An Alternative Way To Combat "Online Piracy"

 

As Matthew C. Mousley said, "digital piracy is clearly a constant menace to the entertainment industry."[1] According to the International Chamber of Commerce, the movie industry suffered as much as $160 billion[2] and the recording industry also made $29 billion in losses worldwide in 2015 due to online piracy.[3] These all show that the copyright owners of such artistic works should be protected by successful digital antipiracy measures against illegal downloading and peer-to-peer file sharing.[4] Accordingly, this paper aims to discuss the potential solution to adequately combat online piracy, its effectiveness, fairness, and the comparison with the available domestic measures.

            Before proceeding to the proposed measure, it is noteworthy mentioning what Azerbaijani legislation currently has in its arsenal to combat piracy. Unfortunately, “The Law of the Republic of Azerbaijan on Enforcement of the IP rights and fight against piracy”[5] does not contain any provision specifically regulating digital piracy and there has not been any other attempt to adopt specific measures in this regard to the present. Therefore, we also believe the proposed solution below can also be a good starting point for digital antipiracy policy of Azerbaijan.

One of the successful tactics to combat online copyright infringement is the graduated response method[6] which has been put into practice in some jurisdictions[7] such as the US,[8] South Korea,[9] and France.[10] This system basically alerts the users when they illegally engage in file-sharing on the internet.[11] The conventional version of the graduated response method is comprised of several warnings starting from educational notification and ending with cutting off user’s internet access.[12] This method has drawn criticism from a number of organizations[13] and politicians[14] on the concerns of Internet disconnection,[15] free speech[16] and the erosion of due process.[17] Thus, the Author suggests some modifications to be made for the adoption of an effective and fair solution for the benefit of internet users, copyright owners, and Internet Service Providers (“ISPs”).

            The modified version of the graduated response method will impose the fee-charging following the educational warnings. As soon as the copyright owners realize the illegal content sharing on the Internet, they notify the ISPs which then will issue consecutive warnings to the infringer. The first warning aims to raise the user’s awareness of the copyright violation while the second warning informs the user about the file-sharing fee if he/she continues his/her infringing activity. In each instance of illegal downloading, the infringer is charged the graduating fees which can be determined by ISPs in collaboration with the relevant industries. Most of the collected money is then transferred to the content owners to compensate for their losses incurred from illegal downloading. The charged fees will be added to the user’s internet bill and similar to the appealing contested credit card charge, the users should be granted the right to appeal their Internet bill before it is due. The relevant IP offices may also be involved in this process for scrutiny purposes.

This proposed system is superior to the current version. Firstly, it does not impede upon the users’ freedom of expression by cutting off their internet access which is nowadays the major way to connect with the world[18] and provides the user the due process against technical errors. Further, an educative notification mechanism for alleged online infringers is essential[19] since many users are often unaware of what they are doing is illegal.[20] This also helps unknowing consumers avoid larger potential copyright infringement fines.[21]

A graduated response system also helps copyright holders by avoiding the negativity[22] of initiating a mass-litigation campaign against the infringer end-users including children,[23] single mothers,[24] and the deceased,[25] as happened in the past.[26] These lawsuits did not result in considerable compensations to copyright holders,[27] as the litigation costs[28] usually exceeded the money recovered.[29] In contrast, the proposed solution ensures passing predetermined fees to content owners as if their works have been acquired by legal means.

The graduated response method also brings benefits for ISPs by shielding them against costly lawsuits brought by content owners as a result of individual copyright infringements by its users.[30] It also alleviates ISPs not to fear for their users’ conduct and spy on them instead of focusing on improvement of their system.[31]

In sum, the above-outlined system is effective because it will charge the infringer a sum of money for infringement and put proceeds back in the copyright holder's account to stimulate them to invest their time and energy in creating future artistic and literary works. Moreover, since it also allocates the responsibility for copyrighted contents among copyright holders, ISPs and Internet users, the new version of the graduated response system is, therefore, a highly fair solution.

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[1] Matthew C. Mousley, Peer-to-Peer Combat: The Entertainment Industry's Arsenal in its War on Digital Piracy, 48 VILL. L. REV. 667, 695 (2003).

[2] Igor Slabykh, The New Approaches to Digital Anti-Piracy in the Entertainment Industry, 19 UIC REV. INTELL. PROP. L. 75 (2019).

[3] Frontier Economics Ltd., The Economic Impacts of Counterfeiting and Piracy, Int'l Chamber of Com. 28 (2016), https://cdn.iccwbo.org/content/uploads/sites/3/2017/02/IC C-BAS CAPFrontier-report-2016.pdf.

[4] Nelson Granados, How Piracy is Still Hurting the Filmmakers and Artists You Admire, FORBES (Dec. 3, 2015, 12:08 PM); Zachary Charles Fritts Landy, 'Combatting Online Piracy: A Case Study on Popcorn Time and Revising Available Remedies to Copyright Holders' (2016) 24(1) Journal of Intellectual Property Law 221.

[5] Available at https://www.wipo.int/edocs/lexdocs/laws/en/az/az100en.pdf

[6]Annemarie Bridy, Is Online Copyright Enforcement Scalable, 13 VND. J. ENT. &TEcH. L. 695, 727 (2011); Alain Strowel, Internet Piracy: as a Wake-up Call for Copyright Law Makers-Is the "Graduated Response" a Good Reply?, I WIPO J. 75, 77-80 (2009).

[7] Jeremy de Beer & Christopher D. Clemmer, Global Trends in Online Copyright Enforcement: A Non-Neutral Role for Network Intermediaries?, 49 JURIMETRICS J. 375 (2009).

[8]Anthony Cuthbertson, Proxy Websites for Pirate Bay, Kickass Torrents and more disappear in ProxyHouse Blitz, INT'L BUS. TIM's (Oct. 13, 2015, 12:08 BST); Nate Anderson, RIAA Graduated Response Plan: Q&A with Cary Sherman, ARs TECHNICA, Dec. 21, 2008, http://arstechnica.com/old/content/2008/12/riaa-graduated-responseplan-qa-with-cary-sherman.ars; Steve Knopper, RIAA's Gaze Turns from Users to ISPs in Piracy Fight, ROLLING STONE, Dec. 19, 2008, http://www.rollingstone.com/music/news/14844/94542.

[9] Giblin, Rebecca. "Evaluating Graduated Response." Korea University Law Review, 18, 2015, p. 108.

[10] Peter K. Yu, "The Graduated Response," Florida Law Review 62, no. 5 (January 2010): 1376.

[11] Alain Strowel, Internet Piracy as a Wake-up Call for Copyright Law Makers-Is the "Graduated Response" a Good Reply?, I WIPO J. 75, 77-80 (2009).

[12]Peter K. Yu, The Graduated Response, 62 FLA. L. REV. 1374 (2010).

[13] David Meyer, Europe 'Will Not Accept' Three Strikes in ACTA Treaty, ZDNET, Feb. 26, 2010, http://news.zdnet.co.uk/communications/0,1000000085,40057434,00.htm; Peter K. Yu, Six Secret (and Now Open) Fears of ACTA, 64 SMU L. REv. (forthcoming 2011), available at http://ssm.com/abstract-1624813 ; Scott M. Fulton, III, Strongest Condemnation Yet of Anti-Counterfeiting, 'Three Strikes' from EU, BETANEWs, Mar. 10, 2010, http://www.betanews.com/article/Strongest-condemnation-yet-of-anticounterfeiting-three-strikes-from-EU/1268242864; Michael Geist, Joint European Parliament ACTA Transparency Resolution Tabled, http://www.michaelgeist.ca/content/view/4848/ 125/ (Mar. 9, 2010) (providing the draft resolution that states that "in order to respect fundamental rights such as freedom of expression and the right to privacy, with full respect for subsidiarity, the proposed Agreement must refrain from imposing any so called 'three strikes' procedures, in full respect of the decision of Parliament on article 1. 1b in the (amending) Directive 2009/140/EC that calls to insert a new para 3 a to article 1 Directive 2002/21/EC on the matter of 'three strikes"').

[14] Opinion of the European Data Protection Supervisor on the Current Negotiations by the European Union of an Anti-Counterfeiting Trade Agreement (ACTA), 2010 0.J. (C 147) 1, 3.

[15] Alain Strowel, Internet Piracy as a Wake-up Callfor Copyright Law Makers-Is the "Graduated Response" a Good Reply?, I WIPO J. 75, 85 (2009).

[16] Commerce & Econ. Dev. Bureau, H.K. Special Admin. Region Government, Proposals For Strengthening Copyright Protection In The Digital Environment 6 (2009) P.5.

[17] Annemarie Bridy, Is Online Copyright Enforcement Scalable? , 13 VND. J. ENT. & TEcH. L. at 730 (2011) (citing Letter from James W Cicconi, AT&T executive, to Victoria Espinel (March 24, 2010)); Peter K Yu, 'The Graduated Response' (2010) 62(5) Florida Law Review 1399.

[18] William Patry, Moral Panics and The Copyright Wars 14 (2004); Christopher Mitchell, Comcast: Internet Access is Temporarily a Civil Right, HUIFINGTON POST (Aug. 9, 2011), http:// www.huffingtonpost.com/christopher-mitchell/comcast-internetaccess-i b 921608.html.

Reno v. ACLU, 929 F. Supp. 824, 883 (E.D. Pa. 1996), af'd, 521 U.S. 844 (1997).

[19] Alain Strowel, Internet Piracy as a Wake-up Callfor Copyright Law Makers-Is the "Graduated Response" a Good Reply?, I WIPO J. 75, at 86 (2009). (highlighting "the educational effect of the warnings").

[20]Belleville, Mike. "IP Wars: SOPA, PIPA, and the Fight over Online Piracy." Temple International & Comparative Law Journal, vol. 26, no. 2, Fall 2012, p. 305; Annemarie Bridy, Graduated Response and the Turn to Private Ordering in Online Copyright Enforcement, 89 OR. L. REv. available at http://ssm.com/abstract-id=1565038 (manuscript at 4).

[21]Brett Schiff, Copyright Alert System: Six-Strikes and Forced Arbitration Might Not Be the Answer, 16 CARDOZOJ. Confller RESOL 909, 922 (2015).

[22] Steve Knopper, RIAA's Gaze Turns from Users to ISPs in Piracy Fight, ROLLING STONE, Dec. 19, 2008, http://www.rollingstone.com/music/news/14844/94542.

[23] Matthew Sag, Piracy: Twelve Year-Olds, Grandmothers, And Other Good Targets For The Recording Industry's File Sharing Litigation, 4 Nw. J. TECH. & INTELL. PROP. 133, 133 (2006); Steve Ragan, RIAA Sues Hospitalized Girl-Court Issues Default Judgment, TECH. HERALD, Dec. 9 2008, http://www.thetechherald.com/article.php/200850/2592/RIAA-sueshospitalized-girl-court-issues-default-judgment.

[24] Anders Bylund, RLAA Sues Computer-Less Family, 234 Others, for File Sharing, ARS TECHNICA (Apr. 24, 2006).

[25] WILLIAM PATRY, MORAL PANICS AND THE COPYRIGHT WARs 14 (2009); Howell Llewellyn, 'Three-Strikes' Off Anti-Piracy Agenda in Spain, BILLBOARD.BIZ, June 22, 2009, p.13 http://www.billboard.biz/bbbiz/content display/industry/e3i8071 e0d9c25cb6b876d377 lfb7e3dl02; Andrew Orlowski, RIAA Sues the Dead, THE REGISTER, Feb. 5, 2005, http://www.theregister.co.uk/2005/02/05/riaasuesthe-dead/.

[26] Brett Schiff, Copyright Alert System: Six-Strikes and Forced Arbitration Might Not Be the Answer, 16 CARDOZOJ. CONFLler RESOL 909, 922 (2015); Serbin, Danielle. "The Graduated Response: Digital Guillotine or a Reasonable Plan for Combating Online Piracy." Intellectual Property Brief, vol. 3, no. 3, August 13, 2012, p. [vii]-52; Sarah McBride & Ethan Smith, Music Industry to Abandon Moss Suits, WALL STREET J. (Dec. 19, 2008); Peter K. Yu, The Escalating Copyright Wars, 32 HOFSTRA L. REV. 907, 910-23 (2004); Peter K. Yu, P2P and the Future of Private Copying, 76 U. COLO. L. REV. 653, 658-98 (2005); Peter K. Yu, The Copyright Divide, 25 CARDOzo L. REv. 331, 387-401 (2003);

[27] Lital Helman, When Your Recording Ageny Turns into an Agency Problem: The True Nature of the Peer-to-Peer Debate, 50 IDEA 49, 65 (2009); Rosie Swash, Filesharer Joel Tenenbaum Has Fine Reduced by 90%, GUARDIAN (London), July 12, 2010, http://www.guardian.co.uk/music/ 2010/jul/12/filesharer-joel-tenenbaum.

[28] Olivier Bomsel, The Costs and Benefits of Graduated Response in Copyright Enforcement, http://www.barrysookman.com/2010/02/01/the-costs-and-benefits-of-graduatedresponse-in-copyright-enforcement/ (Feb. 1, 2010); Olivier Bomsel & Heritiana Ranaivoson, Decreasing Copyright Enforcement Costs: The Scope of a Graduated Response, REV. EcoN. RES. ON COPYRIGHT ISSUES, Dec. 2009, at 13,27.

[29] Mike Masnick, RJAA Spent $17 6M4illion In Laouuits... To Get $391,000 In Settlements, TEcHDIRT (Jul. 14, 2010, 09:44 AM), http://www.techdirt.com/ articles/20100713/17400810200.shtml.

Greg Sandoval, A Year Out, Where's RIAA's Promised ISP Help?, CNETNEWS, Dec. 23, 2009, http://news.cnet.com/8301-31001_3-10420803-261.html.

[30] Alfred C. Yen, Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability, and the First Amendment, 88 GEO. L.J. 1833, 1887-88 (2000).

[31] Yu, Peter K. "The Graduated Response." Florida Law Review, vol. 62, no. 5, January 2010 , p. 1384.