Copying And Infringement: The Legal Framework

Much of this study explores the loose distinction, present in copyright law and social practice, between public and private copying—between making small numbers of copies for personal use and making large numbers of copies for wider distribution.

Until recently, this distinction reflected material constraints: the types of copying and distribution available to most individuals kept the practice on a small scale, bounded by close personal networks. Copying on a large scale was expensive and, as a result, almost always a commercial activity. Copyright law was built around this convergence of scale and commercial purpose. It focused on publishing—on the business of making works public. Private copying was largely ignored and, over time, partly incorporated into narrow “limitations and exceptions” to copyright, including educational use, transformative use, citation, time shifting, and other specific purposes. National copyright laws gave widely varying scope to these conditional uses.

As our survey shows, public/private and commercial/noncommercial distinctions remain important to public attitudes toward copying. Copying is widely accepted within personal networks, reflecting a view of culture as not only shared but also constructed through sharing. Copying or downloading for personal use is very widely accepted. Outside family and friends, however, support for copying and dissemination is significantly lower. Commercial norms and property rights, broadly speaking, prevail over sharing.

As copying and distribution become very cheap, this distinction is threatened. Digital natives—18- to 29- year- olds in our survey—are much less likely to distinguish copying along these lines. Strong social networks still provide the most important framework and rationale for copying, but weak online social networks have expanded dramatically. These are connected in part—and sometimes in whole—through shared media.

Despite these challenges, the public/private distinction continues to shape the legal environment around copying.

In Germany (and throughout continental Europe), this distinction underwrites the tradition of “private copy” exemptions to copyright. Such provisions legalize personal copying in return for the indirect compensation of rights holders. Germany led the way in developing private copy rules in the 1960s after the music-collecting society GEMA tried to hold tape-recorder manufacturers liable for consumer recording of radio. The first private copy exemption became law in 1965, legalizing copying for personal, noncommercial use (§53 UrhG). Because the debate framed private copying as a loss to rights holders, lawmakers agreed to balance the loss through a levy on recording devices, payable to the collecting societies.

Over time the German model gradually expanded to include other devices and blank media. It also spread to other countries. By 2003 all EU member states (with the exception of the United Kingdom, Ireland, and Luxembourg) had established provisions for the private use of copyright-protected works, linked to indirect remuneration of rights holders. Outside Europe at least thirty other countries have adopted similar provisions (Hugenholtz, Guibault, and Van Geffen 2003). In an era of cassette tapes, Xerox machines, and later CDs, private copy exemptions carved out a space for personal use of the new technologies.

In the US, debates about the appropriate scope of “home use” of recording devices date back to the early 1970s, but failed to produce much legislative guidance (OTA 1989). Explicit private copy provisions were negotiated only in the late 1980s, as record companies anticipated the shift from analog to digital recorded music. The Audio Home Recording Act (AHRA 1992) created a framework of technical protections for digital devices while—in return—allowing for common types of personal use, such as the mix tape. Although the record companies pushed for a broad law, electronics companies feared constraining the consumer electronics boom. The resulting law was limited to digital audiotape and a handful of other devices. It failed to cover the subsequent wave of digital media. Nor did it include audiovisual media.

Since AHRA, US law has moved in the opposite direction by challenging or erasing many of the de facto tolerances for personal copying, from backups to private sharing with friends. In large part, this has been accomplished by subsuming digital copying into the “public” enforcement regime—by treating it as commercial activity subject to criminal sanctions or harsh civil equivalents. Although clear jurisprudence is lacking on many of these issues, a presumption of illegality hangs over most forms of sharing media in the US.

Equally important is the assumption that private copying reflects a failure of enforcement rather than a balancing of rightsholder and user interests. This logic has underwritten efforts to push enforcement into the consumer arena through measures such as the expansion of criminal penalties, the growth of online surveillance, and the use of automated sanctions. We examine public attitudes toward these developments in considerable detail below.

The dilemma for US law is that—in the absence of private copy exceptions and strong privacy traditions—there is little legal counterweight to the expansion of surveillance and the criminalization of infringement. And in a “fair use” tradition geared toward creators and narrow-purpose exceptions, there is little prospect of an extension to cover the “merely” consumptive uses that characterize much of copy culture.

For continental European copyright law, the main dilemma is the blurring of the public/private boundary in actual copying practices (Kretschmer 2011). Courts are still wrestling with this issue and have reached divergent conclusions. Unauthorized downloading, for example, is currently understood to be legal under private copy provisions in the Netherlands and Switzerland. In Germany, in contrast, a 2007 amendment to its provision clarified that copies of works made from “evidently unlawful public sources” (“offensichtlich rechtswidrig öffentlich zugänglich”) are not covered, leaving courts struggling with how to establish ‘obviousness,’ the number of permissible copies, the precise definition of ‘friends,’ and the boundary between commercial and non-commercial uses. Content industry groups like the IFPI, which represents record labels, are campaigning to outlaw the passing of copies to family and friends altogether. The German minister of justice recently reaffirmed that private copying will remain permissible.

Our surveys shed light on two of the proposed solutions to this dilemma: measures to extend enforcement into traditionally private spheres of activity and proposals to expand the private-copy principle to encompass online copying and sharing.

The Enforcement Blowup

Our surveys were conducted in August and September of 2011, during a period of extensive but—from the public’s perspective—largely invisible policy activism on these issues in Europe and the US. That low profile came to an abrupt end in the months that followed.

In October and November 2011, public and Internet sector opposition to the Stop Online Piracy Act (SOPA) exploded in the US, leading to an Internet blackout day in January and the tabling of the legislation. For the first time, significant numbers of Republican lawmakers withdrew their support for stronger IP enforcement, fueling a debate that crossed partisan lines.

  • In September the German Pirate Party won 8.9% of votes and 15 seats in parliamentary elections in Berlin, gaining state-level representation for the first time. Similar successes followed in three other German states in the first half of 2012. A series of controversies over domestic IP policies helped the movement maintain a high level of mobilization, including debates over the economic impact of piracy; competing studies regarding the legality of three-strikes measures (here limited to warnings—not disconnection or other administrative sanctions, which are widely viewed as unconstitutional) (Schwartzmann 2012; Hoeren 2012); controversy over German refusal to implement EU data retention requirements for ISPs and phone providers; and, in May, uproar over the use of “School Trojan” software intended to monitor school computer networks for infringement (the software was quickly withdrawn).
  • In January 2012 the takedown of the online storage site Megaupload and the arrest of its owners in New Zealand at the request of the US generated a wave of public attention to piracy and enforcement and cast a cloud of uncertainty over the legal status of a wide array of web services.
  • In February 2012 large-scale protests against the Anti-Counterfeiting Trade Agreement broke out across Europe, putting the agreement into sudden and unexpected jeopardy as leaders in several European countries—including Germany—vowed to reevaluate or reject it. In early July the European Parliament rejected the agreement, dealing it a probably fatal blow.
  • In March 2012 the copyright debate in Germany erupted again when a number of prominent authors accused the Greens, Pirates, and the Internet community of trying to “expropriate” artistic livelihoods. Statements for stronger copyright protection received several thousand signatures and, in turn, produced the “We are authors too” countercampaign, which defended the value of an open and unmonitored Internet for creators.

What does this flurry of events signify? A year ago, it seemed likely that many of the issues described above would be resolved through the quiet establishment of a much stronger international IP enforcement regime—with little opportunity for public engagement. Today there is much more public mobilization around these issues, and less certainty about the outcomes. New stakeholders have entered the debate and begun to change the discourse. The past two years have seen strong interventions by human rights groups, courts, and international organizations—in many cases responding to the sharpening tension between IP enforcement and rights to free expression and privacy.1 Stronger enforcement measures—including the bellwether “three-strikes” Internet disconnection law in France—have faced resistance and proved difficult to implement.2

The changing public profile of these issues places an asterisk on some of our results—especially those regarding attitudes toward enforcement. Given the character of the SOPA and ACTA mobilizations, we think that opposition to strong enforcement measures has probably grown since our surveys were conducted.

Only time and further research will tell. At a minimum, the current data provide a useful baseline for evaluating changes in these structures of opinion over time. More ambitiously, they offer an account of public opinion and realities on the ground that have been largely invisible in the policy debates. This matters not just for the purposes of looking back at SOPA and ACTA but also for looking forward toward the array of policy initiatives and debates on the table in the next year, including:

  • The effort to reintroduce strong international enforcement norms through new trade agreements like the Trans-Pacific Partnership (TPP);
  • The ongoing German debate over data retention and “graduated warnings” against online infringers;
  • The presumed implementation of graduated warnings (a.k.a. six strikes) in the US, based on agreements signed in 2011;
  • The revision of the European Union’s wider IP enforcement framework (IPRED2); and
  • Continued battles over the scope of private action on enforcement, from robo-litigation threats against consumers to escalating demands on ISPs to hand over customer data.

And a host of other struggles that will shape the future of the Internet and digital culture.

1. These responses range from criticism of disconnection and blocking measures by UN officials (La Rue 2011), to the prioritization of privacy over enforcement by the European Court of Justice (European Court of Justice 2011), to statements by the Organization for Security and Cooperation in Europe (Akdeniz 2011) condemning both public and private “censorship” of speech on the Internet, to a wide range of other regional statements and efforts. Like many development organizations in the mid-2000s, the human rights sector has begun its digital turn.

2. In September, the French agency responsible for Internet enforcement—HADOPI—won its first case against against a man who everyone agrees was the account owner but not the actual infringer of the songs in question The future of the system is unclear. HADOPI divided the major candidates in the May 2012 presidential election, and following Francois Hollande’s victory, a “redesign” and possible defunding of the system was announced. In the US a similar six-strikes system based on an agreement between ISPs and rights-holder groups was signed in 2011, but actual penalties remain vague and—as of December 2012—the system remains unimplemented.

Next: Practices