Monthly Archives: March 2015

Australia’s New Copyright Bill Promises Action Against “Flagrant” Piracy

English: Australian flag seen flying in Toowoo...

Australian flag flying in Toowoomba, Queensland. (Photo credit: Wikipedia)

Australia is our location for the latest clampdown on content piracy, as the country’s government floats new legislation that would significantly expand the ability of rights holders to challenge sites that host their work without permission.

The Copyright Amendment (Online Infringement) Act 2015 proposes measures that would require carriers to block sites that are found to infringe on IP, or those who facilitate such infringement, with “flagrancy” or “disregard.” Such language clearly targets willful piracy, while offering a mechanism to flag infringement to services that are unwittingly being used to get around the law.

There has been some push back against the ability of plaintiffs to bring an unlimited number of blocking requests before the Australian courts to take action against them, but there are a number of checks and balances within the bill to ensure only legitimate complaints make it through.

First and foremost, the courts in which cases will be brought have significant room to interpret each claim on its own merits, or lack thereof. The legislation mentions “reasonable steps” in many sections, and grants judges the ability to “limit the duration of, or rescind or vary an injunction.” That provides a lot of space to send warnings, set expiration dates on penalties, and hear appeals based on improved behavior by infringing sites.

That last point is crucial, as a key part of intellectual property enforcement should be the ability for sites to realize their mistakes and rehabilitate to become legitimate content providers. As we’ve seen with the US Trade Representative’s “Most Notorious Markets” initiative, the mere act of flagging a site’s infringing activity can be enough to prompt a change. When attached to a court order and the threat of operations being curtailed, the law starts to give rights holders some legal bite, where in many cases they have only the bark of flagging piracy and hoping intermediaries will take care of the rest.

In Australia and around the world piracy really comes down to two camps, those who intentionally host infringing content for their own profit, and those who run a service that is abused by others to host said content. For the former, the examples of Megaupload and The Pirate Bay are the path that lies ahead, being pursued across the globe until illegal operations are shut down.

For those who lie in the more gray area of intermediary, there must be a process that raises the question of a piracy problem and requires the operation to act promptly to remedy it. Stamping out piracy on any platform, in Australia or hosted further afield, sets the stage for online carriers to run a completely legitimate service that operates on the right side of copyright law and attracts reliable investment on that basis.

When infringement is flagged but a service still opts to look the other way, or fight legal action, that’s where the line is crossed between being “unwitting,” and moves into the “flagrant” piracy that Australia’s new legislation will take aim at, should it pass into law. In that case, the number of block requests is of little concern.

What really matters is how any service accused of infringement makes its case, and how quickly it acts to remedy the piracy problem, if and when the court rules that one exists. Creators have neither the time, nor the inclination to spend filing for the removal of content from legitimate sites. For any situations where such examples slip through, it’s only right and proper that a trusted legal system be brought into play to dismiss the case.

Additional powers for creators to protect their intellectual property, balanced by the ability of a court to hear their complaints and judge them against the country’s legal framework. Beyond the usual scaremongering that occurs by those afraid of being caught with their hands in the cookie jar, such legislation should be welcomed with open arms by anyone who respects creativity and the intellectual property rights that come with it.

Fleeing Authorities, Piracy’s Latest Poster Child Bounces Around the World

You may remember Popcorn Time, the initially innocent-looking app that gained attention (then notoriety) last year when the headlines labeled it “Netflix for Pirates.”

Although that early version proved short-lived thanks to prompt action from rights holders, the site morphed into several other unreliable incarnations in the months that followed, sparking concerns about malicious code and a bizarre turf war between different groups of developers.

After a winter break from the media spotlight, aside from a frank admission from Netflix itself that such piracy sites provide significant competition to its paid service,  Popcorn Time appears to be resurfacing in a traditional manner: finding new countries from which to operate, at least until the nearest available authorities catch up with its operators.

Currently that means Europe, specifically Sweden, which is something of an odd choice given the recent spate of raids on piracy server locations in that country. It’s also strange as the service has been removed on another occasion by EURid, the European Registry of Internet Domain Names, which should really send Popcorn Time’s operators running for further flung lands than Scandinavia.

If it followed the path of The Pirate Bay, for example, there would be stops at domain registrars in exotic locations like the Caribbean and South America. That course eventually led to the site being shut down anyway and its owners serving jail time, so perhaps nowhere in the world can truly be labeled a “safe harbor.” That, at least, is something for which rights holders can be grateful.

Popcorn Time Google results

For anyone who can recall the name of the service, Google makes it easy to put pirates back in business.

As usual, Google has a role to play in curbing this piracy. Unfortunately, and also as usual, it seems that the search giant will have to be dragged kicking and screaming to act against a site that flagrantly infringes the copyright of creators big and small.

As the search results to the right show, Google currently puts Popcorn Time at the very top of its search results, helping curious viewers to hurdle one of the barriers to entry. With the more common dot com domain removed, would-be pirates at least have to find a working address for the site before they can begin ripping off titles. Google solves that problem all too easily, and rumors that the app will also be available for download through the official Google Play store will only make the company look worse.

Somewhat amusingly, in that same Wired interview with the anonymous operator of Popcorn Time’s latest incarnation, a different parallel is drawn with the world’s largest search engine. The source, identified only by the name of the site’s mascot, makes the direct comparison between Google and his own service, saying:

“We’re like Google, scraping for new content all over the internet.”

–‘Pochoclin’ of Popcorn Time

While the analogy has some technical basis, it would be harsh to lump Google into the same piracy bag as Popcorn Time, which positions itself to directly undercut legitimate streaming services. Google certainly has its fair share of work – and then some – to do in the fight against piracy, but its business is search advertising, not actively searching for and promoting pirated content.

But even with that indirect distinction, the fact that Google so frequently presents piracy sites, and by doing so legitimizes them, when users perform a search is enough to put the company on the wrong side of the fight. Between YouTube, Android, and its eponymous search engine, it could be argued that Google does as much to facilitate piracy as it does to curb it.

However much running around the world authorities have to do to pursue and prohibit the likes of Popcorn Time, it’s important to remember we also have some major intellectual property battles to fight right here on home soil.

 

Does ICANN Hold the Key to International IP Protection?

The Internet Corporation for Assigned Names and Numbers, or ICANN, is a not-for-profit organization based in California, but charged with activities of global importance.

Plaque on the ICANN (Internet Corporation for ...

Plaque on the ICANN (Internet Corporation for Assigned Names and Numbers) head office, Del Rey, California, USA. (Photo credit: Wikipedia)

With a remit to preserve the operational stability of the Internet and provide appropriate representation for the international Internet community, developing policies that reflect this broad mission.

If that scope sounds wide, it should. ICANN holds a great deal of responsibility, on a technical level especially, operating servers that underpin Internet standards and managing major developments, such as the recent roll out of new top level domains around the world (why you’re seeing New York firms jump the .com ship for .nyc domain, and many artists adopting a .music address).

Indeed, what ICANN should and should not be involved with is an ongoing debate, as evidenced by recent concerns over its ability to cut off domains facilitating copyright infringement and other fraudulent activity.

Letters from the MPAA and RIAA asking ICANN to do more were last month labeled as requests for the organization to start “policing the Internet.” Again, this is a huge overstatement, designed to instill fear in the general public that studios and record labels are out to get them.

But this is a general request to bring ICANN on the side of creators and help to protect their rights. The organizations that represent them have simply asked that ICANN react to the “use of domain names for illegal and abusive activities, including those related to IP infringement.”  Essentially, this is a request to enforce laws that already exist and leverage their position to do more across international boundaries, where individual nations can run into bureaucratic barriers, depending on which other the country is home to the site infringing upon IP.

There is no concrete action in place, but the ultimate threat of taking a pirate or fraudulent domain should be a real one, albeit used . This is a move to align the ability of creators to protect their work by flagging infringement wherever it happens in the world and taking steps to remove it, not to arbitrarily take offline any site that is accused of piracy.

Basically, creators are asking that they be allowed to raise the red flag to ICANN for closer review, not push the red button on any site they flag.

 

 

Parallels to the Advertising Industry

There are plenty of scare tactics employed by open Internet activists when it comes to measures designed to curb copyright infringement. The ability to remove a site from global access is of course a significant power, but it’s important to remember why this occurs in the first place: these sites are stealing content for their own profit.

In cases like The Pirate Bay, the aim is so clear it’s in the name, so perhaps the public is less tolerant of overt piracy. When the lines are blurred by a mixture of seemingly legitimate business and hosted files that infringe copyright, however, there is a tendency to claim that those who own the rights to that intellectual property are overstepping the mark.

The reality is that any instance in which an online business claims legitimacy, yet hosts a large amount of content without permission from the owner, that business has a responsibility to police its own servers. If they neglect that responsibility, or simply choose to ignore copyright claims, the only recourse of IP owners in any country is to threaten to cut them off. As an entity with global reach to that end, ICANN is a logical organization to work alongside rights holders to make infringing sites aware that their online status is at risk.

There should certainly be a review process for any site that ICANN is asked to remove from its registry, and parallels can be found in the advertising industry, which just introduced a new anti-piracy and anti-fraud initiative with broad support.  

In this system, sites that host advertising are subject to various tests of legitimacy by an independent consulting body, before receiving a risk score that empowers advertisers to cut them out of their ad network selection. Cutting off this source of income from big brands is a real enough threat that any legitimate site worth its salt will work to clean up its act and request a review of its risk status. Meanwhile, the illegitimate sites that have no business model outside of ripping off original creative works will see a crucial source of revenue dry up.

There is no panacea to cure piracy on a global level, but it can certainly be curbed from sites that occupy the middle ground and simply need a nudge in the right direction. This works in some cases for the US Trade Representative office, as we noted in the case of its “Notorious Markets” name and shame report, and it will take organizations with global reach to effect similar

These initiatives need not be draconian, as so many activists automatically try to imply, but they must have sufficient teeth to spur infringing sites into action. ICANN is one intermediary that has the bite to help creators protect their work, while first using its bark to warn sites that are on its complaint list, giving them an opportunity to turn things around.

Varied Results for Organizations Who Want Off the World’s Notorious Markets List

Following on from the MPAA’s submission of international offenders who fail to respect American intellectual property to the United States Trade Representative (USTR), the office today released its annual list of “notorious markets,” designed to name and shame those included into cleaning up their act. As has become the norm, it provided relief for some, and throws down the gauntlet for others to up their efforts in the year ahead.

The idea is simple enough: flag organizations and online platforms who facilitate the unlicensed use of American intellectual property.

Seal of United States Trade Representative Exective OfficeBy putting these companies and sites on show for all to see, the USTR forces them to choose a path; either commit to improving the legality of their site by removing content and practices that infringe upon intellectual property rights, or confirm that they have no interest in respecting the law and expect the appropriate authorities to come calling.

Marking the importance of protecting those IP rights, the office’s Ambassador Michael Froman had this to say about the 2014 out-of-cycle report:

“American innovation fuels our economy.  Intellectual property protects the contributions and livelihoods of the 40 million Americans whose jobs are supported by intellectual property-intensive and associated industries. The theft we’re shining a light on today is detrimental not only to creators and inventors, but also to consumers.”

The report singled out entities like Spain’s seriesyonkis.com, China’s Xunlei, and software provider Aiseesoft for their positive progress on curbing infringing content on their respective platforms, since appearing on the list’s 2013 edition.

Providing these positive results is an important element to the report, placed prominently at the front as an example to those who find themselves on the notorious list further in. A prominent example held up by the press is Alibaba, whose subsidiary Taobao facilitated counterfeit operations around the time the Notorious Markets list came into existence. Since then Alibaba has made significant efforts to clean house and went on to make a record debut on the New York Stock Exchange last year.

On the other side of the coin, companies that didn’t make it off the offender’s list must redouble their efforts. The gap between expectation and reality can sometimes be wide, however, as demonstrated in the case of VKontakte. The Russian social network remains on the list despite appealing its presence after it took steps to curb pirated content sharing. But as we discussed in February, VKontakte has made only limited attempts to deal with this illegal activity, and it will evidently take much more for it to reach legitimacy in the eyes of U.S. rights holders.

In the end, legitimacy is exactly what the Notorious Markets list is all about. It recognizes that the copyright economy is worth more than $1 trillion to the United States and a major provider of jobs around the country, and presents those that undermine that value for all to see.

If an organization that appears on the list has no interest in becoming a legitimate business in the eyes of the law, they will of course continue on their path of piracy, in which case more substantial legal power needs to be wielded to remove that threat.

For those who value their business credibility, however, the USTR is simply showing some tough love. Clean up your act, prove your commitment to valuing intellectual property, and next year perhaps your company can be held us as a positive example to follow, rather than an offender to avoid.

House of Cards Piracy Shows Why Legal Global Streaming Works

It’s a universal truth that where demand goes unsatisfied, piracy quickly follows. For the creative industries, there are high hopes that an equally predictable trend will unfold: where legal streaming services roll out, piracy quickly tails off.

It’s been a theme that characterized much of February for us, from the news that Norway, where streaming music services dominate, has seen a dramatic reduction in piracy, to the post-Oscars analysis of where Academy Award winning titles are available and how piracy spikes if they’re not.

House of Cards piracy is the latest example to underline this phenomenon, as season 3 of the Netflix original series prompted a surge in social media and viewing activity in markets where the platform is active, and soaring piracy levels in countries where it isn’t.

 

Season 3 was only released last Friday, yet unlicensed viewing in countries around the world already numbers in the six figures, with China heading the illegal access list at more then 60,000 downloads. That doesn’t begin to factor in a number of other methods of finding the program without paying for the privilege, as technology like VPN access helps viewers to bypass geographical restrictions and log in to the same version of Netflix made available to U.S. consumers.

Although there is also illegal access in countries where Netflix does operate successfully, not least the U.S. and United Kingdom, the general consensus is that any market will have some amount of residual piracy.

While that element needs to be tackled with more familiar education and enforcement tactics, promoting legal access channels and penalizing where pirates knowingly disregard them, the most promising new prong in fighting copyright infringement is rolling out legitimate streaming services in markets where they don’t currently operate.

In the case of House of Cards this would of course be Netflix, first and foremost, although it isn’t hard to imagine a scenario in which the company licenses such a popular title to another service if it can’t get into the market itself. China springs to mind in the first instance, given the censorship issues and other red tape for American companies operating in the country, but there are enough other international markets in which Netflix isn’t being compensated at all for its hit production and would surely love to bridge the gap with licensing income.

Continent of Australia from space. Australia i...

Continent of Australia (Photo credit: Wikipedia)

Meanwhile it’s Australia that provides the most immediate case study of how introducing a legal viewing alternative will impact piracy levels. Frequently found atop the illegal viewing figures despite its relatively small consumer base, the country saw House of Cards piracy almost on a par with China.

Here, however, Netflix seems all set to launch this month, giving consumers almost no time to wait for the popular title and everything else that the company’s expansive archives will bring.

If Australians decide that convenience (and, we would hope, copyright) trump the awkward access of covert connections and malware-plagued piracy sites, then piracy levels should decline.  The experiment is ongoing, but the early results are promising that legitimate digital channels can connect viewers around the world to content they love, without having to resort to illicit and unreliable access points to get it.