18 September 2013

ISPs and Graduated Responses

The insightful and detailed (62 page) 'Evaluating Graduated Response' by Rebecca Giblin comments that
 It has been more than three years since the first countries began implementing 'graduated responses', requiring ISPs to take a range of measures to police their users' copyright infringements. Graduated responses now exist in a range of forms in seven jurisdictions. Right-holders describe them as 'successful' and 'effective' and are agitating for their further international roll-out. But what is the evidence in support of these claims?
After providing a detailed snapshot of the structure and application of graduated response schemes in France, New Zealand, Taiwan, South Korea, the U.K., Ireland and the U.S., the paper synthesizes the available evidence regarding the efficacy of the various arrangements, and then evaluates the extent to which they are actually achieving the copyright law’s aims. Of course, as the work acknowledges, it is impossible to identify any one unifying target or rationale. Accordingly, the paper evaluates the extent to which the global graduated response is helping to achieve any of several distinct aims that are often put forward to justify the grant and expansion of copyright (while being agnostic as to which, if any, should be preferred). Thus, it asks:
1. To what extent does graduated response reduce infringement?
2. To what extent does graduated response maximize authorized uses?
3. To what extent does graduated response promote learning and culture by encouraging the creation and dissemination of a wide variety of creative materials?
The analysis demonstrates that, judged against these measures, there is little to no evidence that that graduated responses are either 'successful' or 'effective'. The analysis casts into doubt the case for their future international roll-out and suggests that existing schemes should be reconsidered.
Giblin introduces her paper by commenting that
The war against online copyright infringement has been fought on a number of different fronts – via litigation against the P2P software providers who enabled it, the end users who engaged in it, and, most recently, against the ISPs who provide the infrastructure that permits the data to flow. This last strategy has seen powerful content interests forcefully lobbying governments and ISPs worldwide to adopt so-called “graduated responses”. The message has been that content owners shouldn’t be responsible for policing infringement. In the view of the International Federation of the Phonographic Industry (IFPI):
actions against individual uploaders are onerous and expensive and we shouldn’t have to be taking them. That job should not be ours – it should be done by the gatekeepers of the web, the Internet Service Providers (ISPs), who unquestionably have the technical means to deal with copyright infringement, if only they would take responsibility for doing so.
Big promises have been made about the effects graduated response would have on end user infringement. In its 2007 Annual Digital Music Report, IFPI claimed that “[w]ith cooperation from ISPs, [it] could make huge strides in tackling content piracy globally” and argued that “[d]isconnection of serious copyright offenders by ISPs is the easiest and most practical response to illegal file-sharing.” Its view was that “[d]isconnection of service for serious infringers should become the speeding fine or the parking ticket of ISP networks.” The message in the announcement of its 2008 report was the same: “ISP cooperation, via systematic disconnection of infringers and the use of filtering technologies, is the most effective way copyright theft can be controlled.” The Motion Picture Association of America (MPAA) has similarly claimed that “[a] variety of approaches, including graduated response policies and technological tools, can meaningfully contribute to thwarting unlawful conduct online”.
These promises have been accepted in a number of jurisdictions around the world. Five countries – France, New Zealand, Taiwan, South Korea, and the UK – have enacted public laws which place some degree of responsibility on ISPs to police their users’ infringements. The first four have all been operational for some time, but the details of the UK arrangement are still being hammered out. In addition to these public graduated response laws, private arrangements between some rightholders and some ISPs have been reached in a few jurisdictions in an effort to achieve the same end result. The most notable of these operate in Ireland and the US. The paper only considers systems that involve some potential penalty or consequence for repeated infringement. So-called “notice-notice” schemes, where ISPs compulsorily or voluntarily forward infringement allegations to their customers but no penalty follows, are outside the scope of the paper.
This paper seeks to identify the effects of the various graduated response schemes around the world, and evaluate the extent to which they are achieving their aims. This is far easier said than done. Influential rightholders have repeatedly claimed that graduated response really does work. For example, IFPI has declared that graduated responses “have been effective where they have been introduced”, and the MPAA has announced that graduated response strategies “have proven to be successful in various contexts around the world”. However, judging the “success” or “effectiveness” of any copyright policy is a challenging exercise due to longstanding and fundamental disagreements about which factors success should be measured against. What is copyright law actually seeking to achieve?
There has never been universal agreement about what copyright law’s aims are, or even about what they should be. Multiplicities of theoretical and pragmatic considerations are part of the policy mix in any jurisdiction seeking to reform its copyright law. In recognition of that reality, this paper considers the extent to which each graduated response law is achieving the three aims that are most commonly used to justify the grant and expansion of copyright.
The first evaluation point will be the extent to which global graduated response reduces infringement. The suggestion that reduced infringement in and of itself is a proper aim of the copyright law is one that has been often been made by major global rightholders. Thus, when IFPI declared that graduated responses “have been effective where they have been introduced”, the evidence it provided in support was a claim of reduced use of P2P services in France and New Zealand, and a fall in cyberlocker usage in South Korea. Although it sought to link the reduction in South Korea with an increase in the legitimate market, the claims about NZ and France equated reduced infringement with “effectiveness” without addressing whether that reduction would translate to higher sales, increased distribution, more creation or higher quality creative output. In August 2013, the US Patent & Trademark Office (USPTO) invited public submissions to help it determine whether voluntary initiatives such as the US graduated response scheme have helped reduce infringement. One specific question it asked was “[h]ow should ‘effectiveness’ of cooperative voluntary initiatives be defined?” The Recording Industry Association of America (RIAA) argued that, to measure effectiveness, the USPTO should begin by identifying the intended goal of each voluntary initiative. It then recommended that the Office “consider whether or not the intended goal, if achieved, would likely be useful to deter online infringement.” This seemed to suggest that reduced infringement is a proper aim in and of itself – or at least the one that should be given the greatest weight.
The argument that copyright laws should aim to reduce infringement is often cloaked in the rhetoric of property and theft. One example of this is the MPAA’s long-running “Piracy – it’s a crime” campaign, which features the words:
You wouldn’t steal a car
You wouldn’t steal a handbag
You wouldn’t steal a television
You wouldn’t steal a movie
Downloading pirated films is stealing, stealing is against the law,
By using this rhetoric, the MPAA can be seen as relying on a right-based justification that is analogous to the one that underpins the natural rights theory. Natural rightists see authors as acquiring property rights in their works “by virtue of the mere act of creation”, with the “corollary that nothing is left to the law apart from formally recognising what is already inherent in the ‘very nature of things’”. That is, “natural rights arguments[] are less concerned with regulatory techniques to promote social, cultural and economic goals than with a belief that copyright ought to exist because it is proper and correct for it to do so.” As Senftleben explains, “[t]he natural law argument supporting authors’ rights appeals to feelings of rightness and justice. As it is the author who spends time and effort on the creation of a new work of the intellect, it is deemed justified to afford him the opportunity of reaping the fruit of his labour.” The natural rights approach has traditionally driven copyright policymaking in the civil law tradition. However, as Yen and Senftleben have both demonstrated, it has also influenced lawmaking in historically utilitarian jurisdictions such as the US. In recognition of the fact that reducing infringement is regularly claimed as an important aim of copyright law, the paper will analyze the extent to which graduated response is succeeding in doing so.
The second point of evaluation is the extent to which graduated response maximizes the size of the legitimate market. This assumes that reduced infringement may not be a proper aim in and of itself, but only to the extent to which that reduction translates to greater sales. This approach is underpinned by the idea that, “if users pirate less but the creators do not earn more, it is the culture that is losing.” This view has one foot in each of the utilitarian and natural rights camps. Utilitarians see the grant of copyright as being necessary to encourage the creation and dissemination of knowledge and culture. This justification has long been favored in common law countries: the preamble of the Statute of Anne stated that it was “for the Encouragement of Learning, by Vesting the Copies of printed Books in the Authors, or Purchasers, of such Copies”, and the United States Constitution gave Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. A strictly utilitarian view would be interested in maximizing the creation and dissemination of content, and the extent to which those aims were achieved by infringement would only be relevant to whether that might deter future creation. By contrast, a strictly natural rights approach would focus on protecting the rights of authors regardless of whether so-doing achieves any broader cultural ends. Interestingly, though France’s copyright law (the droit d’auteur) is strongly rooted in the natural rights tradition, the origins of its graduated response strategy show that the intention was not just to reduce infringement, but to translate that into increased legitimate consumption. This may have been a pragmatic recognition of the fact that it’s difficult to reduce infringement without offering reasonable legitimate alternatives: the Olivennes Report, on which the law was based, observed that “[i]t is difficult to deny the persistence of long delays is an invitation to piracy”. That dual aim was emphasized again in the Lescure report, commissioned by the French Government to evaluate the success of the French law after several years of operation. Although major rightholders sometimes suggest that reduced infringement is a proper aim in and of itself, at other times they link reduced infringement to increased legitimate uptake. For example, the MPAA’s response to the USPTO’s call for submissions suggested that in the context of graduated response, “effectiveness” should be defined as a “decrease in consumer sharing of copyright infringing files; and … [an] increase in consumer accessing of legal digital content – ideally measured relative to a ‘control’ or what they would have been in the absence of the initiative…” Accordingly, this work considers the extent to which graduated response regimes increase legitimate markets.
The third evaluation point is the extent to which graduated response laws encourage the creation and dissemination of a range of content. This is squarely rooted in the utilitarian idea that copyright is granted to promote broader public interest aims. As Samuelson and other members of the Copyright Principles Project (CPP) explain:
Copyright law should encourage and support the creation, dissemination, and enjoyment of works of authorship in order to promote the growth and exchange of knowledge and culture. … A successful copyright ‘ecosystem’ should nurture a diverse range of works. It should encourage creators to make and disseminate new works of authorship and support readers, listeners, viewers, and other users in experiencing those works.
In its response to the USPTO’s call for submissions, the Electronic Frontier Foundation (EFF) demonstrated similar priorities. It argued that, “[i]f the PTO evaluates private agreements meantto reduce copyright and trademark infringement, it should consider how well such agreements serve the ultimate goals of those statutes, which are not to ‘reduce infringement’ but to promote knowledge, grow the arts, and protect consumers.” Thus:
Effectiveness should be defined in terms of leading to the creation of more literature, audiovisual work, music, photography, software, etc., as well as creating a broader audience for those arts. This should be the primary measure of success of any copyright enforcement effort; indeed of any federal copyright policy. Although utilitarian considerations are far from being copyright law’s only aim, they are the rhetorical linchpin of copyright policy in common law countries, and as Senftleben has persuasively demonstrated, have sometimes influenced civil law policy-making as well. Nothing else explains the fact that the European Copyright Directive records an intention for the harmonized framework to “foster substantial investment in creativity and innovation … and lead in turn to growth and increased competitiveness of European industry”.
If utilitarian considerations are relevant to the implementation of graduated response, then those schemes should be seeking to facilitate the creation of the greatest possible variety of cultural materials, and their widest distribution. This analysis will evaluate the extent to which they do so. If graduated response laws do not achieve these ends, it makes it harder to justify their continued adoption.
The following section will outline the mechanics of the various public and privately-arranged graduated response schemes in existence around the world, providing a detailed and comprehensive snapshot of global graduated response law circa 2013. Readers who are already familiar with the way in which those laws operate may prefer to skip straight to the evaluative analysis in Part 3, which considers the available evidence to determine the extent to which the various graduated responses are satisfying each of the above-identified aims. The paper concludes by weighing the results of the analysis to determine whether the case has been made for retention or further adoption of graduated response.