consumers of cultural works – music, books, films, games, and other works – fundamentally want to support their production. It turns out that humans are motivated to support cultural production not only by extrinsic incentives, but also by social norms of fairness and reciprocity. This article explains how producers across the creative industries have used this insight to develop increasingly sophisticated business models that rely on voluntary payments (including pay-what-you-want schemes) to fund their costs of production.

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Baidu’s perfect paradox: free speech and the right to censor

Originally posted on The Conversation, by Suzannah Wood and Nic Suzor.

According to a US court, ‘free speech’ means internet search engines can choose what they allow to show up and filter out.
Brian J. Matis/Flickr, CC BY-NC-SA

China’s biggest search engine has a constitutional right to filter its search results, a US court found last month. But that’s just the start of the story.

Eight New York-based pro-democracy activists sued Baidu Inc in 2011, seeking damages because Baidu prevents their work from showing up in search results. Baidu follows Chinese law that requires it to censor politically sensitive results.

But in what the plaintiffs’ lawyer has dubbed a “perfect paradox”, US District Judge Jesse Furman has dismissed the challenge, explaining that to hold Baidu liable for its decisions to censor pro-democracy content would itself infringe the right to free speech.

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