Policing Piracy

The Australian government recently announced that it was taking the issue of Internet piracy very seriously. They were, according to reports, considering their own version of a British proposal to require Internet Service Providers to cut off so-called ‘repeat offenders’. People who were suspected of deliberately and repeatedly downloading unauthorised music and video files would have their Internet accounts suspended.

This is a commendable goal. Respect for the creative works of others is at a low ebb these days. We need to alter our cavalier approach to copyright and to properly reward those who spend their time and effort in creating the music, movies, software and other creations we so enjoy.

The advent of the Internet and its increasingly important role in people’s day-to-day lives have caused a fundamental shift in the nature of creativity and sharing. In the past only a small minority of writers and musicians ever saw their works published, and fewer still managed to do so without first being recruited by a major producer.

Anyone wishing to achieve any kind of popularity was at the mercy of those who controlled the means of distribution, who had relationships up and down the supply chain, who could spend the required sums on advertising and marketing. It should come as no surprise, then, that traditional publishing and recording contracts gave the majority of the revenues from such works to the publishers and recording companies. Only a small fraction of that was ever returned to the creative artists themselves.

Copyright law has changed greatly over the years. Its original intent was to provide protection to the author of a creative work, allowing them a short-lived period of monopoly on the reproduction of their opus. It was reasoned that this would ensure that creators had every opportunity to profit from their efforts, in exchange for enriching the market of ideas for generations to come. In the intervening years, publishers and distributors have lobbied successfully for greater and greater protections, including a much longer protection period than originally envisaged.

In the age of printed books and vinyl records, this worked quite well for almost everyone concerned. Reproduction was an expensive and time-consuming process and though some complained about predatory practices in the recording and publishing industries, it was rare that truly great talents went unremarked and unrewarded.

With the advent of cheap home recording equipment, however, things began to change. Friends began to make ‘mix tapes’ for others using their dual-cassette machines. Video cassettes routinely changed hands, allowing a generation of office workers to catch up on their favourite soap operas, and fundamentally changing the power of position in the broadcast schedule.

The music, movie and television industries cried out at the prospect that their artists might be denied revenue. Some countries arranged for a tariff to be placed on the sale of every blank cassette, recordable CD or DVD disk, the proceeds of which would be given back to an industry body, which in turn would share the money among recording artists according to their recent sales ranking. In Canada, for example, publishers and recording companies receive between 80 and 85% of the approximately 28 millions dollars annually collected from this. Performers receive the bulk of the remainder.

Producers and distributors still complain, however, that digital reproduction is far too easy, that the Internet makes it possible for people to share unauthorised copies of their work on an unprecedented scale. But when they announced a campaign of legal attacks on illegal file-sharers in the US, they were roundly castigated for treating their own customers like criminals. More importantly, this campaign of legal intimidation has had little or no effect on the level of file sharing among the general public.

There’s a good reason for this. Digital reproduction is just way too easy, and no technical measure can ever successfully stop it. Copy-protection schemes such as the rather euphemistically named Digital Rights Management are ineffective in their very nature. There is no technical way to stop someone from making copies of anything he likes. In order for a song or a movie to play, it has to be read by the computer. And the moment it is readable, it can be written as well. Copying is inevitable. It’s just that simple.

The major distributors and publishers are being forced to find other means to maintain their historical control on the production and dissemination of creative works. Their popularisation of the word ‘piracy’ has had an unfortunate rebound effect, wherein responsible people resent file copying being equated with rape, pillaging and plunder, and many youth proudly flaunt the title, even to the point of creating International Talk Like a Pirate day, when people are encouraged to speak like characters from a Robert Louis Stephenson potboiler.

The proposed legislation in the UK and its copycat counterpart in Australia would require Internet Service Providers, or ISPs, to suspend or even terminate the account of people suspected to have repeatedly downloaded unauthorised music and video files. Apparently, their experience with the fruitless wave of lawsuits in America has taught the recording industry that they shouldn’t be seen to be policing this area themselves.

The proposed legislation won’t work, unfortunately, for technical, ethical and moral reasons.

First off, trying to put technical limits on what can and cannot be freely copied futile. If a file can be read, it can be copied, and if it can’t be read, it’s useless to anyone. Limiting distribution is also an impossible task. There is absolutely no way to tell whether you’re sharing unauthorised copies of files without watching everything you do on the Internet – and that would be an unwarranted and egregious violation of your privacy.

But even if such a legal precedent were allowed, it would still be trivially easy for someone to hide their activity using encryption technology. They could practice misdirection by transferring the files via shared computers located overseas. Or they could simply disguise the traffic to make it look like they’re downloading from a website or mail server. There’s already one Russian service in existence that is promising exactly that.

There is no technical or legislative solution to the sharing of illegal content. Every measure introduced to curb this kind of activity has acted as nothing more than a temporary inconvenience to those determined to copy files. Worse, it’s made it more difficult for people to take advantage of any number of legitimate uses of file sharing.

A digital copy costs next to nothing to create. And when I give a copy to my friend, I still get to keep the one I’ve got. This means that digital music and video is effectively free to obtain. It is not, of course, free to produce. It’s cheaper than ever it was, but it’s still a long way from free.

This represents a tremendous threat to those who have traditionally controlled the production and distribution of creative works. It also provides a revolutionary opportunity to independant artists the world over and to those in traditionally marginal markets. Artists who might only sell a copy or two in any particular record store are realising decent profits by marketing and selling their work to a global audience on the Internet. Many bands are being signed by clubs and promoters based on the support shown by the size of the following on their MySpace websites.

File copying should be encouraged, not punished. At the same time, we need to find ways to recognise the value of every artist’s contribution to society. There’s no easy way to do so, either. Respect can’t be legislated, regulated or applied coercively through threat of litigation. It arises organically, based on a sense of the common good.

People in Vanuatu know more about respect than most. Every important tabu has been preserved as much by the willing compliance of the people as by any overt threat of force. As more and more of Vanuatu’s kastom is captured and stored on computer, we’ll have to work hard to ensure that it continues to be revered and respected by all who view it, no matter how widely it’s shared.