The Problem of Online File-sharing in Digital Economy Act 2010 - Essay Example

digital economy act Introduction Proponents of the Digital Economy Act primarily held the argument that the file sharing industry makes thecreative industry lose a lot of money due to piracy or file sharing activities in whatever form. Their primary argument is that the revenue should have been taxed so that a wider sector of society can benefit from it.1 The illegal file sharing industry or pirating the argument continues also deprives the creative industry of jobs. The Digital Britain report of 2009 is a policy document that is aimed at outlining the United Kingdom’s overall strategy for its digital economy. Lord Carter, the Digital Britain Minister and special adviser, together with several renowned personalities have considered the Digital Economy Act 2010 as the means in which the United Kingdom will define its digital future. The primordial focus, then, was to create a set of processes that will protect the digital economy of the United Kingdom. In August 2009, the disconnection provision was added in the Digital Economy Bill against the recommendation of the Digital Britain Report that rejected the idea at this type of punishment2 at the onset. The watered down version was the result of the strong lobby of the creative industry in the United Kingdom calling for more stringent punishment to those who share files. The provisions actually give special powers to the Secretary of State to provide more measures if he feels that the current measure are not having enough effect to curve the excessive violation of the law. While the arguments on the number of file shared over the internet can be considered as accurate3 they do not reflect the demographics of the person who download and share the files. It should be noted that there is a difference between downloading files for profit or gain as against downloading files or sharing files amongst friends. Nor does the manner in which files are shared were accurately presented. Taking the social networking site as the primary source or medium for file sharing, the number of files shared within the networking site increase exponentially. To illustrate: if a single user with the maximum number of friends in “facebook” share files he has legitimately purchased. He would in effect be spreading or making the file available for sharing to close to five thousand users. He would in effect be considered in violation of the Digital Economy Act 2010 and the social networking sites guilty of aiding this person. It is worthy to note that the intention of the person was not for profit and yet under this law he will be punished and his internet service disconnected. It is lamentable that with the immense popularity of social networking sites and the functionality of file sharing is most common among these sites most of the users of these sites will be the target and could be charged as violators of the Digital Economy Act 2010. Contentious Provisions The contentious provisions in the Digital Economy Act 2010 are the enforcement and the manner in which it is carried out. The law does not prevent or discourage people from violating the copyright law, it only punishes for the sake of punishing not even the guilty ones but those suspected of violating the law without due process. The worst part of the law is that the innocent have to prove that they are innocent in order to get their internet services back. Provisions 3 to 16 are the section that pertains to the proper gathering of pertinent data that can be used as evidenced to justify the action that will be undertaken later which is to disconnect the internet services of the offending users. Provisions 17 to 18 are the sections that deals with the disconnection of the service. By providing the threshold that sets the limit on the number of times a user can access the website of a copyright owner, the Digital Economy Act 2010 in effect does not prevent the commission of a crime in the form of copyright infringement, it only aims to limit the internet activity in the United Kingdom. File sharing per se is not a crime4, increase internet activity should not be considered a crime as well. In fact, vibrant internet activities reflect the level of freedom the citizen of a country has. Curtailing internet activity will also curtail commerce since most commercial transaction are being done through the internet in any progressive country. It is the position of this essay that the current anti-piracy laws particularly the copyright and Related Rights Regulations 2003 is more potent and just in enforcing the protection of copyright laws. Enforcement IP spoofing and cloning are very common techniques that can be employed by hackers5 to misdirect anybody trying to trace the IP addresses of users of the internet. Unfortunately, this technique is more known to hackers that do not have very noble intentions than the common innocent internet users. To illustrate, hackers or users who are more likely to violate the Digital Economy Act 2010 will procure the knowledge to spoof or clone IPs to prevent the detection of their illegal activities than regular users6 who visits sites of “creators”7 to admire their works or for any other purpose allowed under the law. If an IP address is spoofed or cloned, the unfortunate user of the IP address that have been cloned will now be accused of violating the Digital Economy Act 2010 despite his lack of knowledge of the illegal activities being performed on the IP address assigned to him. IP addresses are not personally owned by internet users and there are instances that these are assigned randomly by the service providers without the knowledge of the internet user. This would translate to several IP addresses assigned to one internet user, or worst, there would be overlapping IP addresses assigned to a subscriber. Even if the process within the service provider would accurately ensure that in generating the report the actual IP addresses used within the coverage period is the one assigned to the actual internet users, the non-technical aspect of the process as defined within the Digital Economy Act 2010 is suspect. Please note that it is the responsibility of the copyright owner to protect his own creation, thus, it is his responsibility to generate the IP addresses that has been found by him to be violating his rights. Under the provisions8 of the Digital Economy Act of 2010, the providers under the graduated response strategy can at one point deny or limit the internet access of the IP address found in violation of the act. What is worst is that the burden of proof to restore the internet access of the IP address rests on the subscribers or the users. Regular users or fans would likely tag the website of creators as part of their favourite websites to ensure that every time they log on to the internet and launch a browser it is the website of their favourite creator that will be displayed first. This alone would activate a visit flag. The number of times this innocent users launches his browser would be the number of times his IP address will appear in the creator’s application that detects the IP address that visits his website. Please note that every time a search engine is needed or opened by any users, it is the default webpage that will be displayed. It should be noted that when a creator activate the option to take note of all the IP addresses who visits his website, it will not distinguish who downloaded or copied the works that would qualify as a violation of the Digital Economy Act 2010 and those who simply want to enjoy the work. In this case the innocent will be prosecuted or tagged as a violator together with the guilty ones. The drastic measure being employed under Section 3 to Section 16 violates the very essence of the right to due process9 and the right to defend oneself against any accusers before a punishment can be given. While Section 17 and 18 not only deprive an innocent user or subscriber of internet service the users cannot contest at the onset or at the time the service will be deprived. It should be noted that file sharing between third parties in a network, even if temporary copies are made in the process of transmission10 are not in violation of the copyright laws. It is also permitted to copy if the purpose of the copying is for private study or research so long as it is not for commercial purposes.11 These are normal acts of regular internet users that will be infringed and allowed under the actual copyright law in effect12 within the United Kingdom. It can be considered that the provision of the Digital Economy Act 2010 can be considered as overkill or an overreaction to the threat of copyright infringement. Another peculiar aspect of the law is the non-liability of the copyright owner, the service provider and other parties responsible for the disconnection of the internet service of the user accused of excessive downloading. If in case damages occurred or were incurred by the subscriber because of the disconnection as a result of the alleged violation of the users, nobody could be held responsible for it. The appeals process already assumes that the internet user is a violator of the law. Taken as a whole, the Digital Economy Act 2010 is not a law made to deter copyright infringement within the United Kingdom; it mandates that each internet users only access web sites a finite number of times. It’s operation, intent and the manner the law is enforced speaks not of positively identifying internet users that discriminately copy and make use of the creation of others. The law intends to monitor and penalized internet subscribers that breached the allowable threshold of access to a particular website. Conclusion Digital Economy Act 2010 is not the appropriate response to the “problem” of online file-sharing it is actually an overkill. Since its enforcement will also punish if not inconvenience the innocent together with the guilty. The manner in which the government will regulate the internet traffic within the United Kingdom not only infringes the right of ordinary citizens, but it can also be subject to abuse. It cannot be disputed that file sharing impinges on the right of its creator over his work. However, the proposed enforcement of the Digital Economy Act 2010 that would give owners of a particular work the right to report potential IP addresses that have breached the threshold of access to the website of the creator. It should be noted that IP addresses can be spoofed or copied if not cloned thus the copyright owner may not be penalizing or reporting the actual guilty party but another user who is legitimately using his internet access. It is, however, disconcerting to note that the very people who can clone or spoof IP addresses are those technically adept or knowledgeable to do so. These are the same people who are more prone to illegally copy, file share and distribute for gain. Thus, the law will actually not catch the actual violators of the law, but it will instead limit the number of times a user can access his favourite site. It is unfortunate that the passing of the bill have been marred by controversy due to the very nature and personality advocating its passage. Prime Minister David Cameron himself dismayed at the manner in which the passage of the bill at its current form noted “there is no doubt that the persuasive powers of celebrities and important UK creative companies have distorted policy”.13 Instead of focusing on how intellectual properties can be made more affordable to users to discourage files-sharing proponents of the Digital Economy Act 2010 spend more in lobbyist and the introduction of equipment, software and other devices that would detect violators that can be circumvented in a matter of days if not weeks.14 In order to determine the proper response accurate data should be presented and the root cause of the problem determined. It has been determined that the high cost of original items is the primary reason why users share their copy with friends. This is also the primary reason why users are tempted to copy from file sharing sites. The law at its current form do not address the problem of file sharing it actually curtails the freedom of internet users as a whole. Internet traffic does not belong to the creative sector of the society alone. It certainly does not belong to that sector of society that makes money out of sharing files for profit as well. Denying internet service from the user’s side to control file sharing is also akin to preventing the popularity or the spread of its popularity of copyright items. Popularity is measured by the number of patrons or the number of owners of a particular item be it spread illegally or legally. From an economic point of view, the internet users who opted to share file instead of buying them would not have the resources to buy the items in the first place. Thus preventing these people from getting access to the copyrighted items through file sharing does not have any economic value. However, the same type of people does contribute to the popularity of the copyrighted items which could encourage those people who have the resources to purchase the items. This translates to the invaluable marketing value of users who share files to the copyright holder. The law stops this dynamics and is a actually misdirected towards punishing the innocent together with the guilty ones. Another aspect that needs to be considered is the social networking sites that actually allow file sharing within the application. Full operation of the law could actually disconnect the local servers of these social networking sites thereby affecting more types of users. If in case a copyright owner tags a social networking site as the primary share point15 of his copyright item, the operation of the Digital Economy Act 2010 would in fact disconnect the social networking site. The proper argument, therefore, in questioning the efficacy of the Digital Economic Act 2010 is its primary intent. If the intent of the law is to stop share point websites, then the solution provided by the law as reflected in the manner the law is enforced will not stop its proliferation since it is fairly easy to circumvent the technical enforcement of the law. In fact, the enforcement of the law will only prosecute the innocent since illegal share point service provider would have the technical knowhow to spoof, if not clone, IP addresses. It should be noted that the ratio of actual websites that illegally share copyrighted items for profit in direct violation of the copyright law16 is small as against those who shares copyrighted items for free17 because of their popularity. Provided that the technical enforcement of the law do succeed and has been proven to be effective, the economic rationale behind the law cannot be sustained in fact a detailed analysis of the dynamics of file sharing would reveal the following: Internet users who share files are not invested in procuring the actual items legitimately therefore even if the file sharing sites are disconnected these users will not purchase the actual items legitimately. Ergo, there will not be any economic value if the websites offering file sharing has been shut down. In retrospect, it should be considered that users who share files, albeit illegally, in actuality help promote, if not spread, the popularity of the copyrighted item. Since there is no economic value if the above argument is held, in curtailing their file sharing activity they should be allowed to go on. Therefore, the argument that the creative industry is losing millions cannot hold water. Read More