[kictanet] Music Piracy in Kenya - Government can Help

[Alex Comninos]

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-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