The IP Awareness Foundation report on piracy demonstrates that an effective war against piracy is one fought on multiple fronts
Piracy rates decrease 4% overall
Some positive news on the piracy front from Australia in a report just released by the Intellectual Property Awareness Foundation. The study finds that Australian piracy rates (among those 18 to 64) have decreased 4% in the past year.
Following the report’s release some of the headlines focused on new streaming services like Netflix as the reason for the decrease, but IP Awareness Executive Director Lori Flekser says other factors like the high-profile Dallas Buyers Club lawsuit, and legislation allowing blocking of pirate sites and a soon-to-be-enforced requirement that ISPs send customers “copyright infringement” warnings if they download pirated content.
Flekser expressed the belief that to successfully fight online piracy, the battle needs to happen on multiple fronts:
Piracy has always needed a range of measures to tackle the problem as we all know there is no silver bullet. This fall in piracy rates is definitely largely attributable to the combination of the government’s new legislation, plus the ongoing efforts of the creative industries to continue delivering great content at accessible prices to Australian consumers and the work being done to educate consumers about the impact of copyright theft…
…Strong copyright laws are needed to ensure the vibrancy and growth of the creative sector which in turn contributes to the economy, provides jobs and stimulates local culture. Copyright facilitates innovation rather than hinders it.
Despite the positive trends found by the study, there’s also indications that so-called “persistent pirates” have dug in and are stealing at greater rates than in the past. Some key findings from the study include:
• 25% of Australian adults aged 18-64 pirate – a decrease from 29% in the previous year.
• Persistent pirates continue to maintain high levels of frequency with 40% claiming to be pirating more than they did 12 months ago.
• Those who have pirated are far more likely than those who have never pirated to be aware of anti-piracy initiatives such as the Copyright Amendment Bill 2015 (43% vs 24%), Dallas Buyers Club litigation (51% vs 42%) and proposed notification scheme (48% vs 32%).
• Streaming services show growth – from 26% in 2014 to 32% in 2015, with high levels of awareness of new services. 33% of respondents accessing a subscription service are taking advantage of a free trial, with 66% of those indicating their intention to take up a paid service in future.
• Of those who claim to be pirating less frequently, 33% identify legal alternatives as the main reason for declining piracy rates, while 63% cite other reasons including moral considerations (21% – feeling bad about pirating/acknowledging piracy is theft) or self-interest (16% – worrying about being caught or getting a virus) or no longer having time (13%)
Flekser also noted that education plays an important role in lowering piracy rates and she was quick to praise Australian government officials for their work in helping safeguard the rights of creators:
We applaud the leadership shown by Government in passing critical legislation, and the public discourse from Ministers Turnbull and Brandis, which has shone a light on this issue and given the creative industry the opportunity to have its say amidst the very vocal blogosphere and wide media coverage of a well intentioned but not always well-informed consumer advocacy campaign…
It’s always positive news to see piracy numbers decline anywhere in the world. And while it’s too early to predict where all the chips may fall, one hopes that U.S. lawmakers will look to Australia’s approach as a potential blueprint for designing a successful attack on piracy here.
Our representatives in Congress need to understand that taking legislative action against online piracy profiteers won’t break the internet, but it will help protect the livelihoods of American workers who work in a wide swath of creative industries.
As Wade Tyree wrote in a recent piece for The Hill, “The magic depends on us all, creators and audiences alike.”
Trans Pacific Partnership is good news for workers in America’s creative industries
Justice Department’s IP enforcement move and agreement reached in TPP talks
Some important news on the online piracy front today. First, it appears that the U.S. Justice Department announced a new “collaborative” strategy to tackle (global) online piracy. From the press release:
Attorney General Loretta E. Lynch announced today that the Justice Department will launch a new collaborative strategy to more closely partner with businesses in intellectual property enforcement efforts and will award over $3.2 million to ten jurisdictions to support state and local task forces in the training, prevention, enforcement and prosecution of intellectual property theft and infringement crimes.
“The digital age has revolutionized how we share information, store data, make purchases and develop products, requiring law enforcement to strengthen our defenses against cybercrime – one of my top priorities as Attorney General,” said Attorney General Lynch. “High-profile instances of hacking – even against large companies like Sony and Target – have demonstrated the seriousness of the threat all business face and have underscored the potential for sophisticated adversaries to inflict real and lasting harm.”
Lynch also announced “$3.2 million in grants to aid state and local law enforcement in addressing intellectual property crimes.” While online piracy and counterfeiting seems to be more of a global issue, these grants can help root out pirates and counterfeiters based here at home.
Since IPEP’s establishment in 2009, the department has invested nearly $14.8 million for 41 task forces across the country. These grants have supported the arrest of 3,522 individuals, the dismantling of 1,882 piracy or counterfeiting organizations and the seizure of $266,164,989 in counterfeit property, other property and currency in conjunction with IP enforcement operations.
The United States and 11 other Pacific Rim nations on Monday agreed to the largest regional trade accord in history, a potentially precedent-setting model for global commerce and worker standards that would tie together 40 percent of the world’s economy, from Canada and Chile to Japan and Australia. –NY Times
The agreement is not without its critics and still faces a tough battle for Congressional approval. For those concerned about copyright and piracy issues though, the pact seems to offer positive news. Given that online piracy knows no borders, the more that can be done to standardize international laws against content theft the better. The theft for profit eco-systemthat has wildly metastasized online because operates beyond the reaches of law enforcement may have finally met its match.
Strong and balanced IP standards are critical for driving innovation and protecting American jobs. TPP requires parties to:
Establish strong patentability standard, with appropriate limitations drawn from international commitments, to protect the jobs and solutions to global challenges generated by U.S. innovators in areas ranging from solar panels to smart manufacturing.
Adopt strong copyright protections – drawn from international norms – to respect the rights of creators and establish clear protection of works such as songs, movies, books, and computer software, and to facilitate the development of new business models for distributing creative content that keeps pace with evolving technology.
Include – for the first time – an obligation that requires Parties to continuously seek to achieve an appropriate balance in copyright systems through, among other things, exceptions and limitations, to copyright for legitimate purposes, such as criticism, comment, news reporting, teaching, scholarship, and research, and clarifies that exceptions and limitations are available for the digital environment
Establish copyright safe harbors for Internet Service Providers (ISPs) to develop their business, while also helping to address Internet copyright infringement in an effective manner. TPP includes no obligations on these ISPs to monitor content on their networks or systems, and provides for safeguards against abuse of such safe harbor systems.
As MPAA CEO Chris Dodd noted in a statement congratulating negotiators on their efforts, the TPP is particularly good news for Americans whose livelihoods come from work in the creative industries:
Enacting a high-standard TPP is an economic priority for the American motion picture and television industry, which registered nearly $16 billion in exports in 2013 and supports nearly two million jobs throughout all fifty states.
It’s too soon to tell what the result of either announcement will be, but multi-lateral action against this type of theft is long overdue. The internet is no longer in its infancy and it’s past time for some rational order be brought to an out of control, Wild West world of illegal commerce that undermines the viability of creators around the world.
Sandra Aistars now Clinical Professor & Senior Scholar & Director of Copyright Research & Policy of CPIP
I’d like to take a moment to thank Sandra for all her hard work on behalf on indie artists, filmmakers, musicians and more. Without her unwavering guidance these past few years, there’s no doubt in my mind that our rights as creators would have been further undermined. Working in the trenches in Washington, and being the target of anti-copyright activists online, is not an easy job, but it’s one which Sandra handed with professionalism and grace. I’m excited to see what she has planned for her new venture with George Mason University of Law and wish her all the best.
Mr.Kupferschmid seems like an excellent person to succeed Sandra. His background working on copyright issues in with both tech and creative interests make him well suited to lead the Copyright Alliance and be an influential advocate for creator’s rights in coming years:
Keith brings over two decades of experience in copyright law and policy. At SIIA, he represented and advised software and content companies on intellectual property policy, legal, and enforcement matters. He also supervised the Anti-Piracy Division, including managing anti-piracy staff, investigators and outside counsel, and working with federal and state government officials on civil and criminal piracy cases. Prior to that, he was an attorney at Finnegan, Henderson, Farabow, Garrett & Dunner, as well as at the US Patent and Trademark Office (USPTO), the Copyright Office, and the US Trade Representative (USTR).
These are crucial times in the fight to protect creative rights across the spectrum and Mr. Kupferschmid promises to work on behalf of creators across the spectrum, large and small, as he tackles a number of challenging copyright issues:
I am thrilled to be the new CEO of the Copyright Alliance…. Sandra did a tremendous job building the Alliance into a respected and thoughtful organization that effectively represents the copyright interests of all types and sizes of creators and innovators. As SVP of Intellectual Property for SIIA the past 16 and a half years I worked with SIIA’s tech companies—both large and small—as well as other stakeholders in the copyright, tech, and academic communities to develop amicable solutions to complex copyright policy and enforcement issues. I hope to use my experiences in the copyright and tech arenas to further build on the strong foundation established by Sandra.
I wish him well on his new journey and am looking forward to his efforts to build more bridges with indie artists across all disciplines.
Kim Dotcom’s Court Hearing Continues
In other news, Kim Dotcom’s extradition hearing in Auckland District Court continue this week in New Zealand with Crown prosecutor, Christine Gordon who is representing the United States, wrapping up her presentation as to why New Zealand should extradite the pirate site (Megaupload) founder to the U.S. to face charges that include racketeering, copyright infringement and money laundering. Gordon focused rewards paid to top infringers:
Gordon told a judge this week that after Dotcom launched Megaupload in 2005, it grew to become so popular that each day 50 million people used the site, sucking up 4 percent of all Internet traffic.
“This was a big fraud but conducted in a fairly simple manner…
Behind the scenes, the respondents admitted their business broke the law. Sometimes they enjoyed the fact they were making their money by breaking the law,” she said. “Sometimes they worried about protection, and pondered what action they should take to, and I’m quoting here Mr. Dotcom’s words, ‘counter the justice system.” –New Zealand Herald
Tim Wu, the legal scholar credited with coining the oft used term “net neutrality” was hired by Yelp to conduct research into Google’s search algorithm. Wu, along with Harvard Business School professor Michael Luca and researchers at Yelp, examined whether Google gives consumers the best results. The results don’t look good. Per Recode.net:
Google knowingly manipulates search results according to a research paper published Monday from several academics. The study presents evidence that the search giant sets out to hamper competitors and limit consumers’ options. The paper lands as Google prepares to release its response to the European Union investigation, which rests on similar claims about Google’s comparison-shopping product.
Meanwhile, in the EU a new website Focus on the User (http://www.focusontheuser.eu/) has been set up to publicize the issue, charging, “Google+ is hurting the Internet. Europeans have the power to stop it.” Along with a rundown of the various ways Google manipulates search results to favor its own product via Google+ the website offers a video explainer (below).
2. 40 State Attorneys Generals file amicus brief in support of subpoena process to investigate Google
Attorneys General from 40 states have filed in amicus brief in support of Mississippi’s AG Jim Hood’s efforts to subpoena Google. In the brief they ask a U.S. Appeals Court to overturn a preliminary injunction issued last March by U.S. District Judge Henry Wingate that blocked Hood’s efforts to investigate Google’s anti-consumer business practices. From the brief:
As is evident from the letters of record signed by multiple Attorneys General, Mississippi is not the only state with concerns about Google’s consumer practices. (See ROA.1199-1200, ROA.1243-1244, ROA.1245-1246). Mississippi, like every state, is entitled to address these concerns through further investigation utilizing proper tools, including administrative subpoenas. Mississippi, like every state, also is entitled to review information gathered pursuant to its investigation and make decisions about actions to take—or not take—to enforce its consumer protection laws for its citizens. Google may challenge Mississippi’s Subpoena consistent with state law. But Google should not be allowed to bypass state subpoena review processes and derail a legitimate state consumer protection investigation by filing premature declaratory judgment lawsuits and obtaining sweeping preliminary injunctions in federal court. Both the law and public policy counsel against it.
3. Google accused of eavesdropping
According to an article published in The Guardian, Google is also under fire from privacy advocates for incorporating technology into its Chrome browser that allows eavesdropping.
“Without consent, Google’s code had downloaded a black box of code that – according to itself – had turned on the microphone and was actively listening to your room,” said Rick Falkvinge, the Pirate party founder, in a blog post. “Which means that your computer had been stealth configured to send what was being said in your room to somebody else, to a private company in another country, without your consent or knowledge, an audio transmission triggered by … an unknown and unverifiable set of conditions.”
Scott Cleland, a noted Google critic, points out that it’s business as usual in comments posted on his Precursor Blog:
This is not an isolated incident. It is a part of a broader Google pattern of behavior.
What should be big news and scandalous here is that the company that has gathered the most Internet users in the world based upon public representations of being pro-privacy and open — is secretly engaged in widespread wiretapping.
June Gloom for Googleiath
Earlier this month Google was slapped down by a Canadian appeals court, Its judges were not impressed by Google’s specious “free speech” arguments and affirmed a lower court ruling mandating Google remove certain search results (linking to illegal products) on a worldwide basis.
As regulators in Europe continue to tighten the vise, perhaps this summer will be a turning point in efforts to hold Google accountable for its bad business practices. Stay tuned…
Blocking pirate sites is not censorship–it’s common sense
In a move being celebrated by creators worldwide, the Australian parliament has approved the Copyright Amendment (Online Infringement) Bill 2015. The legislation will allow rights holders go to court to request that pirate websites be blocked in Australia. The explanatory memorandum, notes that the purpose of the bill is to “reduce online infringement.”
The bill’s opponents have employed the standard tech talking points, crying censorship and calling its justification “bogus.” They claim to be concerned about collateral damagebut consistently show zero regard for the ongoing “collateral damage” suffered by filmmakers, musicians, and authors whose livelihoods are routinely leached by online thieves. For piracy apologists blocking pirate sites is an anathema. In their view the rights of piracy profiteers (who pocket profits from content theft) trumps the rights of creators at every turn.
Fortunately members of the Australian parliament were able to see through the over-wrought hyperbole and craft legislation that seeks to balance the rights of creators with concerns about online censorship. With the legislation’s passage, Australia joins the UK and a number of other nations in setting up a judicial review process to determine whether certain pirate websites should be blocked. The new Australian law establishes a “high threshold test” for the Court:
The Court must take into account a number of factors before granting an injunction. These factors include:
the flagrancy of the infringement or its facilitation
whether disabling access to the online location is a proportionate response in the circumstances
the impact on any person likely to be affected by the grant of the injunction, and
whether it is in the public interest to disable access to the online location.
Further reading of the explanatory memorandum demonstrates the rationale for the legislation and, despite rhetoric thrown about by opponents, it seems quite reasonable.
8. Copyright protection provides an essential mechanism for ensuring the viability and success of creative industries by incentivising and rewarding creators. Online copyright infringement poses a significant threat to these incentives and rewards, due to the ease in which copyright material can be copied and shared through digital means without authorisation. [emphasis added]
9. Where online copyright infringement occurs on a large scale, copyright owners need an efficient mechanism to disrupt the business models of online locations operated outside Australia that distribute infringing copyright material to Australian consumers. [emphasis added] In addition, a consequence of fewer visitors at the particular online location may also impact the advertising revenue, which is often an integral element of the business models of these types of entities.
10. The Bill acknowledges the difficulties in taking direct enforcement action against entities operating outside Australia. The proposed amendments are intended to create a no-fault remedy against CSPs where they are in a position to address copyright infringement.
In the United States opponents of such legislation, often funded by tech interests, have successfully conflated sincere efforts to thwart online piracy with the specter of online censorship. However, no matter how they try to slice it, piracy does not = free speech. Websites that profit from piracy are criminal enterprises and are not worthy of protection.
Illegal activity in the brick and mortar world is not sheltered by the “free speech” excuse. Why should online piracy’s black markets be above the law? There are plenty of options for web users around the world to “share” files via any number of legitimate free sites. Sites like Pirate Bay and Kick Ass Torrents should not be thought of as sentinels to safeguard an open internet.
With passage of the law attention has turned to VPNs (virtual private networks) that would allow Australians to bypass blockages but its a red herring. VPNs are not the panacea many claim and, in fact, are often rife with malware and other security concerns. Of course, for the determined downloader there are other ways to get around a blockade, but the law’s intent isn’t really to prevent all access, but rather to deter easy access. The majority of folks who download illegal content online do so not only because it’s free, but it’s also easy. Any roadblock that can redirect these users to legitimate outlets is a welcome one.
Would similar legislation ever pass in the United States? After the SOPA (Stop Online Piracy Act) debacle it seems unlikely. Given the lobbying largess of Google and other tech interests in Washington, opponents seem to have constructed a formidable bunker against those who seek to fight online piracy profiteers. After all, some entities within the U.S. tech industry are also piracy profiteers and have a vested financial interest in keeping the Wild West status quo where an online eco-system of online theft for profit is allowed to flourish. Fortunately not every worldwide legislative body is under the thumb of big tech and so bit by bit, progress is being made.
Fans of the hit Netflix original series, Orange is the New Black, are standing by, like Cinderella, waiting for the clock to strike midnight on the west coast tonight. When the clock strikes twelve viewers worldwide will be able to (legally) binge watch all 13 episodes of the popular prison ensemble series. Netflix has expanded to dozens of markets in the Americas, Europe and Oceania.
While the series will undoubtedly be widely pirated, now that piracy havens like Brazil have Netflix it will be interesting to see if the problem is less widespread. In fact, Netflix CEO Reed Hastings made news last week by suggesting (with caveats) that illegal piracy actually paved the way for Netflix’s success by changing audience viewing habits.
People have grown to prefer tailoring their viewing habits to their own schedules, a key factor in why Netflix’s appeal has grown. In comments to the Spanish newspaper El Mundo, Hastings explained:
“I think Spain will be one of our most successful countries. There is a high rate of Internet connectivity and a population that is accustomed to the use of electronic commerce and that has shown signs of being interested in our product. We are very optimistic.”
“Well, you can call [piracy] a problem, but the truth is that it has also created a public that is now used to viewing content on the Internet.”
It’s not to say Netflix isn’t worried about the negative impact of piracy. There’s plenty of concern that illegal viewing could negatively impact profits. From Forbes:
Piracy has a direct effect on the attractiveness of Netflix’s exclusive programming. Subscribers may not be interested in viewing these shows at Netflix’s paid platform when they can get the same shows for free. The company even addressed this issue in its last quarterly letter to its shareholders by acknowledging piracy as one of its biggest competitors.
Countries where Netflix is available
There are also plans for Netflix to expand to big markets known as piracy hot spots including China and Russia. Will Netflix turn people away from free downloads in favor on convenient streaming options? That remains an open question. For now at least, progress is being made and more people can sit down tonight and indulge in the season 3 of Orange is the New Black. I can’t wait.
As an indie film and broadcast journalism veteran, I'll share my perspectives on issues of interest to the creative community and beyond--Ellen Seidler
