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The Streisand effect

Will the recent legislative rush to contain online piracy succeed, asks Antonio Ghio.

Do you remember life before Google? Do you remember the days when your web experience was not based on what you wanted to search for but what was available through directory listings? Do you remember Altavista?

Like the legendary phoenix, torrent sites always manage to rise from the ashes and find a new lease on life
- Antonio Ghio

Well, illegal file-sharers will now re-experience that universe following Google’s recent announcements that it shall be re-hashing the way its algorithms calculate search results in a bid to ensure that results from legal download websites appear higher than pirate sites.

Following a substantial number of complaints from the media industry, Google has decided to demote sites which were subject to copyright infringement complaints, thereby generating results where legal download websites would rank higher and sites which received valid copyright removal notices would be effectually penalised.

This was just the latest episode in the constant saga that online piracy and illegal file-sharing has generated and was not the result of some new ACTA or SOPA legislation coming into force across the globe.

But file-sharing sites The Pirate Bay and Isohunt were unfazed about the latest Google announcements. Their representatives stated that this move will not really affect them since most of their traffic was not being generated from Google search results and people tended to go directly to search on the bit-torrent sites themselves rather than using Google to find what they wanted.

In the fragmented world of technology law, the latest developments from Google are testament to the fact that you do not need law to fight technology but technology can fight itself.

This does not mean that various jurisdictions have been inactive in trying to come up with different methods in their campaigns to curb illegal file-sharing. One questions however whether these same actions are turning the free internet as we know it into something else and whether all these actions are achieving a complete opposite result. This could be a Streisand Effect – the phenomenon whereby attempts to hide or remove information has the opposite effect of publicising it.

Earlier this month, Ukrainian authorities took down one of the largest torrent file-sharing sites, demenoid.com. It was reported that Ukraine’s Division of Economic Crimes acted after receiving a request from Interpol. This follows the publicised closure of Megaupload and the blocking of The Pirate Bay by various ISPs, most notably in the United Kingdom. But like the legendary phoenix, torrent sites always manage to rise from the ashes and find a new lease on life. The Pirate Bay is the perfect example. Following its first closure in 2006, The Pirate Bay was back online in just three days, becoming the undisputed master of territory shopping.

Just last April, the UK High Courts ruled that six major Internet Service Providers in the UK have to block access to The Pirate Bay site following a serious of injunctions presented by the British Phonographic Industry on the basis that The Pirate Bay infringes copyright on a massive scale. But according to some sources, the result of this blocking was completely opposite. Data seen by the BBC confirmed that P2P activity on the network of one particular ISP was back to normal after just one week of the block while TorrentFreak News reported that a week after the high court ruling, The Pirate Bay had 12 million more visitors than it has ever had. Textbook Streisand Effect.

2014 will see the coming into force of the most controversial provisions contained in the UK Digital Economy Act – however, critics and opponents to this law are becoming more vociferous, citing the lack of proper data and research into the models contemplated by three strike mechanisms and the effect of mass file-sharing on the business community. Many are those who are calling for an abrupt end to such law. Also, following the ACTA debate more web users across the globe are calling for the introduction of digital civil rights and the necessity of not granting courts and governments increasing powers to censure the internet without due process.

In the meantime, Japan just passed a law that shall be effective in October amending their copyright laws and adding criminal penalties leading to fines up to US$25,000 or two years imprisonment for downloading copyrighted material if the person is aware that the said material is pirated. Various commentators are concerned that the new definitions contained in the revised Copyright Act in Japan are wide and broad – this could lead to unnecessary prosecutions especially when users can even be prosecuted for one single download, unlike ACTA which required a commercial scale.

It appears to me that this legislative rush to try and contain online piracy will not have its desired effects not only because it is technologically close to impossible to eradicate torrent sites or their access but, most importantly, we are introducing legal barriers to a virtual world which go way beyond their purpose of censorship.

In my opinion, while I do not agree with copyright infringement, site blocking is not the answer. After all, you can still find legal stuff on Pirate Bay even though it might appear as a contradiction in terms.

Dr Ghio is a partner at Fenech and Fenech Advocates, specialising in ICT Law (www.fenechlaw.com). He also lectures in ICT Law and Cybercrime at the University of Malta.

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