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A bridge too far?

A crackdown on illegal downloads is soon coming to a computer near you. But are ISP blocking schemes disproportionate, asks Antonio Ghio.

This year saw a rapid rise in the visibility of legal issues surrounding copyright infringement over the internet. From the ubiquitous The Pirate Bay situations and the Megaupload case to the failed ACTA treaty, 2012 has also experienced an increased adoption or revision of laws throughout various jurisdictions in an attempt to curb online piracy.

The virtual world scenarios are being subjected to quite different laws than real world scenarios

While Japan has revised its laws by which illegal downloaders can now face up to two years in prison and hefty fines, the UK is set to roll out its letter warning campaign under the Digital Economy Act.

France’s Hadopi law is still around and the introduction of three strike rules has increased in many countries. Apart from the UK and France, the US just confirmed that its graduated response mechanisms will be introduced early in 2013.

This year also saw a rapid increase in court orders where ISPs have been instructed to block numerous sites, with The Pirate Bay always topping the list.

Apart from the major ISP blocking being carried out in the UK, other countries, such as Denmark, Belgium and Finland, have also introduced ISP blocking schemes irrespective of the general reluctance of the ISPs themselves to adhere with such instructions.

The effect of such laws can be described as twofold: on the one hand illegal downloaders can end up without internet and on the other, ISPs are being ordered to block certain sites where online copyright infringement is the order of the day. And this apart from the civil damages and the criminal sanctions that may be imposed in certain situations where the copyright infringement was carried out on a commercial scale.

The internet and the various distribution channels that it creates is constantly challenging our accepted notions of copyright protection. But are these laws really the answer to this piracy crackdown?

The applicability or even introduction of such laws would be very different in the real world scenario. Take this example: while watching the latest episode of my favourite television series being broadcast on one of the plethora of digital channels on my television, I decide to switch on my HD or DVD recorder and make a copy. I then decide to share that copy with my friends or family so that they can then watch it in the comfort of their home.

Surely, the recording of the programme with the sharing of that copyrighted material with others might be considered running against copyright laws and action can be taken from a copyright or a criminal point of view if such action was done for financial gain. But does this mean that a judge would order that I should be switched off from my subscribed television cable service?

Would this mean that we should introduce laws by which any illegal copying of protected material running on my television would result in my disconnection from the service? Let’s take another example. The open market in Valletta is a thriving place full of activity. Some specific stalls are selling pirated copies of the latest blockbusters. The Government decides that in order to eliminate this rampant abuse, it completely shuts down the whole market or would force Arriva not to provide any transportation service to the market or Valletta.

Unfortunately, the virtual world scenarios are being subjected to quite different laws than real world scenarios. Surely, nobody is considering the introduction of three strike or graduated response rules vis-à-vis cable television or the blocking of the open market.

So why are we treating the internet so differently? Is it because we are basing legal principles on some devious application of Chris Anderson’s Long Tail theory where the internet’s endless choice is creating unlimited demand and therefore coming to the conclusion that specific legislative action has to be taken to curb this illegal unlimited demand?

Are we going too far? And most importantly, will such legislative interventions finally achieve what they have set out to do, especially light of the myriad technological possibilities that are available to circumvent any limitations imposed by such laws? Within this landscape we will also now need to factor in the effect that the approval of a new standard for deep packet inspection by the World Telecommunication Standardisation Assembly last month, even though this is purely a private sector initiative which does not automatically mean that deep packet inspections will be implemented in binding national regulatory or legal regimes.

The recently launched Digital Civil Rights White Paper mooted that as a result of the introduction of the proposed constitutional amendments, no law should be introduced that would result in curbing internet access. This also reflects the Brazilian attempt at the Marco Civil Da Internet, which states that the only situation where a user can end up without internet access is when he does not pay his bill.

Our country will not and should not introduce anything akin to Hapodi or the UK Digital Economy Act. This is not because our country does not value copyright but because cutting off a person from the internet is not a proportionate or necessary solution. Meanwhile, The Pirate Bay moved to the cloud.

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

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