Moses and the Eleventh Commandment

The war against file-sharing that currently rages primarily over the Internet will ultimately be lost. That’s my prediction. I can’t support this argument with any authority, being no expert in the fields of law, politics or technology, but instead make my statement on the basis of many years’ observation from the wilderness. But the trends all point to this being the case. File-sharing has become a mainstay of this new generation, a fact which has forced most corporations and organisations to rethink their strategies and come up with ways to stem the tide. We have already seen many changes in this direction, such as the explosion of digital content that is now available online from legitimate sources. But in addition to this carrot, the war is also being waged with a stick, as organisations set out to have legislation passed to clamp down on file-sharing activities, and new technologies are created to lock down digital content and prevent its spread. So what will the future bring?

File-sharing is usually portrayed as a new nefarious activity, something alien brought about by changes in technology and society that benefits no one and is an obvious criminal activity. Whilst there are some elements of truth to that charge, it’s not entirely accurate. Man is a social animal and has been sharing since the stone age. The only thing that’s new is that it now involves digitally stored media rather than pieces of sharpened flint, and problematically, it is now easier, faster, more accessible, more reliable and perhaps more inconspicuous than ever before. But this is merely the extrapolation of a phenomenon that is essentially part of man’s nature. Irrespective of the legality of the issue, people generally consider it fair use to lend books, albums, movies or software that they have purchased to their friends and relatives. It is generally considered reasonable use for people to record items broadcast on television or radio for later viewing, an act normally referred to as ‘time-shifting’, though these recordings may well be played back repeatedly, and of course lent and exchanged as with purchased items. And if anyone were to take a peek in many university libraries throughout the country, they would see the level to which the letter of the copyright law is upheld in the ‘fair use’ rules of photocopying published articles. In each case, the law has either been adapted, or it has fallen into disuse. The latest developments must no doubt ultimately result in a similar reaction.

The similarity between online file-sharing and the typical state-funded public library system is perhaps more than a little unfair, but in theory shares similar features. That one is treated as a villanous scourge and the other as an equitable and fundamental public service is born not out of principle, but out of execution. Libraries are often restricted, under-staffed, under-funded, and under-provisioned, but most vitally, they are controlled. Online systems of file-sharing are none of these things, and the sheer scale of the problem provokes the reactions we see around the world. Quite what effect the rise of file-sharing has had on the many industries is difficult to tell, with arguments and statistics flying back and forth almost unceasingly. There is sadly no control experiment to substantiate the many arguments, whether they claim file-sharing has a negligible or positive effect, or that milliards have been written off the world’s economies. People who assert blindly that file-sharing boosts album sales are ignorant of the facts, whilst studio execs who believe that every downloaded track is a lost sale are plain wrong. Nevertheless, whatever the effects, this is a changing world, and every generation’s attempts to lay claim to that impalpable, fleeting sense of the status quo have failed. Whilst the majority of society morphs and adapts, there are always those who attempt to put the brakes on.

Virtually every attempt, particularly in the mainstream, to prevent copyright infringement has met with resistance from the end-users, or has been circumvented to leave it essentially useless. The recent case of the Digital Rights Management (DRM) protection placed on a number of recent games released by publishing giant Electronic Arts has met with particular resistance from customers. Recent games like Spore, Red Alert 3 or Crysis Warhead all come equipped with SecuROM, a form of DRM which installs itself surreptitiously onto a user’s computer, and includes limits on how often the game me be installed amongst other features. After a certain number of activations the user has to call EA to have the limit lifted, otherwise the disc is unusable. Aside from the obvious problems for the customer, particularly in the longer term given that the servers which deal with the activations could easily be switched off at some point in the future, is the manner in which the relationship between the corporation and the customer becomes strained. This kind of copyright protection instantly treats customers with suspicion, even to the extent of criminality. Worse still for the company is that this kind of intrusive mechanism is stripped away in the illegal versions of the software which are produced almost as quickly as the mechanisms can be implemented. And this is well known to many customers, evidential in that Spore became probably 1Statistics in this area are notoriously difficult to confirm. the most downloaded game of the year, no doubt to a large extent based on the DRM issue. 2See many of the reviews at Amazon as an example of customer reaction.

As has happened so many times in the past, the current furore over file-sharers is an example of a conservative heritage being challenged by the next generation with new technologies and ideas. Copyright laws are no longer able to cope with the situation, and whilst file-sharing undoubtedly infringes upon copyright law, the ability and the will to enforce the letter of the law is lacking, and to a large extent, essentially inappropriate. As I understand it, New Zealand has become the first country in the world to pass legislation to allow for a “three strikes” attitude to individual file-sharers, meaning that they should be cut off from the Internet if they are found to be responsible for file-sharing. All very well in theory, but in principle dealing with such scenarios is extremely tricky business: it is difficult to achieve from a technical point of view, it is difficult to enforce and prove from a legal standpoint, and in most instances it certainly infringes on personal freedoms and liberties. In this respect copyright laws are put on a pedestal above individual liberties. 3Typical in the democratic societies in which finance is so deeply entrenched in the political process. The attempts to equate file-sharing with theft in media propaganda 4As ridiculed here in the recent Futurama film. have met with very little sympathy from the general public, in part because the comparison illustrates how the law is no longer able to reflect reality. Stealing a car is not commensurate with making a copy of it, a blindingly obvious fact that is recognised by the general public, but not by the organisations and legal bodies, though there are signs that wheels are in motion in certain parts of the world.

It is difficult to predict what the precise outcome of the current war on file-sharing will be. Whilst repeated attempts will no doubt be made to plug the analogue hole, and increased powers are sought to enable authorities to control the public’s actions on the Internet, a few braver men are trying to find answers in fundamental alterations to copyright law and society’s view on file-sharing, and the new technologies and freedoms that have developed in leaps and bounds in the last few decades. Perhaps it is no surprise to see that Sweden is leading the charge. The potential pressure of the Piratpartiet caused a number of parties to rethink their stance on the file-sharing issue, particularly with regard to the statistics which highlight around 10% of the Scandinavian country’s population as potential targets for litigation. The Swedish Left Party, for example, has come around to the idea that copyright laws need amendment, and that file-sharing on a domestic basis is as legitimate an activity as lending libraries. Similar changes in policy may also affect the Moderate Party and the Green Party.

It may yet be many years before this issue sees a satisfactory resolution, and the market will adapt accordingly. With all likelihood a change in copyright legislation will be required that prevents leaving vast numbers of so many nations liable to prosecution, or it will it lay dormant like so many other vestigial and antiquated legal modes. The attempts to incriminate almost an entire generation cannot be in the best interests of either society as a whole, nor even its constituent parts, whilst the efforts to hunt down the technological cat and put it back into the bag are as futile as trying to turn back the clock. Whether a miraculous, ingenious solution will be found that satisfies everyone, or the weight of numbers fighting for change will affect a political reaction, or simply a piecemeal combination of political change, technological development and market mutation, the days of file-sharing as a nefarious phenomenon are numbered. The future is not set. But neither is the present.

For a future post in relation to this topic, I intend to conduct an interview with one of the founders of a leading Bittorrent tracking site. If anyone has any questions they would like to have posed, please feel free to leave a comment below.

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1. Statistics in this area are notoriously difficult to confirm.
2. See many of the reviews at Amazon as an example of customer reaction.
3. Typical in the democratic societies in which finance is so deeply entrenched in the political process.
4. As ridiculed here in the recent Futurama film.