[kictanet] Music Piracy in Kenya - Government can Help

Wed Oct 3 08:44:43 EAT 2012

I'm afraid i got this a little late in the day, but nonetheless, here are
my two cents:

Bernard, I hope you will be able to give us regular updates on the progress
of the your case and possibly some details esp. names of parties, a brief
summary of the case as filed, case number and hearing dates should one wish
to follow up in court. I think its good that you have been bold enough to
go to court for legal redress and i believe that the outcome of this case
will form a useful precedent for the enforcement of copyright online.

In addition, it would be important to explore further the options already
listed above by Kivuva, Alex et al, and tie these with the discussions on
intermediary liability (see separate thread + attached report on IL), to
inform legal reform. I am aware that the Kenya Copyright Board has started
receiving comments for amendments to the Copyright Act (which has its
limitations especially with regard to the internet), and as such, it would
be useful to assess practical options and proposals that can be implemented
through the law or otherwise to safeguard the rights and interests of
copyright holders without compromising the openness of the internet or
unduly limiting the rights of other internet users.

Cheers

Victor

On 28 September 2012 10:29, Bernard Kioko [Bernsoft Interactive Limited] <
bkioko at bernsoft.com> wrote:

> BTW,
>
> We must all understand that it's very difficult for someone sitting in
> Turkey or Netherlands to know that Njoroge's song in Nyeri is currently the
> top song.
>
> It's my believe that someone in Kenya is feeding these sites with info or
> content. Someone in Kenya is benefiting from this content.
>
> One interesting thing is that a local company that infringed on our
> copyright had the same spelling mistake on our content as two other
> infringers (including WAPKID). 2 of these have confirmed that they got
> content from a local organisation. Its possible that WAPKID got this
> content
> from this same organization.
>
> Anyway, we are proceeding to court on this matter tomorrow so I shall have
> to say very little from this moment.
>
> Thank you everyone for your help so far and incase I can't comment much
> further, it's because I am advised to not (some court process stuff).
>
> Regards
>
> -----Original Message-----
> From: kictanet
> [mailto:kictanet-bounces+bkioko=bernsoft.com at lists.kictanet.or.ke] On
> Behalf
> Of Alex Comninos
> Sent: Thursday, September 27, 2012 1:14 PM
> To: bkioko at bernsoft.com
> Cc: KICTAnet ICT Policy Discussions
> Subject: Re: [kictanet] Music Piracy in Kenya - Government can Help
>
> What way for Kenya?
>
> Disclaimer: I am neither Kenyan, nor know much about the legislative and
> regulatory environment there.
>
> On 27 September 2012 18:37, Kivuva <Kivuva at transworldafrica.com> wrote:
> > Organised online piracy is hard to beat especially if hosting is done
> > on some distant islands. We saw how the internet community rushed to
> > the aid of Kim Dotcom of megauploads fame.
>
> Some with very good reason! There were many negative effects of taking down
> Megaupload; many people used the site for legitimate purposes:
> for sending, sharing  and storing files.
>
> Furthermore, MegaUpload was not operating much differently then sites like
> dropbox and YouTube, which also occasionally unwittingly sometime have
> copyright infringing content. These companies, including MegaUpload
> responded to DMCA requests, and had easy mechanisms for reporting copyright
> violations and requesting takedowns. What if these domains are also taken
> down or blocked on the same grounds?
>
> >The only solution in my
> > informed view is to have offending domains/IPs blacklisted by our
> >local ISPs, although that would require high level cooperation, and
> >would raise issues of net-neutrality. Elsewhere, giant Intelectual
> >Property owners have gone through WIPO/ICANN to disable and prosecute
> >copyright violators.
>
> IP address blocking, which would possibly affect net neutrality and freedom
> of expression.
>
> RE: DOMAIN AND IP ADDRESS BLOCKING
>
> Domains can change in seconds, and users can learn almost as fast as this
> what the new one. The WAPKIDs site has a number of other domains with the
> word WAP in it that perform the same function.
>
> IP addresses can also change just as fast.
>
> I would hope that Kenya goes a way that would balance copyright enforcement
> concerns with human rights concerns. What would be the unintended
> consequences of blocking domains and IP addresses?
>
> Blocking a domain can have chilling effects on freedom of expression and
> association. Firstly the said domains may host legal as well as illegal
> content. It is hard to generalise about a domain that acts as an
> intermediary for uploads and downloads- whether it is an illegal or legal
> site. Mistakes can also be made by domain blockers which can inadvertantly
> censor legitimate content.
>
> Blocking IPs in addition to interfering with the efficient function of the
> internet, can also have alot of collateral damage in the form of
> inadvertant
> censorship. A large part, if not most of the internet, is on shared
> hosting.
> Blocking an IP can can result in the blocking of all other websites on that
> IP, most of which in a shared hosting situation are not associated and do
> not even know anyone else on that host. Blocking IPs can silence the
> average
> Joe on the Internet, be he/she a blogger, a website developer or struggling
> musician.
>
> if there is ever a blocklist provided to ISPs in Kenya, who controls this
> list? How can we be sure that the management of this list is not
> politically
> influenced? Will the maintenance of the list be transparent.
>
> > internet focused enforcement measures to combat online copyright
> > infringement, including:
> > 1. Graduated response culminating in suspension of internet access 2.
> > Traffic shaping 3. Blocking (URL, IP, port, protocol) 4. Using the
> > domain name system (domain seizure).
> > 5. Criminalising copyright infringement by illegal content consumers
> > 6. Turning to cloud storage servers (cyberlockers) Probably Kenya
> > should consider walking one of those paths.
> > 7. Expanding the pool of internet intermediaries as agents for
> > enforcement
> >
> > Which way for Kenya?
>
> 1. If one is being monitored for the amount of times one connects to
> certain
> domains, one is effectively surveiled. There are privacy consequences here.
> Such systems would be open to abuse as well, and would have to be very
> transparent.
>
> 2. The nature of content cannot ascertain its legaility. This would also
> entail surveilance, as under point one.
>
> 3. Domains and IP discussed above. Discriminating by port or protocol would
> not be fair. I could be downloading a legal Ubuntu distro, Creative Commons
> material, or all number of things through Bittorrent, for example. Would
> packets then need to be sniffed? Now there is more surveilance, in addition
> to the sites one visits being monitored, the contents of files and packets
> are analysed.
>
> 4. Using the Domain Name System (Siezing domains)? I am not sure what this
> entails. Please elaborate. I am no expert on internet governance, but this
> would entail radically altering the structure of the internet. MPAA has
> even
> taking fiddling with the DNS system off the table
> http://mashable.com/2012/01/17/mpaa-sopa-pipa/
>
> > 6. Turning to cloud storage servers (cyberlockers)
> Like Megaupload?
>
> Many options off the table
>
> > 7. Expanding the pool of internet intermediaries as agents for
> > enforcement
> So running out of options, if governments and the music industry cannot
> solve the problem, they must pressure intermediaries to enforce copyright?
>
> Intermediaries are just the pipes, they are neither aware of nor actively
> propagate content on their networks. If a user accesses a copyrighted file,
> say from WAPKID, It should be the copyright infringer, not the network
> operator or ISP responsible for the violation.
>
> Limitations on the liability of intermediaries are vital for the successful
> functioning of the information society and information economy. This is why
> intermediaries are protected from liability for copyright infringement
> under
> the DMCA in America, under the EU Commerce Directive, under the Electronic
> Communications and Transactions Act in South Africa, and in many other
> countries.
>
> When under the legislation listed above, intermediaries acting as hosts
> must
> respond to takedown requests for valid cases of copyright infringement, and
> they must respond to all legal requests in any given country. To qualify,
> it
> is suggested under these legislations that there should probably be a take
> down system. Intermediaries lose their liability once they are aware of the
> content by means of a take-down notice, so need to take seriously takedown
> requests. Is there such a take-down system in Kenya. Any such system should
> be transparent and offers all affected parties recourse to appeal.
>
> I become concerned when holding intermediaries liable for infringement
> beyond when they are hosting it becomes problematic. To enforce copyright,
> with regards to ACCESS to sites such as WAPKid.
> Intermediaries would be required to implement a number of methods that may
> be considered censorship or surveilance e.g. packet sniffing, filtering,
> keeping records on sites accessed by users etc.
>
> Such a system of intermediary which aims to get intermediaries to enforce
> on
> users punishments so that they do not downloading content - The "three
> strikes and you are out"/HADOPI framework in France - has had many human
> rights implications and problems with implementation.
>
> See this scenario:
>
> http://www.cnet.com.au/french-illegal-downloads-agency-hadopi-may-be-abolish
> ed-339341011.htm<http://www.cnet.com.au/french-illegal-downloads-agency-hadopi-may-be-abolished-339341011.htm>
>
> Lastly, I recommend this paper as a critique of an intermediary liability
> approach to enforcing copyright:
> http://www.giswatch.org/fr/node/512
>
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> The Kenya ICT Action Network (KICTANet) is a multi-stakeholder platform
> for people and institutions interested and involved in ICT policy and
> regulation. The network aims to act as a catalyst for reform in the ICT
> sector in support of the national aim of ICT enabled growth and development.
>
> KICTANetiquette : Adhere to the same standards of acceptable behaviors
> online that you follow in real life: respect people's times and bandwidth,
> share knowledge, don't flame or abuse or personalize, respect privacy, do
> not spam, do not market your wares or qualifications.
>

-- 
Victor Kapiyo, LL.B

====================================================
*“Your attitude, not your aptitude, will determine your altitude” Zig Ziglar
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