By Drew Wilson
We’ve been covering the different countries the IIPA (International Intellectual Property Alliance) wants on their piracy watchlist. So far, the submissions were either demanding everything and the kitchen sink, had a host of problems in their logic or both. The submission about Italy is no exception to this. We explore why.
The biggest thing that stuck out for us when it came to why the IIPA wants Italy on the special 301 report is the fact that Italy has privacy laws. Enforcement of copyright laws can occur with user privacy – particularly with a notice-and-notice regime. Unfortunately, it seems that the IIPA wants to trash the privacy laws in favor of laws found in the United States. This is unfortunate, but considering who we’re dealing with, not entirely surprising. Here’s one mention of the privacy laws:
Still, online enforcement in Italy’s court system is hampered by […] limitations on monitoring and collecting Internet piracy data, based on Italy’s Privacy Code and the March 2008 ruling of the Data Protection Authority, resulting in a lack of civil enforcement against filesharing.
The submission also contains the following:
Despite some advances that FAPAV made in data privacy issues in its case against Telecom Italia,7 Italian jurisprudence still appears to limit the ability of rights holders to use collected data in actions against individual infringers. Civil enforcement against P2P piracy has been severely hampered by the Rome High Court’s interpretation of Italy’s Privacy Code in the famous Peppermint cases, and by a March 2008 ruling of the Data Protection Authority to the effect that use of tools to gather IP addresses of infringers would violate the Privacy Code.8 Unless rights holders can obtain IP addresses and thereafter the names of subscribers via a civil court order, civil enforcement against infringing users will, as a practical matter, be impossible.
So, the underlying demand here seems to be that these foreign entities want to just get ISPs to hand over personally identifiable information on their subscribers without court oversight. Logically, the next step would be to work with the local laws and work with the privacy rights afforded to Italian citizens so they can do what they want to do and there’d be little damage done on basic civil rights. Unfortunately, these organizations aren’t really known for compromise and anything they want tends to be either it’s their way all the way or it’s completely unacceptable. That is clearly what we are seeing here in this one example where rightsholders are demanding a complete rewrite of privacy laws to suit a more American system which has failed miserably over the years. Since there is no sense of compromise in any way here, it makes it extremely difficult to treat this submission seriously because we’re talking about going to another sovereign country and demanding massive changes to different laws. Of course, we continue on to look at what else is in this submission.
Here’s one point found early on in the submission:
The extremely high levels of piracy in Italy’s market have not declined in the past year, despite another year of enforcement achievements against major online peer-to-peer (P2P) piracy hubs and torrent indexing and tracking sites. This can be explained by several gaps in the available enforcement mechanisms in Italy. First, in the absence of notice-and-takedown procedures similar to those contemplated by AGCOM in 2011, Italy’s civil courts have neither the capacity to process the number of online piracy complaints rights holders need to submit for injunctions, nor the ability to respond to such complaints in a speedy manner.
This part is extremely problematic. First, just reading the first sentence pretty much discredits the entire submission in the first place. The reason for this is if enforcing copyright laws in one way isn’t working, then it’s not Italy’s fault for this, but the rightsholders fault. If shutting down several websites proves to not solve anything, then maybe the problem isn’t that websites are, in the rightsholders words, “facilitating” infringement, but maybe a lack of an attractive alternative in the marketplace. Of course, ignoring reasoning, the IIPA assigns blame in area’s that are barely even relevant to the problem.
The first way the IIPA assigns blame is that there is no notice-and-takedown mechanism in place. Now, if a notice-and-takedown system were put in place in Italy, would that solve the so-called piracy problems in Italy? Unlikely. The United States has had a notice-and-takedown system for at least since 1998. The end result was that it solved nothing in trying to slow down copyright infringement online. In fact, because it didn’t do a thing for stopping copyright infringement, rightsholders in the US are scrambling to put in place a six strike policy with ISPs. That fact alone pretty much renders the point of no notice-and-takedown mechanism useless.
The second way the IIPA assigns blame is the legal system where they say that the system can’t handle such a large volume of complaints. If there is such a large volume of complaints to begin with, then maybe the problem isn’t the legal system, but rather, a marketplace or business problem. This ultimately comes back to a simple question: why is there a need to sue millions of people in the first place? Is it because the laws are not designed to deal with the 21st century? Are the laws drawn up to acknowledge that progress has been made technologically since the 90’s or are they designed to protect an obsolete business model?
A third way the IIPA assigns blame is to blame the legal system for not dealing with these cases in a “speedy manner”. The problem here is that the legal process is not meant to be quick. It’s suppose to look at evidence gathered closely. It’s suppose to way the good of the public. It’s suppose to render judgements that are well thought out. It’s not meant to just side with one party and rubberstamp whatever that party demands. That’s not justice, that’s tyranny. At the end of the day, the IIPA is demanding is ultimately tyranny. How flawed does a business model have to be so that the only way it can function is to have a system of tyranny on the people?
The submission then goes even further:
repeated attempts to establish cooperation between rights holders and Internet service providers (ISPs) in recent years have reached no significant result. Italy’s incorrect implementation of the e-Commerce Directive has created a favorable legal environment for local ISPs, such that they have no motivation to reach voluntary agreements to assist in anti-piracy actions.
This ultimately depends on what is being requested of ISPs. This section does not make that clear. If rightsholders are demanding that ISPs implement a three strikes law or website blocking, then the IIPA has no right to complain about it. This is because there might be a very good reason why ISPs don’t want to filter the Internet like the Chinese do (namely that it’s a security risk as far as the infrastructure of the Internet is concerned and that it doesn’t work period). It’s the sort of demand that caused enough outrage against SOPA in the US that lawmakers had to shelve the bill in the first place. Of course, based on this paragraph alone, we don’t know exactly what is being asked, but judging by previous actions by rightsholders in other countries, there’s a high probability that it’s one of those two.
The submission then goes on to make some demands. The first one is this:
Resume and complete efforts to adopt AGCOM’s proposed regulations, establishing an effective system for the active cooperation of ISPs with rights holders against online infringement.
If cooperation requires legal intervention, then there might be something wrong in terms of the expectations of ISPs.
Coordinate government bodies at a high level toward focused IP enforcement efforts and increased IP training for the police and the judiciary.
Increase dedicated IP resources, including judges and staff, within the specialized corporate judiciary section toward timely resolution of IP cases.
The problem here is that this requires more money and resources. For those watching the economies of different countries, this isn’t really an option at this stage given that there are more important things to worry about the the Italian economy right now.
Eliminate legal obstacles for rights holders to take appropriate civil actions for the protection of their rights in the online environment, including by gathering non-personally identifying IP addresses
The problem here is that “non-personally identifying IP addresses” is an oxymoron. It’s a lot like saying that a Social Insurance Number or a street address isn’t personal information. An IP address is personal information and trying to say otherwise is, at best, misleading.
Effectively enforce the Anti-Camcording Law to curb the increasing problem of theatrical camcord theft and theft of dubbed soundtracks.
The problem here is that Canada caved to demands to implement anti-camcording laws (which was ultimately criminalizing something that was already illegal) and it did nothing to prevent Canada from being put back on the piracy watchlist. Why bother putting a demand in when fulfilling that demand would be meaningless in terms of trying to get off of any watchlist?
The submission then goes on to talk about what the IIPA thinks is going on in terms of online infringement. In the process, they undermine their own submission with the following:
As authorities shut down major domestic sites, unaffected foreign sources and new domestic P2P networks and cyberlockers step in to keep a steady supply of infringing files available, and as a result, those forms of online piracy have not abated.
So, by that logic, why spend more money and resources on enforcement of copyright when the end result is, as the IIPA themselves comment, more websites simply taking their place? Clearly, enforcement is not the answer here because it didn’t even put a dent in the “problem” in the first place. The submission then goes on to say this:
As a result of this and enforcement deficiencies, the country’s market of 35 million Internet users – the fourth largest in the EU – is far less accessible to legitimate digital content providers
This really is a chicken and egg argument. Infringing sources exist because there are no legal alternatives. Legal alternatives are put in place because infringing sources are making up for market deficiencies. Legal alternatives wouldn’t have existed if there weren’t superior infringing alternatives in the first place. Infringing services exist to make up for market deficiencies. Lather, rinse, repeat. In addition to this, there’s the bizarre argument that infringing services are interfering with legal alternatives. For those who have read NFO files from release groups, what’s one of the most popular things release groups encourage? Buying the product. In fact, URL’s to legal sources are often put in the NFO files to encourage users to purchase the product legally. If there unauthorized sources actively interfering with people purchasing content legally, they are the exception, not the rule.
This brings us to this amusing tidbit at the end of that paragraph:
Furthermore, as one of the countries with the highest level of illegal online uploading and downloading activities, Italy can be considered a major exporter of infringing material.
Anyone with any knowledge in this area and common sense would know that there is a huge difference between burning thousands of unauthorized copies of a film and shipping it outside the country for the purpose of profit and downloading an unauthorized copy of a film for free. There really is very little sense going into this sentence in this submission.
If you can believe it, the submission gets worse:
In the last major third party report commissioned by the recording industry in 2010, according to the Tera Consultants study, online music piracy accounted for losses of $200 million in 2010 — far higher than what the industry generated in legitimate sales
Of course, anyone who has been following the copyright debate knows that the one download means one lost sale is a metric that has been discredited well before the year 2010. Even if that wasn’t the case for calculating this metric, the best this metric can ever hope to be is a random guess. One could disagree and say that downloading was really responsible for only $10 million in losses. Why? Just throwing it out there. Just throwing it out there is equally valid as the $200 million guess. In addition, why is there a reliance on a statistic gathered nearly three years ago? Was it because it happens to be the largest number they could find?
Here’s a comment later on in the submission that should raise eyebrows:
P2P piracy and infringing cyberlocker websites, and the links and forums directing users to illegal copies of movies, continue to damage the film industry at a steady pace in Italy. The landscape for online piracy of audiovisual works has incorporated new forms of piracy in 2012, including a growing role for popular social platforms. Most of the indexing activities of illicit links are now shared on Facebook social communities (both open and closed), in connection with infringing files posted on Google/YouTube and applications downloadable on the iTunes App Store and Google Play.
This complaint was seen in submissions regarding other countries and they make just about as much sense (or, lack thereof). What does Google, Facebook and YouTube all have in common? They all have a presence in the United States. Why, then, is there any mention of this in the first place in the submission against Italy anyway when it’s likely that US law is more likely to apply? YouTube has a DMCA takedown system. Why don’t rightsholders use that instead of complaining to Italy about it? In any event, a complaint against Italy doesn’t seem to be the most appropriate platform to complain about infringement on Google or Facebook.
Throughout the submission, there are numerous mentions of AGCOM (a regulatory body in Italy). Here’s one paragraph mentioning this:
Since Italy adopted the “Decreto Romani” in 2010, assigning AGCOM with the responsibility to establish rules for the protection of copyright over the Internet, AGCOM has undertaken extensive work to draft regulations with the goal of tackling some of the most blatant and damaging forms of online piracy that plague the Italian market. The copyright industries are very supportive of the efforts of AGCOM to seek broad-based support for this initiative, and had hopes that the initiative could address some of the escalating piracy problems in Italy. But over the course of consultations, the initiative lost key elements that might have provided more efficient remedies against foreign online sources of infringing content or addressed problems related to P2P piracy directly
So, what did these industries find so supportive of such an initiative? According to one posting, it was unregulated censorship:
According to this deliberation, AGCOM would be entitled to remove contents from web pages or to block the access to foreign web sites for Italian users in case of copyright violation, all within 48 hours. The Authority would be free to decide following an administrative procedure, this means that judicial proceedings won’t be required and AGCOM will operate with complete independence from the judiciary system.
No distinction among public web sites, blogs, private pages, web portals. Any web page would be under AGCOM’s control and would be subjected only to the Authority’s censorship rules, bypassing the judges’ pronouncement required until now. A simple report by the copyright owners will be sufficient for proceeding to the removal of the contents or, in case of a foreign web site, to the IP address blockage denying the access to all Italian users.
This measure should come into effect on July 6th making Italy become the first country in the world where an administrative authority can order the removal of a multimedia content from the public telematic space. A sad “world record” for a democratic European country.
Of course, that was published in 2011, what’s it like now? Like the submission suggests, the plans ultimately fizzled.
The submission goes on to repeat itself by saying that the IIPA wants entire court systems devoted to copyright infringement cases as well as judges and others be devoted to simply copyright infringement. It also complains that there isn’t enough resources devoted to copyright courts and it complains that judgements aren’t rendered in hours as seen by this:
Prosecutors are slow to bring criminal copyright cases, sometimes delaying enforcement of a seizure or raid by months or even years from the time a complaint is brought. In the rapid distribution world of electronic communications, even a delay in terms of days and weeks is enough to create enormous harm, let alone years.
As we mentioned before, expecting judgements in hours in a complicated copyright case is quite unreasonable.
In short, this submission is mostly about making extreme demands with no compromise with respect to local laws in Italy. It uses comments that are often highly flawed to justify some of these demands and uses guesswork as proof to justify other demands. The submission even makes comments that defeats the purpose of the submission in the first place and demands Italy to implement laws that have clearly had no effect when other countries caved to such pressure and implement similar laws. Like other submissions we’ve reviewed, it’s impossible to treat this submission seriously and extremely difficult to go through it without laughing at some of the more absurd comments.
Drew Wilson on Twitter: @icecube85