Content Piracy and the war over the future soul of the Internet
With a new UK Communications Bill looming the next episode in the long running debate on Internet content piracy is upon us. What is it about the Internet that so polarises opinions on this issue? There are three key elements that need to inform the debate.
The first element is public perception. It is worth reminding ourselves that in the very early days a huge amount of content was put onto the Internet by academics and others giving their time freely. The first big wave of commercialisation (dot.com era) largely involved giving away stuff free of charge to gain visitor numbers and loyalty…with a vague idea that this loyalty could be turned to profit down the track. Both these early developments set public expectations regarding Internet content – creating a challenging environment for those coming later wanting to charge for content.
Whilst the Content Industry likes to portray Internet piracy as simple common theft (and there is no doubt a significant element of this) it is more complicated. A sub-culture exists on the Internet of Robin Hood technical anarchists dedicated to stealing content from the wicked King John and his robber barons (as they see the content industry) and giving it freely to the poor. The political character of this activity feeds off the wider public perception that expects much Internet content to be free. Some of the heavy handed content piracy regulations has been counter-productive in re-enforcing an image of an industry intent on ripping off consumers. It adds a very vocal layer to the public debate.
The second key element is the pace of innovation that has made the Internet so revolutionary. This has only been possible in the almost regulation free environment of the Internet. The US Government in particular has for many years resisted rushing in to regulate the new medium – fearing that this would kill-off the explosion of innovation taking place. In place of rules or regulations has only been peer pressure…the origin of some of the Internet activism.
The Internet is now experiencing its second bigger wave of commercial on-line activity much more in line with main stream business models. This has led to a political fault line between those who want see the real world of regulation (and more) apply to this more commercially oriented Internet and those that want to preserve the original regulation free climate that has been so powerful in propelling rapid innovation. It is across this fault line that the policy arguments Internet content piracy is now raging.
The third element is the quandary the Content Industry finds itself in. When content is digitalised and put anywhere on the Internet it becomes unduly vulnerability to unauthorised copying and distribution. Added to this “undue vulnerability” are legal jurisdictional complications as the pirated material may well be hosted in one jurisdiction, sign-posted in another and consumed in a third. They would like the Internet transformed into a more secure environment to sell their high value content. Many governments seem to agree and are no doubt influenced by the new jobs and economic activity that the content industry can potentially contribute.
The above analysis covers well known ground but it is worth summarising in support of 5 key principals that are suggested to guide the debate on Internet content piracy :
1. Education around Fair Content Terms
The war against Internet piracy will only be won when the majority of the public believe it to be wrong. Education is therefore far more important than new draconian laws. The key to combating the “Robber Baron” image is for the content industry to ensure that legitimate content is conveniently and widely available at fair prices. This state of affairs needs to be demonstrably in place before governments get sucked into new regulations that otherwise turn out to be unenforceable due to wide public indifference or even hostility.
2. Containment rather than elimination
It would be sad indeed if Governments, under pressure from embattled content owners, were to drive the Internet to take on the character of a Johannesburg suburb, full of fortified gardens, armed guards and only for the rich and privileged. There will always be some level of Content Piracy in the background. This is no different to the bricks and mortar economy where there is always some level of theft going on but it is contained to a manageable level…the price to be paid for the mass of law abiding consumers to be able to enjoy going to the shops. Proportionality is the keyword.
3. Use of the General Law rather than Internet specific law
New laws can have unintended consequences. For this reason it is far better to exhaust the potential of existing laws. In support of this is the fact that it is impossible to mass market pirated material to consumers without also tipping off law enforcement agencies what is going on. The recent arrests in the case of the Megaupload file sharing website amply demonstrates this point. The fact that Internet activists can file share in secret is not something that should be of great concern to regulators (or the content industry) since – by definition – the potential financial loss to the Content owners is correspondingly minuscule.
4. Internet Regulation should not create conflict of functions.
The job of the police and courts is to deal with law breaking. The job of an ISP is to provide public access connections to the Internet. The job of a search engine company is to provide navigation around the Internet. The best outcome for the Internet is for every party to be allowed to reach for excellence in what they do.
This is where the Digital Economy Act got it so wrong in forcing one industry (the ISP’s) to distort their normal business practice to suit the Contents Industry lobby. For example forcing ISP’s to write threatening letters to their own customers on behalf of another industry seems as disproportionate as it is wrong in principal. If there are actions to be taken by ISP’s or Search Engine companies regarding Internet piracy it should come as a result of a case by case Court order from an independent judiciary
5. Balance and Diversity
It is inevitable that the future life and soul of the Internet will be shaped by innovation, market forces and regulation. It is essential to maintain the right balance between these three “makers and shapers” of the future Internet.