Copyright (Infringing File Sharing) Amendment Bill 2010 - further glossary of terms relating to File Sharing and the Digital Environment As requested by the Commerce Select Committee Contents Introduction 1 Server 3 2 Client 3 3 Download 3 4 Upload 3 5 Burning 4 6 Ripping 4 7 Streaming/web streaming 4 8 Popular File Sharing Networks and 5 Software 9 bittorrent 5 10 The Pirate Bay 5 11 Protocol 6 12 Spotify 6 13 Web based storage/file delivery 7 services 14 MySpace 7 15 YouTube 8 16 US Style Statutory Damages 8 17 Permitted Acts 9 18 Blog 9 19 Creative Commons 10 20 Cloud Computing 11 21 Storing, Caching and other Safe 11 Harbours in the Copyright Act 1994 1
Introduction This further glossary of terms is intended to aide the Commerce Select Committee (the Committee) in their consideration of the Copyright (Infringing File Sharing) Amendment Bill 2010 (the Bill). The Committee requested a further glossary outlining terms that are used to describe digital technologies and concepts related to digital copyright infringement in general. This further glossary is intended to be read in conjunction with the glossary attached to the Initial Report to the Committee on the Bill, and in conjunction with the powerpoint presentation of further diagrams of key concepts provided alongside this document. There are many ways in which copyright can be infringed via the Internet, or digital technologies. The Bill is intended to cover one way of doing this, file sharing. This glossary also describes other methods of digital copyright infringement, for a better understanding of the distinction between the different methods. Each definition therefore notes whether the Bill is intended to cover the particular method of infringement or not, and whether the Copyright Act 1994 already provides remedies for such infringement. The glossary also describes the avenues already available under the Copyright Act 1994 for copyright owners to ask an ISP to remove or disable access to infringing material. The glossary also includes some general terms and definitions that may be commonly used or referred to by submitters. 2
1. Server: A server is a computer programme or piece of computer hardware that delivers (serves) content such as web pages over the Internet. Servers can also perform a range of other functions. Servers that deliver web pages to Internet users are commonly called web servers. 2. Client: A client is a computer or piece of software that accesses another computer or piece of software (a server ) by way of a computer network. Software such as Internet Explorer that is used to browse the Internet is a web client. Email programmes such as Outlook are email clients. To access one of the many file sharing networks, a client is also needed. For example, bittorrent software is one of the many clients used to access the bittorrent file sharing network. 3. Download The receipt of data from a remote computer system to a local computer system, or the initiation of such a transfer. On the Internet, a local system is typically a personal computer. A remote system is typically a web sever (this is a computer storing files which can be accessed via the web). Server is defined later in this glossary. As outlined in the diagram showing common methods of accessing digital copyright works, the download of copyright works from the Internet can be done in many different ways, both legal and illegal. The most common type of download is likely to be directly from a web page. The Bill is not intended to cover the general download of files from web pages. The Copyright Act 1994 already provides remedies for breaches of copyright via a general download. Copyright owners also have other avenues for dealing with this type of infringement, such as asking an internet service provider to block access to the particular website that can be downloaded from. 4. Upload The opposite to download. The sending of data to a remote computer system, typically with the intent that the remote system makes a copy of the data. Where a personal computer uploads data to a web server (a computer storing files), other personal computers are able to access or download that data. The most common form of uploading for a typical Internet user would be to upload images (photographs) or possibly music to a personal web page, or video to a streaming service such as You Tube (described later in this 3
glossary). The Bill is not intended to cover the general upload of files to the Internet. The Copyright Act 1994 already provides remedies for breaches of copyright via a general upload. 5. Burning The act of copying digital files from a computer to a CD or DVD. Typically movie or music files, less typically games or software. So called, as in order to write data to a CD or DVD, a laser burns a pattern into the surface of the disk which can then be read by a CD or DVD player. Burning does not usually refer to the copying of data onto a USB stick or external computer hard drive. However, those who share digital copyright works can also use these forms of portable storage to transfer and share data. Infringing copyright by burning or transferring from other physical storage is classed as physical piracy. In order to share works this way a physical connection between sharers and computers needs to occur. The Bill is not aimed at preventing this form of piracy. If sufficient evidence could be gathered by a copyright owner of this sort of activity and it was an infringement of copyright, they would be able to seek the range of remedies already available in the Copyright Act 1994. 6. Ripping The opposite of burning. The act of copying digital files from a CD or DVD to a computer. Typically movie or music files, less typically games or software. Ripping music or films from a CD or DVD to a computer is commonly done in order to play the music from the computer, using software such as itunes or Windows Media Player, or to play the film using a software DVD player. For sound recordings, this sort of activity is not usually illegal if the person ripping the CD has obtained it legally. As described under the definition of permitted acts later in this glossary, a specific exception to copyright has been created for this sort of activity, so that one sound recording can be played on several different devices. Ripping can be illegal if the person ripping is copying another person s CD s or DVDs. The term ripping can also be used when copying files from USB sticks or external computer hard drives. The Bill is not intended to cover these activities. 7. Streaming/web streaming: Instead of downloading content from the Internet (such that your computer now has a copy of the content), streaming or web streaming is like an Internet television or radio broadcast. Internet users can watch or listen to the content but do not receive a copy for later use. Files available for streaming are 4
generally stored on large servers run by the operator of the website from which the files stream. The popular website YouTube streams content to the user 1. Watching a movie or listening to a song via a web stream is not a breach of copyright. The Copyright Act 1994 does not provide copyright owners with the right to prevent people from watching or listening to an unauthorised copy of a work. The Bill therefore does not cover the act of viewing or listening to a stream. Note that the upload of a file to a website that streams content, and the running of a website that streams content, may infringe copyright, as the Copyright Act 1994 grants copyright owners the right to prevent others from communicating a copyright work to the public. As described above under the upload definition, the Bill does not cover general uploads to the Internet. Neither does the Bill prohibit the operation of websites from which unauthorised copyright works can be streamed. 8. Popular File Sharing networks and software: bittorrent limewire Gnutella Mininova Kazaa edonkey Morpheus 9. bittorrent: A file sharing network. BitTorrent is commonly stated to be the most popular file sharing network, and is the most modern version of the way in which file sharing networks work. In order to use this particular file sharing network, a user must obtain a bittorrent file that is then loaded into a bittorrent client (as above, a client is a computer programme). The bittorrent file shows the client the location of other people on the bittorrent file sharing network that hold the copyright work for download. The client then initiates the download from many users, and reassembles the pieces of the file. This network and other file sharing networks are intended to be covered by the Bill. 1 Note: technically, a stream is still a download of data, however, the computer does not retain the data once the stream has finished and the user has finished their internet session 5
10. The Pirate Bay: A Swedish website that listed bittorrent files. Users could search, sort and categorise bittorrent files which could then be loaded into a bittorrent client in order to initiate a download. The Pirate Bay also listed links for direct downloads of files that infringed copyright. Several legal cases have been taken against the Pirate Bay in Sweden. A case for damages against the operators of the website is pending. A temporary injunction was issued against the operators of the website in October 2009. The Pirate Bay s ISP was also ordered to stop making available the copyright works featured on the website. In order to comply with this order the ISP disconnected the Pirate Bay. The Copyright Act 1994 does not prevent a person from directing another person to a location where infringing copies are. Similarly, a person would not be prevented from providing driving directions to a market where physically burned pirated DVDs would be sold. Websites such as The Pirate Bay are therefore not covered by the Bill. If such websites provide direct links to infringing material, a copyright owner may currently take action against the operator of the website under the Copyright Act 1994. 11. Protocol: A protocol is a formal description of the format for messages that are exchanged between computer hardware or software, and the rules for the exchange of those messages. The Internet Protocol is the format and rules for the exchange of information over the Internet. Other commonly referred to protocols are the Hypertext Transfer Protocol (HTTP) which governs the exchange of websites across the Internet, and the Voice over Internet Protocol (VoIP) which is increasingly being used to provide telephone and voice services across the Internet. 12. Spotify: An example of a new online business model for monetising sound recordings. For no charge a Spotify member can stream songs across the Internet for 20 hours per month in order to listen to them through their computer. The service makes money by playing advertisements between songs every few songs. The revenue earned from advertisements is then distributed to the copyright owner. 6
Alternatively, a user could pay monthly fees for a more comprehensive service. Spotify is not available in New Zealand. While many New Zealanders could use the service successfully if it was available, a certain speed of internet connection is required for such a service to work. The Spotify service is legal and is sanctioned by copyright owners. These sorts of services are therefore not intended to be covered by the Bill. 13. Web based Storage/file delivery services: These services allow an Internet user to upload files to a server (as stated above, a computer holding the files). They are commonly used to transfer large files between users that are too big to send via email for example where a collaborative piece of design work is swapped between designers. Typically a person wishing to download the stored files will need a specific link to the location of the files on the server, and will likely need an account with the web storage provider. Increasingly, these services are used to distribute copyright works without the authorisation of the copyright owner. An Internet user will upload an album or film to the storage service, then make the link to that album or film easily available on the Internet. An example of such a service is MegaUpload. The Copyright (Infringing File Sharing) Amendment Bill is not intended to cover these services, as they would be classed as a general download or upload. A copyright owner could currently seek the range of remedies provided for in the Copyright Act 1994 in relation to this sort of copyright infringement. 14. Myspace: A popular website/online social networking service that allows members to create their own profile on a web page. Other myspace members can ask to become a friend of the creator of the profile and make comments on the relevant page. Myspace is used by many bands to create an online location for their fans to visit, comment about their music and interact with other fans. Myspace allows members to upload music and video files which an Internet user can then stream from the relevant myspace page. Bands therefore use myspace to reach a very wide audience for no cost. As myspace members can freely upload and make available files they have on their computer, myspace can be used to breach copyright. Myspace has 7
detailed copyright polices a user must agree to when becoming a member of the website, and often blocks profiles which feature unauthorised content. Myspace has recently partnered with some record labels to create a specific music streaming/purchasing service. As described earlier web streaming, such as via Myspace is not covered by the Bill. In some cases, a Myspace member who uploads music or film to Myspace can also let others download that music or film. This would be classed as a general download, and is not intended to be covered by the Bill. A copyright owner could currently seek the range of remedies provided for in the Copyright Act 1994 in relation to this sort of copyright infringement. 15. YouTube: YouTube is a massively popular website from which Internet users can stream video content. YouTube also allows users to upload their own video content. Often, video is uploaded by a user that breaches copyright. As such YouTube often takes down content at the request of copyright owners. In these cases when trying to view such content, a video will usually be disabled, and the viewer will see a copyright notice telling them the copyright owner has requested the video is taken down. Increasingly, YouTube partners with content owners to provide authorised access to new music videos and film trailers. Artists typically have their own you tube channel which a user can subscribe to. In these cases the YouTube website often provides links to legal online stores. As described above under the streaming definition, watching or listening to an unauthorised copy of a work is not a breach of copyright. Therefore, streaming websites such as You Tube are not intended to be covered by the Bill. 16. US Style Statutory Damages: Under US copyright law a copyright owner is entitled to obtain actual damages for loss caused by copyright infringement and any profits that are attributable to the infringer. Instead of choosing to recover actual loss, a copyright owner may also elect to recover an award of statutory damages. Statutory damages may be calculated anywhere between $750 and $30,000 per infringed work. In the case where statutory damages are chosen, a copyright owner has to prove that infringement has occurred, but doesn t have to prove that financial loss has occurred. 8
In a case where a copyright owner can prove that infringement was willfull, the court has discretion to increase the award to up to $150,000 per infringement. Due to the availability of statutory damages, some US peer to peer file sharing cases against individual sharers have resulted in very high awards in the millions of dollars for a small number of infringements. The Copyright Act 1994 does allow a court to award additional damages in cases of flagrant infringement, provided that the justice of the case requires it. The tests for additional damages are whether the infringement was flagrant, whether there was scandalous conduct and whether the conduct was in total disregard of the copyright owner s legal rights and other circumstances. Flagrancy is interpreted as scandalous or deceitful conduct; including deliberate and calculated copyright infringements. The provision gives the Court the discretion to award additional damages taking into account where the copyright owner has suffered damages as a result of the manner in which the infringement was done (i.e. deliberate/deceitful), and also for the Court to mark its disapproval of the conduct. Additional punitive damages for copyright infringement would be awarded by the High Court. Tribunals are not generally used to make punitive awards. 17. Permitted Acts: Part 3 of the Copyright Act 1994 outlines acts that are permitted in relation to copyright works without the prior authorisation of the owner. Typically, these acts would otherwise constitute an infringement of copyright. Parliament has deemed it in the public interest for these acts to be permitted. Permitted Acts are also commonly referred to as copyright exceptions. There are a wide range of permitted acts in Part 3. Two pertinent examples are: Copying a legally obtained sound recording for the purposes of playing that recording on other devices that a person owns, provided that person retains ownership of the copy and only uses it for personal use. Fair dealing with a work for the purposes of private research or study. In order to determine whether copying is fair dealing, a Court considers the purpose of the copying, the nature of the work copied, whether the work could have been obtained at an ordinary commercial price within a reasonable time, and the effect of the copying on the potential market for, or value of the work. If a person obtains a copyright work via a file sharing network, or any method of downloading from the Internet, in order to exercise a permitted act, it is unlikely to be a breach of copyright, provided all the relevant conditions in the Copyright Act 1994 are satisfied. 9
18. Blog A blog is a basic webpage that is updated regularly, (usually daily or weekly), and is generally used for personal comments on particular issues or topics. There are specific services for hosting blogs (such as Google Blogs), which give the blogger room on the Internet to host files (e.g. on a server). Blogs are also becoming a common way to upload copyright works to the Internet without the authorisation of the copyright owner, in order that many people can download them for free. The Copyright (Infringing File Sharing) Amendment Bill is not intended to cover copyright infringement on blogs. A copyright owner could currently seek the range of remedies available in the Copyright Act 1994 for this form of infringement. 19. Creative Commons Creative commons is an alternative licensing regime that uses copyright to provide free access to and use of copyright works. With a standard form creative commons license, a copyright owner can choose to provide free access and use of their works under a range of conditions. Copyright owners that are not too concerned about charging for their works are increasingly using creative commons licenses in order to get their creations out into the world. For example, in 2008, the popular American rock band Nine Inch Nails released the album Ghosts under a creative commons license. The license allowed people to download/copy, make derivative works from, and share the album to any others for no charge, as long as these uses were non commercial, and when the album was shared to others, it was also shared under the same creative commons license. These acts would typically be a breach of copyright unless the authorisation of the copyright owner had first been obtained. Creative commons was envisaged as a way for artists to make their works available for other artists to use and build upon, for the benefit of the wider society. 20. Cloud Computing Cloud computing is Internet-based computing, whereby shared resources, software, and information are provided to computers and other devices on demand. This frequently takes the form of Internet based tools or applications that users can access and use through a web browser as if they were programs installed locally on their own computer. 10
Typical cloud computing providers deliver common business applications online that are accessed from another Web service or software like a Web browser, while the software and data are stored on servers. 21. Storing and Caching, and the other Safe Harbours in the Copyright Act 1994 For the purposes of the Internet, an ISP can generally perform three functions. They may provide the conduit for Internet communications to flow through - the general provision of Internet access to their customers. ISPs may also provide space on a server for customers to store information. This may be email or otherwise, but in particular, ISPs provide space for storing files that make up websites. This is activity is known as storing. An ISP may also temporarily store data flowing through their Internet service that is commonly accessed by customers, such that it is more easily accessible in times of peak traffic. ISPs store this information for short periods of time. This activity is known as caching. As has been described by the definitions for downloading, streaming, blogging and web storage, there are many ways in which copyright can be infringed via an Internet Provider s services. Sections 92C and 92E of the Act therefore provide safe harbours for caching and storage, and a notice procedure for storing. Under section 92C of the Copyright Act, ISPs receive a storing safe harbour where they have stored a web page that has illegal copyright material on it. If a copyright owner informs them (with a notice) that they are aware this web page is infringing copyright, the ISP must delete or disable access to the relevant material or lose their safe harbour from liability. This is known as a notice and take down system. Under section 92E of the Copyright Act 1994, ISPs receive a caching safe harbour if they cache material and do not modify it. As soon as becoming aware the material has been deleted from its original source or access to that original source has been prevented, an ISP must remove it from their cache or risk losing their safe harbour from liabiltiy. Therefore, in addition to taking action against a person infringing copyright by uploading infringing material to a website, copyright owners also have an avenue to ask ISPs to prevent the activity. Takedown procedures are not appropriate to address file sharing activity, as an ISP is not storing or caching the files that are being shared. 11
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