We were just discussing the vast similarities between China's internet censorship and what is being proposed in ACTA -- but, of course, not everyone seems to realize those similarities.
Nick Dynice points us to the news that Rep. Howard Berman (who represents Hollywood and is sometimes referred to as "the Representative from Disney" given his longstanding support for any law that increases the scope of copyright law) is apparently speaking out against "repressive internet regimes" such as those in China, while at the very same time being a strong supporter of ACTA which could push for very similar "secondary liability" rules for ISPs in the US that are the foundation of Chinese internet censorship.
So, apparently, using secondary liability to stop stuff Berman wants stopped is good, but using it to stop stuff Berman doesn't want stopped is bad. But why is it that Howard Berman gets to decide when it's appropriate to force ISPs to block content and when it's not?
The EFF points us to a story claiming that the Blu-ray edition of the movie Avatar is being released earlier than the studio would like due to France's three strikes law. The article claims that, while most folks have concentrated on the three strikes part, the law also requires limited release windows, such that studios need to release films on DVD within a certain time period after theatrical release. I certainly had not heard this, and some challenged the claim in the comments, but the original blogger points to the specific language in the statute. While some others point out that the window for release is pretty large (longer than pretty much every other movie ever uses), it makes you wonder why France is legislating this at all. I'm all for shorter movie release windows -- and think studios should get rid of the windows for the most part -- but I can't fathom how it could make sense to mandate a specific time for release windows in the law.
Well, well, well. A few days ago, News.com had a story that got a lot of attention saying that Verizon was kicking users off of its service after it had received accusations of file sharing. At the time, we wondered if this was a misstatement by a Verizon spokesperson, and in an update, Verizon insisted that News.com had misquoted its spokesperson, and it had not kicked anyone off. And yet, lots of folks are still reporting that Verizon is kicking users off for file sharing. And, now, News.com has come back and stands by its original story.
Reading through the details, what it appears to have happened was that a Verizon person misspoke, and News.com accurately reported the misstatement (suggesting that users had been kicked off). Verizon is still claiming it "reserves the right" to kick users off, but has not actually done so. Hopefully it realizes that doing so based solely on accusation is a huge mistake and one over which it would almost certainly face serious backlash.
It's that time of the year when the IFPI comes out with its annual fear-mongering report, and this year's has really gone overboard into the ridiculous. The basics are pretty much what you'd expect ("piracy bad! industry dying! governments must break everything to protect us!"). However, the details are just downright laughable. The entire report seems premised on the idea that direct music sales is the only thing that really matters (a blatant confusion about the difference between the recording industry (which the IFPI represents) and the music industry (which the IFPI pretends to represent). You can read the entire report below, but we'll go through some of the lowlights:
In the intro, after bemoaning the losses in sales (but totally ignoring the massive increases in every other aspect of the music business), it claims that the tide is turning on the public's perception of unauthorized access to content. Proof? Rupert Murdoch's attack on Google and Microsoft's ridiculous decision to kick people off Xbox live if they made use of a glitch.
You hear it around the world: this is no longer just a problem for music, it is a problem for the creative industries: affecting film, TV, books and games. In this arena, the music industry is the pathfinder of the creative industries, pioneering with new offerings for the consumer. In 2009, Rupert Murdoch said that the content kleptomaniacs should not triumph and Microsoft spoke out against piracy, ready to ban players from Xbox live if they had modified their consoles to play pirated discs -- no three strikes procedure needed!
Of course, both are incredibly poor example choices. Murdoch wasn't actually complaining about "thieves." He was complaining about Google sending him traffic without paying. That's hardly the sort of issue the recording industry faces. And Microsoft was banning people not just for modifying their legally purchased hardware, but for using glitches made by software programmers. Again, an exceptionally different situation. You would think that IFPI could come up with something more compelling.
Then, amusingly, the IFPI mentions the Lily Allen saga with an amazing rewrite of history:
It was, until recently, rare for artists to engage in a public debate about piracy or admit it damages them. In September 2009, the mood changed. Lily Allen spoke out about the impact of illegal file-sharing on young artists' careers. When she was attacked by an abusive online mob, others came to her support.
First, that's not even close to true. Artists have spoken out about those issues for years (Lars Ulrich, anyone?). And Allen wasn't "attacked by an abusive online mob." Lots of people who actually understand these issues pointed out that while she was complaining about file sharing, she and her label (EMI) were distributing dozens of songs on her website in a totally unauthorized manner.
Throughout the report, the IFPI makes the false claim that it's representing "the music industry" and falsely describes "the music industry's revenue" as being limited to sales of music. As an example:
In 2009, for the first time ever, more than a quarter of the recorded music industry's global revenues (27%) came from digital channels -- a market worth an estimated US$4.2 billion in trade value, up 12 per cent on 2008.
But, of course, that's wrong. It is not the music industry's revenue. It's the recording industry. Similarly, the report only focuses on new ways to sell music when it discusses "new business models" and only briefly mentions efforts to connect with fans, suggesting (laughably) that Warner Music has been the leader here, rather than a distant follower. As such, it should be no surprise that the report continually ignores the fact that the music industry has actually been growing (and that's based on a study from the music industry itself). This report is like the makers of horse carriages insisting that the transportation market is dying, because they're selling fewer horse carraiges as automobile sales ramp up.
The report particularly singles out Spain -- which is no surprise, given that the Spanish courts have recognized that personal copying isn't a crime and taking away broadband access for copyright infringement makes no sense. The report moans and complains about how the Spanish music market is dying -- but again, only focuses on albums sales (as an aside, amusingly enough, I purchased a bunch of albums from Spain this year).
From there, the report goes on and on at length about how file sharing is killing music (despite the evidence to the contrary) and how the only solution is for governments to force ISPs to play copyright cop. It conveniently brushes off all the evidence to the contrary, and ignores the statistics showing a massive increase in new music hitting the market.
The report also tries to rope in other industries to show the "harm" caused by unauthorized file sharing:
Case studies around blockbuster movies show how top films now suffer from the same digital piracy problems as popular albums. Pre-release copies of Wolverine were downloaded 100,000 times in 24 hours after a leak in April 2009. In 2008, seven million copies of Batman: Dark Knight were downloaded on BitTorrent. This has a ripple effect across the industry, on investment and jobs. In the US alone, the film and television industries are estimated to employ 2.5 million people, according to MPA.
Unfortunately, neither "case study" supports the claim by the IFPI of "harm". Dark Knight was the highest earning movie of 2008 despite widespread file sharing, and a study comparing the box office results of Wolverine with other similar movies suggests that the pre-release downloads may have actually helped it at the box office. The only other "proof" is a quote from a filmmaker insisting that file sharing is taking away revenue. Bold claims in a year when Hollywood had its biggest box office take ever.
Of course, it goes on to say that Hollywood is losing jobs due to this, even though Hollywood's own studies show that job growth is expected over the next decade, as alternative models come into play.
The section on kicking people offline after accusations (not convictions) of file sharing is particularly amusing. Of course, the IFPI tries to redefine it as "graduated response." It cites numerous surveys that say people would stop file sharing under such a program, but reality seems to trump what people say they would do. And, nowhere has anyone explained why the threat of kicking people offline will actually cause anyone to buy. We already know it won't -- because today's threat of millions of dollars in fines hasn't slowed down file sharing in the slightest, despite being a much more significant punishment than losing your internet connection.
From there, it talks about the various successes the industry has had in ramming through legislation to kick people off the internet, ignoring the questions about the constitutionality of those programs in places like France where the law has been delayed over concerns it violates EU data privacy rules, or the massive protests against such backroom deals in places like New Zealand. Instead, the report falsely suggests there's widespread support for these programs. The report also falsely claims that ISPs in the US have agreed to private deals to kick people offline. While there was a brief claim yesterday that Verizon had made such a deal, the company quickly denied that and admitted that it had not kicked anyone offline. Oh, and not surprisingly, the report fails to note that the French agency put in place to administer its law, Hadopi, was caught infringing on copyrights in its own logo -- showing just how ridiculous a blanket policy is for dealing with these issues.
The report then has a whole section on the "success" story of South Korea, which is a joke. South Korea had a thriving music industry entirely without these kinds of laws, because smart music industry execs, like JY Park, have embraced new business models and basically admitted that selling CDs or downloads was a dead-end business. And while new laws in South Korea may have temporarily boosted music sales, the IFPI totally ignores the massive downsides to the laws that have resulted in various service providers blocking any music uploads or video uploads, seriously damaging the ability to create useful online services for users.
In the end, the report is really more of the same. It's the buggy makers pretending they represent the transportation business and demanding laws that block the development of automobiles in order to keep selling more buggies. But, of course, progress can only be blocked for so long, and it's about time that the IFPI entered the 21st century.
The UK's version of the RIAA, BPI, has been a very, very strong supporter of Peter Mandelson's Digital Economy Bill -- a position that has even some of its members resigning in disgust. In the past, BPI has also implied that ISPs already have some sort of legal obligation to stop file sharing and that they rely on unauthorized file sharing to fund their own business model. As the battle over the bill heated up, many ISPs pointed out that the cost of implementing the bill's requirements would be quite high. On top of that, the UK government did its own study and found that the costs were even higher than the ISPs estimated and the cost of implementing the bill would outstrip even the most ridiculous of BPI's estimates of "losses" from file sharing.
Of course, BPI can't accept those numbers, so its commissioned its own study which (of course!) claims that the cost to ISPs would be tiny. Hell, they'd barely be noticeable at all.
Well, if BPI is so sure of this, how about it steps up and puts some money behind that claim. I would imagine that ISPs would feel a bit more comfortable about supporting the Digital Economy Bill if BPI promised to pay any of the fees above and beyond what its own estimates are for implementing the plan. According to BPI's analysis, it would cost ISPs all of £13.85 million ($22.5 million) in the first year, £9 million ($14.6 million) in the second year and just £3.45 million ($5.6 million) in the last year. Hell, if it's such a small cost, how about BPI pays for the whole thing. Only fair, right? After all, the whole purpose behind the plan is to prop up BPI members' business models because they'd rather not adapt. Seems only right that they should pay for it.
This one seems odd. Verizon is among the few ISPs that has vehemently spoken out against RIAA demands that it kick file sharers offline. When the RIAA announced that it was cutting back on lawsuits to work with ISPs, Verizon was the first to loudly proclaim that it would not participate. And this wasn't a huge surprise, given that Verizon was actually the only major ISP to fight the RIAA, back when the RIAA simply demanded names of file sharers without a court order. And yet... according to a Verizon spokesperson, the company has now started kicking accused file sharers off of its network. It's no secret that Verizon had started to pass along RIAA letters, but actually cutting off users without any court order or any proof beyond an IP address is a huge and extremely dangerous step. I'm hoping that this Verizon spokesperson misspoke, because otherwise Verizon may be facing a pretty massive backlash. Update: Aaaaaaaaaaaaand, let the backtracking commence. Verizon is apparently now claiming (to Broadband Reports) that it was all an exaggeration and that Verizon only said that it "reserved the right" to kick users off:
I'm not aware that we've ever terminated anyone's account for excessive consumption, although we reserve the right to do so. Verizon has no bandwidth caps. That part of the CNET story is wrong. I did not say "we've cut people off." I said we reserve the right to do so.
Update 2: And, again, Broadband Reports comes through. It has a new update with Verizon now claiming that, no, it has never kicked anyone off its network for file sharing accusations. It might want to tell its spokespeople that for future reference.
When Peter Mandelson's Digital Economy Bill was first announced, many people were so shocked by the provision that would let Mandelson or his successor change copyright law at will, with no Parliamentary approval, that they started focusing on that, rather than the expected problem with the bill, like the fact that it could allow people to be kicked offline without a conviction. There has been a lot of pushback from some politicians in the UK and various amendments proposed to fix the bill. And now it looks like the gov't has agreed to make some changes to the infamous Section 17 provision.
Of course, the concessions appear to be rather minor, and my more cynical view is that they knew they were going to do this all along. The idea is simple. Introduce one section that's even more ridiculous and outrageous than the sections you really want passed, and then let all the complaints and press coverage focus on that more ridiculous section. Then, after people get all worked up about it, "concede" just a little bit, and notice that most people no longer have the energy to fight about the other provisions.
For many years we've questioned the logic of courts banning people from the internet for committing some sort of internet crime (mostly commonly sexual offenses online). Many courts have decided that it's ridiculous to ban people from the internet in an era when the internet has become so integral to our lives and our jobs. And, as more content and services move to being online only, it gets even sillier. If you're banned from the internet can you use a Kindle? What about a VoIP phone? It gets confusing fast. Luckily it looks like yet another court has thrown out an internet ban on a sex offender as draconian and a potential violation of the guy's free speech and association rights.
While there's been some split in the courts, it looks like many are starting to question such bans, given how ubiquitous the internet has become. And yet... just as this is happening, we have the entertainment industry pushing hard to kick people off the internet for a small number of accusations (not convictions) for file sharing. Seeing as the courts are already claiming that internet bans -- even for online sex offenders -- is too draconian, how can anyone justify an internet ban as being a fair and equitable "punishment" for being accused (not convicted) of sharing some music?
We've been highlighting how Nicolas Sarkozy -- who was the original strong supporter of "three strikes" proposals to kick people off the internet based on accusations (not convictions) -- and his political party have been caught time and time again infringing on the copyright of others. It looks like that's happening again in an even more embarrassing fashion. The organization that's been designated to deal with three strikes in France, Hadopi, unveiled a new logo... that used an unlicensed font, that had been created by France Telecom and had not been licensed for use by anyone else. Hadopi had to scramble and try to find a new font once called on this, and issued an "apology," but will it allow those accused of infringement online the right to "apologize" as well?
These may seem like minor issues, but they're actually quite instructive. The point is that due to the way copyright law is set up, people infringe unintentionally all the time. Even the biggest defenders of copyright do so. And that is the problem with any sort of system that punishes people for something as minor as three infringements -- and it's even worse when its three accusations of infringement, rather than actual convictions. It creates a massive liability for the way everyone -- even copyright defenders -- do things every day. But, of course, the big powerful folks -- the ones who passed and support this law -- can just apologize and ignore the consequences. Everyone else? Good luck.
While some are saying that France's "three strikes" law has been delayed until April due to data protection issues, others are reporting that the law is in effect as of January 1st, and people should start getting "warning" messages soon. That same article quotes a French senator who believes that 95% of people will "finish with that bad usage" after the second warning message they receive, but others figure what's more likely is that people will just move on to other ways of accessing files -- ways that can't easily be tracked. My guess is that like when Napster was shut down or with Sweden's IPRED law, there may be a temporary bounceback in sales, but as more people learn of ways to go back to accessing music for free in ways that are less likely to be caught, they will do so. Quickly. As much as the entertainment industry and some politicians have trouble comprehending this, you can't stop what technology allows.
