Pirates, copyright and art

The development of new regulatory standards for copyright in Europe remains an ongoing process. I was recently invited to the European Parliament Committee on Legal Affairs working group on authors’ rights to discuss young peoples’ perspective on digital technologies. The focus of the session was on piracy and extending copyright protection and Internet filtering policies under EU law. I attempted to frame the evolution of copyright in terms of the rising innovations in digital interaction. This article is an extension of that discussion.

Edward Goodman

It is important to first frame copyright. Copyright in economic terms is a monopoly; right holders enjoy exclusivity in distributing their product. No other individual or firm may enjoy profit from reproduction of the product (usually for a specified time period). This is a process of capturing value. Yochai Benkler simplifies the concept in his book, The Wealth of Networks, noting that once an intellectual work is final, a scientist or author or creator need not exert any additional effort for ensuing copies. The cost of further production is in replication and marketing. This can be seen in publishing novels, producing music, and pharmaceutical production.

Digital reproduction alters this process drastically. Copyright is designed for a system where reproductions are closely controlled. Various ‘sharing’ programs allow for Peer-to-Peer (P2P) exchange, the most infamous at this moment is the BitTorrent protocol. The protocol is extremely efficient in transferring large amounts of data over the Internet. Predecessors to this technology, such as Napster and LimeWire, have provided similar services.

A problem that often arises in the debate on Internet piracy is the targeting of platforms. Certainly, BitTorrents allow for the wholesale transfer of a work without proper payment. This is piracy. There is no legal latitude for individuals who engage such behavior. The issue is that BitTorrents are, as previously mentioned, extremely efficient at transferring data and are used for a host of legitimate operations. An outright ban on the protocol would impede commercial and private interaction.

The greater problem exists in the qualification of Internet piracy. Lawrence Lessig, most recently the author of Remix: Making Art and Commerce Thrive in the Hybrid Economy, addresses the issue of ‘read-write’ and ‘read-only’ culture. Media for the past century has been read-only. To listen to a pop song, you purchased the record for a fee or suffered through advertisements on the radio. This is a top-down manner of extracting value from cultural products. The sale of the reproduction or license creates an incentive for further production. Read-write culture manifests itself not in on-demand media, but in the ability to manipulate and recreate. This is commonly seen in mash-ups on platforms like YouTube where copyrighted video and audio are combined to critique, recreate, or simply make others laugh.

This type of activity can be characterized as piracy. Since elements of copyrighted material are used, the use without appropriate compensation may constitute a violation. However, the argument can be made that such remixing constitutes an independent ”good” and that legal enforcement schemes are overly draconian. An exemplar: my younger sister is hosting a video on her Facebook profile of her friends playing hockey in gym class. The video contains portions of a pop song in the background. Should my sister be held accountable for piracy of the song because she hosts the video? Should Facebook? Am I illegally viewing copyrighted content when I access the video? Many right holders, firms, and governments have determined that this is, indeed, an impermissible use of copyrighted material despite mitigating factors such as fair use.

The process of remixing is not a niche activity on the Web. As usership increases, so do the incentives for companies who innovate platforms for sharing. This is evident in the successes of Flickr, Facebook, YouTube, Blogger, as well as a host of others. Recreation is central to the digital economy. The manner by which states intervene in these patterns of exchange will be a determining factor in the future of online creation, production, and consumption. The EU is poised to develop such market policies.

Europe has become the forefront of a technology policy rooted in the protection of commercial interests. Most conspicuous presently is the Pirate Bay trial in Sweden, where the prominent BitTorrent tracker of same name is being prosecuted for violations of Swedish copyright law. But a quieter cousin of such action is being experimented with in several states in the EU. Filtering, a process by which Internet Service Providers can deny access to or restrict content to users, is becoming a prominent component of proposed European IT policy. Different to the so-called great firewalls of China and Australia that largely focus on censorship, the proposed filters rest a great deal of authority in the hands of private entities under the direction of corporations. The climate in Europe has incubated a unique brand of policy making.

The conditions arose due to contrary dynamics in US and EU broadband markets. Over the course of the 00’s, competition in US broadband markets declined drastically. Oligopoly remains the de facto state us the US market. Europe during the same period has seen increased competition in various national markets. A recent report from the European Competitive Telecommunications Association (ECTA) showed broadband connections rose 20% over 2008 to 110 million. The inverse dynamic in competition has led to decentralized policy approaches in Europe.

The US has a relatively limited number of service providers, allowing the Federal Communications Commission to regulate uniformly. The EU is more complex, balancing interests of member states, firms, stakeholders, and the internal market. This creates a sort of patchwork regulation where member states may enact policies free of a supervisory body. This allows for an environment where industry associations and lobbies are granted flexibility in pursuing different filtering policies in the member states. A recent move in France serves as a prime example of policy that overlooks new forms of interaction and creation.

The French Ministry of Culture and Communication’s action regarding the Oliveness Report, Agreement for the development and protection of cultural works and program on new networks, bypasses crucial consumer interests. The filtering policy would allow rights holders to notify Internet Service Providers of copyright violations requiring disconnection of service for those infringing. This process could not only result in the restriction of Internet service for alleged violators, but also the public promulgation of their activities. This process would be free from judicial review. The Electronic Frontier Foundation (EFF) notes that these types of policies are becoming endemic in national laws across Europe. As recently as 4 March 2009, the representative of rights holders in Ireland, the Irish Recorded Music Association, wrote to Irish ISPs demanding they adopt a similar policy banishing users from the Internet if found to be infringing content. As of the writing of this article, YouTube in the UK will end the hosting of music videos all together after negotiations with a similar industry association fell through.

The EU is seeking to harmonize a framework for content control and copyright with the appropriate technological context. The working group at parliament as well as other stakeholders in the dialogue continued to insist that music and motion picture downloading are firstorder concerns in this harmonization. This reflects a relatively short-view in terms of building effective legal structures for future digital exchange. Recording and motion picture industry groups have a great influence in these deliberations, as their products are the most vulnerable. But the shortterm nature of their interests compromises the ability of users to engage in read-write culture.

This does, to an extent, require that we rethink culture. No longer is culture necessarily limited to the box from which it is consumed. Blogging is a seminal phenomenon in the way content is remixed. Most blogs, in one way or another, focus on material found somewhere else online, oftentimes news articles or photos. To provide appropriate sourcing and greater comprehension for the reader, the blog will link the reader to the original. This allows for a sort of mutually beneficial relationship between right holder and remixer. An inverse of this can be seen in web companies like Amazon and Google who exploit user information on purchases or searches to build better recommendations for future users. There is an intuition in the brick-and-mortar economy that this variety of personal information ought be private. However, in digital context, there are understood tradeoffs where costumers and firms may mutually benefit from these interactive dynamics.

These are the sorts of models policy makers should look to when approaching technology policy and content. Creativity and innovation have led to enormous benefit where consumers, producers, and firms are willing to be flexible with notions of privacy and exclusivity. The music industry, I fear, may not be open to such flexibility. The industry regards content protection as a nearly sacred standard and has consistently missed opportunities to capitalize on technological change. The day I spoke at Parliament, WiREd magazine ran a feature on the music industry’s standoff with video game producers regarding licensing fees from music-based games like Guitar Hero. The article notes the willingness of the music industry to give music videos away for free in the 1980 ’s to MTV and Apple’s denial of price control on iTunes as emblematic of the failure to adapt to horizontally integrated (multi-media) models.

Filtering policies put to the wrong ends could seriously damage the way digital markets function. General policy consensus regarding protocols like BitTorrents requires the law to remain ‘platform-neutral’, but leaves industries with few other targets than consumers. The indication that ISPs will be able to target and ban a user from broadband access is unprecedented. The EFF argues that this is a punishment most often reserved for extreme cases of dangerous hacking activity. Content filters (those aimed to blocking offensive content) recently implemented in Australia immediately caused controversy, rendering questionable bans on websites and a drop in the quality of broadband service. It is important that going forward the appropriate tools are used in regulating exchange on the Web.

My presentation and the follow up questions with the working group were more productive than I had anticipated. The working document setting the basis for the meeting included the assertion, both boldfaced and underlined, ‘The nature of copyright must not be allowed to change as a result of technological progress.’ This attitude of inflexibility, I tried to convey, is simply unrealistic. Giving examples of companies such Facebook, Flickr, and others, I highlighted the importance of flexibility to digital markets. The response was positive. The presentation of the diverse ways copyright material is being used online seemed to prompt a deeper variety of interests and concern among the lawmakers. This willingness to look deeper into complicating factors is encouraging. Its unique environment for Web regulation could lead to enormous consumer abuses, but the EU also has a leadership opportunity in developing new commercial standards for information society.

Policy makers should take a new angle on content issues. Instead of granting extension to the already unprecedented exclusivity held by the industry, the EU should aim to lead by writing regulation that embraces the flexibility of contemporary digital models. Acknowledging new dynamics would create opportunities for all stakeholders where reactionary policy crafted from retrograde property law may benefit only some market players. There are no simple solutions for the content industry as technology progresses into more and more interactive forms. What is certain is that they should not be allowed to unfairly leverage government policy to extract value unfairly from consumers. One hopes for leadership from the EU, especially as its global peers seem unwilling or unable to take pragmatic steps toward Internet commerce.

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