Online copyright enforcement by Internet Service Providers

The culture of online sharing of information on the Internet extends to unauthorised sharing of copyright content, and is perceived as a major threat to copyright owners and content industries. Enforcement of existing copyright laws is difficult due to the widespread nature of unauthorised sharing. Rights holders have pursued individuals and organisations 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 unauthorised 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

Reinterpreting Repeat Infringement in the Digital Millennium Copyright Act

In 1998, Congress passed the Digital Millennium Copyright Act, which aimed to balance the growth of the internet with the enforcement interests of copyright holders. In exchange for immunity from third-party infringement, the DMCA imposes certain conditions on internet and online service providers. Unfortunately, the law continues to contain many ambiguities in its statutory scheme, not least of which is the requirement that service providers maintain a “repeat infringer policy” to remove individuals that repeatedly infringe intellectual property rights. In response to a review of the Copyright Act conducted by the House Judiciary Committee, the US Copyright Office authored a report in May of 2020 evaluating the DMCA. The report makes clear that there are persistent issues around the repeat infringer policy requirement. As social media companies become more powerful, resolving the ambiguities in the DMCA becomes increasingly important. This Article accomplishes two things. First, it is the only comprehensive review of the law around repeat infringer policies and lays forth a practical framework for what adequate policies must contain under Section 512(i)(1)(A) of the DMCA. Second, the Article contributes to the scholarly literature by proposing an effects-oriented policy solution in light of the vagueness of Section 512(i) of the DMCA: a tiered system for evaluating termination of users online. This system will consider the type of infringing user, providing lenience to the service providers, clarity to the copyright holders, and security to internet users by reinterpreting the circumstances in which termination is appropriate to better reflect Congress’ legislative intent

Copyright Backlash

In the past decade the entertainment industry has waged a legally very successful campaign against online copyright infringements. In a series of high profile decisions, content industries persuaded courts to accept expansive interpretations of contributory enforcement, to create novel doctrines of copyright infringement, and to apply broad interpretations of statutory damage provisions. Many private file-sharers, technology companies, university administrators and Internet service providers have felt the reach of this litigation effort. Yet a significant empirical anomaly exists: even as the copyright industry has ramped up the level of deterrence, online copyright infringements continue unabated. Why has the legal battle against file-sharers been so ineffective? The most straightforward explanation is that infringers are not deterred, either because the probability of getting caught remains remote or because the sanctions are not sufficiently salient. If that is the case, the expansive statutory damage award remedies in recent decisions such as Capitol Records v. Thomas-Rasset and Sony BMG v. Tenebaum, carry renewed promise for the entertainment industry. In this Article we claim that this deterrence-based approach will prove futile and even counterproductive to the goals of copyright holders. We argue that copyright law faces conditions similar to Prohibition and other historical episodes of enforcement failure. When infringements are widespread, effective deterrence cannot be attained without raising enforcement to levels that undermine the support for the underlying rules. As a result, enforcement has the inadvertent effect of moving behavior in the opposite direction from that intended by the law. In the context of copyright law, enforcement has increased the gap between the social and legal perceptions of copyright law. Because file sharers, as a group, perceive copyright litigation as excessive, this inadvertently strengthens opposition to the legally protected interests of copyright law. To further our understanding of the interplay between enforcement and public attitudes, we conduct two empirical studies on norms and copyright law. The results confirm that copyright enforcement is a double-edged sword. While stringent sanctions have a modest deterrent effect on file-sharing behavior, they increase anti-copyright sentiments among frequent offenders. This raises a spectacular challenge for copyright enforcement-the more copyright owners push to step up sanctions for copyright infringements; the more the public resents the protected rights. Consequently, stepping up sanctions tends to increase—rather than decrease—the rate and frequency of infringing activities. Our key results suggest therefore, that more stringent copyright enforcement will further erode respect for copyrights and may prove counterproductive to copyright owners

Study of Fundamental Rights Limitations for Online Enforcement through Self-Regulation

The use of self-regulatory or privatized enforcement measures in the online environment can give rise to various legal issues that affect the fundamental rights of internet users. First, privatized enforcement by internet services, without state involvement, can interfere with the effective exercise of fundamental rights by internet users. Such interference may, on occasion, be disproportionate, but there are legal complexities involved in determining the precise circumstances in which this is the case. This is because, for instance, the private entities can themselves claim protection under the fundamental rights framework (e.g. the protection of property and the freedom to conduct business). Second, the role of public authorities in the development of self-regulation in view of certain public policy objectives can become problematic, but has to be carefully assessed. The fundamental rights framework puts limitations on government regulation that interferes with fundamental rights. Essentially, such limitations involve the (negative) obligation for States not to interfere with fundamental rights. Interferences have to be prescribed by law, pursue a legitimate aim and be necessary in a democratic society. At the same time, however, States are also under the (positive) obligation to take active measures in order to ensure the effective exercise of fundamental rights. In other words, States must do more than simply refrain from interference. These positive obligations are of specific interest in the context of private ordering impact on fundamental rights, but tend to be abstract and hard to operationalize in specific legal constellations. This study’s central research question is: What legal limitations follow from the fundamental rights framework for self-regulation and privatized enforcement online? It examines the circumstances in which State responsibility can be engaged as a result of selfregulation or privatized enforcement online. Part I of the study provides an overview and analysis of the relevant elements in the European and international fundamental rights framework that place limitations on privatized enforcement. Part II gives an assessment of specific instances of self-regulation or other instances of privatized enforcement in light of these elements

Pervasively Distributed Copyright Enforcement

In an effort to control flows of unauthorized information, the major copyright industries are pursuing a range of strategies designed to distribute copyright enforcement functions across a wide range of actors and to embed these functions within communications networks, protocols, and devices. Some of these strategies have received considerable academic and public scrutiny, but much less attention has been paid to the ways in which all of them overlap and intersect with one another. This article offers a framework for theorizing this process. The distributed extension of intellectual property enforcement into private spaces and throughout communications networks can be understood as a new, hybrid species of disciplinary regime that locates the justification for its pervasive reach in a permanent state of crisis. This hybrid regime derives its force neither primarily from centralized authority nor primarily from decentralized, internalized norms, but instead from a set of coordinated processes for authorizing flows of information. Although the success of this project is not yet assured, its odds of success are by no means remote as skeptics have suggested. Power to implement crisis management in the decentralized marketplace for digital content arises from a confluence of private and public interests and is amplified by the dynamics of technical standards processes. The emergent regime of pervasively distributed copyright enforcement has profound implications for the production of the networked information society

Filtering, Piracy Surveillance and Disobedience

There has always been a cyclical relationship between the prevention of piracy and the protection of civil liberties. While civil liberties advocates previously warned about the aggressive nature of copyright protection initiatives, more recently, a number of major players in the music industry have eventually ceded to less direct forms of control over consumer behavior. As more aggressive forms of consumer control, like litigation, have receded, we have also seen a rise in more passive forms of consumer surveillance. Moreover, even as technology has developed more perfect means for filtering and surveillance over online piracy, a number of major players have opted in favor of “tolerated use,” a term coined by Professor Tim Wu to denote the allowance of uses that may be otherwise infringing, but that are allowed to exist for public use and enjoyment. Thus, while the eventual specter of copyright enforcement and monitoring remains a pervasive digital reality, the market may fuel a broad degree of consumer freedom through the toleration or taxation of certain kinds of activities. This Article is meant largely to address and to evaluate these shifts by drawing attention to the unique confluence of these two important moments: the growth of tolerated uses, coupled with an increasing trend towards more passive forms of piracy surveillance in light of the balance between copyright enforcement and civil liberties. The content industries may draw upon a broad definition of disobedience in their campaigns to educate the public about copyright law, but the market’s allowance of DRM-free content suggests an altogether different definition. The divide in turn between copyright enforcement and civil liberties results in a perfect storm of uncertainty, suggesting the development of an even further division between the role of the law and the role of the marketplace in copyright enforcement and innovation, respectively

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