You’ve probably heard about #SOPA by now (The Stop Online Piracy Act). Rosie Siman wrote a terrific post on #SOPA on the 23rd of December that outlines some of the critical elements of this initiative. This piece of legislation – while intended to help protect companies and Internet users alike – has some serious implications on our freedom as netizens, including the possibility that any one of us could be prosecuted for distributing material we may likely not have known was illegally uploaded or downloaded. More important, it seems that the real challenge lies with the fact that there isn’t any consensus on what the problem set actually is. Below are some considerations and reactions from the WWTID crew — please, by all means, weigh in, this affects you! Additionally, we highly recommend you watch the above talk by Cory Doctorow on, “The Coming War of General Computation.”
What actually constitutes an illegal download or illegally shared material?
[Gunther]: An anti-piracy legislator or lobbyist will tell you that any action or material that doesn’t adhere to copyright law is illegal. Funny thing is, Harvard Law professor Lawrence Lessig has long maintained that copyright law hasn’t changed in the last 200 years. Considering that the Internet has grown by leaps and bounds in the last 20 years, we’re in a real pickle, because any good lawyer will tell you that digital copyright is largely unenforceable. Just look at the calamity the music and film industries continue to experience.
[Len]: I googled this exact question and examined the first 5 results to get more clarification on the subject. I was left far more confused than before. Some might argue that clear information about what actually constitutes as illegal downloading is available, but the act of downloading certain things simply hasn’t been something we’ve inherently known to be wrong. It’s not clearly breaking a commandment, or a deadly sin, or something that our parents taught us not to do. There are people who have made interpretations of relatively ancients laws to apply to new times but because such large portions of society don’t know or care about these rulings, adoption remains flimsy.
[Siobhan]: In addition, TorrentFreak has helpfully just released stats on the most pirated films, games, and tv shows of 2011. The numbers are quite indicative of our society’s feelings on the matter:
What’s the difference between piracy and digital rights management?
[Gunther]: This is an open question with a number of moving parts (targets, really). Given that I’ve been doing a fair amount of work in the piracy space (government and studio initiatives), my take is that piracy is the act of bypassing a creative source in the interest of augmenting and/or sharing material (read: it’s not really about ownership… How can it be?). Digital rights management is far more transactional; basically, DRM entails a process whereby material is encrypted, encoded, purchased and then managed through select distribution channels such as iTunes or console-based platforms like DVD or BluRay. The big disconnect in the research I’ve done points to the notion that “pirates” can’t be digitally managed because the associative behaviors fall well beyond copyright law. This is a cultural issue tied to our notions of ownership, creativity and the right to distribute.
[Len]: I’ve never understood why online downloading has been labeled piracy. Traditionally, pirates would board business or government ships, steal their goods, and sometimes kill the crew. In other words, one entity’s possessions were being taken away and going to a new entity. In the act of downloading media online, you’re not taking merchandise, you’re copying the 1s and 0s that compose the digital manifestation of the song, movie, image, etc. Now one can certainly argue that downloading means stealing the future potential profit those entities could earn, but do we really want to go down the path of debating the opportunity cost of different kinds of merchandise or service? Where would that stop? Taking this metaphor further, does it make sense to slap an ID on anything that is sold so that no matter how many hands exchange it or own it, the original owner can make it stop working? Is that (DRM) something that seems good to a healthy trickle-down economy?
[Siobhan]: I think the question needs repositioning in terms of the system it reflects. Thinking the future of DRM - redigi.com is a really interesting initiative – reselling music files so that artists and labels receive ‘generous payments.’ The platform was developed by an MIT prof (though I don’t think that’s noted on the site), so I’m assuming that the legal ramifications have had a thorough consideration. Also, Valve’s strategy to circumvent piracy in Russia was to offer a vastly better platform for service and access to games. What’s the level of their success? CEO Gabe Newman reported in fall 2011 that “Russia now outside of Germany is our largest continental European market”.
What do we do about all the material that is “remixed” and shared between Internet users?
[Gunther]: This is tough one because I would argue that remix culture is what makes the Internet expressive, artistic and generative. Do I think people should blindly rip off media creators and (re)use their material as they please? No. But I do think that creators should provide people with material that they can remix and share, sort of in a “freemium” capacity; in other words, people are offered versions or iterations of material with which they can use, remix and share. The democratization of Internet production and distribution strongly implies that we should constantly challenge our notions of ownership, even if means that as creators we might make compromises that we are not all that comfortable with. Birthing ideas is never easy, nor should it be — that is beauty of creation.
[Len]: I LOVE the concept of remix culture and I want it to thrive. So much creativity comes out of curation, filtering, and rebuilding. Some smart folks like Faris Yakob argue that “Genius Steals” which implies that everything to some degree is just a concept taken from elsewhere whether it’s directly from one place, or combinatorial as Maria Popova likes to say. Now when it comes to people creating based on subtle and not so obvious help from other creators, it is, and will always remain an unenforceable and in my opinion, delightful wild-wild-west. When it comes to material that is obviously pulled from another place, I propose we set a standard percentage of sharing. Essentially we set a number, say 25%, and that serves as the maximum amount of the total piece of media that can be used by another individual who doesn’t own it. This might mean 25% of a song, a film clip, or the pixels in a photo. There are thousands of ways to cut this obviously, but it’s a start, and a concept that I think would focus our attention on creative remixing that brings attention back to the original creator, and less on unauthorized duplication which ends in a lose-lose scenario.
[Siobhan]: In the area of remix, I would like to side with Doctorow – digital should be free though I would add AND credited and simultaneously I see a host of case/medium specific instances I would find problematic if I was the source of original content. The creative reuse of text (allusion/adaption) is really different from reusing photos and film clips and really problematic when actors are ‘remixed.’ How would anyone creating a Sad Keanu fare under SOPA? Asking creators to share ‘freemium’ material will also be a challenge as in the artistic sphere adaptation/remixing is life’s blood and what’s reworked reflects the creative impulse of the repurposer/remixer. The idea that “genius steals,” which I agree with, traces neatly back to Oscar Wilde, then T.S. Eliot & how many in between before Faris Yakob? I’m going to disagree with Len on the idea of percentage though- as a criteria of percentage is a quantitative and not qualitative measure. The whole genre of genius trailer recuts would be verboten. Or what if you created a spoiler site and posted the climactic moments of your top list of movies as an homage to well-made films? And each clip was 5% or less? Actually, I like that idea…what’s the online equivalent of caveat emptor? If you think of the language of copyright, though, I love the phrasing of works being ‘released’ into the public domain – makes it sound as if works that were previously under copywrite are being let out into the wild. Shades of Darwinian survival looming…
Is preservation of DNS a solution to the problem, or are we dealing with something much bigger, like “open source management”?
[Gunther]: The DNS debate is really interesting because it’s basically an open phone book of IP addresses – addresses, mind you, that take on the qualities of private and shared IP. Think about it: You may own your web site, but the address it sits on (the real estate) arguably belongs to the network (“network” being the people). There’s a certain self- and collective responsibility to this that simply can’t be ignored, and the reality is that we haven’t created open standards for what that responsibility even looks like, or how it should be managed. The Big Data and personal identity considerations are enormous, and if you look at how hacker groups like Anonymous have developed their own ethos - because they’ve felt they’ve had to – the vulnerabilities to our ecosystem as a whole quickly reveal themselves.
[Len]: The simple answer is no. For every form of management that is developed in regards to the internet, ten things are created to allow people around it. I don’t believe that we have the infrastructure or technology to manage the internet without just completely shutting it down. I advocate encouraging good behavior and steering the masses to making the best decision for everyone, not try to squash a weed that will always grow back stronger in other places. There will always be those in society who break the rules, I’m not in favor of potentially harming the majority to stop the tiny minority.
[Siobhan]: This seems to be a topical approach rather than looking to the root cause, ie. you have a cold sore & you apply some creme rather than minimizing the amino acid that triggers the virus. I don’t mean to characterize piracy as a pathogen, rather think of it as an organic behaviour that has very specific triggers, most significantly, delayed availability in legal online providers & cost that require a systemic reconceptualization of how to make legal content available to audiences (see PWC’s How Consumers are changing the way they watch, rent and buy movies 2011). Given the ease with which my kids’ & their peers find content online, this next-gen has already defined their engagement with the net as flow bypassing constraints. And there seem to be numerous creative solutions to DNS blocking in the works already, with browser add-ons such as Firefox’s DeSopa and The Pirate Bay Dancing and the idea of distributed DNS.
Who should be leading privacy reformation?
[Gunther]: I’ve always felt that while the government is here to protect us, it is our reciprocal duty to protect it. If many of our highest ranking officials in government are digitally illiterate (this is a known fact), then it’s the citizenry that needs to step up, work with corporations and drive the imperatives that create solid legislation. It also means that we need to be flexible in amending legislation as we see changes evolve in the marketplace. This must be a collective and well-informed effort led by folks who have a deep history in online business and culture, alongside of leading edge innovators in IP reform. And of course, social media is a great means to leverage the voice of the people in this process.
[Len]: I lean towards the Laissez-Faire approach when it comes to the internet. In other words, that means WE need to be leading the reformation, not the people who largely, and self-admittedly don’t understand how the internet works. If I had to encourage a few specific folks to speak up though, it would be the artists. The singers, the movie-makers, the digital producers, and anyone else who has THEIR work being disseminated on the web. I’m tired of hearing from middle-men who profit from the aforementioned group and are scared of losing their value as middle-men. I want our more creative fellow humans to pioneer the best methods for protecting their work, and giving their fans the best value. See Louis C.K.’s latest for a great example.
[Siobhan]: Given that artists now have alternatives to existing industry distribution methods and can use online platforms to distribute their content on their own terms, any future regulatory system needs to recognize the rights of both artists and behavior of the majority of audience members who are willing to pay for content in given windows. Edward Burns has just released The Newlyweds OnDemand & judging by the tweets, audiences are paying & watching (in the US anyway). And as a flip on how piracy could be viewed, Thomas Mai has a great line that goes something like: “If your film isn’t pirated, what are you doing wrong?”