Changes in copyright laws are changing the Internet and how people use it, increasingly so since 2008, when the Recording Industry Association of America and International Federation of Phonographic Industries (IFPI) set out on a quest to make "ISP and intermediary responsibility" the law of the land in one country after another.
The idea that ISPs should be required to block access to websites that facilitate illicit downloading and cut-off Internet service for those who use such sites is not a new idea. While politically impossible to implement during the 1990s, these days "the mood of change is clearly reaching governments," states the IPFI approvingly.
In the last three years, Britain, France, Sweden, Australia, Ireland, South Korea and Taiwan have adopted new copyright laws in which "intermediary responsibility" and three strikes rules play starring roles. The U.S. Congress is also currently considering two bills that would extend intermediary responsibility beyond ISPs and websites to a slew of new actors – advertisers, search engines, banks and online payment services – by way of the Protect IP and Stop Online Privacy acts.
The most recent convert to the copyright maximalist faith is New Zealand. Its Copyright (Infringing File Sharing) Regulations, 2011 kicked into gear in September. The law's core features sets out a sequence of progressively more punishing measures: notices, potential fines up to $15,000 for repeat offences and cutting Internet service to repeat infringers.
(Luckily for Canadians, these rules represent a far more punitive approach to ISP responsibility than the approach contemplated by the Copyright Modernization Act (Bill C11) currently before Parliament.)
In the past few weeks, the first batch of infringement notices were delivered by the Recording Industry Association of New Zealand (RIANZ) to four of the biggest ISPs in the country: Telecom, Vodafone, Orcon and TelstraClear.
The notices target 75 IP addresses on behalf of Universal Music, but one serious question in this is just who does an IP addresses belong to: Individuals, a household, an office, or some other unit of organization? Until this issue is cleared up, whole households risk being removed from the Internet on account of one person on its IP who has run afoul of laws governing just one aspect of life online.
Even before Universal Music and the RIANZ entered the scene, New Zealand's ISPs had noticed something critically important: a steep drop in international peer-to-peer Internet traffic. Orcon — a major ISP in the country — observed that international P2P Internet traffic fell by 10 per cent immediately after the new law came into effect. It was like somebody clamped down on the country's Internet connection to the outside world. As the second biggest type of data traffic after streaming video from such websites as YouTube, the decline in Internet traffic is significant.
This is not the first time this has happened. Sweden saw Internet traffic plunge 30 per cent overnight after the country's Intellectual Property Rights Enforcement Directive (IPRED) was implemented in April 2009.
From the view of the music and entertainment industries "virtually all P2P content is illegal," as the IFPI declares. As such, declines in Internet traffic just indicate that the traffic was infringing. And as New Zealand's Ministry of Economic Development stated, the new law is all about "stopping illegal peer-to-peer file sharing such as sharing movies via BitTorrent."
But these self-congratulating claims ignore the fact that P2P serves many purposes other than just trafficking in ill-gotten media content, for example:
- The band Nine Inch Nails uses p2p to offer free downloads of their music
- Akamai uses it to create content distribution networks for entities like Netflix, Facebook and Amazon that run parallel to the Internet so as to relieve congestion on the telecoms carriers and ISPs networks.
- The CBC used it in 2008 to deliver an episode of Canada’s Next Great Prime Minister via BitTorrent; the BBC still uses it for its iPlayer service.
P2P also underpins ancient pre-web 1.0 Internet functions such as Internet Relay Chat, the nasty bits of 4chan, online games and even the authoritarian-fighting Tor protocol used in the "Arab Spring" uprisings and by the hacktivist group, Anonymous, alike.
In the old days of the industrial media, content regulation was seen as more heavy-handed and less respectful to free speech concerns than structural rules that applied equally to all; today, app-specific regulation targeted at specific Internet uses stands in a similar place because, unlike a finely-tuned surgical procedure, it functions as a sledge-hammer, with a lot that is valuable smashed under its blows.
Supporters claim that the "graduated response" and digital intermediary strategy have a minimal impact on individual liberties, but a recent UN Internet & Human Rights minced no words when arguing exactly the opposite point of view:
". . . cutting off users from Internet access, regardless of the justification provided, including on the grounds of violating intellectual property rights law, is disproportionate and thus a violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights."
Article 19 sets out worldwide standards for freedom of opinion and expression rights.
Some also argue that the copyright maximalist approach is a broadband Internet killer. Ericsson's resident policy wonk, Renee Summer, made just this point in regards to New Zealand's plans, warning "the new rules could slow down consumer demand on the Government's ultra-fast broadband network."
Swedish ISPs argued similarly in 2009, with one claiming "half the Internet is gone. If this pattern keeps up, it means the extensive broadband network we've built will lose its significance."
The idea is appealing yet it may be too early to reach this conclusion, after all most countries have not carefully tracked the impact. Moreover, the Swedish case muddies the waters because a half-year after the new law was introduced, traffic levels climbed back to their original levels.
Whether this was because people simply returned to their old ways or as a result of the steep rise in bandwidth hungry TV and entertainment content (e.g. Netflix, LoveFilm, etc.) being delivered online is still an open question. Yet in all cases, significant changes had occurred nonetheless.
Now that ISPs are in the business of regulating information flows and user behaviours, rather than being neutral points of access to the Internet, we're seeping people modify their Internet use in potentially negative ways. Is it good that users are adopting a slate of new tools – encryption, anonymity, and other means of circumventing the new rules – that reflected a tilt away from the open Internet towards a more closed system?
Changing people's behaviour is not too be taken lightly and moving control from the edges of the Internet and putting it deeper into its central nodes by way of ISPs and an expanding array of intermediaries is no more palatable in the 21st century than 15 years ago when first trotted out in the teeth of fierce resistance. Thus, we need to look beyond the careful stage-managed introduction of new copyright rules to carefully assess their impact on the Internet and the ever-widening range of what we do online.
Going forward, all eyes should be on New Zealand.
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