This is an article I recently wrote for the transmitNOW blog.
Over the last year or so, I noticed a worrying trend among corporate decision makers – as well as legislators around the world – who are trying to monitor internet traffic in order to prohibit unlicensed usage of copyrighted material (also referred to as ‘piracy’). The part that concerns me most is the fact that not more people are outraged about this potential threat to our freedom of information.
Needless to say, digital files and connected computers have changed the economy around creative content and continues to do so. Companies and individuals that monetize media and entertainment content are all affected by the changes of distribution, consumption and discovery that come with digital technologies. Many of those organisations have reacted defensively to those new developments and have not fully embraced new technologies to try and develop new business models.
File sharing is often seen as one of the biggest reasons for declining revenues and there have been various strategies to stop people from sharing digital content via the internet; legal action against music downloaders has been a widely popular method with disastrous PR consequences for the RIAA and its member labels. Threats of the legal repercussion are often used in the movie business, too (“Warning: the unauthorized reproduction or distribution of this copyrighted..”).
More recently (and potentially because of the ineffectiveness of the methods above) we have seen the trend where content owners, or their representatives, attempt to monitor internet traffic of individuals to see if any unlicensed content is being shared. One popular variation is that there should not be any legal action; instead, internet connection may be compromised after a certain amount of ‘offenses’. This variation has been discussed in Ireland (but was not blocked by the High Court) and was implemented in France. It has been widely discussed within the music industry.
In a letter to Google, various music industry organisations encouraged “ISPs and other intermediaries to take measures to deter unlawful activity”. While they have not been more specific what those measures could be, it is obvious that the industry is looking at the internet providers to take more responsibility in this matter. As a side note, the fact that those music industry organisations compared copyright infringement to child pornography in this letter is not only out of context in this discussion, but distasteful and misleading. I believe ‘disgusting’ was the term someone used in a conversation with me some weeks ago.
Unfortunately, there is a broad lack of understanding what monitoring internet traffic means for us: content accessed through the net is highly sensitive and personal, and privacy has to be guaranteed at all times in a society that praises freedom of information as one of the main pillars of democracy. While this sounds exaggerated, it is now that we all have to agree to a important principle: do we give digital communication and information the same status as we give towards more traditional counterparts?
Imagine a law, which would allow (or even force) your mailman to open all your letters and packages to see if there is any copyright infringing material sent to you, being passed. By the third time you received a pirated copy of ‘Brokeback Mountain’ you will not receive any more letters. Needless to say that this would be unconstitutional in most Western countries. Even opening a letter without the recipients permission is a crime in many countries.
In this context, Cory Doctorow has recently warned of “embedding control, surveillance and censorship into the very fabric of the information society’s infrastructure” and refers to the French HADOPI “three strikes” rule: “they’re sending out 10,000 legal threats a week now, and have promised 150,000 a week in short order. After three unsubstantiated accusations of infringement, your whole family is disconnected from the internet – from work, education, civic engagement, distant relatives, health information, community.”
There are two other big concerns I have with monitoring internet traffic to combat file sharing:
1. Often it is unclear to the consumer that files downloaded, or shared, are unlicensed. With the amount of free files on the net it’s easy to end up with content that has not been cleared with the rights-owners. Granted, common sense often helps navigation through those issues, especially for more popular content (eg. downloading all albums by ‘The Beatles’ for free on a Chinese website has probably not been signed off by EMI). But there are countless sources for amazing free independent music such as mp3 blogs and it’s often not clear what the rights situation is on those sites.
2. It seems that execution of any three-strikes policy is currently in the hand of the rights owner as well as the ISPs. I have not yet seen an independent agency that would set up a policy and deal with disputes. Giving the accusers the right to police themselves leaves far too much room for mistakes and even misuse.
To be clear: we need to deal with, and combat, illegal activity on the internet. And if this means having to wire-tap internet connections (of course with a court order) in order to prevent crimes then I’m fully supportive. The net should not be a law-free space; but a ‘guilty until innocent’ approach is not only limiting my civil liberties but also not practical in the process of building new business models for creative industries.