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Voltage’s Teksavvy Subscriber Shakedown: What’s a Good ISP to do?

Tomorrow will be a big day in a federal court in Toronto. At 11am, the court will hear a motion by Voltage Pictures to have Canadian indy-ISP and darling of the open internet community, TekSavvy, disclose the subscriber names and contact addresses associated with a list of 2000 IP addresses that Voltage alleges have been used to upload and share its films and tv programs in violation of copyright law.

At the end of the day we may know whether Voltage has prevailed and TekSavvy forced to hand-over the subscriber account information linked to those 2000 IP addresses. But while we wait, there is another question that I want to address in this post, and that is whether TekSavvy has done as much as it should to oppose Voltage’s motion?

As TekSavvy’s CEO Marc Gaudrault stated in DSL Reports last December when the case first erupted into public view, “we will not be making a case against the merit of what they are alleging. That’s for those affected and others to do if they wish to.”

That refusal to take a stand, to put it mildly, has displeased many of its subscribers. It has also unleashed a roiling discussion thread on DSL Report as well as the blogosphere. Respected copyright lawyer, Howard Knopf (here, here and here) and Jason Koblovsky (here & here), one of the co-founders of the Canadian Gamers Organization, have been highly critical of TekSavvy, arguing that it should be doing more to push back against Voltage’s shake-down of the ISP.

Drawing on his experience as legal counsel to CIPPIC in a close parallel to the motion now in front of us — the BMG case in 2005 — Knopf argues that TekSavvy should take the lead in opposing Voltage’s motion for at least three reasons:

  1. First, since it is the only entity that can resolve the link between IP addresses and subscriber identities, it is in the best place to challenge the technical evidence that Voltage and its forensics contractor, Canipre, have put forward;
  2. Second, in the BMG case, Telus and Shaw actively stood in opposition to the record labels’ bid to obtain subscribers’ identities on just this ground and TekSavvy should do no less in the present case, especially given that it holds itself out as being more attuned to its subscribers’ interests than its corporate cousins – a point that Koblovsky also relies on heavily;
  3. Third, it is too much to ask of CIPPIC, an organization with a skeletal staff and limited resources, to take the lead in the case.

The criticism of TekSavvy has led to a lot of soul-searching, mostly because, to most observers, the indy-ISP has been on the side of angels. The little-ISP-that-could, for instance, led the charge against the CRTC’s hated UBB decision in 2011, has intervened time and again in a myriad of regulatory decisions in which the fate of indy-ISPs has been on the line, held itself up as a plucky alternative to the incumbents with more affordable services, bigger caps or none at all, and has been a patron of Open Media, probably the most successful group this country has ever seen in terms of opening up arcane telecom, media and internet policy issues to a much bigger audience.

So, not surprisingly, others have come to TekSavvy’s defense. Most notably, in addition to denouncing Voltage’s mass copyright litigation (here and here), the other day David Ellis chastised TekSavvy’s critics. As Ellis sees it, TekSavvy has being working hard on behalf of its subscribers for two months. Moreover, TekSavvy quickly joined CIPPIC to ask the court to postpone the matter to give the ISP more time to notify its subscribers, for the court to consider CIPPIC’s request to join the proceedings and to give Voltage and its hired-gun, Canipre, more time to clean up their data. Ellis also suggests that the distance between pushing for a delay and outright opposition might not be that far, and we could still see it take on a more active oppositional role yet.

He also argues that TekSavvy’s reticence to take a stance is probably due to concerns that doing so could jeopardize its claims to being a neutral, common-carrier. In this view, by staying neutral, TekSavvy avails itself of ‘safe-harbour’ provisions that get ISPs off the hook in terms of their own liability in copyright infringement cases.

While I agree with Ellis that TekSavvy could yet change its stance, and that it has done much to buy its subscribers time to arrange their own defense, I do not think it has done enough. I also think worries that actively opposing Voltage’s motion could jeopardize its ‘safe-harbour’ defense are misguided. As a common carrier, ISPs already have limited liability for what their subscribers do, and what TekSavvy does in the courtroom will have no effect on that.

I agree with Knopf that TekSavvy should be taking the lead in opposition to Voltage’s shake-down because it is in the best place to do so from a technical point of view. That there may be problems with the technical data that Voltage is presenting is evident in the fact the company cut their initial list of 4000 IP addresses down to 2000 at the last minute – a good sign that things are not quite in order. Given the weight the BMG case put on the quality of the data in determining whether privacy would be trumped by other pressing concerns, this is essential (see para 21).

Second, ISPs are common carriers and this means their liability for what subscribers say and do is very limited, both by law and by tradition. The basics of what that means is set out in the Telecommunications Act of 1993 (see sections 27-29 and 36). Common carrier principles are also carried over into the new Copyright Modernization Act, as the following passage indicates:

A person who, in providing services related to the operation of the Internet or another digital network, provides any means for the telecommunication or the reproduction of a work or other subject-matter through the Internet or that other network does not, solely by reason of providing those means, infringe copyright in that work or other subject-matter (sec. 31(1)).

Incumbent ISPs have always reserved the right to aid copyright claimants (read your Terms of Service agreement) and, indeed in 2011 Telus said that it was sending out 75,000 notices a month of alleged copyright infringement to its subscribers. The new Copyright Modernization Act has parlayed this informal arrangement into a notice-and-notice regime that now requires ISPs to do the same thing as a matter of law, and to retain and disclose subscribers’ information for a period of six months after receiving notice of copyright infringement.

There is nothing in the new act or the old legislation, however, that prevents or even discourages ISPs from taking a stance against a motion for disclosure. Again, as Knopf observes, when mass copyright litigation first hit Canada in the BMG case, Shaw and Telus stepped up to oppose BMG and the rest of the recorded music industry arrayed against them. Moreover, while Bell and Rogers were less committal in the opposition, ultimately they did line up foursquare with Shaw and Telus behind the view, as the court stated, that ISPs should step forward to “protect[] the privacy of their customers whom they were obliged to protect by virtue of the Personal Information Protection and Electronic Documents Act (2000) (para 13). They won.

TekSavvy should do the same. Going out on a limb a bit, at least one seasoned lawyer that I have spoken with suggest that the case could be fought and won easily, for five figures, i.e. under $100k.

Beyond the BMG case we can also look further afield to the United States at a recent example of what a real stance opposing a motion of disclosure looks like. Thus, when faced with a request from the Department of Justice to hand-over account information for three of its subscribers, without telling them, as part of the DOJ’s investigation of Wikileaks, Twitter refused. The company obtained a court order allowing it to disclose the request to the users in question. It also put them in touch with legal counsel at the Electronic Frontier Foundation.

Finally, Twitter fought the request tooth and nail, all the way to appeal, but lost because, according to the ruling, the social media company’s business model is based on the unbridled collection of user data for advertising purposes in return for free access to the service. The upshot of that, in turn, is that users have no reasonable expectation of privacy and thus Twitter had to hand over subscribers’ account information to the state.

Whether Twitter won or lost is not the key point; the fact that it stood up to the plate, and fought to the bitter end in support of its subscribers and a principle – privacy – is. Moreover, while a loser in the court of law, in the court of public opinion, it won: Twitter’s chief lawyer, Alex MacGillivray, was named by The Guardian as one of its top twenty “champions of the open internet” last April.  The Electronic Frontier Foundation offered its own honorifics.

The last point that I want to make is that TekSavvy has another option at its disposal: minimizing the collection, retention and disclosure of subscriber data as a matter of company policy. Apparently there has already been some discussion of this, with the ISP at one point in time before the Voltage motion hit the fan thinking about increasing the length of time that it keeps data logs from three months to six. That is now off. And that is certainly a good thing.

There are many reasons that ISPs need to keep data logs, not least of which are billing and network management. However, there are also ways of meeting these needs that limit the data kept to just these narrow purposes and which otherwise minimize how much data is collected, how long it is retained, and when it is disclosed. Billing data, for instance, can be kept separate from traffic data, with the former retained, and the latter tossed.

There are two excellent examples along these lines that I’ll close this post with. The first is Sonic.net, a San Francisco Bay area ISP with 45,000 subscribers. It keeps subscriber data logs for only two weeks and has been the recipient of copious amounts of praise and a four-star rating by the Electronic Frontier Foundation in the latter’s annual “Whose got your back” scorecard because of this practice. TekSavvy could take some lessons from Sonic.net.

Lastly, in 2009, several Swedish ISPs, including one of the top 3 – Tele2 – began erasing “traffic data” in order to protect their subscribers privacy. They did so in response to the Sweden’s own new copyright law, IPRED, and in order to avoid precisely the kind of predicament that TekSavvy now finds itself in.

In my view, such a minimalist data collection, retention and disclosure policy is part and parcel of what a full-throated defense of principles and its subscribers would look like. The point is not to turn TekSavvy into a scofflaw, or a ghetto for copyright infringement abuse. The case of Sonic.net, Tele2, Twitter, and others demonstrate well that strong privacy and subscriber protections are not tantamount to such things, and indeed are good business and good for people’s rights.

Minimizing the collection, retention and disclosure of subscriber information embodies practices and values that apply across domains. Today it is copyright; tomorrow, lawful access and the son-of-Bill C30 (lawful access). Such values and practices will serve us well in that context, too.

We are in the midst of many events and choices that will be made that will set down the firmament in which the internet establishes deep roots. In my mind, we need to realize that these decisions and events will determine whether we can develop an internet fit for democracy, or whether we will see trade-offs all down the line to the point that an open internet and democracy are just a dream. Good night.

* Note: revised January 14th to acknowledge that Bell and Rogers were far more tepid in their stance than Telus or Shaw in the BMG case, while Quebecor (Videotron) actively sided with the record labels.

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The Copyright Modernization Act (C-11), Digital Locks and turning ISPs into Gatekeepers One Step at a Time

For the fourth time in six years, new copyright legislation was introduced last month and debated in Parliament this week.  The proposed new Copyright Modernization Act (Bill C-11) is a word-for-word rendition of the last bill that died when the election was called, except for a few important tweaks (see below).

The bill, in fact, has much to commend it. It holds the line steady on the length of copyright protection at the lifetime of the author plus fifty years, rather than wildly extending it for up to 150 years, as in the United States.

It also recognizes new user rights, including the ability to swap content we already own across the devices we use, such as smartphones, tv screens, computers, tablets, and so on. So, yes, according to C – 11, take the music or episode of The Wire you bought online and burn a copy to watch on your telly. People can also copy legally-owned content for their own personal, non-commercial use, and for safe-keeping (section 29).

The most cutting-edge innovation is the nod given to the do-it-yourself culture of mass expression. People will be able to rip, mix and burn snippets of media content in order to create their own non-commercial parodies, satire, mash-ups, and Youtube clips.

The biggest problem is that these new rights are trumped by the sanctity given to digital locks in Bill C-11. Sure, do all of the things the new law permits until your heart’s content, but only if you do “not circumvent . . . a technological protection measure”. TPMs are inviolate, as the entirety of section 42 makes painstakingly clear.

This is the triumph of technology and contracts over human will and communication rights. Critics are right to single it out. It is hard to imagine the bill being salvageable without this ordering of things being seriously revamped.

That the Conservatives have consulted closely, and secretively, with Washington to design this bill is also problematic (see here and here). The book-burning clause requiring students to destroy copyright-protected, online components of course they take thirty days after receiving their final grade is plain dumb (section 30(5)).

Yet, there is another feature that needs higher billing than it has so far received: Notice and Notice rules that will require all ISPs to pass on notices from copyright holders to subscribers alleged to be illicitly downloading and sharing copyright protected content online. ISPs will also be required to retain records for six months that allow the identity of the subscriber to be established and disclosed if things end up in court (sec. 41.26b).

The requirement to retain subscriber information is new. The notice and notice regime, however, is not. Telus, for instance, already forwards 75,000 notices every month on behalf of copyright claimants on average.

In fact, all major Canadian ISPs – Bell, Shaw, Rogers, Quebercor (QMI), Telus and Cogeco – voluntarily agreed with the recorded music industry a decade ago to perform such a function — for free. Such a role is hidden in plain sight in each of their Terms of Service agreements (see here and here).

The publishing, software and movie industries have been the most frequent users of the voluntary notice-and-notice regime in recent years, while the recorded music industries have moved on to pursue a more ambitions agenda since 2008: new laws that require digital intermediaries – ISPs, search companies (Google), data centres — to block access to blacklisted URLs and, for ISPs to take the drastic step of cutting off the Internet connections of repeat infringers.

These approaches are known as the “graduated response” and “three-strikes” regimes. The Recording Industry Association of America (RIAA) and International Federation of Phonographic Industries (IFPI), working in tandem with their local offshoots, have been remarkably successful in having them translated into real-world laws in one country after another: Australia, Britain, France, Ireland, New Zealand and Taiwan, amongst others.

This agenda has not yet succeeded in the United States, however, although the push to make it so is relentless.  The terrain is not terra nulles, however, and all of the biggest U.S. ISPs – Comcast, Verizon, AT&T, Time Warner, Cablevision, etc. – signed a deal last summer with the big four music companies (EMI, Sony, Universal, Warner Bros.) and Hollywood studios (Disney, Viacom, Time Warner, News Corp., Universal, Sony) that will see them take on the notice and notice procedures and possibly some additional measures voluntarily.

The agreement is colloquially known as the “six-strikes-and-we’ll-see” approach because the higher level deterrents are seldomly used. Nonetheless, some worry that the push will be to steadily ratchet the levels of control enacted by ISPs to ever-higher levels.

The notice and notice regime contemplated by the Copyright Modernization Act is stricter than the approach arrived at in the United States. However, it is far less punitive than the “three strikes” and “graduated response” measures adopted by France, the UK, New Zealand and Ireland, among others, in recent years.

The Conservative Government’s decision to reject the three-strikes approach delivers a clear set-back to the recorded music industries’ policy agenda. More importantly, however, it comports well with a recent UN Internet & Human Rights report that emphatically states that “cutting-off users from Internet access . . . on the grounds of violating intellectual property rights law . . . is disproportionate and . . .a violation of . . . the International Covenant on Civil and Political Rights (p. 21).

Nonetheless, C-11 is problematic insofar that it takes a voluntary deal cooperatively arrived at among Canada’s incumbent telecom and cable companies and applies it to the rest of the 400-500 smaller ISPs that exist in the nooks and crannies of the Canadian ISP market. The new law will force small ISPs to assume roles that most have rejected, and which some oppose on privacy, information rights, and freedom of expression grounds.

Second, the new bill mandates that all ISPs retain data for six months and to disclose the identity of Internet subscribers under court order. This is a new element introduced by the legislation over and above the current voluntary arrangements. For those who believe that the goal should be to minimize, rather to increase, the collection and retention of subscriber data, this is problematic.

Third, as the Chilling Effects Clearinghouse and the Electronic Frontier Foundation’s Take-Down Hall of Shame in the U.S. illustrate, copyright claimants frequently launch claims based on broader assertions than the law permits. Removing the hurdle of a court order essentially permits copyright claimants to take a shotgun approach that captures far more than what it legally required. The chilling effect on free expression is considerable since many people stop whatever they were doing when sent a notice of alleged copyright infringement rather than wander on to uncertain terrain.

Because copyright holders groups strongly oppose the suite of user rights outlined above – to make back-up copies, create User Generated Content (UGC), swap content across devices, etc. –  they will work very hard to have these rights defined as narrowly as possible. A legally mandated notice and notice regime will serve them well.

C-11 will not turn ISPs and other digital intermediaries into gatekeepers on its own. Translating the voluntary agreements that Canada’s biggest vertically-integrated telecom-media-Internet conglomerates — Bell, Shaw, Rogers, QMI, Cogeco — have made with the music industries into the law of the land, however, will only tilt the bias further yet toward a more net-centric model of control. Extending these methods — plus new data retention and disclosure mechanisms — to all ISPs will compound the problem.

The dominant  telecom-media-Internet players have already demonstrated their capacity to discriminate in favour of their own content and services. In addition, their use of DPI (deep-packet inspection) technologies is already very high relative to global standards (see here). I see no reason to give either them or the copyright holders groups yet even more incentives that will only bolster their pursuit of network-centric models of control and perpetual copyright.

Seen in this context, digital locks are important but the possibility that notice and notice will become the law of the land deserves far more scrutiny than it has thus far seen.

Should ISPs Enforce Copyright? An Interview with Prof. Robin Mansell on the UK Case

Should Internet Service Providers (ISPs) be legally required to block access to websites that facilitate illegal downloading and file sharing sites or cut off the Internet connections of those who use such sites?

In Canada, the answer is no, and recently proposed legislation expected to be re-introduced soon, Bill C-32, the Copyright Modernization Actwould not change this state of affairs, despite all the other flaws that it might have (see here for an earlier post on the proposed new law).

That’s not the case in a growing number of countries, notably the United Kingdom, New Zealand, France, South Korea, Australia, Sweden and Taiwan. Indeed, after pushing hard for the past decade to get stronger, broader and longer copyright laws passed, as well as using digital rights management to lock content to specific devices, in 2008 the IFPI (International Federation of Phonographic Industries) and the RIAA (Recorded Industry Association of America) turned to giving first priority to the idea that ISPs should be legally required to block ‘rogue websites’ and adopt “three strikes you’re out measures” that cut off the accounts of Internet users accused repeatedly of illicitly downloading and sharing copyright protected content online.

While not formally required by law to do so, Canadian ISPs such as Bell, Rogers, Shaw, Cogeco, Telus, Quebecor, etc. have agreements with the recorded music industries and other “copyright industries” to disable access to illicit sites. Moreover, the Terms of Service/Acceptable Use Policies explicitly state that they reserve the right to do just this.

Exactly what the conditions are, and how often they are use, well, who knows? The arrangements, as I just said, are informal — something of a blackhole rather than an open Internet, essentially.

As Rogers Acceptable User Agreement explicitly states, for example:

“Rogers reserves the right to move, remove or refuse to post any content, in whole or in part, that it, in its sole discretion, decides   . . . violates the privacy rights or intellectual property rights of others” (“Unlawful and Inappropriate Content” clause”. (also see Bell’s Acceptable User Policy, p. 1)

So, it is not that Canada is some kind of “free Internet” zone, but rather one where there terms are set privately by ISPs (our major TMI conglomerates) and the “content industries”. This seems like a really bad idea to me.

The UK adopted an even worse approach, however, by giving such measures the force of law when it passed the Digital Economy Act in 2010, a law that was sped through Parliament in near-record time (i.e. 2 hours debate) after incredible levels of lobbying from the music, film and broadcasting industries (see here). Two major ISPs in the UK, however, BT and TalkTalk, have fought these measures tooth and nail, but have suffered a series of defeats in the courts.

I recently spoke with Professor Robin Mansell, who took part in these proceedings as an expert witness on behalf of BT and TalkTalk. Her experience sheds much light on the potential impact of these measures on the evolution of the Internet and Internet users. I also asked her about the tricky role of academics in such cases, given that being an expert witness essentially bars you from discussing details of the case, a position that obviously clashes with academics’ obligation to make knowledge public.

Professor Mansell is a Canadian who completed her Ph.D. at Simon Fraser University. She is a Professor of New Media and the Internet at the London School of Economics, where she was Head of the Media and Communications Department (2006-2009). She has been a leading contributor to policy debates about the Internet, the Information Society, and new information and communication technologies. She was also President of the International Association for Media and Communication Research (IAMCR) (2004-2008) and has served as a consultant to many UN agencies as well as the World Bank. You can learn more about her here.

Although the Court of Appeals rejected BT and TalkTalk’s challenge to the Digital Economy Act in June, several other developments in the UK since May have kept the issues on a high boil and still unresolved:

  1. The Hargreaves Report published in May was scathing of the lack of evidence underlying the development of copyright policies, and how “lobbynomics” rather than evidence has been driving the policy agenda (for an earlier blog post on the report, see here);
  2. Another High Court decision in July required BT and other ISPs to block access to the site Newzbin;
  3. The Government decided to adopt all of the proposals in the Hargreaves Report in August;
  4. The measures in the Digital Economy Act requiring ISPs to block illegal file-sharing sites were put on hold in August after a report by the British telecom and media regulator, Ofcom, found that the measures would be unworkable (also here).

Dwayne: How did you become an expert witness in the BT/TalkTalk challenge to the Digital Economy Act? And who was backing the adoption of these measures?

Professor Mansell: I was invited by BT’s Legal Division to do so.  They came to me on the recommendation of another academic who was serving as an advisor to the regulator, Ofcom, and so could not do it for conflict of interest reasons.  They also invited Prof. W. Edward Steinmueller, University of Sussex, to work with me, since he is formally trained as an economist and could take on the ‘copyright economist’ from the US who was expected to appear on behalf of the creative industry actors who have pushed so hard for the law.

The key players arrayed against BT and TalkTalk, in addition to the Government, included the following members of the ‘creative industries’: the British Recorded Music Industry Association, the British Video Association, the Broadcasting Entertainment Cinematograph and Theatre Union, Film Distributors Association, Footabll Assocation Premier League, Motion Picture Association, the Musicians Association, Producers Alliance for Cinema and Television and Unite. The Open Rights Group, somewhat similar to Open Media in Canada, also filed an intervention that, essentially, supported BT and TalkTalk’s position, but from a basis steeped more in open Internet values rather mainly business considerations.

I have training in economics, but no formal degree as mine are in Communication (Political Economy) and Social Psychology.  As far as we know we were the only academics hired by BT/TalkTalk to participate in the High Court Judicial Review of the Digital Economy Act (DEA) 2010.

We realised we would be bound by confidentiality once we signed on.  In the UK, our initial report challenging the measures set out in the Act came into the public domain after the judgement, but not the evidence submitted by the creative industry players against the BT/TalkTalk case or our rebuttal to that.

We had both worked and published on issues of copyright before and felt that there was a chance that the Judge might rescind the Act – a small one, but we thought it worth trying. This was the only way we could see that the provisions of the Act might be overturned since it had got on the books in the last days of previous Labour Government.

In the event, the Judge decided that the DEA should be implemented for two main reasons 1) there is no empirical evidence of what its impact will be from anyone’s perspective – just claims and counterclaims; 2) it is for Parliament to decide how copyright legislation balances the interests of the industry and of consumer/citizens, not for the courts.  BT/TalkTalk appealed the decision and lost again.

Dwayne: What implications does the most recent court set-back have for principles of open networks/network neutrality, copyright, privacy and user created content (UCC)?

Robin: The central issue in this case was whether the ‘graduated response’, or ‘three strikes you are out’, strategy being lobbied for by the creative industries to curtail online P2P file-sharing that infringes copyright is a disproportionate response to file-sharing practices that are ubiquitous.  Another issue was also whether the implementation of the measures by ISPs (with a court order) is likely to have a chilling effect on the way people use the Internet.

From the copyright industry point of view, the central issue was whether the government and ISPs would support their argument that this strategy is essential to their ability to stem the losses they are experiencing in the music, film and broadcast programming sectors which they attribute to infringing downloading by individual users – and more importantly to enable them to recover the lost revenues, or at least some of them. The creative industries players argued that it was essential for ISPs to play an active role in stemming the tide of copyright infringement.

The bigger issue of course is whether P2P file sharing is simply indicative of one of many ways in which Internet users are finding creative ways of producing and sharing online content in a ‘remix’ culture where the norms and standards for good behaviour online have changed enormously and with little evident regard amongst some Internet users for existing copyright provisions. In the face of these changes, the incumbent creative industry companies are seeking ways of extending their control over the use of copyrighted digital information in many ways, just one of which is stronger enforcement of copyright legislation which currently makes it illegal to copy even for non-commercial purposes of private use and creates a narrow window for licensing for educational use.

BT/TalkTalk framed the issues mainly in terms of the threat to their own business interests in terms of reputational and financial costs if they are required to divulge the names of their subscribers to the creative industry firms (albeit with a court order) when they are accused of infringing copyright.

We framed the issues in four ways:

  1. the disproportionality of the DEA response in light of changing social norms and behaviours online which means that there is little if any evidence that the threat of punishment will change online behaviour;
  2. the disproportionality of the response because it sets a wide net that is very likely to encompass those who use ISP subscribers’ access to the Internet (family, friends, users at work, in public places, etc.) for purposes of which the subscribers themselves have no knowledge;
  3. the lack of disinterested evidence on industry losses and revenue recovery since all the quantitative evidence is based on creative industry data or on studies which are flawed in terms of methodology; and
  4. the implications for trust and privacy when Internet users are being monitored for this purpose.

In this specific case, the arguments did not tip over into debates about network neutrality, but they easily could have. The techniques that are used to monitor subscriber online activity go in the direction of the same deep packet inspection techniques that also enable ISPs to discriminate among different types of Internet traffic.

However in this case, they were only being asked to provide subscriber information based on the monitoring performed by firms hired by the copyright industry firms themselves to monitor spikes in volume and the sites from which downloading occurs. This doesn’t go directly to what ISPs themselves are doing or not doing with respect to monitoring types of traffic, so technically isn’t about network neutrality. The ultimate effect, however, is not all that dissimilar.

Dwayne: You have mentioned for two years running now during talks at IAMCR that the role of ‘expert witness’ is a double-edged one, on the one hand allowing scholars a seat directly at the table while on the other hedging about the scholar’s role with all kinds of requirements about the nature of the facts and evidence that can be submitted, non-disclosure agreements, etc.

Can you elaborate a bit more on this conundrum? What would be your advice to those torn between the ‘expert witness’ and ‘activist’ scholar role?

Professor Mansell: This issue is always on my mind!  The role of an ‘expert witness’ in a court case can vary a lot depending on the jurisdiction. In the UK you can end up knowing quite a lot more as a result, but you also cannot write about it in an academic way because you cannot cite the sources which remain confidential even after the case is over. After the case is over of course you can argue as you wish retrospectively, but then ‘the horse has left the barn’.

Another issue is the problem of what counts as evidence.  The courts look for some kind of irrefutable quantitative evidence. Failing that they look for persuasive theoretical arguments about how the world ‘might be’, overlooking the unrealistic assumptions about how economic incentives work in the market or they look for generalisations from fairly flimsy empirical studies about what mainly US college student report about their own copyright infringing behaviour and future intentions.

The problem for the ‘expert witness’ is that while it is possible to refute the assumptions of theory and poorly conceived methodologies, it is not possible (usually) to present quantitative empirical evidence that is any more robust because it simply doesn’t exist.  It is possible to present good arguments (based on political economy, sociological or cultural analysis of changing norms, market structures and dominant interests, and power relations).  But if you know that the Judge is likely to be persuaded mainly by the economics arguments, one is not going to get very far.

Thus, the question arises as to why enter the fray in the first place? Why not work as an activist or work as an academic to influence the policy makers directly before the legislation gets on the books?

Both routes are needed, but time constraints often mean that they are hard to achieve in a consistent way.  And of course interacting continuously with policy makers raises its own challenges.  Not the least of these is that if they are setting the agenda and are already echoing the prevailing view that the balancing of interests in copyright protection is clear and unproblematic. It is a real uphill battle to depart from this view – and a strong likelihood that the door to the room or corridor where policy decisions are made will be shut.

In the case of copyright enforcement and the UK judicial review of the DEA, there are critical scholars in the community who could have been taken on by BT/TalkTalk and who are likely to have promoted the view that the whole of the copyright regime needs to be dismantled in favour of an open commons; they were not invited to participate by those setting the terms of engagement.

The Open Rights Group did participate in the judicial review as an intervener and their argument was quoted by the Judge, but this didn’t alter his view it seems.  In terms of the academic evidence, he basically said that this was a complex issue which should not be put before the courts.

Dwayne: The Court dismissed the challenge to the Digital Economy Act, finding that it was entirely within the purview of the UK Parliament to pass laws of this kind and to strike the balance between the competing interests in the way that it did. You described this as a total loss. Can you explain why and what the implications might be?

Professor Mansell: I think I said this because the Government claimed that the DEA is aimed at balancing legitimate uses of the Internet and freedom of expression against the costs of implementing technical sanctions against Internet users, assuming authorisation by the courts.

The Court accepted our argument about the ambiguity of the results of empirical studies of online user intentions and behaviours with respect to copyright infringement. It also accepted the argument that Internet users may take steps to avoid legal liability resulting in a chilling effect on the development of the Internet. But, it did not accept that such an effect would exceed the benefits of enhanced copyright protection.

Ultimately, it left it to Parliament to decide the appropriate weighing of the interests of the creative industries and Internet users, which the Government claims has already been done in the legislation.  So we go round and round …  the DEA enforcement legislation goes ahead and the copyright legislation it is designed to enforce stays in place – a ‘total loss’ (for now till the next round).

Meanwhile the creative industries as we know are experimenting with all sorts of new business models in their bid to change the way they raise revenues through the provision of digital content.  Perhaps the shear pressure of mass Internet user activity and infringing downloading will eventually give rise to fairer models – we can wait for this to happen, but it is a shame that the rights of these users are likely to be infringed and some will be punished for behaviour that one day may be seen as entirely appropriate and even welcomed!

We argued, that in light of uncertainty about the direction of change in social norms and behaviour online, legislation that seeks to suppress P2P file-sharing by bringing legal actions against individual infringers is likely to disrupt, or alter the course of, Internet development in ways that cannot be assumed to be benign. The evidence favours the interests of the rights holders and the interests of those engaging in infringing file-sharing are downplayed or excluded. This cannot be said to be a proportionate response to the incidence of infringing file-sharing.

Since the judicial review, an independent report commissioned by the Prime Minister (The Hargreaves Report) has emphasised the need for change favouring better access to orphaned works subject to copyright and copying for private and research purposes and greater emphasis on the impact of legislation on non-rights holders and consumers.  But, it still says that the DEA provisions for the ‘graduated response/three strikes you are out’ should go ahead until such time as there may be evidence that it is not working.  Again, the harms will already have occurred even if evidence shows that the measures are not working the way the industry claims they will and Internet users continue their infringing downloading activity.

Dwayne: Last question, Robin. Do you think that the recent moves by the UK government to adopt the Hargreaves Report in whole and to put aside ISP blocking requirements change the picture?

Professor Mansell: There is a difference between the provisions in the DEA to go after individual file sharers through the ‘Graduated Response’ tactic, which is going ahead, and the concerns expressed by ministers as to whether they can get ISPs to take down the big enabling sites.  My understanding is that is the issue under discussion.

Some of the other Hargreaves recommendations may well start to go ahead – we will see how quickly, but they do not go to the specific issue of using ISPs to help bring charges against individuals.  



Global Internet Regulation: Tightening the Screws?

Last week in the run-up to the G8 leaders meeting in France, French President Nicolas Sarkozy convened a conference among prominent media and Internet types. The goal: how to ‘civilize’ the Internet.

As Sarkozy said,

The internet is the new frontier, a territory to conquer. But it cannot be a Wild West. It cannot be a lawless place, where people are allowed to pillage artistic works with no limits.

And you know what, he’s right. The Internet should not be a lawless frontier disconnected from the real world, and it is not. It is already deeply shaped by the same legal, political, economic and social forces that govern our actions daily.

That said, the crux of the approach being advocated by Sarkozy, and perhaps to come out in a communique at the end of the G8 meetings, is that Internet Service Providers, search engines and others are being ‘deputized’ to act on behalf of law enforcement officials and vested interests in the entertainment and ‘copyright industries’ (see the New York Times story as well). That is, they are being turned into adjuncts of both the state and vested interests to deal with matters that are, some more than others, sordid ones indeed: child pornography, money laundering, counterfeit goods and software and, of course (and in some instances) large-scale enabling of copyright infringement.

Of course, I’m the last to stand in support of child porn, money laundering, industrial scale piracy, and so forth. However, I am opposed to the full-court press that is now coming from three directions that aim to turn ISPs and search engines from being ‘gateways’ to the Internet to ‘gatekeepers’.

First, and largely since 2008, ISPs have come under a full-court press by the Recording Industry Association of America and the International Federation of Phonographic Industries (IFPI) to adopt a notice and take-down procedure. In this situation, once notified of allegations of copyright infringements, ISPs would block Internet users access to such content and, in some cases, cut off repeat offenders. Search engines would essentially make such content disappear by turning up a blank when suspect sites were queried.

The problem with this is already well-known: the gap between what is allegedly an infringement and what the law in each country actually determines to be so is big indeed. What typically happens is that private contractors using automated ‘notice and take-down’ systems take a shotgun approach, capturing much that is on the side of right in the process.

People caught in the cross-hairs have a steep hill to climb to prove their innocence. That is wrong because it turns presumptions of innocence on their head. Here’s a link to the Electronic Frontier Foundations “Takedown Hall of Shame” to get a sense of how overly-broad notices also curtail freedom of expression.

Second, Digital Rights Management (DRM) technologies began to go out of favour in the last few years, but as they were being abandoned, after 2008 the RIAA and its international counterparts were signing new memoranda of understanding with ISPs that enrolled the latter in the effort to combat piracy. The RIAA and IFPI have also pushed hard for national laws to accomplish the same ends. In other words, the RIAA is using technology, States and Markets to accomplish its goal of clamping down on content.

Sarkozy and the French Government were early and enthusiastic endorsers of such efforts and the three strikes law in France is considered by most to be particularly draconian. The IFPI has also chalked up several wins for such measures in other countries as well, including Sweden, South Korea, Taiwan and the UK, among a few others (see pp. 25-27).

Now, however, and at least in Britain such measures are under severe challenge in the courts by way of initiatives launched by two of Britain’s biggest ISPs, BT and TalkTalk, and in the court of public opinion, where they are losing badly. Yet, just as such measures come under severe criticism and challenge in some countries, they are being expanded in others.
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