Techdirt Reading List: Piracy: The Intellectual Property Wars From Gutenberg To Gates

from the the-pirates-go-way-back dept

We're back again with another in our weekly reading list posts of books we think our community will find interesting and thought provoking. Once again, buying the book via the Amazon links in this story also helps support Techdirt.

This week, we've got a massive tome of a book in Piracy: The Intellectual Property Wars from Gutenberg to Gates by Adrian Johns. Weighing in at over 600 pages, this is a highly readable and entertaining look at the fact that the whole concept of "intellectual property piracy" (as much of a misleading term as that may be) didn't just start with the rise of the internet, but has been going back centuries.

This book really helps put into perspective the fights over the past few years, and shows how these battles concerning the freedom of information and knowledge go back pretty much since the dawn of the ability to create "content" in some fixed form. Even better, it also highlights how over and over and over again, what starts out as "piracy" actually turns out to be key innovations that drives the whole world of culture forward. It's the kind of perspective that is sorely needed -- but frequently lacking -- from debates over the topic. While I've been familiar with many historical examples of fights over "infringement," this book took my knowledge and understanding to new levels. It's packed with useful information.

Filed Under: adrian johns, history, intellectual property, piracy, reading list, techdirt reading list

BBC Blocks VPN Access To Its On-Demand Service, Even From UK

from the bad-for-everyone dept

The BBC is a rather odd organization. Unlike commercial broadcasters, or those given money directly by national governments, it is mainly funded by a public licensing fee that must be paid by anyone in the UK who watches or records TV programs in real time, using:

TVs, computers, mobile phones, games consoles, digital boxes and DVD/VHS recorders.

To justify the £145 (about $220) annual fee, the BBC takes the line that many of the programs available through its iPlayer service are only available to UK viewers. Of course, that's easy to circumvent using a VPN that allows those outside the UK to access content as if they were in the country. The BBC has finally woken up to this fact, and drawn exactly the wrong conclusion about what it should do, as TorrentFreak (TF) reports:

Over the past several days TF has received several reports from VPN users who can no longer access iPlayer from UK-based VPN servers.

"BBC iPlayer TV programmes are available to play in the UK only," is the notice they receive instead.

Instead of gracefully accepting the reality that geoblocking makes no sense in a world where VPNs allow users to appear to be more or less wherever they wish, the BBC has decided to try to block such access, including VPNs used by UK license-payers:

The BBC informs TF that the VPN ban was implemented to keep iPlayer 'pirates' at bay. The company is doing its best to keep company and school VPNs [in the UK] open but advises regular users to disconnect their VPN service in advance if they want to access iPlayer.

In our post-Snowden world, where the use of a VPN is becoming ever-more prudent, the BBC has just provided a strong disincentive for doing so in the UK. That's really shabby treatment for BBC license-payers, who ought to be allowed to access content in a secure manner. It's also bad news for everyone online, since the more widely VPNs are deployed, the less using one marks you out for special attention by government intelligence agencies. What the BBC should have done here is see the desire of people outside the UK to view its programs as a great opportunity to meet an evident need -- and to generate extra income.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: bbc, blocks, copyright, iplayer, licensing, piracy, security, uk, vpn
Companies: bbc

Our Response To The White House's Request For Comments On Its Intellectual Property Enforcement Strategy

from the be-careful-with-that-hammer dept

Last month, we noted that the new IP Enforcement Coordinator, Danny Marti, is now accepting comments for the administration's next "Joint Strategic Plan on Intellectual Property Enforcement" plan. While I know it's easy to roll your eyes at participating in these things, in years past we sent in comments and were pleasantly surprised to see the resulting plan actually take many of those comments into account, and turn out to be something that was mostly reasonable. We do have some concerns about Marti, given that the comments he's made to date seem to reflect a very... one-sided view of copyright enforcement. However, we're hopeful that he's open to evidence and reason. Below are the comments that we're submitting, much of which was based on the Carrot & Stick research report we released last week. If you'd like to submit your own comments, all the details are here. The deadline is today, October 16th.

Re: Comments on the Joint Strategic Plan

Daniel Marti
Intellectual Property Enforcement Coordinator
Office of Management and Budget
Executive Office of the President
Filed via email

Dear Mr. Marti:

I write to you today in response to your request for comments on the administration's next Joint Strategic Plan for Intellectual Property Enforcement. As both a long-time professional content creator myself, who relies on my content to make a living, as well as someone who studies innovation, works with startups and entrepreneurs on a regular basis, I have grave concerns that the focus on enforcement is too narrowly tailored, such that it may have a negative impact on the overall goals of nearly everyone involved. It is convenient to portray debates about enforcement as being one industry's views v. another, but the more you look, that's rarely the case. Instead, the problem is often that policy makers become too focused on the "enforcement" tool, without looking at the actual evidence of the impact.

Last week, the think tank I run, the Copia Institute, released a new report, entitled The Carrot or the Stick, which looked closely at the actual impact of increased enforcement on piracy around the globe. What we found in every country that we looked at was that ratcheting up enforcement efforts never seemed to show the intended effect. While they may have shown a brief decrease in piracy rates, that decrease was always temporary (often no more than a matter of months). However, when new and innovative services were introduced, the impact was much clearer and long-lasting. As an example, piracy rates for all kinds of content in Sweden were quite high, which might not be a surprise, given that the Pirate Bay started in Sweden. However, piracy rates for music dropped rapidly and permanently when another Swedish business was able to offer service: Spotify. Notably, while music piracy rates dropped massively, the same was not true for movies and television.

Sweden then passed its IPRED law, to ratchet up enforcement, with greater criminal penalties. While piracy rates did drop after IPRED went into effect, the impact was short lived and studies showed that piracy rates quickly returned to normal. Yet, well after that, Netflix entered the Swedish market, and, again, piracy rates dropped precipitously for movies and television.

While some have argued that the greater enforcement works hand in hand with such innovation, the evidence we looked at suggested that was not true at all. In most areas we looked, the rapid innovation cycles (indicated by a rapid increase in authorized services) pre-dated the increased enforcement efforts.

In short: greater enforcement did not decrease piracy rates, while innovation did.

Even worse, it appears that by focusing too much on enforcement, it can actively harm or slow down that very necessary innovation. The MPAA's Jack Valenti once famously declared that "the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." That was in the midst of the MPAA's heated legal and legislative battle to stop such home video machines. Yet just four years later, revenue to Hollywood from home video surpassed box office revenue. If Valenti had succeeded, things would have been worse off for the very industry he represented.

Time and time again, we've seen that a focus on enforcement often means trying to kill off necessary innovations. Innovations such as the radio, television, the MP3 player, TiVo and more have been sued in an attempt to "enforce" the law, when all that was really needed was for the industry to figure out ways to incorporate them into their business models. A decade ago Viacom sued YouTube for a billion dollars, claiming that it was a piracy site. Yet, just this week, Viacom's movie studio, Paramount Pictures, announced that it was releasing over 100 of its films for free on YouTube. Things change quickly.

Historically, the pattern is clear, however. When new innovations threaten old business models, the solution is not to reach for the hammer of "enforcement." It's to learn from what's happening, to understand what the public is seeking, and to innovate to provide it in a better way. Time and time again this strategy has worked, and it's important to be careful that if you focus solely on the ability to increase "enforcement" that you actually end up with a worse result: destroying the innovation that helps provide the very tools for creating, distributing, promoting and monetizing new content.

Your role and the focus of this report is on "enforcement," but it needs to be viewed in the wider context of "promoting the progress." Rather than falling for the easy story line of two industries at war with one another, it's time to recognize that the best "enforcement" is often in crafting policies that allow for more innovation, that enable more startups and more competition, rather than just looking at what things can be shut down or sued or seized.

Sincerely,

Michael Masnick
Copia Institute

Filed Under: carrot and stick, copyright, danny marti, enforcement, innovation, ip czar, ipec, joint strategic report, piracy

The Right Way To Stop Piracy

from the look-at-the-evidence dept

Read the new report from The Copia Institute,
The Carrot Or The Stick: Innovation vs. Anti-Piracy Enforcement »

Ever since the internet became a place where copyright infringement was rampant, we've seen the same basic playbook from the legacy entertainment industry: pass stricter anti-piracy laws. In the 30 years predating the big fight over SOPA in 2011-2012, the US had passed 15 separate anti-piracy laws. Countries around the globe (often under pressure from the US) have passed increasingly more draconian copyright laws designed to "stop piracy." And, when they can't pass laws directly, they resort to international trade agreements, like the TPP, whereby trade negotiators (who are directly influenced by the legacy entertainment industry) negotiate deals in back rooms that require stricter anti-piracy laws. And none of it works. Sure, when a new law first goes into effect there may be an initial, short-term decrease in piracy rates, but it doesn't last for more than a few months, as people quickly go back to finding ways to access the content they want.

So how about a different approach? One that actually does work. One that has been shown, time and time again, to actually reduce piracy rates? Enabling more innovation and allowing more services to legally deliver what consumers want.

The story in Sweden is somewhat famous. Sweden was home to the Pirate Bay and had sky high piracy rates. And then Spotify -- a company also born in Sweden -- launched at home. And piracy rates fell off a cliff. But only for music. Piracy for other products such as TV and movies remained high. Under pressure from the US, Sweden passed a strict anti-piracy law, IPRED. And, when it went into effect, there was a notable decline in piracy rates... but, within months, those rates rebounded to where they had been before, as people quickly figured out new ways to do what they were doing before. And then Netflix launched in Sweden. And piracy rates for TV and movies dropped.

This story made us wonder. So, over at the Copia Institute, we've been digging into similar situations around the globe, and this morning we're releasing our latest report: The Carrot or the Stick, in which we compare attempts to ratchet up anti-piracy enforcement against simply enabling more innovation, and the impact both have had on piracy rates in a bunch of different countries. Over and over again, we find the same basic story: anti-piracy laws have little to no long-term impact on piracy. Any impact is, at best, short term. However, when innovative services are allowed to thrive, and when there's real innovation, the public is more than willing to sign up in droves, often leaving their pirating ways behind.

Thus, if the entertainment industry is truly serious about decreasing piracy, why are they so resistant to the facts? Why do they fight tooth and nail against these services, demanding rates that are sure to bankrupt them, or putting ridiculous restrictions on them that limit their value to users? Why do they demand DRM or limit selection? It's difficult to make sense of this strategy.

And, yes, I know that some will claim that the two things (anti-piracy laws and innovation) go hand-in-hand -- and that the anti-piracy laws are necessary in order to make it possible for authorized services to thrive. Once again, however, our research showed that does not appear to be the case at all. In most countries we studied, the number of authorized services tended to rapidly expand before the introduction of new anti-piracy laws. And, in fact, sometimes we saw the number of services decline after these laws were in place, and after the "winners" in the market had already been established. In other words, entrepreneurs and users of these services saw no reason to wait for these laws, and the laws themselves don't appear to have done much to encourage more innovation in the field.

You can check out the full report over at the Copia site. Oh, and as a reminder, the White House's Intellectual Property Enforcement Coordinator is still asking for feedback on how to best use the federal government's resources on this issue. One would hope that learning what's in this new report would be helpful to him in crafting his new plan.

Filed Under: authorized services, carrot, copyright, innovation, piracy, stick, studies
Companies: copia institute

IP Enforcement Czar Wants To Hear From You About Government's IP Enforcement Plan

from the speak-up dept

It's that time again. The White House's IP Enforcement Coordinator (IPEC) -- often called the IP Czar -- is asking for public input on the upcoming "Joint Strategic Plan on Intellectual Property Enforcement" that it will be releasing next year. The Joint Strategic Plan comes out every three years and is supposed to guide the federal government in how it handles priorities around intellectual property enforcement. Now, I recognize that the cynical among you will already be insisting that there is no value in responding to this, because the government is going to simply repeat the arguments of the legacy industries and its copyright extremists. However, in the past, these open comment periods have actually helped, and the two previous Joint Strategic Plans have not been as bad as expected. In 2010, we sent in our feedback and was pleasantly surprised that at least some of it was reflected in the plan. It recognized the importance of fair use and encouraging innovation. It also admitted that most studies on the impact of intellectual property on the economy were bogus.

Then, the second report, issued in 2013, was even better and presented a much more balanced understanding of intellectual property law, and how over-enforcement and over-expansion could create real harms as well. It also points out that truly the best way to deal with problems around "piracy" is through greater innovation, rather than relying on enforcement. It doubled down on supporting fair use, and noted that it was working with the Copyright Office to release an "index of major fair use decisions" -- something that finally came out just a few months ago and is actually pretty damn good.

In other words, this report need not just be a playground for Hollywood types looking to ratchet things up.

Still: there are concerns. The first two reports were done by the original IPEC, Victoria Espinel, who left the office a few years ago. This latest report will be overseen by the new IPEC, Danny Marti, who has only been in the job a few months. And, unfortunately, in one of his first speeches, he trotted out pretty much all of the ridiculous and debunked copyright extremist tropes about the need for greater protection, exaggerating the economic impact of intellectual property and demanding more "respect" for intellectual property (rather than earning more respect for it).

It's also somewhat concerning that in his blog post asking for public comments, he cites one of the most debunked statistics around, from the US Chamber of Commerce, concerning the "worldwide market for counterfeit and pirated products," which he argues is $1.8 trillion. Having spent years debunking earlier claims of $200 billion, the idea that it's magically shot up to $1.8 trillion is insane. What's incredible is that the "methodology" for the $1.8 trillion is laughable, and it's a shame that Marti would cite it. The Chamber of Commerce just took the already debunked numbers from 2008 (which, in case you are wondering were actually based on a number someone just made up in the 1980s and which has never been checked) and then "projected" out to 2015. Really. And Marti quotes it as if it has some validity.

And he does this despite the fact that actual credible sources like the Government Accountability Office and the OECD have both insisted that there is no evidence that the issue of counterfeiting is anywhere near as big as the earlier problems stated. Furthermore, multiple studies have further shown that counterfeiting is very rarely a true "economic loss" as it's almost never a substitution good, but rather an aspirational purchase. That is, the person buying the fake Rolex isn't taking any money away from Rolex, because they can't afford to buy a real one. In fact, multiple studies have found that those who buy counterfeit products regularly go on to buy the real product later, when they can afford to. In fact, it appears the purchase of a counterfeit often gives them a closer bond with the brand itself. And, in the end, estimates have suggested that actual counterfeiting is probably somewhere around 2 to 3% of the big numbers thrown around by the Chamber of Commerce.

So, you have to wonder, if Marti is tossing around numbers from one of the world's largest lobbying organizations, the US Chamber of Commerce, rather than from well respected and credible sources like the Government Accountability Office and the OECD, just where he's coming from as he puts together this report.

Hopefully, people can submit thoughtful and well-argued comments based on the details set forth in the Federal Register and help point Marti and the IPEC office in the right direction. Such comments are due by October 16th.

Filed Under: copyright, counterfeiting, danny marti, enforcement, ipec, joint strategic plan, losses, patents, piracy, public comment, trademark

The MPAA Will Let Amazon Touch Its Stuff, But Only If It Agrees To A Ton Of Stipulations

from the rules-on-top-of-rules-on-top-of-futile-efforts dept

TorrentFreak's Andy reports that Amazon recently published the MPAA-required "best practices" for handling physical goods as well as content stored or hosted by its cloud services. This doesn't just cover the obvious storage of movies for streaming services, but also works-in-progress by studios utilizing Amazon's web services.

It's comprehensive and loaded with restrictions and stipulations.

[I]n addition to carrying out background screening on all employees and third party contractors, the MPAA demands that all workers sign annual confidentiality agreements that forbid them from talking about protected content.

With an eye on local law, companies must also implement random searches of their workers for traces of MPAA content, including the removal of coats, hats and belts, the emptying of pockets, a full security pat-down, scanning with metal detectors and inspection of electronic devices.

Other obvious demands are included, all aimed at preventing the leak or physical theft of studio goods: no portable devices with storage capabilities, no baggy clothes, and employees' meals must be brought to work in transparent bags.

Interestingly, the MPAA's 2015 agreement with Amazon actually scales back some of its requirements. Demands that Amazon create an MPAA-specific security team and allow reps monthly access to inspect restricted areas are no longer in force. Other stipulations focused on the specific parameters of on-site, physical security have been loosened or removed completely, as well as specifications for CCTV footage storage, access and retention. The requirement that all involved third parties be CTPAT-certified (Customs Trade Partnership Against Terrorism) has also been dropped, suggesting the MPAA is about done humoring the DHS's paranoiac assertions that everything has a potential terrorism nexus.

But the adjustments made between the 2013 and 2015 edition of the MPAA's "rules" don't reflect a change in the MPAA's Ft. Knox mindset. Instead, it shows the MPAA shifting its priorities from physical protection to digital protection. The high-profile hacking of Sony likely contributed to new stipulations like these:

2015 MPAA added the requirements to perform quarterly vuln scans of external IP ranges, secure any point to point connections by using dedicated, private connections and by using encryption. Additionally the requirement to implement baseline security requirements for WAN network infrastructure devices and services.

2015 MPAA added controls around the encryption of content at rest and in motion. Additionally, procedures around the storage of public and private keys.

Also new to this ruleset is a whole section dedicated to "mobile security" that addresses the potential security holes created by a BYOD environment.

The documents show the MPAA can be forward-thinking when it comes to the distribution of content -- especially when trying to figure out how to stop it.

Filed Under: anti-piracy, copyright, overreaction, piracy, stipulations
Companies: amazon, mpaa

Come See How Excited Everyone Is For The Latest UK Educational 'Don't Pirate' Campaign

from the sooooooo-excited dept

If you drop the search term "educational campaign" into the Techdirt search field, it's crazy how many story links pop up. When it comes to educating the public, particularly the youth, about how super-important copyright is and how goddamned terrible pirating is, the effort appears to have been going on for forty years or so. Given how every indication from our pro-copyright friends and the entertainment industries have been of the "sky is falling" variety, I would have thought that there would be some acknowledgment that the whole educational campaign thing didn't work. Or maybe that the lesson plan sucked. Some kind of recognition of failure.

If that's the case, you sure wouldn't know it hearing how pants-crappingly excited everyone over in the UK is for yet another round of educational nonsense coming from the entertainment industry.

The education programme will target 16-24 year-olds, their parents, those responsible for household internet connections, as well as others who influence young people’s attitudes to accessing content. To capture the attention of these audiences, public relations firm Weber Shandwick will lead an integrated consumer, corporate and social PR campaign, with activities scheduled to start later this summer. Creative Content UK is working with Atomic London on advertising creative. Media planning and buying will be directed by ZenithOptimedia.

The campaign is part of the Creative Content UK initiative, a ground-breaking partnership between content creators and Internet Service Providers (ISPs), together with an education campaign part-funded by the government, aimed at helping reduce online copyright infringement.

In other words, the public is footing part of the bill for letting the entertainment industries and ISPs tell them how great their products are and how horrible the bill-footing public is because piracy exists. And it will come from such organic methods like hiring PR and advertising firms. How could this possibly fail?

Well, probably the same way that the RIAA's educational campaign failed. And the one that was done in Sweden failed. And the USPTO's educational campaigns, too. They fail because they're almost universally inaccurate and misleading propaganda hits that fail to connect with children far too savvy to fall for scare-tactics. Meanwhile, innovation stalls because the entertainment industry is busy reaping failure with the K-12 crowd.

But, still, that excitement.

Janis Thomas, Education Project Manager, Creative Content UK, said: “We are delighted to have three highly-experienced agencies on board to help us create disruptive and engaging multi-media campaigns that will connect with the aspirations of young people. This behaviour change initiative is vital to the success of the sector and will ensure that we can continue innovating and taking risks on new artists and ideas. We aim to inspire individuals to make a personal commitment to the future of the UK creative industries and to the creation of music, film, games and other entertainment, which they love so much.”

You just have to beat the buzzwords off with a stick, don't you? Kids aren't going to fall for this crap any more than they fell for the over-the-top anti-marijuana videos they showed my parents. But, hey, keep beating that dead horse if you want. Just keep it down; some of us are innovating over here.

Filed Under: campaigns, copyright, education, piracy, uk

Craziest Part Of Apple's Price Fixing Ruling: Publishers Knew They Were Encouraging Piracy, Didn't Care

from the because-of-course dept

For many years, despite claims from legacy copyright industry extremists who sought to blame everyone else for any piracy issues, we've pointed out that the reality is almost always that piracy is their own fault for failing to provide convenient, reasonably priced alternatives to the public. When they actually do that, piracy rates almost always drop significantly. And now we have even more proof that these legacy industry insiders know this and don't care.

You may remember that, two years ago, Apple was found guilty of price fixing for ebooks, in an effort to break Amazon's hold on the market and to artificially inflate the price of ebooks, creating significant consumer harm. Apple agreed to settle with the government last year, but dependent on how its appeals process went. Well, the Second Circuit appeals court was... unimpressed with Apple's appeal and has upheld the original ruling. The ruling (and the dissent) are interesting reads, but perhaps most interesting is the tidbit in which the big publishers admit that what they're doing will increase piracy, but they don't care because they so badly want to raise prices from Amazon's established $9.99 per ebook.

The most significant attack that the publishers considered and then undertook, however, was to withhold new and bestselling books from Amazon until the hardcover version had spent several months in stores, a practice known as “windowing.” Members of the Big Six both kept one another abreast of their plans to window, and actively pushed others toward the strategy. By December 2009, the Wall Street Journal and New York Times were reporting that four of the Big Six had announced plans to delay ebook releases until after the print release, and the two holdouts — Penguin and Random House — faced pressure from their peers.

Ultimately, however, the publishers viewed even this strategy to save their business model as self‐destructive. Employees inside the publishing companies noted that windowing encouraged piracy, punished ebook consumers, and harmed long‐term sales. One author wrote to Sargent in December 2009 that the “old model has to change” and that it would be better to “embrace e‐books," publish them at the same time as the hardcovers, “and pray to God they both sell like crazy.” .... Sargent agreed, but expressed the hope that ebooks could eventually be sold for between $12.95 and $14.95. “The question is,” he mused, “how to get there?”

In other words, the publishers were so focused on wanting to raise the price of ebooks, they were willing to embrace a solution that they knew both encouraged piracy and harmed long-term sales.

It really makes you wonder what kind of boards of directors these legacy publishers have, that they'd allow their companies to purposely shoot themselves in the foot, so they could raise prices and put in place windowing, even while recognizing all the harm it causes long term.

Filed Under: antitrust, ebooks, piracy, price fixing, windowing
Companies: apple

Netflix Says Piracy Helped It Succeed In The Netherlands, And Will Help When It Launches In Spain

from the gain-in-spain dept

Back in 2013, Techdirt wrote a story about how Netflix was using piracy as market research -- an approach that is as obvious as it is rare. The copyright maximalists doubtless hoped that would fail dismally, and that Netflix would see the error of its ways and join the industry chorus condemning piracy as a terrible scourge that impoverishes artists and causes society to collapse. Neither has happened, as an interview with Netflix's CEO, Reed Hastings, in El Mundo makes clear (original in Spanish, via TorrentFreak). Hastings confirms that looking at pirate sites to find out what people were interested in did indeed work out well in the Netherlands, and that this gives him confidence Netflix will thrive when it launches later this year in Spain -- a country that has traditionally had a high level of piracy:

I think that Spain is going to be one of our most successful countries. It has a population with a high level of [Internet] connectivity, which is accustomed to e-commerce and has given indications of being interested in our product. We are very optimistic.

He expands on why piracy is a help, not a hindrance, and how Netflix will manage to sell its services in the face of these free alternatives:

What's certain is that [piracy] has created a public that is accustomed to viewing content online. We will offer an alternative that is much simpler and immediate than looking for a torrent.

That's also what Hastings said in 2013, so clearly he has not found any reason to change his mind since then. These are exactly the kind of ideas that Techdirt has been promoting for years, but it's hugely refreshing to find a successful media CEO willing to say them on the record not once, but twice. It's a pity that so many other copyright companies still insist on fighting piracy, rather than learning how to turn it to their advantage.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: innovation, marketing, netherlands, piracy, spain, streaming video
Companies: netflix

Ridiculous Ruling In Ireland Requires ISP To Kick Those Accused (Not Convicted) Of File Sharing Off The Internet

from the because-piracy! dept

There just seems to be something about the way that some people's brains function (or not) when the word "piracy" is introduced. Over in Ireland, there's been an incredibly long running battle over whether or not internet access providers need to kick people off the internet if they've been accused (not convicted) of file sharing three times. Such "three strikes" rules have been put in place in a few countries, and the evidence shows that they don't work at all. Not even in the slightest. They don't slow down the rates of piracy for any extended period of time (sometimes they show a very brief drop before people figure out other ways). They certainly don't lead more people to buy content. France, famously, led the way with the very first three strikes law, which the country has already dropped.

Over in Ireland, the fight over three strikes has been going on for nearly a decade. Back in 2008, the recording industry sued Eircom, the large Irish ISP, claiming that the company was required by law to implement a three strikes regime. Eventually, in an effort to avoid legal costs, Eircom caved and agreed to implement a three strikes plan, but with a condition: the recording industry also had to pressure competing ISPs to implement a similar plan so that Eircom customers didn't go fleeing. The recording industry did just that. The ISPs pushed back and seemed to be vindicated when the Irish Data Protection Commission ruled that a three strikes plan violated consumer privacy, and Irish judges found no legal basis for such rules.

Of course, the recording industry fought back, and a court flat out rejected the Data Protection Commission's findings, and insisted there wasn't any privacy issue at all with three strikes.

And, thus, we get back to the lawsuits against ISPs with a judge now ruling against ISP UPC and making some rather astounding statements in the process. The judge, Brian Cregan, appears to have become a true believer in the myths that the recording industry is spreading, and to him "piracy" seems to justify any and all punishment, without any clear concern as to whether or not anyone's actually broken the law, or whether or not three strikes plans even work. These quotes are fairly astounding:

Mr Justice Cregan said that there was "wholesale theft" taking place on the UPC network. He said that the constitutional rights of "a whole class of persons are not just being infringed but are being destroyed". The downloading of music for free is destroying the intellectual property rights of creative artists and should be a matter of great concern in any civilised society, he said.

Except, that's not true. Copyright infringement and "theft" are two separate (and very different) things. And, no constitutional rights are "being destroyed" at all. If someone's rights are being harmed via copyright infringement, those individuals or companies have every right to bring legal cases against those who are the ones actually engaging in infringement. Arguing that ISPs should automatically cut people off of the entire internet based merely on accusations (that have a long history of not being accurate) would seem to be "destroying" the due process rights of many more people than any copyright infringement. Besides, I would also think that "a matter of great concern to any civilized society" would be things like "due process" and better enabling communications and access to information for all -- like the internet does. But, no. If you happen to download a song you like without paying for it, apparently you should be barred from the internet.

"The current generation of writers, performers and interpreters of music cannot have their livelihoods destroyed by advances in technology which allow persons to breach their constitutional rights with impunity.”

Two points on this. Any realistic look at "the current generation of writers, performers and interpreters of music" would recognize that it is an amazing time to be a creative person because of the internet. Thanks to the internet, artists no longer are solely reliant on giant gatekeepers to pick them out of everyone else. Instead, they can use these platforms to create, to connect with fans, to promote, to distribute and to monetize their works. More words are being written, more videos are being filmed and more music is being recorded today than any time in history. It's difficult to see how one can possibly square that reality with this fantasy world of Judge Cregan's in which he believes that writers, performers and musicians are in trouble.

The reality is that it's merely the business models of the old gatekeepers that have been challenged. But that is the nature of the free market. If you cannot keep up with the changing times, you go out of business. But Cregan has apparently decided that the world should always look like it did briefly in the 1980s, and the internet upsets all of that, so clearly, it's the internet that should go.

Not only did Judge Cregan decide that UPC needs to put in place a three strikes plan, but that it should have to cover most of the costs itself, apparently blaming the technology itself for the struggles of the legacy recording industry:

Mr Justice Cregan said the cost of setting up this system had been put at between €800,000 and €940,000, three-quarters of which UPC had argued should be paid for by the music companies.

The judge said however given the music companies' constitutional rights "are being destroyed" by UPC's customers, he believed UPC should pay 80 per cent and the music companies the rest.

Cregan is apparently so sure of himself on this issue -- despite what appears to be an astounding confusion over what's actually happening in the world, that he further rejected UPC's argument that this is a matter for the legislature, not the courts. Instead, Cregan seems to believe that the courts can magically will into place a new regulation kicking people off the internet. He further rejected requests to refer this matter to the European Court of Justice, insisting that his interpretation of the law is plenty.

It is one thing to argue that a three strikes rule makes sense (despite all of the real world evidence to the contrary). But it is quite bizarre to then justify it based on additional claims about the state of creators today that are simply false. Is this how the Irish judicial system really works? Based on fairy tales and what the judge believes, rather than facts?

Filed Under: brian cregan, copyright, ireland, piracy, privacy, three strikes
Companies: eircom, ifpi, upc