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Music & Movie Industry Misplace Morality

28-Mar-05 02:58 pm EDT Leave a comment Go to comments

It started with the RIAA (Recording Industry Association of America) in the US some years back, culminating with successful litigation against Napster, making little sense to many involved with the technology industry along the way: approaching the wanton copying of music and movies online by suing everybody.

OK, sure, it’s copyrighted material in most cases and the producers / artists have a right to profit from it.  But having worked as a web/software developer now for nearly 10 years – I’ve always been puzzled by the music/movie industry’s approach.  Initially, I puzzled over how in God’s name they’d finally "bust" those sharing .mp3’s online, which appeared to be their first kick at the can.  Of course, they never really did.  Even more surprising was a recent story here in Canada that suggested laws would change to more closely mirror those in the US.  In all likelihood, this was the result of pressure from the industry here too.  And legal action was taken against a select number of file swappers in the US last year, which prompted debate in both countries over whether such litigation was right.

If spreading fear to file swappers by suing them was the idea behind lawsuits against swappers in the US, it certainly didn’t work.  Peer-to-peer (P2P) technology still flourishes in the US.  Indeed, suing the manufacturers of certain kinds of P2P software and distribution websites has proven the most effective means of control.  Napster was such a beast.  Of course, this has merely resulted in points of distribution moving offshore or other places where the prevailing law doesn’t protect copyright online as effectively.  And there are signs P2P technology itself may be adapting in an attempt to avoid breeching legal protections altogether, which would make sense if you’re a software developer who wants to see his/her software used.  Indeed, such adaptations are stirring debate over just how far the government should or even can go into stopping file swapping online.  For example the Canadian government’s statement of intent points to enforcement by requiring Internet Service Providers (ISPs) to log network traffic of customers under court order.

I’m no expert on Internet law, but I’m intrigued by the Canadian proposal as a programmer – using logs of network traffic to determine what a user downloads.  If we look at two popular file swapping technologies, BitTorrent and Internet Relay Chat (IRC), there are some challenges at the ISP’s end to provide effective evidence that would, in my opinion, constitute "beyond reasonable doubt".  First off, Internet traffic uses a communications protocol called TCP/IP that can potentially broadcast and receive information on tens of thousands of different ports at any time.  Some of these ports follow industry standards that might suggest a certain type of use, but not necessarily prove a specific form of use in and of itself.  Yet software theoretically could be written to scan ports where "heavy" use occurs and build evidence (perhaps by recompiling data transmitted to a specific Internet user on, say, a specific port) proving that copyrighted material was involved.  Even then, the accused would still have to be proven to be the user in question.  My own home network, for example, isn’t used by just me.  It’s often used by friends, whom I may be reluctant to squeal on.  The bill isn’t in my name either.  Network addresses on my network are rotated, and shared by different computers and different times.  And even if none of these obstacles existed in building a  case against a specific user – BitTorrent doesn’t use a specific port to share files online; ports are assigned dynamically for individual blocks of data (never mind intact files) making it difficult for an ISP to know merely through logging what was actually sent to a user.

These technical obstacles are, in fact, hard to overcome and combined with a number of other practical and legal issues – I’m not sure there’s any effective way to stop P2P-style (BitTorrent) file swapping online.  True, Napster was a form of P2P swapping technology, but it used a central server to process data making it possible to subpoena logs that showed who downloaded what.  That’s not true for all P2P software and begs the question whether it’s not an invasion of privacy to monitor all forms of Internet communication in the name of protecting copyright infringement.  It’s even a question as to how one would be able to justify getting a subpoena in the first place if logging isn’t going to be a reliable means of gaining convictions.  Would high bandwidth (Internet use) logged over a given time period justify one’s Internet hookup being bugged?

The music/movie industry should have reasonably sound technology consultants advising it by now and surely they know this stuff.  The Internet’s very nature is going to make it extremely difficult to eliminate copyright infringement, and perhaps the goal here is to minimize the damage.  But it’s never going to go away and unless measures violating notions of a free and democratic society are imposed, I don’t see how they’ll ever stop it using logs and lawsuits alone.  The music/movie industry would be best-advised to drop alienating its customers and opt to use the technology to make a profit legitimately – what it should have done in the first place.  Options are starting to appear on the Internet, but they could do a lot more and a lot better than worrying about how to win court battles.

No matter how the lawsuits go – they’ll have to adapt to this reality in order to live with the Internet.

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Terry Glavin

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