This may change, however, now that Sweden has implemented the Intellectual Property Rights Enforcement Directive “IPRED”, and is working to implement the Data Retention Directive as well. These two directives were designed from the outset to work in tandem, in order to give rights holders the practical means to implement the strategy of legal threats.
The Data Retention Directive forces the Internet service providers to keep logs that connect an IP number to one of their customers, and the Ipred directive is intended to ensure that the rights holders and their anti-piracy organizations can demand to get access to the information. If implemented the way the rights holders want them to be, these two directives together open up the door for US-style legalized blackmail of ordinary citizens.
The fundamental problem is that if laws have the effect of enabling private companies to set up their own enforcement system where the vast majority of cases are handled outside the courts, citizens can no longer expect due process to be observed. The important thing is not what might happen in the court of last instance, but the cost of getting there. If you as a citizen cannot afford to take the risk of having your case tried in a proper manner, you are being denied justice in practice.
...And It Isn’t Working Anyway
In June 2010, I (Christian Engström) attended a working group meeting on copyright enforcement in the European Parliament. As guests, we had representatives from the Motion Picture Association MPA, and from the record producers’ organization IFPI. These two organizations represent the hard core of the copyright lobby.
The representative from IFPI talked about how many fantastic things the record companies would put on the market, if only online piracy could be eliminated or reduced. To achieve this, she was asking for information campaigns aimed at Internet users, and stricter sanctions against copyright infringers.
She showed a slide with the words
The music industry favours an approach which combines the information of Internet users, with sanctions for persistent infringers.
This is exactly what the copyright industry always says, and has been saying for over a decade. Information campaigns about copyright directed at Internet users, and sanctions handed out by the Internet service provider companies, preferably without any involvement of courts.
But leaving all other aspects aside, do we have any reason to think that this will be effective?
When it was my turn to ask a question, I reminded IFPI and the MPA that they have more than a decade’s experience of this strategy, in both the US and Europe. It was in 1998 that DMCA, the Digital Millennium Copyright Act, was adopted in the US. In Europe we have seen a number new laws for stricter enforcement being introduced over the years, notably the 2001 Copyright Directive EUCD, and the 2004 Intellectual Property Rights Enforcement Directive IPRED. We have also seen a number of information campaigns, often saying that “file sharing is theft”.
With so much experience from a number of countries, the rights holder’s organizations are of course in a very good position to judge how effective the strategy has been.
“Could you tell us about these experiences, and could you give any examples where illegal file sharing in a country had been eliminated or greatly reduced by information campaigns and sanctions?” I asked the representatives from IFPI and the MPA.
The representative from IFPI said that so far, the strategy had not been very successful. This was because the rights holders are forced to go through the courts to punish illegal file sharers, which severely restricts the number of cases they are able to pursue.
IFPI and the other rights holders would need to make a more wide-scale mass response in order to create an effective deterrent, she said. She was hoping that the EU would come to the rescue with legislation to allow this.
When it came to giving an example of a country where stricter enforcement had led to significantly reduced file sharing, she mentioned Sweden, where the IPRED directive was implemented on April 1, 2009.
So let’s look at the graph for the total Internet traffic in Sweden around that time:
It is indeed true that there was a sharp drop in the total network traffic, by about 40 per cent, on the day the Ipred law came into force in Sweden. IFPI and the other anti-piracy organizations immediately sent out jubilant press releases saying that the Ipred law really worked. This has been the line that they have maintained ever since.
But when we look at the graph, we see that six months later, the network traffic was back to where it used to be. If this was a success for the sanctions strategy against file sharing, it was a very short-lived one.
And this is how it has been all over the world. Just like IFPI told the working group in the European Parliament, information to Internet users and stricter sanctions have so far been unable to stem the tide of illegal file sharing. But they still hope that more of the same will be effective.
There is nothing to suggest that their hopes have any base in reality. The “information and enforcement” strategy simply isn’t working, no matter how much they or anybody else would want it to.
The copyright industry just wants more, more, and more, and it doesn’t think twice about ruining our hard-won fundamental civil liberties to prop up their crumbling monopoly and control. When one tough measure doesn’t work — and they never do — the copyright industry keeps demanding more.
A few centuries ago, the penalty for unauthorized copying was breaking on the wheel. It is a term most people are not very familiar with these days, but it was a form of prolonged torturous death penalty where the convict first had every bone in his body broken, and then was weaved into the spokes of a wagon wheel and set up on public display. The cause of death was usually thirst, a couple of days later.
The copy monopoly in those days concerned fabric patterns. It was in 18th century France, prior to the revolution. Some patterns were more popular than others, and to get some additional revenue to the Crown’s tax coffers, the King sold a monopoly on these patterns to selected members of the nobility, who in turn could charge an arm and a leg for them (and did so).
But the peasants and commoners could produce these patterns themselves. They could produce pirated copies of the fabrics, outside of the nobility’s monopoly. So the nobility went to the King and demanded that the monopoly they had bought with good money should be upheld by the King’s force.
The King responded by introducing penalties for pirating these fabrics. Light punishments at first, then gradually tougher. Towards the end, the penalty was death by public torture, drawn out over several days. And it wasn’t just a few poor sods who were made into public examples.
Swedish economist and historian Eli Heckscher writes in his standard work Merkantilismen: