Friday, 29 April 2011

The Ministry of Truth - A reality? Propaganda from the copyright advocates

When you were at school it was probably not uncommon to see (or participate in) an exchange something like this:
Teacher:   What were you thinking of? Why did you do it?
Child:       Well, John did it first.
Teacher:   And if John stuck his hand in a fire I suppose you’d copy him?
As adults it’s plain to see that, actually, the teacher’s argument is pretty baseless. The childhood acts of throwing acorns / squirting the water fountain  / putting pencil sharpenings down a fellow pupils shirt are entirely incomparable with an act of self harm likely to result in hospitalisation.  

The inspiration for Orwell's 'Ministry of Truth' -
London's Senate House
Credit: ruben i
None-the-less it would appear that certain pro-copyright advocates are happy to employ similarly ill-founded analogies. Mix in some simple deceit and some PR manoeuvring and you create a heady mix of misinformational propaganda, and if you say something often enough some people will start to believe it’s true.

In the past the heavyweight ‘copyright compliance’ organisations were keen to utilise their finances and legal firepower to attempt to overwhelm those firms, organisations and individuals that operated in a manner that they felt was contrary to their aims. In recent years it would seem that those that feel they are acting legally (while perhaps not in alignment with the wishes of the pro-copyright groups) are more inclined to defend their position.

Technology news sites now frequently carry stories of David vs. Goliath stories where a copyright trade body has been forced to drop a case against a person who it transpires was acting legally. Such cases naturally generate much adverse publicity for the pro-copyright groups, particularly when it may be revealed that they have not acted entirely professionally or honourably, or have indulged in practices of dubious legality in attempting to build a case.

Increasingly often then, in the light of the lack of a legal standing against many of their staunchest adversaries, it seems that copyright advocates are now favouring propaganda as a way to achieve their objectives.

In the past week or so no less than three examples have come to my attention of materials put out by pro-copyright advocates; every one of them is ridiculous.

James Gannon, a lawyer based in Toronto with “a fervent interest in intellectual property,” wrote what he no-doubt thought was a very witty and wry blog post in which he declares:
“I was wrong. The fight against illegal copying is one that cannot be won. I can no longer deny the simple truth that it is ultimately futile to try to create artificial scarcities in what would otherwise be non-scarce goods. The digital revolution has allowed us to copy and share media for free and we should not let our antiquated laws stop us from enjoying these incredible technologies. It is time to fully embrace the digital revolution.”
What might then have gone to be an insightful article instead attempted to draw parallels between the hypothetical use by an individual of file-sharing technologies and his announced ‘intention’ to counterfeit $1 million in Canadian dollars.

Let’s look at a comparison between a legitimately obtained Canadian $20 bill and a music file legitimately purchased from

Canadian $20 bill
Digital content*
It can be returned at any time for the same face value as when I obtained it
I can loan it to a friend
If it becomes damaged it is still usable and can be replaced free of charge
It’s up to me how I use it

Contains information that identifies when I obtained it, the transaction details, the name of the supplier and part of my email address
If I want to get rid of the original I can sell it on to anyone for the face value
It is readily and legitimately obtainable in most developed countries

(* Dave Grusin ‘History Lesson’)

The two are as comparable as Rebecca Black and Aretha Franklin. The fact that it is possible to make a copy of each is as far as it goes. Forgery of currency is very obviously not outlawed with the primary intent of protecting the interests of ‘content creators’ (the artists that design bank notes), or ‘copyright owners’ (the Bank of Canada); there’s a rather larger reason that monetary counterfeiting is forbidden. The same cannot be said of copyright.

Oh, out of interest, James’ blog post includes a photograph of a press printing currency. The illustration is a Reuters photograph, uncredited and apparently used without licence. It’s a wonder that James hasn’t been lifting $20 bills from the wallets of Reuters photographers; perhaps he has, who knows.

So, rattling on…. (with apologies for the rather long post but it’s a necessary consequence of these people publishing so much idiocy in such a short period of time)

Exhibit number 2 is a video unveiled on World Intellectual Property Day by the department of the United States Immigration and Customs Enforcement (ICE) purporting to be a ‘Public Service Announcement’. It was linked on a number of domains that the department had seized as part of its (legally doubtful) “Operation In Our Sites” campaign.

The video shows an actor offering ‘free movies’ to actors in the role of passers-by. Upon expressing interest the ‘public’ are told by the man offering the DVDs of the caveat, “if you take these movies, this nice woman right here, loses her job.” He goes on to ‘explain’ that, “these are illegally downloaded movies, and because of that, people like her, are losing their jobs.” One passer-by questions if it’s “that literal,” another asks “if I take this, she loses her job?” and the man responds “that’s right; it’s real”. A man that opts to takes some DVD’s despite the serious implications that have been made clear to him is asked “You have no soul?” and told, “You’re what’s wrong with everything.”

Here are some thoughts:

How does a lady lose her job (evidently as a boom mike operator) by the man with the DVDs giving her the ‘illegally’ downloaded copies?

There is at least a fair chance that the lady passer-by had never seen the film in question and had never intended to, let alone to buy the DVD. The scenario presented in the ‘public service announcement’ takes as it as a given fact that the lady had fully intended to purchase on DVD the films that she was given by the man, thus depriving the film studios of such income that the employment of the sound recordist was no longer tenable.

The flawed 'one download = one lost sale' logic is a claim that the content industries state they don’t rely on. Geoff Taylor, the CEO of the UK’s BPI said late last year:

“Sometimes it’s put against us that we treat all those illegal downloads as if they’re a lost sale. We don’t.”
This video goes one stage even beyond claiming that every download (which people would have had to seek out) equates to a lost sale. It now claims that even if you were given a DVD you hadn't asked for, that equates to a lost sale, which is plainly nonsense.

If a person had the money, desire and inclination to purchase a DVD, but simply did not, and instead chose to obtain the film via peer-to-peer filesharing or some unauthorised and unlawful means, and never went on the buy the DVD, that might legitimately be counted as a lost sale.

It cannot count as a lost sale where:
  • The person never had any prior interest in obtaining the content.
  • The person does not have the monetary resources to pay for a legitimate copy of the content.
  • For some other reason the person would never have purchased the DVD even if a torrent, or other means of obtaining the content, were unavailable.
It is clear that a very large quality of copyright protected content is downloaded unlawfully. I don’t think anyone could dispute that. To conclude that as a direct result of this the industry would be forced to make a large number of lady sound recordists any others in the profession redundant is na├»ve. There is no trustworthy evidence to support the position that unlawful filesharing via the internet has led to any net loss in the incomes of the creative content industries. Here are a couple of reasons why:
  1. The dissemination (by any means) of creative content inevitably means that a greater audience is aware of it, and it will reach a larger number of appreciative consumers. That will result in an increased number of legitimate purchases. This is precisely why the music industry spends a good deal of money in employing ‘pluggers’ who work to have the works of their artists played on radio stations. To fail to acknowledge that the unlawful dissemination of creative content results in purchases which would not otherwise have been made is either a deliberate omission or else a demonstration of cultivated naivety.
  2. Year-on-year the creative content industries, despite global recession, achieve increased profits. Quite simply the claims of ‘lost revenue’ don’t hold water. If a lady sound recordist loses her job, it’s not because of a loss of income; perhaps it’s the bloated salaries of executives or excessive expenditure on groundless lawsuits or immoral lobbying activity.
And to finish, on to the video by Shawn Goldberg, ‘The Idea Thief,’ again promoted as a ‘public service announcement,’ which somehow equates downloading with depriving a person of their own thoughts.

There’s very little that needs to be said about this. A five year old could spot the lack of anaology. If I unlawfully download a copy of ET does that leave Spielberg unable to think for himself? Perhaps too many people downloaded that Paris Hilton sex tape.

The film was originally posted by Goldberg to Vimeo under (ironically) a Creative Commons licence. Comments were disabled on the upload apart from those from Goldberg’s personal contacts (he has 30). It's a day since he added it and there are just two comments. The first, from the only person to have ‘liked’ the video remarks, “Well made, but... really?” Comment enough perhaps, but the second person to give feedback was a little more explicit about the shortcomings of the short film:
“Piracy is not theft. The difference is that when you steal something, it's gone. When you copy something, it's still there. But of course, the big companies refuse to accept reality and [because of] that they are going down.”
I’m not pro-piracy but equally I can recognise that that the copyright laws are stupidly outdated and that the creative industries are fighting a losing battle. The sooner that they realise that and address the fact, the better. At the moment they seem to be intent to rely upon their outmoded business models and continue to produce this nonsense propaganda. Does it really fool anyone?

Wednesday, 20 April 2011

Two key reasons why the Digital Economy Act is a chocolate teapot

#1 An IP address is not a person

It doesn't seem to matter how many times this very obvious truth is stated, the media industry lobbyists, the more ignorant of the politicians and now, alarmingly, some of the more naive members of the judiciary seem not to be able to process it correctly and take it on board.

It's not as if there aren't any lessons to learn from. ACS:Law stands out as a glaring example of the level of failure (thus far achieved) that hung itself on the 'IP address = subscriber' premise. The more enlightened of the judiciary (that's a hat tip to HHJ Colin Birss of the Patent's County Court) recognise "the fact that an IP address does not identify an infringer at all but only an internet connection which is capable of being shared by many people," but today's judgment in the Digital Economy Act judicial review contains some alarming phrases. At the risk of upsetting the gentleman Mr Justice Parker appears not to be quite so well informed - perhaps because his court offices have not received tearful telephone calls from those wrongly accused of filesharing, such as Birss has.

A couple of the outstanding flaws in the judgment:
"When the ISP sends a CIR to a subscriber, it is not "monitoring" any information. It is simply reporting to the subscriber that, according to information received from another person, the subscriber has infringed the rights of a copyright owner. Similarly, when the ISP sends a CIL to a copyright owner, it is not "monitoring" any information. It is simply reporting to the copyright owner that, according to information held by the ISP, a particular subscriber, identified through the IP address or addresses, has infringed the owner's rights on a number of occasions (to be specified in the code)." (para. 116; my emaphasis)
"Under the DEA, on the other hand, the copyright owner will routinely and systematically receive CILs that, in practically every case, will accurately identify the subscriber/infringer and the extent of copyright infringement." (para. 228; my emphasis) 
It would perhaps be unkind to wish upon the architects of the Digital Economy Act, the rights holders' organised lobbyists and Mr Justice Parker that members of their direct families might receive incorrect accusations of copyright infringment, but if that is what it takes before they realise that an IP address ≠ an infringer (in fact, it doesn't even necessarily relate to a subscriber), then so be it. It was their decision after all; it's not as though they weren't told.

#2 Filesharers adapt

There are already so many ways that the measures set up in the Digital Economy Act can be circumvented by those that wish to pirate. All the DEA will do, once the provisions kick-in, is alienate the customers of the ISPs (and, in practical terms, for the purposes of discussing lost revenue, that's the same customers as of the content producers and the rights holders).

While it may not be arcane knowledge, terminology such as 'cyber lockers', 'seed boxes' and VPNs are not currently everyday terminology to the layman. They may soon be. As could have been anticipated by anyone with an ounce of foresight (not those that drafted the DEA then), filesharing will simply disappear underground. Everyone will do doing it but it will no longer be on the radar. And once you've forced individuals to identify themselves as filesharers you've created a self-fullfilling prophecy in those people. If someone signs up to a VPN you can be certain that they'll want 'value for money' from it; they'll torrent more than they ever did before.

People will get wise, and educated pirates are far more 'dangerous' to the creative industries than casual downloads by bored teens keen to get the latest album ASAP. There are already online very accessible 'shopping lists' as to how the DEA can be bypassed.

People that want to pirate won't be stopped, and they won't be identified. All that will be left for the provisions of the Act to 'notify' will be grannies with hacked wifi, public providers and those suffering the annoyance of wrongful accusations caused by the creative industries' flawed monitoring or ISPs data mishaps.

It's been estimated that the provisions of the Act will cost £500 million (intended to prevent an alleged loss of £200 million* by the creative industries). That's a whole lot of money for a whole lot of uneconomic aggravation.

(*In fact it's since become known that P2P filesharing accounts for only 37% of this online copyright infringement. Return on investment: Not. Good. Economic. Sense.)

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