Monetising File Sharing

One of the central arguments that supporters of file sharing architecture tend to make is that there needs to be a distinct change of focus from trying to stop file sharing to monetizing it. This perspective suggests that even if it were possible to prevent or control file sharing that this would not result in any real increase in income for copyright holders. One likely consequence would be that the exchange of material would simply move further underground or take a different form.

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.

Articles
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, War on music piracy (17 February 2008) <http://www.smh.com.au/articles/2008/02/16/1202760662778.html> at 19 February 2008

TechDirt

I just wanted to point out that Michael Masnick from TechDirt has recently started a series of posts on intellectual property. Last year he published an excellent series of posts on economics.

I really enjoy reading his contributions and I encourage others to take a look at them too.

REM: Accelerate Release

There have been quite a few reports over the past couple of days about REM's plan to release their new album on iLike. Michael Stipe is quoted by msnbc as stating:

...the way people embrace music "has certainly changed in the last 5 or 10 years. I think you can either go with it or sit back and watch it happen, and I would rather be out on the field than in the bleachers."

The article goes on to say that the album Accelerate will be made "freely available to anyone using iLike.com, Facebook, iTunes or any of the other social networks and sites that offer an iLike application for their platforms." It will be available as a free stream from 24 March 2008 with the CD being released on 1 April 2008 (no joke) according to Yahoo Music News.

Earlier this year the band also set up a website with ten takes of the video for the first single, Supernatural Superserious, allowing fans to mix their own version of the video clip. Twenty seven different versions of the clip have been posted to YouTube.

Its great to see another band experimenting with different distribution methods, business models and encouraging user generated material. Despite being signed to a major label (Warner), REM have been active in attempting to negotiate the digital environment. They have contributed to events with the Future of Music Coalition as well as been listed in the past with EFF as one of the bands that will not sue people for sharing their music.

This is certainly a step in the right direction but fairly conservative compared with Radiohead and NineInchNails. Nonetheless it helps to illustrate the opportunities created by the internet, for established artists to maximise the opportunity for their music to communicate with their audience as well as encourage user contributions and sales.

Articles:
msnbc, R.E.M. debuts album on social networking site (11 March 2008)
<http://www.msnbc.msn.com/id/23575134/> at 13 March 2008

TechDirt, REM Puts Album on iLike (12 March 2008) <http://www.techdirt.com/articles/20080312/004726506.shtml> at 13 March 2008

Digital Music News, R.E.M. Offering Streaming Album Debut on iLike (10 March 2008) <http://www.digitalmusicnews.com/stories/030908ilike> at 11 March 2008

TimesOnline, R.E.M. to debut new album on Facebook application (11 March 2008) <http://entertainment.timesonline.co.uk/tol/arts_and_entertainment/music/article3532355.ece> at 13 March 2008

Yahoo Music News, REM Like iLike (11 March 2008)
<http://uk.news.launch.yahoo.com/dyna/article.html?a=/080311/340/hvakn.html&e=l_news_dm> at 13 March 2008

Other articles here.

History Lessons

I have been trying to develop a table detailing, by column, the major developments of music styles, technology, legislation in the USA, legislation in AU and important cases. But it seems that I have opened a can of worms - every source I refer to has some different dates and different events to consider so its taking me a lot longer than I thought it would and it may be a little while yet before I can share it with you.

As part of this adventure, toady I have visited a website which has a nice little time line detailing the emergence of rock and roll. Another interesting article from today notes that it is ten years this month since the first mp3 player was launched.

I'm thinking that this project will never actually be complete as music/technology/law will continue to develop, so maybe I will publish it as a series of ever improving drafts. Hopefully I can share what I have started with soon.

Bjork in China

This is an interesting article about Bjork's concert in China where she made a connection between her song Declare Independence and Tibet. Chinese officials have reacted in a predictable way indicating that in future, international artists may be restricted from performing in the country. Bjork's comments were not reported in the State controlled media.

Bjork states that she is a musician not a politician and that the song was written with the personal in mind. Nonetheless the song has been connected with political struggles in the past including Kosovo and with respect to territories controlled by Denmark. She states:

...the fact that it has translated to its broadest meaning, the struggle of a suppressed nation, gives me much pleasure. I would like to wish all individuals and nations good luck in their battle for independence...

The event raises some interesting points about the place of international artists in what some consider to be domestic politics, as well as the effectiveness of censorship in China today.

Another article I read discussed the negative reaction of many Chinese people who used the internet to express concern at the comments. Similar sentiments were reported in other articles, which on the face of it suggests that the internet has, to a small extent, been able to overcome the censorship of the State media with individuals not at the concert learning of the event. However, no reports have been made indicating that some Chinese citizens support Bjork's statements. One can only wonder whether these voices are non existent or in fact are being silenced. Reports of concert goers leaving in a hurry following the comments indicates a fear of retribution and independent reports indicate that there is still significant opposition to China's occupation of Tibet. With local artists unable to express political views, only those from the outside can. No doubt in the future this will be made even more difficult. The National Democratic Party of Tibet has thanked Bjork for raising awareness of the plight of Tibetans:

"Bjork´s song dedication has been very beneficial to us by drawing attention to what is still happening. Through her action the world and its media can not forget us and must watch over us as we begin our peaceful 'March to Freedom' on the 10th of March from Dharamsala back into Tibet - all the way to Lhasa. Over 20,000 exiles are expected to attend by the time we attempt to cross the border into Tibet."

This seemingly small form of protest illustrates the power of music to convey a political message. The relationship between music and politics is too often characterised in a simple light. It is a complex dynamic that takes many forms, from the most obvious to the most minute and obscure, often arising when you least expect it.

BoingBoing have a copy of the clip here.
More reports on the event are available here.

Porn Filtering

I didn’t really want to stray from discussing material relating to copyright/music/technology but I just read this article (Govt sticks to guns on internet porn filters) and it so incensed me that I feel the need to respond to it.

As you are most likely already aware Australia is in the process of testing a ‘clean feed’ whereby every internet connection in the country will receive filtered access unless the account holders actively ask their ISP not to filter. The government's reasoning seems mostly of the order that ‘it was our election promise so we are going to do it’ with very little real understanding of what this actually means.

As noted in this article one concern is the impact this will have on Internet access speeds. What passes as broadband in Australia compared with other countries is already dubious but with the added limitations of filtering at an ISP level we can only expect that it will get slower. This impacts on all aspects of our lives from home computing tasks to commercial tasks as well as involving additional costs which will be passed from ISPs to consumers. Filters must be updated constantly to remain even partially effective and this means ongoing maintenance costs – forever.

Aside from this there are also some very real concerns for free speech. Note that the mother in this article states with respect to the home filtering software offered by the Government:

“... we found it was very cumbersome and clunky. It really restricted access to sites, for example on whether it was boats or art or things that the kids were researching for school, so it would just block you constantly and it became very frustrating."

The fact of the matter is that filtering, regardless of whether it is done in the home or at an ISP level, is imperfect. This sort of performance will simply be paralleled on a country wide basis. Every Australian internet connection will have distorted search results which block material which is not meant to be blocked and some pornographic material will still pass through the filters. If we as parents are lulled into thinking the filters are effective then our children will be no safer than they are now.

One may also question who will be determining which material will be blocked and on what terms. The internet offers an open architecture enabling free communication and here we sit as a ‘progressive western nation’ ready to allow private interests to determine what we can and can not view. How are we to know what we are being blocked from seeing? How long will it be before material that offends other values, including political views, is blocked? You can read more information here where Irene Graham notes that the filtering systems used in other countries, if implemented here, would see entire sites like YouTube and MySpace blocked.

I have argued time and again that the answer to this issue is a combination of parental supervision and education. The point that should really be taken from this article is that this parent was unaware of the dangers on the Internet, and this should be the point that is addressed as a primary concern. From one perspective it could be suggested that the government has failed to educate parents and provide parents with the information they need to be able to deal with this issue themselves. But another perspective suggests that this article and the basis of the whole of the government’s policy is flawed.

I wrote to Senator Conroy earlier this year on this issue, and I stated:

As you are no doubt aware, the ACMA recently released a detailed report considering the relationship between Australian families and the media, including the Internet.[1] In the overview of this report it is categorically stated that Australian parents feel comfortable with their children’s Internet activity. Indeed 61% of parents indicate that they are not concerned about their children’s Internet activities with only 8% being very concerned.[2] A number of very effective measures are currently employed including keeping computers in public areas of the house, spending time on the Internet with their children, talking about security issues, developing agreements and understandings, reviewing the history of the web browser, browser filtering as well as the use of free filters already available to block content at the home level.[3] With respect to the later of these methods only 19% of parents use browser or filtering software. When looking at each of the age groups of the children within the research, a maximum of 10% of families have the free internet filtering software installed.[4] Yet overall Australian parents are comfortable with their children’s use of the Internet. Indeed 48% also state that their children’s Internet use is overall easy to manage and a further 37% state that it is very easy to manage.[5]

It seems altogether convenient for the government to forget its own and most recent research into the relationship between Australian families and the Internet.

Today I went to my daughters parent/teacher night and in passing, another mother said that her daughter had raised an issue relating to sex leading to a general discussion about how to introduce information in a passive way (for under tens). I mentioned that we go to our local library every week and that one week we had been in a rush and I had borrowed some books, from the children’s section, without having read through them properly and when we got home and started reading that night there was a book that had maybe a little too much information in it (it was an age appropriate, fictional story, but not really for reading at bedtime). As this article discusses, it is not beneficial to introduce children to these issues in a way that lacks explanation or monitoring – I do not think children should have unfettered access and I do think there can be psychological and behavioural consequences for those that do – but the point is that it is our job as parents to ensure that life education takes place in a constructive way. It is not the role of the government but up to parents to filter material and decide what is appropriate for our children and when. What I dispute here, is the method by which the government is seeking to achieve this goal. There are many other ways that are being used now, and that can be improved and expanded on, that will have an equal if not better chance of success with far fewer negative consequences.

Its interesting that the government has also announced an in school education program for internet security (I am hoping to find out more on the copyright aspects of this program) - clearly even with the proposed filtering they remain concerned about children's internet safety. This, combined with a comprehensive education program, made available to parents, free of charge, through the school system, would be a far better option than filtering. What parents need is information and strategies. Not enough has been done to provide these to parents and this should be the basis of the governments policy.

The filtering program sets in place the architecture to censor the internet for all Australians and opens the opportunity for this government, and future governments, to restrict information without our knowledge. It is a dangerous precedent that we should do everything to resist. I have listed Senator Conroy’s address below and I urge you all to write today to express concern for this proposal.

Senator, The Hon. Stephen Conroy
Minister for Broadband, Communications and the Digital Economy
Level 4, 4 Treasury Place
Melbourne Vic 3002

minister@dbcde.gov.au

---

[1] Australian Media and Communications Authority, Media and Communications in Australian Families (2007)

[2] See page 95

[3] See page 127

[4] See page 126

[5] See page 104

Nine Inch Nails/Radiohead

As you may have read (links below), in recent days Trent Reznor and NineInchNails have released some new material (Ghosts) using an alternative business model. The options include nine tracks for free; 36 tracks and a 40 page PDF file for $5 as well as other combinations of material that scale to a higher price. This takes a similar format to the release by Radiohead last year where listeners were able to download the songs for free prior to the release of the CD for sale – when the CD was released it went to number one in both the USA and UK.

These examples provide interesting illustrations of artists experimenting with new business models. However there are a few points I think should be made to contextualise their use. First, this model works for these artists because they have had the benefit of the marketing power of a major label in the past. Of course the Arctic Monkeys have already illustrated that encouraging music sharing can help independent or unknown artists to reach wider audiences, but this has been one of the few examples. To my mind, the Nine Inch Nails/RadioHead model works for those that have had a reasonable level of exposure in the past.

Indeed I find it frustrating that some of the commentary considers ‘only’ 20% of customers paying for the release as an indication of failure. This type of characterisation fails to account for customers that download for free first and then later purchase, purchase other goods, recommend the songs to friends or attend a concert as a flow on from the free download. Furthermore commentary that considers this level of paying customers a failure in comparison to levels of CD purchases last century, fails to consider that the music is being produced and marketed with far less overheads and therefore does not need to sell to that level to be considered successful. This type of thinking does little to measure the success of a business model. As I have discussed earlier, there are also serious problems in equating financial success to the authenticity of an artist or their work and the dollar amount recouped by these models should never be used as a basis to discuss artistic success.

The bigger question for me, however, is whether this business model is sustainable across an industry or for a greater number of artists. As noted above, those without an established listening base are likely to have difficulties with the model (see also articles below relating to Saul Williams), but even more to the point, if a much broader sector of the existing market were to attempt to engage this model, and a range of competing offers introduced, it seems likely that its financial sustainability would be further fragmented to the point where it would not be viable. When you start to consider previous artists and back catalogue material it becomes even less likely that these artists could employ such a business model.

This serves to illustrate why collective licensing would be more beneficial in the long run as an alternative model employed on an industry wide basis. While the NineInchNails/RadioHead model seems to work in isolated instances, what society needs (and indeed is the point of copyright law) is the maintenance of a professional sector of artists that are sufficiently free from the influences of capitalism (this will never be absolute but can be achieved to a much greater degree than now) in order to produce material capable of reflecting on events and attitudes within society. By producing a pool of money through collective licensing and then dividing this up amoung artists based on popularity, both society and artists would enjoy a much more certain future.

Unlike others that have considered the collective licensing model in the past, I do not believe that such a pool of funds could be divided between every musical work on the Internet for an unlimited period of time (or life plus seventy years). I consider that there will always be a sector of amateur or hobby artists and that the term of copyright protection as it stands is both undesirable and unsustainable regardless of whether such a model were to be embraced. However I do believe that a collective licensing model could be developed where a significantly greater number of artists could realise a reasonable return over a reasonable length of time; that such a model would encourage and sustain diversity and that artists would have a more equal chance of gaining success. I also believe that should a collective licensing model be introduced that (at least in the short term) there would still be some demand for physical purchases and that artists should be entitled to recoup funds from these as they are now.

The other point to note from this NineInchNails experiment is that their servers could not cope with the demand for the downloads. I went to the site yesterday and was greeted with a message to the effect that there was such an overwhelming response that they had to pull the site down for maintenance - even though they anticipated a massive response, NineInchNails were unable to cater for the demand using a centralised architecture. This is one of many examples of where file sharing architecture comes into its own by being able to provide large files in a high demand environment. However it needs to be part of an overall distribution structure that works within the business model to be successful. With the Radiohead release there were concerns about the level of file sharing despite the availability of the files for free and whilst this may have been offset by the later level of CD purchases, a collective licensing model could have addressed this issue from the outset.

The future is a collective licensing model built on the basis of open file sharing architecture. The future is now – as they say; and it is the future that the regulators and courts are risking every time they cast dispersions against the legality of file sharing architecture.

Update:

Latest reports indicate that the limited edition (2,500) "Ultra-Deluxe Limited Edition Package" that included high quality downloads, two CDs, a data DVD, a Blu-ray high def DVD and assorted extras in an autographed package, for $300, has sold out. This package on its own has therefore returned $750,000 in two days to NineInchNails.

Further Reading:

The Register, Nine Inch Nails cracks net distribution (maybe) (3 March 2008) <http://www.theregister.co.uk/2008/03/03/nine_inch_nails_album_released_online/> at 5 March 2008

Digital Music News, Resnikoff's Parting Shot: Is Reznor Reshaping a Market? (3 March 2008) <http://www.digitalmusicnews.com/stories/030308parting> at 5 March 2008

Digital Music News, NIN Experiment Gets Off to a Slooooow Start (4 March 2008) <http://www.digitalmusicnews.com/stories/030308nin> at 5 March 2008

TechDirt, Trent Reznor Continues Business Model Experiments: Releases Latest Album Online (3 March 2008) <http://www.techdirt.com/articles/20080302/234646401.shtml> at 5 March 2008

Digital Music News, NIN Injecting Steroids Into Radiohead Model (3 March 2008) <http://www.digitalmusicnews.com/stories/030208nin> at 4 March 2008

TechDirt, Saul Williams Agrees That It's Way too Early To Be Disheartened (11 January 2008) <http://www.techdirt.com/articles/20080111/111158.shtml> at 18 January 2008

Digital Music News, Reznor Pet Project Yields Mized Results, Some Cash (7 January 2008) <http://www.digitalmusicnews.com/stories/010707nine> at 11 January 2008

TechDirt, Radiohead's Physical Album Selling Well (8 January 2008) <http://www.techdirt.com/articles/20080107/191334.shtml> at 11 January 2008

Digital Music News, Radiohead Perches Atop US Album Sales Chart (9 January 2008) <http://www.digitalmusicnews.com/stories/010908radiohead> at 11 January 2008

Digital Music News, A More Traditional Radiohead Scores British Top Slot (7 January 2008) <http://www.digitalmusicnews.com/stories/010707radiohead> at 11 January 2008

The Register, Radiohead top UK album chart (7 January 2008) <http://www.theregister.co.uk/2008/01/07/radiohead_album_chart/> at 8 January 2008

TechDirt, Dear Trent Reznor: Don't Be Disheartened Yet (4 January 2008) <http://www.techdirt.com/articles/20080104/015516.shtml> at 8 January 2008

TechDirt, Getting Millions Of People Listening To Your Music, With Many Giving You Money Voluntarily, Is Dumb? (18 December 2007) <http://www.techdirt.com/articles/20071217/135346.shtml> at 23 December 2007

TechDirt, The Second Stage Of The Radiohead Experiment (11 December 2007) <http://www.techdirt.com/articles/20071211/004849.shtml> at 13 December 2007

Digital Music News, Radiohead Questions Album Sales Report, Sets CD Release Date (8 November 2007) <http://digitalmusicnews.com/stories/110807radiohead> at 18 November 2007

Digital Music News, Radiohead Numbers Emerge, 62 Percent Paid Nothing (5 November 2007) <http://www.digitalmusicnews.com/stories/110507radiohead38> at 18 November 2007

FreedomToTinker, Radiohead Album Available for Free, But Fileshared Anyway (18 October 2007) <http://www.freedom-to-tinker.com/?p=1215> at 31 October 2007

Digital Music News, Heavy File-Swapping Cools Radiohead Enthusiasm (18 October 2007) <http://www.digitalmusicnews.com/stories/101807radiohead> at 31 October 2007

Digital Music News, Radiohead Sales Estimates Surface, New Wrinkles Emerge (15 October 2007) <http://www.digitalmusicnews.com/stories/101407radio> at 31 October 2007

TechDirt, Radiohead's Marketing Ploy Not A Stunt; Just Good Business (23 October 2007) <http://www.techdirt.com/articles/20071022/011057.shtml> at 29 October 2007

Digital Music News, Radiohead Tickles Executive Fancy, Majors Lukewarm (4 October 2007) <http://www.digitalmusicnews.com/stories/100307radio> at 7 October 2007

TechDirt, Radiohead Tells Fans To Name Their Own Price For Latest Album Downloads; Gives Them A Reason To Pay (1 October 2007) <http://www.techdirt.com/articles/20070930/214524.shtml> at 7 October 2007

ZeroPaid, 'Limitless Potential'- Official Nine Inch Nails Fan Remixes Now on BitTorrent (6 September 2007) <http://www.zeropaid.com/news/8988/'Limitless+Potential'-+Official+Nine+Inch+Nails+Fan+Remixes+Now+on+BitTorrent> at 10 September 2007

Levy v Victoria [1997] HCA 31 – PART 2

Rounding off the discussion (so far) on the implied right to political communication in Australia, I would like to take a little time to consider the test laid out in Lange v ABC and applied in Levy v Victoria and how this can or cannot be used to base a case against copyright expansion.

There are two parts to be considered:

First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect?

The important part of the test to focus on here is ‘operation or effect’. As noted in earlier posts there is nothing specific in the Copyright Act which prevents political communication – unlike the Nationwide News case, for example, where the legislation directly sought to prevent free speech. In the context of copyright expansion, any claim would have to be based on the idea that the operation or effect of the law was such that political communication is impeded. This would be a matter of evidence and I would suggest that it would need to be fairly convincing. Assuming this could be established, the next part of the test would need to be addressed.

Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s128 for submitting a proposed amendment of the Constitution to the informed consent of the people...

This part of the test is more difficult to decipher in this context. On the face of it one may well suggest that copyright law serves a legitimate purpose, but in fact evidence, particularly with respect to the music industry, may well be able to demonstrate that there are quite illegitimate ends being served at present. Firstly, there is a limit to what can be enacted into law and still be called ‘copyright’ and secondly what determines the legitimacy of the end must surely relate to the social, economic and technical environment in which the law is enacted.

The courts have taken a wide view of what constitutes political communication and there is general support that it need not take place with reference to an election or in an election period. On the one hand copyright law could be characterised as providing the incentives to create with the intention of educating the people in order to ensure they are capable of participating on a political level. On the other, one could lead evidence to suggest that there has been a significant lowering in need to provide incentives for the creation of this type of expression and therefore the law is not 'reasonably appropriate or adapted' in the circumstances.

If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid.

With the right evidence, a case against copyright expansion could be framed. Its impossible to say with certainty what the outcome would be but I take some hope in the knowledge that it would not be completely impossible.

February: Interesting Clips

Here are some clips I have watched this month.

1. The RIAA on Filtering and Fair Use

The first is Cary Sherman from the RIAA talking about filtering copyright works on the Internet. He suggests that this technology would be ideal as it would only block the material of copyright holders that elect to prevent downloading and that despite the flaws in the technology and the impact on fair use, it should be implemented. He also comments on the issue of ripping CDs to space shift music for personal use. Sherman fails to state categorically that this is lawful however explains that that the record industry is the most permissive of all creative industries as it simply will not sue an individual for doing it.

I don't really know where to start criticising this clip - there's just too much to pick from! Filtering is a very very bad idea; it is an imperfect technology at best; it often results in material that is not meant to be filtered, being filtered; in the end it will only serve to impede the development of technology and society; it will not end up making more money for the major corporations in the content industry; it compromises the position of ISPs as independent communications providers; it costs heaps of money but is really really easy to avoid... need I go on? And on the notion that ripping CDs is a 'gift' from the lables out of the kindness of their hearts???? It bothers me [lots] to think that someone in a position such as this, fails to see that the central beneficiaries of copyright law were always meant to be the public. The law already offers very little balance and to characterise, what is a fundamental right, as something the labels have given US citizens is just appalling - of course its good that they wont sue people for ripping CDs but surely its not too much for them to openly state that the law permits it.(Australia has express terms in our Copyright Act permitting space shifting):

2. Chris Anderson on the economics of free:

http://www.wired.com/techbiz/it/magazine/16-03/ff_free?currentPage=all

Chris is the author of the text The Long Tail. Here he talks about the impact on digital goods and industries due to the reduction in costs of bandwidth, storage and processing. Read the whole article – it provides an excellent explanation of the economics of the Internet and how successful businesses have adapted to this environment.

3. Tracking of BitTorrent downloads

This is a really good demonstration of how individuals can be tracked whilst using BitTorrent. The graphic of the swarm is interesting as are the methods by which IP addresses can be located.

4. Russia Today on The Pirate Bay

This clip is of an interview with Gottfrid, one of the operators of the Pirate Bay, suggesting that merely linking to material is not illegal. In response it is claimed that the Priate Bay is making large amounts of money from their activities to the detriment of artists.

Levy v Victoria [1997] HCA 31 – PART 1

The next case to be considered in this series is that of Levy v Victoria. Levy was involved in protesting against duck shooting in Donald, Victoria in March 1994. The area where this activity was taking place was the subject of the Wildlife (Game)(Hunting Season) Regulations 1994 (Vic) made pursuant to the Wildlife Act 1975 (Vic) which provided restrictions on the times and days people without a valid game license were permitted to enter designated hunting areas. Levy stated his purpose for entering this area without a permit and at a prohibited time to be:

1. To speak publicly and protest about the issues on an informed and persuasive basis

2. To be publicly seen, especially on television, helping and collecting injured birds and protected species

3. Ensuring that the people of Victoria could form and exercise informed political judgements regarding the position of the government with respect to duck shooting.

He was charged with three summary offences of entering into or upon a permitted hunting area without a permit during prohibited times. Levy claimed that the law was invalid as it interfered with his right to political communication. The Victorian government argued, amongst other measures, that the Constitutional limitations placed on the Commonwealth did not apply to the States, that there was no freedom of political communication in the Victorian Constitution and that the regulations did not unreasonably have the purpose of restricting the implied right to political communication stemming from either the Commonwealth or Victorian Constitution. For the purposes of this discussion regard will be had to aspects of the judgements which assumed the implied right to be available to the defendant.

To begin with I will outline the reasoning of the court in this case before again looking to apply aspects of the judgements to the issue of copyright expansion.

Summary of Judgements

Brennan CJ made some interesting observations with respect to the type of conduct protected by the implied freedom, stating (at page 5):

Speech is the chief vehicle by which ideas about government and political are communicated. Hence it is natural to regard the freedom of communication about government and political implied in the constitution as a freedom of speech. But actions as well as words can communicate ideas. In the United States where “freedom of speech” is protected by the First Amendment of the Constitution, non-verbal activity which expresses ideas may be protected as a form of speech. Thus a “protest by silent and reproachful presence” or by a burning of the flag of the United States have been held to be protected by the First Amendment....

The freedom of discussion implied in the Constitution of the Commonwealth, unlike the subject of protection under the First Amendment of the United States Constitution, does not require consideration of the connotation of “speech” or of the conduct which might be thought to constitute a form of speech. The implication denies legislative or executive power to restrict the freedom of communication about the government or politics of the Commonwealth, whatever be the form of communication, unless the restriction is imposed to fulfil a legitimate purpose and the restriction is appropriate and adapted to the fulfilment of that purpose. In principle, therefore, non-verbal conduct which is capable of communicating an idea about the government or politics of the Commonwealth and which is intended to do so may be immune from legislative or executive restriction so far as that immunity is needed to preserve the system of representative and responsible government that the Constitution prescribes.

In recognising that political communication in Australia extends beyond speech to actions and expression, Brennan qualified the operation of the implied right by suggesting that a limitation may be placed on its availability to challenge a law where that law can be seen to be reasonably appropriate and adapted for a legitimate purpose. He discussed this further at page 6:

If the prohibition or regulation is reasonably appropriate and adapted to the protection of life or limb there can be no doubt as to its validity. A law which is appropriate and adapted to the fulfilment of that legitimate purpose is not invalidated by limitations of legislative power implied from the terms and structure of the Constitution merely because an opportunity to discuss matters of government or politics is thereby precluded...

He considered that the role of the court was not to determine whether another method could have been adopted to achieve the same purpose but rather that the role of the court was limited to determining whether the means that were adopted were reasonably appropriate and adapted to the fulfilment of that purpose. He concluded that the implied right to political communication was not unjustifiably impeded in these circumstances.

Dawson J also held that in these circumstances the regulations were necessary to provide for the safety of the general public and as such were reasonable despite the impact on the implied right to political communication. Indeed he questioned whether the right was in fact implied at all but rather a natural construct of central provisions to the Constitution.

Worth noting are his observations regarding right to political communication, quoting directly from Lange v Australian Broadcasting Corporation:

First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government... If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid...

He went on further in this regard at page 13:

Free elections do not require the absence of regulation. Indeed, regulation of the electoral process is necessary in order that it may operate effectively or at all. Not only that, but some limitations upon freedom of communication are necessary to ensure the proper working of any electoral system. Apart from regulation of the electoral process itself, elections must take place within the framework of an ordered society and regulation which is directed at producing and maintaining such a framework, will not be inconsistent with the free elections contemplated by the Constitution notwithstanding that it may incidentally affect freedom of communication. In other words, the freedom of communication which the Constitution protects against law as which would inhibit it is a freedom which is commensurate with reasonable regulation in the interests of an ordered society.

Toohey and Gummow JJ also adopted the same test from Lange v Australian Broadcasting Corporation in reaching the conclusion that the regulations were valid. With respect to the second part of the test which requires a determination of the purpose of the regulations, they paid attention to the details of Regulation 1 which stipulated the objectives of the regulation to be, ensuring “a greater degree of safety of persons in hunting areas during the open season for duck in 1994” and the making of “amendments concerning the times and dates for the open and close seasons for game duck”.

They acknowledged that political expression not merely speech came within the ambit of protection and in discussing the curtailment of that freedoms stated that whilst the attachment of a penalty is a significant matter when assessing validity, it is not the only factor to be considered. In concluding that the regulations were valid they held that there was no express prohibition on political expression, that any impact was likely to be minimal and that in the circumstances the impact on political communication was reasonable.

Gaudron J also held the regulations to be valid and whilst noting that the test varies in each case depending on the purpose of the law in question, if the direct purpose of the law is to restrict political communication, it is only valid where necessary for achieving an overriding public purpose. If the law is directed to another purpose, connected to a grant of legislative power within the Constitution, then restriction of the right to political communication is only permissible where it is reasonably appropriate and adapted to that purpose.

McHugh J also noted that the ambit of expression falling within the right is wide – at page 23:

For the purposes of the Constitution, freedom of communication is not limited to verbal utterances. Signs, symbols, gestures and images are perceived by all and used by many to communicate information, ideas and opinions. Indeed, in an appropriate context any form of expressive conduct is capable of communicating a political or government message to those who witness it ...

Moreover, the constitutional implication does more than protect rational argument and peaceful conduct that conveys political or government messages. It also protects false, unreasoned and emotional communications as well as true, reasoned and detached communications. To many people, appeals to emotions in political and government matters are deplorable or worse. That people should take this view is understandable, for history, ancient and modern is full of examples of the use of appeals to the emotions to achieve evil ends. However, the use of such appeals to achieve political and government goals has been so widespread for so long in Western history that such appeals to the emotion cannot be outside the protection of the constitutional implication.

In essence McHugh J applied the same test as stated in Lang v Australian Broadcasting Corporation. McHugh concluded, as the others, that there was an impact on the freedom of political communication but that in the circumstances the regulations were valid.

Completing the unanimous judgements in this case, Kirby J, in also concluding that the regulations in this instance were valid and that political communication in Australia extends beyond words, provided what may well be the clearest summary of the law in this area. He identified six central propositions to the formulation and application of the implied right to political communication (page 36 to 37):

1. The purpose of the freedom must be kept in mind. It is to contribute to protecting and reinforcing the system of representative government for which the text and the structure of the Constitution provide...

2. No one suggests that such freedoms are absolute...

3. A distinction has been drawn between laws which incidentally affect constitutionally protected freedom of communication and laws which specifically target communication on political and government matters as such...

4. In other cases where a law has been said to impinge upon constitutionally protected freedom of communication, various tests have been proposed for differentiating between inhibitions which are legally permissible and those which are not. Thus, it has been suggested that a law that is “appropriate and adapted” to the fulfilment of a “legitimate purpose” or “reasonably and appropriately adapted” to “secure some end within power” will survive a challenge although the freedom of communication on political and governmental matters is affected. Alternatively, the concept of proportionality has been invoked by the suggestion that the impugned law must not be “disproportionate” to the attainment of the competing public interest or that there must be a “proportionality between the restriction which the law imposes on the freedom of communication and the legitimate interest which the law is intended to serve”. The concept of proportionality as a guide to the limits of powers not themselves expressed in purposive terms has been criticised. Nevertheless, in my view it is a useful concept, including in the context of burdens upon constitutional freedoms, so long as it is realised that it describes a process of reasoning and does not provide a sure answer to its outcome. It is a concept of growing influence upon our law. It is no more question-begging than the phrase “appropriate and adapted”. It springs from a richer jurisprudential source. It is certainly less ungainly.

5. In a number of cases, it has been suggested that a law-maker will be accorded a “margin of appreciation” in the making of a law designed to achieve a governmental interest which has the affect of inhibiting to some degree communication concerning political and governmental matters... In Australia, without the express conferral of rights which individuals may enforce, it is necessary to come back to the rather more restricted question. This is: does the law which is impugned have the effect of preventing or controlling communication upon political and governmental matters in a manner which is inconsistent with the system of representative government for which the Constitution provides? Such cases do exist. But in the nature of their source in Australian constitutional law they will be fewer than the multitude of First Amendment cases which have engaged the attention of the courts of the United States.

6. Whilst bearing in mind the foregoing discussion, the test to be applied is that recently stated in the unanimous opinion of the Court in Lange v Australian Broadcasting Corporation:

“First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government and the procedure prescribed by s128 for submitting a proposed amendment of the Constitution to the informed consent of the people... If the first question is answered ‘yes’ and the second is answered ‘no’, the law is invalid.”

This case therefore further consolidated the acceptance of the test laid out in Lange, which is now seen as the central basis on which cases concerning the implied right to political communication will be determined. This case also established that freedom of political communication is not restricted merely to words but can include other forms of expression.