The Copycrime Directive (IPRED2) has passed its first reading in the European Parliament. However, the vote was much closer than anticipated, and there are signs that some member states are beginning to have second thoughts about the Directive. The Directive still has a long way to go before it becomes law, and it’s not too late to tell your MEP to vote no unless it is changed to protect your digital freedoms.
Add comment April 25th, 2007
Next week – on Tuesday 24th April – the European Parliament will vote on a directive that would turn many breaches of copyright into criminal offences. This directive (with the catchy name of IPRED2) is dangerously wide. EFF Europe has explained why:
IPRED2 and BusinessThe entertainment industry spent millions suing the makers of the first VCRs, MP3 players and digital video recorders, trying to use copyright law to kill those innovative products because they threatened old business models. Fortunately, the industry was unsuccessful.
IPRED2’s new crime of “aiding, abetting and inciting” infringement again takes aim at innovators, including open source coders, media-sharing sites like YouTube, and ISPs that refuse to block P2P services.
With the new directive, music labels and Hollywood studios will push for the criminal prosecution of these innovators in Europe, saying their products “incite” piracy – with EU taxpayers covering the costs.
Under IPRED2, these same entertainment companies can work with transnational “joint investigation teams” to advise the authorities on how to investigate and prosecute their rivals!
IPRED2 and Your Digital Freedoms
Criminal law needs to be clear to be fair. While IPRED2 says that only “commercial scale” infringement will be punished, the directive doesn’t clearly define “commercial scale” or “incitement.” Even IP lawyers can’t agree on what are “private” and “personal” uses of copyrighted works. One step over that fuzzy line, however, and anyone could be threatened with punishments intended for professional counterfeiters and organized criminals.
How can ordinary citizens feel safe exercising their rights under copyright and trademark law when serious criminal penalties may be brought against them if they cross the line?
Please sign the petition against the directive.
If you’d like to contact your MEPs directly, you can find their details here, and EFF Europe has put up suggestions for what you might like to say here. (If you’re going to do this, make sure you contact their Brussels or Strasbourg offices rather than their Irish office.)
2 comments April 20th, 2007
Many thanks to Davin O’Dwyer who has an article in today’s Irish Times setting out our concerns about issues such as fair use, private copying rights, and more:
Whether it’s listening to music on iPods, talking on our mobile phones or surfing the web, most of us have embraced the digital lifestyle. Technology, however, is changing faster than the legislation covering our use of it. So while new technology promises a revolution in the way we consume and interact with different media, it is also giving content providers new ways of controlling our use of the music, movies and information we purchase.
…MUSIC The iPod has revolutionised the way we listen to music, but it has also opened a legal minefield. “As it stands in Irish law, it seems to be illegal for you to make a private copy of a CD that you’ve bought, so it’s illegal to copy a CD on to your iPod,” says TJ McIntyre of Digital Rights Ireland. “Needless to say, the music industry would like to be in a position where they sold you the music once on vinyl, once on cassette, once on CD and they’d now like to make you pay for the privilege of listening to it on your iPod.”
In May, the British Phonographic Institute (BPI) recommended that the law be changed to reflect a new reality in which people routinely convert their purchased CDs into MP3s. However, Sean Murtagh of Irma, the Irish equivalent of the BPI, says it has no plans to make a similar recommendation here. …
MOVIES With the advent of video iPods and Sony’s Playstation Portable (PSP) it seems that our DVD collections will eventually join our CD collections in our pockets. However, unlike CDs, DVDs are encrypted to protect the film studios’ copyrights. That is a matter of debate among certain copyright activists – if our CDs are unencrypted, why are our DVDs encrypted? Furthermore, it is illegal to create technology that circumvents copyright-protecting technology. So while copying CDs and putting them on portable players is legal in many countries – though not here – it is impossible to do the same with DVDs.
Movies will have to be purchased in a new format for portable players, even though the technology exists for them to be copied as CDs are. “The beauty of it is that [ the film studios] don’t have to persuade the market,” says McIntyre. “If they can come up with the technology and legislation that prevent fair use, they can ignore the wishes of the consumer.”
TELEVISION In the good old days, you watched something on channel A, you recorded whatever it was you wanted to watch on channel B, and then watched the tape. What’s more, you were legally entitled to do so. But that legal entitlement to fair use is under threat. As the technology moves beyond the VCR to “timeshifting” personal video recorders (PVRs) such as Tivo or Sky+, we should be able to digitally record programmes to a hard drive, skip the ads and move those programmes on to our iPods or PSPs.
However, a “broadcast flag” is being introduced by US networks. Certain programmes would be digitally flagged as, for instance, unrecordable, or watchable only once, or not entitled to be moved to a portable player. “Broadcasters would like to stop via technology what they couldn’t stop by legislation,” says McIntyre. “First they create the technology that stops people doing something [ the broadcast flag], and then they make it illegal for them to circumvent .”
What can we do about these issues? The Consumers’ Group BEUC is running a campaign at a European level, where you can sign a petition to urge MEPs to protect consumers’ rights. We’ll soon be launching an Irish campaign on these issues – watch this space for more.
Add comment July 10th, 2006
IRMA announced, with a media blitz on 15th November, that they intend to send letters to 50 new individuals and companies demanding damages for losses they claim have been caused by these people making files available for download.
We don’t yet know the full details of this, but there are a few issues still outstanding from the last set of such letters, issued by IRMA last April.
A representative of DRI appeared on the Last Word on Today FM, to raise some issues not usually addressed by IRMA. Time was short, so we thought we’d expand a bit on our concerns, for the interested reader.
No Safe Harbour
Firstly, there is the manner in which the individuals’ shared folders on their hard drives were entered and scanned. This was done on IRMA’s behalf by a company called MediaSentry. MediaSentry is a US based company, which does not operate within the ‘safe-harbour’ scheme for Data Protection. This means it has not agreed to handle EU citizens’ data in accordance with the European Data Protection regulations.
Two European countries have now come out against this kind of search of users’ property.
In the Netherlands, in the case of FOR THE PROTECTION OF RIGHTS OF THE ENTERTAINMENT INDUSTRY IN THE NETHERLANDS (BREIN) et al v UPC NEDERLAND B.V., and ors the court found that the use of MediaSentry to scan users’ shared folders and process the results was not in accordance with the provisions of European Data Protection Acts. MediaSentry does not confine its scanning to copyrighted music files, but also scans personal files of the computer owner. They therefore found that the application to the court to force ISPs to identify their users could not be granted, as BREIN and the record labels it represents could not rely on evidence gathered unlawfully.
In France, the Commission Nationale de I’Informatique et Libertes (CNIL) spent October 24th announcing that it would not permit the automated monitoring of users of P2P file sharing systems.
The CNIL concluded such monitoring could lead to
“a massive collection of personal data” and allow “exhaustive and continuous surveillance” of P2P sites “beyond that which was necessary for the fight against piracy”
cf Steptoe & Johnson’s E-Commerce Law Week.
IRMA may have a stateable case to answer, therefore, that the way in which they obtained the identities of the individuals to whom they have written could preclude them from relying on that information in court.
When questioned about this yesterday by Matt Cooper on the Last Word, Dick Doyle of IRMA relied on the fact that they had persuaded a High Court judge to grant them an order, as proof of the legitimacy of their plans.
However, it is possible that this fact is not the strength it may seem. If IRMA were aware of these arguments (through their contacts with other record label representative groups or otherwise), and did not inform the court of them, they may have, in legal terminology, not come to the court with ‘clean hands’.
In particular, as the individuals were not represented in court (being unaware of the matter until they received their letters from IRMA) this privacy issue was not addressed before the court, by any legal argument from the parties. In such cases, there is a particularly heavy onus on the plaintiffs to give full and frank disclosure to the court of all the facts at their disposal.
Proportionality of Damages
The other issue not put to IRMA during their whirlwind tour of the media, was the question of the proportionality of the damages claimed to their losses. They have quoted an average settlement figure of €2,500 from their April wave of demanding letters.
In the courts in Ireland, you can only get compensation for losses you can prove you have sustained. To succeed in the court, IRMA would have to prove that their members – the record labels in Ireland – had lost, from the specific individual before the court, a specific sum. We’ll take the €2,500 figure as an example.
As it is only the record labels who are suing their clients here, we can’t simply take the retail price and divide it in, to find the number of claimed lost CD sales that this represents. They can’t claim for the portion of the money that goes to retailers. Or to the distributors, or manufacturers. They can only claim for the profit on each CD that they can prove was not sold as a direct result of a specific individual making files available for sharing.
To date all IRMA have produced by way of justification for their claims of losses, has been to claim a causal link between the rise in file sharing and the fall in profits. However the record industry is a complicated beast – CDs are now available online from abroad more cheaply than those in the shops. CDWOW, only one such retailer, now has 120,000 registered Irish users and is describing its sales as thriving. The record labels’ international representative body, IFPI, said in July that Top 10 album sales were up 14% last year, after a difficult five-year slump. This in the face of what the industry has admitted to be a continuing rise in file sharing. In addition, there are studies that suggest that the people who download the most music from P2P networks are the most likely to spend a higher proportion of their money buying music.
This is not to say that downloading in breach of copyright is legitimate behaviour. But it does call into question whether IRMA’s claimed losses can be laid at the door of file sharing. And therefore, whether they could legitimately attempt to recoup those losses by way of damages from the individuals they sue. The law is not intended to be used to make up for the failures of a business model in a changing environment.
Have IRMA or the record companies they represent actuarial assessments of loss – something which would be required by a conscientious court, before damages at a certain amount could be awarded? If they have, will they publish those tables so that the criteria they use to assess their losses are made public? This is a public campaign of information and education, as they describe it, after all.
Arbitrary Action
Protection of legal rights should not be done in a capricious manner. And yet IRMA, as they admitted on the Last Word, do not believe that it is lawful for the owner of an iPod or other MP3 player to copy music from their own CDs, bought and paid for, onto their own music machine, bought and paid for.
They say that this is a breach of copyright, and therefore – by their emotive language, used in campaigns this year and for many years before – theft.
However they also say they don’t intend to do anything to enforce their rights to prevent this just now. Why should action against uploaders be a vital priority – no matter who they are – when the larger threat, from their point of view, must be the fact that every MP3 player and iPod is an occasion for wholesale theft of IRMA’s claimed property? Or, conversely, why should owners of MP3 players have the threat of potential legal action hanging over them if they haven’t done anything wrong?
We didn’t get an answer to that one on air.
DRI are in favour of civil, legal and human rights being protected in a digital world. That must extend to the legal rights of copyright holders, as much as individuals. However, perceived breach of a legal right would not excuse responding breaches of the civil right to privacy.
Further, if IRMA’s belief that it is illegal to move your legitimately purchased CDs to your own music player is correct, we believe that the law must be changed
19 comments November 16th, 2005
Digital Rights Ireland had its first outing into the public eye courtesy of a presentation at TechCamp last Saturday. I just thought it might be good to post what we learned from the experience, and to give people who were there, or who weren’t but were interested in the topic, a chance to dig a little deeper. That comments button is there for a reason, after all.
Continue Reading 15 comments October 18th, 2005
On Saturday last, DRI Chair TJ McIntyre and director Damien Mulley introduced Digital Rights Ireland at TechCamp Ireland. Although not a formal launch, which we are in the process of planning, this was our first major opportunity to introduce our aims and objectives, to gather feedback, and to hear what others are interested in.
Our 30 minute allocation expanded into a session nearly 3 times as long, as the discussion continued and we received a healthy amount of feedback on issues such as Data Retention, ID Cards, and Digital Rights Management.
Photos of Techcamp are available in a flickr pool, and you can read write-ups about our session from Bernie, Damien, Joe or Darren.
1 comment October 18th, 2005
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