If Free is Illegal, Who's the Pirate?

Intellectual property on the Internet is a complicated topic. However, this month I want to look at comments made by a host of morning news show. A few months ago on Canada AM, this host offered the following comment (as I remember) on music downloading. "It's obvious. Taking something for free is stealing. So music downloading is stealing."

Is it true that there is nothing to discuss? That the statements made by celebrities and companies with a lot of money on the line are unbiased and unquestionable? And are free things on the Internet illegal? Is it unethical to download Linux? Is it stealing to use Google, a free public service? Or is Google stealing the titles off the pages that it indexes because it didn't pay the page owners?

Does "piracy" mean the same thing that it did 20 years ago?

Today a confusing set of laws dictate the use of the Internet. Video is treated differently than audio. Audio is treated differently than written documents. Software is treated differently yet again. Sometimes they are bundled together. Different countries have different laws. The U.S. Digital Millennium Copyright Act (DMCA), an attempt to update American law for the Internet, is widely regarded as a failure. The legal swamp is enough to make some not want to touch the Internet at all.

So what's the deal with the law, ethics and the Internet? I'm not a legal expert but let's take a look at the issue of copyright in the modern age.

The Canadian government created a billion-dollar gun registry which forces collectors and hobbyists to fill out complex and detailed information for legitimate firearms. Most crimes involving guns in Canada use illegal firearms smuggled into the country from places like the United States. So the gun registry gives precise and detailed information of people who are, probably, not suspects in any crime. It gives the illusion of making Canada a safer place while doing little to prevent violence.

Exiting the theater after watching "Harry Potter and the Order of the Phoenix", a sign announced that camcorders were forbidden in the theater. Most copies of copyrighted movies for download on the Internet come from post-production houses or other movie professionals. The sign threatened and insulted the theater-going public who paid good money to see a film. The sign lobbed threats at the paying customers while doing little to prevent movie downloads.

The gun registry and threatening signs in movie theaters may be useful to stop an occasional crime but they are certainly aren't focused on the key criminals.

In a recent column, I wrote about how some companies spend money on collection agencies while others spend money on customer service. ("Good Customer Service, Good Business", Lone Coder). A guy I knew used to work for a collection agency. One day he was told by his boss that he was fired, even though he had collected more money than any other agent. "We're a collection agency, " he was told. "We're not here to collect money because the people we're sent after don't have any. We're here to present a tough act representing the companies that employ us. We're here to give the appearance of collecting money, not to actually collect it."

There are times when companies keep up appearances instead of keeping up profits. Such companies make ambiguous stands on Internet downloads, threaten the paying customers (who are easy to locate) while allowing downloads that give costless promotion and improve sales. So it's not clear if downloads are really harming the companies or by how much compared to a company's own efforts to shoot itself in the foot ("BigChampagne is Watching You", Wired 11.10).

It is easy to track and threaten legitimate customers. Technology once promised the paperless office: less stress, less papers to fill out and shorter work days (Paperless Office, Wikipedia). Instead, computers brought with them the ability to do compile more raw data with ever-increasing storage capacity. Businesses track more data than was possible than ever before, resulting in increased stress, more data management and more legal battles. (It was a digital vicious circle where companies, afraid of lawsuits, collect more and more useless information. This, in turn, opened up more opportunity for lawsuits.)

Before the Internet, most day-to-day conversations were by phone or speaking directly to some one. For issues like defamation, the law developed separate rules for handling "slander" (spoken defamation) or "libel" (written defamation). Writing was often used by the press, law and businesses. It was a more formal and more permanent way of communication. With email and text messaging as forms of written communication tracked by computers, the average person is now subjected to laws that were designed primarily for trained professionals, formal contracts or mass publications by companies. Now companies can use computers and these laws to monitor, track and fire people because of their daily conversations ("Fired for Sending E-mail", CBS).

The changes brought by modern computers and the Internet have altered daily life, but the laws designed to protect the little guy have not.

When a song is played on radio, there are many people involved: the singer, the songwriter, the recording studio, the radio station, and so forth. Who gets royalties when a song is played on the radio? The songwriter. By convention, the singer or group doesn't receive any money. Does this mean that radio stations are stealing from the singer? Or when a singer gets paid for album sales but the songwriter doesn't by convention, does that mean the singer is stealing from the songwriter? ("Some Like It Hot", Wired 12.03).

The performing artist does get paid: through contracts, through live performances, through album sales. However, the computer age means that albums are becoming obsolete: the cost of copying and distributing data is, for all practical purposes, zero. Artists have a reason to be concerned about the changing face of music and the impact on their earnings but they're making money. The idea that popular singers are living on welfare because their live concerts don't keep food on the table is pretty ridiculous.

There's no reason why users have to pay for music downloads anyway--Google makes money even though no user has to pay to search the Internet. There are effective revenue models for songwriters and singers provided the music industry adjusts their traditional royalty streams to work in the Internet age instead of fighting over distribution tracking and control. Take Canada's case: every recordable CD sold in Canada contains a royalty that goes towards the Canadian music industry. Perhaps not an ideal solution (since it effective legitimizes music downloads and taxes people like Linux users) but it is a revenue stream for the digital age.

Remember "I Crave TV", Canada's first Internet television broadcaster? I Crave TV could have pushed Canada into the forefront of Internet technology, improving bandwidth and making Canada the world leader in Internet television. Instead, even though they broke no laws, the company was sued out of existence by Canadian TV networks--even TV Ontario. Now you have to settle for the low-quality tidbits that are available for download directly from the individual networks. The networks won the battle for distribution control, and the whole country was plunged into an informational Dark Age, with billions of dollars of opportunities lost forever. (If you think I'm exaggerating, consider Robert X. Cringely's insider assessment of U. S. broadband and video capacity in his column "The $200 Billion Rip-Off: Our broadband future was stolen".)

Again, the laws failed to keep up with modern times. Copyright laws were originally intended to protect poor and individual people from the resourceful and rich who could exploit creative works of others. It wasn't about the right to copy, per se, but the right to copy was a way to protect the little guy when copying and distribution were expensive. It made sense when, say, an author wrote out a book with a pen only to have someone steal the manuscript and use a factory to produce copies of it (such as happened with Mark Twain). With the Internet, copying and distribution have changed hands. Now the copyright laws are being used in reverse: the resourceful and rich are demanding money from the poor and the individual. As I understand it, these anti-theft laws are being used in the opposite way they were intended.

A similar problem is facing Internet radio (Save Net Radio). Most net radio stations are small outfits offering specialty content to a handful of listeners. Many of them provide public service announcements or ads for non-profit groups. By their nature, they are the little guys. In March 2007, the U. S. government raised royalty rates for these small-time stations to several times the normal rate. They effectively did an "I Crave TV" on these small, legitimate Internet businesses to the benefit of large-budget operators and conglomerates.

In May 2007, Sam the Record Man, one of Canada's most famous music store chains, went out of business. "We are making a responsible decision in recognizing the status of the record industry and the increasing impact of technology," said Bobby Sniderman, one of the owners ("Sam the Record Man finally signs off", Toronto Star). Let's face it: music stores are selling 78 RPM records in a CD world. It's not music piracy that killed them but superstores and the technology dinosaur that is the music industry. Where's the widespread audio DVDs and digital cassettes? A person can download high-quality surround sound music but can't buy it in the stores.

In my early days in computers, during the Apple II and the Commodore 64 era, the Internet didn't exist. Files were shared by "sneakernet"--copying files on to floppy disks and distributing them. The ultimate in personal recommendations, this lead to the concept of "shareware"--software that was free for personal use but the authors requested donations to support their work.

Of course, so-called commercial software was distributed and recommended as well. As a programmer, I refused to accept copies of software I hadn't paid for. I didn't want to be a hypocrite and complain if people didn't send in their shareware donations when I was not paying for the software I was using. But is this the same thing as contemporary piracy, or is contemporary piracy another case of laws outdated by technology?

Open source may be able to come up with quality free formats like Ogg Vorbis (.ogg) music files or Theora video files to avoid the licensing fees and other money-making restrictions placed on people by boards for wealthy corporations. But how to modernize the laws, how to fight the propaganda and double-speak, how protect the little guy's right to earn a living, how to fight the fear of losing distribution control...even open source cannot change the hearts of people.

I have to disagree with the Canada AM host's assessment that free is stealing and that there's no debate on this issue. It seems to me that the Internet is a big ocean of possibilities. Individuals try to set sail on that ocean only to be surrounded by big corporations in ships with mighty weapons. Instead of coming up with ways that everybody profits, they threaten individuals while demanding tribute. It's no longer clear who the pirates are. Perhaps the pirates are the ones that demand the tribute.

August 14, 2007