While the copyright industry is famous for suing its customers in an attempt to stop filesharing, it eventually worked out how bad that looked, especially given litigation did nothing to slow the rise of filesharing.

They now deploy a wider range of counter-measures to stop it. But the law suits continue, only they’ve been outsourced.

One method is to try to shut down sites connected to filesharing altogether. In January the Motion Picture Association of America and the Dutch equivalent to the Australian Federation Against Copyright Theft, BREIN, boasted of taking down 51 sites linked to filesharing. Brein later convinced a service provider to not merely take down another site but hand over its servers, the only problem being a wholly legal site was also taken down and had its servers stolen as a result, requiring its owners to take legal action to get them back.

In the US, the copyright industry has outsourced much of this work to government, shifting the traditional burden of protecting copyright from the industry itself onto taxpayers. The US government’s attempt to secretly impose draconian provisions for internet users on the Anti-Counterfeiting Trade Agreement, including a mandatory three-strikes provision and stop-and-search provisions at airports, is well known. A WikiLeaks cable from the Stockholm embassy details the pressure brought to bear on the Swedish government to crack down on filesharing despite a hostile domestic climate. The Department of Homeland Security goes further than taking sites down, it actually seizes domain names. In February, the department seized 18 domain names from sites alleged to be linked to counterfeit goods or to content piracy. Again, sites operating legally have been caught up in the war against piracy.

The sites targeted in these sorts of operations are hardly mainstream sites. But the legal basis for the takedowns and name seizures — that linking to infringing material amounts to criminal infringement — is infinitely extendable. A Homeland Security agent selling the domain name seizures in February was unable to explain why Homeland Security wasn’t seizing Google.com for exactly the same reasons.

But the copyright industry wants to go further than this and has backed the Combating Online Infringement and Counterfeits Act, currently before Congress, that would impose a Stephen Conroy-style mandatory internet filter on the US. The filter would be for a “blacklist” of sites that, without any legal process, have been deemed “dedicated to infringing activity.”

The industry also wants to outsource the war on filesharing to ISPs. This is a common tactic right across the world, including here in Australia where AFACT’s efforts to intimidate iiNet have met with minimal success in the Federal Court, despite efforts by copyright industry apologists to talk the case up (see this for a corrective to some of the rosy assertions of the industry). The Sarkozy Government imposed a “three-strikes” rule, which, like the US, it wants to extend globally, on French ISPs in 2009. Last year the dying Brown government rushed through the Digital Economy Act in the UK, which paves the way for the severance of people from the internet on the say-so of the copyright industry.

Individual members occasionally go beyond this. Sony convinced a US judge to let it access the details of everyone who accessed the site of American George Hotz who “jailbroke” Sony’s Playstation 3 system. Sony has also threatened to sue anyone posting hacking tools or encryption keys, although that might take some doing after the encryption key was widely distributed via Twitter earlier in the year.

The outsourcing goes further. The industry has pulled backed from directly suing consumers, which yielded the unedifying sight of mothers being forced pay tens of thousands of dollars to multinational corporations because their children downloaded a song. Instead, law firms have taken up the task of litigation. US law firms have caused a spike in the number of lawsuits over filesharing by the mass-issuing of letters of demand to internet users requiring the payment of several thousand dollars.

The same approach was initially successful for the UK law firm ACS:Law until its antics incensed a British judge and the firm first abandoned the pursuit of filesharers and then shut down altogether. Another British firm trying the same tactic was last year found in breach of the solicitors’ code of conduct. Again, legitimate internet users were caught up in anti-filesharing efforts.

Inevitably, scammers spotted the opportunities inherent in this outsourcing of copyright protection. A piece of malware circulated via torrent sites locked users’ machines and directed them to a website demanding payment for copyright infringement. The malware had nothing to do with the copyright industry but proved a lucrative scam.

How successful has the takedown of filesharing sites and the outsourcing of copyright protection been? According to a MPAA report last month, filesharing accounts for 25% of all internet traffic, with Bittorrent alone accounting for more than 10% of global internet traffic.

The vast bulk of that traffic, of course, is of consumers who wouldn’t otherwise pay for the content, or who would be happy to pay for content if it was made available to them where, how and when they wanted it, rather than under the conditions the copyright industry and the mainstream media insist on imposing. Instead, the industry keeps demanding government and courts impose ever more draconian legal solutions that attack the rights of legitimate internet users.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey
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