The Case for Copyright Reform (5 page)

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: