As internet sprints into ’10s, IP law lags behind

February 23, 2010 at 20:23 Leave a comment

In 2002 Nancy Stouffer, having published two books 18 years before with the phrases ‘Larry Potter’ and ‘muggles’ in the titles, alleged copyright infringement against the most successful new writer of that decade, J. K. Rowling. But the New York district court which heard the case dismissed it with prejudice, fining Stouffer $50 000 for ‘bad faith conduct’, and criticising her fraudulent insertion of the word ‘muggle’ into documentary evidence.

Rowling last week was forced once more to deny allegations of plagiarism after her name was added as defendant to a High Court writ asserting that she stole the plot of the fouth Harry Potter book. Solicitor and author Adrian Jacobs had depicted wizarding schools (like Hogwarts) and wizards’ contests (like Quidditch) in his 36-page book The Adventures of Willy the Wizard, whose publication he financed himself in 1987. While Jacobs is now dead, the claim was lodged on behalf of his estate’s trustee – ‘independently’ of his family. The estate’s PR representative said that he estimated it was ‘a billion-dollar case’; Rowling that ‘the claim is without merit’.

The Jacobs suit has a quaint feel. In the era of BitTorrent and Google Books, it is even somewhat staid, and that sense of obsoleteness tends to emphasise the pace at which demands made on intellectual property laws that were conceived in the era of print are changing.

For instance in New York on Friday, a federal judge delayed his ruling on the fairness of the Google Books Settlement of 2008, explaining that ‘There is just too much to digest’. The settlement represented an unsteady compromise between Google, which began its project to make available on the web digital scans of millions of books in 2005, and the authors and publishers who reserve rights to data it created in doing so.

The BBC called the hearing a ‘showdown’, and quoted Amazon’s lawyer warning that the settlement ‘turns copyright law on its head’ – just a quarter of the many parties whom the judge heard from gave it support. One popular argument was that the settlement unjustifiably endorsed Google’s move to scan the libraries’ contents without having sought rightsholder permission first.

The Independent’s Stephen Foley commented: ‘Old interpretations of copyright laws are not really matched to the task, while anti-trust laws are also being invoked inappropriately. In short, it’s a mess’.

During online culture’s fractious adolescence, pirates have acted as a de facto Google Audiovisual, and film and music firms are jittery in the face of falling revenues. In only the latest gesture of retaliation, on Thursday Chairman of GIPC and Vice President of NBC Rick Cotton urged both Congress and the Executive branch to enforce IP laws more rigorously, connecting the industry’s struggle against piracy with America’s recovery from recession.

Both stories come in the context of brisk negotiations over two of the biggest legislative fish in intellectual property: the UK’s Digital Economy Bill, and ACTA, the plurilateral Anti-Counterfeiting Trade Agreement.

A nugatory change of language in the former bill was misreported yesterday as a concession on the government’s part. Where the bill had mandated that ISPs ‘disconnect’ recidivist filesharers, it would now mandate the ‘temporary suspension’ of their accounts. TalkTalk had sponsored a petition against the measure.

The bill’s policy of ‘disconnection’ after three strikes was derived from what ACTA calls its ‘graduated response’ scheme. But the word ACTA uses for the consequence of a third infringement, in leaks quoted by PC World, is ‘termination’.

A draft leaked on Friday indicated that, under the new agreement, ISPs would be required to use ‘deep packet inspection’ – a technology that assists internet censorship in China – to detect acts of intellectual property theft committed by customers. ISPs would moreover be liable for any data their customers upload or download illegally.

Such a prospect impelled protest from watchful internet users because of its large potential for abuse in government transgression against privacy.

Following the leak, European Data Protection Supervisor Peter Hustinx said he regretted the failure of the EC to consult with his office. In a combative press release, he made known his ‘concern’ about the secrecy of the negotiations, and warned of the possbility of conflict between European data protection law and the mooted ‘three strikes’ policy. He recommended less intrusion than the ‘not necessary’ policy would encourage, safeguards on data transfer, and transparent dialogue on ACTA – advocating, in his own words, ‘A right balance between protection of intellectual property rights and the right to privacy’.

Events continue.

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