In 2011, with three special prosecutors and ten police investigators focusing on file sharing crimes, the number of convictions went up to 8. Put in another way, this rather massive deployment of scarce judicial resources (which could otherwise have been spent on other crimes) only managed to get the risk of getting convicted for file sharing up to the risk of getting struck by lightning, as opposed to getting struck and killed. This is a considerable increase, but it is not enough to make file sharers modify their behavior in any significant way. Some may take the (sensible) precaution of spending five euros per month for an anonymizing service to hide their IP number, but a potential risk at the same level as the risk of getting struck by lightning will not make anybody stop sharing files.
To put the number of convictions in perspective, Swedish news agency TT reported that about 20% of the Swedish population, or 1.4 million people, are file sharing according to national statistics. About one third of them, or about half a million Swedes, are estimated to do it at a level that would render them prison sentences if they were found out. But of course, the vast majority of them never will be.
From the big film and record companies’ perspective, using the courts to provide deterrence simply doesn’t work. Deterrence has no effect unless the risk of getting caught is larger than microscopic. It isn’t today. The judicial system does not have the capacity to bring entire generations to court at the same time. Cases going through the system are burdened with way too much debris like “evidence”, “due process”, and other red tape to create the volumes that the film and record companies need to ascertain effective deterrence. Unfortunately, they have realized this.
Therefore, they wish to make this whole process more efficient. In the US, their wishes have largely come true. The reason that the Jammie Thomas case got media attention wasn’t that it was the first, or that the claims made by the record company were unusually outrageous. Those were exactly the same claims that the record companies had already made in thousands of similar cases. The Jammie Thomas case got attention because she was the first defendant that pleaded not guilty, and stood up to the music and film industry associations. Instead of folding and paying the offered settlement, she took this case to court.
Let’s recap the numbers: The record company sued Thomas for $3.6 million, but offered a settlement out of court for $2,000. It is not difficult to understand why most people simply pay up, even if they are innocent. The mere threat of a costly court case and the risk of losing millions outweigh the relatively minor cost of a settlement. It’s often smarter to just pay the blackmailer and move on.
Yes, blackmail. Organized blackmail. That is what this is all about. US record companies has sued 80-year old grandmothers, people with no computers and, in a few cases, long-dead people. By forcing ISPs to giving up customer records, these mass-mailed threats have evolved to a large industry in itself. There’s no reason to be particular about who receives the threats, just send them out and wait for the protection money to roll in. There is no incentive to make sure that the defendants are actually guilty of anything, since the record companies never stand to lose anything.
The key to this strategy for the rights holders is that they can force the Internet service providers to disclose the name of the customer behind a certain IP number that is used on the Internet. If they have this, they can turn copyright enforcement from a cost to a profit center in its own right. Since only a small fraction of citizens who get a threatening legal letter are prepared to take the risk, and have the resources, to oppose it in court, the limited number of cases that the court system can process per year is not a problem for the scheme to work. To the rights holders, it’s free money in exchange for a postage stamp.
The extent of this practice in Europe varies between the member states. In 2010, Danish film maker Lars von Trier made more money from threatening to sue people for allegedly downloading his film “Antichrist” illegally, than he got from box office returns and video and DVD sales combined. The business idea was completely straight- forward. All he had to do was to send out letters saying “pay us 1,200 euro immediately, or we’ll sue you for five times that amount”. Over 600 German recipients of the letter were sufficiently scared by the threat of a costly legal process to pay up. Even if some of them were in fact innocent, or if they just felt that 1,200 euro was a pretty unreasonable punishment for having watched a movie (that wasn’t even particularly successful at the box office) for free, they decided it was not worth the risk to have their day in court.
Sweden, on the other hand, has so far mostly been spared this type of behavior by the rights holders. This is because we used to have laws that prevented the Internet service providers from disclosing information about which of its customers had a certain IP number at a certain time, according to Swedish data protection laws. Instead, the film and record companies have had to file a criminal complaint and let the police investigate if a crime has been committed. This is not enough for the rights holders, since the criminal justice system does not have the capacity to get the volumes up to the level that the rights holders want.
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 Engstrom) 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
