Technology and copyright collide online

Jesse Hirsh is a broadcaster, researcher and internet consultant based in Toronto. He appears regularly on CBC Newsworld and CBC radio, writes for CBCNews.ca and hosts an interfaith TV show called 3D Dialogue for OMNI/Rogers.

A war over culture is being waged on the internet as the worlds of copyright and technological innovation collide. The outcome of this battle will have an impact not only on how we consume our media and information, but also how the internet as a whole may be governed, regulated, and even segregated.

On one side are lawyers and content companies that seek to extend traditional definitions of copyright and ownership to the internet. On the other are millions of internet users who seek to take advantage of innovations in technology and media to share culture and create a new consumer-centric model of content delivery and production.

While this conflict appears to be taking place in legal and economic arenas, it's actually a battle over language and practice.

Some consider the active downloading and distribution of content online to be theft, arguing that internet users are stealing from legitimate copyright holders.

Others see a more social aspect to the distribution of content online, claiming that all they're doing is sharing their favourite movies, music and TV shows with their friends and fellow internet users.

This social aspect of internet downloading often escapes traditional industry and broadcasting executives who are accustomed to a top-down model in which content is created for, and delivered to, a relatively passive audience willing to tune in to a specific channel at a specific time. In contrast, content on the internet is available at the viewer's convenience, empowering the user to be their own program director, with the genre's name — peer to peer — describing the democratizing effect of this emerging form of content distribution.

Indeed, the early euphoria over peer-to-peer networks came from the fact that you could literally find any TV show, movie or piece of music ever published.

A boom-bust cycle emerged in which a new site or innovative technology would rise, make available vast amounts of copyrighted material, capture public attention and become immensely popular — until finally they were besieged by lawsuits and threats from copyright holders. This caused the vast library of copyright titles to move on to the next new site and start the cycle fresh again. We've seen this happen with Napster, Kazaa, LimeWire, YouTube, and presently Torrent Tracking sites.

In each case we catch a glimpse of a possible new world enabled by technological innovations that are then attacked and, while not defeated, are pushed underground.

New approach needed

The issue here is control, and whether an industry that has been tightly controlled and managed in a top-down manner will succumb to a consumer revolt and allow a more democratic and market-based approach to the creation and distribution of content.

The laws of supply and demand demonstrate that the peer-to-peer file sharing phenomena is an integral part of a changing marketplace that is increasingly empowering consumers at the expense of producers. There is an immense supply of freely available (though copyrighted) material online and an equally immense demand for free content. The two of these factors combine to create the conditions in which the sharing of copyrighted material is rampant and constantly growing.

Which is not to say that market-centric solutions cannot be viable and profitable.

Steve Jobs and Apple, for example, have been remarkably successful at embracing this trend. On the one hand, they have delivered a device that allows people to harness the bounty of available content, while on the other hand creating the iTunes franchise. By offering songs to download for a small but fair price, they've created a safe middle ground in which the technology innovations can reconcile with the concerns of copyright holders.

The iTunes business model is successful in large part because it embraces culture rather than trying to fight it. It helps to meet market demand rather than trying to scare consumers with negative messages and aggressive legal action.

The Motion Picture Association of America (MPAA) and the Recording Industry Association of America (RIAA), in contrast, have taken a particularly hostile and expensive approach to defending the rights of copyright holders and attacking the actions and values of internet consumers. As the vanguard of the pro-copyright, anti-peer to peer movement, the MPAA and RIAA have engaged in all sorts of tactics, ranging from lawsuits to comprehensive public relations campaigns to targeted attacks on competing platforms for content distribution.

Their goal is cultural, in that they're attempting to define and classify internet peer-to-peer file sharing as being illegal and immoral. Yet to achieve this cultural goal, they have primarily used new legislation in the form of the U.S. Digital Millennium Copyright Act (DMCA) as well as litigation in the form of several thousand lawsuits against internet users engaged in high-volume file sharing.

While the vast majority of these lawsuits are settled out of court, with most defendants not able to afford an effective legal defence, one person, Jammie Thomas of Wisconsin, chose to fight back. She lost, with the court finding that she had broken the law and thus owed the record companies damages.

However, that was in the United States and the situation here in Canada is quite different. We do not as yet have updated copyright laws, although the Conservative Government did indicate its intention to table new legislation in the recent Throne Speech.

What we do have are taxes that, in the absence of new legislation, make file sharing essentially legal here in Canada. The Copyright Board of Canada has placed a number of levies on blank CDs, DVDs, flash memory, MP3 players, and now music downloads in order to collect money to compensate Canadian artists for the music/content that is being freely shared on the internet.

This uniquely Canadian solution acknowledges that artists need to be remunerated, but also allows for internet users to freely share.

Dissenting views

Certainly not all creative artists agree with the approach of industry associations like the MPAA and RIAA. The band Radiohead, for example, recently released its latest album online with a pay-what-you-can price tag that encouraged people to freely share their music and return compensation to the artists based upon their satisfaction with the product. Rather than fight their fans, Radiohead is embracing them, and welcoming the way in which their fans choose to consume their music.

Internet users in general are quite galvanized by their newfound sense of consumer power, and many are so politicized that they regard their file sharing as a type of civil disobedience in defiance of a corrupt intellectual property regime.

In the face of this consumer revolt, some television networks are finally overcoming their fear and starting to offer copies of their shows online for free. In most cases, this addresses the reality that consumers want to watch their favourite shows on their own schedule, not necessarily when they first air. Similarly, companies like BitTorrent are offering technology developed by file sharing communities to broadcasters so as to take advantage of the technical efficiencies that said communities have developed when it comes to distributing video online.

Unfortunately, one of the side-effects of this culture war is now that the technology and practice of file sharing is being accepted, the campaign to spin this activity as piracy has also taken root. Even though companies are emerging that are using this technology for entirely legal purposes, internet access providers and cable companies are deliberately filtering and shaping network traffic to penalize users who adopt it.

Explicitly, companies like Comcast in the U.S., as well as Rogers and Shaw in Canada have been accused of tampering with their network traffic, in effect introducing a type of internet segregation that places greater value and access on some services rather than others.

That segregation has led to the call for network neutrality, or rather the equal treatment of all internet traffic. Critics complain that these internet providers are also content companies that are leveraging their control of internet access to prevent competitive distribution models from having the opportunity to legitimately meet consumer demand.

This is where the next battle in this culture war will take place. If the threat of online piracy scares the providers into creating a segregated and heavily regulated internet, then the enemies of copyright will also escalate this war by introducing technology designed to eliminate copyright all together.

An Owner Free Filesystem (OFF), for example, is a type of brightnet that would take online content distribution technology to the next level. A brightnet is a network that allows for total visibility, and in this case, zero responsibility for distribution. Once a file is placed within this system, its origins would be untraceable and it would be instantaneously distributed anywhere on the internet. As a distributed peer-to-peer file system that is effectively anonymous, an OFF would allow any copyright file to be distributed without limit or removal.

The issue is not whether a system like OFF will emerge, but rather when — and how producers and consumers will respond.

The solution, of course, is balance — a moderate approach that sees the needs of all respected and addressed.

Unfortunately, the temptation to embrace the extreme is high, and the threat of continued culture war entirely real. The danger would be, as with all war, that in the zeal to win, all of us will lose.