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.