ImperatorFish: Spears Into The Sea

Scott at Imperator Fish has kindly given us permission to syndicate posts from his blog – the original of this post is here

This morning’s New Zealand Herald editorial wades into the Megaupload case, opining that copyright laws need to be respected and enforced.

More disturbing than the global breach of copyright alleged in the charges is the belief among many users of such sites that the net is, or should be, a copyright-free zone.

The ability to share and exchange enjoyable material is one of the most attractive and commonly used features of the internet. Just about everyone joins in the free distribution of something everyday. When we click on a link or forward an email, we seldom pause to wonder whether the originator of the material has a property right.

Common sense should tell everyone the originator needs a copyright to be able to sustain the creation of such material but common sense appears to elude some of the internet’s enthusiasts. They regard pay-walls as an impediment to virtual democracy and a challenge to their technical agility. Yet the wealth we now witness at Coatesville suggests they are not evading all tolls on their traffic.

It may be argued that sites such as Megaupload provide a service that any originator of material could provide. The issue may be the price they can charge if they face none of the costs of original creation. It seems internet users are happy to send movies, music and other works they possess to a “cyberlocker” for faster transmission to their friends. Once the cyberlocker has the material it can be made universally available for a small fee.

As the home of Hollywood, popular music and indeed, the world’s leading software creators, the United States has more “intellectual property” to defend than most places. But countries such as ours should be unequivocal in their support of efforts to police global copyright.

Internet breaches should not be confused with parallel importing, which this country permits. Parallel importing is made possible when suppliers discriminate between countries and charge some a lower rate.

The internet is an instant global supply; it cannot discriminate between national markets.

The internet needs to protect intellectual property somehow. Unauthorised distributors of underpriced work can prosper only at the expense, and eventual death, of their golden goose.

I usually try to steer clear of the debate over copyright and its future. Because in my day job I deal with a range of people in the IP world, from creators and exploiters to potential infringers, I have the benefit of seeing the debate from a number of different perspectives.

However, the Herald’s analysis strikes me as too simplistic. it doesn’t take a genius to work out that with the increasing prevalence of digital technologies in our daily lives, traditional copyright protection models have become outdated. Is the answer really just to enforce the existing laws more aggressively and expect people to stop infringing?

The rise of the internet, and the ease with which electronic material can be replicated and shared, make it more difficult for owners of content to assert and enforce copyright. How does a content owner effectively enforce their rights when thousands of people can copy that content with just the click of a button?

In the pre-internet age, the potential for mass distribution of infringing material was limited, and most copying was on a small scale. Large-scale infringers were fewer, and the traditional models of enforcement (cease and desist letters, injunctions, damages etc) were often effective in dealing to the problem.

But in today’s filesharing age, illegal content can be downloaded in an instant. Hundreds of thousands, if not millions, of people are happily sharing content created by others, in a way that violates copyright laws.

Responses to the challenge created by mass filesharing have been varied. Some industry groups argue that the law is the law, copyright infringement is theft, and people need to simply stop the illegal copying and distribution of other people’s content. At the other end of the spectrum are those who believe that everything should be available for free on the internet. In between are those who are happy with some form of copyright protection for creators and copyright owners, but think current copyright laws are outdated and overly restrictive.

Irrespective of where people stand, what seems clear is that mass copyright infringement will not go away soon. The Megaupload crackdown may look like a big deal, but such enforcement actions alone are unlikely to reduce the scale of the infringement problem. The actions taken by US authorities look more like Canute commanding the tides to halt; or the Roman emperor Caligula’s war against Poseidon, when he marched his army to the beach and commanded his men to throw spears into the sea.

What’s the answer? I have no idea. If I knew how to solve the copyright dilemma I’d be the richest person in New Zealand. However, it seems that a lot of people who infringe do so because the content they want is not available at a price they are prepared to pay. A lot of people have expressed frustration at not being able to access their favourite TV shows, because the official sites often prohibit downloading from particular countries or regions. In other cases users are prepared to pay something for the material, but believe the price being charged is too high. In such cases it could be argued that the biggest problem lies with traditional distribution models simply failing to adapt to meet consumer expectations.

None of this is an effort to excuse what is in the end illegal behaviour, nor is it an attack on traditional forms of enforcement. I should make it clear that I have no issue with individuals or corporations wanting to enforce their rights in content. But if copyright owners want to reduce the volume of infringements taking place, they must also understand the reasons why people choose to illegally download content. It is not enough just to enforce existing laws.

If people will continue to smoke or drive too fast, despite the very real and proven dangers to their well-being, should we really be surprised that people ignore the calls not to illegally fileshare? Especially when the technology to do so is readily available, when the chances of infringers being caught are small, and when the actual harm caused by an infringing act is difficult to quantify.

The enforcement of existing copyright laws alone will not hold back the rising tide of filesharing. The Herald’s editorial offers nothing useful to the copyright debate.