The Dutch Considerati think tank reported earlier this week that there is still widespread downloading in the Netherlands. But for an allegedly ‘broad’ piece of research, some key parties were missing – Bits of Freedom, for example. Nor did the study consider fundamental questions about the social or economic value of copyright that lasts for more than a century (when once it only lasted for 15 years), probably because those ordering the report did not want that question asked, let alone answered. There was also no mention of the copyright industry aggressively lobbying behind closed doors where laws are hammered out that our European representatives are not even allowed to see, let alone influence.
The entire debate is reduced to a financial accounting exercise for a particular industry. So all is perfectly OK then, as I have nothing to do with it – I don’t work in that industry – nor indeed do the vast majority of people. The comments on Webwereld.nl quickly show that almost nobody takes such research seriously.
A lawyer from the American RIAA recently added some colour by saying that the public domain blocked free market capitalism. So much honesty can be scary sometimes. But the recent high point of the "e"G8 meeting in Paris was when Sarokozy and a few captains-of-industry gathered to decide what we should be allowed to do with our internet in the future. In response, a few uninvited representatives of civil liberties organisations held their own press conference (video – Lessig sums it up nicely from 7:00 minutes onwards).
These examples make it absolutely clear that the idea of any reasonable discussion with these vested interests is pure fiction. Wise people like Prof. Lawrence Lessig have been trying to start such a discussion for a decade, without success. Writer and activist Cory Doctorow also tries to find a reasonable ‘middle ground’ between the interests of authors, the copyright industry and the rest of society, and himself provides a good example with his DRM-free books. The copyright industry (or “entertainment industry "in the Considerati report) ensures that any such a discussion is absolutely impossible by claiming industry interests and rights are absolute, without providing much of a broader social context. Large parts of the Considerati report read along the lines that providers of bottled mineral water are losing a lot of money because the local municipality washes its buses with tap water.
This week, a UN report declared that uninhibited access to the internet was a human right. This makes the French HAPODI law (whereby, after three alleged transgressions, the citizen is disconnected) a human rights violation. As long as people have internet access, they will download material. If there is anything to be learned from the internet’s last 15 years, it is that repressive measures against making digital copies always fail. Next year there will be yet more storage, wider bandwidths and cheaper processing power. This will only stop if we give up those basic rights as defined by the UN. A digital police state of Stalinist proportions would be needed to prevent copying. It is not insignificant that it is the copyright industry itself that is blocking any real move towards a wide-ranging public discussion on the reform of copyright.
There is a well-known rule for complex projects: Good, Fast, Cheap – choose two. You can get good and fast but it will cost. Good and cheap is possible, but it may require a little patience. All three at once is usually not possible. We can apply a similar formula to the ‘download debate’:
Internet, Privacy, Copyright; Choose Two.
We can have the internet with the current functionality and openness while maintaining the right to privacy and free speech – but maintaining a 20th-century copyright model at the same time is impossible. Or we could give up our privacy and other civil rights to allow one specific industry to earn money in the same old way for a little longer. A last option would be to switch off the internet. But that is not realistic: a country like the Netherlands could not survive a day without the internet, any more than it could survive without electricity.
As a society we’re going through the painful realisation that we can only have two out of the three options. Different vested-interest groups would no doubt make different choices but, like the vast majority of the people, I opt for the internet and privacy (this symbolises a whole range of civil rights). And thus the outcome of the process is already established, assuming we have a somewhat-functioning democracy (ACTA people do sometimes have doubts about this). Lawrence Lessig once joked during a presentation in Berlin that he, like Gorbachev, wanted to reform the system enough so it could be kept in place. Reform does not appear an option, rather a non-violent revolution is likely to happen.
Like any social change (the abolition of slavery, universal suffrage), this is also accompanied by heated debates, occasional legal sabre rattling and periodic propaganda reports from hired guns. But historically that will be just so much background noise. Maybe there will come a time, in the not too distant future, when basic civil rights make a comeback, upheld by the legislature and supported by the law enforcement agencies.
Until then, we citizens must defend our online rights with technical skills. Privacy can be upheld with crypto. To ensure mobile network neutrality, run all your traffic through a VPN . On a day-to-day basis, it is not crazy to suggest that we should all explore the use of privacy tools more thoroughly.
Debate between HAR2009 en BREIN at Hacking at Random
Now The Pirate Bay is outlawed in the Netherlands – although this ban has yet to be tested in Dutch courts – the copyright industry and its tame lobbyists face a difficult choice: should they take their customers to court or not?
This question is crucial to the survival of the lobby groups. Since the cost of fighting downloading is much higher than income, large entertainment companies constantly need convincing that all these indirect lobby costs will at least produce results in the longer term. Nobody wants to think that the funding of lobby groups is ineffective, even if those organisations claim hundreds of site removals annually.
The entrenching of the battle lines is probably good for providers of innovative services such as proxies that can run your Internet traffic through other countries. There are also more complex and smarter things that experienced Internet users can do to avoid detection. Like the process of downloading itself, these will become cheaper and more user-friendly in future, so that eventually everybody can use them.
Furthermore, any attempt to tighten online control will make offline sharing more attractive. With terabyte hard disks and 32-gigabyte microSD cards, the bandwidth in your pocket is probably higher than a cable or DSL connection. Technically not much can be done to stop people sharing bits, and the odious behaviour of the industry itself causes any moral objections to evaporate faster than the Greenland ice sheet.
Individuals are now threatened with prosecutions along the lines of the German model (with a 2000 euro fine). But how many of these cases can the already-overworked Prosecution Service realistically process in a year (thanks to other nonsensical bans on certain recreational pharmaceuticals)? Even making a grossly-inflated estimate of 1000 prosecutions a month, that still only results in 24 million euros’ worth of fines per annum – and obviously that’s only if they win every case, which is highly unlikely.
If the companies in the copyright industry actually take this step and go to legal war with their customers, it will not take long for someone to set up an online cultural solidarity fund. By becoming a contributor to that fund for a couple of euros per month, individuals can rely on specialist legal advice if they become one of the the unfortunate 0.2-0.4% to be sued in any given year. With 1 million members contributing even 2 euros each month, you would quickly have a well-endowed war chest behind you, should you end up in court. Let’s make the copyright lawyers work harder for their putative 24 million.
As the case against Ziggo and XS4ALL demonstrated, copyright lawyers don’t have nearly as much fun if their opponents fight back with a competent legal team. To gamble untold millions on legal costs to gain a paltry 24 million per annum is a risky strategy. Each lost case costs them money, and when you win you gain more members (and thus a larger fund) to take to the next fight. Eventually it would be quite possible that any money remaining in such a fund could be used to create and promote culture. These works would naturally be released under a Creative Commons licence. Of course, the "Bits-Of-Freedom-XS4ALL-Ziggo” Solidarity Fund for Culture and Creativity (just thinking out loud here!) would not allow the creation of more cultural works to be milked through classical copyright.
If such a fund existed to support cultural initiatives transparently and fairly, I would personally like to pay a bit more than 2 euros per month (say 10 euros). Especially when the de facto result is that I can make unlimited downloads – without having to worry that some copyright lawyers in the Netherlands apparently don’t know the difference between copyright infringement and theft (and yet are still employed as lawyers!).
Unlimited, risk-free digital culture for a tenner a month would be enough even for Maecenas – true wealth!
In recent weeks a number of leaked documents has made it crystal clear how a cluster of companies (hereafter referred to as the "copyright industry") warns off any threat to its commercial interests. The copyright industry consists of all those companies whose business models are based on the most extreme neo-liberal interpretation of copyright. In this interpretation, the ability to make money by endlessly re-selling the same piece of intellectual property is considered more important not only than democratic control over the creation of laws, but also than basic civil rights such as the principle of innocent until proven guilty.
Where copyright once began in the 18th century with a period of 14 years, in the 19th and 20th centuries it extended to 70 years after the date of death of the author. It is not entirely clear how copyright 70 years after the death of a creative person can encourage more creativity (the original purpose of copyright). There is no evidence that more culture is created by endless renewal and reinforcement of copyright; indeed, there are many indications that it actively blocks both new creativity and the preservation of existing culture.
First there are the now infamous Anti-Counterfeiting Trade Agreement negotiations. ACTA is an international treaty designed to combat the counterfeiting of branded products and other forms of copyright infringement. Although citizens of participating countries must adhere to this treaty on pain of subsequent fines or worse, they had no say in or even oversight of the treaty’s creation. Companies from the copyright industry appear to have had a free hand in developing the content of ACTA. Citizens and their elected representatives were excluded and nobody will say why. That hardly creates trust.
Now, in a report to the US government, it appears that the overarching pro-copyright lobbying organization, the International Intellectual Property Association (IIPA), wants to place a number of countries on a special watch list, because the governments of these countries actively promote the use of open source software. The deployment of open source is apparently comparable to copyright infringement, protectionism and terrorism because it threatens the ability of proprietary software companies to make money. The logic of this is so distorted that you have to read it three times to believe that someone in his/her mind could write this in 2010. How nice that a Dutch caretaker government promoting open source can simultaneously be in the ‘coalition of the willing’ and the ‘axis of evil’.
The whole course of events raises the question of whether we, as citizens, can still have any rational discussion with these interest groups in the hope of reaching a reasonable consensus. A workable balance between different interests requires that both parties follow certain basic rules eg to respect the democratic state. If, as in this case, lobby groups are so crude as to operate outside the normal frameworks, they leave the other party in the debate no choice but to do the same. That other party is we, the citizens, and we are many. And because we are many, we can innovate more quickly to circumvent any technical or legal barrier. In every public debate on copyright, the burden of proof is always put on citizens who believe that things should be a little less extreme. The copyright industry and its lobbyists have never been to able demonstrate the social utility of the endless tightening of copyright. An industry that desires legal protection for it’s businessmodel, is it not reasonable that it shows society that this protection is of value to society? And if it will not or cannot… why should citizens give credence to the industry and its unilaterally-asserted ‘rights’?
The copyright industry seems headed for a total war against its own clients, with centuries-old civil rights simply set aside in secret negotiations. Obviously honest citizens will first try to change unreasonable laws through the usual democratic channels. However, if these paths are obviously and actively blocked, then they will fall back to civil disobedience. If that does not help, stronger measures may follow. Fortunately in this case civil disobedience is extremely fun to do; download, upload, copy, share, crack, jailbreak and remix, until to all members of the IIPA either wake up to new realities or go bankrupt.
And then we hold a huge party. With great music of course.
"You cannot compete with free" is a commonly held perception of the music industry in its fight against piracy. Piracy must be tackled with harder and heavier penalties. But is ‘free’ what the industry is competing with?
Long before the Apple iTunes Music Store came along, angry consumers were already sharing music online. An adolescent in an attic programmed the Napster service (the precursor to services like Kazaa and Limewire) and demonstrated that there was a market which, along with its billions of revenue, was rejected by the industry. For the consumer it was a logical step: content could be bought in the same way the Internet worked, without international shopping hours. Albums that were never released in the Netherlands could be on your hard disk ten minutes later. Films and series that were not released in the Netherlands could still be viewed immediately.
We see the same principle in the game industry. The main new feature in Sony’s latest PlayStation Portable games is that you can download and save games to the device. Handy: you are no longer dependent on opening hours and can store multiple games so you don’t have to pack a bag full of games to take on holiday. That was possible even with the previous version of the PSP, thanks to piracy.
Supply and demand
Demand from consumers is simple to summarize: Give me what I want when I want, for a reasonable price.The industry response to that consumer demand has been: you’ll buy what you’re given, if we want to give it to you, for a disproportionate price. There is, therefore, clearly a large gap between consumer demand and the supply from the industry. As a consumer you go quickly to find a party that best meets your demand. I’ll give you what you want, when you want it, for free. That is the promise of the ‘pirates’. It makes sense that consumers are more attracted to the illicit market than legal. But it’s more than just prices.
This is the industry’s latest response to the idea of boundless Internet borders:
This is an example of the content from the American MTV website often seen in Europe. The American Broadcasting Missed Hulu.com service remains inaccessible to people outside the U.S. For Europeans, they are expected to grovel around programming their DVD recorders at the time when a national station broadcasts a series once. But that’s not what the modern consumer wants.
The alternative the pirate market offers is that, within a few hours of a US broadcast, the latest episode will be automatically downloaded to your hard drive or iPhone without hassle, so you can watch it whenever and wherever you want. An added bonus is the ad breaks are automatically removed for you. For Americans, the market is also not ideal: it’s great that they can watch a series from the iTunes Store, but the prices are even higher than ordering the DVD box set of the same season – and that’s even before you factor in the physical costs of shipping. As with online music albums, it seems the industry thinks that the consumer will happily pay as much for a few bits and bytes online as they would for a medium that is manufactured, packaged and transported to a shop with its attendant retail storage costs.
It’s evident that consumers are even willing to pay for piracy with sites like AllOfMp3.com – a kind of iTunes Store, where the price for an individual song was about ten cents and the price for an album around two euros. Allofmp3’s customers know that the downloads are not legal but that makes little difference: the service works easily and the price is one the consumer is happy to pay for the product. The AppStore for the iPhone, where most applications cost around 0.80 euros, is a great success: it is a price people are willing to pay. The advantage of “free” is offset by the extra effort it would take to find great music on the internet.
"Killing the industry ‘
By ensuring that CDs could not be copied by only allowing them to work in certain devices, and with stars pleading poverty from the protection of MTV, the industry failed its customers’ needs and ensured a massive exodus.
It’s not piracy that has destroyed the market: it is the industry itself.