There has been so much written about what should and should not be free on the Internet: Free speech, free music, free files, free games – you’ll notice that the operating word here is free.
The New York Times quoted Ross Anderson this week talking about his first foray into peer-to-peer (P2P), which according to Ross was inspired by a legal battle between the Church of Scientology and Penet, an Internet operation based in Finland that was known as an anonymous re-mailer. In that case, an Internet user was using the re-mailer to post church documents anonymously on online bulletin boards. “I had not the slightest idea back in 1996 that music would be an application,” he said. “I was motivated by the Penet case and by the fear that some of the freedom we’d got from Gutenberg’s invention of cheap printing might be lost.”
Very altruistic indeed! But, as we have discussed many times, the Law of Unintended Consequences has a particularly wry sense of humor. And, remember, a file is a file is a file. So where are we?
Darknets (a concept brought to the fore by J. D. Lasica’s wonderful book: “Darknet: Hollywood’s War Against the Digital Generation”) are, for lack of a better way to describe them, private P2P networks. In theory, you have to know someone already in the network to gain entry.
So now we have a new issue: Private P2P networks that have to be discovered, infiltrated, and then attacked from the inside to be shut down. Hmmm … much tougher to do. So much tougher, one is reminded of the college kid who keeps an ounce of pot in his dresser drawer. Chances of getting caught? Very low. Consequences of getting caught? Totally misunderstood. And, also totally relative with regard to income and ability to pay for expert counsel.
By the way, if you think that making a P2P network private changes anything about the users’ ability to infringe on copyright, think again. “There is nothing special about a private P2P network.” says copyright policy expert, Bennett Lincoff, Esq. “Unauthorized distribution of the music or other copyrighted works involved constitutes copyright infringement whether the distribution takes place on an open, public P2P network, a subscription P2P network, or on a private P2P network,” Lincoff continued. “There is no exemption in the copyright law for unauthorized distribution over private networks and there is nothing in the fair use doctrine that would allow participants in a private P2P network to escape liability.”
I’ve heard the phrase, “culture of freedom” very often of late. Although it is used differently by different people, the extreme view is that everything should be free. On the other hand (an iron hand in a velvet glove) are the rights holders who have built extremely successfully businesses on the back of the copyright laws – they don’t think that anything should be free.
For years, we have lived in a marginally balanced state between these two extreme views. We have, to use another favorite analogy, lived in a world of glass doors with locks. Real criminals can easily break the glass and gain entry. However, honest (even semi-honest) people will be deterred by the lock and the social and ethical understanding that a locked door means that you should not enter.
If files are files, than in computer terms: text, music, movies, graphics, and photos are indistinguishable from one another. Could our need for copyright protection actually put our freedom of speech in jeopardy? Should laws that govern the use of files be different than that laws that govern commerce in physical goods? Has technology commoditized creativity? Is a collective creativity more important and more valuable than individual creativity?
What is a “culture of freedom?” Where is the line between your freedom and someone else’s freedom to take what you create or what you own?