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Regulating The Internet

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There’s something about avoiding the inevitable.

If I know something is coming whether I like it or not, I’m the sort of person who would rather stand up and say “Right, let’s get this over with” rather than hope for salvation at the 11th hour. It’s a self-delusional power-grab in a situation beyond our control, but it still makes you feel better afterwards.

In my recent post ‘Spotlight On Spotify’, I described the debate between the ‘free internet’ and ‘the forces of copyright’ as a clash between ‘an unstoppable force’ and ‘an immovable object’. Well, based on recent events, I’d say the ‘unstoppable force’ is slowing down considerably, if not actually grinding to a halt.

And So End The Salad Years
Let’s face it, for the past 20 years or so, it’s all been a bit of a party in cyberspace (yes, I’m reclaiming the term). Dot millionaires have come and gone (and come back again), broadband has given rise to the social internet and video services and an entire generation of downloaders have been at it like little piggies at the digital trough. And those are just the good bits. In the darker corners, spammers have also been spamming, sickos have been up to unspeakable things and off-shore, un-taxed gambling operations have been bankrupting people in their thousands.

Now it appears the forces of evil online have raised their game yet again, with ‘terrorists’ plotting war in chat rooms and now even nation-states are up to no good. Witness the recent accusations that China has been engaging in full-on, state-sponsored digital espionage with something called the Ghost Net [http://www.telegraph.co.uk/news/worldnews/asia/china/5071124/Chinas-global-cyber-espionage-network-GhostNet-penetrates-103-countries.html].

China, of course, is by no means the only government up to this type of behavior, however, I do hope that they are the only one’s so dedicated to the use of cheap labor that they forgot the first rule of espionage (secrecy, right?) and farmed out the entire job out to remote workers. Maybe spying will now follow the path of capitalism and we’ll all start using Chinese e-spies instead of those overpaid morons at the CIA/MI6/FSB etc.

So, the unregulated internet has given rise to some pretty serious issues. I am not denying that people in a ‘free society’ should have the right to do and say what we like online, but don’t our children, public institutions and other vulnerable parts of the social fabric deserve the right to a little protection as well? And shouldn’t copyright owners be given some protection under that safety net? After all, until someone takes on the mammoth task of reforming national and international copyright law, the ‘law is the law’, is it not?

My point is that the right to a completely free and open internet can actively damage other people’s right to experience life, liberty and the pursuit of happiness. In Western Democracy (and judicial tradition) it is generally accepted that when two freedoms or rights find themselves in direct opposition that it is the ‘active right’ which must give way to the ‘passive right’.

Recall the public smoking debate of the 1980s and 90s. Then, protecting the rights of smokers to light up in public was finally proven to be causing active, significant harm to non-smokers. The reverse situation simply didn’t exist because smokers (unlike bar tenders, waitresses and the like) had a choice about where to light up.

So, exit the real world and re-enter the cyberworld. Isn’t giving people the right to an un-regulated internet similar to giving smokers the right to light up in public? I would argue that it is. Protecting kids and copyright owners doesn’t cause active harm, whereas permitting downloading clearly does cause material damages to artists and copyright-dependent industries.

What surprises me most is that activities such as spamming and phishing have not proven enough to drive adequate regulation and control of the internet. Why haven’t banks and other financial institutions truly gone after phishing scams? Why do we let spammers persist (one recent study has argued that spamming creates the equivalent of 3m additional cars driving on our roads). No, for various reasons, the job of forcing accountability has largely befallen the music and film industries.

This is mainly because music has been exposed as the most ‘digitally vulnerable’ among the copyright-dependent industries. Books are not much fun to read on laptops (or Kindles), commercial photos can be water-marked and tracked quite easily and movies take forever to download (until fairly recently). So it’s music that has been grabbing all the headlines about file sharing and the impact it is having on the ability of labels, artists and publishers to make a living from paid content.

There’s a Hole In The Bucket
I respect and admire bodies like the UK’s Internet Watch Foundation, who are nobly working very hard trying to protect our children from digital baddies. I also have a certain level of respect for some of the more family-oriented ISPs, such as AOL, who offer ‘parent friendly’ access controls and packages. But at the end of the day, these are all voluntary measures, and voluntary measures are easily undermined by a few bad apples.

If you have a dripping tap, fix the pipe. Anything else is a waste of time. Sending sternly-worded letters to rampant downloaders proved largely ineffective. Suing young music fans and their parents was a PR disaster.

No, the answer to managing digital copyright is clearly to visit the source of all those (copyrighted) 1s and 0s – the ISPs.

Indeed, it might be practical for all of us at this stage to accept an inevitability: the internet (and access to it) are going to come under increasing control and regulation by governments for legal reasons both criminal and commercial. Whether or not you agree with that is somewhat irrelevant, because it’s going to happen anyway.

The key point is this: the laws and legislation to control and regulate the internet are being formulated and debated as we speak, so now really is ‘last call’ for those who wish to stand up and make every attempt to influence the shape of these regulations. In Sweden it might be too late, in France there’s a slim chance, while America and other territories are still engaged in pitched battles.

Working For The Clampdown
In order to demonstrate that increased control is imminent, I offer the following cases as a starting point. What has happened/happening in these countries will almost certainly become the basis upon which similar laws are affected in many other Western countries, all of whom are tied together in some way via global laws, treaties and trade agreements.

USA
Perhaps nowhere else is the free internet lobby or the rebel mentality as entrenched as here. That being said, nowhere else are the copyright industries so large or so vitally important to the economy

During the election campaign, many downloaders thought President Obama might be their friend. Well, any such thoughts were quickly extinguished once he took office and quickly nominated several RIAA anti-piracy stalwarts to the most senior positions at the Justice Department.

In any case, Obama’s strategy on copyright reform remains blurry, as this article [http://news.cnet.com/8301-13578_3-10228264-38.html?tag=mncol;posts] published on CBS.com points out. In the context of global economic crisis, it is simply not that important to receive a great deal of presidential attention.

As a result of it being the only Superpower left, it seems unlikely that the US will be the ones to innovate in the area of legislative and regulatory control. That job will probably be left to other countries with slightly less on their plate at the moment.

Sweden
What can we say about the home of Pirate Bay, Spotify and the dreaded ‘DarkNets’ (more on these later)? Whatever will go right or wrong will a more regulated internet and copyright protection, you just get the feeling that a lot of the pitched battles will be fought here first.

Sweden just slapped a 1-year jail sentence on the founders of Pirate Bay, along with a £1m fine (the music and movie plaintiffs were requesting £9m). This is the first time the operators of file sharing servers have truly had the book thrown at them. Whether this will be a deterrent anywhere outside of Sweden is anyone’s guess right now.

What we can say, apparently, is that when file sharing sites were shut down in Sweden a few weeks ago, internet traffic in and out of Sweden dropped by a whopping 33% [http://news.bbc.co.uk/1/hi/technology/7978853.stm ] pretty much overnight.

With the Pirate Bay guys looking set to appeal, it seems the story might not yet be over here. In any case, Sweden is a good case in how not to go pillar to post in your approach. Consistency and fairness are the best approaches.

New Zealand
New Zealand has been one of the leaders in establishing legal measures to control the harsher effects of digital copyright infringements by rendering ISPs (under the Copyright Act of 1994) responsible for copyright by forcing them to terminate customer’s access where there has been repeated infringement.

Section 92A of the Act specifically requires ISPs “to adopt and implement a policy that provides for the termination, in appropriate circumstances, of a repeat infringer.” This provision is actually mirrored in section 116AH of the Australian Copyright Act of 1968, which recently received media attention surrounding iiNet.

The New Zealand law requires copyright owners to inform ISPs of infringements, which shifts the policing burden onto the victims, really. The major potential problem with this it allows for a lot of scope in the term “infringement”, and what might constitute reportable breaches from one content owner may differ from another, leading to confusion, particularly among younger users.

Interestingly, they have also begun to address downloaders in the workplace as well whereby content owners can issue letters to the employer stating the observed copyright breaches. If behavior from the commercial internet connect persists, then the telecoms supplier/ISP is required to attribute the breach to the whole organization’s internet account and not the individual employee. To avoid termination, organizations must have an internal policy that addresses copyright infringement, effectively putting people’s jobs at risk where they are caught downloading or sharing from their place of work.

This in part demonstrates the need in many territories to engage in wholesale review of copyright law, and not to merely tinker at the edges. ISPs should have uniform definitions and lists to work from, and the copyright industries should be made to pay for the auditing and policing of these lists, with consumer advocate groups and public auditors gaining full access to their work.

France
Last week, the implementation of Europe’s first “3 Strikes Law” [http://news.bbc.co.uk/1/hi/world/europe/7992262.stm] for downloaders only escaped becoming law only by the skin of its teeth. In the end, it seems it was the fact that ISP subscribers would have been forced to continue to pay their ISP bill even after being cut-off from the service that didn’t sit that well with the French Judiciary.

In any case, President Sarkozy clearly has a hard-on for copyright abusers and I fully expect Gallic legislators to make the tweaks required to this law which will see it successfully re-presented and to become law by the Autumn of this year.

The Way Forward: Common Sense?
Should individuals downloading copyrighted material face jail? Personally, I don’t think so. It smacks of crushing a walnut with a sledge hammer, really. But in lieu of sweeping changes to copyright law, should there be penalties? Yes, I believe there should.

In fact, if I am to believe in the greater Rule of Law upon which most of modern society is based, my hands are actually tied on this. But whatever penalties we decide upon, they should be fair and proportional.

The French approach mentioned above seems to come close in my view, but even it seems a bit harsh, based as it is on “three strikes” protocols that were originally put in place in America in order to deal with major repeat criminals.

I would suggest that there’s a solution for handling downloaders that is based on something we are already very good at managing: the humble driver’s license.

It might not seem obvious, but a ‘demerit points’ approach could be repeated for copyright infringers and offer a more incremental, flexible way forward. Download a few tracks every week, you get a letter and 1 point. Download 50g of content a week, get a letter and 4 points. Accumulate 12 points in a given 12-month period, lose your internet for a year. Stay clean for a 12-month period, points get dropped.

I am sure there are problems with this approach, but it seems to work for the drivers of cars who do have the right to travel from A to B, but not in a way that is so fast it endangers my right to life.

It really is time we brought this common-sense approach to copyright infringement and got on with our lives. It’s inevitable in any case and there really are bigger fish to fry. Take for example the issue of digital Privacy., It seems everyone, including governments, international bodies, advertisers and even social networks are all after exploiting our digital cookie crumb trails in one way or another, and that personally, scares me one hell of a lot more than paying for a few tracks and films.

Spies Like Us?
Will encryption be the next battleground? Practically the same day as the Pirate Bay dudes were thrown in the slammer, Sweden’s first commercially available “Darknet” ISP, Relakks [http://news.bbc.co.uk/1/hi/technology/4798059.stm], was launched.

What Darknets provide are the sort of encryption and masking technology that was historically the sole preserve of spies, cryptographers, mathematicians, people with their fingers on the triggers of nuclear arsenals and, um, Google execs.

Now, even Little Billy can gain access to this technology for 10 bucks a month. I have no idea how you tell what the hell anyone is swapping over one of these connections, and I think the point is that you don’t. And to be honest, with news that European governments [http://news.bbc.co.uk/1/hi/technology/7985339.stm] and advertisers [http://news.bbc.co.uk/1/hi/technology/7988154.stm] are spying on us whether we know it or not, I’m tempted to say that encryption is more of a technology of liberation, especially if the forces of evil begin combining my browsing data with location-based info from the mobile internet:

“There’s McLellan, walking past Mickie D’s…let’s push him a wap voucher for a grease burger. We know he loves the junk food. The pig that he is.”

Has the war on public encryption just begun? Is the WEP Encryption on your WiFi router about the be declared a crime against humanity (and copyright)? Who knows.

Personally, I am more confused about all this than ever.

 

 

Author

  • Wayne Rosso

    Wayne Rosso has worked in music and technology for decades. He has worked with such artists as Aerosmith, Bee Gees, Crosby, Stills & Nash, Public Image LTD., Beach Boys, Phillip Glass, Fkeetwood Mac, Rick James, New Kids on the Block, Slash, Evanescence and scores of others.

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