IRIS Plus 2012-1: Answers to Internet Piracy
Author: Dmitry Golovanov, Moscow Media Law and Policy Centre
Internet piracy is a curse to rightsholders and anyone interested in the viability of the creative industry. The latter includes not only governments and representatives of the au- diovisual sector but also consumers who like to enjoy a rich offer of audiovisual content but who might have to cope with less diversity if generating content doesn’t pay for the efforts of content creators.
Looking to the US, we witness determination to act. US authorities closed down the website of “Megaupload.com” and at the former place of the sharehoster’s home page now features the FBI anti-piracy warning that “This domain name associated with the website Megaupload.com has been seized pursuant to an order issued by a U.S. District Court” and that “A federal grand jury has indicted several individuals and entities allegedly involved in the operation of Megaupload.com and related websites charging them with the following fed- eral crimes: Conspiracy to Commit Racketeering (18 U.S.C. § 1962(d)), Conspiracy to Commit Copyright Infringement (18 U.S.C. § 371), Conspiracy to Commit Money Laundering (18 U.S.C. § 1956(h)), and Criminal Copyright Infringement (18 U.S.C. §§ 2, 2319; 17 U.S.C. § 506).”
It seems, we are entering times where governments are considering the adoption of more radical means for blocking the illegal dissemination of content than those which the pros- ecution of individual copyright infringers seems to offer. The French HADOPI, for example, currently seeks dialogue with platform providers and sites involved as to the best ways of expanding its mission to also counter the illegal streaming and downloading of content. It is worth remembering that the legislation underlying HADOPI caused intense debates about the limits of fighting piracy up to the level of the European Parliament. More recently headlines were made by two US anti-piracy bills, the Stop Online Piracy Act (Sopa) and the Protect Intellectual Property Act (Pipa) both aiming to increase obligations of Internet service pro- viders. Whereas today Internet service providers must take down illegal content hosted on their networks upon notice, they may be mandated tomorrow with blocking access to entire Internet sites if these sites contain any illegal content. Both bills would prevent US-based Internet service providers, payment processors and advertisers from entertaining business relationships with alleged pirates. If Sopa were to be adopted, even search engines could become part of this toughened scheme to combat piracy. Both bills, however, are being met with loudly voiced fundamental rights concerns.
The discussion about stepping up legal measures against copyright piracy reflects how big a challenge it is for all institutions, be they legislators, courts or administrations, to firstly separate the good from the bad and secondly to root out the bad. It also demonstrates that any attempt to play down copyright piracy as a trivial offence stands no chance. While there is far reaching consent in favour of better protecting copyrights, the actual discussion fo- cuses on the legitimacy and risks of some of the means proposed to win the piracy battle: where are the safeguards against the possible misuse of anti-piracy measures? How can one ensure that these means won’t serve to unlawfully curtail the freedom of information? And even if misuse can be excluded, how may one generally balance the interests of copyright holders with those of users and other stakeholders?
This IRIS plus centers around these questions. Focusing on Russia, the Lead Article, illus- trates the dimension of the piracy problem. It explains the current legal framework of which state institutions in Russia dispose to combat piracy and how courts apply it in practice. The article underlines that in particular the liability of access and hosting services remains an issue, especially in the context of video content posted on the Internet. It also looks into arguments on how to improve anti-piracy measures and in particular how to work towards so- lutions that take the global dimension of piracy into account. The Related Reporting section picks up on these issues with examples of legislative projects, policy recommendations and court decisions taken from the past months and from across Europe, including the European institutions. The ZOOM section details the legal instruments of the Council of Europe which illustrate one level of international agreement concerning policies and actions against piracy. It will be worthwhile to monitor actions on other international levels such as WIPO, WTO or the OSCE and those of the European Union but we will leave this to other publications. The Observatory will stay on the ball and you may always legally link into our results by reading our free-of-charge IRIS newsletter (http://merlin.obs.coe.int/newsletter.php).