Name: Samaa Kanani ANR: 672673 Supervisor: M. Schellekens Program: Law and Technology LLM Word count: [13723 ]
Master Thesis
The blocking of file -sharing websites by ISPs – an appropriate tool, or a fruitless effort to safeguard copyrights?
1 INTRODUCTION 3 1.1 PIRACY 4 1.1.1 WHAT IS BIT TORRENT ? 5 1.2 PIRACY IN THE NETHERLANDS 6
2 – THE REASON BEHIND PEOPLES DOWNLOADING BEHAVIOR 10 2.1 FILESHARING 2©12 REPORT 10 2.2 CORE DATA REPORT 12 2.2.1 TV-SHOWS 12 2.2.2 MOVIES 12 2.2.3 MUSIC 13 2.3 ATTITUDE TOWARDS ONLINE PIRACY SURVEY (ATOPS) 14 2.3.1 FINDINGS OF ATOPS 15 2.3.2 ASSESSING THE THREE MAIN REASONS FOR PIRATING MEDIA CONTENT 19 2.3.3 ATTITUDE TOWARDS LEGAL DOWNLOADS AS AN ALTERNATIVE 20
3 BREIN V ZIGGO & XS4ALL 22 3.1 CASE SUMMARY 22
4 APPROPRIATENESS OF BREIN V ZIGGO/XS4ALL 25 4.1 PROPORTIONALITY 25 4.2 SUBSIDIARITY 27 4.3 EFFECTIVENESS 29
5. ALTERNATIVES TO ILLEGAL DOWNLOADING 34 5.2 (M ICRO ) DONATIONS 34 5.3 CROWD FUNDING 35 5.4 PRIVATE COPYING LEVY 35
6 CONCLUDING REMARKS 37
WORKS CITED 39
2 1 Introduction
The Internet has changed the way in which people obtain and consume information. It has also created new and easy ways for media to be accessed. But this ability to access media content over the Internet, also gave rise to online piracy. Copyrights holders are often hindered from fully exercising their copyrights, since their materials are being distributed illegally online. In recent years, the courts have seen an influx of copyright cases linked to file sharing websites which host illegally obtained media content. Initially, the courts tried to solve the issue by taking websites down, or ordering the Internet Service Providers (ISPs) to disclose the copyright infringers name and address. Since these websites are often operated abroad, they fall outside of the jurisdiction of the court. Therefore, shutting entire file-sharing websites down has proven to be impossible many times. ISPs are also unable to identify the operators of these foreign websites. Therefore, a solution often applied by courts, is to order the ISPs to block the access of its users to that particular website. This means that the website itself is not taken down, but merely the access to it from a particular ISP is blocked. Recently, a court in the Netherlands held that ISPs have to block the access to The Pirate Bay, one of the most well known file-sharing websites 1. The effectiveness of this measure however is questionable, which is why one of the key questions we have to ask ourselves is how effective this measure actually was in preventing violations of copyrights. As we will see in detail later on, a study by the University of Amsterdam has shown that the traffic on this website has actually increased since its blocking, which may indicate that the measure was actually not effective 2.
In this paper the focus lies with the solution which blocks access to file-sharing websites, rather than shutting them down completely, or prosecuting the individual perpetrators. One of the goals of this paper is to find out whether the outcome of the judgment of the BREIN v ZIGGO/XS4ALL case is in line with the empirical findings of the various reports and surveys (which can be found in chapter 2) that provided research in this field. BREIN v ZIGGO/XS4ALL is taken as an example because it is a landmark case, in which the access to an entire website had to be blocked by many ISPs in order to prevent copyright infringements. The outcome of the case has broad implications since BREIN can now ask for IP addresses of sites mirroring the initial website to be blocked ex-parte.
This research is vital, because the issue of online piracy is an ever growing problem for copyright holders, and an appropriate tool for combating copyright infringement is yet to be found. A lot of time and resources are invested in a court decision such as that of BREIN v ZIGGO/XS4ALL, but the effects of the judgment on peoples downloading behavior seem to not have been taken into consideration.
The aim of this paper therefore is to assess whether the blocking of file-sharing websites by ISPs is an appropriate tool, for safeguarding copyrights, or whether it’s a fruitless effort. In this paper the concept of piracy, how it works and its legal status in the Netherlands will be assessed. Next, the paper will be probing deeper into the human behavior
1 BREIN v ZIGGO/XS4ALL, 2012 2 Van der Ham, Rood, Dumitru, & al, 2012
3 relating to the downloading of copyrighted materials, through the assessment of various surveys and reports in this field. Then the abovementioned case, whereby a court ordered the blocking of the Pirate Bay by ISPs, will be examined. The appropriateness of the ruling will be assessed based on three tests: proportionality, subsidiarity, and effectiveness. Finally alternative measures for dealing with problems relating to the downloading of copyrighted material will be suggested.
Methodology The research will focus on the following question: The blocking of file-sharing websites by ISPs – an appropriate tool, or a fruitless effort to safeguard copyrights?
In order to determine whether the blocking of file-sharing websites by ISPs help safeguard copyrights, the landmark case of BREIN v ZIGGO/XS4ALL was studied and analyzed thoroughly. This landmark case is a good example of how court ordered blockings of Filesharing websites may or may not affect peoples downloading behavior.
The research will orient itself along these sub questions: 1) Is the judgment proportional? 2) Is the judgment in line with the subsidiarity principle? 3) Was the blocking of The Piratebay in the Netherlands effective in reducing copyrights infringement?
For determining the effectiveness of the courts judgment, a survey was conducted with the aim to find out: 1) Why people download illegally 2) Whether they have changed their illegal downloading habits since The Piratebay has been blocked. This survey was conducted via an online survey tool, and had a total of 100 respondents, all of whom downloaded some form of media on a regular basis. The reason why this survey was only to be filled in by those who regularly download, is because the aim of this survey was not to find out which percentage of the population downloads illegally, but rather to find out why those who download illegally, actually do it.
1.1 Piracy
In this first chapter we will look into what piracy actually is and the current legal status of pirating in the Netherlands.
Merriam Webster describes piracy as: “ the unauthorized use of another's production, invention, or conception especially in infringement of a copyright”3.
3 Merriam-Webster, piracy
4 In this case the “production” is usually a song, movie, book, computer came, or other form of media. The use is “unauthorized,” because the production or work is made publicly available on the Internet without consent of the rights holder. Piracy falls into four distinct categories 4: Physical music piracy, counterfeits, bootlegs, and Internet Piracy. Physical music piracy refers to the copying of music onto physical sound carriers. This form of piracy can be traced back to the time when the first mix- taped were made on cassette tapes. Counterfeits are false reproductions trying to pass off as the original work. Bootlegs are for instance recordings of shows or concerts, which were done without permission and then sold or distributed. One of the newest forms of piracy is Internet Piracy. It refers to various forms of pirating, using the Internet as a tool for these illegal downloads. This will be the form of piracy most used throughout this paper.
There are various means of pirating media from the Internet. There are websites that offer direct downloads from their servers. There is the possibility to put a YouTube videos URL into a converter program and convert it into an mp3 format, to then download it. Another, quite popular method is the P2P (Peer to Peer) method of file- sharing, whereby the media is not downloaded from one website provider/ server, but rather from a “peer”5. This is done through the use of a software program, which locates the file one wants to download on another server.
A very popular form of P2P has become the BitTorrent. This is a form of P2P file sharing whereby one simultaneously uploads and downloads the file.
1.1.1 What is BitTorrent? BitTorrent, also known, as Torrent is a method used for downloading, invented by the Python-programmer Bram Cohen and debuted in 2001 6. In order to operate, BitTorrents use “swarming and tracking.” Swarming describes the act of splitting up large files into many smaller bits, in order to then share those bits amongst a swarm of users. So torrents work by simultaneously downloading bits of the same file from different sources. The term tracking refers to the fact that a server will help all the various swarmers find each other’s files. In order to be able to download a BitTorrent file, a user will have to first install a BitTorrent client on their computer, such as uTorrent or Transmission. This protocol will then be able to download the BitTorrent files. The Torrent files themselves do not contain the file that is to be downloaded; instead they contain information regarding the file. This information is the used by the BitTorrent client to communicate to the tracker in order to find fellow swarmers who are downloading and sharing a specific file 7.
4 IPIF 5 Carmack, 2005 6 Gil, 2013 7 Pash, 2007
5 The diagram below depicts in detail how torrents function.
Source: How stuff works website
What is unique about BitTorrent when compared to other methods of P2P, is that every user is simultaneously up- and –downloading the bits. Therefore the downloading speed is often much faster compared to other methods. This is due to the fact that one person does not need to be in possession of the entire file before they ca n start sharing with others. Rather, as soon as a person even has only one ‘bit’ of the file, that bit can be shared with others.
One website which is often frequented by file -sharers is the piratebay.org . This website, however can now no longer be directly accessed from within the Netherlands due to a court order (which will be reviewed in detail in chapters 3 and 4) .
1.2 Piracy in the Netherlands
Internet piracy is a widely occurring activity within the Netherlands. In a survey conducted for the Dutch governmen t it was found that 44% of the I nternet using population had downloaded copyrighted materials from the I nternet without authorization 8. Therefore in this section we will take a look at the legal situation surrounding th e topics of copyrights, the infringement thereof, and piracy in the Netherlands.
The “ Auteurswet ” governs the laws relating to copyrights in the Netherlands. Article 1 of the law, establishes that there is a copyright, which exclusively belongs to the creator of the work.
8 Huygen, Rutten, & Huveneers, 2009, p.63
6 Art 1 Het auteursrecht is het uitsluitend recht van den maker van een werk van letterkunde, wetenschap of kunst, of van diens rechtverkrijgenden, om dit openbaar te maken en te verveelvoudigen, behoudens de beperkingen, bij de wet gesteld.
This article establishes copyrights on works of art, science and literature. Furthermore highlights two exclusive rights which the copyright holder has. The rights of publishing the work ( openbaar maken ) and duplicating it ( verveelvoudigen ).
One might wonder, why it is then that so many people in the Netherlands, download copyrighted media content without the authors permission, i.e. download media content from illegal sources. One of the ways to explain this behavior is to look at the law governing ‘illegal’ downloads.
The law does make exceptions for personal use. The current laws allow people to download media (including music and movies) form the Internet for their personal use, even if these were obtained through piracy 9. Sections 16b(1) and 16c(1) set out the necessary requirements for making a ‘private copy.’
Art 16b(1) Als inbreuk op het auteursrecht op een werk van letterkunde, wetenschap of kunst wordt niet beschouwd de verveelvoudiging welke beperkt blijft tot enkele exemplaren en welke uitsluitend dient tot eigen oefening, studie of gebruik van de natuurlijke persoon die zonder direct of indirect commercieel oogmerk de verveelvoudiging vervaardigt of tot het verveelvoudigen uitsluitend ten behoeve van zichzelf opdracht geeft.
English translation of the article: It shall not be deemed an infringement of the copyright in a literary, scientific or artistic work to reproduce it in a limited number of copies for the sole purpose of private practice, study or use by the natural person, who makes the copies or orders the copies to be made exclusively for himself/herself, given that the reproduction occurs without a direct or indirect commercial purpose.
Art 16c(1) Als inbreuk op het auteursrecht op een werk van letterkunde, wetenschap of kunst wordt niet beschouwd het reproduceren van het werk of een gedeelte ervan op een voorwerp dat bestemd is om een werk ten gehore te brengen, te vertonen of weer te geven, mits het reproduceren geschiedt zonder direct of indirect commercieel oogmerk en uitsluitend dient tot eigen oefening, studie of gebruik van de natuurlijke persoon die de reproductie vervaardigt.
English translation of the article: It shall not be deemed an infringement of the copyright in a literary, scientific or artistic work to reproduce it, or a part thereof onto an object which is intended to play a work, to exhibit, or display it, given that the reproduction occurs without a direct or indirect
9 Engelfriet, 2012
7 commercial purpose and for the sole purpose of private practice, study or use by the natural person who makes the copies.
So we can see that the copy has to be made: by a natural person, without the aim of making a profit, for personal use and studying, and the number of copies has to be limited. If these criteria are fulfilled, then the copy is in accordance with the ‘fair use policy’, and may be used even if it came from an illegitimate source 10 . The uploading and distribution of copyrighted material and however is illegal. The situation is a more complicated with regards to BitTorrents, seeing as those files are simultaneously being uploaded and downloaded.
It has to be noted, however that there are some differences between the two articles. Article 16b allows the copying of works for the purpose of private practice, study or use of the natural person. However this article deals with the traditional notion of copying such as photocopies, non-digital photographs, and tracings of pictures. Article 16c on the other hand also deals with the modern notion of copying, which includes copying works onto cassette tapes, videotapes, cd’s, dvd’s, etc. Article 16c(2) establishes that these private copies are only allowed, as long as a fair compensation is paid, this is also referred to as the “thuiskopievergoeding.” Since 2004 in the Netherlands, this fee is automatically built into the price of devices, which are intended to play, show, or exhibit or display the work 11 . These fees are typically included in blank CD’s or DVD’s or other devices, which can record, store and play works of art, literature or science. The money is collected by an organization, called the “Stichting de Thuiskopie.” This organization distributes the money collected from the “thuiskopievergoeding” and distributes it amongst composers, artists, producers, authors, and directors 12 .
As we can see, under the current legislation, downloading without authorization does not constitute a copyright infringement in the Netherlands, as long as the person doing it, adheres to the rules set out in art 16c of the Auteurswet.
Next Chapters Now that we have examined what piracy actually is and how it works, it is important to assess why people download illegally. Once we know more about the downloading behavior of people, it will be easier to asses whether the measures put in place in order to combat copyright infringement will be successful or not. Therefore the next chapters we will look at the reason behind peoples downloading behavior by assessing various reports and surveys conducted in this field.
The findings of the empirical research will allow for a better understanding of whether or not the judgment in BREIN v ZIGGO/XS4ALL was in line with the principles of proportionality, subsidiarity, and effectiveness. Therefore, we will examine the BREIN v ZIGGO/XS4ALL case and its outcome, and look at whether it was in accordance with the principles of: proportionality, subsidiarity, and whether it was effective in the end. Using this case as an example we will determine whether or not it is useful to order ISPs to
10 Huygen, Rutten, & Huveneers, 2009, p.50 11 Kopiëren, Auteursrecht.nl 12 de Thuiskopie, Wat doet de thuiskopie
8 block access to certain file-sharing websites. Or whether it would be more useful to use alternative methods for safeguarding copyrights.
Finally, we will examine other methods of safeguarding copyrights, that don’t involve legislature, such as a flat tax on piracy or a pay what you like system. It is important to explore options other than legal ones, in order to try to safeguard copyrights.
9 2 – The reason behind peoples downloading behavior The purpose of this chapter is to discern the downloading behavior of people, as well as examining why and how much they actually download. Through this empirical research conducted through the surveys, we can shed a new light on the issues concerning the blocking of access to websites by ISPs and the appropriateness thereof.
2.1 Filesharing 2©12 report
In 2012 CentERdata of Tilburg University in collaboration with the ‘Instituut voor Informatierecht’ of the University of Amsterdam published the ‘Filesharing 2©12 report’13 which highlights the latest developments regarding Filesharing behavior in the Netherlands 14 . The report revealed that more than a quarter (27.2%) of the population aged 16 and over had downloaded copyrighted materials illegally at least once in that year. The report also showed that music made up the largest share of the total downloads with 21.7%, followed by movies/series (18.3%), games (6.3%), and books (6.3%).
The participants, who illegally downloaded copyrighted materials, were asked how much they would be willing to spend on their last download in order to acquire it through legal means. Hereby both physical pieces of work (CD, DVD, book) and electronic version (including streaming) were taken into consideration. The results can be found in the table below. “Willingness to pay >0€” refers to the amount of people that stated they would be willing to pay some amount of money for their last download, if it had been legal. “Average price” relates to the average amount of money that the surveyed people would have spent on their last download, if it had been purchased through legal means.
Product Format Willingness Average price to pay >0 €
Music CD 65,8% 11,15 € Download 63,2% 6,93 €
Movies, TV-shows DVD 66,4% 11,29€ Download 63,0% 5,46€ Stream 56,9% 3,58€
Books Book (physical) 70,2% 17,71€ E-book 68,4% 7,81€
Games CD 56,8% 16,05€ Download 55,0% 11,19€ Source: Filesharing 2©12 report, table 15.
13 The survey was completed by a total of 2009 participants. 14 Poort & Leenheer (2012)
10 It is interesting to see that from all the people who were surveyed, between 55 to 70,2% would be willing to pay for their last download, if necessary. In other words, the remaining 29,8 – 45% of the people would not be willing to pay anything for legal downloads. Most people are likely to pay for legally acquiring books, whereas the least amount of people is likely to pay for legal versions of games.
Another trend that can be observed is that there is a higher willingness to pay for a physical product, such as an actual CD, DVD, book, or game, when compared to their online digital counterparts. The amount of money people are willing to pay for physical products is also often twice as high as that which they are willing to pay for a digital version. This is especially true for books when compared to e-books. It is interesting to note that even with movies/ TV-shows there is a significant difference between how much people are willing to pay for downloading the file versus streaming it, even though both forms are digital. We can see from this that many people still value physical objects more than their digital counterparts. The only category in which people would not be willing to pay substantially more for a physical version of the product versus a digital version, are games.
It is important to note that currently the prices of most e-books are about 80% of their printed versions. When we look at the table however, we can see that most people expect to pay less than half of the price for the printed version, when purchasing the same in e-book format. For the rest of the products, the prices that people were willing to pay strongly correlated with the prices of the market in 201115 . PC games were the most expensive products with an average price of 17€, followed by books and CDs at 12 €, and DVD’s at 10€ a piece.
From this part of the Filesharing 2©12 survey, we have learned various things. Around one-third to half of all the people who have downloaded copyrighted materials illegally, would not be downloading those materials if they would have to pay for them. This is a vital aspect of the findings of the survey, because it demonstrates a common fallacy, which the entertainment industry applies. Within the entertainment industry it is often claimed that all of the materials downloaded or otherwise obtained through illegal means, result in a direct loss for the copyrights holders. However, as we can see from the numbers above, up to half of the people who download illegally, would not be willing to even pay 1€ for the same product. It can be said that these group of people are only downloading the materials illegally, because they have the means to do it. But if they were prevented from doing it, they would not be willing to pay in order to receive the same product. This means that people ‘consume’ more media content, just because they can, however if forced to pay for it, they would consume far less. Therefore, for this group of people, making it harder to illegally download would not result in an increase of sales of movies, music, games, ect. This is something for both the entertainment industry as well as the legislator to take into consideration.
The remainder of the surveyed people would be willing to pay prices, which strongly correlate with the current market prices of the same products. The report also establishes that consumers are more inclined to pay for these products rather than
15 Poort & Leenheer (2012), p.25
11 download them illegally, given that there is an easy-to-use alternative that offers enough supplies.
While the results of this survey indicate he amount of people willing to pay for media contents, as well as how much they would be willing to pay for them, the next survey we will look at also considers the driving factor behind peoples downloading behavior.
2.2 CoreData report
In 2010 CoreData, an Australian market research specialist together with news.com.au conducted an illegal downloads survey 16 . The aim of this survey was to find out why people actually download, and whether they would be willing to change their habits given that there would be a suitable alternative. The survey was completed by a total of 7324 respondents. The respondents were asked why they downloaded TV-shows, movies, and music illegally. They could choose multiple reasons from a list, for each one of the types of media. Secondly they were asked how much they would be wiling to spend on the same kind of media, if there was a convenient and affordable alternative.
2.2.1 TV-shows A total of 6694 people said to have illegally downloaded TV shows, making it the most frequently illegally downloaded type of media. The respondents were asked why they chose to download TV-shows. The most common answer was that they would otherwise have to wait too long to see it on TV (50.7%). Followed by those who said that they want to be able to watch it whenever they want, and without ads (41.5 and 38.9 % respectively). Another main reason for downloading the TV-shows illegally was that it was not shown on TV at all (in Australia). The results of the TV-show part of the survey portray an interesting trend. Whereas music is often instantly available in various countries once it enters the market, this is not true for movies and TV-series, which leads people to look for alternative ways to access those types of media. While many of these TV shows, which often originate in the US, are easily available there through cable TV or online services such as Hulu and Netflix, this is not the case outside the US. It often takes long periods of time before a TV-show airs outside its country of origin, if it is even aired at all. Even then, it’s usually only available with subtitles or is even dubbed if the language is one different from the country that is airing it on TV. When looking at the answers of the respondents we can see that there is a great need for the market to adapt to the consumers needs, in order to prevent them from downloading the content illegally.
2.2.2 Movies Movies are the second most downloaded type of media, with a total of 5902 admitting to downloading or streaming them illegally. The top three reasons for downloading movies illegally were: “going to the cinema is too expensive” (43.5%), “It’s convenient” (42.4 %), “I want to be able to watch it whenever I want” (42.4%).
16 Ramadge, 2010, Top three reasons we chose illegal downloads
12 While a large portion claims that going to the cinema is too expensive, only 28.7 % say they download simply because it is free. This leads to show that people are willing to pay to see movies, but that the prices often don’t match the expectations of the consumers.
2.2.3 Music Out of the three types of media that were investigated, music was the least downloaded type, with a total of 5712 respondents stating to have downloaded music in the past 12 months. The most common answer to the question of why they downloaded music through illegal means was: “ I want it in mp3 format without copy restrictions” (43.2%). Closely followed by: “ It’s convenient” (37%), “CDs are too expensive” (36.5%), “It’s free” (33.2%), and “I want to know if I like it before I decide whether to buy it” (28.2%). We can see that while there are some who download due to monetary reasons, there are many who download because of money unrelated reasons.
The respondents were also asked how much they would be willing to pay for each type of media, if there was an easy-to-use alternative for illegal downloading. The results can be seen in the graphs below.
17 The amounts given above are in Australian Dollars and for TV-shows are per episode, and for music are per song.
In response to this survey, David Crafti, the president of the Australian pirate party said that the results of the survey show that those who illegally download are in fact
17 Ramadge, Most pirates say they'd pay for legal downloads , 2010
13 frustrated consumers who don’t have alternative options 18 . He thinks that people would switch to an alternative legitimate online service, given that this would provide similar services as the piracy sites and would be affordable.
Neil Gane, from the Australian Federation Against Copyright Theft, however disagrees. He thinks that people have adopted a ‘Robin Hood attitude,’ thinking that stealing from the rich is a victimless crime 19 . He furthermore states that the prices that people said they would be willing to pay are unrealistic and would not cover the costs of production. In conclusion, the report explains that overall most people are willing to pay for the materials they normally pirate, if there was a legal alternative as convenient as BitTorrents. They say that accessibility is the core reason behind peoples downloading behavior and not money. This is clearly demonstrated through the results of the TV- show questioning part of the survey, where accessibility was the main issue.
Comparison to Filesharing 2©12 report It is interesting to note that the number of people willing to pay for their downloads if they were legal correlate strongly in both surveys. While in the Filesharing report 63.2% of people said that they would pay for legally downloading music, 66.4 of the Australian CoreData survey said the same. Movies and TV-shows were grouped together in the Filesharing survey, therefore it is a bit more difficult to compare it to the CoreData report. We can still see that in the Filesharing survey 63% said that they would be willing to pay for a legal download. In the Australian survey this number is between 66.4 and 78% (for TV-shows and movies respectively).
2.3 Attitude Towards Online Piracy Survey (ATOPS)
After assessing the two previous reports, I conducted my own research project, titled the “Attitude Towards Online Piracy Survey”, or ATOPS. A total of 108 respondents completed the survey, however for the findings, only the first 100 responses were counted 20 . The survey was targeted towards those who actually download media contents through illegal means on a regular basis. The aim was to learn what the main reasons for downloading through illegal means were, which tools were used to do this, what type of media was being downloaded, and how often people download. The survey focused on 4 types of media, namely: music, movies, TV-shows and e-books/audiobooks. Finally for those respondents who reside in the Netherlands, were asked how the blocking of TPB in 2012 has affected them in accessing the website. The results of the survey can be seen below. Unless otherwise indicated, each of the questions was answered by 100 persons.
18 Ramadge, Most pirates say they'd pay for legal downloads , 2010 19 Ramadge, Most pirates say they'd pay for legal downloads , 2010 20 The survey was conducted through an online tool called Survey Monkey. Unfortunately due to a restriction in the system, the program only allowed me to view and analyze the first 100 results. The other 8 results could not be viewed or analyzed. The system automatically selected the last 8 submissions to be omitted. These 8 results do not form part of the statistics; they were left out.
14 2.3.1 Findings of ATOPS
How often do you download pirated media content?
20% 25% On a daily basis at least once a week
18% at least once a month less than once a month 37%
The survey started off by asking the respondents how often they downloaded pirated media content. 80% of the respondents download at least once a month, with a quarter of the respondents saying that they even downl oad on a daily basis. Only 20% said that they download on rare occasions (less than once a month).
Which method for downloading do you use most frequently?
One-click hosts 6% Other 7%
Usenet 20% Torrents 65% Other P2P (non torrent based) 2% 21 On overwhelming majority of the respondents use torrents as their main method for acquiring pirated media content. The second most widely spread method for downloading is through Usenet. This is a system whereby one has a paid online subscription and can download media content without uploading it (which is often the
21 This question was answered by 99 of the respondents and skipped by one.
15 criminalized aspect of piracy). This goes to show th at people are even willing to pay for downloads, as long as there is a convenient alternative. Amongst those who responded with ‘other’, 3 said that they use YouTube mp3 converters (which virtually records the YouTube clip/song and stores it in mp3 format ). Some others said that they stream, use various other websites, or ask friends to download the materials for them.
In this next section we will focus on the main motive behind the respondents illegal downloading behavior for movies , TV-shows, music, and e-books/audiobooks. For those that didn’t download that particular type of media, there was an option to say that they don’t download it.
Movies What is your main reason for downloading pirated movies? It's free and convenient I don't want to wait for it to come out on DVD or at the cinema in the country I live in Going to the cinema is too expensive It's an old movie that I can't find anywhere else I never download pirated movies 42,9
19,4 14,3 9,4 11,2
Movies
(98 % completed) All the numbers indicated above are in percentages.
Out of the four types of media that w ere tested in this survey, movies were the most downloaded ones. Only 11.2 % of the respondents said that they never download movies. The top reason for downloading movies was the same as that for TV -shows and mus ic: “It’s free and convenient.”
16 What is your main reason for downloading pirated TV -shows? It's free and convenient It's not shown on TV at all (in the country I live in) I don't have a TV or cable, therefore I can only watch content on my computer I never download pirated TV -shows I will have to wait too long to see it on TV It doesn't contain commercials It's an old TV-show that I can't find anywhere else
25 20 17 17 13
5 3
TV-shows
As w ith the movies we see that the most common reason for downloading TV -shows was the fact that it’s free and convenient. TV -shows were the second most frequently downloaded type of media, with only 17% of the respondents claiming that they never download them.
What is your main reason for downloading pirated music?
It's free and convenient CD's are overpriced I never download pirated music I already paid to see the concert I already own the CD, but want to have it in digital format
39
26 18 9 8
Music
All the numbers indicated above are in percentages.
17 Again as with the two previous types of media, we can see that being free and convenient is the main reason for most people to download music illegally. There are many websites that serve as downlo ading platforms for movies, TV -shows and music, making it easily obtainable.
What is your main reason for downloading pirated E -books/ Audio books?
I never download pirated e -books/ audiobooks There is no good alternative, such as an affordable online e -book library It's free and convenient E-books/ audiobooks are too expensive I already own a print version of the book and I don't want to pay for it again 37,8
22,4 17,3 15,3 7,1
E-books / Audio books 22 E-Books/ Audio books were the least downloaded type of media, with 37.8% of the respondents saying they never download them. Similar patterns to the Filesharing 2©12 survey can be seen when we address the e -book downloading behavior. There, we saw that people tend to want to pay far less for e -books than for regular books. This shows that most people still value physical objects more than their digital counterparts, which could go to explain why so few actually download e -books (illegally).
It is interesting to note that unlike with movies, music, and TV -shows, the main reason for downloading pirated e-books was not the fact th at it’s free and convenient. This is because unlike with movies, TV -shows and music, e-books are actually not as easy to find for free online. There are not as many platforms enabling people to pirate e -books or audiobooks. There are only limited selection s, and often only the most popular books are available.
The main reason for people to obtain e -books through illegal means, was that “there is no good alternative, such as an affordable online e-book library.” Again we can see that many people would be willing to pay for their consumption, but simply feel as if there are not suitable legal alternatives they can use.
22 98 % completed
18 2.3.2 Assessing the three main reasons for pirating media content Although the questions regarding why someone downloads a certain type of media were not open-ended, they still provide us with an interesting picture regarding peoples downloading behavior. Apart from the “It’s free and convenient” factor, we can observe three categories of reasons why people chose to download illegally 23 . These categories are: Accessibility, Price, and the wish to own media in the Digital Format.
Accessibility E-books, TV-shows and movies, are often downloaded because of accessibility issues. As we have seen, many people find that there is not a suitable legal alternative for the downloading of E-books.
With regard to movies and TV-shows we can see that people are not willing to wait too long for it to be aired in the country they live in. With many of the movies and TV-shows originating in Hollywood, it often takes weeks or months before the same movie is available outside the US. Even then, the movies and TV-shows are often only available with subtitles or are dubbed, making it difficult for the viewers to see the original version without pirating it. Other reasons for downloading illegally, include: the fact that it’s an old movie or TV- show which can’t be found elsewhere, because it’s not shown at all on TV (in the country the respondent lives in), or because the person does not own a TV or does not have cable and therefore has no other option but to view the content on their computer.
All these reasons reflect the urgent need for the entertainment industry to adapt its practices to the consumers needs. As the survey ahs shown, most people are willing to pay for their downloads, however they do not have enough access to legal resources. With the ever increasingly amount of illegal downloading possibilities that the Internet provides, the entertainment industry needs to provide the consumers with similar legal alternatives in order to prevent piracy.
Price Price is another major factor in the decision-making process of someone who illegally downloads. Up to a quarter of the respondents found the prices of cinemas, CDs and E- books to be too high. The market should, if they want to meet the needs of the consumers, adjust their prices, to reflect it’s market value. Especially the prices of e- books often greatly surpass the amount a consumer is willing to pay, as we have seen from the results of the Filesharing 2©12 survey.
Digital Format Another reason for downloading pirated materials are the fact that someone already owns the music or book, but wants to have this in digital format. Many people who start digitalizing their music collection find it easier and faster to download the music off the
23 It has to be noted that the respondents could only chose from a set of answers, and the possibility for an open answer was not provided in relation to the questions asking people why they download that certain type of media. The reason for this is twofold. First, it allows for easier analysis of the data, since there is not an endless amount of possible answers. Secondly, it has to be noted that most relevant answer options were given, but if a person felt as though non of the answers matched their reason, they could chose to skip the question.
19 internet, rather than copying the music they have from a CD, cassette ta pe, ect onto their computer. The same can be said for e -books. Those who want to digitalize their book collection are often less willing to pay again for a book they already purchased just to have it on their computer. A system that would allow people to train in their physical copies of music albums or books in return for a digital copy of the same work, might help prevent this portion of the downloaders from obtaining pirated materials.
2.3.3 Attitude towards legal downloads as an alternative After find ing out why people download illegally, the survey tried to find out how much people would be willing to pay for a legal equivalent to a downloading site, which allows unlimited downloads of movies, TV -shows, music, e-books, games and software. The answers can be see below.
Amount I am willing to pay for a legal service which allows unlimited downloads of media
Nothing! If there is still the option to pirate it. 4% 8% 13% 5€ or less
5-10 Euros 16% 12% 10 -15 Euros
15-20 Euros
20% 27% 20-40 Euros
More than 40 €
Interestingly enough, only 13% of the respondents would not be willing to pay anything if they still had the option to pirate the materials. The remaining 87% of the respondents are willing to pay for their downloads. A majority of the respondents are willing to pay between 5 -20 euros for such a legal service. This again demonstrates the great need for a legal alternative to downloading that is as convenient and easy to use as existing websites , which provide illegal downloads.
In the next part, t he participants were presented with 3 hypothetical scenarios, and had to say how they were most likely going to re act in that given situation.
20
Interestingly enough, increased chances of getting caught, as well as the introduction of more sever punishments were not the main driving factors for stopping illegal downloads. The main incentive for stopping the downloading of pirated content for the respondents was the introduction of an affordable and easy-to-use alternative to piracy websites. Price was another important factor for limiting illegal downloads, with over half of the respondents claiming they would limit their illegal downloading activities if the prices for music, movies, e-books ect would decrease significantly. We can see similarities to the answers of the previous questions, where Price and Accessibility played an integral part in the decision making process of downloaders.
21 3 BREIN v ZIGGO & XS4ALL
In the recent case of BREIN v ZIGGO/XS4ALL 24 , the court ruled in favor of the Dutch anti piracy foundation, ordering the ISPs to block their users access to the piratebay.org 25 . This did not mean that the court ordered the website to be entirely shut down, rather it only ordered the URLs to be blocked within the Netherlands. Within a few hours, there were mirror sites available, which looked and worked exactly like the piragebay.org. One of these sites is the unblockedpiratebay.com. There is also a report by a researcher group at the university of Amsterdam, which shows that the traffic on the piratebay actually increased since it was blocked, through the use of these mirror sites, but also VPN clients. Therefore, in this chapter we will take a closer at the recent case of BREIN v ZIGGO& XS4ALL, since it is vital to answering the question of whether or not the blocking of file- sharing websites by ISP’s is appropriate. Subsequently we will evaluate the appropriateness of the ruling based on the three tests: proportionality, subsidiarity, and effectiveness.
3.1 Case summary
On 11-01-2012 the court in The Hague ruled in the matter of BREIN v ZIGGO/XS4ALL. BREIN describes itself, as “the joint anti-piracy program of authors, artists, publishers, producers and distributors of music, film, games, interactive software and books”26 . ZIGGO and XS4ALL are two major Internet Service Providers in the Netherlands, who are acting as one party in this case. The dispute between the parties arose due to the fact that BREIN demanded that the ISP’s should block the access to the file-sharing website The Pirate Bay (TPB) BREIN claims that they, together with other copyrights holders have tried to act against TPB multiple times, but have never been successful. They claim that TPB provides a platform for the illegal exchange of music, movies, games, ect. They refer to the fact that TPB founders were charged with both criminal and civil offences in courts of law. Furthermore the ISP’s providing connections to TPB were also sued in a court of law. (These facts demonstrate clearly the lack of power governments and other institutions have in regard to the regulation of such websites.) BREIN therefore asks the court to demand that the ISP’s should block their customers access to The Pirate Bay.
The facts The court finds that 30% of ZIGGOs clients and 4,5% of XS4ALLs clients have in recent times downloaded illegally. Due to the BitTorrent nature of the Downloads, the court assumes that simultaneously with the downloading, uploads also occurred. Whereas certain kinds of downloads are not in violation with the national law, uploading is. Therefore the court justifies a possible blocking of the website. Furthermore the court points out that other measures, which were taken in order to ensure that access to TPB was blocked, have proved to be ineffective. Finally they point out that prosecuting each
24 BREIN v ZIGGO/XS4ALL, 2012 25 BREIN v ZIGGO/XS4ALL, 2012 26 BREIN, the foundation, 2013
22 individual, who downloaded materials off the Internet illegally, on a case-by-case basis is neither advisable nor desirable.
Evidence submitted by BREIN BREIN asked TNO to conduct research regarding the illegal content, which can be downloaded from TPB. TNO (Toegepast Natuurwetenschappelijk Onderzoek) is an organization for applied scientific research in the Netherlands. On 26 th June 2008, TNO published a report in which they found that: From the Audio, Video (including movies and TV-series), and Games available on TPB, 90%, 94%, and 80% respectively were “Illegal materials”. In this case Illegal materials refers to the materials, which were downloaded without the permission of the copyrights holder, and without being paid for.
In October 2011, the TNO published a second report in which it disclosed findings concerning ‘new materials’ as well as the ‘top 100’ downloads on TPB 27 . They investigated the nature of the Apps, Audio and Video files, games and other media downloaded from the site. The report states that amongst the new materials downloaded, 92% was illegal material. The number for ‘Top 100’ downloads is even higher, at 99% illegal material. For the second report TNO sampled 15 movies, which were popular at the time, by tracking the IP addresses of the people illegally downloading them. 962 of the IP addresses were from within the Netherlands, and from those 307 (31,9%) were customers of ZIGGO, and 39 (4,1%) were customers of XS4ALL 28 .
The reports of the TNO were found to be admissible by the court.
ZIGGO and XS4ALL contested the findings of the TNO report, but were not able to produce evidence of the contrary in form of their own research.
The Ruling The court states that in accordance with art. 26d of the Auteurswet , as well as art.15 of the Wet op de naburige rechten , intermediaries can be ordered to discontinue services which allow third parties to infringe on copyrights. ZIGGO and XS4ALL are found to be intermediaries due to the fact that they provide the access to the websites from which the illegal materials can be downloaded by their costumers. The court therefore held that ZIGGO and XS4ALL were to block the access to TPB, all it’s domains and subdomains, within a period of ten days.
Post-trail events Following this case, BREIN asked the court to demand all other ISPs in the Netherlands to block the access to TPB for their costumers. Currently the direct access to TPB is blocked in the Netherlands.
27 BREIN v ZIGGO/XS4ALL, 2012, at 4.1 28 BREIN v ZIGGO/XS4ALL, 2012, at 4.2
23 During the trial, the court also discussed to what extend the principles of proportionality and subsidiarity were being satisfied. This will be discussed further in the following two sections.
24 4 Appropriateness of BREIN v ZIGGO/XS4ALL The appropriateness of the ruling will be assessed based on three tests: proportionality, subsidiarity, and effectiveness.
4.1 Proportionality
The General notion Proportionality (Verhältnismäßigkeit) is a principle of law that originated from German case law. 29 Following the Second World War in Germany, proportionality “ emerged as an independent and perhaps the most important and extensive umbrella ground for examining the validity of administrative actions”30 . In a moral sense, the underlying idea of the principle is that the relationship between the ends and the means should be ‘appropriate’ or ‘adequate’ 31 . It is a legal safeguard against the unlimited use of legislative and administrative powers by governments, meaning that governments can only implement measures to the extend that is needed in order to achieve objectives set out by law 32 .
EU- Law The principle of proportionality plays a vital role within the European Union, as well as internally in the Member States, where it is considered to be a general principal of law. In 1999, the principle was incorporated into European Union Law, through the Treaty of Amsterdam. Proportionality is now enshrined in article 5 TEU, and states: 1.)The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality. 4.)Under the principle of proportionality, the content and form of Union action shall not exceed what is necessary to achieve the objectives of the Treaties. The institutions of the Union shall apply the principle of proportionality as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. The principle was incorporated into the treaty in order to regulate the powers, which the institutions and the union as a whole could exercise. The actions of the institutions must be limited to what is necessary in order to achieve the objectives that the treaty set out, meaning that the content and form of the actions must be in accordance with the aim pursued. 33
The principle of proportionality is subject to a three-part test. The test was established from the Fedesa case of the European Court of Justice (ECJ) 34 . The three questions that must be answered are: 1) Is the measure suitable to achieve a legitimate aim?
29 Poto, 2007 30 Singh, 2001, p.160 31 Hermeren, 2012 32 Thouvenin 33 European Union, Glossary: Proportionality Principle 34 C-331/88 (The Queen v Minister of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte: Fedesa and others., 1990)
25 2) Is the measure necessary to achieve that aim? 3) Does the measure have an excessive effect on the applicant’s interest?
Proportionality in BREIN v ZIGGO/XS4ALL
ZIGOO and XS4ALL claim that blocking the access to TPB is not proportional, because: 1) It would affect an undetermined amount of people. A large portion of whom did not even download illegal materials off the Internet. Furthermore, it is not known for certain that the people who did previously download illegal materials would continue to do so in the future. 2) TPB also offers legal content, which by blocking the entire website would then be rendered inaccessible to the general public. 3) The blocking of the site will occur for an indefinite period of time. Even if the focus of the materials offered on the websites change from illegal to legal, the site would still be inaccessible. Further more they point out that by blocking the access to a website, their costumers will be limited in their ability to make full use of their property rights, since they can’t use their Internet connection, computer, router, ect unencumbered anymore.
The court recognized these concerns. It states that it must strike a balance between the rights of the copyrights holder versus the right to freedom of expression for the individuals.
The court states that it is evident that the copyrights holders who’s works are being downloaded illegally via TPB are suffering financial damages, due to the fact that that the people are downloading the materials instead of purchasing them. They also point out that 90 – 95% of all Pirate Bay content is of illegal nature. Furthermore it is argued that the legal materials that are accessible via TPB can also be accessed from other websites.
With regard to these findings, the court concluded that they would side with the copyrights holders, explaining, that it is not of importance to the court to safeguard access to a website which allows persons to illegally download copyrighted material. Additionally they point out that the interests of the persons who want to visit the website without infringing on copyrights is of minimal importance, seeing as the legal contents are minimal and also available through other web portals.
In regards to the third point made by ZIGGO and XS4ALL, the court stated that if the situation changed in the future, and TPB’s focus shifted from offering illegal material to legal material, the ISPs could ask for the decision of the court to be reexamined or altered.
Was the decision proportional? If we now return to the three questions set out by the Fedesa case, we can asses whether or not blocking the access to file-sharing websites is indeed proportional.
First we must ask ourselves, whether the measure is suitable to achieve a legitimate aim?
26 The answer to this question is twofold. First, we can see that blocking websites through ISPs could potentially have a great impact in preventing people from accessing illegal materials. On the other hand however, it must be considered how effective the measure actually is. As we will see in one of the following sections, contrary to what the court claims regarding the effectiveness, there is substantial evidence to prove that this measure was actually highly ineffective and therefore unsuccessful.
Secondly, it must be assessed whether the measure is necessary to achieve that legitimate aim, which in this case is to prevent people from obtaining access to copyrighted materials illegally? As we can see from the facts of the case, BREIN seems to have tried many other methods before resorting to asking for TPB to be blocked. However non of the other methods have proven to be working until now. Therefore it can be said that the measure was indeed necessary, at least from the point of view of the copyrights holders.
Finally, it needs to be considered whether the measure has an excessive effect on the interest of the applicant? In this case rather than just looking at the applicants interest, the interests of all people involved, hence the customers of XS4ALL and ZIGGO must be considered. The court even acknowledged that the powers of individuals will be limited, because they wont be able to access the website anymore, not even to download legal materials. However they decided that the benefits for the copyrights holders would outweigh the costs for the individuals, and therefore decided that there is indeed no excessive effect related to this measure. In conclusion we can say that it is at least highly disputable that the court claims that their judgment is in line with the principle of proportionality.
4.2 Subsidiarity
Subsidiarity encompasses “the principle that decisions should always be taken at the lowest possible level or closest to where they will have their effect”35 . This also means that government institutions should always use the legal basis, which is most closely linked to the cause. Within the EU, subsidiarity determines the circumstances under which the Community is allowed to act with priority in respect of the Member States. The principle was introduced into community law through the Maastricht Treaty of 1992. The legal basis for subsidiarity in community law can be found in article 5 of the Treaty on the European Union (TEU).
Art 5 TEU 1. The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality. […] 3. Under the principle of subsidiarity, in areas which do not fall within its exclusive competence , the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or
35 Cambridge Dictionaries Online, subsidiarity
27 at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
In accordance with subsidiarity, the article sets out three prerequisites necessary for an intervention by the European Union institutions 36 . 1) The area must not be one, which comes under exclusive community competences. 2) The Member States can not sufficiently achieve the objective laid out by the proposed action 3) The community can implement the action more successfully by reason of its scale or effects. In all other cases, the EU institutions should not intervene because of the subsidiarity principle.
But the idea of subsidiarity goes beyond how the EU institutions should act. In a philosophical sense, it is the underlying idea that “political power should intervene only to the extent that society and its constituent parts, ranging from the individual to the family, the local community and various larger groupings, have not been able to satisfy the various needs”37 . Hence it concerns more than simply institutional structures and organization, but actually looks at which level a problem could be solved the best.
The court, in BREIN v ZIGGO/XS4ALL also discussed the principle of subsidiarity and to what extend it was fulfilled with the outcome of the case. Both ZIGGO and XS4ALL contest that the subsidiarity requirement was fulfilled, stating that there are less intrusive measures which could be taken in order to achieve the same results. ZIGGO suggests that BREIN should first contact the hosting provider of TPB as well as the release groups and individuals who download. Similarly, XS4ALL also suggests that BREIN should address the commercial up loaders as well as the providers of software which makes it possible to exchange such illegal materials.
The court however argues that the subsidiarity requirement has been satisfied. They justify this statement by saying that BREIN has already undertaken various other steps in order to try to have the website shut down. They started procedures against the founders of TPB as well as the hosting providers, but both turned out to be unsuccessful, given that the website is still available online. Therefore customers of ZIGGO and XS4ALL could still continue using the website to illegally download copyrighted material, unless the access to the website is blocked by the ISPs. The court does not agree that there is a less intrusive measure which can be used, seeing as contacting and charging individuals with infringements on copyrights is far more complicated, and close to impossible without the ISPs cooperation. Furthermore, BREIN is already taking measures against release groups such as Dutch Release Team, 2Lions and DivXNL-Team . However it must be noted that much of the materials made available through TPB originates from outside the Netherlands, where BREIN has limited to no power.
36 Panizza, 2008 37 Delcamp & al, 1994
28 Though the court claims that the requirement of subsidiarity has been fulfilled, it can be argued whether or not this is actually the case. Both ZIGGO and XS4ALL have made compelling arguments in favor of other measures to be implemented first, before everyone’s access to the website is blocked. If we look back at the first definition of subsidiarity given in this section, we can see that subsidiarity is the principle that decisions should always be taken at the lowest possible level or closest to where they will have their effect. Blocking access to a website that allows users to illegally obtain copyrighted works, does not seem to be a decision that is taken at the lowest possible level. As both ISPs suggested, it might be advisable to first try to address the release groups which operate within the Netherlands, as well as the users of the website which up and download the most. There is another path that the court could have chosen for. In order to comply with the requirement of subsidiarity, they could have first tried less intrusive measures, and only attempted more intrusive measures in case the previous ones turned out to be unsuccessful.
4.3 Effectiveness
Effectiveness is often describes as ‘ the degree to which something is successful in producing a desired result’ and is also synonymous with success 38 . As we have seen in previous sections, it is vital to answer to the question of effectiveness in order to be able to fully asses whether or not something is proportional, as these two concepts are closely intertwined.
In the case of BREIN v ZIGGO/XS4ALL, the court also dealt with the issue of effectiveness. In their testimony, ZIGGO and XS4ALL, claimed that the blocking of the domains and subdomains would be disproportionate due to their ineffectiveness, since the blockings can be easily circumvented. This could be done, for instance through the use of an anonymous web proxy provider, they explain.
The court however disagreed with this claim, saying that there will without a doubt be ‘some’ people who will (be able to) circumvent the blockades, but that this is not reason enough to not block the websites. In any case, the blocking will create an extra barrier to accessing the website, the court says. They point out that this method has worked in Italy. There, the amount of daily visitors to the website dropped significantly from 140.000 to 10.000, after the access to the site was blocked. The court further points out that similar results were achieved in Denmark.
However what happened next, was not exactly what the court or BREIN had expected. Within ten days of the judgment, the two ISPs had to block their customers access to TPB. Within a few months similar lawsuits against other ISP in the Netherlands were initiated, all with the same outcome.
38 Oxford Dictionaries, effectiveness
29 But as soon as the first ISPs started blocking the access to TPB, mirror pages, proxies and other web services were used by the public in order to gain access to this website. Researchers at the University of Amsterdam carried out a study regarding the blocking of TPB and came to an astounding conclusion. Since the blocking of the access to TPB, traffic on the website had actually increase within the Netherlands.
University of Amsterdam report39 Following the court mandated blocking of TPB on 1.02.2012, The University of Amsterdam (UvA) carried out research in order to determine the effectiveness of the court order. The study was carried out by the SNE (System and Network Engineering research group) at UvA between the 7 th and 9 th of April 2012. In their report, the working group first addresses the measurements undertaken by BREIN, which were also used as evidence in the case.
Table 1, measurements by BREIN 40 ISP Name Sample - I Sample - II Sample - III
ZIGGO 27% 28,7% 31,9% XS4ALL Not measured 4,7% 4,1%
We can see that as stated during the course of the case trail, between 27 to 31,9% of ZIGGO costumers used TPB in order to facilitate their illegal downloads. Between 4,1% to 4,7% of the XS4ALL customers have done the same, in accordance with the BREIN measurements. Thought the researchers at UvA dispute the correctness of the measurement method applied by BREIN, for now we will assume that they are correct, or at least close to correct.
Table 2, measurements by UvA 41 ISP Name Samples - I, II, III Sample IV Sample - V
ZIGGO 36,04% (average) 23,78% 25,19% XS4ALL 1,08% (average) 2,07% 1,62%
These are the numbers for the measurements conducted by UvA during the period of 7- 9th of April. The first three measurements are grouped together as one (as they are in the actual report) because they are measuring the same set of movies on the same day in different time intervals.
At first glance it might seems as though the amount of people downloading media of TPB has decreased. However as the report of the UvA explains, these changes are minimal, if even existent. These numbers represent 8 separate measurements, and the amount of people downloading materials at any given time can vary greatly depending on the time of the day, week, month ect.
39 van der Ham, Rood, Dumitru, & al, 2012 40 The samples indicate tests, conducted at different times, and on different days. 41 Samples I, II and III are grouped together because they were all taken on the same day, within intervals of 30 minutes
30 Several things must therefore be taken into account. These measurements to do disclose whether samples were taken on a day with high or low traffic on the website. Furthermore we must consider that often newly released materials will be downloaded within the first 24 hours most frequently. For example, if many TV-show torrents are made available on a Friday, then it is more likely that they will be downloaded on that particular day. We have to keep in mind therefore, that although these measurements provide us with a relatively good indication of the amount of people downloading, they can never be seen as the final answer.
UvA’s report states that due to the high correlation between the first and the second set of measurements (taken before and after the blockade) no significant effect can be seen as a result of the blockade. Therefore, they claim that the hypothesis that the blocking of TPB will lead to a decrease in copyrights infringement must be rejected.
The researchers explain that there are several reasons why the number of people downloading has not changed after the blocking of TPB. There are still many ways to access TPB or content thereof through various means. Firstly, people can use proxies in order to access the blocked domains or subdomains of TPB. Secondly, TPB can still be accessed through mirror-sites (sites that look and operate exactly like TPB) that have not been blocked yet by the court, such as ‘kuiken.co’. Thirdly, many users have switched from TPB to other BitTorrent websites that provide the same links to torrents as TPB, such as Isohunt, Btjunkie, Torrentz, or EZTV.
Filesharing 2©12 report 42 On 16.10.2012, another report was published highlighting the findings of a survey conducted by CentERdata an independent institution of the University of Tilburg, and the Instituut voor Informatierecht of the UvA. The survey was carried out in the months of May and June of 2012, after the implementation of the blocking of TPB in the Netherlands. A total of 2009 people were surveyed; the results can be seen below in table 3.
Table 3, Filesharing 2©12
About ¾ of the surveyed people claim that they already did not use illegal sources to download, or have discontinued to do so. From the remaining 23,7%, 1,9% say that they
42 Poort & Leenheer, 2012
31 have already or will quit and 3,6% say that they will download less. That means that only a total of 5,5% are actually changing their habits due to the blocking of TPB. The rest remain unaffected, either because they have not downloaded before, or because they just chose to continue downloading through proxies, mirror -pages, other torrent sites ect. A majority (60,9%) of those who say they will continue downloading, or even download more will do this through the use of other torrent websites, which offer the same links (content).
ATOPS Report
How has the blocking of TPB in the Netherlands affected your downloading behaviour?
I still use the Pirate Bay 3% through proxies, VPNs, mirror - 9% sites ect. I never used the Pirate Bay, so it has not affected me.
17% 44% I stopped using the Pirate Bay.
I still use the Pirate Bay, because it's not blocked at my university
27% I learned about the Pirate Bay through the trial and started using it.
In the final part of the ATOPS, those respondents residing in the Netherlands were asked how the recent blocking of TPB has affected their downloading behavior regarding that website. Only 17% stopped using the website after it was banned. We must keep in mind however that there are thousands of other websites that provide similar services and links to the same torrent files. Many of those who no longer access TPB may have switched to other web sites and tools that allow them to pirate media content.
As we can see, even though the ISP’s in the Netherlands had to block their customers access to TPB, the website itself as well as it’s content is still f reely available on the Internet through pro xies, mirror -pages and other BitTorrent websites. This highlights the problem with blocking access to file -sharing websites. It’s not the websites that are being taken down, rather it’s just one or multiple paths to reach said website. Blocking the access to file-sharing websites such as TPB does not prevent people from accessing the sites or the contents of the site. On the contrary, it has been suggested that following the blocking of TPB traffic on the website has actually
32 increased 43 . This can be explained because of the extensive media coverage of the trail. Many people who were previously unaware of the concept of torrents and file-sharing websites, learned about it during the course of the trial. Seeing as it is still as easy to access TPB (or one of it’s mirror pages) as it was before the site was blocked by the ISPs, there are almost no obstacles in the way of people who have now learned about this website and want to access it.
In conclusion, it can be said that the court ordered blocking of the access to The Pirate Bay by ISP’s was not effective. The amount of people accessing the websites or parts thereof has not decreased as we can see from the report carried out by the University of Amsterdam. The second report shows us, that only 5,5% of the people have said that they have already or will, in the near future stop downloading materials through TPB. This does not come as a surprise, seeing as there is almost no effort involved in circumventing the blocking. As discussed earlier (5.2.1) effectiveness and proportionality are closely linked. The question of whether or not a measure is proportionate is dependent on the effectiveness of said measure. Since we have concluded that the blocking of the website is not effective, we can see that together with reasons mentioned in section 5.2.1 it can be said that the measure is also not proportionate. Both ISPs, ZIGGO and XS4ALL have appealed the case, hence it will be interesting to observe how the court will react when faced with the question of effectiveness given this newly found evidence.
43 Huijbregts, 2012
33 5. Alternatives to illegal downloading So far we have explored what piracy is, why people do it, and what the court in the Netherlands tried to do in order to stop it and safeguard copyrights. However as we have seen from the reports in the previous chapter, the blocking of Filesharing websites by ISP’s does not result in less amount of downloads. Therefore it is important to investigate other options besides regulation through law, in order to protect copyrights. Therefore we will take a closer look at some alternatives that could help promote a fair system of downloading, without blocking of banning file-sharing websites.
5.1 Micropayments One method that could be used in order to ensure that the artists involved in creating a piece of copyrighted material receive an adequate remuneration is through the use of micropayments. We will look at the example of FLATTR, a website designed for this particular purpose. FLATTR is a website, developed by Peter Sunde one of the founders of the piratebay and Linus Olsson. The website was launched in 2010, and promotes micropayments for creators of media content. Any person can set up an account, chose an amount which they would like to pay each month, and then FLATTR any songs, videos, blog entries ect 44 . A FLATTR extension button has been added to many websites with media content, such as Youtube, Instagram, Vimeo, flickr, soundcloud and Grooveshark. Each time the person views the content they can flattr it by clicking a button. The amount of money they have chosen to pay each month will then be divided amongst the number of flattrs each creator has received. The creators receive 90% of the money, while 10% is reserved for the operators of the website in order to cover costs of creating and maintaining the website and software. If a content creator does not yet have a FLATTR account, the websites will count the flattrs as unclaimed, and notify the creator that they can come and collect their money.
This method of paying for media is beneficial to the users because they can decide which content they value and how much they value it, and support that specific piece of work. It could provide those who illegally download content online with a manner to pay back the musician, filmmaker, photographer ect. It could also help many small artists who could make their art publicly available to everyone and ask to be flattered in return. Governments could implement a similar structure, whereby every customer pays a certain amount of money to it’s IPS. This money could then be distributed amongst various artists and art projects, depending on the persons “Flatter” clicks.
5.2 (Micro) donations
Another method of gathering money for an artists work could be through the collecting (micro) donations. There are already a number of artist who make their art publicly available free of charge. One of these artists is the musician “Pretty Lights”, whose entire albums can be downloaded free of charge on his website. Anyone who likes the music can then chose any amount of money, which they’d like to donate to the musician. This way the money goes straight to the musician. The middleman is eliminated, which ultimately increases the profit the musician makes.
44 FLATTR, How Flattr works
34 This alternative, could be utilized by the entertainment industry more, in order to create new way of earning money. Many people, as we have seen from the surveys in chapter 2, are willing to pay to their downloads. Once someone has already listen to music for instance, and liked it, it could be easy to ask them to pay what they think it was worth. This method has proved to be quite a successful way of earning an income for many artists.
5.3 Crowd funding
Crowd funding is “the practice of funding a project or venture by raising many small amounts of money from a large number of people, typically via the Internet” 45 . Similarly to the two methods mentioned above, Crowd funding also relies on individuals voluntarily paying money in for art and other copyrighted works. However unlike the system with (micro)donations and (micro)payments, Crowd funding gathers the money before the work is created. As the name already suggests it’s a project funded by the crowd. Websites such as Kickstarter an Indiegogo, allow artists to introduce their projects and ask for donations in order to realize this project. Anyone who likes the project can donate money towards the project, in order to help it to be realized. Once a certain financial goal is achieved, the money will be awarded to the artist who can then proceed to create or finalize his/her project.
5.4 Private Copying Levy
In chapter one we already briefly touched upon the subject of copying levies. This is a tax built into devices capable of recording, storing, or playing works art, literature or science. As we have seen previously, in the Netherlands, article 16c(2) of the Auteurswet , establishes this levy. Until recently this levy was paid for blank CD’s and DVD’s. As of January 2013, a new private copying levy was introduced in the Netherlands. Initially the government intended to abolish the existing levies. However they decided that, at least, for the time being the levy needs to remain. Furthermore it needs to be extended to other devices for which no levy was to be paid previously. The reason why the levy remained, is because European laws maintain that authors are entitled to a reasonable compensation of damage, which arises due to the Member States private copying policies. The levies imposed range from 1 to 5 € for devices such as: PC’s, laptops, external hard drives, smartphones, mp3 players, tablets, ect. The fees for CD’s and DVDs are the lowest with only 3 cents per piece. The exact amount paid, will depend on the storage space of the device 46 . The new levy eliminates fees for VHS and regular tapes as well as mini disks, since these are hardly used at all anymore for copying media. Some other devices such as usb sticks, memory cards and game consoles also fall outside the scope of the new agreement.
45 Prive, 2012 46 Government of the Netherlands, 2012
35 Furthermore the government ensured that in the future new devices would always be subjected to a levy, in order to comply with the requirement of reasonable compensation. This method, ensures that the money which is lost through the private copying of copyrighted materials can be gained even before the copying occurs. These funds can then be evenly distributed amongst various authors and artists. To go even a step further, governments could not only impose a one time levy on devices capable of recording, storing and playing works of art, literature and science, but impose an annual flat tax. Every private person would then pave to may a small amount of money for each one of these devices, as long as the amount paid stays within reason. However some might argue that this method is not a fair one, seeing as it would even affect those who do not ever illegally obtain works of art, literature or science. It must be considered, however, that similar models already exist in many countries in regard to public television channels and radio stations. These public stations are funded by the citizens of the country through a kind or direct tax or levy, and is used to create programs for everyone. In some countries such as Germany, this levy also applies to households who to not own television sets, computers, or radios. This would be similar to the idea of a levy or flat tax on electronic devices. In addition to that, the levy on the electronic devices is even fairer than that of the public broadcasting system, seeing as only the people who actually own the devices would be affected.
36 6 Concluding remarks
Throughout this paper we have looked at various aspects of illegal downloading. First we established what piracy is and how it works. Subsequently, we looked at the main reasons behind peoples downloading behavior. Next the BREIN v ZIGGO/XS4ALL case and its outcome, which lead to The Pirate Bay being blocked in the Netherlands by the ISPs, was studied. Afterwards we established whether or not the tests of proportionality, subsidiarity, and effectiveness were met through the outcome of the trail. Finally we examined several options other than legal sanctions that could be used in order to prevent or limit piracy, and thereby protect copyrights.
The court claimed to have met both the proportionality and the subsidiarity requirement. One of the sub questions of whether a measure is in line with the proportionality requirement, however is that of effectiveness. In the latter part of chapter 4, it became evident through the findings of two separate studies as well as the ATOPS survey, that the blocking of The Pirate Bay through ISPs was actually not effective. If the requirement of effectiveness is not fulfilled, it cannot be said that a measure is fully in line with the proportionality requirement. It is clear that in this case the court saw that the BREIN had taken several other steps in order to achieve their goal, and therefore decided that the access to the website should be blocked, as the other measures had failed. However simply the fact that other measures have not helped to achieve a certain goal, does not justify the blocking of an entire website.
As we have seen in chapter 2, part of the main motivation behind illegal downloading, is the accessibility factor. This means that many people download pirated materials because they don’t have access to these materials otherwise, or would have to wait too long to gain access to them. Price was another factor that was important to those who download. Especially E-books were priced much higher than what the average customer was willing to pay. The studies also showed that there are some who would not be purchasing the same materials, if the option to obtain them illegally would no longer exist. This number often comprised up to half of the respondents. This showed that many people ‘consume’ more media, simply because they can, but would not be purchasing them if the option to obtain them for free would no longer exist. The ATOPS report also showed that a majority of people would be willing to pay for a legal service that is similar to existing torrent websites.
Through the ATOPS as well as the other two reports we can see that the findings of the court are not necessarily able to justify the measure they laid upon the ISPs. Regarding proportionality, subsidiarity and effectiveness, we can see that the empirical studies suggest that the behavior of the people is very unlikely to change through a total ban of a website. The empirical study also shows that there would be a higher chance in safeguarding copyrights, if more legal and easily obtainable alternatives existed.
Overall it is evident that the issue of online piracy is not one that can simply be solved with the blocking of one Filesharing website. Therefore it is important to shift the focus from trying to protect copyrights by banning websites and services that are illegitimate, to creating more opportunities for consumers to download media from affordable and easy to use legal alternatives. As the research throughout this paper has demonstrated,
37 there is an abundantly large portion of the society that is willing to stop piracy and respect copyrights laws, if they are given the right platform for doing so. Therefore it is time to stop with the ineffective legislations, and begin to create suitable legal alternatives in order to safeguard copyrights.
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