Its a real place (part 3 of 5)Posted: February 8, 2012
I mentioned in part one of this series that the RIAA and the MPAA had recently changed their tactics in the conflict against illegal file sharing. They had historically targeted the end user, the consumer who was actually getting something for free, which on the face of it seems reasonable. The truth is that this tactic, even, has proved to be controversial with extensive and powerful legal bodies essentially threatening and hounding teenagers and their families, for something that seems trivial in comparison, the copying of songs.
I, personally, do not think that the approach taken by Hollywood et al was sensible or proportionate. They were targeting regular kids, who had shared music, something all kids should be encouraged to do, and without which the music industry, as it stands now, could not have existed.
It is important to make a distinction between people sharing music, with no cash exchanged between them, and someone setting up a website hosting illegally copied files and asking for payment for access or downloads. There are plenty of existing laws to prosecute those that sell what is essentially counterfeit product.
Anyway, as much as I want today’s kids to be able to do what I did when I was their age, and copy music to enable sharing, I have to acknowledge that some of the conditions have changed.
When I was a teenager, my good friends and I all shared a broad taste in music, but there were still clear specialisms. One friend was a particularly intense Bowie fan, another Led Zeppelin and I decided that I would collect every album Queen ever produced. I also bought some Bowie albums and some Zeppelin albums. But I had copies of everything that all 3 of us owned. Getting 3 blank TDK cassettes in my Christmas stocking was a big deal, that was 6 albums I could copy !
6 albums, incidentally that I didn’t have the money to buy, all my spare cash having already been converted into vinyl as soon as it became available. Back then it seemed to me, there was little to no fear emanating from the content industries about spotty teenagers and pirated music on TDK cassettes.
We sort of knew it was illegal, but weren’t 100% sure. Quite frankly the best way to characterise how I felt about the chance of being caught or busted back then is to think of a 5 or 6 year old trying to grapple with the idea of Father Christmas not existing. There is a conflict, but in truth it’s a ludicrous conflict. The evidence – I’ve never seen Santa, or any evidence of supernatural abilities – versus the desire – but he won’t bring me presents if I don’t believe in him – which often resolves as a decision to keep on believing, just in case, for some time after you know it can’t be true.
So, it was with my fears of getting caught recording the top 40 on a Sunday afternoon. I knew it really was illegal, but it was so ludicrous to think that the police would come looking for me that I carried on as if it were legal anyway. And so did everyone else.
The big difference between then and now, of course, is the difference between my faithful TDK 90 minute audio cassette, and today’s ubiquitous computing, every computer a veritable AAA copying machine.
As much as I couldn’t afford to buy all the vinyl I wanted to, I also couldn’t afford to buy as many audio cassettes as I wanted to. That cost simply wasn’t trivial, whereas to today’s computer user the cost of copying a file is negligible. Once you have a computer well, copy one song, copy a thousand…. either way it isn’t going to hurt you financially.
Anyway, I digress. For whatever reason it is fair to say that today’s content industries are now very interested in stopping all this copying. However they have also discovered that going after the actual downloaders themselves doesn’t seem to work.
And so they have changed tack.
The SOPA and PIPA legislation, ACTA too pretty much and all the similar derivatives across the globe are trying to place controls onto the newly emerging essential carrier infrastructure – ISP’s, search providers and content aggregators – to either police the content on their networks, or censor specific sites, designated by ‘big content’ and without due process, under penalty of law.
This is why it has become important to understand how the internet works. We have an explicit conflict between what the rights holders want, and believe that the rule of law should deliver, and what the technical structure of the internet needs to retain functionality.
We can all, without too much cognitive struggle understand the issues pertaining to copyright infringement, file sharing and piracy. Even though many of the written polemics insist on muddying the waters, using incendiary language to confuse the definitions of theft and copyright infringement, I remain fairly convinced that only a cursory review of the legal definitions (the only ones that count in a legal dispute) is required to see the difference.
But, the same cannot be said of the internet itself, and how it works on a fairly deep technical level. The technology is pervasive, complex and highly variable. The internet is a big old thing, and it keeps changing.
So, why will these law changes be so destructive?
The content companies simply want the essential carriers to be given legal responsibility for the content hosted on their platforms, and hence have to face the penalties of non-compliance. The content industries don’t expect the essential carriers to breach the court orders, they expect them to make sure illegal content can’t be accessed, in order to ensure they don’t breach.
Court orders granted under this legislation could make it illegal for payment processors and ad networks to transact with infringing sites, which is not so destructive, but they can also make it illegal for search engines to link to these sites, or for ISP’s to allow access. All of this managed by a process that puts the onus of proof on the accused site, violating the principle of innocent until proven guilty.
So our first objection to these proposals must therefore be that they will violate principles designed to protect free speech, such as due process and innocence before guilt, let alone the potential for censorship by abuse.
Our second objection is more powerful, and is the technical problems and costs that compliance will cause. Rather sadly, I imagine that it will be these problems that lead to eventual sensible reform, not a principled conformity to the concepts of justice.
Even when people understand and accept the issues of principle many will still ask, why isn’t it reasonable to expect Google to make sure it’s links don’t point at copyrighted material? Or why would holding Facebook, or Tumblr, or WordPress responsible for what it hosts break the internet? On the face of it those sound like reasonable questions.
Well, there is a problem, and it’s the cost of policing all that content. Nothing principled really just business. It’s the same situation faced by Malcolm Mclean and his containers (part 2 of this series). When faced with the sheer scale of modern shipping, the cost of effectively managing a shipping line’s risk, if they were liable for the illegality of their cargoes, would be financially ruinous. The positive contribution provided by the container shipping industry, on a global scale is so valuable that we consider it sensible to ensure that it functions well.
One of the ways we do this is to shield it from the costs of policing the entire global freight industry, of policing not itself, but those that use their services. Now let that sink in a bit. Because it’s the crux of it. That’s a huge task. Modern government’s don’t effectively police 100% of global freight, they don’t even try. And that’s because it’s such a huge job and it would just cost too much. Instead they do what they can with the resources they have and some stuff just keeps on being transported illegally, and we all know and accept that even while border agents try to catch what they can.
But this is is exactly what SOPA and PIPA and all the other derivative legislation is asking us to do to today’s essential carrier infrastructure, the content hosts, the search providers the cloud hosts, social media and blogs. They are asking that the costs of policing what the world does online, is born by the industrial infrastructure that carries those communications. It does rather bring to mind the nervous phrase, ‘please don’t shoot the messenger’.
And that would be the end of the internet.
Either the essential carrier infrastructure stops operating, because its business model collapses, which is the nuclear option, if you like, or we revert, globally, to a time when communication was slow and limited. Speed reduced by autonomous and bespoke, checking mechanisms. Publishing too risky without armies of lawyers. Or at least, larger armies of lawyers.
Still, under current legislation rights holders have a reasonable expectation that the rule of law will be upheld and their rights will be enforced. And although they are proposing bad solutions, they are within perfectly reasonable territories to expect their rights to be enforced.
But when enforcing the well-meant intentions of the law looks set to wreak indescribable damage to essential carrier infrastructure you have to consider the other side of the equation. The question of whether the law, as it stands, is still appropriate, is a very sound question. But so far, we seem to only be looking at the law related to enforcement. There is absolutely no reason at all why we can’t reform the law that gives rise to these property rights instead.
We already have a body of law where rights holders have process by which their content can be protected. DMCA take downs are now common currency and Megaupload stands chained and accused, other digital lockers closing in a rush before the policeman comes for them too.
The content industries are not standing powerless. Neither are they suffering financially. Business is pretty good right now actually thank you. cough cough ahem.
So let’s be really clear here. Something has to go. There is a seemingly irreconcilable conflict between 2 authentic and valued mechanisms of society.
The functions of essential infrastructure need to be protected in some way. If modifying IP rights can achieve that we should explore those options too.