PAPER

One of the most debated topics about the modern world revolves around the issue of copyright, and more exclusively, copyright exploitation, come the new age media of the Internet and peer-to-peer networks. Copyright exploitation has had a long and complicated history, particularly online, where it has gone through many different forms. Most notably involve large corporations and companies who go after the money of their own customers by using and, in some cases, abusing the laws laid down by organizations such as the Digital Millennium Copyright Act and the Record Industry Association of America.

The Digital Millennium Copyright Act (DMCA) was one of the first pieces of legislation put into effect in regards to copyright on the Internet in the United States. “The Digital Millennium Copyright Act is a law, signed by U.S. President Bill Clinton on October 28, 1998, illegalizing the use of technology to circumvent DRM (Digital Rights Management) protection measures on copyrighted works.” (DMCA-Info, 2010) The DMCA has been put into effect to monitor and protect the rights of those who produce content online, however sometimes that is not always the case. Recently there have been several cases in which the DMCA, often applied by large corporations like the Record Industry Association of America (RIAA), have gone after their own customers, accusing them of pirating music and other media without viable evidence and even mistakenly going after the wrong users. For example, in 2005 the case of a deceased great-grandmother from West Virginia whom the RIAA had mistakenly accused of sharing illegal music online, even when the woman had never allowed a computer in the home. (Mook, 2005) These companies are using anti-piracy legislation such as the DMCA to restrict the freedoms not only of their customers but also of Internet and digital media users worldwide. As the legislation regarding digital rights management continues to grow in complexity, one must begin to wonder what the impacts of these radical changes in policy will be on personal and intellectual freedom on the Internet.

Another way governments are trying to stop piracy is by implementing what is commonly known as "three-strikes laws". Although the law differs with each implementation, the core concept remains the same: a user who receives three copyright infringement accusations gets their Internet service disconnected. France is the first country to pass a three-strikes law to combat piracy. The bill, known as the HADOPI law (Samuel), requires Internet service providers (ISPs) to cut off Internet service to customers who receive more than two accusations of copyright infringement for up to one year (“Lawmakers adopt Internet anti-piracy bill”). The ISP still charges customers during the suspension (“Lawmakers adopt Internet anti-piracy bill“). The first version of the HADOPI law passed on May 12, 2009 (“Lawmakers adopt Internet anti-piracy bill”). A month later, the Constitutional Council blocked the law, ruling that cutting off a citizen’s Internet connection requires a judge (Samuel). A second version of the HADOPI law, with the provision that a judge must approve suspensions, passed on October 22, 2009 (Pfanner).

Despite the alteration to the bill, the HADOPI law still draws critics. One of the primary issues surrounding the law is the lack of due process. The law only requires a person to be accused - not convicted - of infringement three times, but offers no opportunity for the accused to respond to the allegations (“Top legal body strikes down anti-piracy law”). Although the revised bill requires that a judge approve suspensions, the proceedings happen at an accelerated pace, “similar to that employed for traffic violations” (Pfanner). A citizen’s rights could be taken away without any proof that the citizen did anything wrong. No provisions are in place to prevent false information from causing a citizen to be disconnected from the Internet. Consumer groups worry that malicious users may illegally download copyrighted material using someone else’s connection (“Lawmakers adopt Internet anti-piracy bill”). The infringement would be linked to a user who did not pirate any copyrighted material.

France is not the only country to propose a three-strikes law. New Zealand was the first country to introduce such a law. Section 92A of New Zealand’s Copyright Act, a law requiring ISPs to disconnect Internet service to infringing customers, became official in November 2008 (“New Zealand yanks copyright law that would force ISPs to cut off violators”). However, the bill was stopped before going into effect, with Commerce Minister Simon Power citing “‘the level of uncertainty around [Section 92A’s] operation’” (“New Zealand yanks copyright law that would force ISPs to cut off violators”). On February 23, 2010, the New Zealand introduced the Copyright (Infringing File Sharing) Bill, which repealed Section 92A, and introduced a Copyright Tribunal to oversee cases (“The Copyright (Infringing File Sharing) Bill introduced into Parliament”). The United Kingdom more recently introduced a similar bill. On November 19, 2009, the government of the United Kingdom proposed a bill to combat Internet piracy, entitled the Digital Economy Bill (“Digital Economy Bill [HL] 2009-10”). The law contains a three-strikes law that, as in the HADOPI law, can lead to the disconnection of users who are accused of copyright infringement (Doctorow). However, on February 19, 2010, the UK government put out a statement claiming that people accused of copyright infringement would not have their accounts terminated ("Web-ban - epetition response"). The government says that suspensions would act as a last resort, should other methods fail (“Web-ban - epetition response”). So while neither New Zealand nor the UK has passed a three-strikes law yet, fears surrounding the law still remain.

Since October 2007, governments of certain developed and wealthy countries have been negotiating a treaty which aims to strengthen intellectual property rights. The Anti-Counterfeiting Trade Agreement (ACTA) is currently being drafted ‘behind closed doors’ by nations including, but not limited to the US, Japan, EU, Canada, and Switzerland. Although the scope of the treaty is broad, it significantly focuses on international enforcement of intellectual property infringement (Katz). Participating members are obligated to comply with a confidentially policy (“Maintaining Confidentiality”) which effectively excludes the public and NGO’s from participating. A summary document from the US Trade Representative claims that it is common practice for sovereign states to not share trade negotiation text with the public (“ACTA - Summary”). Apparently whoever wrote the document forgot, or simply ignored the fact that negotiations for WIPO were open to the public under UN rules (“Geist”). The summary also tries to make us believe that ACTA is in the best interest of the public and that its scope is to pursuit individuals or group which infringe on a significant scale (“ACTA - Summary”). So if it is supposed to be in the public’s best interest, then why are they banned from knowing details, and intentionally excluded from any kind of participation? More importantly, why is the entertainment industry allowed to participate when all other NGO’s aren’t allowed? What exactly are they planning in secrecy that will have an impact on an international level? Answering such questions is rather odd when dealing with a ‘secret’ treaty. Several “efforts to obtain information through foyer request in the US have been denied under national security grounds” (Geist). It is rather easy to recognize that copyright or intellectual property infringements fails on every level to be a national security threat. However, several leaks have made it onto the Internet; they reveal that ACTA stretches far beyond just counterfeiting.

The enforcement chapter of ACTA makes up the bulk of what has been discussed so far during six separate meetings (Geist). It contains sections on border measures, civil and criminal enforcement, and the Internet. Border measures attempts to strengthen the powers of border officials in terms of their ability to search and seize for what they believe to be counterfeit content or products (“Japan – U.S. Joint Proposal”). This means that a border guard would be within their rights to search laptops, iPods, cellular phones, etc. for allegedly infringing content, without a complaint from the rights holder. More importantly, the decisions made by border guards would be entirely subjective, or in other words, what they ‘think’ is counterfeit. The debate on civil and criminal enforcement is focused on the scope. Certain countries want enforcement limited to just copyright while others want it extended to trademarks, and even patents (Geist). Civil enforcement would create a requirement of statutory damages within countries. Such provisions already exist in countries such as Canada and the US, however it would require significant reform for countries which do not, such as Australia. Criminal enforcement covers commercial and significant willful non-commercial infringements ("Japan - US Joint Proposal. Ch. 2"). One would not necessarily need to make financial gains from their counterfeiting activities to face criminal charges. There is a long list of penalties all of which are either financial or prison terms. Again, this would require significant legislative reform in many of the participating countries.

The Internet section attempts to set international enforcement standards with regards to the digital environment. A draft of this section was made available to some under a non-disclosure agreement, and has since leaked onto the Internet (Geist). Three main areas it covers are graduated response policies, notice and takedown system, and anti-circumvention legislation. All would require significant copyright reform in some sovereign states. A limited safe harbor clause establishes policies which deter unauthorized storage and transmission of intellectual property infringing content. It would be primarily enforced through a graduated response instrument otherwise known as the ‘Three Strike Rule’ (Doctorow). This would effectively turn ISP’s into Internet police; they would need to monitor users for infringing activity and terminate accounts after three violations to avoid liability under safe harbor (Geist). This is nothing more but a streamlined procedure to knock entire households of the Internet for being “suspected” of copyright infringement. The European Commission has so far been opposing and says it is committed to not force countries to disconnect people from the Internet (“European Union's Comments”). However, many wishing to join may find themselves forced towards such legislation.

The anti-circumvention provision aims to eliminate the current flexibility nations have in regards to using their own discretion. Currently WIPO offers the flexibility for nations to develop their own ant-circumvention legislations. ACTA aims to eliminate this flexibility (Geist). Michael Geist has labeled this provision as a DMCA plus (Geist). It is quite clear that the US wants to steamroll its DMCA policy onto foreign nations. The provision would also create a ban on the manufacturing and distribution of devices capable of anti-circumvention. It is unclear how elaborate this list of banned devices may be, but one needs to keep in mind that every personal computer has these capabilities.

In Canada, Trade Minister Peter Van Loan has made a statement that government would not adhere to ACTA if it is not in the public’s best interest, or if it requires any legislative reform (Migneault). However, Canada is currently undergoing its own copyright reform, and if it does not legislate it before ACTA takes place, we will find ourselves with our hands tied. Just imagine a future were digital innovation is stifled from over restrictive copyright, along with iPod searching border guards, and ISPs knocking households off the Internet from fears of getting sued.

Sources Cited