Controlling Internet Service Users - Essay Example

? Section/# On the Grounds of Responsibility: An Analysis of the Law and How Internet Service Providers Are Being Required to Police Their Own Users Executive Summary: The following analysis discusses the ways in which copyright infringement battles are defining the way in which ISPs (Internet Service Providers) are increasingly being required to police their own users. Furthermore, the paper analyzes the economic and societal effects of that the copyright infringement battle portends for society at large. Lastly, a subset of recommendations has been provided as a way to provoke discussion as to the ways that the legal framework can be adjusted to the needs of the media user and the corporations who are attempting to protect their investments. The back and forth between RIAA and the MPAA (Recording Industry Association of America and the Motion Picture Association of America) and copyright infringement has been a staple of the news since Napster was originally shut down back in the last 1990’s. Originally, groups such as the RIAA and MPAA have targeted the copyright infringer themselves; however, the specter of taking a 12 year old girl to court and forcing a settlement on her that equates to tens of thousands of dollars in judgment per song downloaded was counterproductive to their cause. The copyright battle has digressed into a type of action/reaction battle that pits private entities against oftentimes ill-informed web-users caught between an oftentimes impartial judiciary branch. As such, the MPAA and RIAA changed their tactics and began to target the method through which the files were being shared; namely, the torrent trackers that hosted the content. This method failed to achieve the desired result as torrent trackers merely moved their servers to nations that were outside the jurisdiction of the MPAA and RIAA. As a last resort, the MPAA and RIAA have began bringing suits towards the ISPs(Internet Service Providers) that provide the link to the information that copyright infringers download. This practice has achieved mixed results. As is the specific case in Australia, the High Court dismissed the case brought by MPAA and RIAA representatives that would have required ISPs to suspend the accounts of known copyright infringers. Although the MPAA and RIAA have a point with regards to the level of copyright infringement that their interests see violated on a daily basis, the fact of the matter is that these organizations are pursuing a somewhat minor problem with an heavy handed and categorical approach that has severe effects on the way that everyone uses media and data. As a community, file sharers (copyright infringers) vehemently defend their right to own, acquire, distribute, and disseminate any and all forms of media and information. To this group it is seen a right of free and open societies to remove all constraints to the free flow of information. However, on the flip side, copyright holders and those that have labored to create intellectual property are interested in protecting it from threats to its overall profitability. As such, a prime threat to profitability of intellectual copyrighted information is illegal file sharing. These two groups are increasing intractable in their support and defense of their respective practices. As such, to better understand the true implications of their respective actions, an empirical analysis must be performed to ascertain the negative attributes that file sharing may or may not have with relation to intellectual material. Although it would appear to seem a very straightforward answer as to whether illegal file sharing has directly affected music and film profits, the answer is anything but (Goel et al, 2010). A study by the University of North Carolina found that an album that was leaked up to a full month ahead of its scheduled release (and vigorously downloaded during this time) would actually experience a slight boost in overall sales (Dewenter et al, 2012). This non-expected result is just the tip of the iceberg with many studies raising the alarm as to the overall number of file shares and the total amount of copyrighted material that is being “stolen”. One particular Canadian study detailed the extent to which P2P file-sharing activities acted as substitutes or complements to music purchases in markets for CDs. The findings were not what was expected as it was determined that file sharing actually increased ticket sales associated with the pirated music. Furthermore, the study found, “there is a negative and significant market substitution effect and a positive and significant market creation effect—on the whole, these two effects ‘cancel’ one another out, leading to no association between the number of P2P files downloaded and CD album sales” (Anderson, 2010). In effect, studies are finding zero sum games and even certain small net positive benefits associated with P2P illegal file sharing. Nonetheless, due to the fact that there is little effect on the industry as a whole should not be misunderstood to mean that it does not negatively affects certain parts of the music industry – namely the parts of which that are represented by the MPAA and RIAA. As such, what is being experienced is in effect a classic “borrow from Peter to pay Paul” model. Whereas the net effect may be minimal and in some cases non measurable the effect within the differentiated spheres of the music industry is nonetheless felt. It would be preferable if the issue of copyright infringement as it related to file sharing was so simply and easily understood; however, as with many such issues, once the differing levels of complexity are dissected, infinitely more layers appear beneath these. One such layered level of complexity has to do with the legality of ISPs policing their own subscribers and reporting on their habits to another subset of privately owned for-profit businesses (MPAA and RIAA interests). Although a gross over-exaggeration, one could offer an example of a state or government being held responsible for traffic violations of its citizens on the roads that it had built. As such, the High Court’s ruling that the ISPs could not be held accountable in such a situation is therefore the only logical decision could have been reached. It is not the responsibility of a service provider to ensure that its customers are using the product for the correct reasons, intentions, or varying levels of legalities. Therefore, the ruling of the court reinforced the common logic approach that the service provider could not be ultimately held responsible for policing the actions of their users. However, unfortunately, this one example is one of hundreds in which media organizations are attempting to hold the “gatekeepers” responsible for the actions of their users. Furthermore, the economic theory of deadweight loss and tangentially the Laffer curve has merits with regards to the effects that further regulation would have to the society (Filby, 2011). If indeed the government were to pursue a policy of becoming the standard bearer with regards to copyright protection, the society would experience a great deal of deadweight loss as a result of the implementation of such a plan. Although it is inarguable that such a plan would likely reduce the total number of copyright infringements as it related to intellectual copyright infringement, the total economic costs of such an implementation would be borne by the entire society; including the tax payer (Peitz et al, 2006). To set up such a taskforce would require an inordinate amount of funding and manpower; likewise for the total amount of intellectual copyright material saved from copyright infringement, it would likely come nowhere near being a profitable enterprise to engage upon. One need look no further than the other forms of government regulation that have served to create such a high level of government waste and only minimally served to reduce a given problem in order to understand why a legal approach to the situation may not necessarily be the best remediation of the problem. Further, the rules of what defines copyright infringement at the current juncture are so broad as to likely have detrimental effects if the rules were implemented holistically upon the society and the marketplace. For instance, many people have viewed a tutorial or a travel album or a summer movie montage on YouTube that was set to some form of background music. However, due to the extremely general laws governing copyrights and sharing, almost every single one of those video uploaders is in danger of copyright infringement because they neither own nor have personally created the music that is within their video. This is just one salient example of the absurdity of the copyright laws as they currently exist. Furthermore, in order for a society to seriously consider copyright reform as a function of jurisprudence, it is incumbent upon the judicial branch, alongside private companies, to work to rewrite and adjust current copyright laws so that they are both reasonable and enforceable. Due to the fact that this is not the case at the current time, it would be foolish to further mandate with respect to their application or usage. Further, neither party is innocent as private firms are attempting to maximize their profit margins using the threat of lawsuits and litigation as scare tactics whereas file sharers are attempting to get something for nothing. As such, it is the responsibility of the judiciary to step in, just as they have in the case of Roadshow Films v. iiNet, to protect the rights of both free market enterprise as well as those rights that consumers hold. In this way, it is incumbent upon the legal system to clearly and plainly define what is and what is not copyright infringement. As long as loose and nefarious definitions exist, companies and industries will attempt to utilize these nebulous definitions for their own benefits. In this way, a host of lawsuits and other actions will precipitate around issues that should have originally been clearly defined by the force of law. References Andersen, B, & Frenz, M 2010, 'Don’t blame the P2P file-sharers: the impact of free music downloads on the purchase of music CDs in Canada', Journal Of Evolutionary Economics, 20, 5, pp. 715-740, Business Source Premier, EBSCOhost, viewed 27 September 2012. Dewenter, R, Haucap, J, & Wenzel, T 2012, 'On File Sharing With Indirect Network Effects Between Concert Ticket Sales and Music Recordings', Journal Of Media Economics, 25, 3, pp. 168-178, Business Source Premier, EBSCOhost, viewed 27 September 2012. Filby, M 2011, 'Regulating File Sharing: Open Regulation for an Open Internet', Journal Of International Commercial Law & Technology, 6, 4, pp. 207-223, Academic Search Complete, EBSCOhost, viewed 27 September 2012. Goel, S, Miesing, P, & Chandra, U 2010, 'The Impact of Illegal Peer-to-Peer File Sharing on the Media Industry', California Management Review, 52, 3, pp. 6-33, Business Source Premier, EBSCOhost, viewed 27 September 2012. Peitz, M. and P. Waelbroeck (2006), ‘Piracy of digital products: A critical review of the theoretical literature’, Information Economics and Policy 18 pp. 449–476 Read More