Copyright Enforcement Research Articles

Music piracy and digital rights management in Mexico: shifting to a sound model

Much has been written about piracy and the measures that industrialised countries have implemented to eliminate illegal music distribution and copyright infringement. Nevertheless, similar measures have been applied in second and third world countries with a different level of success. Mexico specifically, is appointed as a haven for piracy and a sink hole for intellectual property that is beyond repair, and which accounts for millions of dollars of loss to the copyright owners every year. Based on that premise, this document intends to analyse the effectiveness of the existing copyright enforcement measures and the music industry business model under the light of the socioeconomic and cultural panorama of this Latin American nation to determine, from a systemic perspective, where the leverage points for a so needed turn of events can be found.

Through A Router Darkly: How New American Copyright Enforcement Initiatives May Hinder Economic Development, Net Neutrality and Creativity

On November 1, 2012, Russia enacted a law putatively aiming to protect Russian children from pedophiles. This law authorizes deep packet inspection (DPI), a method used for monitoring, filtering and shaping internet traffic, which has heightened concerns among many leading privacy groups. These groups are concerned with how the government will use such an intrusive method in prosecuting child predators. Central to this concern is DPI’s capability to allow the Russian government to peer into any citizens’ unencrypted internet traffic and monitor, copy, or even alter the traffic as it moves to its destination. The unresolved question is whether the government’s use of DPI will be restrained and utilized primarily to thwart child predators, or whether it will be expanded to lay the groundwork for a new era of national censorship. Although the United States has not yet adopted similar tactics in regulating its citizens’ internet use, Russia’s implementation of the new DPI monitoring and filtering system will provide an educational opportunity for both privacy advocates and policymakers.

Copyright enforcement in the digital age: a post-ACTA view on the balancing of fundamental rights

The ratification process of the Anti-Counterfeiting Trade Agreement (ACTA) in the European Union has raised many (academic and non-academic) questions on various aspects of the enforcement of intellectual property rights (IPR), one of them being the relation between copyright enforcement and the fundamental rights of (alleged) infringers. In this article, we analyse this relation in the context of the existing European framework, with particular attention for the pertinent decisions of the Court of Justice of the European Union (CJEU). We then assess whether the measures proposed in ACTA upset the balance set by the CJEU. While the rejection of ACTA by the European Parliament seems to relieve the most imminent threats, the review of the IPR Enforcement directive and other Commission initiatives, including bilateral agreements, should keep the discussion alive.

Los puertos seguros para los intermediarios de internet

<p>La observancia del derecho de autor es una prioridad en la agenda internacional, pues existe una búsqueda que pretende sustituir las actuales limitaciones de las leyes vigentes a fin de responder a los desafíos de las nuevas tecnologías de la información y la comunicación (TIC). El presente artículo realiza un acercamiento comparado a la legislación concebida para la protección y observancia del derecho de autor en internet de países como Estados Unidos y de la Unión Europea, en relación con la responsabilidad de los intermediarios de internet frente a los contenidos infractores que puedan transitar o alojar en sus sistemas. Se hará un especial énfasis en la legislación actual relativa a los puertos seguros –safe harbours–, en la jurisprudencia que ha tratado de modelar este comportamiento y en los nuevos estatutos que se han generado como respuesta a una búsqueda de mayor protección y observancia del derecho de autor en internet.</p>

Online copyright enforcement by Internet Service Providers

The culture of online sharing of information on the Internet extends to unauthorized sharing of copyright content, and is perceived as a major threat to copyright owners and content industries. Enforcement of existing copyright laws is difficult owing to the widespread nature of unauthorized sharing. Rights holders have pursued individuals and organizations involved through existing legal channels, with limited success. They have also engaged in voluntary arrangements with Internet Service Providers to educate and, potentially, punish infringers. Governments have more recently become involved in developing new legislation with similar aims. The approaches to addressing the issue have been controversial, mainly because of lack of transparency in their development and concerns about their potential impact on the rights of individuals. The approaches to addressing online copyright infringement are described. The nature of the policy-making process and its impact on how legal measures are perceived are analysed. The potential impact of measures on the rights of subscribers is discussed. A key conclusion is that new measures to combat unauthorized file sharing need not, in principle, adversely affect the balance between rights, but the design and implementation of legal measures do raise concerns in terms of necessity and proportionality.

'Estimating the Economic Effects of Fair Use and Other Copyright Exceptions: A Critique of Recent Research in Australia, US, Europe and Singapore'

Since 2002 the World Intellectual Property Organization (WIPO) has supported research on assessing the economic contribution of industries which are dependent on copyright and related rights protection – “the copyright industries” (CRI) . In 2003 WIPO published common guidelines on carrying out such research throughout the world (WIPO 2003, 2012a, 2012b). This paper presents a critique of a number of recent studies which have departed from the widely accepted WIPO approach outlined above and instead attempted to estimate the economic effects of what they call copyright exceptions industries (CEI) that rely on exceptions to copyright law . These studies in effect attempt to challenge the approach of the WIPO and assert that exceptions to copyright law might make a larger economic contribution than copyright law itself. The Computer & Communications Industry Association (CCIA) CCIA issued the first of these “copyright exceptions” or “fair use” studies in 2007, under taken by Capital Trade Inc (CT) which purported to measure CEI in the US during the period 2002-2006. CCIA has since commissioned CT to update this study in the US twice, first in 2010 , and then in 2011. In 2010 the CCIA further commissioned a study of the European Union (EU) this time by SEO Economic Research which adapted and applied the same approach used by CT in the US. Recently in September 2012 the Australian Digital Alliance (ADA) similarly commissioned and released two reports written by Lateral Economics (LE) that adapted and applied the methodology used in the US and EU to Australia.We focus our critique in this paper primarily on the LE Australian study as it is the most recent attempt to measure copyright exceptions by applying the methodology developed in the US. Our critique of the LE approach however can be readily generalised to the older US and EU studies.The main conclusions of the LE study of Australia we shall focus on then are that:• “flexible copyright ‘exceptions’ and better crafted ‘safe harbours’ would make a substantial contribution to Australia’s economic growth and innovation with negligible downsides for rights holders; and• the recommended changes would improve productivity growth. Over time the additional value added to the Australian economy is conservatively estimated to grow to around $600 million annually. This paper identifies three fundamental flaws in the LE’s papers analysis that make the analysis unreliable and its recommendations irrelevant. • The first is fundamental weaknesses in the theoretical economic analysis of the costs and benefits of broadening copyright exemptions;• The second is fundamental weaknesses in the empirical analysis and in particular the methodology it adopts from earlier US and European Studies;• The third is fundamental weaknesses in the legal analysis.Contrary to the LE reports this paper suggests that any weakening in the enforcement of copyright, through introduction of ill defined exceptions and safe harbours of the kind promoted in the LE reports, would have significant negative economic costs, and little or no benefit. Economic theory further suggests that if there are flexible copyright ‘exceptions’ and better crafted ‘safe harbours’ that would make a substantial contribution to Australia’s economic growth and innovation, with negligible downsides for rights holders, then in all likelihood they would have already been agreed to in the market or may be expected to emerge over time through automated market based electronic payment systems.

Why Conservatives and Libertarians Should Be Skeptical of Congress's Copyright Regime

Whatever your philosophical position, if you are skeptical of government power, you should likewise be skeptical of the copyright system that has developed over the last century. It is possible to have a deep respect for copyright and still recognize that a particular implementation of the idea of copyright can be flawed. The current copyright regime should give us pause for several reasons: First, copyright is very different from traditional forms of property. Therefore we should be cautious about how we create such a property right and how we define that right. If copyright is weak, then it will provide little incentive to create, but if it is too strong, then it will limit the public’s ability to enjoy and build on creative works. Second, Congress is supposed to represent the public’s interest, but it has abdicated that responsibility: it has turned over the responsibility of crafting copyright law to the representatives of copyright-affected industries. Third, in the name of further strengthening copyright, Congress has moved to place restrictions on technology. Furthermore, the past decade or so has seen a dramatic rise in the criminal enforcement of copyright. These observations should lead us to ask ourselves, How much is enough protection? And how much is enough enforcement? We should not only be skeptical of the inevitable calls for yet stronger protections, but we should seek serious reform as well.

The Times, They Are A-changin’: The New Economics of Weak Copyright Enforcement

It seems clear that the New York Times’ online paywall, which debuted in March 2011, was built to allow circumvention by those determined to circumvent it. The paywall is not really a mechanism for enforcing copyright. Rather, it is a mechanism for sorting and price discrimination. More than a year after its launch, to the surprise of many observers, the Times’ paywall appears to be a great success. Why was this such a surprise? When people evaluate content and copyright issues, it is common for them to implicitly or explicitly rely on one of two extreme viewpoints about the nature of the content industry: (1) that you can’t make money by giving your product away or (2) that any sort of paywall or access restriction to content is doomed to failure because of the unique properties of the world of bits. Both of these viewpoints are wrong. A moderate position is more nearly correct: The purpose of access controls should not be to try to exclude all nonpayers. Rather, the role of access controls should increasingly be to induce those users who are willing to pay for access to do so, and to pay no mind to those users who are willing to invest some effort in circumventing them. Times customers’ patronage of content they enjoy is evidence that we don’t need the state to promote the progress of science and the useful arts.

How the Criminalization of Copyright Threatens Innovation and the Rule of Law

The trade-off between the harms of copyright infringement and the harms to innovation from overzealous enforcement have been central to the copyright debate for decades. US courts have tried to fashion a body of law that strikes a balance between these dangers. Two related trends in copyright enforcement threaten to upend this balance. First, the federal government has begun to criminally prosecute online intermediaries who allegedly facilitate the infringing activities of users. The threat of civil liability already gives entrepreneurs strong incentives to follow the law, so adding criminal penalties may cause them to become excessively risk-averse, depriving consumers of valuable innovations. Second, using civil forfeiture powers granted by the 2008 PRO-IP Act, the federal government has begun seizing the domain names, servers, and other assets of online intermediaries. This power to seize assets prior to conviction is making a mockery of defendants’ constitutional rights. These two trends threaten both the rule of law and online innovation.

Online piracy, anonymity and social change

This article analyses current trends in the use of anonymity services among younger Swedes (15–25 years old) and focuses on individuals engaging in illegal file sharing in order to better understand the rationale behind both file sharing as well as online anonymity, especially in relation to enforcement of copyright. By comparing the findings of a survey conducted on three occasions (early 2009, late 2009 and early 2012), we measure the fluctuations in the use of anonymity services among approximately 1000 15–25-year-olds in Sweden, compare them with file sharing frequencies and, to some extent, trends within legal enforcement. The article also suggests that the key to understanding any relationship between copyright enforcement and fluctuations in online anonymity can be found in the law’s relationship to social norms in terms of legitimacy by showing a correlation between file sharing frequency and the use of anonymity services. The findings indicate that larger proportions of frequent file sharers (downloaders) also use anonymity services more often than those who file share less. However, in comparison to the earlier surveys, the strongest increase in the use of anonymity services is found in the groups where file sharing is less frequent, suggesting that reasons for actively making oneself less traceable online other than avoiding copyright enforcement have emerged since the initial two surveys in 2009. Further, the overall increase (from 8.6 per cent to 14.9 per cent) in using anonymity services found for the whole group of respondents suggests both that high file sharing frequency is a driver for less traceability, as well as a larger trend for online anonymity relating to factors other than mere file sharing of copyright infringing content – for example, increased governmental identification, data retention and surveillance in the online environment. The results are analysed in Merton’s terminology as file sharers and protocol architects adapting in terms of both innovation and rebellion in the sense that institutional means for achieving specific cultural goals are rejected. This means, to some extent, participating in or contributing to the construction of other means for reaching cultural goals.

Graduated Response American Style: 'Six Strikes' Measured Against Five Norms

In 2008, in recognition of the DMCA’s inadequacy in the face of P2P file sharing, and with the high-profile case of Arista Records v. Lime Group pending in federal district court in New York, then New York State Attorney General Andrew Cuomo began pressuring broadband providers to agree voluntarily to play a greater role in fighting online infringement. Subsequently, the Obama administration, represented nationally by the Office of the Intellectual Property Enforcement Coordinator (IPEC) and internationally by the Office of the United States Trade Representative (USTR), expressly endorsed the concept of privately negotiated anti-piracy collaborations between corporate rights owners and broadband providers. In July of 2011, broadband providers finally bowed to the mounting political pressure and to changing economic realities in the business of corporate content ownership and delivery. Five of the largest telecommunications companies in the United States entered into a memorandum of understanding (MOU) with trade groups representing major corporate copyright owners. The MOU creates what the parties characterize as a common framework of ‘best practices’ to effectively alert subscribers, protect copyrighted content and promote access to legal online content.This Article is an assessment of the MOU's Copyright Alert System (CAS) with respect to five norms that are central to consumer protection in the enterprise of online copyright enforcement: freedom of expression, privacy, fairness, proportionality, and transparency. Part I provides an introduction to graduated response, which is the genus of online copyright enforcement to which CAS belongs. Part II takes a comparative look at two pre-existing graduated response systems: the government mandated and administered program in France, Hadopi, and a privately administered program in Ireland run by the broadband provider Eircom. Part III provides a detailed overview of CAS, including the structure by which it is governed, the division of labor it prescribes between copyright owners and broadband providers, the progression of warnings and sanctions it implements, and the appeals process it makes available for affected broadband subscribers. Part IV evaluates the strengths and weaknesses of CAS with respect to each of the five norms listed above, using the systems in France and Ireland as reference points.

Evaluating SOPA: who should enforce IP online?

The Stop Online Piracy Act, or SOPA, was a highly controversial proposal put to US Congress to enable the enforcement of copyright and trade mark law against foreign ‘rogue’ websites. SOPA would have enlisted a range of new intermediaries in the online enforcement ‘war’: in particular, domain name servers, credit card providers and online advertising service providers. This article outlined the proposals that were included in SOPA and critically analysed the simplistic ‘least cost avoider’ reasoning that justifies enlistment of these intermediaries on the basis that there is an online enforcement problem that they could assist in reducing. Although SOPA itself is politically dead, ideas embodied in it are likely to recur in some form in the future. It is therefore worth critically examining what was proposed.

The Azerbaijan Report: Capacity Development for Enhancing Enforcement of Copyright and Related Rights in Azerbaijan

In Activity 1.5, the objective of the Short Term Experts (STE) was concentrated on assisting in preparing a roadmap for institution building activities described in par. 1.1 to 1.4 (inclusive) and for implementing the recommendation arising there from. This objective was part of the more general objective within the framework of Component 1 related to the strengthening of the institutional capacity of the Copyright Agency so as to permit it to integrate the new activities envisaged by the Twinning Project, and enhancing the institutional structures of law enforcement bodies and collective management bodies so as to improve the IPR enforcement framework.

Scarlet v SABAM: Evidence of an Emerging Backlash Against Corporate Copyrights Lobbies in Europe?

The very recent decision of the European Court of Justice in Scarlet v SABAM is of high importance, especially for the ongoing debate around copyright enforcement online: the judges of the court decided that wide-ranging measures which involved total monitoring of Internet users' activity and the blocking of peer-to-peer sites via which copyrighted material may be accessed illegally for an unlimited time was a disproportionate measure, and emphasised the fact that intellectual property rights were not absolute rights, but had to be balanced against other rights such as free expression and privacy. This chapter will present an in-depth analysis of Scarlet v SABAM, and the background against which it was decided, in order to assess whether it represents another instance of a fightback against copyright lobbies in Europe. Europe over the last few years has followed the United States in enacting measures to extend copyright terms, and at the national level legislation has also been enacted specifically to target Internet users allegedly infringing copyright protections by downloading illicitly copyrighted material, especially from peer-to-peer filesharing programmes, such as the Digital Economy Act in the United Kingdom, in the midst of heavy lobbying from corporate copyright holders for ever stricter measures. Nevertheless, the Scarlet v SABAM case has been decided at a time when the tide may be turning against the power of copyright lobbies in Europe. Firstly, European Commission Vice-President for the Digital Agenda Neelie Kroes, recently critiqued the current approach to copyright enforcement in Europe as not protecting the interests of the majority of individual artists, as well as being alienating the general citizenry. Furthermore, in the United Kingdom the government has been conducting a wide-ranging review of communications regulation, which has involved discussions over the reform of intellectual property, particularly in the digital age, including a recommendation that an evidence-based approach be adopted to making policy in this area, which balances economic and social objectives (containing an implicit scepticism about the corporate lobbying that has hitherto being a major driver of intellectual property policy).However, Scarlet v SABAM may also encompass the ascendancy in the copyright debate of another powerful lobby with its own interests, namely that of the telecommunications companies such as Scarlet which provide Internet access to users, and for which monitoring users' data to detect copyright violations represents a cost to them lacking a (profit-based) benefit. Although in the past telecoms companies have claimed that they are unable to monitor content, this is not accurate at present, given the availability of deep packet inspection technologies, which are indeed used by these very companies but in a way which provides new means of exploitation and sources of profit by prioritising and/or blocking certain types of Internet traffic.The chapter would consider these issues through the adoption of an actor-based approach, in order to analyse the case in light of the competing discourses presented by the creative and telecommunications industries, in addition to the view of consumer advocate groups. In doing so, the Scarlet case will be assessed in the context of the ongoing debate regarding the limits of copyright, and will also refer to recent developments such as the Copyright in Sound Recordings Term Extension Directive, and proposals for a Directive on Criminal Enforcement of Intellectual Property Rights.

Policing the Network: Using DPI for Copyright Enforcement

Deep Packet Inspection (DPI) and other network surveillance techniques have become important factors in the policy debate over online copyright infringement. These new technical capabilities reopened an old debate about the responsibility of internet service providers (ISPs) for policing the internet. This paper attempts to understand the extent to which new technological capabilities have the power to alter regulatory principles. It examines political conflict and negotiation over proposals to use DPI for online copyright enforcement in the EU and the USA, using a hybrid of actor-network theory from science, technology and society studies and actor-centered institutionalism in political science. It shows that while the technology disrupted a policy equilibrium, neither the EU nor the US applied DPI to copyright policing in a way that realized its radical potential. The key factor preventing such an integrated response was the disjunction between the interests of network operators and the interests of copyright holders.

The Changing Role of Intermediaries in Copyright Enforcement

This short article analyses one of multiple intersections between the disciplines ‘communications law’ and ‘intellectual property law’: Internet (access) service providers (ISPs) and their changing role in the enforcement of copyright. This article examines the global shift from passive-reactive to more active harbour schemes for intermediaries and provides a general framework and overview on the various policy options. It describes legislative and other approaches taken on both, national and international level. Finally, it puts the proposed Canadian regime into perspective and concludes with considering some broader policy implications.

Image Phylogeny by Minimal Spanning Trees

Nowadays, digital content is widespread and also easily redistributable, either lawfully or unlawfully. Images and other digital content can also mutate as they spread out. For example, after images are posted on the Internet, other users can copy, resize and/or re-encode them and then repost their versions, thereby generating similar but not identical copies. While it is straightforward to detect exact image duplicates, this is not the case for slightly modified versions. In the last decade, some researchers have successfully focused on the design and deployment of near-duplicate detection and recognition systems to identify the cohabiting versions of a given document in the wild. Those efforts notwithstanding, only recently have there been the first attempts to go beyond the detection of near-duplicates to find the structure of evolution within a set of images. In this paper, we tackle and formally define the problem of identifying these image relationships within a set of near-duplicate images, what we call Image Phylogeny Tree (IPT), due to its natural analogy with biological systems. The mechanism of building IPTs aims at finding the structure of transformations and their parameters if necessary, among a near-duplicate image set, and has immediate applications in security and law-enforcement, forensics, copyright enforcement, and news tracking services. We devise a method for calculating an asymmetric dissimilarity matrix from a set of near-duplicate images and formally introduce an efficient algorithm to build IPTs from such a matrix. We validate our approach with more than 625000 test cases, including both synthetic and real data, and show that when using an appropriate dissimilarity function we can obtain good IPT reconstruction even when some pieces of information are missing. We also evaluate our solution when there are more than one near-duplicate sets in the pool of analysis and compare to other recent related approaches in the literature.

The Baidu Music Settlement: A Turning Point for Copyright Reform in China?

This paper is a case study of the legal aspects of Baidu’s online music distribution business from its inception in 2000 to the July 2011 settlement. After successfully withstanding several legal challenges over the 2005-2011 period, Baidu suddenly concluded an out-of-court settlement with a group of music distribution companies, under which Baidu would pay royalties for every track played and downloaded through its music distribution platform while acquiring legal distribution rights to music. The objective of the paper is to identify the factors behind Baidu’s surprising out-of-court settlement, elaborate on the significance of this agreement for copyright enforcement in China, and speculate on the future of digital content distribution in that country. We conclude that several factors, that singly may not have influenced Baidu to alter its music distribution model, combined to bring about this change. The Baidu settlement is therefore not a turning point, but a manifestation of a gradual but significant shift in intellectual property enforcement in China.

Copyright Conspiracy: How the New Copyright Alert System May Violate The Sherman Act

In July 2011, a consortium of major content providers and Internet service providers announced their intention to implement the Copyright Alert System, a graduated response plan aimed at stemming online copyright infringement by individual users. While other commentators have examined the rise of these systems abroad and certain potential issues with the implementation of such measures in the United States, little has been said about the antitrust implications of a private system of copyright enforcement. This article recounts the history of online infringement leading up to the Copyright Alert System and then analyzes the system from the perspective of antitrust law, taking the position that the system announced raises significant antitrust concerns. The article concludes with recommendations for improving the current system to protect the rights of consumers.

Private Rights and Public Wrongs: Fair Use as a Remedy for Private Censorship

Copyright law seeks to promote the public welfare by incentivizing the creation and publication of art, literature, and other original works of authorship. The law bestows exclusive economic rights in expression, which allow copyright holders to exploit the commercial value of their creations in the marketplace. This affords a high degree of control over when and how others use copyright-protected works. These rights, however, are not absolute. The 'fair use' doctrine has traditionally permitted unauthorized and uncompensated uses of copyrighted material for socially beneficial purposes.Under current jurisprudence, the fair use analysis is dominated by concerns about market harm. The doctrine favors 'transformative' uses that are unlikely to reduce demand for the original work by substituting for it in the marketplace. This approach makes sense when, as in most infringement cases, a copyright holder sues to protect the commercial value of a work that has been or will soon be published. But when the plaintiff’s motive is to censor his work from the public eye altogether, without regard for its commercial value, copyright enforcement is far less compelling. In these “private censorship” cases, the market-oriented fair use analysis routinely overprotects copyrights and produces outcomes that conflict with copyright law’s constitutionally-mandated purposes.This Article proposes a reinterpretation of the fair use doctrine in the private censorship context. Eschewing the prevailing 'market substitution' framework, this alternative analysis would give greater weight to copyright law’s public-oriented objectives. The proposed analysis would facilitate a more equitable adjudication of private rights and public interests by helping to distinguish legitimate applications of copyright law from illegitimate attempts to suppress information and expression.