Techdirt has a post that’s worth a read that talks about a debate sparked by the NY Times and Computerworld about the ethics of downloading something you have already paid for.  Its an issue worth considering, especially in light of an expected new copyright reform bill in Canada.   It ties into issues about format shifting and whether copying is theft when it doesn’t deprive the owner of what they have.

For the London Free Press – April 19, 2010

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n December 2009, isoHunt, a BitTorrent and peer-to-peer search engine, was found liable by a U.S. District Court judge for inducing copyright infringement. The operator of the isoHunt website says he will appeal.

IsoHunt was founded by Canadian Gary Fung in January 2003. According to Wikipedia, thousands of torrents are added to and deleted from the website each day. Users of the website perform more than 40 million unique searches each month.

The isoHunt website is a file search engine, but according to its creator, it does not induce copyright infringement. This distinction is crucial because over the last few years, a number of peer-to-peer service companies have been shut down because they were deemed to have induced copyright infringement.

These players include Napster, shut down in 2001, Grokster and Morpheus, shut down in 2005, and TorrentSpy, shut down in 2008.

BitTorrent websites allow users to download files of any kind directly from the computers of other users. Fung says the isoHunt website is similar to a search engine, such as Google, as the website itself does not store any contents and the files are not downloaded from the servers of the websites, and thus should not be liable for inducing copyright infringement.

The U.S. District Court said Fung had solicited infringement of copyrighted files by the way he has designed his website and by comments he made in interviews and online. For example, the isoHunt website allows users to access the top searches or the top files by category. The website also links users to websites that have torrent files or that invite users to upload copyrighted files. The judge felt Fung was aware of the copyright infringement and actively induced the infringement.

More recently, Judge Stephen Wilson of the U.S. District Court in Los Angeles ordered isoHunt to remove all infringing content from its website.

“It is axiomatic that the availability of free infringing copies of the plaintiffs’ work through defendants’ websites irreparably undermines the growing legitimate market for consumers to purchase access to the same works,” Judge Wilson said.

Fung said Wilson’s injunction “amounts to nothing less than taking down our search engine . . . We’re discussing the mechanics, the process that is reasonable for an injunction. We’re still trying to hope that the judge will do the right thing.”

IsoHunt has also taken the initiative and sued the Canadian Recording Industry Association (CRIA) to get a court ruling regarding the legality of the website. This came before the Supreme Court of British Columbia in March 2009 for a summary judgment, but the court ordered the matter proceed to trial.

The line where someone becomes liable for a copyright infringement of another is not clear. U.S. courts have found some peer-to-peer service companies liable for providing tools that were deemed to be intended to be used for unlawful copying. But others have created services that essentially allow users to do the same thing but in a way that avoids liability for copyright infringement

I’ve written before about how the three strikes law that is in force in France, and is being contemplated in other countries, is fundamentally wrong.

Take a look at this short video interview from author Cory Doctorow that puts it in perspective.

Mike Masnick of Techdirt has published a post that is a chapter he wrote for a book being presented at a conference for the International Association of Entertainment Lawyers (IAEL).

Its worth a read, not only for Mike’s thoughts on new ways for the music industry to make money, but also to consider how that business model might work for other industries. 

Here are some snippets to get a flavour:

It’s no secret that there’s a lot of concern these days about what the music industry will look like going forward — especially from those who work on the label side of the business and have been around for a bit. A variety of things have caused rapid change in the market. Competition from other forms of entertainment, such as the internet, movies and video games, have put more pressure on the industry, as consumers have been presented with significantly more options for their entertainment attention and dollars. And, of course, there’s the ever-present specter of unauthorized file sharing — or, as the industry prefers to call it (accurately or not), “piracy.”

…

However, there is another solution: stop worrying and learn to embrace the business models that are already helping musicians make plenty of money and use file sharing to their advantage, even in the absence of licensing or copyright enforcement.

In simplest terms, the model can be defined as:

Connect with Fans (CwF) + Reason to Buy (RtB) = The Business Model

Sound simple? It is, if you understand the basics — and it can be incredibly lucrative. The problem, of course, is that very few seem to fully understand how this model works. However, let’s go through some examples.

…

This is a business model that’s working now and it will work better and better in the future as more people understand the mechanisms and improve on them. Worrying about new copyright laws or new licensing schemes or new DRM or new lawsuits or new ways to shut down file sharing is counterproductive, unnecessary and dangerous. Focusing on what’s working and encouraging more of that is the way to go. It’s a model that works for musicians, works for enablers and works for fans. It is the future and we should be thrilled with what it’s producing.

For the London Free Press – November 23. 2009

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INFRINGEMENT: It addresses concerns of creators and publishers of movies and music

The “three-strikes law” is a controversial proposal to address download infringement concerns of creators and publishers of movies and music.

The concept is that if someone alleges an Internet user is downloading copyrighted material, they can advise their Internet Service Provider (ISP). The ISP then tells the customer to cease this illegal activity. If this happens three times, the ISP must turn off the customer’s Internet access.

France recently approved such a plan, but not without a struggle. An initial version was ruled unconstitutional by the French courts. An amended version was approved this fall which calls on a judge, not a government actor, to sign off on account suspensions.

France is now viewed by supporters as a pioneer against piracy, leading the way by implementing this legislation.

The same proposal in Britain met with public backlash. Public consensus is these measures are too drastic and draconian. The measures will generate a bureaucratic nightmare while having little impact on the overall prevalence of file-sharing.

Other critics argue the increasing prominence of the Internet in everyday life makes suspending that privilege a limit on individual freedom of expression.

Even holders of copyrighted material are split on the subject. Artists, such as the music group Radiohead, argue that any effort to criminalize file-sharing is in vain. They believe artists would be better to embrace the potential of file sharing to share their work with a larger audience. This will allow them the opportunity to generate revenues through concerts and merchandising, and even the sale of their music.

Other artists are of an opposite view, believing that file-sharing restricts the ability of young artists to make a living, lessening the likelihood of success for emerging artists.

The three-strikes law is misguided, even if you believe such activity should be controlled.

Whether someone has violated copyright is often not a black-or-white issue. Copyright law is complex, and knowing in any given instance whether an infringement happened isn’t easy.

To implement these policies on a mass basis, in a similar manner to handing out parking tickets, ignores this complexity. And the penalty is more than paying a few dollars in parking fines.

The proposal is also open to abuse as sanctions imposed at the request of an alleged victim can be taken advantage of.

There are numerous examples of questionable takedown notices under the existing U.S. DMCA rules. In fact, the Electronic Frontier Foundation has created a Takedown Hall of Shame, which lists “bogus copyright and trademark complaints” which “have threatened all kinds of creative expression on the Internet.”

This points up another problem with the concept: violations need only be alleged, not proven. An individual may be accused and given a strike by their ISP with no proof of misconduct. Guilty till proven innocent is not something we should condone.

The issue of digital piracy will continue to be a contentious topic. The three strikes proposal is not a palatable solution.

Michael Geist and Boing Boing both point to a Norwegian study that shows that people who tend to download more music also tend to buy more.  They point out that this is consistent with a previous Canadian study.

A Canoe tech article says that the owner of the isohunt search engine for bitorrent files has asked the BC Supreme court to rule on whether it violates the copyright Act.

Seems that the Canadian Recording Industry Association has demanded that he take down the links – so rather than waiting for them to take action, he went direct to the courts to ask the question.

In essence, the issue is whether this site is no different than any search engine like Google, with no responsibility over what users search for and do with it when they find what they want – or does it somehow cross a line that makes it liable for any illegal or unauthorized copying that those that use it do.

This could prove to be interesting, and could have broader copyright implications affecting things beyond bittorrent search engines.  This is the type of case than can lead to unintended consequences, so one hopes that the court will take a considered look at the issues in general and the broader consequences of a ruling.

For the London Free Press – Nov 3, 2008

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The Electronic Frontier Foundation (EFF) recently marked the five-year anniversary of the Recording Industry of America’s (RIAA) mass litigation campaign to curtail music piracy on the Internet by releasing a comprehensive review.

The EFF report (available at eff.org) concluded that the campaign was harmful to music fans and artists alike, but has done little to slow unauthorized file-sharing.

The report notes growing skepticism by academics, watchdog groups and most importantly by the courts about the RIAA’s investigation and strong arm enforcement tactics. The RIAA has sued or threatened to sue almost 30,000 people for file sharing.

The RIAA’s “making available” theory has been rejected by many courts, which denounces the notion that merely having a music file in a “shared” folder on a computer, which may never get copied, constitutes copyright infringement. The EFF’s report suggests the policing campaign has simply taught people to choose to share files in ways that are harder to monitor — such as burning and exchanging CDs and MP3s among friends.

Peer-to-peer (P2P) file sharing is more popular than ever, comprising 45 per cent of Internet traffic and has become a fact of Internet life as P2P popularity has continued to grow yearly.

The main critique of the policing campaign has been that it arbitrarily punishes tens of thousands of people for what tens of millions are doing and barely puts any money in the pockets of artists.

American music fans who have been sued for sharing songs on P2P file sharing networks include children, grandparents, unemployed single mothers and college professors. These individuals are the best customers the music industry has.

New lawsuits are filed monthly and are supplemented by a flood of “pre-litigation” settlement letters designed to extract settlements without the need to enter the courtroom. The RIAA has done away with the court system by threatening individuals with expensive litigation and unfavourable outcomes that leaves a lay person with no alternative but to settle for amounts ranging from $3,000 to $11,000.

An example cited by the RFF of where the disproportionate amount of punishment has had devastating consequences include a single mother who thought she was legally downloading 24 songs with her daughter who was sued for $500,000 and settled for $4,000.

Another example is a student who attempted to negotiate a settlement with the RIAA and explained that she was already in debt to cover her tuition and could not pay any amounts. In response the RIAA representative suggested she drop out of school in order to pay the settlement.

It has become evident that suing music fans is no solution to the P2P problem. The RIAA frequently justifies the lawsuit campaign as the most effective way to get music fans to understand that downloading is illegal and can have serious consequences. The policing campaign has failed however to curtail P2P downloading and has not persuaded music fans that sharing is equivalent to shoplifting.

It is evident that people are going to share music using whatever software they like on whatever computer platform they prefer, regardless of the RIAA’s efforts.

That’s the title of an article in this month’s Wired magazine. Its an article that those interested in the copyright debate should take a look at.

The article basically makes the argument that the music industry blew it by trying to stop file sharing and implementing DRM – and that the video industry should learn from that.

About the music industry it states: Today, their industry in shambles, music execs are trying to turn back the clock, remove DRM, and finally give us what we should have had in 1999

Other comments: The lessons from the music fiasco are clear: Trying to limit the inherent advantages of digital files is a losing strategy. The way to stop piracy is to make everything available — easily, legally, and at a fair price.

Entertainment executives tend to find what they expect to find. If they fear theft, they’ll see piracy; if they’re looking for opportunity, they’ll discover ways to profit. The music labels ignored the opportunity for so long that it has all but evaporated. The television and film industries still have a shot, but they need to move fast.

So it leads me to a question. Is the proposal to add a fee to everyone’s internet access to allow downloading not mired in the same old thinking?

Read the Wired article

For the London Free Press – March 3, 2008

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File-sharing programs are being installed on personal computers both in the home and at the office.

A recent incident in Newfoundland involving the file-sharing program Limewire on a government consultant’s computer shows how this type of software can lead to security and privacy breaches.

Limewire is but one example of file-sharing, or peer-to-peer (P2P) software that makes it easy to find and download things stored on other people’s computers. Most people think of the software just in the context of music or video, but they can be used to transfer any kind of file.

P2P software can be used for downloading copyrighted materials that one perhaps should not. But it also can be used to download material that the owner or creator is legitimately offering to share.

Many forget, however, that P2P software usually is configured to allow others to upload files from their own computer. Since that includes any type of file, it includes things such as spreadsheets containing personal finances, Microsoft Word documents containing personal information — and in the Newfoundland case, a database containing names, addresses, dates of birth and medical and work histories of dozens of people.

Discussions about file-sharing software usually focus on the downloading side, and the debate over the legalities of downloading music, video and software. Uploading issues are often overlooked.

The upside of these programs is that they allow computer users to share files with ease and without cost. The downside is that they often allow other computer users to access information on your personal computer with the same ease that you download new files.

This creates a significant security risk, but the answer is not necessarily to un-install any file-sharing programs you currently use.

One of the greatest risks for individuals using file-sharing programs is that their personal information could be accessed by potential identity thieves. Few people would like to have the contents of their hard drives available to the world to see.

The consequences for businesses could be wider ranging.

In the Newfoundland incident, the personal information of more than 150 people was exposed when an outside consultant installed Limewire on his computer. The information remained accessible for three weeks before a security company brought it to the Government’s attention.

For individuals, the answer is to make sure that file-uploading parameters in your P2P software are set so only specified file folders can be used to upload files from. Those file folders should contain only material that you would like to share with others.

Businesses should make its employees and consultants aware of the issue, especially where they may use home computers to work on company business occasionally. P2P software should not be installed on business computers unless it’s necessary, and upload folders should be controlled.