Hi This is my first posting to the list. @Tony: On 26 September 2012 15:20, Tony Likhanga <tlikhanga@gmail.com> wrote:

@Denis, Yes, you can legitimately buy music online from http://www.pewahewa.com/ ... The beauty of it all is that the online shop has endeavoured to incorporate as many payments options as feasible; making it very convenient to the average consumer.

This is a great development, I am going to use it to buy and discover Kenyan music. Thank you for the link. I notice on my phone that pewahewa does not have a mobi/WAP version. This is where WAPKID perhaps has an edge in Kenya. WAPKID has a WAP/mobi site (hence the name), and then normal website which tends direct one towards getting them to download content on a mobile phone. I could imagine this working well on an old Nokia feature phones. Pehewa has no mobile site and would require an Android, Droid Tablet. I could be wrong here I have only tested with an Ideos and this WAP emulator, http://tagtag.com/site/info/emulator WAPKid seems to have an unfortunate edge when it caters towards bottom of the phone-buying pyramid users, both in user experience and of course, unfortunately price. Would strongly suggest Pahewa also goes mobi. Kind regards, Alex Comninos

I am not very familiar with the licensing of pewahewa but this one thing is for sure. A song is owned by several parties; 1. The person who sang owns their voice - called artist. 2. The person who made the beats owns the beats - called composer. 3. The person who writes the lyrics 4. The person who pays the bills for production of the final song (master) - called Record Label For any song to be legally licensed these people must issue permission in one way or another. To make it easy its organized as Publishing Rights (for the first 2 rights) and Master Rights (for the second two). So pewahewa would only be legal if they can demonstrate that they have these these rights. Many artists and producers don't even know this. This is what is killing the music industry so on 15th October when you see our education campaign "iCareforMusic" we will be hoping you all can sambaza the message. I hope that's clearer. Kind regards Bernard From: kictanet [mailto:kictanet-bounces+bkioko=bernsoft.com@lists.kictanet.or.ke] On Behalf Of Tony Likhanga Sent: Wednesday, September 26, 2012 6:21 AM To: bkioko@bernsoft.com Cc: KICTAnet ICT Policy Discussions Subject: Re: [kictanet] Music Piracy in Kenya - Government can Help @Denis, Yes, you can legitimately buy music online from http://www.pewahewa.com/ It's interesting to note that Eric Wainaina has made available his brilliant latest Album on the same site. The beauty of it all is that the online shop has endeavoured to incorporate as many payments options as feasible; making it very convenient to the average consumer.

Copyright law is complicated but there are some basics (if we have any lawyers here that are good at this maybe they can advise us). Someone somewhere (and might not even be Eric Wainaina) had to get permission from Eric Wainana and all the other parties involved in EACH of the song (I haven't seen his album really) before they could put any song on a CD for sale. I suspect that Eric has a Publisher who did this and the publisher gets money for each CD sold (unless other arrangements have been made. Remember for Eric to allow his music to be "duplicated" into CDs, he was told how many so he licensed that number. Now when it comes to digital, everytime you download a song, you have actualy made a COPY of that song! So someone needs to authorize you to offer COPYING of music. Whether at PewaHewa its legal or not depends on the agreements they have with the person they got the music from. If you go and find the artist whose voice you hear in a song and sign a contract with that person without confirming they have permission to offer the OTHER rights in a song, then your contract would ideally be invalid. A little research a while back showed me pewahewa was working with MCSK. My research shows most of the content at MCSK has not been signed by all parties! Make the conclusion on that on your own! Let me illustrate this abit further: You and your brother own a goat at 50/50. Your brother is also a member of a society that sells goats called (lets call it GCSK J ). One morning your brother goes to GCSK and tells them he has a goat and they tell him, we can sell the goat. They take the goat and sell it. You return home and your brother tells you BTW, I sold the goat..and he tells you.I was paid my 50% and directs you to go to GCSK to get your money. At GCSK, they tell you, if you are not a member we can't pay you! Further, they tell you, after 3 yrs any money we collect that belongs to non-members "evaporates" - well not in those words exactly! That my brothers and sisters is what is happening at MCSK - at least with content that's owned by me partly. Regards From: kictanet [mailto:kictanet-bounces+bkioko=bernsoft.com@lists.kictanet.or.ke] On Behalf Of Tony Likhanga Sent: Thursday, September 27, 2012 5:26 AM To: bkioko@bernsoft.com Cc: KICTAnet ICT Policy Discussions Subject: Re: [kictanet] Music Piracy in Kenya - Government can Help Thanks for the insight Ben. If I looked at the license model from a very simplistic angle, would I, the consumer, be making wrong assumptions (especially in light of the local market) if I were to use the price tag on the music as a pointer to the legality of the product? To illustrate this I'll use Eric Wainaina's music album on PewaHewa. The album has 14 tracks each priced at Kes 30. Price tag on the original sealed CD copy of the music from Nakumatt Supermarket = Kes 399.00 Price tag on the same Music bought from PewaHewa (Ignoring transaction costs) = Kes 30 x 14 = Kes 420.00 Am I misguided to conclude that I would be buying a legitimate copy of the Album from an online source on the basis of this simplistic analysis? If yes, then are there any controls that can be enforced on the online music vendors who are likely exploit this approach. Tony.

James, Not every Kenyan can play music from other forms. Some people still have Cassettes and CD players. The issue of how music is sold to you is secondary AFTER its copyright has been managed. Lets not confuse the issue of copyright infringement with that of access to music. Licensing limited number of duplicates just means an artist can tell the person making CDs to make 100,000 for now and when they need to make more, they contact the artist. On the internet though, downloads can move from 1 to 1m in day.... -----Original Message----- From: James Kariuki [mailto:jkariuki@gmail.com] Sent: Thursday, September 27, 2012 7:28 AM To: Bernard Kioko [Bernsoft Interactive Limited] Cc: KICTAnet ICT Policy Discussions Subject: Re: [kictanet] Music Piracy in Kenya - Government can Help

You and your brother own a goat at 50/50. Your brother is also a member of a society that sells goats called (lets call it GCSK J ). One morning your brother goes to GCSK and tells them he has a goat and they tell him, we can sell the goat. They take the goat and sell it. You return home and your brother tells you BTW, I sold the goat..and he tells you.I was paid my 50% and directs you to go to GCSK to get your money. At GCSK, they tell you, if you are not a member we can't pay you! Further, they tell you, after 3 yrs any money we collect that belongs to non-members "evaporates" - well not in those words exactly!

What I read here is of an industry or at least a section of it that has completely refused to evolve with the times. The traditional market-place underwent a major transformation. Why would I in this day and age want to buy a full CD if I just need or like one song in the full CD? I guess part of the losses and infringements that are reported here are part because of the rigidity in the industry in embracing the mix and mash. For a musician or producer, why would you want to sell CDs when the sale of individual songs out-performs the sale of complete CDs? Having said that, I do not get the issue of 'licensing a limited number of duplicates'. --James

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@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... Lastly, I recommend this paper as a critique of an intermediary liability approach to enforcing copyright: http://www.giswatch.org/fr/node/512

John Good luck! Could be useful to follow the story and thinking of how Apple got the music industry to agree to put the biggest portfolio of music on iTunes at $.99 a pop. Interesting Lessons there. Ali Hussein +254 773/713 601113 Sent from my iPhone® On Sep 28, 2012, at 10:29 AM, "Bernard Kioko [Bernsoft Interactive Limited]" <bkioko@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@lists.kictanet.or.ke] On Behalf Of Alex Comninos Sent: Thursday, September 27, 2012 1:14 PM To: bkioko@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@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

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.

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@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@lists.kictanet.or.ke] On Behalf Of Alex Comninos Sent: Thursday, September 27, 2012 1:14 PM To: bkioko@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@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 *

Morning listers, Does anyone know of sites currently being blocked by ISPs? How does a user know that a site is blocked? Especially the ones using .KE? Regards. On Oct 3, 2012 10:26 AM, "Bernard Kioko [Bernsoft Interactive Limited]" < bkioko@bernsoft.com> wrote:

No worries Victor.

Regards

*From:* Victor Kapiyo [mailto:vkapiyo@gmail.com] *Sent:* Wednesday, October 03, 2012 8:45 AM *To:* Bernard Kioko [Bernsoft Interactive Limited] *Cc:* KICTAnet ICT Policy Discussions *Subject:* Re: [kictanet] Music Piracy in Kenya - Government can Help

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@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@lists.kictanet.or.ke] On Behalf

Of Alex Comninos Sent: Thursday, September 27, 2012 1:14 PM To: bkioko@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@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

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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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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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.

Not every Kenyan can play music from other forms. Some people still have Cassettes and CD players. The issue of how music is sold to you is secondary AFTER its copyright has been managed. Lets not confuse the issue of copyright infringement with that of access to music.

Today am having a long and slow day - forgive me if am missing something. You raise this issue here first because the music is 'pirated' and sold not as recorded/burnt CDs but as downloads off a website. You also say that those accessing the music from some of the hosting sites are doing so illegally because there is copyright infringement. If there no access issue, copyright infringement would not arise in the first place. My question to you is: how have you placed yourself in the music industry to cater for a growing need of electronic access (through downloads) of your music? I ask this because the lack of a legal access to the music could have created an avenue for others to profit illegally.

Licensing limited number of duplicates just means an artist can tell the person making CDs to make 100,000 for now and when they need to make more, they contact the artist. On the internet though, downloads can move from 1 to 1m in day....

If this is your view. But I think this is a 20th century way of managing copyright and restricting access. On a different note, have you tried through your sources to establish if the hottest downloads are also the fastest moving sales? I remember reading something a while back to the effect that availing your music freely for download could bolster your sales. --James

Bernard, So knowing you understand how this works both for the people hosting the content, the service provider and the other parties (musicians,you,producers etc), closing one site won't really be a viable long term solution (think back to telkom blocking voip and how hard we worked to go around them). They will just move things around, especially if they are somehow making money off the free downloads. However, and you seem to have it figured out, the biggest culprits need to be locked down; somehow, unfortunately if they have a good hosting provider it will be tricky for the service providers to do it without incurring additional cost. But it can get done. The best solution is a situation where people are sensible enough to actually CHOOSE to buy, in which case you need to ensure they have a platform to get the music from. Which means your best bet is to make sure the campaign is successful. Sometimes people don't get how much work goes into making a song or movie or painting enough to respect it enough to buy. (I hear miguna's book on pdf was downloaded by several factors of the guys that actually bought the book). Most of the initiatives you have outlined should start to hopefully work. Another tactic is to get a list from ISP's of everyone that has ever downloaded a song, pick the top 100, send them letters to pay up very publicly and let the users know they can't hide if they commit an online crime. The old logs might be unavailable but they can start tracking now. Might be cost a bit but it should drive the message home and ties in well with your campaign. I can think of at least two ISP's with systems that can do this. On this email I'm just weighing in the fact that trying to block the sites might not really have the desired effect in the long run. It however will cause some desirable disruption. And starts a debate that pretty much seems to have started your awareness campaign. So thanks. jgitau On Fri, Sep 28, 2012 at 8:41 AM, Bernard Kioko [Bernsoft Interactive Limited] <bkioko@bernsoft.com> wrote:

James,

As I said copyright can be complicated and it's taken me two years and 2 trips to South Africa to understand this fully.

My point was, ALL copyright owners of a song MUST authorize the song to be sold. If only 2 persons out of 4 owners allow the song to be sold, then copyright infringement takes place for the other 2 persons. Of course this changes if the 4 persons had appointed the 2 persons to represent them.

Please remember my complain, there is a website that is offering our content FREE and although we have channels to sell our content consumers go for FREE. Example, at one point, this website and all other "legal" website existed on the a network operator's wap home page.

On your issue about hottest downloads.

The hottest downloads are in a website where content is being pirated. If music is to be offered for free, let the OWNERS of the music do the free offers.

Regards

-----Original Message----- From: James Kariuki [mailto:jkariuki@gmail.com] Sent: Thursday, September 27, 2012 11:50 AM To: Bernard Kioko [Bernsoft Interactive Limited] Cc: KICTAnet ICT Policy Discussions Subject: Re: [kictanet] Music Piracy in Kenya - Government can Help

...

Not every Kenyan can play music from other forms. Some people still have Cassettes and CD players. The issue of how music is sold to you is secondary AFTER its copyright has been managed. Lets not confuse the issue of copyright infringement with that of access to music.

Today am having a long and slow day - forgive me if am missing something. You raise this issue here first because the music is 'pirated' and sold not as recorded/burnt CDs but as downloads off a website. You also say that those accessing the music from some of the hosting sites are doing so illegally because there is copyright infringement. If there no access issue, copyright infringement would not arise in the first place. My question to you is: how have you placed yourself in the music industry to cater for a growing need of electronic access (through downloads) of your music? I ask this because the lack of a legal access to the music could have created an avenue for others to profit illegally.

...

Licensing limited number of duplicates just means an artist can tell the person making CDs to make 100,000 for now and when they need to make more, they contact the artist. On the internet though, downloads can move from 1 to 1m in day....

If this is your view. But I think this is a 20th century way of managing copyright and restricting access.

On a different note, have you tried through your sources to establish if the hottest downloads are also the fastest moving sales? I remember reading something a while back to the effect that availing your music freely for download could bolster your sales.

--James

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-- **Gitau

Alex and All There is a clear case of Intermediary Liability here. Especially the Telco/ISP that sent promotional SMSs urging people to download music forlorn WAPKID. Maybe Victor can help here.. Kioko, keep up the good fight. The issue of piracy is a sticky one and one that puts money in the wrong hands. Ali Hussein +254 773/713 601113 Sent from my iPhone® On Sep 27, 2012, at 2:56 AM, Alex Comninos <alex.comninos@gmail.com> wrote:

On 27 September 2012 01:07, <bitange@jambo.co.ke> wrote:

...

Bernard Kioko Please sue these people. We shall support you.

Ndemo.

Legal juristiction of WAPKid.com seems to be possibly Turkey, where it appears to be hosted.

(Sources: http://whois.domaintools.com/wapkid.com , http://whois.domaintools.com/94.101.89.16 )

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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.

Muraya, On your first question, YES! Regards From: kictanet [mailto:kictanet-bounces+bkioko=bernsoft.com@lists.kictanet.or.ke] On Behalf Of S.M. Muraya Sent: Wednesday, September 26, 2012 7:36 PM To: bkioko@bernsoft.com Cc: KICTAnet ICT Policy Discussions Subject: Re: [kictanet] Music Piracy in Kenya - Government can Help Does this mean the Kenyan Telco / ISP has evaded paying the musicians but earned from bandwidth used to download their music? My own observation / opinion is that Telcos (like most organizations) in Kenya do not promote or market ethics in their own sales & marketing departments. This could be the work of a rogue employee. Management may not be using their CRM to keep track of the marketing campaigns going on. On Sep 27, 2012 5:07 AM, "Ali Hussein" <ali@hussein.me.ke> wrote: Alex and All There is a clear case of Intermediary Liability here. Especially the Telco/ISP that sent promotional SMSs urging people to download music forlorn WAPKID. Maybe Victor can help here.. Kioko, keep up the good fight. The issue of piracy is a sticky one and one that puts money in the wrong hands. Ali Hussein +254 773/713 601113 Sent from my iPhoneR On Sep 27, 2012, at 2:56 AM, Alex Comninos <alex.comninos@gmail.com> wrote:

On 27 September 2012 01:07, <bitange@jambo.co.ke> wrote:

...

Bernard Kioko Please sue these people. We shall support you.

Ndemo.

Legal juristiction of WAPKid.com seems to be possibly Turkey, where it appears to be hosted.

(Sources: http://whois.domaintools.com/wapkid.com , http://whois.domaintools.com/94.101.89.16 )

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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.

_______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet Unsubscribe or change your options at https://lists.kictanet.or.ke/mailman/options/kictanet/murigi.muraya%40gmail. com 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.

Bwana Daktari,

The music industry in Kenya is unable to grow. Companies like mine and individuals are investing money in creating music but the same cannot be commercialized effectively. One of the main problems is organized

Hi, Thank you so much. I believe this is as much help as we can ask for at this point. Kind regards Bernard -----Original Message----- From: bitange@jambo.co.ke [mailto:bitange@jambo.co.ke] Sent: Wednesday, September 26, 2012 4:08 PM To: Bernard Kioko [Bernsoft Interactive Limited] Cc: KICTAnet ICT Policy Discussions; bitange@jambo.co.ke Subject: Re: Music Piracy in Kenya - Government can Help Bernard Kioko Please sue these people. We shall support you. Ndemo. piracy.

Take for example the website WAPKID.COM, this website provides almost every Kenyan song FREE FOR DOWNLOAD.

The website at the moment lists the following as popular tags - meaning these are the artists whose content is currently heavily being downloaded.

I understand that this website is offering pirated content because Music works that is owned and copyright administered by myself is being offered for FREE here - the total investment I made for the songs on offer is Ksh. 5million over the last 2 years and now I have no way to recover my investment by sales since consumers can opt for free.

John De Mathew - Nimwamenyire Muno Wangari Wa Kabera - Aciari Redsun - Shika Glasi Sam Kinuthia - Muiritu Wa Gikomba Onyi Papa Jey - Migingo Dhi Muigai Njoroge - Muti Utari Matunda Kamaru - Nairobi Iraguo Ki Kamande Wa Kioi - Kapusi Kakwa Salim - Kanyina Kanini Kamande Wa Kioi - Githukia Tombo

It's possible that these artists and many more don't actually know that this exists BUT millions of Kenyans are downloading the music and who is benefiting? The Network Operators who charge money based on the data downloads. Infact, at one point, one of the mobile operators even sent SMS advertisements to their subscribers urging them to access content from WapKid.com

As an industry, we are bleeding and desperately in need of government support to stop this organized piracy that is benefiting local and international organization at the expense of our content and therefore killing and local development of content.

As we seek your assistance, we are also doing something on our part. We will be meeting next week Wednesday 3rd October 3pm at Panafric as a music industry (Record labels, Kenya Copyright Board and Music Copyright Society of Kenya) to discuss and work out strategies that can help us especially in creating a clear licensing framework. We will also be announcing an Anti-Piracy Campaign called "iCareforMusic" whose aim is to educate the consumer on the benefits of getting music from licensed partners.

We believe that either the government or the courts can issue an order blocking WAPKID.COM, MP3RAID.COM and any other website offering local music from being accessed and this is fairly easy at the ISP level. Before we take to the court route, we wish to seek a diplomatic route first. If we can stop this organized piracy, investing in a song would be worth it for the Artist, the Record Label and/or the music publisher. And in overall, KRA would collect tax from all of us. Everybody wins! Who knows, it would be even worth having a music studio at Konza City.

Bwana PS, how can you assist our music industry?

Kind regards

Bernard Kioko Chief Executive Officer, Bernsoft

I agree with Robert here. The model doesn't make sense anymore. I remember looking for Madtraxx's Get down for ages online even willing to get a site or service that could sell it to me for something reasonable like 20 or 30 bob. I found none that didn't need me to have a credit card or wasn't trying to hawk an entire album I didn't want. I found it on a free site getmziki.com that is hosted in the US of A. I really don't care where it was hosted or who made money from the download but I got the track, didn't pay a cent though I was willing and was happy with myself. What does it say that artists do not care that their works are being pirated? The campaign Bernard wants to launch is laudable but is it actually fixing the problem? Granted bernard having vested financial interest and decades of expertise would know the industry better but in my opinion making people jump hoops to pay you will lead them directly to wapkid. The details of how many people own a track is irrelevant to the guy who wants to listen. A simple portal with a simple price. If you ask 30 bob for a track and then proceed to split the 30 bob between the producer, artist,record label,sweeper and promoter in the backend then this may work. In the meantime, sue people in court (however expensive this may be) to get your content out of the pirate's den. Ofcourse cooperation from ISPs is paramount and I should think welcome seeing as they wouldn't want to be mixed up in piracy. How did iTunes do it? On Fri, Sep 28, 2012 at 12:38 PM, robert yawe <robertyawe@yahoo.co.uk>wrote:

I Bernard,

My advice to you is to change your monitization model, there is a band in rock band in Kenya that does not have a single recording as they make their money from live concerts to them the issue of piracy is a none-issue.

Instead of looking for protection from a government that has more pressing issues please engage service of professionals in coming up with a peculiar local solution to the problem you are experiencing.

Just a quick background, before radio all music performances where done at a set venue where the band could easily calculate their take from ticket sales, when radio came along the musicians argued that they should be remunerated based on the number of radio out in the market. We all know how that discussion ended, it is time to move on the model you have been relying on has stopped working get a new one.

The biggest revenue earner for musicians is movie sound tracks and advertising jingles maybe you should be asking why Eric & Nameless are not on this forum complaining about a site WAPKID they have understand where the money went and have followed it, adapt or perish.

Regards

PS. We are going into the mother of all elections, take advantage of the opportunity that this has presented.

Robert Yawe KAY System Technologies Ltd Phoenix House, 6th Floor P O Box 55806 Nairobi, 00200 Kenya

Tel: +254722511225, +254202010696 ------------------------------ *From:* Bernard Kioko [Bernsoft Interactive Limited] <bkioko@bernsoft.com> *To:* robertyawe@yahoo.co.uk *Cc:* KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke> *Sent:* Thursday, 27 September 2012, 0:17 *Subject:* [kictanet] Music Piracy in Kenya - Government can Help

Bwana Daktari,

The music industry in Kenya is unable to grow. Companies like mine and individuals are investing money in creating music but the same cannot be commercialized effectively. One of the main problems is organized piracy. Take for example the website WAPKID.COM, this website provides almost every Kenyan song FREE FOR DOWNLOAD.

The website at the moment lists the following as popular tags – meaning these are the artists whose content is currently heavily being downloaded.

I understand that this website is offering pirated content because Music works that is owned and copyright administered by myself is being offered for FREE here – the total investment I made for the songs on offer is Ksh. 5million over the last 2 years and now I have no way to recover my investment by sales since consumers can opt for free.

John De Mathew - Nimwamenyire Muno Wangari Wa Kabera - Aciari Redsun - Shika Glasi Sam Kinuthia - Muiritu Wa Gikomba Onyi Papa Jey - Migingo Dhi Muigai Njoroge - Muti Utari Matunda Kamaru - Nairobi Iraguo Ki Kamande Wa Kioi - Kapusi Kakwa Salim - Kanyina Kanini Kamande Wa Kioi - Githukia Tombo

It’s possible that these artists and many more don’t actually know that this exists BUT millions of Kenyans are downloading the music and who is benefiting? The Network Operators who charge money based on the data downloads. Infact, at one point, one of the mobile operators even sent SMS advertisements to their subscribers urging them to access content from WapKid.com

As an industry, we are bleeding and desperately in need of government support to stop this organized piracy that is benefiting local and international organization at the expense of our content and therefore killing and local development of content.

As we seek your assistance, we are also doing something on our part. We will be meeting next week Wednesday 3rd October 3pm at Panafric as a music industry (Record labels, Kenya Copyright Board and Music Copyright Society of Kenya) to discuss and work out strategies that can help us especially in creating a clear licensing framework. We will also be announcing an Anti-Piracy Campaign called “iCareforMusic” whose aim is to educate the consumer on the benefits of getting music from licensed partners.

We believe that either the government or the courts can issue an order blocking WAPKID.COM, MP3RAID.COM and any other website offering local music from being accessed and this is fairly easy at the ISP level. Before we take to the court route, we wish to seek a diplomatic route first. If we can stop this organized piracy, investing in a song would be worth it for the Artist, the Record Label and/or the music publisher. And in overall, KRA would collect tax from all of us. Everybody wins! Who knows, it would be even worth having a music studio at Konza City.

Bwana PS, how can you assist our music industry?

Kind regards

Bernard Kioko Chief Executive Officer, *Bernsoft*

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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.

-- Regards, Mark Mwangi markmwangi.me.ke

May be we may also benefit from the wisdom of the long tail... http://www.longtail.com/the_long_tail/about.html Ali Hussein +254 773/713 601113 Sent from my iPad On Sep 28, 2012, at 4:27 PM, John Gitau <jgitau@gmail.com> wrote:

Apart from maybe 'teaching someone a lesson', trying to block content even for the most well meaning ISP won't work/scale, not for long anyway.

Make the content available, affordable and yes appeal to their patriotism. The Internet is a jungle, and as we move towards ipv6, it's losing its hierarchy so trying to get to people will be harder unless government policies intervene.

Unless we go the Iran way and close the international links and force people to create content locally. Then we can 'police' your content. Ie the current Internet model is due/ready for a disruption. Lets see where it takes us.

Gitau

Sent from my iPad

On 28 Sep 2012, at 13:27, Mark Mwangi <mwangy@gmail.com> wrote:

...

I agree with Robert here. The model doesn't make sense anymore. I remember looking for Madtraxx's Get down for ages online even willing to get a site or service that could sell it to me for something reasonable like 20 or 30 bob. I found none that didn't need me to have a credit card or wasn't trying to hawk an entire album I didn't want. I found it on a free site getmziki.com that is hosted in the US of A. I really don't care where it was hosted or who made money from the download but I got the track, didn't pay a cent though I was willing and was happy with myself. What does it say that artists do not care that their works are being pirated?

The campaign Bernard wants to launch is laudable but is it actually fixing the problem? Granted bernard having vested financial interest and decades of expertise would know the industry better but in my opinion making people jump hoops to pay you will lead them directly to wapkid. The details of how many people own a track is irrelevant to the guy who wants to listen. A simple portal with a simple price. If you ask 30 bob for a track and then proceed to split the 30 bob between the producer, artist,record label,sweeper and promoter in the backend then this may work. In the meantime, sue people in court (however expensive this may be) to get your content out of the pirate's den. Ofcourse cooperation from ISPs is paramount and I should think welcome seeing as they wouldn't want to be mixed up in piracy.

How did iTunes do it?

On Fri, Sep 28, 2012 at 12:38 PM, robert yawe <robertyawe@yahoo.co.uk> wrote:

...

I Bernard,

My advice to you is to change your monitization model, there is a band in rock band in Kenya that does not have a single recording as they make their money from live concerts to them the issue of piracy is a none-issue.

Instead of looking for protection from a government that has more pressing issues please engage service of professionals in coming up with a peculiar local solution to the problem you are experiencing.

Just a quick background, before radio all music performances where done at a set venue where the band could easily calculate their take from ticket sales, when radio came along the musicians argued that they should be remunerated based on the number of radio out in the market. We all know how that discussion ended, it is time to move on the model you have been relying on has stopped working get a new one.

The biggest revenue earner for musicians is movie sound tracks and advertising jingles maybe you should be asking why Eric & Nameless are not on this forum complaining about a site WAPKID they have understand where the money went and have followed it, adapt or perish.

Regards

PS. We are going into the mother of all elections, take advantage of the opportunity that this has presented.

Robert Yawe KAY System Technologies Ltd Phoenix House, 6th Floor P O Box 55806 Nairobi, 00200 Kenya

Tel: +254722511225, +254202010696 From: Bernard Kioko [Bernsoft Interactive Limited] <bkioko@bernsoft.com> To: robertyawe@yahoo.co.uk Cc: KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke> Sent: Thursday, 27 September 2012, 0:17 Subject: [kictanet] Music Piracy in Kenya - Government can Help

Bwana Daktari,

The music industry in Kenya is unable to grow. Companies like mine and individuals are investing money in creating music but the same cannot be commercialized effectively. One of the main problems is organized piracy. Take for example the website WAPKID.COM, this website provides almost every Kenyan song FREE FOR DOWNLOAD.

The website at the moment lists the following as popular tags – meaning these are the artists whose content is currently heavily being downloaded.

I understand that this website is offering pirated content because Music works that is owned and copyright administered by myself is being offered for FREE here – the total investment I made for the songs on offer is Ksh. 5million over the last 2 years and now I have no way to recover my investment by sales since consumers can opt for free.

John De Mathew - Nimwamenyire Muno Wangari Wa Kabera - Aciari Redsun - Shika Glasi Sam Kinuthia - Muiritu Wa Gikomba Onyi Papa Jey - Migingo Dhi Muigai Njoroge - Muti Utari Matunda Kamaru - Nairobi Iraguo Ki Kamande Wa Kioi - Kapusi Kakwa Salim - Kanyina Kanini Kamande Wa Kioi - Githukia Tombo

It’s possible that these artists and many more don’t actually know that this exists BUT millions of Kenyans are downloading the music and who is benefiting? The Network Operators who charge money based on the data downloads. Infact, at one point, one of the mobile operators even sent SMS advertisements to their subscribers urging them to access content from WapKid.com

As an industry, we are bleeding and desperately in need of government support to stop this organized piracy that is benefiting local and international organization at the expense of our content and therefore killing and local development of content.

As we seek your assistance, we are also doing something on our part. We will be meeting next week Wednesday 3rd October 3pm at Panafric as a music industry (Record labels, Kenya Copyright Board and Music Copyright Society of Kenya) to discuss and work out strategies that can help us especially in creating a clear licensing framework. We will also be announcing an Anti-Piracy Campaign called “iCareforMusic” whose aim is to educate the consumer on the benefits of getting music from licensed partners.

We believe that either the government or the courts can issue an order blocking WAPKID.COM, MP3RAID.COM and any other website offering local music from being accessed and this is fairly easy at the ISP level. Before we take to the court route, we wish to seek a diplomatic route first. If we can stop this organized piracy, investing in a song would be worth it for the Artist, the Record Label and/or the music publisher. And in overall, KRA would collect tax from all of us. Everybody wins! Who knows, it would be even worth having a music studio at Konza City.

Bwana PS, how can you assist our music industry?

Kind regards

Bernard Kioko Chief Executive Officer, Bernsoft

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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.

_______________________________________________ kictanet mailing list kictanet@lists.kictanet.or.ke https://lists.kictanet.or.ke/mailman/listinfo/kictanet

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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.

-- Regards,

Mark Mwangi

markmwangi.me.ke

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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.

---

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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.

Robert +++1 Ali Hussein +254 773/713 601113 Sent from my iPad On Oct 1, 2012, at 9:54 AM, robert yawe <robertyawe@yahoo.co.uk> wrote:

Hi,

After making the post I came across an advertisement in the newspaper by one of the local private schools who are offering a course in Music Entrepreneurship which to me is a realisation that you can actually make a very successful career in the music industry if you take it seriously.

http://www.brookhouse.ac.ke/bhapa.asp

Maybe this is what the various associations and pressure groups trying to improve the situation of performing artists in the country need to look at offering instead of false rhetoric.

Do not forget that the piratebay (became a political party and has a seat on the European Parliament) site is still up and operational even after a joint offensive from the major software, music and movie producers a lesson that bare-knuckle attacks have no place in the bits and byte world.

Regards

Robert Yawe KAY System Technologies Ltd Phoenix House, 6th Floor P O Box 55806 Nairobi, 00200 Kenya

Tel: +254722511225, +254202010696 From: Ali Hussein <ali@hussein.me.ke> To: robertyawe@yahoo.co.uk Cc: KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke> Sent: Friday, 28 September 2012, 19:06 Subject: Re: [kictanet] Music Piracy in Kenya - Government can Help

May be we may also benefit from the wisdom of the long tail...

http://www.longtail.com/the_long_tail/about.html

Ali Hussein

+254 773/713 601113

Sent from my iPad

On Sep 28, 2012, at 4:27 PM, John Gitau <jgitau@gmail.com> wrote:

...

Apart from maybe 'teaching someone a lesson', trying to block content even for the most well meaning ISP won't work/scale, not for long anyway.

Make the content available, affordable and yes appeal to their patriotism. The Internet is a jungle, and as we move towards ipv6, it's losing its hierarchy so trying to get to people will be harder unless government policies intervene.

Unless we go the Iran way and close the international links and force people to create content locally. Then we can 'police' your content. Ie the current Internet model is due/ready for a disruption. Lets see where it takes us.

Gitau

Sent from my iPad

On 28 Sep 2012, at 13:27, Mark Mwangi <mwangy@gmail.com> wrote:

...

I agree with Robert here. The model doesn't make sense anymore. I remember looking for Madtraxx's Get down for ages online even willing to get a site or service that could sell it to me for something reasonable like 20 or 30 bob. I found none that didn't need me to have a credit card or wasn't trying to hawk an entire album I didn't want. I found it on a free site getmziki.com that is hosted in the US of A. I really don't care where it was hosted or who made money from the download but I got the track, didn't pay a cent though I was willing and was happy with myself. What does it say that artists do not care that their works are being pirated?

The campaign Bernard wants to launch is laudable but is it actually fixing the problem? Granted bernard having vested financial interest and decades of expertise would know the industry better but in my opinion making people jump hoops to pay you will lead them directly to wapkid. The details of how many people own a track is irrelevant to the guy who wants to listen. A simple portal with a simple price. If you ask 30 bob for a track and then proceed to split the 30 bob between the producer, artist,record label,sweeper and promoter in the backend then this may work. In the meantime, sue people in court (however expensive this may be) to get your content out of the pirate's den. Ofcourse cooperation from ISPs is paramount and I should think welcome seeing as they wouldn't want to be mixed up in piracy.

How did iTunes do it?

On Fri, Sep 28, 2012 at 12:38 PM, robert yawe <robertyawe@yahoo.co.uk> wrote: I Bernard,

My advice to you is to change your monitization model, there is a band in rock band in Kenya that does not have a single recording as they make their money from live concerts to them the issue of piracy is a none-issue.

Instead of looking for protection from a government that has more pressing issues please engage service of professionals in coming up with a peculiar local solution to the problem you are experiencing.

Just a quick background, before radio all music performances where done at a set venue where the band could easily calculate their take from ticket sales, when radio came along the musicians argued that they should be remunerated based on the number of radio out in the market. We all know how that discussion ended, it is time to move on the model you have been relying on has stopped working get a new one.

The biggest revenue earner for musicians is movie sound tracks and advertising jingles maybe you should be asking why Eric & Nameless are not on this forum complaining about a site WAPKID they have understand where the money went and have followed it, adapt or perish.

Regards

PS. We are going into the mother of all elections, take advantage of the opportunity that this has presented.

Robert Yawe KAY System Technologies Ltd Phoenix House, 6th Floor P O Box 55806 Nairobi, 00200 Kenya

Tel: +254722511225, +254202010696 From: Bernard Kioko [Bernsoft Interactive Limited] <bkioko@bernsoft.com> To: robertyawe@yahoo.co.uk Cc: KICTAnet ICT Policy Discussions <kictanet@lists.kictanet.or.ke> Sent: Thursday, 27 September 2012, 0:17 Subject: [kictanet] Music Piracy in Kenya - Government can Help

Bwana Daktari,

The music industry in Kenya is unable to grow. Companies like mine and individuals are investing money in creating music but the same cannot be commercialized effectively. One of the main problems is organized piracy. Take for example the website WAPKID.COM, this website provides almost every Kenyan song FREE FOR DOWNLOAD.

The website at the moment lists the following as popular tags – meaning these are the artists whose content is currently heavily being downloaded.

I understand that this website is offering pirated content because Music works that is owned and copyright administered by myself is being offered for FREE here – the total investment I made for the songs on offer is Ksh. 5million over the last 2 years and now I have no way to recover my investment by sales since consumers can opt for free.

John De Mathew - Nimwamenyire Muno Wangari Wa Kabera - Aciari Redsun - Shika Glasi Sam Kinuthia - Muiritu Wa Gikomba Onyi Papa Jey - Migingo Dhi Muigai Njoroge - Muti Utari Matunda Kamaru - Nairobi Iraguo Ki Kamande Wa Kioi - Kapusi Kakwa Salim - Kanyina Kanini Kamande Wa Kioi - Githukia Tombo

It’s possible that these artists and many more don’t actually know that this exists BUT millions of Kenyans are downloading the music and who is benefiting? The Network Operators who charge money based on the data downloads. Infact, at one point, one of the mobile operators even sent SMS advertisements to their subscribers urging them to access content from WapKid.com

As an industry, we are bleeding and desperately in need of government support to stop this organized piracy that is benefiting local and international organization at the expense of our content and therefore killing and local development of content.

As we seek your assistance, we are also doing something on our part. We will be meeting next week Wednesday 3rd October 3pm at Panafric as a music industry (Record labels, Kenya Copyright Board and Music Copyright Society of Kenya) to discuss and work out strategies that can help us especially in creating a clear licensing framework. We will also be announcing an Anti-Piracy Campaign called “iCareforMusic” whose aim is to educate the consumer on the benefits of getting music from licensed partners.

We believe that either the government or the courts can issue an order blocking WAPKID.COM, MP3RAID.COM and any other website offering local music from being accessed and this is fairly easy at the ISP level. Before we take to the court route, we wish to seek a diplomatic route first. If we can stop this organized piracy, investing in a song would be worth it for the Artist, the Record Label and/or the music publisher. And in overall, KRA would collect tax from all of us. Everybody wins! Who knows, it would be even worth having a music studio at Konza City.

Bwana PS, how can you assist our music industry?

Kind regards

Bernard Kioko Chief Executive Officer, Bernsoft

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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.

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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.

-- Regards,

Mark Mwangi

markmwangi.me.ke

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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.

---

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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.

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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.

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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.