Perhaps they should have also asked how many people would just change how they download files illegally?
The WAND Network Research Group at The University of Waikato has been measuring how traffic flows through a New Zealand ISP. They can split traffic into types with a pretty high degree of accuracy without having to “look inside” too much. Donald Clark compares it to looking at the postmark of a package and giving it a squeeze and being able to tell, in general terms, what’s inside, without having to open it.
The resulting data is a valuable insight into how residential DSL customers at this particular ISP reacted to the new law.
More graphical goodness can be found in the slides from a NZNOG presentation here.
There was about a 75% decrease in BitTorrent traffic straight after the law was introduced, largely sustained into 2012, with huge increases in remote and tunneling traffic. The law isn’t stopping file sharing, just moving it underground, using VPNs, seedboxes and sites like now closed Megaupload.
There was also a big decrease in newgroup traffic, even though it doesn’t appear to be targeted by the new law.
“P2P, P2P structure, Unknown, Newsgroups and Encrypted [not all shown in the graph above] have all decreased massively from their January 2011 levels. Interestingly, each of these categories can be tied to the illegal downloading activities targeted by the CAA [Copyright Amendment Act]. P2P and P2P structure are obviously related, Newsgroups are a common source of torrent files and the Unknown and Encrypted categories were strongly suspected of containing a significant quantity of encrypted P2P traffic.
Even more interestingly, Remote, Tunneling and Files experienced similarly large growths in the amount of traffic downloaded by DSL users. This is probably indicative of people changing their approach to downloading copyrighted material. Instead of participating in file sharing on their home machines, it has become more common for people to use machines based in other countries and ship the file back home via another protocol. This might be via SSH, VPN or FTP, for example, which are all covered by the growing categories.
Similar trends are observed when looking at traffic transmitted by the DSL users. Categories associated with P2P file sharing have seen much less traffic compared with January 2011, whereas Tunneling, Remote and Files have soared.
It should be noted that although Tunneling has grown significantly, the overall amount of Tunneling traffic is still much less than the total amount of P2P traffic. But the sudden changes in application protocol usage are still very noteworthy and suggest that the CAA has had a major impact on people’s Internet usage.”
We’re six months into the Copyright (Infringing File Sharing) Amendment Act, the law that pleased no one (the copyright lobby thought copyright holders should only pay the price of sending a letter, everyone that uses the internet thought the law was stupid), but was passed anyway.
Tech Liberty asks if some infringement notices being sent to customers are invalid because they don’t contain the required information under the law.
An Orcon customer posted on the 3StrikesNZ forum about two notices (s)he received and posted the screenshots of the emails (click for larger versions). Note that both notices are for the same song. Anonnz says that the offending file, torrent, and software was removed after the first notice and so a second warning notice should never have been sent.
4(2)c(iii) states notices must describe the type of work in terms of section 14(1) of the Copyright Act.
4(2)c(iv) states notices must describe the restricted act or acts in terms of section 16(1) of the Copyright Act by which copyright in the work is alleged to have been infringed.
4(2)c(v) states notices must give the New Zealand date and time when the alleged infringement occurred or commenced, which must specify the hour, minute, and second. The first notice doesn’t specify the time to the second.
4(2)c(vi) states notices must identify the file sharing application or network used in the alleged infringement.
5(2)b states notice numbers must identify whether the notice is a detection notice, a warning notice, or an enforcement notice; and (c) that they must identify the IPAP that sent the notice.
Additionally, the second to last paragraph of the notice misinforms customers about internet account suspension, stating: “the Copyright Tribunal has the authority to … apply to the District Court to suspend your account for any period up to six months”. Account suspension is not currently an available punishment.
The requirements for notices and punishments are spelled out quite clearly, so I wonder what else copyright holders and IPAPs are doing incorrectly.
Delivery of infringement notices
There’s some really interesting discussions over on the 3StrikesNZ forum.
The nature of delivery of infringement notices has been brought up. FlyingPete suggests that email is unreliable for the delivery of such important notices (as in missing them could cost the account holder $15k), because of spam filters and because some people don’t check email accounts very often.
StuFlemingWIC, from an IPAP, points out that even snail mail is unreliable, especially when sent to student flats. He suggests that registered mail would have been a good requirement for sending notices.
The aim is to make it easier for rights owners to take action against copyright infringers who download music, movies, TV shows, books, software etc. Peer-to-peer (P2P) file sharing is the intended target, but the law seems like it could include other types of file sharing, which will end up being clarified by the Copyright Tribunal or the courts:
“file sharing is where—
“(a) material is uploaded via, or downloaded from, the Internet using an application or network that enables the simultaneous sharing of material between multiple users; and
“(b) uploading and downloading may, but need not, occur at the same time
Some examples of the software likely covered under the law (if they’re being used to download infringing content) are here.
Notices from rights owners are sent to alleged infringers through their internet protocol address provider (effectively their internet service provider), like Telecom, Orcon and Slingshot. The order of the three notices (hence the three strikes name) are a detection notice, warning notice and then an enforcement notice. What notice you’re on is specific to each rights owner, eg. if you’re on the second notice, a warning notice, with Sony, a notice sent from Universal would be a detection notice, the first notice, assuming this is your first run in with Universal. This example, however, seems like it would be muddied if Sony and Universal both use an agent to do their bidding for them and it is the same agent.
There is a 28 day on-notice period after a detection or warning notice is issued where alleged infringements against that rights owner don’t count towards the next notice.
Detection and warning notices expire nine months after the date of the original detection notice. Enforcement notices expire 35 days after they are dated. The expiration of an enforcement notice expires the previous detection and warning notices too.
Rights owners pay $25 + GST to the IPAP for each notice they send through them. IPAPs have said that this won’t cover the set up and ongoing costs that this act cause, which will probably mean higher internet prices for everyone.
Rights owners don’t see an alleged infringer’s personal details.
The Copyright Tribunal
When an alleged infringer is on an enforcement notice, the rights owner can pay $200 to take them to the Copyright Tribunal, which will normally accept written submissions, but a face to face hearing can be requested by either party. Legal representation isn’t allowed at the hearing, but the rights owner will likely be represented by someone who knows what they’re talking about. Fines can be ordered of up to $15,000. There’s a provision in the act for rights owners to apply to a District Court to get an accused’s internet access cut off for up to six months. It’s currently not available, but could theoretically be implemented at any time.
The normal burden of proof is reversed with an alleged infringer having to prove that they didn’t infringe copyright (how you prove you didn’t do something, I’m not sure). A notice can be challenged by an alleged infringer. Challenges have to be received by the IPAP no more than 14 days after the notice was dated. It’s up to the rights holder whether they reject or accept the challenge. If a rights holder doesn’t respond to a challenge before the close of the 28th day after the original notice was dated, the challenge is deemed to be accepted.
The account holder, most likely the person whose name is on the bill, is liable for any content downloaded or uploaded over the connection they pay for. Unlike speeding tickets there’s no way to transfer this liability. Schools and pupils, universities and students, businesses and employees, libraries and library users, parents and children, landlords and tenants or flatmates could all be affected because of this. This also means that account holders are liable for guests or people they don’t even know who might be accessing their unsecured wireless internet (if you’re not sure if your wireless internet is secure, you can Google something like ‘securing wireless internet’ to make sure).
Effect on illegal file sharing
The regime ends up being ridiculous because a moderately technically competent person can get around it easily. Extreme illegal file sharers are probably already protecting themselves using seedboxes or VPNs. More casual downloaders will likely swap to using seedboxes, VPNs, streaming websites, searching file storage websites like Mediafire with Google or downloading audio from YouTube after they receive a few detection notices. There’s also the possibility of them avoiding the regime using mobile internet, which isn’t covered under the law until October 2013, or by using unsecured or free Wi-Fi.
Is this the death of free Wi-Fi? Are Rugby World Cup tourists going to wonder why their accommodation doesn’t include internet access? Are some ISPs going to start blocking all P2P traffic regardless of the legality of it?
It will be interesting to see which rights owners choose to send notices under the new regime. To be honest, I’m not sure how initiating a process that leads to the Copyright Tribunal is going to want to make people spend money with a company.
Watching the session was frustrating as few contributors truly understood file sharing and the Internet. Gareth Hughes is one of the few who actually gets it. See him talking here, here and here. He brought up a number of good points including:
Access to the Internet is vital.
Termination not being enacted straight away is just a delay.
Many downloads are because content is not even available legally in New Zealand.
The Green Party opposed the Bill because the disconnection provision was still included. Labour didn’t like the disconnection provision either, however still supported the Bill. As Labour MP Clare Curran explains on the Red Alert blog:
Account suspension remains in the bill and could theoretically be used in the future, but any Minister who implements termination will have to wear the consequences. It won’t be a Labour Minister.
This happened many times throughout the night: great points against this Bill were brought up (like disconnection; the fact it’s being rushed; that the MPs themselves don’t know what their children are downloading from the Internet, keep in mind that the MP as the probable account holder will be responsible for their children’s downloading), but then the person finished with their overall support of the Bill. Someone (I think on Twitter, sorry I lost the source) summed it up nicely: “they’re fundamentally opposed to something, yet they vote for it”.
Without this legislation copyright holders could still send warning notices, but this legislation is intended to make the process faster and cheaper. Another side effect is that the process will favor copyright holders. After receiving a warning notice from a copyright holder, it is up to the Internet account customer to prove their innocence (reversing the usual burden of proof). This basically assumes that users who have been sent notices are infringers. It is unclear (to me at least) how someone will prove that they haven’t downloaded or uploaded a file. This is concerning because copyright owners seem to get it wrong regularly. For example a University Of Washington study found they could get a copyright warning sent to a printer that wasn’t uploading or downloading copyrighted files. They say:
Q: I’m a network operator working at an ISP. Should I be suspicious of DMCA takedown notices?
Yes. Our results show that some methods used to generate DMCA takedown notices in BitTorrent are not conclusive and may misidentify users. This may also be true for other P2P networks.
A U.S. study found 57% of DMCA notices sent to Google for removal of material were sent by business targeting competitors and 37% of notices were not valid copyright claims. (Source: J Urban & L Quilter, ‘Efficient Process or “Chilling Effects”? Takedown Notices Under Section 512 of the Digital Millennium Copyright Act’, http://static.chillingeffects.org/Urban-Quilter-512-summary.pdf (mirror))
In addition to the maximum $15k fine that the Copyright Tribunal can impose on someone who has received three warnings, there is a provision in the legislation to allow the Commerce Minister to introduce a six month Internet account suspension penalty applied by a District Court. In the United Nations Conference on Trade and Development Information Economy Report, UNCTAD/SDTE/ECB/2006/1, Nov 2006, broadband is recognized as an essential utility for individuals. Disconnection from the internet is a disproportional punishment compared with the effects of illegal file sharing.
The legislation makes the Internet account holder responsible for all Internet use through that connection, treating all content downloaded/uploaded by different people through a connection as one. This may mean that a family member, flatmate or landlord is responsible for other people’s illegal file sharing. This also means that account holders could get the blame for things that people they don’t even live in the house do. The account holders would be responsible for random people accessing poorly protected wireless networks, for example.
Is pirating content really that bad?
The U.S. Government Accountability Office says in a report (via):
U.S. government and industry claims that piracy damages the economy to the tune of billions of dollars “cannot be substantiated due to the absence of underlying studies.”
“Some experts we interviewed and literature we reviewed identified potential positive economic effects of counterfeiting and piracy. Some consumers may knowingly purchase a counterfeit or pirated product because it is less expensive than the genuine good or because the genuine good is unavailable, and they may experience positive effects from such purchases. Consumers may use pirated goods to ‘sample’ music, movies, software, or electronic games before purchasing legitimate copies. (This) may lead to increased sales of legitimate goods.”
Although IFPI refused to share the entire research report with TorrentFreak, we can conclude the following from the two pages that were published online (pdf).
Compared to music buyers, music sharers (pirates) are…
* 31% more likely to buy single tracks online. * 33% more likely to buy music albums online. * 100% more likely to pay for music subscription services. * 60% more likely to pay for music on mobile phone.
[Mark Mulligan, Vice President and Research Director at Forrester Research who conducted the study for IFPI (who “represents the recording industry worldwide”] has his hands tied and couldn’t say much about the findings without IFPI’s approval, but we managed to get confirmation that paying file-sharers are the music industry’s best customers. “A significant share of music buyers are file sharers also. These music buyers tend to be higher spending music buyers,” Mulligan told TorrentFreak.
A study by Blackburn (2004), a PhD student from Harvard, found that the 75% of the [artists] actually profit from piracy. Blackburn reports that the most popular [artists] (top 25%) sell less records. However, the remaining 75% of all artists actually profit from [file sharing]. The same pattern was found by Pedersen (2006, see graph), who analyzed the change in royalties paid by the Nordisk Copyright Bureau between 2001 and 2005.
Michael Geist on a study of music purchasing habits commissioned by Industry Canada:
When assessing the P2P downloading population, there was “a strong positive relationship between P2P file sharing and CD purchasing. That is, among Canadians actually engaged in it, P2P file sharing increases CD purchases.” The study estimates that 12 additional P2P downloads per month increases music purchasing by 0.44 CDs per year.
When viewed in the [aggregate] (ie. the entire Canadian population), there is no direct relationship between P2P file sharing and CD purchases in Canada. According to the study authors, “the analysis of the entire Canadian population does not uncover either a positive or negative relationship between the number of files downloaded from P2P networks and CDs purchased. That is, we find no direct evidence to suggest that the net effect of P2P file sharing on CD purchasing is either positive or negative for Canada as a whole.”
Additionally, downloading doesn’t equal lost sales, some people are trying before they buy. And some people are downloading because they can’t get the content legally.
Labour MP Jacinda Ardern talked about illegal downloading of music hurting small artists, but it’s only the big record companies that you ever hear complaining. Big companies have bigger voices, but small artists are the ones embracing downloads by putting songs up for free on their websites.
A statistic was brought up last night that 90% of people say they will stop downloading illegally after two warnings. There’s a difference between saying and doing and I doubt there’ll be a change.
Will this make those pirates start buying again, or will they just go find the same stuff elsewhere? (via)
Generally no legal representation is allowed at the Copyright Tribunal. There will be mums and dads who have no idea what is going on, trying to prove their innocence. There will be ignoring of notices out of confusion.
This could end up costing IPAPs (defined in the Bill as traditional ISPs; not universities, libraries, and businesses) who estimate costs as $14 to $56 per notice. It is noted in the Bill “that the United Kingdom has recently decided on a cost-sharing approach between rights holders and Internet service providers, at a ratio of 75:25 respectively”. ISPs overseas receive a huge number of these notices each day.
If you have a business with 5000 employees, how do you track down whose actions resulted in a copyright warning being sent?
If an Internet account is suspended, is the suspension meant to apply to all ISPs? If yes, is there going to be a database of offenders (potential privacy concerns). If no, couldn’t someone call another ISP and sign up with them?
This is only targeting P2P file sharing. If someone illegally downloads directly from a website, they’re unlikely to be tracked down unless website logs are kept and are requested by rights holders through the courts.
The regime won’t apply to mobile networks until August 2013. It is even easier to “sign up” for a new account; go down to the supermarket and buy another SIM card.
49. …he is alarmed by proposals to disconnect users from Internet access if they violate intellectual property rights. This also includes legislation based on the concept of “graduated response”, which imposes a series of penalties on copyright infringers that could lead to suspension of Internet service, such as the so-called “three-strikes-law” in France34 and the Digital Economy Act 2010 of the United Kingdom.35
78. …cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, to be disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights. 79. …the Special Rapporteur urges States to repeal or amend existing intellectual copyright laws which permit users to be disconnected from Internet access, and to refrain from adopting such laws.