18 April 2009

Free Culture, The Law and The Corporations - Part II

Well it's now 14 months since I wrote Part I of this entry, so the impatient among you will have to wait no longer. I am prompted the write Part II by the legal judgement in the Pirate Bay case, which was announced earlier today.

For the background to the Pirate Bay case, I suggest the Guardian's FAQ on the issue as a starting point. More details can be found on Wikipedia. In a nutshell, the four founders of the Pirate Bay were charged with "assisting the distribution of illegal content online and the more serious charge of illegal distribution of copyrighted content" (quoted from the linked Guardian page). Fairly quickly the latter charged was dropped - as the Pirate Bay have never hosted any copyrighted content against the copyright holder's wishes, this was alway a silly claim and bound to fail. I shall therefore talk about the first one of these, the claim that they assisted the distribution of illegal content.

Firstly, the Pirate Bay is essentially a search engine for torrent files, much as Google is a search engine for a wide variety of things. If I search for "Ubuntu", I will get a large number of hits, one of which is "Ubuntu 9.04 Desktop Release Candidate (i386)". It allows me to download a torrent file for this, which is in fact an installation CD image which I am interested in. The torrent file doesn't contain the CD image, but essentially tells me how I can find it on the internet. I can perform searches for films I am interested in, or music, or indeed other computer software. If helping me find these torrent files is illegal, then Google, Microsoft, Yahoo and many others are also guilty of the same crimes.

Secondly, Having obtained a torrent file, it is my responsibility to ascertain whether or not I have a right to download the data it points to. This is not actually an easy problem to solve generically, and certainly not one the Pirate Bay is in any position to determine. Maybe the licence says I can only download it if I live in the UK. Or only if I'm black. Or after patting my tummy three times. Every country has its own set of laws, which vary quite widely, and in some cases are different depending on the nature of the data I am contemplating downloading. Very often, illegality is dependent upon the purpose for which I download it, not on the downloading itself. For example if I buy a CD and one of my offspring stands on it and breaks it, is it illegal for me to download a copy and burn it to a blank CD? What if someone claims to be the copyright holder and says on a website that it's OK, can I believe them? (see Nine Inch Nails as an example). If I burn many copies of the Ubuntu installation CD and sell them for £10 each, am I breaking the law? I would not expect the general public to really understand this at any level of detail. After all most people, like me, have no legal training whatsoever and most, unlike me, have no interest in the nitty-gritty details of the law.

Thirdly, is downloading actually illegal, or merely something the copyright holder would rather you not do? In the example of the broken CD the copyright holder would clearly rather you went out and bought a replacement, thus earning more money from you. However, many jurisdictions recognise 'fair use', the same legal concept under which I quote directly from the Guardian earlier in this article. Other jurisdictions do not have this concept, or interpret it in subtly different ways. Some countries have laws that were last updated well before the internet was created, and therefore don't really address the issue. Vested interests will try and claim that other laws apply to the internet by extension, but whose interpretation is correct?

Fourthly, coming back to the case itself the prosecution completely failed to prove that any crime was committed, which the founders of the Pirate Bay were guilty of assisting in. This is explained by the King Kong defence, a term that was created during the trial. It's a bit like convicting someone of murder when there are no witnesses and no body has been found - the person may indeed have committed murder, or the person may simply have vanished. Without strong evidence such a conviction would be unsound.

Fifthly, if I illegally download content over the internet, is my Internet Service Provider (ISP) guilty of aiding and abetting in this crime? Or if I use the telephone to sell illegal drugs, is my telephone provider guilty? Actually in these cases there are strong legal precedents which say that the providers of these services are not guilty. Just because a service can be used for illegal purposes doesn't mean those providing it are guilty. I am not aware of any sound legal basis for believing the Pirate Bay is any different, as they provide a service - which others can use for both legal and illegal purposes.

Clearly there are a whole raft of questions raised by new technologies such as the internet, which haven't yet been adequately addressed in the multitude of legal jurisdictions that exist around the world. Just as it was clear to lawyers when the aeroplane was first invented that flying over someone's land was a form of trespass, it was equally clear that the law was outdated and needed changing, as this situation hadn't been thought about when the laws were drafted. I believe we are in a very similar situation now. Some cases of downloading copyrighted content are indeed illegal in many jurisdictions, no doubt about that. But what we are witnessing is essentially a very long, expensive, global bun-fight between vested interests who have for decades had a very profitable business creating artificial scarcity of their wares and selling them at inflated prices, and a newer generation, armed with newer technology and new ways of doing things, who just aren't interested in the outdated business model and ultimately want the laws changed to suit their needs. If we had let the status quo win these battles in the past we would not have airlines, cars would have to have a man with a flag walking in front of them all the time, factories would not be automated, agriculture would not be able to use modern machinery and we would not be allowed printed books. All of these battles were fought long ago and the vested interests eventually lost, usually not without a similarly long fight. Many jobs were lost in the process, but people reaped the benefits and many different jobs were created in their place. I don't know how this particular round of battles will play out around the world, but one thing I am sure about - it's very early days yet. The Pirate Bay may well ultimately be forced off the internet, but many other organisations will spring up in its place.

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