Readers of my earlier essays will be somewhat shocked to hear me say that peer-to-peer data distribution systems and their users need to be held to account. While a valuable piece of technology in their own right, they are often used in a manner which is clearly in breach of current copyright law. One could argue, and even lobby as I do myself, that these laws themselves are in breach of freedom of speech and civil liberties, yet we are at present bound by them, sometimes literally in chains. Even the Free Software system adheres completely to US law in its unique licensing of releases. In fact, Free Software, Open Source and Creative Commons advocates such as myself have built our licensing systems, out of necessity if not belief, directly upon current legislation.
By contrast, peer-to-peer (p2p) software is used for both legal and illegal sharing of materials. Some files distributed are .pdf copies of out of print books, or digital copies of early, out of copyright wax and '78 record archives. Others are .mp3 files of the latest chart hits.
The rise of p2p, and of other systems of distribution between human peers (the peer in p2p refers to machines, not humans, and their position of equality in a network) enabled by the disintermediary powers of the internet, has been matched by an unprecedented strengthening in copyright law. In each phenomenon, there is an accountability deficit.
Copyright extension
Take the extensions of copyright terms first in the US, and now proposed in the EU. The motivation for both these changes in legislation is clearly greed in the US, the Sonny Bono Copyright Act was termed the Mickey Mouse Act as it was in fact proposed out of fear that the copyright of Mickey Mouse and any derivative materials, merchandising and the like, might fall into the public domain. Likewise, the revision to EU law has been proposed due to potential public domain licensing of the Beatles and Elvis works.
What has gone unconsidered is the educational value of public domain archiving. Distribution systems that house illegal material, unfortunately, also harbour the greatest archive of out-of-catalogue material that which the major companies no longer consider commercially viable to press. To extend the period of time a work remains under copyright means that, unless one turns to illegal distribution models, great losses are occurring in our library of world music.
Some .mp3s being distributed on p2p networks are rare recordings of live concerts or folk music again illegal, but the only reference available to such an event. Even song lyrics and books are being lost due to crackdowns owners of websites have been issued with takedown orders via the publishers, even if the book is no longer in print. Ateaseweb, a Radiohead fan site with possibly the most extensive collection of B-side, unreleased and rare lyrics, was also given a takedown order by the band's publishers. Fortunately it seems Radiohead themselves, supporters of Adriaan Pels' website, intervened and the archive remains as a resource to the public of lead singer Thom Yorke's poetry.
This week even Google has been issued a lawsuit for taking snapshots of illegally published material on the internet via its automated technology. Yet many of these texts are no longer available in print, the publisher considering it not viable to make a run of books which perhaps only a handful of people may buy. One book is burned, and then another, and another. Our archives are being dumped into the worldwide bit-bucket.
Digital rights management
At present, anyone can legally download works from organisations who are working with Free, Open Source or Creative Commons licences and material in the public domain to distribute artistic materials legally. But even these projects encounter strange barriers.
Brewster Kahle is attempting one such project in the Internet Archive. Kahle has fought and won legislative rights to extract software code from dated technology, hardware from perhaps only a decade ago which is quickly becoming unreadable either due to material decay or technological obsolescence.
As yet he is not permitted to publish such material, but was granted the rights to archive the software on contemporary hard disks provided that he adhered to conventional copyright law. Distribution may be made possible in the future via a lawsuit (Kahle v. Gonzales currently in process. Yet the lengths which he has had to go to stay within the law when his desire is to archive a piece of software which would be valued at less than a few dollars in today's money, seem ridiculous.
Kahles concern, like mine, is that through new Digital Rights Management (DRM) systems software being used to copy-protect CDs and digital files, which, further, is banned from circumvention under present legislation valuable archives may be lost to future generations. The effects of DRM technology could be disastrous Brewster Kahle describes the lengths to which he had to go simply to archive a piece of programming made only one decade ago using a now obsolete piece of software. The acceleration in technological developments described by Moore's Law suggests that the DRM systems of today will also very quickly become obsolete, leading to an inability under law to even access materials less than a decade old. This ill-considered lockdown will cause what Alan Cox of Red Hat Software has christened a digital dark age. Nothing will remain of the works composed during this century if such technology is used without accountability to the needs of the general public, and to future generations. It will in effect be a great burning of books in the internet Library.
This article forms part of the Peer Power: Reinventing Accountability debate.
AccountAbility, openDemocracys partner in this debate, will hold a major event, Accountability 21: Reinventing Accountability for the 21st Century on 3-5 October in London.
Also in this debate:
Bill Thompson, The Democratic Republic of Cyberspace?
Simon Zadek, Reinventing Accountability for the 21st Century
John Lloyd, The responsibility of the harlot
Becky Hogge & Geoff Mulgan, Open source nation
Sarah Lindon, Talking Democratically
Ben Rogers, Courtroom shake-up
If you find this material valuable please consider supporting openDemocracy by sending us a donation so that we can continue our work and keep it free for all
Accountability: who makes the rules?
New technologies, with DRM systems are being rolled out for the next release of Microsoft Windows and Apple's OS X, which will not only prevent cracked software from being installed, but will at start-up check for infringements even in documents themselves. Consumers are being held accountable to business, but the collaboration of business with the law-makers has placed government and business high on a pedestal, unaccountable to their end-users.
Further, it appears that business has overtaken the responsibilities of government in terms of enforcing the law. Take, for example, last year's series of RIAA lawsuits. Their bully-boy tactics were evident by the prosecution of the most vulnerable minors and the elderly who could not afford a lawsuit and therefore agreed to pay high sums in out-of-court settlements. This is presumed guilty before proven innocent.
The situation at present has been termed information feudalism by Peter Drahos and John Braithwaite in their book of the same title. The feudal lords of today are those of big business, the RIAA and major software companies, whose power extends beyond government, allowing them the freedom to prosecute at will or more frequently, threaten until an out-of-court settlement is made. Business has set itself above the law, and in fact is now in a position of writing the law to suit itself.
That government did not intervene in the RIAA lawduits is a shocking example of the lack of accountability between business and government under our existing system.
But in law-breaking consumers must also be held to account. There are legitimate reasons for the sharing of materials, and for the ripping and use of those materials for compositional, creative and archiving purposes, and these rights should be protected. P2p systems such as LimeWire and KaZaA, use technology simply to permit the sharing of files it is up to the end-user to comply with the law. P2p systems can be used for good or bad means.
A composer has to eat, after all, in order to compose. And while, in a utopian world, people may choose to donate or purchase hard copies of a work to support the composer, a fully free system is in my belief not sufficiently viable, nor accountable, as it relies on the goodwill of the people. And people, whether in business, government, or the general public, are not by nature benevolent.
Commercial solutions
Attempts have been made to legalise p2p, although the popularity of these systems has not been of great success, other than iTunes, which, it could be argued, was bought into as a fashion statement by Apple People (those who, rather like other label-conscious consumers, will buy any product with an Apple logo on it). Another problem is that, unlike LimeWire, KaZaA, Morpheus et al, legalised p2p again only contains a catalogue which the publisher deems commercially saleable, and even iTunes, although extensive, only promotes the most popular of files. This means that those rare collections of live recordings, B-sides and unreleased material from years past will still get lost.
Ironically, systems such as BigChampagne are used by the big five major record companies to monitor files being shared across illegal p2p programs, and to adjust their own legitimate (ie pay-per-use) products accordingly. Surely, if BigChampagne were to take the step to work together with KaZaA and LimeWire in releasing the artistic works which, clearly, the people want, it might result in a system whereby consumers, business and government might all be satisfied.
A conference of accountability between business and p2p programmers has been attempted, yet both are currently at an impasse p2p will not compromise on its desire for ultimate freedom, and business will not compromise on its clampdown.
Legal Solutions
It is clear from the impact of new legislation that copyright law itself needs to be reviewed and held accountable. This could be achieved via motions from the people, via the legal system, or from government itself. For example, Professor Lawrence Lessig has argued in the Supreme Court that breaching of freedom of expression due to the Digital Millennium Copyright Act (DMCA) is contrary to the First Amendment.
I and many others have chosen to turn to Lessigs Creative Commons system, where a creator may choose to publish a work permitting reproduction either without fee, or for a fee but allowing non-commercial reproduction across p2p and other distribution systems.
The political solution
The only example I can see of a viable political solution in present times is Germany coincidentally the European centre of commercial success in Free and Open Source software distribution as home to KDE. Germany was one of few countries in the EU to implement a more lenient form of the European Union Copyright Directive (EUCD) the very law by which the UK has locked down p2p file sharing in far harsher terms even than the US (under UK law making available illegal files is now a criminal, not a civil, offence).
In Germany, citizens pay taxes when purchasing CD and DVD writers, taxes distributed directly back to the creators of the music itself. The Netherlands has a similiar tax on blank media, and its efficacy can be seen in the amount of money which even smaller, obscure composers such as my former tutor Ed de Boer has been able to receive.
German citizens are then permitted under their government's implementation of the EUCD to make copies of music and other works for their personal use. It is of no coincidence that Germany is the centre of the internationalisation project of Creative Commons the translation of the Creative Commons licences into international languages and checking their viability against an individual countries' law.
Until very recently, at least, Germany had a socialist government. Perhaps adding a little socialism into the mix may create a successful system in copyright law whereby government, business and consumers are accountable to one another. This is socialism in its purest form not that tainted by Marxism which evolved into the failed Communist systems of the 20th century. To quote Wikipedia's definition of socialism (with my emphasis):
"Depending on the context, the term socialism may refer either to these ideologies or any of their many lineal descendants. While these cover a very broad range of views, they have in common a belief that feudal and capitalist societies are run for the benefit of a small economic elite and that society should be run for the common good. "socialist" ideologies tend to emphasise economic cooperation over economic competition; virtually all envision some sort of economic planning (many, but by no means all, favour central planning). All advocate placing at least some of the means of production and at least some of the distribution of goods and services into collective or cooperative ownership."
Instead of permitting any actions whatsoever by the free market without intervention; a situation which at present has lead full circle to the current information feudalism of business over the people, that which is not healthy for society would be called to review. No longer would we be subject to the whims of the RIAA and its overwriting of the law via bully-boy tactics out of court. Of course, this does indeed require action on the part of the people, and here Bill Thompson's suggestion of a peer review system is most appropriate.
A dash of socialism may perhaps lead to an answer to our current problems with archiving, as it has partly in Germany with the permission to copy CDs for personal use. Yet we must go further and tear down the walls of worldwide dictatorship which have lead to the restrictive DMCA and EUCD legislation, until research and archiving are once again permitted, until such systems are held up to review or even outlawed due to their clear and direct obstruction of the recording of the events of this century. Projects such as the Internet Archive are essential, but accountability must extend further until a library is permitted to be built and referenced by the general public in order to prevent the coming of a digital dark age.
