If geography is a learned concept, then there is a stage in our development when it simply gets taken for granted. The phrase, “the shop is at the end of the street” no longer needs to be accompanied by a syntax explaining the inherent geography. We shouldn’t continue to be surprised by how quickly 5,6, and 7 year olds pick up some of the more subtle aspects of the modern computing experience.
It’s all just geography, after all. Youtube is a real place.
Sometimes though the comfort of vibrant metaphors encourages mental laziness, preventing or impairing analysis and planning for our shared digital futures.
Take torrents, for example, or cyberlockers such as Megaupload, or even, something like Google itself. It’s clear that these type of sites can be, and often are, part of the process that connects people with copyrighted material that they have not paid for. That sounds a lot like aiding and abetting theft, to a lot of people.
But the thing is, it isn’t aiding and abetting theft. Mostly because the end of line crime, the 3rd party crime, isn’t theft, its copyright infringement. Its different, in actuality and in law. These aren’t even particularly subtle differences actually, but it’s still easy to see why people equate it with theft.
The differences are important, not because they change the moral imperative of piracy (whether they do or not, and what morality they change are highly subjective topics of course), but because the difference between the two is relevant, with high specificity, to the technology at the heart of the debate, the internet itself.
That’s the problem, copying versus permanent deprival and the internet is nothing if it isn’t a massive copying machine.
This is the crux of it. The functionality we now have, via modern general purpose computing and the internet, is never going to degrade naturally, copying will only get cheaper and cheaper.
The legal distinction between permanent deprival, or theft, and copying works of intellectual property through illegal reproduction (performance or facsimile) is carefully crafted to benefit the society and culture at large, recognising the need to incentivise further creativity and derivative work. It just isn’t as straightforward as we would like it to be, we can’t simply replace our definitions “because it feels like theft”, these are important and complex issues and we should take care to get our response to them right.
Still, regardless of futuristic ideals, there is the problem of today’s lost profits (which I will take at face value for now). It still feels, to many, like theft.
“I should have £100, but I don’t, even though there is £100 of my product on peoples’ ipods”
The RIAA and MPAA et al have spent the last few years targeting teenagers and their families, the actual downloaders themselves, with limited success (although success in this endeavour is difficult to measure. Do you go for the overall health of the industry – “piracy is killing us !” , or the number of reported acts of piracy themselves?).
The latest fuss over SOPA, the slower burn underpinning of ACTA, the widely held suspicion that SOPA and PIPA will reappear tacked onto the forthcoming internet pornography act later in the year, are all elements of a change in strategy, and a significant one. It looks as though the targets have been switched, and they are now looking to influence the structure of the internet itself, targeting supply chain infrastructure with obligatory monitor and liability legislation.
This is all very dangerous. Dangerous, because getting it wrong involves breaking the internet. Getting it wrong destroys hard won and essential personal and societal freedoms.
The rather impressive rallying of protest against the SOPA legislation in the US will need to be repeated many times. I am sure it will be just one fight among many more.
It’s no longer OK to NOT know how the internet works.
Actually, let’s say that again.
It’s no longer OK to NOT know how the internet works
There are 2 ideas in that statement.
Firstly it’s an acknowledgement that some of the people attempting to structure our world through this legislation don’t understand the landscape of their businesses models, and subsequently are misunderstanding the impact of their proposals.
Secondly, and much more importantly, it’s an acknowledgement that we the people have been complicit in this situation. It acknowledges that unless we all try to understand how the internet works then we cannot possibly, through our democratic institutions (or otherwise, frankly), make informed choices about some of the most essential and urgent issues facing 21st century society.
I don’t read that banner and hope it was written for the executives at the MPAA to see. I hope it was written for everyone to see.
It’s no longer OK to NOT know how the internet works
Once again though, it simply isn’t that easy. On the face of it, even, this seems like a rather contradictory demand. In the name of freedom it obligates everyone to become expert in some rather arcane and complex matters. It is clearly not reasonable to expect all adults to attain specific levels of expertise, in anything, quite frankly. We cannot legislate knowledge.
Moreover, we never have expected our citizens to hold an obligation to learn and update a widespread and accurate knowledge of the great issues of the day. There is no reason to expect that tradition to change.
In times past we relied on the great Statesmen (capital S intended) to do right by us and make informed and intelligent decisions based around an expectation that the government worked specifically for the good of the citizenry, actively and directly. Issues were generally simpler and the reach of the law was more limited. There was space to hide. Hollywood itself was, after all, located quite specifically to escape the legal enforcement of Edison’s technology patents for film making and distribution. A great deal of human innovation, it turns out, has challenged, and broken, legalised monopolies
So, let’s simplify the issues where we can. Let’s try to make it easier to understand. But more fundamentally let’s find ways to replace the trust we used to have in Statesmen, with trust in new forces (maybe some of the newly forming online communities, communities that are going to have power whether we want them to or not), let’s use the technology of the day to bring transparency to the process not censure.
These are big formative issues, so much more than a simple commercial conflict. Copyright and patent law, and how they change in the coming years will be one of the fundamental pillars of the new economic ordering of society. Property protection (intellectual or otherwise) is and always has been a fundamental aspect of the rule of law that underpins stable economies.
What is different today is that the incumbent and desired methods of enforcement will break todays dominant technology. Somethings gotta give.
This series of posts will look at the intersection of the relevant law and the relevant technology with regard to the copyright / content paradigm issue currently playing out in actuality.
The 2nd post will look at what we can learn from Malcolm Mclean and containerisation, the 3rd will argue for exclusive protections for essential carrier infrastructure, the 4th post will examine the economic paradox, while the 5th one will argue for and make suggestions for copyright reform.
Let’s posit a view of the world where there is indeed an active and driven power elite that colludes and competes within itself, and makes decisions that define societies and influences or controls populations en masse. It’s not so far-fetched, actually, because quite frankly there is little in that description that does not apply to the communist party that currently runs China.
So, in this posit imagine that there is a power elite that looks to control the western world, with much the same spheres of influence as the Chinese communists have today. With slow time frames for reference, years not months, decades not years, imagine that this pre-internet western society was controlled by several power elites, that competed and colluded, through movement of capital, political influence, resource ownership and militarised populations.
In this posit, control is not something that only exists under authoritarian regimes, but nonetheless in this western society it is somewhat subtle, certainly not overt. Large swathes of the population would not just be unaware but would deny the truth even if confronted by evidence. So, please consider this posited western society as it discovers and embraces and develops the internet. It’s much harder to imagine the same level of control being exercised, when citizens can use the internet to commune and educate in new more powerful ways, undiminished by proximity, empowered by unrivalled access.
In China, TODAY, when faced with this exact challenge they have simply censored the internet. There is information that is not available on any of the key portals / platforms / sites / search engines. It’s not a perfect filter of course, but it is pretty good. The masses by and large do not see things the government doesn’t want them to see.
They are partly able to do this, that is to manage the propaganda transition to the internet, because their population has never been under a deep illusion as to the nature of their leadership, there is a deficit of expectation for the rights that we, in the west, take for granted. Moreover, partly, they can do this (that is they have been able to maintain a society, even though basic freedoms are missing) because they had even more effective control of the pre-internet media, than the western world ever had. This aggregation of power is not challenged by emerging capitalist and/or technology industries, because in China, today, the new startups and the established players that want to win big, have learnt that playing along with the government is a more effective route than challenging it. If you like it has become a business decision. The alternative is digital oblivion.
As a contrast, in the USA today there are conflicts between industries, where the government can be seen more as a weather vane, an enabler, a vessel of effect, the tool that must be controlled, rather than the controlling authority. These relationships have blurred though, as the lines between government and business have moved, with the lobby system legitimising corporate access to law making.
Right now, for example, there is a conflict between the Hollywood / entertainment industry and the tech industry represented by Silicon Valley over the copyright and IP protection legislation currently passing through the American legislature, SOPA and PIPA.
It seems that the role of government, in this case, is to choose between the two lobbies. A choice that has been made, on a bipartisan basis it should be noted, already and in favour of the entertainment industry.
Clay Shirky told us that “Institutions will try to preserve the problem to which they are the solution”. Applying the logic of that assertion to the problem faced by the recording, movie and publishing industries, we can start to see their support of SOPA as a last stand to preserve value from the problems to which they have been the solution. Broadly these problems are talent, production, distribution and promotion.
With regard to the music industry specifically, modern computing has decentralised production, so it is no longer necessary to have access to million pound studio facilities to produce commercial grade recordings.
The internet totally solves the problem that is currently serviced by legions of trucking networks, warehouses and retailers, which is distribution.
Because production and distribution can be done by almost anyone with the skills (which are actually quite widespread) and for ever more attractive costs, talent no longer needs to be as reliant on the industry infrastructure as it has been. Nonetheless there is still a decent amount of affiliation between established talent and the music industry. Lots of infrastructure is still being used, it’s just becoming harder to maintain margin.
Promotion, of course, is similarly challenged by the enhanced communications offered by the internet, particularly in the realms of one to many communication platforms such as those proliferating under the banner of social networking. Potentially one of the big casualties of SOPA.
In short it’s all going to hell in a hand-basket and quite frankly I can’t see how the existing players can win. It becomes a transition of power via the transition of essential infrastructure. It used to be retailers and publishers and warehouses and haulage. It will become SEARCH and SOCIAL NETWORKING and SOCIAL DISTRIBUTION and legions of individually owned transactional portals and/or aggregated portal facilities. Getting product to large audiences will still need industrial levels of investment, infrastructure and influence. It is a transition of capital. Power to the people will be how it feels, at least for a while, but eventually these new leaders will be challenged and the cycle will begin again.
IP protection, copyright enforcement, piracy and the subsequent monetisation models (or rather, lack of monetisation models) are the battleground because copyright is the legal heart of the old monetisation model, and it enables the owners of said copyrights to keep making money from old copyable assets today, and new assets long into the future.
Computers and the internet have made it very easy to copy and distribute these assets. The pillars of the business (Talent, production, distribution and promotion) are all decentralising at different rates and nothing has been done to recognise the one essential incorrigible fact of the modern problem with IP law – with an almost zero cost of duplication you will not be able to stop it happening. Nothing has been done about that problem, because the solutions to that problem are solved by very different bits of infrastructure. Or, more accurately, there is no solution to that problem, but there are solutions to the monetisation model problem. That is the problem solved by different infrastructure.
There really is a lot at stake, not just the money, but the role of gatekeeper is up for grabs.
Confused in Calcutta presents a nicely optimistic view of what’s going to happen next, juxtaposing the quite ludicrous nature of the legislation with a faith that humanity simply won’t be that stupid. I tend to think he is right with regards to SOPA and PIPA and the various lookalikes popping up all around the world (often at the behest of the US government no less).
However, a talk Cory Doctorow gave last December gives me pause for thought. Doctorow’s position is that the current scrap over copyright is just one round in a bigger fight against the threat to today’s businesses, generated by general purpose computing.
Your laptop and desktop are general purpose computers. You can use them to do anything, providing you have the correct code to run. This is part of their DNA, modern computing is somewhat reliant on this set-up. From the link.
“We don’t know how to build a general-purpose computer that is capable of running any program except for some program that we don’t like, is prohibited by law, or which loses us money. The closest approximation that we have to this is a computer with spyware: a computer on which remote parties set policies without the computer user’s knowledge, or over the objection of the computer’s owner. Digital rights management always converges on malware.”
His hypothesis suggests, quite plausibly, that as computing becomes ever more endemic, more and more industries will become threatened. If you consider that 3D printing will take computing into the production process as well as the information process you can start to see the scope of the challenge. Doctorow goes into more detail, of course, but he makes a simple point, the powers that be will have ever more reasons to want to control our access to general purpose computing and copyright is one of the battles in that war.
If you look at the various business interests that have declared financial support for the SOPA bill though the lobbying process you see some interesting things. There are a large number of businesses that are not in the entertainment sector, or seem overly reliant on copyright for their revenues that are backing SOPA.
Tobacco & Tobacco products, Animal feed & health products, Optical services (glasses & contact lenses), Pharmaceutical manufacturing, Health care products, Personal health care products, Truck/Automotive parts & accessories, Auto repair and the IBEW (Intl Brotherhood of Electrical Workers) amongst others.
Opencongress.org provides the data. It’s quite eye opening, both the who and the how much, particularly when you look at the very short list of interests that are opposed to SOPA.
Communications & Electronics, Computer manufacture & services, Data processing & computer services, Venture capital, Democratic/Liberal, Human Rights, Non-Profits, Non-profit foundations and Education.
And that’s it.
Why is there such wide ranging, bipartisan support for such a poorly structured bill? I can think of 3 possible explanations, but all are speculation.
- Doctorow is right and this is one skirmish in a wider battle affecting many more industries than simply the entertainment sector
- These businesses have a lot invested in the current infrastructure, both the know how (promotional, executional, financial) and the equipment itself and wish to maintain the status quo
- There is a view that the industrial influence of the media on a global scale has been able to generate value for ‘America’ simply through the widespread distribution of innocuous ‘American’ content. To be clear. I am not alleging a conspiracy to push brand America through entertainment content, merely a recognition that America’s leadership in this area has benefited more businesses than just those that make said content.
SOPA really is bad legislation but not because of its goals. On the face of it protecting existing rights granted under licence of law is not actually a choice but an obligation. It’s what we have government for. To create and police the rule of law. So its about the how,not the what. SOPA fails for 2 big reasons.
- It won’t defeat piracy
- It will break the internet
What is required is that we move to the new infrastructures and business models as soon as possible.
This is difficult because it does need business to become less reliant on copyright as a commercial protection. If you can make good money as a live musician, and the best can make a lot of money, then low cost of copy and distribution actually start to work in your favour as advertising for your revenue lines (let alone social pass on with accompanying recommendation),which is live performance. It is a big change, though something like this is needed.
If we can generate a new monetisation model, that enables effective commercial reward to effort / talent ratios, then we can start to de-construct the problems we face when trying to understand why support for SOPA is so strong.
- If Doctorow is right: it’s going to be bloody whichever way you cut it. This is a transition of power and no two ways about it. Effective monetisation will hasten the move to more stable times by hastening the success of new infrastructure industries
- Lazy businesses? They will re-invest if they can see an effective model. Those that don’t will die. This should satisfy those that believe in free markets.
- American hegemony. This is changing. America will never have as much influence in the world as it has now. This is a mirage. Once you show money how to make money it will switch its allegiance. In a heartbeat.
Compulsive ownership is a philosophy of acquisition, come what may, as insurance against … well … come what may
This is the buy it to eat it mentality, on a just in case basis. With CD’s, DVD’s and books an aspect of ownership is the solidity of it. It’s a thing, a something I can touch. MINE. NOT YOURS.
Now we have the cloud
Now we have the access mentality, as well as the philosophy of acquisition
Do we still need to acquire? Can we take always on, to taking on just about the right amount?