Is The Answer to the Machine Really in the Machine?

2006

Hastings Law Journal, 2001

The internet is a treasure chest of infringing or "pirated" entertainment media, which viewers from around the world access, copy, and share with relative ease. Data and qualitative reviews suggest infringement is ubiquitous in the streaming and downloading domain. The current approach to copyright enforcement places undue burdens on copyright owners who cannot economically advance claims against millions of individual users. Poorly constructed copyright laws and misguided Court decisions have left rights-holders with too few remedies against commercial entities involved in the storage, retrieval, transmission, access, and streaming of their works. A five-year exploratory and observational study were conducted to discover facts about online pirate media, how services function, how companies make money, and how they skirt around laws prohibiting unauthorized commercial exploitation of copyright. Sites discovered had multimillion-dollar valuations and annual revenues, mostly derived from third-party advertise-

European Management Journal, 2002

The music and software industry are employing copy-protection devices in CDs and digital downloads to strengthen their weak appropriability regimes that leave ample opportunities for modernday piracy. The effectiveness of the strategy is explained on the grounds that (a) the knowledge involved in copy protection is generally too sophisticated for consumers to circumvent, and (b) consumers are not allowed to use circumvention techniques created by knowledgeable third parties. Copy protection is controversial, because it deprives consumers of making home copies of music and software, and hence overrules copyright law that exempts the copying for private use. It is argued that the technical enforcement of copyright protection in the home domain of millions of individuals necessitates a wide consensus between business and society about the legitimacy of private and fair use. 

CESifo Working Paper Series No. 1071, 2003

Digital products have the property that they can be copied almost costlessly. This makes them candidates for non-commercial copying by final consumers. Because the copy of a copy typically does not deteriorate in quality, copying products can become a wide-spread phenomenon - this can be illustrated by the surge of file-sharing networks. In this paper we provide a critical overview

Internet Policy Review

In the last two decades, the industry has deployed endlessly the rhetoric of the "digital threat" in order to demand harsher measures against digital piracy. Recently, the "digital threat" discourse called for enhanced liability of online intermediaries, especially those whose platforms may be used to infringe copyright. This short paper shows that the "digital threat" discourse is based on shaky grounds. Two related arguments might run against this approach. First, market conditions might incentivise piracy. Additionally, there are raising doubts over the argument that piracy is a threat to creativity, especially in the digital environment. Overall, it may be hard to find a factual justification for policy decisions based on the "digital threat" discourse. In fact, digital technology seems not to have negatively affected the creation of new works. In contrast, an observation of the literature and quantitative analysis on point may suggest that digital piracy can be an opportunity for the cultural market. Finally, piracy may function as an innovation policy by forcing market players to innovate in response to a consumer demand that widespread piracy highlights.

SSRN Electronic Journal, 2000

New Internet-based technologies appear to threaten the ability of copyright owners to collect revenues for their intellectual creations, as epitomized by the recent public trials and tribulations experienced by Napster. As a response, new legislation against pirating and new technologies to protect intellectual products has arisen. These new technologies and countertechnologies have each attracted attention and analysis, sometimes bordering on the apocalyptic, from competing camps. The basic issue, whether technologies that enhance the ability to create unauthorized copying are destructive to the principles of copyright, is not a new one, however. Technologies that make it easier to pirate copyrighted materials have undergone economic examination for over two decades. Prior analysis, and prior experience, has indicated that the previous generations of copying technologies have not had dire consequences for copyright owners.

In the last two decades, the industry has deployed endlessly the rhetoric of the “digital threat” in order to demand harsher measures against digital piracy. Recently, the “digital threat” discourse called for enhanced liability of online intermediaries, especially those whose platforms may be used to infringe copyright. This short paper shows that the “digital threat” discourse is based on shaky grounds. Two related arguments might run against this approach. First, market conditions might incentivise piracy. Additionally, there are raising doubts over the argument that piracy is a threat to creativity, especially in the digital environment. Overall, it may be hard to find a factual justification for policy decisions based on the “digital threat” discourse. In fact, digital technology seems not to have negatively affected the creation of new works. In contrast, an observation of the literature and quantitative analysis on point may suggest that digital piracy can be an opportunity for the cultural market. Finally, piracy may function as an innovation policy by forcing market players to innovate in response to a consumer demand that widespread piracy highlights.

This chapter discusses the importance of copyright law enforcement as a prerequisite for the emergence of a digital single market. It firstly analyzes the reasons for the current crisis in copyright law enforcement and focuses on the role of Internet intermediaries in this context. The question is examined of whether the Internet intermediary's liability should have been abandoned fifteen years ago with the enactment of the E-commerce Directive, whereby the intermediaries' safe harbor was established. However, this chapter shows that the law itself, together with an audacious jurisprudential interpretation, leads in practice to the application of a fault-based approach to Internet intermediaries' liability. As this evolution is obviously not sufficient to resolve the issue of online enforcement of copyright law, this analysis is supplemented by the emerging topic of gag orders. This method, combined with the trends in case law related to pan-European judicial orders, despite being incomplete, nowadays offers the most promising solution towards effective copyright law enforcement.