They Want To Make You Into A Criminal – For Being Online

The Internet is the great business model disruptor – with Social Networks and P2P file sharing providing the key mechanisms for disrupting content based businesses. We share ideas, opinions, thoughts, and music and video with increasingly large communities of family, friends and strangers.

However, lurking behind the notion that “information wants to be free” is the fact that the executives of the companies that provide the content don’t want you to get any ideas that you can do what you will with their content. The companies that supply tools and technology have a similar idea. They want you to assign the rights to your content to them. Even though new copyright regimes such as Creative Commons licenses recognize the dynamic changes to licensing required by digital communications technologies, the vast majority of content is governed by the copyright laws of a bygone age.

The rhetoric of the major content publishers sounds reasoned and sane: “We are not out to prosecute a teenager downloading the odd song off the Internet.” The reality clearly indicates otherwise. The content companies’ ideal though, is to tax consumers for content consumption via their ISP or phone carrier. It’s a cost effective strategy for them, but is it reasonable or fair for consumers? 

Ordinary people don’t understand copyright law even at a basic level. They don’t make money from sharing a song or a movie whether they rip a copy for a friend or allow someone to download the file. They are not pirates.  They are principally doing the job of marketing the content through good old word of mouth.

The inability for individuals to afford quality legal advice and the strategy of the content companies to want to set legal precedents is creating something that is quite sinister if left unchecked: the potential for the wholesale criminalization of  the majority of people who use the Internet. Worse still, people are being treated as guilty without trial, without the opportunity to defend their position, on the basis of evidence that may or may not be accurate. (In some cases in the US the accuracy of the data provided by the tracking companies has proven to be questionable or false).

The real issue is price.

When content is ubiquitous why should it command the same price as it does in relative scarcity? If the cost of content shared amongst tens of millions of file sharers was marginal, everyone would feel comfortable about paying and content publishers would continue to reap substantial profits. In enforcing old business models and pricing in a digital environment, content companies position themselves to generate obscene profits based on wielding a stick rather than a carrot.

Is it any wonder that the netizens of New Zealand marched on their parliament to try to stop the ratification of changes to their copyright act? New Zealand is not alone. In Australia there is currently a case before the courts that relates to an Australian ISP and its lack of sufficient resources to comply with Australian “Safe Harbour” copyright provisions that require it to act on each take down notice received.

Surely it cannot be morally right to have a law on the books that has the consequence of turning most of the population of into criminals, and the ISP’s into deputy sheriffs. Back in the days of the first Queen Elizabeth, there was a distinction made between pirates and privateers. Privateers were those entrepreneurial sailors that interdicted ships from nations unfriendly to Britain and liberated their cargoes. For the unfortunate foreign sailors who were interdicted the acts were piracy, of course. Determining who was right and who was wrong was about which side you were on. 

The truth is that under the current laws almost every one of us who uses the Internet is likely to have breached copyright. So are we all guilty of being pirates?
Think about the web sites you have visited recently: Facebook, YouTube, Bebo, Hulu, Flickr… et al. All have a Terms Of Use (TOU) agreement that you have to agree to in order to be allowed to use the site.

Two weeks ago Facebook altered its TOU in such a way as to grant the company extraordinary and invasive rights over its members. The upshot was that overnight the membership threatened to stop using the site.

The push-back by Facebook users and the demonstrations in New Zealand by the online community shows how motivated consumers can become a powerful force for cohesion.

The problem we face is that the rules that govern content are creating a breach of trust with consumers. In the digital world listening to your customers is the critical way to establish trust.

Consumers need to act together as a group to motivate a change in copyright laws so ensure that they can not be criminalized for doing what everyone does.

Anyone who has put a graphic from a web site into a power point slide; anyone who has passed a piece of video on to someone else by clicking an email through to a friend; anyone who has burned a CD and given it to a friend; anyone who has cut and pasted a piece from a newspaper on line and quoted it without attribution – there are a lot of things we may have done that to us are minor indiscretions, but which may bring the copyright police down on our heads.

When you embed a video clip of a TV program into your blog, or send a piece of viral video on to a friend, do you think about the fact that the content companies may demand that you pay? And set the fee without discussion with you.

We can do several things about that risk. We can either stop doing the fun and useful things that we do online – sharing music and movies among other things. Or we can work to change the way that the laws are written to ensure that in a digital world content owners get paid the appropriate amount for content that is freely available everywhere.

To achieve this we will have to act together. We will have to establish what the value of content is when it is regarded as a utility. The new digital society that we have become puts the critical commercial decision-making capability in the hands of the consumer, not the ISP or the content owner. That is where the dialogue needs to begin. 

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