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CDIP 1: Online Piracy

But hey. I went to jail for my cause and your TV shows.


What did you do?

Piracy

TRIPS, Art. 51, footnote 14


Goods which are copies made without the
consent of the right-holder and which are
made directly or indirectly from an article
where the making of that copy would have
constituted an infringement of a copyright.
Copyright holder has the exclusive right to
distribute his work. Piracy is the unauthorised
reproduction, or distribution of such work.

Churning Numbers
Korean Film Council - online pirated film
market worth $742.7 million annually,
calculated at the rates of legal usage fees.
MPAA - $6.1 billion annually
Microsoft, Adobe - $13.5 billion to software
pirates in Europe, $58.8 billion globally.

Conflicting numbers; how did they get


here?

50 Shades of Piracy

Greed-based want because its free. E.g. TV


shows, music, etc. that is also available through
other networks, softwares
Need-based educational books (Libgen)
Curiosity-based access what isnt available. E.g.
movies, music that arent accessible
Legally - All illegal
Morally some/all pardonable (SOPA/PIPA protest)
This is where the law fails. So, what do we
do?

What About the Websites?


Uploaders and downloaders are liable
Websites merely provide a platform
(intermediaries)
Lots of legal material, yet shut down The
Pirate Bay case
Blocks dont work gazillion reasons

Resolution?

Legal Issues
I. Promotion of free speech v.
restrictions
Art. 10, ECHR freedom of expression
(freedom to impart information v. protection
of authors rights)
Art. 19, ICCPR freedom of expression
(same as above)
Art. 27, UDHR freedom to enjoy creativity
of others (enjoy the arts v. protection of
authors material interests)

Freedom of Expression v.
Copyright
Universal Studios, Inc. v. Corley amendments to the U.S. copyright law in the
DMCA unconstitutionally eliminated fair use.
Fair use allows copyright to be infringed in
certain circumstances. E.g. parody
fair use has never been held to be a guarantee
of access to copyrighted material in order to copy
it by the fair users preferred technique or in the
format of the original...

Copyright stifles legitimate activities, including


freedom of expression.

Freedom of Expression v. Copyright


Ashby Donald v. France
1. Conviction for infringing copyright by publicly
communicating copyright protected material is
an infringement of freedom of expression (Art.
10, ECHR).
2. Conviction valid if i. necessary; ii. prescribed
by law; iii. pursues a legitimate aim
Difference between expression that contributes
to an issue of public debate and commercial
speech.

Commercial nature of websites activities?

The Intermediaries
Argument

Websites transfer information. No storage.


Legitimate content
Contributory infringement
Art. 8(3), InfoSoc Directive:
Member states shall ensure that that rightholders
are in a position to apply for an injunction against
intermediaries whose services are used by a third
party to infringe a copyright or related right.

Art. 14, eCommerce Directive:


Notice and takedown regime for services that
store information if awareness of illegal activity is
apparent.

Daily Motion case: Daily Motion must be deemed


to have been aware of facts and circumstances
that would lead one to believe that illicit videos are
being posted, that it therefore falls to Daily Motion
to take responsibility, without passing the fault
solely onto the users, once the company has
deliberately furnished the users the means to
commit the wrongful act.

In Re Aimster Copyright Litigation:


Recognizing the impracticability of a copyright
owners suing a multitude of individual infringers,
the law allows a copyright holder to sue a
contributor to the infringement instead, as an
aider.

MGM v. Grokster
One infringes contributorily by intentionally
encouraging direct infringement, and infringes
vicariously by profiting from direct infringement while
declining to stop it.
Lawful uses immaterial
Three criteria:
(1) the defendant promoted the infringement-enabling
virtues of its device;
(2) the defendant failed to filter out infringing uses;
and
(3) defendants business plan depended on a high
volume of infringement.

The Pirate Bay case


discussion

Problems with Restrictions

Websites keep resurfacing laws arent uniform


Change countries, etc.

Traffic does not decrease


BREIN v. Ziggo/XS4ALL
Proxies, other methods of breaching

Problematic liability system


Canada: notice and notice system ISPs need to send
infringement notices; sometimes attached fines.
U.S. six strike system warnings, then punishment

Data is incorrectly calculated Would the college student watching the pirated movie download
have otherwise seen the movie in the theater, subscribed to Netflix
or bought the DVD? Would the person buying a pirated DVD at a
Chinese market actually have bought the genuine article
otherwise? The answers to such questions are hard to determine.
But it does seem fair to assume that not every pirated copy of an
audiovisual work represents lost revenue to the content producer.

Michael Geist
i. Librarians, people focused on digital issues, etc. will buy the book
regardless of whether it is freely available online.
ii. Might have purchased the book, but dont because there is a free
version available. Financial loss.
iii. Would not have purchased the book or even been aware of it, but
find it through open access. Likes, buys the book. If group three is
larger than group two, the publisher ends up ahead.
iv. Would not buy the book but choose to download it never have
been purchasers.

Benefits from Piracy

Publicity Geist analysis media that would


not be accessible in any way

Access to people redefine the role of


media?

Solutions
Restrictive
i. Catch the perpetrators directly. Strict ISP
action
ii. Cut funding
iii. Uniform international policy

Liberal
i. New revenue model; Content ID
Monetize, distribute revenue

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