ZeroPaid published an interesting article a few days ago highlighting a number of recent attempts from around the world, to control the internet and the flow of information. One of the most interesting parts of this article for me, relates to the use of memory sticks by Cuban citizens to share a video of a confrontation with the president of the National Assembly. As the article goes on to note, this illustrates the argument that regulation of the internet does not necessarily prevent the sharing of information.
I recently wrote a letter to Senator Stephen Conroy, Minister for Broadband, Communications and the Digital Economy after learning that Australia might consider a scheme similar to that being debated in France and the UK whereby file sharers would receive three warnings before having their access cut off by their ISP.
Here is the essence of what I wrote:
As the government would not doubt be aware, file sharing is an activity that has been adopted by a significant proportion of the technology literate population, and particularly amongst young people. The architecture provides users with an unlimited ability to share and exchange digital material. Whilst, with respect to traditional industries based on intangible goods, this has posed a degree of concern, the architecture has numerous and well documented lawful and very socially beneficial attributes. Indeed democracy itself is dependent on access to information. In the past this has been seen largely as information presented by the government or that which is made available through the mass media. In the digital environment however we are presented with the unique opportunity to maximize the creation and exchange of information on the level of the individual citizen. File sharing architecture and access to the Internet are fundamental components of realizing this possibility.
The proposal to ban users after a series of warnings about the ‘infringing’ use of file sharing, risks the very opportunity to embrace technology in a way that will bring about progress to our society.
...[S]uch a policy would impact dramatically on young people and create the environment where they are most likely denied access to the whole of the internet. Arguably the adoption of file sharing has reached the point where it is irreversible. The idea that young people will heed warnings against this practice, to my mind, is to miss the real level at which this practice currently takes place. The consequence may well be an emerging sector of society with little or intermittent internet access, the incentive to engage in practices which further offer anonymity, not to mention the stifling of technological development, all creating impediments to the progress and development of society.
As has already been seen in the United States and Europe, there are significant questions about the evidence on which current file sharing claims are currently being made, including instances where deceased people and those without access to the correct operating system on which to use the software, have been issued with subpoenas. To further allow the use of these questionable investigative techniques in an environment where there is no oversight by a judicial body, where the recipient would have no opportunity to defend themselves, and to treat these issues as matters of mere administration, is to cast off the protection of the law that is so badly needed against corporations with enormous resources and power. There are also significant privacy issues that should be addressed by such a practice.
As is common amoung young people and families, and as evidenced by events in other jurisdictions, often one computer or more importantly one internet account can be used by a number of people. This further raises the probability of wrongly targeting an account holder when in fact it was another person altogether responsible for the ‘infringement’. In these instances a number of people may be denied access on the basis of doubtful evidence. Further complications also arise from the fact that many broadband contracts are for 12months or more; not to mention the idea of repeat offenders. Is it simply the case that a banned file sharer will be able to seek out another ISP and start a new account; or shall there be a register of offenders and who shall have access to it or maintain it; shall the ban be for a set period of time; what if they are at university or work in a field where they are required to have Internet access?
As I am sure the Internet Industry Association has and will continue to argue, there are a number of difficulties also raised by such a prospect from the perspective of a communications provider. It is fundamental to an open society and an open internet that it is always remembered that Internet Service Providers are just that – service providers; independent communications carriers – they are not responsible nor should they ever be directly liable or accountable for what occurs over the network. ISPs are a fundamental link between individuals across the globe and unless they maintain absolute independence, these links are, and will increasingly be, placed in jeopardy. In particular, a situation should never be allowed to arise where ISPs are made accountable to private entities. One may well ask – where should such a regulation begin and end? Every single file, document, song, picture, movie, game, recipe etc; everything on the internet, with the exception of some content which is licensed for open use, is currently the subject of copyright. Should a user be banned for all activity that takes place on the internet or is it the proposal to favour some organizations over others?
What the internet has given society should not be underestimated or under valued. The content industry need to recognize that the times have indeed changed. They are operating in a very different environment to what they have traditionally and what this country needs is a government willing to stand up for the citizens and to recognize that mass corporations need not dictate government policy.
There are many alternatives that have and are being researched. With respect to the music industry very real and achievable balance can be struck by the introduction of a blanket or collective licensing scheme. The internet has opened up the opportunity for competition and creativity beyond what the music industry could ever achieve on its own. I urge you to reject this proposal from the outset and to make it clear to those with oligopoly control that this is the point where they need to alter their business models, not society that needs to alter in order to artificially sustain their futures.
The biggest misconception from this proposal is indeed the idea that this will result in the large corporations making more money. This suggestion is purely laughable. Those engaging in file sharing do so because they can with no cost. There is absolutely no way one could assert, that, in the absence of file sharing, these users would pay for this content. They won’t. They will simply go without, do what the can to get around the law, suffer the consequences or find alternative ways of obtaining the same material. With the ever decreasing costs of large portable storage devices, any government with the best interests of the content industry in mind, should openly argue for the adoption of a licensing scheme. In the event that a three strikes policy is brought in and for some amazing reason actually works, the net result will be the further movement of content exchange underground where these companies will have an even smaller opportunity of detecting it and monetizing it.
Beyond the rhetoric, beyond the false claims of hardship, beyond the expectation that society will be frozen in time so a handful of corporations can continue to make money; must be a government ready to deal in fact and reality. Not only is this proposal unworkable, it is plainly wrong.
ZeroPaid, Controlling the Net - How Hard Could It Be? (9 March 2008) <http://www.zeropaid.com/news/9317/Controlling+the+Net+-+How+Hard+Could+it+Be%3F> at 14 March 2008
New York Times, Cyber-Rebels in Cuba Defy State’s Limits (6 March 2008) <http://www.nytimes.com/2008/03/06/world/americas/06cuba.html?_r=4&scp=3&sq=cubA&st=nyt&oref=slogin&oref=slogin&oref=slogin&oref=slogin> at 14 March 2008 (this has a link to the YouTube clip)
ZeroPaid, French File-Sharers to Begin Receiving E-Mail Warnings This Summer? (February 2008) <http://www.zeropaid.com/news/9236/French+File-Sharers+to+Begin+Receiving+E-Mail+Warnings+this+Summer%3F> at 4 February 2008
The Register, Filesharers petition Downing Street on 'three strikes' (28 February 2008) <http://www.theregister.co.uk/2008/02/28/filesharing_downing_st_petition/> at 3 March 2008
ZeroPaid, UK Govt to ISPs: 'You Have Until April '09 to Punish File Sharers' (26 February 2008) <http://www.zeropaid.com/news/9289/UK+Govt+to+ISPs%3A+%27You+Have+Until+April+%2709+to+Punish+File-Sharers%27> at 28 February 2008
Digital Music News, British Government Gives Industry, ISPs Ultimatum (25 February 2008) <http://www.digitalmusicnews.com/stories/022408uk> at 26 February 2008
The Register, Government rattles 'three strikes' filesharing sabre again (22 February 2008) <http://www.theregister.co.uk/2008/02/22/burnham_dcms_filesharing/> at 25 February 2008
Digital Music News, Operation ISP: Legislative Proposals Emerge in UK (13 February 2008) <http://www.digitalmusicnews.com/stories/021208isp> at 19 February 2008
Slyck, UK ISPs Balk at Unplugging P2P Pirates (14 February 2008) <http://www.slyck.com/story1662_UK_ISPs_Balk_at_Unplugging_P2P_Pirates> at 18 February 2008
ZeroPaid, Labels Love ISPs Disconnecting File Sharers, But Who Will Pay for Lawsuits? (14 February 2008) <http://www.zeropaid.com/news/9265/Labels+Love+ISPs+Disconnecting+File-Sharers%2C+but+Who%27ll+Pay+for+Lawsuits%3F> at 15 February 2008
ZeroPaid, UK P2P Crackdown to Fuel Wi-Fi Hi Jacking (14 February 2008) <http://www.zeropaid.com/news/9264/UK+P2P+Crackdown+to+Fuel+Wi-Fi+Hijacking%3F> at 15 February 2008
The Register, ISPs demand record biz pays up if cut-off P2P users sue (12 February 2008) <http://www.theregister.co.uk/2008/02/12/anti_filesharing_paper_leak/> at 13 February 2008
TechDirt, UK To Force ISPs To Kick Casual File Sharers Off The Internet (12 February 2008)<http://www.techdirt.com/articles/20080211/220305233.shtml> at 13 February 2008
TorrentFreak, 5 Reasons Why Illegal Downloaders Will Not Face a UK Ban (12 February 2008)
<http://torrentfreak.com/illegal-downloaders-will-not-face-uk-ban-080212/> at 13 February 2008
BBC News, Illegal Downloaders 'face UK ban' (12 February 2008) <http://news.bbc.co.uk/1/hi/business/7240234.stm> at 13 February 2008
Slyck, UK Moves to Disconnect P2P Pirates (12 February 2008) <http://www.slyck.com/story1661_UK_Moves_to_Disconnect_P2P_Pirates> at 13 February 2008
The Register, Minister threatens legislation deadline (8 January 2008) <http://www.theregister.co.uk/2008/01/08/triesman_isps_legislation_timetable/> at 11 January 2008
The Register, Filesharing shambles revealed as 'deal' collapses (15 February 2008) <http://www.theregister.co.uk/2008/02/15/tiscali_bpi_agreement/> at 18 February 2008
Digital Music News, Three-Strikes Hits Australia: ISP Legislation Considered (19 February 2008) <http://www.digitalmusicnews.com/stories/021708australia> at 21 February 2008
ZeroPaid, Australian ISPs May Also Ban File-Sharers from the Internet (20 February 2008) <http://www.zeropaid.com/news/9281/Australian+ISPs+May+Also+Ban+File-Sharers+from+the+Internet> at 21 February 2008
TechDirt, Australia Latest To Consider Kicking People Off The Internet For File Sharing (18 February 2008) <http://www.techdirt.com/articles/20080218/014201277.shtml> at 19 February 2008
Sydney Morning Herald,
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