The Battles Within the War

Originally published in Bandwidth Magazine.

A decade ago Napster was the hot new thing. P2P software was relatively new in the mainstream, and Napster’s simple GUI and massive popularity, combined with the convenience of the service it offered, caused the software to quickly transition from famous to infamous. A handful of lawsuits later the service shut down, only to be reborn in a shiny new pay-per-use incarnation.

Napster was hardly one of a kind. In the years since, numerous other programs have appeared on the internet to offer the same service. With the increased popularity of high speed internet, the amount and types of media being uploaded and downloaded has only increased. Now, in addition to music, larger file types for television shows, movies, and software have joined the mix.

The lawsuits, too, have taken up the biblical directive to increase and multiply. Record companies have targeted downloaders with charges in the range of $20,000 per infraction. While they’ve won or adequately settled the majority of the cases, in the court of public opinion record companies have come out as the decided losers.

Eager to save face while still making up for lost sales, the companies turned on ISPs in the hopes of forcing internet regulation. While implications and implementation are still being discussed by many parties, Australia has made a decisive move that has the potential to set a global precedent: Federal Court Justice Dennis Cowdroy ruled that ISPs were not responsible for whatever content their service made accessible. Additionally, he ordered that the Australian Federation Against Copyright Theft, who brought the case forward on behalf of the film industry, pay the legal bills racked up by the defendant, iiNet, the third largest ISP in Australia.

Debates on intellectual property rights down under are approaching a zenith right now, as within days of the ruling absolving ISPs of responsibility came the news that Australian copyright society The Copyright Agency Limited, an organization that collects royalties on the behalf of authors, spent more on salaries and junkets than on author payouts. While AU$9.1 million of collected monies went to authors, AU$9.4 million went to staff expenses.

Countries all over the world are facing the necessary revision of copyright in lieu of digital technology. Spain intends to fast-track proceedings against websites offering illegally downloadable entertainment if they do not shut down upon receiving notice. Britain is debating a Digital Economy Bill that will force ISPs to police their customers, though at a prohibitive estimated implementation cost of £500 million, and a monthly internet service price hike that would force 40,000 lower-income families to disconnect. British ISP Virgin intends to use deep packet inspection to monitor customer usage, though this has raised some privacy concerns.

France has proposed implementing a tax not on ISPs but rather on internet portals such as Google. The idea is placing pressure on an already tense relationship between France and Google after a judge ordered the search giant to pay almost USD$500,000 to publisher La Martinière last month. The lawsuit was filed over allegations of unauthorized reproduction of copyrighted works by Google Books.

The lawsuit was not the first incident of rebellion against Google’s intentions. Their plan to create a digital library has been met with heavy opposition by authors who want to ensure control over and compensation for their works. In the final days of 2009 science-fiction author Ursula K. Le Guin resigned from the US Authors Guild over their “deal with the devil”. While months earlier 50 authors in the guild had declared their support of Google, Le Guin has since gathered 300 signatures from persons opposed.

The “deal with the devil” was a settlement recently reached by Google and the US Authors Guild that will pay authors a mere $60 per book for the right to scan and post their works. Harvard law professor Lawrence Lessig called the settlement a “path to insanity” in a lengthy article in The New Republic in which he also urged for a drastic revision of copyright in general.

Stanford University has offered up its substantial library to the service, but the US Department of Justice is still unsure where to fall, expressing concern over the potential for stifled competition and undermined copyright laws.

What’s curious is that Google has taken such a blase attitude regarding copyright in the instance of books, and yet continues to take a hard line in the case of music. Last month Google came under heavy fire for deleting six popular music blogs operated through its Blogger and Blogspot services. The blogs’ maintainers were notified following the deletion that they had received complaints regarding copyright violations.

The notices alleged violations of the Digital Millennium Copyright Act, but Bill Lipold, owner of the deleted blog I Rock Cleveland cited four similar notices within the past year against tracks he was legally entitled to post. In fact, he informed Google that all of his posts over the last two years included only songs which were “provided by a promotional company, came directly from the record label, or came directly from the artist”.

The incident quickly spread across the internet, earning its own Twitter hashtag, #Musicblogocide2010. Google has failed to explain itself, simply stating that when multiple complaints are lodged without any “indication that the offending content is being used in an authorized manner” the blog will be removed. What is perhaps of greatest concern is the “guilty until proven innocent” mentality this policy presents.

It is also interesting to note that Google has managed to expand its Books project by applying a degree of pressure to the publishing industry, while at the same time experiencing similar pressure from Record Companies who continually find new ways to curtail illegal downloading.

Universal Music Group and EMI have both signed agreements with FreeAllMusic.com, a service which offers an ad-sponsered download model whereby users are allowed five downloads per week in exchange for watching a video advertisement. Some of the brands currently participating are Coca-Cola, Warner Bros., Zappos, Lionsgate, and LG.

A recent study by Global Web Index has noted that users who spend more than four hours a day online are more likely to download music, television shows, and films via illegal or free legal methods, as opposed to users who spend less than two hours a day online who are more likely to pay for legal files.

Interestingly, illegally downloading television shows and films is increasingly motivated not by money but rather by the desire for instant access. Online streaming sites such as Hulu often have a delay between televised airing and online availability. Analysts suggest that timely accessibility should be considered as important as pricing in the war against piracy.

These results were in line with previous studies, including one by The Leading Question which found that illegal downloading, especially among teenagers, is deterred by accessible streaming services. American ISP Comcast has taken these data to heart and is currently developing a streaming service in conjunction with labels and publishers, preferring a method of positive reinforcement as opposed to Verizon’s tactic of sending out letters of warning and, in a few cases, cutting off service.

Finding a new business model is especially pertinent now, both for companies watching their falling profit margins and consumers who may soon be held to a stricter legal standard. The seventh round of ACTA negotiations recently wrapped up in Guadalajara, Mexico. The Anti-Counterfitting Trade Agreement had been colloquially dubbed the Secret Copyright Treaty, as all details of the negotiations are being kept quiet.

While government officials have defended the secrecy, stating that disclosure isn’t necessary for trade agreements, University of Ottawa professor Michael Geist is on the side of transparency arguing that “there would be broad support for [an anti-counterfeiting treaty]. This is a copyright treaty.” Geist is joined by numerous MPs and public interest groups in this assertion.

The treaty covers numerous anti-consumer provisions, including permitting ISPs to cut off customers over so much as an allegation of sharing copyrighted files, authorizing border guards to seize devices containing illegal content, introducing criminal sanctions for infringements, and limiting interoperability of illegal content across multiple devices.

ACTA isn’t the only agency pushing for change. The US government’s “Special 301” list has counted Canada among the world’s worst copyright offenders over such issues as the right of libraries to format-shift items as new technology emerges, CAN$500 caps on damages for infringement, and the permissibility of DRM circumvention.

The allegations are all true, but fail to take into account the many ways in which Canadian copyright is in fact superior to its American counterpart, such as better royalty payments to artists, monetized educational usage, and a lower threshold of originality which provides greater protection to creators. Some analysts fear that raising Canada’s weaker points to match American standards will then result in American’s raising their weaker points to match ours, thus creating an unending cycle of one-upmanship that would threaten to make international copyright law unnecessarily restrictive.

Amusingly, Special 301 also condemned Indonesia for promoting open source models as an alternative to copyright violation. According to the report, such promotion “fails to build respect for intellectual property rights and also limits the ability of government or public-sector customers (e.g., State-owned enterprise) to choose the best solutions.”

What was once a thorn in the side of the music industry has become a battle across media types, legal systems, and international agreements. A recent study of BitTorrent showed that 46% of downloaded file types were non-pornographic movies and shows, 14% games and software, 14% pornography, 10% music, and 1% books and guides (14% could not be classified).

Year end reports list Star Trek as the most pirated film of 2009, and Heroes as the equivalent television show. In fact, Heroes was one of two shows that was actually downloaded more than it was watched (6,580,000 downloads against 5,900,000 television viewers), and the relative lack of viewership was a factor in NBC’s recent discussions of canceling the show.

Clearly the music industry is no longer alone in its fight against illegal downloading. What remains to be seen is how, or even if, this multitude of interconnected issues will be resolved. However, with such breadth and scope, it is unlikely that an answer will be found any time soon.

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