Last week I was a participant at the COUNTER: Counterfeit and Piracy Research Conference in Manchester, UK. I was invited to be part of a panel on deep packet inspection by Joseph Savirimuthu, as well as enjoy the conference more generally. It was, without a doubt, one of the best conferences that I have attended – it was thought-provoking and (at points) anger-inducing, good food and accommodations were provided, and excellent discussions were had. What I want to talk about are some of the resonating themes that coursed through the conference and try to situate a few of the positions and participants to give an insight into what was talked about.

The COUNTER project is a European research project exploring the consumption of counterfeit and pirated leisure goods. It has a series of primary research domains, including: (1) frequency and distribution of counterfeits; (2) consumer attitudes to counterfeit and pirated goods; (3) legal and ethical frameworks for intellectual property; (4) policy options for engaging with consumers of counterfeit; (5) the use of copyrighted goods for the creation of new cultural artifacts; (6) impacts of counterfeiting and control of intellectual property.

What quickly became evident in the course of conference presentations was that there was a relative dearth of reasonable, well-articulated, and non-partisan work devoted to unearthing empirical data about how consumers engage with ‘illegitimate’ sources of content prior to the COUNTER researchers beginning their European data collection. Even where legitimate data sources existed (e.g. OECD data on counterfeit goods) there was rarely a common standard for gathering and archiving that data (e.g. do you measure counterfeit items by discrete number of items, number of shipping containers, street value, manufacturer value, etc.). These issues stemming from data collection were noted by the COUNTER Project Coordinator, Dr. Jo Bryce, as well as the representative from the European Union’s Intellectual Property Unit, Phil Lewis. The latter, in particular, noted the importance of establishing observatories that could gather data and statistics about the use and transit of pirated works, information that could subsequently be used to change public perceptions and attitudes to the usage of infringing works. The EU representative, and the parties he has been working with, are particularly interested in preventing infringing content from ever getting to the ‘net in the first place, though stated in response to a question I raised that deep packet inspection is not something that they are presently thinking of including in their observatories. Their unwillingness to use the technology stems from the fact that they might be unable to legally use it for data surveillance and, even they could use it legally, are uncertain that they want to adopt this mode of data collection.

Dr. Bryce identified consumer behaviour as the problem – or, in other words, the driver – of the the trafficking in counterfeit and pirated goods. Partially as a result of the disorganized responses to infringing uses of content, enforcement and education mechanisms alike have been largely ineffective in stemming the traffic of counterfeited goods or illicit trading in copywritten works. Her research found that while consumers tend to adopt various ethical perspectives on why file-sharing is socially acceptable, by educating consumers on the challenges transit of infringing intellectual properties imposes on individuals working in content generation industries it is possible to reduce consumers’ inclination to engage in file sharing. Moreover, her work noted that the content industries have lost a great deal of consumer trust and remain opaque organizations; consumers need to trust and appreciate the bodies generating content if content industries are to develop a positive relationship with their customers. This need for openness and transparency was regularly noted throughout the conference, though some academics and industry representatives alike dismiss the need for a positive relationship to exist between consumers and content production industries.

In a panel on consumer perspectives on downloading, empirically grounded research was provided to express the position of consumers in relation (primarily) to peer-to-peer filesharing. Emergent from the research presented, we found that consumers actually have a decent intuitive understanding of the world of filesharing, insofar as they differentiate between copyright infringement and stealing. Perhaps worryingly, researchers, consumer advocates, and rightsholders alike (and this is true across much of the conference) struggled with notions of enforcing copyright. Precise concerns and solutions varied, but we regularly heard ruminations about methods to impress upon consumers the moral right to copyright, numbers of ‘coercive impacts’ required to adjust behaviour, need to introduce copyright education to parents and into schools, and so forth. As it stands, research showed that most filesharers fail to see their actions in a moral light and are unworried about the possible consequences of being caught. Effective enforcement, members of the content industries and academics alike noted, requires there being a 10% chance of being caught. As it stands today, enforcement techniques are limited by:

• judicial resources;
• lack of clear sanctions;
• failures in educations (i.e. what does/doesn’t constitute infringing use);
• poor marketing campaigns;
• the use of generic, over specific, messages.

Emergent from this session it was evident that a key issue facing rights holders, and the advocates of rights holders, is the cultural and legal differences that impede uniform positions on copyright. In particular, differing nations adopt differing legal positions concerning downloading, uploading, the degree of criminality of file sharing, and so forth. One academic tried to make the boldfaced equation of copyright infringement and theft…it left him in a very hostile room, and arguably weakened the likelihood that his data will be adopted more widely into the literature.

In a panel where industry experts spoke of the harms caused by file sharing and counterfeit goods – damages ranging from 200 million pound a year, to 43 billion Euro lost in 2008, to equations of counterfeit with organized crime – a member of the audience asked: where is this money going? The thrust of the question was that consumers are choosing to allocate their monies to different areas of the economy, and so assertions that any economy was seeing a removal of monies is only true when economic sectors are seen in absolute isolation to one another. The complexity of the copyright environment, and its necessary interelation with a much more substantive socio-economic domain, should require the content industries to engage in holistic surveys if those surveys are to carry weight amongst critical audiences. Members of industry uniformally lacked such holistic surveys.

I sat in a panel on deep packet inspection – the draft of my paper that touches on deep packet inspection as it related to privacy and freedom of expression has been made available – alongside Klaus Mochalski of Ipoque and Paul Polanski, Director of Electronic Publishing for C.H. Beck Publishing. Klaus noted the capacities of Ipoque’s equipment (and inability for DPI to be used for totally effective inline copyright filtering) and Paul the problems surrounding ISP liability that arise when DPI is used for copyright enforcement purposes. Both were excellent speakers, and all three of us recognized the dangers that DPI threatens to pose for essential liberties in constitutional democracies. On a more personal note, it’s moderately disconcerting about speaking to Brits about the value of privacy, and harms of surveillance, and it felt nice to try and articulate the position that constitutional rights are more important than copyright. The latter position, in particular, wasn’t well received by representative of the content industry in the audience, but was certainly something that needed to be said more regularly than emerged over the course of the conference.

Arguably the most heated session I attended was the last session of the conference, the three strikes panel. It drew together academics, an ISP representative, copyright holder advocates, authors, and a member of the Pirate Party. There was an almost all out assault on the controversial sections of the UK’s Digital Economy Bill, with Richard Mollett of BPI (yes, that Richard Mollett) becoming the punching bag of the panel and audience. Mollett is the directory of policy for BPI and was clearly used to working in hostile rooms, but the vitriol was between members of the panel was particularly thick. Vanessa Mortiaux, Senior Legal Counsel for Orange, made very explicit that Orange was entirely against any requirement that ISPs monitor for copyright enforcement. To the detriment of the panel, however, there was almost exclusive focus on the Digital Economy Bill, to the point where the broader issue of three-strikes was largely implicit, rather than explicit.

Overall, the conference was excellent. It drew together academia, industry, and civil society in productive ways, though largely absent were the actual content creators we were so often speaking about. Consumers were (I would suggest) well represented by the consumer groups and large division of the Pirate Party (local UK, Swedish, and EU levels being represented) present at the conference. I was, however, largely disappointed with attempts to shuffle copyright from an economic privilege to a moral right and the commonly espoused unwillingness to think through the potential harms that threaten to follow from further augmentations of copyright ‘protection’. Admittedly this speaks to my own personal interests – I’m insatiably curious about how economic privileges threaten to upset and disembowel constitutional protections given my own academic background – but also to a culture of what might be called ‘copyright blindness’, where copyright blinds us to the larger issues at play in the copyright debates.

Depressingly, it isn’t that my position is unique or shared only by a handful of people; informally most academics and academically-trained people that I spoke with at the conference were in agreement that the potential harms of copyright must be carefully, and seriously, considered. Publicly, however, this worry and accompanying strong language demanding a rethink of the present copyright regime was largely absent from conference presentations. There were only a few strong voices addressing copyright in light of the larger social good, and while they were (arguably) positive beacons it would have been nice to have much of the ‘informal’ consensus be more formally presented to rightsholders and other members of the conference. Having said this, generally the research presented was well-rooted in rigorous methodological techniques, and perhaps this research might be adopted and leveraged by policymakers in their ongoing engagements with copyright, content producers, and the public. My expectations, however, are less positive: I fear that the work of the COUNTER research project will remain sheltered in academia, sequestered from the public, and consequently ineffective in reshaping the copyright debacle in but the most limited of fashions. Hopefully this is a case where academia can successfully puncture the academic/public divide and breech the public policy debate, but I’m not holding my breath.