Five key developments in piracy and copyright protection

[Len]

CMU Insights presents its latest masterclass ‘Enforcing Music Rights: Safe Harbours And Piracy’ later this month.

This half-day session explains what copyright law says about infringement; runs through the music industry’s long-running battle with online piracy; explores the different anti-piracy tactics employed by the entertainment business; and then tells you all you need to know about safe harbours.

Ahead of that, here’s a quick summary of the last year in music piracy and copyright enforcement in five steps, covering the key news stories that will be explained at the masterclass.

1. Streaming-ripping
Stream-ripping has finally made it to the top the music industry’s piracy gripe list. Well done stream-ripping! Earlier this year the UK’s Intellectual Property Office and collecting society PRS For Music said that the use of stream-ripping websites – which convert temporary streams into permanent downloads – increased by 141.3% between 2014 and 2016, “overwhelmingly overshadowing all other illegal music services”.

What was probably the biggest stream-ripping site, YouTube-mp3, was forced offline after the US record labels sued, a development widely welcomed by the wider music business. Though there are plenty of other sites busy ripping streams as we speak, and the American record industry recently urged the US Trade Representative to put pressure on foreign governments to help drive the dodgy stream rippers off the net.

Though that request was slated by the Electronic Frontier Foundation. “Websites that simply allow users to extract the audio track from a user-selected online video are not ‘illegal sites’ and are not liable for copyright infringement” the digital rights organisation reckoned, while claiming that the labels were misrepresenting the law. But who is right?

2. Kickass & The Pirate Bay
Meanwhile, back in the old-fashioned world of P2P file-sharing, The Pirate Bay is still going strong, even as the owner of its former rival Kickass Torrents – Artem Vaulin – faces extradition from Poland to face charges of copyright crimes Stateside.

The Pirate Bay’s founders also served jail time for their involvement in the piracy operation, of course, in their case after being prosecuted in Sweden. But that didn’t stop the file-sharing hub from continuing to operate, albeit run by a new team who have wisely remained anonymous.

While sites like TPB and KAT always insist that they don’t actually host any copyright infringing files – “so we’re not infringers” they add – in most jurisdictions there is a very strong case for holding said operations liable for so called authorising or contributory infringement.

Though, in the KAT case, Vaulin’s American lawyers argue that contributory infringement can’t be a criminal matter, and therefore their man shouldn’t be extradited to the US to face criminal charges. Which is an interesting argument.

3. Web-blocking
Web-blocking remains a popular anti-piracy tactic for the music and movie industries in those countries where it is an option, with a plethora of websites now blocked by the big internet service providers in the UK on copyright grounds. The ISPs are forced to block said sites by a court order.

Whenever web-blocking first comes up in any one country – whether because a court orders a blockade in a landmark copyright case or political types start considering a bespoke new web-blocking law – ISPs usually kick up a fuss. Net firms don’t like being forced to police the internet and so chatter a lot about web-blocking leading to censorship and not really working anyway.

Though, generally, once the web-blocking is underway, most ISPs just get on with it without comment. And some even start to actively endorse the process. Like tel co Bell in Canada, which recently suggested a government agency rather than a court of law could be empowered to order the blockades.

What about the USA though? When web-blocking laws were proposed there in 2011/12 there was a massive hoo haa orchestrated by the tech sector resulting in all proposals being resolutely dropped.

However, just last week the judge in a copyright case against a website called Sci-Hub – which shares academic papers without licence – passed an injunction that seemed to order ISPs to block access to the site. We await the internet sector’s response.

4. Google
What about the role of search engines in combatting piracy? The ISPs are actually right to say that the web-blocks aren’t hugely successful in stopping people accessing music and movies illegally, though that’s in no small part because the search engines make it so damn easy to circumvent the blockades.

The music industry generally reckons that the search engines – principally Google – could do more to keep piracy sites out of their search results.

A common gripe is that, while copyright owners can demand specific links to infringing content be removed from Google search, said content always pops back up at another URL, resulting in something akin to a game of whack-a-mole.

To that end, the European Commission recently published a report in which it urged web companies to “invest in automatic detection technologies” that “prevent the re-appearance of illegal content online”. Rights owners also wish Google would agree to entirely de-list websites that primarily exist to facilitate piracy.

Like the ISPs, the search engines don’t want to police the internet and worry that de-listing entire websites – rather than individual URLs – could be problematic. Because what if an otherwise legitimate site infringes copyright on just a handful of pages and yet a rights owner demands it be de-listed entirely?

Though the web firms generally say that if a judge orders an entire site be de-listed, then so be it, the assumption being a legitimate site would have had chance to defend itself in court. But what if a judge orders a global de-listing? Should a court be able to order a website be removed from search results beyond its own jurisdiction?

Copyright owners say that the internet is global and just de-listing an infringing site locally isn’t enough. But when the Canadian Supreme Court ordered Google to de-list the website of an IP infringing tech firm globally, the web giant argued that the judges had over-stepped their authority. And last week a US judge seemed to agree.

5. Safe harbour
Safe harbour, safe harbour, safe harbour. Although stream-ripping does seem to be the music industry’s top piracy gripe in 2017, piracy gripes in general aren’t talked about so much by the music business these days. Is that because streaming is booming and the record industry is back in growth, so who cares about a bit of piracy? No, it’s because they are too busy moaning about the bloody safe harbour.

This is the legal principle that reduces the liabilities of internet companies which inadvertently host copyright infringing material that has been uploaded by their users. Providing said internet companies remove infringing material when made aware of it, they can’t be sued for damages for the unlicensed content they helped distribute.

The music industry, of course, argues that companies like YouTube, which claim safe harbour protection, are exploiting this bit of copyright law in order to force record companies and music publishers into unfair deals. So that they can compete against Spotify and Apple Music in the streaming music market while paying much lower royalties than their competitors.

Safe harbour reform became the music industry’s top lobbying priority a couple of years back, and it now hopes that – with copyright law up for review in Europe – new legal liabilities could be applied to the likes of YouTube as soon as next year, in the EU at least.

The draft European Copyright Directive that is currently going through the motions in Brussels very much features safe harbour reform, though whether that reform has the desired results for the music community remains to be seen.