The World After MP3

The World After MP3

MP3 has shown how the expectations of rights holders concerning the use of digital content clash with those of billions of end users. In this chapter I would like to summarise the views from the perspective of the different players. I will classify the attitudes in four categories: philosophical, technological, political and legal. 

Those who have been part of the creation of the Internet or those who, without having actually participated in it, have been raised in that spirit, take what I would call the “philosophical position“. This is greatly influenced by what has certainly been an exciting enterprise, viz. the creation of the entire technological infrastructure to enable a network of computers to exchange information seamlessly on a global scale. 

The majority of those who have taken part in this development come from an academic background. For them the project meant an unprecedented long-term sharing of resources, having the purpose of creating all the technical specifications and the software implementing them, without patents and copyright, which was eventually “donated” to mankind. This tradition is somehow continued by the OSS movement in which – take the development of Linux as an example – large-scale software projects open to anybody are realised whose results anybody can utilise, within the terms of a very broad license. 

A few of those belonging to this world make the extrapolation that, as much as the software for the network is shared, so should the bits moving through the network by virtue of that software. I am personally fascinated by the ultimate implications of this philosophical position. The idea that, at least from now on, all the results of human ingenuity, as soon as they are converted into bits, become ipso facto commonwealth of mankind, ready to be accessed, consumed, re-used and extended to create new works without waiting for the 75 or more years from the death of the author, is so innovative that it could push the evolution of mankind to totally unexpected directions. I would personally like to be a part of a global experiment of this nature. I would like to set a condition, though, that I can call myself out of this experiment if things go wrong.

Indeed, I would like to suggest that, before making reference to a philosophical position expressed in a way more reminiscent the famous ipse dixit used in Middle-Age Scholastic discussions than a dialectic and rational argument, some analysis should be made about what it would mean for an artist to be deprived ope technologiae of the incentive that, at least from historical times, has been the driver to express the fire that burned in him, the intensity of which often depended on the size of the expected remuneration. 

It is a case similar to my ancestors’ who cobble-stoned the paths criss crossing the hills because they wanted to help themselves, and a consequence, everybody, in their daily job of carrying heavy loads of firewood, grain or hay on their shoulders without any intention of sharing the loads with other farmers. I do not see why the fact that people unselfishly cooperated in building the “virtual cobble-stoned paths” of the internet should imply that the loads (the bits) moving on those paths should also become common property. 

I would also like to take this opportunity to spend some words on the deliberate, but often not so well perceived, ambiguity of the expression “free internet” (or free software or free anything, but for “free lunch” whose meaning is unequivocal), as if the network were the place (virtual, but nonetheless a place) where the sacred principles of Liberté, Égalité, Fraternité of the French Revolution at last triumph and not – at times a convenient ambiguity of the English language – the place where moving bits “does not cost” (apparently). 

The “technological position” is based on the assertion that, no matter what protection is applied to no matter what content, a sufficient quantity of human ingenuity of sufficient quality, seconded by an adequate amount of processing power, can remove it. From this comes the assessment of the futility of any attempt at protecting content to manage its consumption and hence its value, because, sooner or later, whatever the Technological Protection Measures (TPM), they will be removed. 

I have no intention of entering a dispute on the universal validity of such an argument, but I would like to start by just stating the obvious: a poorly protected piece of content can be hacked without much ingenuity and simple computers, while a smartly protected piece of content will probably take greater ingenuity and powerful computers.  I would also like to add that the position presupposes the continuation of today’s content distribution model, where users buy the right to consume content independently of the machine on which it will be consumed, which I do not think is a reasonable assumption because future content may only be consumable on secure and authenticated machines (which supporters of the philosophical position object to). 

The last comment should not be read to mean that I am supportive of legislation, proposed in some countries, that intends to impose that any processing device should contain security elements. I think these proposals are damaging progress in one of the most innovative technology fields of this century (and the past) which holds the prospect of unifying a lot of other disciplines and their exploitation. I am just saying that a rights holder (or a distributor) might wish to have content consumed only on devices that he trusts.

The “political position“, made by some civil liberty organisations and also utilised by supporters of the technological position when other arguments fail, centres around the figure of “fair use” to implicitly negate any attempt by rights holders to add TPMs to their content. The position stresses the fact that, if content is protected, it is no longer possible to do the same things that people have traditionally done with content in physical or analogue form.

Those who take this position are apparently not affected by the fact that, insisting on carrying over to the digital world acts that used to reasonable, leads to the conclusion that it is no longer possible to assign a monetary value to content. In the analogue world making a copy was always a tiresome and time-consuming effort and the copy itself was a deteriorated replica of the original that became useless after the process was repeated a certain number of times. Today the act of copying and distribution requires no effort, copies are perfect, and so remain after an indefinite number of copies. 

Starting from the Queen Anne’s Act, countless national laws have been promulgated and many international treaties signed that attempted to strike a balance between two opposing needs: providing rights holders with a remuneration for their intellectual and material efforts that produced the work, and allowing citizens some simplified or even free access and reuse of content. The inspiring principle was that, in a world where information was scarce, public authorities took upon themselves the task of easing access to information. Allowing this type of special access was in response to identified social needs and worked satisfactorily because, with analogue technologies, access, reproduction or extraction of a piece of work damages, often in a significant fashion, the effective use of the work. 

Still in the context of the political position, the claim is made by those civil rights advocates that security elements in the content consumption device are an attack to basic individual freedoms. The argument goes this way: these security elements allow those who are “at the other end of the wire” to know many things about the habits of the device owner, a clear attack to that individual’s privacy rights. Strictly speaking this is not specific of security technology, the concern exists whenever two devices communicate be they in a client-server, or a peer-to-peer configuration. 

This is the natural reaction to the “laissez faire” attitude that is characteristic of countries where there is no intention to regulate, say, the collection of data from the visits to a web site. The justification is that a market in the making, with unknown features, should not be stifled by regulation but only self-regulation should be encouraged. Originally this self-regulation worked well and indeed web sites used to publish their data handling policies and subscribers possibly decided to entrust their data to a site or not depending on the published policy. The dark side of the story is that many sites, pressed by economic difficulties or better prospects or simply because they see it more convenient, may unilaterally decide not to honour their published policies and sell or use their valuable databases in new ways. 

Therefore the problem is not so much the existence, or lack thereof, of security elements in the user device that allows those sitting “at the other end of the wire” to collect data, but the use that people who have collected the data put it to. People forget that from a century and a half there is a universally deployed system where those sitting “at the middle of the wire” know everything about those sitting “at this end of the wire” and that, since some 30 years there is a system that is more and more widely deployed where those sitting “at the middle of the wire” can even know where their subscribers are physically located when they are connected to the system. Discovering the privacy problem is not a show of maturity on the part of the discoverers. What it takes is appropriate standards, efficient legislative systems that protect the users, with appropriate deterrent measures for those abusing the system. Then, whether this should be done in a way that does not stifle a nascent market, is a separate issue. 

Among the positions taken by the different players in this space, the “legal position” of some rights holders and their representatives must also be mentioned. These respond with courts and injunctions to all those acts that they consider, in these times of shifting land, attacks to their properties. One cannot but observe that such an intransigent attitude is only matched by the unavailability to have a dialogue shown by the extremist supporters of “fair use” and civil liberties in general. At times one has the impression that some rights holders prefer a legal clash with their opponents instead of helping create a discussion place where issues are democratically, albeit dialectically, debated. This attitude is cordially reciprocated by the extremists on the other side.

I am obviously aware that each of the four major positions described above can be maintained forever with new arguments. I must also acknowledge that the key arguments of all four groups are right or at least appear to make a lot of sense.

  • The philosophers are right in their claims that ubiquitous networks should benefit the citizens of the world, that intellectual progress is the result of the meeting of ideas, and that mankind should get more and not less from the innovation brought by digital techniques.
  • The technologists are right that a product of a human mind can theoretically be cracked by another human mind, but so what? Do we stop putting locks on the doors of our apartments just because a skilled thief can break in?
  • The politically-minded people are right to say that rights holders are such only because the authority of the state has made them so and that they have the social responsibility of giving access to their works under simplified conditions, but citizens at large have the obligation to respect in a substantial way the rights holders’ property, without hiding behind the outdated words of rights possibly enshrined in laws that are products of another age.
  • Rights holders of course have the right to make recourse to the courts to protect their rights, but this is no reason for elected representatives of the people to sit idle and let tribunals decide the shape of the rights to digital media in future – actually present – society. 

Recognising that everybody is right is not of great help and is an indication that the level of discussion has been inadequate. All parties are making arguments that used to be the right ones in a different technology environment. They are no longer true today because many of the statements are reduced to empty statements of principle, without practical application.