Copyright Enforcement Threatens Fundamental Rights
The Right To Talk In Private
Six years ago, when I, Rick Falkvinge, founded the Swedish and first Pirate Party, we set three pillars for our policy: shared culture, free knowledge, and fundamental privacy. These were themes that were heard as ideals in respected activist circles. I had a gut feeling that they were connected somehow, but it would take another couple months for me to connect the dots between the right to the fundamental liberty of privacy and the right to share culture.
The connection was so obvious once you had made it, it’s still one of our best points: Today’s level of copyright cannot coexist with the right to communicate in private.
If I send you an e-mail, that e-mail may contain a piece of music. If we are in a video chat, I may drop a copyrighted video clip there for both of us to watch. The only way to detect this, in order to enforce today’s level of copyright, is to eliminate the right to private correspondence. That is, to eavesdrop on all the ones and zeros going to and from all computers.
There is no way to allow the right to private correspondence for some type of content, but not for other types. You must break the seal and analyze the contents to sort it into allowed and disallowed. At that point, the seal is broken. Either there is a seal on everything, or on nothing.
So we are at a crossroads. We, as a society, can say that copyright is the most important thing we have, and give up the right to talk in private. Either that, or we say that the right to private correspondence has greater value, even though such correspondence can be used to transfer copyrighted works. There is no middle ground.
What has become clear recently is the level of understanding of this within the copyright industry, and how they persistently try to eradicate the right to private correspondence in order to safeguard current disputed levels of copyright. A cable leaked by WikiLeaks in December 2010 outlined a checklist given to the Swedish government with demands from the US copyright industry, IIPA. The US Embassy was quite appreciative of how the Swedish justice department was “fully on board” and had made considerable progress on the demands against its own citizens, in favor of the US copyright industry.
In those demands were pretty much every Big Brother law enacted in the past several years. Data retention, Ipred, three-strikes, police access to IP records for petty crimes, abolishment of the mere conduit messenger immunity, everything was in there.
The copyright industry is actively driving a Big Brother society, as it understands that this path is the only way to save copyright. It’s time to throw that industry out of the legislative process.
One of the primary demands of the Pirate Party is that the same laws that apply offline, should also apply online. This is an entirely reasonable thing to demand. The Internet is not a special case, but part of reality. The problems appear when an obsolete but powerful industry realizes that this just and equal application of laws means that they can’t enforce their distribution monopoly any longer.
To understand the absurdity of the copyright industry’s demands, we must pause and consider which rights we take absolutely for granted in the analog world. These are rights that already apply in the digital part of reality as well, but are somehow hidden in a legal game of hide-and-seek.
Let’s look at what rights I have when I communicate through analog channels with somebody – using paper, a pen, an envelope, and a stamp. The same rights should apply when using a digital communications channel instead, at least theoretically, since the law doesn’t differentiate between methods of communication. Unfortunately for the copyright industry, the enforcement of our rights online would mean that the copyright monopoly becomes utterly unenforceable, so the copyright industry is now attacking these fundamental rights on every level. But that doesn’t mean our rights aren’t there.
When I write a letter to somebody, I and I alone choose whether I identify myself in the letter inside the envelope, on the outside of the envelope, both, or neither. It is completely my prerogative whether I choose to communicate anonymously or not. This is a right we have in analog communications and in law; it is perfectly reasonable to demand that the law applies online as well.
When I write a letter to somebody, nobody has the right to intercept the letter in transit, break its seal and examine its contents unless I am under formal, individual and prior suspicion of a specific crime. In that case, law enforcement (and only them) may do this. Of course, I am never under any obligation to help anybody open and interpret my letters. It is perfectly reasonable to demand that this applies online as well.
When I write a letter to somebody, no third party has the right to alter the contents of the letter in transit or deny its delivery. Isn’t it perfectly reasonable to demand that this applies online as well?
When I write a letter to somebody, nobody has the right to stand at the mailbox and demand that they log all my communications: who I am communicating with, when, and for how long. Again, to demand that this applies online as well would only be logical.
When I write a letter to somebody, the mailman carrying that letter to its recipient is never responsible for what I have written. He has messenger immunity. And yes, it is perfectly reasonable to demand that this applies online as well.
All of these fundamental rights are under systematic attack by the copyright industry. They are suing ISPs and demanding that they install wiretapping and censoring equipment in the middle of their switching racks. They are constantly gnawing at messenger immunity (mere conduit and common carrier principle), they are demanding the authority to identify people who communicate, they want the authority to deny us our right to exercise fundamental rights at all, and they have the nerve to suggest censorship to safeguard the distribution monopoly.
All of the above stems from the fact that any digital communications channel that can be used for private correspondence, can also always be used to transfer digitizations of copyrighted works – and you can’t tell which is which without giving the copyright industry the right to break the seal of private correspondence, which is a right the Pirate Party is not prepared to surrender.
These are civil liberties that our forefathers fought, bled, and died to give us. It is beyond obscene that an obsolete middleman industry is demanding that we give up our rights to preserve an entertainment monopoly, and demanding more powers than we are even giving the police to catch real criminals. Then again, this is nothing new.
When photocopiers arrived in the 1960s, book publishers tried to have them banned on the grounds that they could be used to copy books which would then be sent in the mail. Everybody told the publishers tough luck: While the copyright monopoly is still valid, they have no right to break the seal on communications just to look for copyright infringements, so they can’t do anything about it. That still applies offline. It is perfectly reasonable to demand that it applies online as well.
The copyright industry sometimes complains that the Internet is a lawless land and that the same laws and rights that apply offline should apply online as well. In this, the Pirate Party could not agree more.
But unfortunately, what is happening is the opposite. Corporations are trying to take control over our communications tools, citing copyright concerns. Frequently, they are assisted by politicians who are also aspiring for the same control, citing terrorist concerns or some other McCarthyist scare word of the day. We should see this in perspective of the revolts that happened in 2011 in the Arab world.
There is a blind trust in authority here that is alarming. The ever-increasing desire to know what we talk about and to whom, and that desire is displayed openly by corporations and politicians alike, is a cause for much concern. To make matters worse, it is not just a matter of eavesdropping. Corporations and politicians openly want – and get – the right to silence us.
The copyright industry is demanding the right to kill switches to our very communications. If we talk about matters disruptive enough, disruptive according to authorities or according to the copyright industry, the line goes silent. Just twenty years ago, this would have been an absolutely horrifying prospect. Today, it is reality. Don’t believe it? Try talking about a link to The Pirate Bay on MSN or on Facebook and watch as silence comes through. The copyright industry is fighting for this to become more pervasive. So are some politicians with agendas of their own.
While the copyright industry and repressive Big Brother politicians may not share the same ultimate motives, they are still pushing for exactly the same changes to society and control over our communications.
At the same time, citizens’ physical movements are tracked to street level by the minute and the history recorded.
How would you revolt with all this in place, when all you said just fell silent before reaching the ears of others, and the regime could remotely monitor who met whom and where, and when they could kill all your equipment with the push of a button?
The West hardly has any high moral ground from where to criticize China or the regimes that are falling in the Arab world.
And yet, in all this darkness, there is a counter-reaction that is growing stronger by the day.
Activists are working through the night in defeating the surveillance and monitoring to ensure free speech by developing new tools in a cat-and-mouse game. These are the heroes of our generation. By ensuring free speech and free press, they are ensuring unmonitored, unblockable communications. Therefore, they are also defeating the copyright monopoly at its core, perhaps merely as a by-product.
Free and open software is at the core of the counter-reaction to Big Brother. It is open to scrutiny, which makes it impossible to install secret kill switches and wiretapping in it, and it can spread like wildfire when necessary. Moreover, it renounces the copyright monopoly to the point where popular development methods are actively fighting the monopoly, again making the connection between copyright enforcement and repression. Free operating systems and communications software are at the heart of all our future freedom of speech, as well as for the freedom of speech for regime topplers today.
The software that is being built by these hero activists is a guarantee for our civil liberties. Software like Tor and FreeNet and I2P, like TextSecure and RedPhone. That criminals can evade wiretapping is a cheap price to pay for our rights: Tomorrow, we might be the ones who are considered criminals for subversion. These are tools used by the people revolting against corrupt regimes today. We should learn something from that.
At the same time and by necessity, this free software makes the copyright monopoly unenforceable, as it creates the untappable, anonymous communication needed to guarantee our civil liberties. Mike Masnick of Techdirt recently noted that “piracy and freedom look remarkably similar”.
Perhaps Freenet’s policy expresses it the most clearly:
“You cannot guarantee free speech and enforce the copyright monopoly. Therefore, any technology designed to guarantee freedom of speech must also prevent enforcement of the copyright monopoly.”
The fights for basic freedom of speech and for defeat of the copyright monopoly are one and the same. Therefore, the revolutions will happen using tools that are not just outside the copyright monopoly, but actively defeat it. The revolution will not be properly licensed.
Internet Blocking And Censorship
”Child pornography is great,” the speaker at the podium declared enthusiastically. ”It’s great because politicians understand child pornography. By playing that card, we can get them to act, and start blocking sites. And once they have done that, we can get them to start blocking file sharing sites”.
The venue was a seminar organized by the American Chamber of Commerce in Stockholm on May 27, 2007, under the title ”Sweden — A Safe Haven for Pirates?”. The speaker was Johan Schlüter from the Danish Anti-Piracy Group, a lobby organization for the music and film industry associations, like IFPI and others.
We were three pirates in the audience: Christian Engström, Rick Falkvinge, and veteran Internet activist Oscar Swartz. Oscar wrote a column about the seminar in Computer Sweden just after it had happened. Rick blogged about it later, and so did Christian.
”One day we will have a giant filter that we develop in close co-operation with IFPI and MPA. We continuously monitor the child porn on the net, to show the politicians that filtering works. Child porn is an issue they understand,” Johan Schlüter said with a grin, his whole being radiating pride and enthusiasm from the podium.
And seen from the perspective of IFPI and the rest of the copyright lobby, he of course had every reason to feel both proud and enthusiastic, after the success he had had with this strategy in Denmark.
Today, the file sharing site The Pirate Bay is blocked by all major Internet service providers in Denmark. The strategy explained by Mr. Schlüter worked like clockwork.
Start with child porn, which everybody agrees is revolting, and find some politicians who want to appear like they are doing something. Never mind that the blocking as such is ridiculously easy to circumvent in less than 10 seconds. The purpose at this stage is only to get the politicians and the general public to accept the principle that censorship in the form of ”filters” is okay. Once that principle has been established, it is easy to extend it to other areas, such as illegal file sharing. And once censorship of the Internet has been accepted in principle, they can start looking at ways to make it more technically difficult to circumvent.
In Sweden, the copyright lobby tried exactly the same tactic a couple of months after the seminar where Johan Schlüter had been speaking. In July 2007, the Swedish police was planning to add The Pirate Bay to the Swedish list of alleged child pornography sites, that are blocked by most major Swedish ISPs.
The police made no attempt whatsoever to contact anybody from The Pirate Bay, which they of course should have done if they had actually found any links to illegal pictures of sexual child abuse. The plan was to just censor the site, and at the same time create a guilt-by-association link between file sharing and child porn.
In the Swedish case, the plan backfired when the updated censorship list was leaked before it was put into effect. After an uproar in the blogosphere, the Swedish police was eventually forced to back down from the claim that they had found illegal child abuse pictures, or had any other legal basis for censoring the file sharing site. Unlike in Denmark, The Pirate Bay is not censored in Sweden today.
But the copyright lobby never gives up. If they are unable to get what they want on the national level, they will try through the EU, and vice versa.
The big film and record companies want censorship of the net, and they are perfectly willing to cynically use child porn as an excuse to get it. All they needed was a politician who was prepared to do their bidding, without spending too much effort on checking facts, or reflecting on the wisdom of introducing censorship on the net.
Unfortunately they found one in the newly appointed Swedish EU commissioner Cecilia Malmström. In March 2010 she presented an EU directive to introduce filtering of the net, exactly along to the lines that Johan Schlüter was advocating in his speech at the seminar in 2007. As drafted by the Commission, the directive would have forced member states to introduce blocking of sites alleged to contain child pornography.
Thanks to a lot of hard work from members of the European Parliament from several different political groups in the Committee for Fundamental Rights LIBE, the Commission’s attempt to force the member states to introduce mandatory blocking was averted. The European Parliament changed the directive to say that member states may, as opposed to shall, introduce Internet blocking, but if they do, they must make sure that the procedure follows at least some legal minimum standards, and that the person whose website blocked has a right to appeal.
Since the directive does not mandate Internet blocking on the EU level, but leaves it up to the member states, we can expect the copyright industry to intensify their efforts to introduce Internet blocking on the national level in the countries that don’t already have such systems in place. Although their real goal is to get the authorities to block sites like The Pirate Bay, the copyright industry will continue to use the child porn card wherever they judge it is too early to start talking about the censorship they really want.
But increasingly, they are beginning to feel that they no longer have to hide their real intentions. In the US, as this is being written in January 2012, Congress is debating a twin pair of laws called SOPA, Stop Online Piracy Act, and PIPA, Protect IP Act.
The idea behind SOPA and PIPA is to give US authorities the possibility to close down access to any website, hosted in any country in the world, if rights holders accuse it of infringing copyright, or “enabling or facilitating” copyright infringements. Just providing a link that “enables of facilitates” infringements can be enough to have a website shut down, or to have US credit card companies block all payments to the owner of the site. The decision will be taken by a US court, without hearing the accused party. In order to avoid being held liable themselves, Internet service providers and social platforms will have to start policing their clients and shut them off at the mere suspicion that they are doing anything that rights holders might object to.
With SOPA and PIPA, the copyright lobby is no longer using the pretext of child abuse pictures. Both laws are quite explicitly devoted to blocking sites on the net to protect holders of intellectual property rights.
Similar measures for Internet blocking are being proposed in Europe as well. UK academic Monica Horten at Iptegrity.com writes in January 2012:
The European Commission could ask ISPs to block content, and ask payment providers to withhold money on demand from rights-holders, following a policy announcement released today. The much-awaited announcement sets out EU official policy on the Internet and e-commerce. It follows a review of the E-commerce directive by the Commission.
The E-commerce directive to date has been the protector of the open Internet, notably the mere conduit provision. The review sets out pivotal changes which threaten that protecting role of mere conduit. Notably, the Commission wants to introduce a pan-European notice and action scheme. This is based on other ‘notice and takedown’ schemes (such as the one in the American DMCA law) but with an important difference. The proposed EU scheme uses the word ‘action’ instead of ‘takedown’, where action could mean asking hosts to take down content, but also would seem to mean blocking of content by ISPs on request:
“The notice and action procedures are those followed by the intermediary internet providers for the purpose of combating illegal content upon receipt of notification. The intermediary may, for example, take down illegal content, block it, or request that it be voluntarily taken down by the persons who posted it online.”
In addition, the Commission wants to bring payment providers into ‘co-operation’ schemes between ISPs and rights-holders. This would mean asking the likes of PayPal, Mastercard, and Visa to block payments to websites or content providers, at the request of rights-holders:
“Cooperation between stakeholders, in particular internet providers, rights-holders and payment services, in the European Union and the US, may also help to combat illegal content.”
Both the notice and action, and the payment ‘co-operation’ schemes pre-empt another European Commission review – the IPR Enforcement directive (IPRED). The IPRED review will consider EU-wide policy for enforcing copyright on the Internet. It is not clear whether the payments ‘co-operation’ would be positioned within the e-commerce directive or IPRED, or both.
Both directives are under the remit of the French Commissioner Michel Barnier, who is understood to be close to President Sarkozy.
This is where the Internet blocking issue stands in January, 2012.
When Commissioner Cecilia Malmström introduced her proposal to block child abuse pictures in 2010, she insisted in public that this was about child abuse images only, and not the beginning of a slippery slope towards general Internet censorship. In a keynote speech at a conference on May 6, 2010, she said:
”[T]he Commission’s proposal is about child abuse images, no more no less. The Commission has absolutely no plans to propose blocking of other types of content – and I would personally very strongly oppose any such idea.”
Unless Ms. Malmström was actively lying at the time, it appears that she had not been briefed about quite the full net blocking agenda by her colleagues at the Commission, when she was given the task of introducing Internet censorship in EU legislation. To block sites for alleged copyright violations has been the goal of the copyright lobby all the time.
Shutting People Off The Internet
“Three strikes and you’re out” is an expression that originates in baseball, and which American politicians have turned into a legal principle. In the context of Internet policy, “three-strikes” means that anyone accused of illegal file sharing three times by the rights holders is shut off from the Internet. “Graduated response” is another piece of jargon that is sometimes used and means the same thing.
In France there is the Hadopi law, where Internet service providers are required to shut down the connection for Internet users after they have received two warnings that a copyright holder suspects them of file sharing. In the UK, the Digital Economy Act says essentially the same. Italy, not wanting to be outdone in this race to the bottom, has proposed a “one-strike” law, where a single accusation of copyright infringement would be enough to have anyone banned from the Internet.
In essence, these laws leave it to the major film and record companies to act as judge and jury and point out individuals that they suspect of of file sharing, and then force the Internet service providers to execute the punishment by unplugging the connection.
Leaving aside for the moment the question of whether it is a good idea to let private companies take over the job of the legal system, how reasonable is shutting people off the Internet in the first place?
Let’s consider what being disconnected actually means:
• A ban on studying. Most forms of education, in particular higher education, take Internet connectivity for granted. If you are a student, you will need Internet access for everything from practical things like finding out the schedule or turning in reports, to finding facts about the subject matter you are studying. Studies show that a majority of all students are file sharing. Should we cut off a majority of all students from their courses, or should we settle for making an example out of maybe 5-10% of them? What do the film and record companies think is a reasonable sacrifice to make?
• A ban on running a business. If you own a company, you are entirely dependent on the Internet today, no matter what line of business you’re in. Contacting customers, updating your homepage, ordering supplies, answering e-mail – maybe you’re selling goods via the Internet. Is it reasonable that the family business will go bankrupt because the fourteen-year old daughter in the family downloaded some pop music? Cutting off the Internet connection does not only punish the guilty party, but everyone in the household.
• A ban on talking to friends. Especially younger people keep in touch via the net. It’s not strange or unusual to have best friends that you have never met, that you only socialize with using the Internet. This was not the case when most politicians were young, but the world has changed. To suddenly be thrown into solitary confinement is a very intrusive punishment, normally reserved for the most hardened and dangerous of criminals in prison.
• Loss of citizen’s rights. If you wish to partake in public debate, you need access to the Internet today. Not only to keep up with the current issues, but also to be able to make your voice heard, be it via your own blog, commenting on others’, Tweeting, organizing or joining Facebook groups and events.
“If you children are naughty, we’ll take your toy away from you,” is in effect what the politicians making these laws are saying to their citizens. But citizens are not children, and have no reason to listen to that kind of arrogant attitude from their elected representatives.
And the Internet is not a toy. It is an important part of society, and a piece of infrastructure that everyone needs access to in order to function in today’s world. Politicians who fail to acknowledge this should not be surprised if the younger generation of voters finds them irrelevant.
Proportionality
In 2007, single US mother Jammie Thomas became a global file sharing martyr after she had been sued by a record company for 3.6 million dollars in damages. Her alleged crime was to have shared 24 songs on Kazaa (which used to be one of the most popular early file sharing services in the beginning of the ‘00s). The court convicted her, but reduced the damages to $222,000. In Ms. Thomas’ case, that still amounted to more than five times her yearly income.
In the almost five years that have passed since the original verdict, the case has been appealed and re-appealed, and is still ongoing in January 2012. The damages have been going up and down in the various trials, from a whopping $1,920,000 in a re-trial in 2009, to $54,000 after a decision by a judge in 2011. The record company has declared that is not satisfied with this decision, and that it will be seeking to have the damages raised again.
But whether it’s $2,000,000 or “merely” $50,000, this is clearly disproportionate for file sharing 24 songs. No matter how many songs you or your family members may have listened to without paying, you should not even have to think about the risk that you might be forced to sell your house or your car, or continue paying damages to record company for the rest of your life. That simply isn’t proportionate.
In this case, it is not the money that the record company is after. They know Ms. Thomas doesn’t have any, and yet they are said to have spent $3,000,000 on litigating the case so far. They want to set an example, to scare the general public into submission.
In the offline world, there is a long established principle of proportionality, which is one of the cornerstones of a just legal system. But the big rights holders have managed to persuade the legal system that this principle should not be applied to petty crimes and misdemeanors occurring online.
When it comes to copyright enforcement on the Internet, justice is blind – with rage. And unfortunately, this applies not only to US courts, but to European ones as well.
In Sweden in 2011, courts started handing out prison sentences to ordinary file sharers that had been unlucky enough to get caught by the rights holders’ organizations. So far, it has only been a handful of cases, and in each of them the victim of the prosecution got the sentence suspended (since, being ordinary citizens picked more or less at random, none of them had a previous criminal record). But even so, from a legal point of view, the courts found that they had committed a crime that was grave enough to merit prison.
Is this really what we want in our society? There was a time when you could be sure that the headline “Sentenced to prison for listening to music illegally” would refer to a country like Cuba, the Soviet Union, or Chile under general Pinochet. Totalitarian regimes have always had the habit of putting people in prison for listening to music illegally, in order to protect the state against unwanted political influences.
But now we are seeing that headline being used to report court cases in what ought to be respectable EU member states, like Sweden. The purpose this time is not to protect the state against dangerous political thoughts, but to protect the entertainment industry against having to adapt to technological progress. But the sentences are the same: Prison for illegal music listening. Do we really think that this is proportionate, and represents the right way forward?
In 2008, a Danish man was sentenced to pay 160,000 Danish kroner (21,000 euro) for allegedly having shared 13,000 songs on a Direct Connect network in 2005. The verdict was later reduced by the Danish Supreme court in 2011, after 6 years of legal battles, but the first two courts that handled the case both thought that 20,000 euro was a perfectly reasonable punishment for an ordinary file sharer that happened to get picked as a scapegoat by the entertainment industry lawyers.
To put this in perspective, 13,000 songs is not very much by today’s standards. 30 years ago, you would have needed a whole room full of LP records to have 13,000 songs, but today they will easily fit on a 64 GB USB stick in your pocket, which can be copied in minutes. Technology has changed the way that people think about and handle recorded music, especially for the younger generation. It is probably hard to find a Danish teenager who has not downloaded or shared a lot more than that.
Does this make it reasonable that all Danish families with teenagers should live under the threat of having to fork up 20,000 euro if an entertainment industry lawyer comes knocking at the door? Is listening to pop music illegally really as bad as stealing a 20,000 euro car and destroying it?
Today, courts in Europe haves a lot of discretion when deciding how much convicted file sharers have to pay in damages. This is why the Supreme Court could reduce the damages in the Danish case. But this may change if the European Parliament gives its consent to ratifying the controversial Anti-Counterfeiting Trade Agreement, ACTA.
Although the name of this treaty suggests that ACTA would be about commercial goods counterfeiting (which everybody, even the Pirate Party, agrees is a bad thing that should continue to be illegal), the implications of ACTA are much wider than that. In particular, ACTA aims to sharpen the enforcement of copyright on the Internet, in an attempt at combating file sharing.
According to ACTA, the damages for illegal file sharing will be higher, in some cases absurdly high.
In Article 9.1 of the ACTA agreement, it says that
… In determining the amount of damages for infringement of intellectual property rights, a [signing country’s] judicial authorities shall have the authority to consider, inter alia, any legitimate measure of value the right holder submits, which may include lost profits, the value of the infringed goods or services measured by the market price, or the suggested retail price.
(emphasis added)
In other words: To calculate the damages for having a disk full of illegally copied songs, you would multiply the number of songs with the suggested retail price for a song. But although this may look pretty harmless at first glance, it will lead to very drastic consequences in practice.
A two-terabyte disk can hold roughly half a million songs. If you calculate that at the market price of 1 euro per song, the damages for having a 2 TB disk full of music would be half a million euro.
Would that be proportionate or not? Remember that this is not an extreme example, it is something that lots of teenagers do. Would it really be proportionate that the family would have to sell their house and all their possessions if they were found out?
Under current European laws, damages are (at least in principle) limited to actual losses that the party that wins can show that he has actually suffered. They have to be proportional. Not even the lawyers for a film or record company would be able to convince a European court that they have actually lost half a million euro in non-purchases from a teenager who has never seen that kind of money in his life.
But according to ACTA, the film or record companies would no longer have to prove that they have actually lost the money. All they need to do is to multiply the number of songs with the price for one song to get the amount of damages measured by the suggested retail price.
A half million euro claim against a teenager with a 2 TB disk would be considered disproportionate and absurd by any European court today. With ACTA, awarding those damages becomes mandatory.
The copyright lobby knows this, or course. They have been deeply involved in the ACTA negotiations since day one. It is only the citizens and the elected members of parliaments that have been kept in the dark for as long as possible. The plan was to get ACTA signed, sealed, and delivered before too many elected politicians in parliaments knew the real consequences of ACTA as well.
We must now make sure that that plan does not work.
Due Process
In Sweden, with nine million inhabitants, about ten people get struck by lightning every year, and one or two of them die. This is of course very tragic, but this one-in-a-million risk is not enough to make people think that they themselves will get struck by lightning, and it is not enough to make them modify their behavior in any significant way. You will not see anybody wearing a protective hat with a lightning conductor if you walk down the streets of Stockholm.
Before 2011, the risk of getting convicted of illegal file sharing was about as high as the risk of getting killed by lightning. It happened at most to one or two people per year, so it was not something that anybody would seriously expect to happen to themselves.
In 2011, with three special prosecutors and ten police investigators focusing on file sharing crimes, the number of convictions went up to 8. Put in another way, this rather massive deployment of scarce judicial resources (which could otherwise have been spent on other crimes) only managed to get the risk of getting convicted for file sharing up to the risk of getting struck by lightning, as opposed to getting struck and killed. This is a considerable increase, but it is not enough to make file sharers modify their behavior in any significant way. Some may take the (sensible) precaution of spending five euros per month for an anonymizing service to hide their IP number, but a potential risk at the same level as the risk of getting struck by lightning will not make anybody stop sharing files.
To put the number of convictions in perspective, Swedish news agency TT reported that about 20% of the Swedish population, or 1.4 million people, are file sharing according to national statistics. About one third of them, or about half a million Swedes, are estimated to do it at a level that would render them prison sentences if they were found out. But of course, the vast majority of them never will be.
“We would need thousands of prosecutors” one of the three special file sharing prosecutors told the news agency, in full knowledge that this will never happen.
From the big film and record companies’ perspective, using the courts to provide deterrence simply doesn’t work. Deterrence has no effect unless the risk of getting caught is larger than microscopic. It isn’t today. The judicial system does not have the capacity to bring entire generations to court at the same time. Cases going through the system are burdened with way too much debris like “evidence”, “due process”, and other red tape to create the volumes that the film and record companies need to ascertain effective deterrence. Unfortunately, they have realized this.
Therefore, they wish to make this whole process more efficient. In the US, their wishes have largely come true. The reason that the Jammie Thomas case got media attention wasn’t that it was the first, or that the claims made by the record company were unusually outrageous. Those were exactly the same claims that the record companies had already made in thousands of similar cases. The Jammie Thomas case got attention because she was the first defendant that pleaded not guilty, and stood up to the music and film industry associations. Instead of folding and paying the offered settlement, she took this case to court.
Let’s recap the numbers: The record company sued Thomas for $3.6 million, but offered a settlement out of court for $2,000. It is not difficult to understand why most people simply pay up, even if they are innocent. The mere threat of a costly court case and the risk of losing millions outweigh the relatively minor cost of a settlement. It’s often smarter to just pay the blackmailer and move on.
Yes, blackmail. Organized blackmail. That is what this is all about. US record companies has sued 80-year old grandmothers, people with no computers and, in a few cases, long-dead people. By forcing ISPs to giving up customer records, these mass-mailed threats have evolved to a large industry in itself. There’s no reason to be particular about who receives the threats, just send them out and wait for the protection money to roll in. There is no incentive to make sure that the defendants are actually guilty of anything, since the record companies never stand to lose anything.
The key to this strategy for the rights holders is that they can force the Internet service providers to disclose the name of the customer behind a certain IP number that is used on the Internet. If they have this, they can turn copyright enforcement from a cost to a profit center in its own right. Since only a small fraction of citizens who get a threatening legal letter are prepared to take the risk, and have the resources, to oppose it in court, the limited number of cases that the court system can process per year is not a problem for the scheme to work. To the rights holders, it’s free money in exchange for a postage stamp.
The extent of this practice in Europe varies between the member states. In 2010, Danish film maker Lars von Trier made more money from threatening to sue people for allegedly downloading his film “Antichrist” illegally, than he got from box office returns and video and DVD sales combined. The business idea was completely straight-forward. All he had to do was to send out letters saying “pay us 1,200 euro immediately, or we’ll sue you for five times that amount”. Over 600 German recipients of the letter were sufficiently scared by the threat of a costly legal process to pay up. Even if some of them were in fact innocent, or if they just felt that 1,200 euro was a pretty unreasonable punishment for having watched a movie (that wasn’t even particularly successful at the box office) for free, they decided it was not worth the risk to have their day in court.
Sweden, on the other hand, has so far mostly been spared this type of behavior by the rights holders. This is because we used to have laws that prevented the Internet service providers from disclosing information about which of its customers had a certain IP number at a certain time, according to Swedish data protection laws. Instead, the film and record companies have had to file a criminal complaint and let the police investigate if a crime has been committed. This is not enough for the rights holders, since the criminal justice system does not have the capacity to get the volumes up to the level that the rights holders want.
This may change, however, now that Sweden has implemented the Intellectual Property Rights Enforcement Directive “IPRED”, and is working to implement the Data Retention Directive as well. These two directives were designed from the outset to work in tandem, in order to give rights holders the practical means to implement the strategy of legal threats.
The Data Retention Directive forces the Internet service providers to keep logs that connect an IP number to one of their customers, and the Ipred directive is intended to ensure that the rights holders and their anti-piracy organizations can demand to get access to the information. If implemented the way the rights holders want them to be, these two directives together open up the door for US-style legalized blackmail of ordinary citizens.
The fundamental problem is that if laws have the effect of enabling private companies to set up their own enforcement system where the vast majority of cases are handled outside the courts, citizens can no longer expect due process to be observed. The important thing is not what might happen in the court of last instance, but the cost of getting there. If you as a citizen cannot afford to take the risk of having your case tried in a proper manner, you are being denied justice in practice.
...And It Isn’t Working Anyway
In June 2010, I (Christian Engström) attended a working group meeting on copyright enforcement in the European Parliament. As guests, we had representatives from the Motion Picture Association MPA, and from the record producers’ organization IFPI. These two organizations represent the hard core of the copyright lobby.
The representative from IFPI talked about how many fantastic things the record companies would put on the market, if only online piracy could be eliminated or reduced. To achieve this, she was asking for information campaigns aimed at Internet users, and stricter sanctions against copyright infringers.
She showed a slide with the words
“The music industry favours an approach which combines the information of Internet users, with sanctions for persistent infringers.”
This is exactly what the copyright industry always says, and has been saying for over a decade. Information campaigns about copyright directed at Internet users, and sanctions handed out by the Internet service provider companies, preferably without any involvement of courts.
But leaving all other aspects aside, do we have any reason to think that this will be effective?
When it was my turn to ask a question, I reminded IFPI and the MPA that they have more than a decade’s experience of this strategy, in both the US and Europe. It was in 1998 that DMCA, the Digital Millennium Copyright Act, was adopted in the US. In Europe we have seen a number new laws for stricter enforcement being introduced over the years, notably the 2001 Copyright Directive EUCD, and the 2004 Intellectual Property Rights Enforcement Directive IPRED. We have also seen a number of information campaigns, often saying that “file sharing is theft”.
With so much experience from a number of countries, the rights holder’s organizations are of course in a very good position to judge how effective the strategy has been.
”Could you tell us about these experiences, and could you give any examples where illegal file sharing in a country had been eliminated or greatly reduced by information campaigns and sanctions?” I asked the representatives from IFPI and the MPA.
The representative from IFPI said that so far, the strategy had not been very successful. This was because the rights holders are forced to go through the courts to punish illegal file sharers, which severely restricts the number of cases they are able to pursue.
IFPI and the other rights holders would need to make a more wide-scale mass response in order to create an effective deterrent, she said. She was hoping that the EU would come to the rescue with legislation to allow this.
When it came to giving an example of a country where stricter enforcement had led to significantly reduced file sharing, she mentioned Sweden, where the IPRED directive was implemented on April 1, 2009.
So let’s look at the graph for the total Internet traffic in Sweden around that time:
Internet traffic in Sweden, two-year graph by Netnod
It is indeed true that there was a sharp drop in the total network traffic, by about 40 per cent, on the day the Ipred law came into force in Sweden. IFPI and the other anti-piracy organizations immediately sent out jubilant press releases saying that the Ipred law really worked. This has been the line that they have maintained ever since.
But when we look at the graph, we see that six months later, the network traffic was back to where it used to be. If this was a success for the sanctions strategy against file sharing, it was a very short-lived one.
And this is how it has been all over the world. Just like IFPI told the working group in the European Parliament, information to Internet users and stricter sanctions have so far been unable to stem the tide of illegal file sharing. But they still hope that more of the same will be effective.
There is nothing to suggest that their hopes have any base in reality. The “information and enforcement” strategy simply isn’t working, no matter how much they or anybody else would want it to.
The copyright industry just wants more, more, and more, and it doesn’t think twice about ruining our hard-won fundamental civil liberties to prop up their crumbling monopoly and control. When one tough measure doesn’t work — and they never do — the copyright industry keeps demanding more.
A few centuries ago, the penalty for unauthorized copying was breaking on the wheel. It is a term most people are not very familiar with these days, but it was a form of prolonged torturous death penalty where the convict first had every bone in his body broken, and then was weaved into the spokes of a wagon wheel and set up on public display. The cause of death was usually thirst, a couple of days later.
The copy monopoly in those days concerned fabric patterns. It was in 18th century France, prior to the revolution. Some patterns were more popular than others, and to get some additional revenue to the Crown’s tax coffers, the King sold a monopoly on these patterns to selected members of the nobility, who in turn could charge an arm and a leg for them (and did so).
But the peasants and commoners could produce these patterns themselves. They could produce pirated copies of the fabrics, outside of the nobility’s monopoly. So the nobility went to the King and demanded that the monopoly they had bought with good money should be upheld by the King’s force.
The King responded by introducing penalties for pirating these fabrics. Light punishments at first, then gradually tougher. Towards the end, the penalty was death by public torture, drawn out over several days. And it wasn’t just a few poor sods who were made into public examples.
Swedish economist and historian Eli Heckscher writes in his standard work Merkantilismen:
Of course, the attempt to stop a development supported by a violent fashion trend, carried by the [...] influential female kin, could impossibly succeed. The policy is considered to have cost 16,000 people their lives, through executions and armed clashes, plus the yet uncounted who were sentenced to slavery on galleys and other punishments. In Valence, on one single occasion, 77 people were sentenced to hang, 58 to be broken on the wheel and 631 to the galleys, one was acquitted, and none were pardoned. But this was so far from effective, that the use of printed calico spread through all social groups during this period, in France and elsewhere.
Sixteen thousand people, almost exclusively common folks, died by execution or in the violent clashes that surrounded the monopoly.
Here’s the fascinating part:
Capital punishment didn’t even make a dent in the pirating of the fabrics. Despite the fact that most people knew somebody personally who had been executed by public torture, the copying continued unabated at the same level.
So the question that needs asking is this:
For how long will the politicians continue to listen to the copyright industry’s demands for harsher punishments for copying, when we learn from history that no punishment that mankind is capable of inventing has the ability to deter people from sharing and copying things they like?
To get the issue of illegal file sharing off the table, we must find another solution. But that is no problem, because such a solution exists.
Once you accept that copyright must be scaled back, a whole palette of advantages to that scenario become apparent. Two billion human beings would have 24/7 access to all of humanity’s collective knowledge and culture. That’s a much larger leap for civilization than when public libraries arrived in 1850. No public cost or new tax is involved. All the infrastructure is already in place. The technology has been developed, and the tools are deployed. All we have to do is lift the ban on using them.
File Sharing And Fundamental Rights – The Bottom Line
The relationship between file sharing and fundamental rights is very simple:
• File sharing is here to stay. No matter what the Pirate Party or anybody else will or won’t do, it is not going to change this fact. In the long run, it will become impossible to charge money for just digital copies. This is a piece of technological history, and there is nothing more to discuss.
• So why bother? The copyright industry will not be able to stop file sharing. The file sharers will find ways of protecting themselves through anonymization, encryption, etc, as needed. No problems for them. But the copyright industry will try to set examples by punishing random individuals in a hard and disproportionate way.
This is not acceptable. An even bigger problem is the general surveillance of everybody’s private communication, and the censorship and blocking systems that the copyright industry is proposing. For this reason, we must take the political fight to align copyright legislation with reality.
This is really all there is to it. The only way to even try to reduce file sharing is to introduce mass surveillance of all Internet users. Even this is not very effective, as experiences from the last decade have shown. But if you want to fight file sharing, mass surveillance is the only way. The copyright industry knows this.
So, even those who do think that file sharing is harmful to society and should be eradicated, have to ask the question if they are prepared to accept the surveillance society to achieve this. Because once the surveillance systems have been installed, they can be used for any purpose that the ones in charge of them see fit.
You may well feel that you have “nothing to hide” right now when it comes to file sharing, if you are not doing it. But can you be certain that you will always have “nothing to hide” when it comes to expressing views that future governments may not like? How do you know that you would want to be unquestioningly loyal to the government the next time it slips into McCarthyism, or worse, and starts listing and blacklisting people with certain political sympathies?
If you build a system for mass surveillance, there will be a system for mass surveillance ready the day someone wants to use it for other purposes. This is the bottom line in the file sharing debate.