Cultural Studies 3 Lecture 9

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Published on January 16, 2009

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Cultural Studies 3:  Cultural Studies 3 Digital culture and life in the 21st Century Lecture 9: Avast there, ye pirate scum: File-sharing, intellectual property & digital rights Liam Greenslade http://ncad.culturalstudies.googlepages.com http://ncadculturalstudies3.blogspot.com We know what you’re up to and we’ll make you pay for it:  We know what you’re up to and we’ll make you pay for it A Hertfordshire couple in their 60s were horrified to receive a letter last week from a London firm of lawyers accusing them of downloading a hardcore gay porn movie. It demanded they pay £503 for "copyright infringement" or face a high court action. The 20-page "pre-settlement letter" from lawyers Davenport Lyons, acting on behalf of German pornographers, insisted they pay £503 to their clients for the 115 minute film Army Fuckers which features "Gestapo" officers and "Czech" farmers. The Guardian 29/11/08 Key issues and concepts:  Key issues and concepts File sharing Piracy Intellectual Property Fair use DRM Copyright & Copyleft The Darknet File sharing: The early years:  File sharing: The early years The invention of the audio cassette and the spread of devices like the Sony Walkman in the 1970s lead to a music industry panic about illegally distributed tapes and a major anti-copying campaign by the music industry Similarly, the emergence of the video tape in the 1980s provoked the wrath of the movie and television industry These crusades were based on the argument that the ability to duplicate sound recordings at home and distribute these copies for personal use would lead to a decline in album sales Manufacturers pushed the development of the CD initially because it was believed they couldn’t be copied(!) The capacity to copy: The Betamax case:  The capacity to copy: The Betamax case In 1976 Universal Studios and Walt Disney sued video tape manufacturers Sony alleging that manufacturing a device that could potentially be used for copyright infringement made Sony liable for any infringement that was committed by its purchasers. In 1984 the US Supreme Court ruled that the making of individual copies of complete television shows for purposes of time-shifting does not constitute copyright infringement but is fair use. The Court also ruled that the manufacturers of home video recording devices, cannot be liable for infringement. The Sony case set a number of precedents which are still being worked through as copying and file-sharing has been extended by the internet and P2P software Napster: The beginnings of internet file-sharing:  Napster: The beginnings of internet file-sharing Developed by Shawn Fanning and released in 1999 Napster was the first MP3 file sharing system which enabled users to share tracks for free Napster's was sued almost immediately by Recording Industry Association of America (RIAA) n injunction was issued in 2001 ordering Napster to prevent the trading of copyrighted music on its network. In July 2001, Napster shut down its entire network in order to comply with the injunction. In September, 2001, the case was partially settled. Napster agreed to pay music creators and copyright owners a $26 million settlement for past, unauthorized uses of music, as well as an advance against future licensing royalties of $10 million Napster were also sued by Metallica, Dr Dre and Madonna and eventually went out of business in its original form File-sharing and P2P:  File-sharing and P2P Users download a program to their computer that allows them to connect to the network. The same program allows the user to search media on other users’ computers and download this media from them across the Internet. These networks allow the sharing of any type of digital content. One of the most popular ways to get very large files like movies, computer applications, and video games is to use BitTorrent Large media files are broken down into smaller chunks, which are then transferred to the user (or peer) depending on the fastest possible connection to the missing piece This is done while uploading file segments to other users. File-sharing and piracy:  File-sharing and piracy It is important to understand the difference between file-sharing over the internet and the piracy and counterfeiting of media for gain. Spokespeople for media industry organisations often conflate the two Music sharing does hurt the income of some artists, but most of those artists are the ultra-famous. Smaller independent artists have, on numerous occasions, discovered that making their music available for free download is a great promotional strategy (Ian, 2002). The evidence supporting the ‘billion dollar costs’ and job-losses attributed to file-sharing (as opposed to mass copying and piracy) is anecdotal at best and dubious at worst (Sanchez, 2008). It is very difficult to calculate the effect on sales, particularly of music, because it is almost impossible to estimate either the numbers of people who would have bought a given CD or those who did buy as a result of hearing the work through file-sharing Bit Torrent explained:  Bit Torrent explained A BitTorrent client is any program that implements the BitTorrent protocol. Each client is capable of preparing, requesting, and transmitting any type of computer file over a network, using the protocol. A peer is any computer running an instance of a client. To share a file or group of files, a peer first creates a small file called a "torrent" (e.g. MyFile.torrent). This file contains metadata about the files to be shared and about the tracker, the computer that coordinates the file distribution. Peers that want to download the file must first obtain a torrent file for it, and connect to the specified tracker, which tells them from which other peers to download the pieces of the file. Each peer who downloads the data also uploads them to other peers. Relative to standard internet hosting, this provides a significant reduction in the original distributor's hardware and bandwidth resource costs. It also provides redundancy against system problems and reduces dependence on the original distributor. Source: http://en.wikipedia.org/wiki/BitTorrent_(protocol) Napster, downloading and the music industry:  Napster, downloading and the music industry Napster was accused of hurting the sales of the record industry, but there is some evidence that the opposite was true In July 2000 tracks from Radiohead's album Kid A were placed on Napster three months before the CD's release. Radiohead had never before been in the US top 20. Kid A was an experimental album without any singles and received relatively little radio airplay. By the time of the record's release, the album was estimated to have been downloaded for free by millions of people worldwide. In October 2000 Kid A went to number one on the Billboard 200 sales chart in its debut week. The Pirate Bay: a culture of copying:  The Pirate Bay: a culture of copying The closure of Napster and other file-sharing projects by the music and film industry appears to have run aground on Swedish shores Founded in 2003 by a crew of file-sharing advocates called Piratbyrån, or Pirate Bureau, The Pirate Bay began life as a Swedish-language site occupying a second tier among popular torrent trackers The Pirate Bay (http://thepiratebay.org/) makes use of Swedish copyright laws which until recently permitted copying for personal use The site receives 1,000 to 2,000 HTTP requests per second on each of its four servers and around a million searches per day. It currently hosts 25 million peers The Pirate Bay’s operators have been subject to numerous legal actions by the recording, music, and film industries and have been raided by the Swedish police, all without success Bit Torrent and the Pirate Bay:  Bit Torrent and the Pirate Bay The Pirate Bay's use of the Bit-Torrent protocol appears to protect them from prosecution. The site's Stockholm-based servers provide only torrent files, which by themselves contain no copyright data -- merely pointers to sources of the content. That makes The Pirate Bay's activities perfectly legal under Swedish statutory and case law, "Until the law is changed so that it is clear that the trackers are illegal, or until the Swedish Supreme Court rules that current Swedish copyright law actually outlaws trackers, we'll continue our activities. Relentlessly,“ Michael Viborg legal advisor The Pirate Bay (2006) Intellectual Property:  Intellectual Property Much of the recent debate around the use digital technologies has revolved around the idea of ‘intellectual property’ IP refers to creations of the mind such as musical, literary, and artistic works; inventions; and symbols, names, images, and designs used in commerce, including copyrights, trademarks, and patents Under intellectual property law, the holder of one of these abstract properties has certain rights to the creative work, commercial symbol, or invention by which it is covered. IP owners have claimed exclusive rights and protections which severely limit the use and modification of ‘knowledge products Arguments against IP protection:  Arguments against IP protection Information is fundamentally different from physical property in that there is no natural scarcity of a particular idea or information: once it exists it can be re-used and indefinitely without such re-use diminishing the original. Thus there is no direct analogy to "theft"; the closest analogy is to copy or use the information without permission, which does not affect the original possession The Grey Album:  The Grey Album In 2004 Brian Burton an LA DJ (aka Danger Mouse) sampled and mixed tracks from The Beatles’ White Album with rapper Jay-Z’s ‘Black Album’ which were given a limited internet release EMI ordered Danger Mouse and retailers carrying the album to cease distribution. Danger Mouse never asked permission to use The Beatles' material Although the work was copyrighted, it was released for the implicit purpose of encouraging mashups and remixes. The album was named the best album of 2004 by Entertainment Weekly Grey Tuesday (24/02/04):  Grey Tuesday (24/02/04) EMI’s actions prompted mass civil disobedience in the form of an electronic internet protest in which websites posted copies of The Grey Album free for download for 24 hours This protest was provoked by the opinion that sampling is fair use and that a statutory license should be provided in the same manner as if a song had been covered. 170 websites took part in hosting the album for download. Over 100,000 copies were downloaded. The legal repercussions of the protest were minimal; a number of the participants received cease and desist letters from EMI Doctorow (2008) Intellectual property is a silly euphemism:  Doctorow (2008) Intellectual property is a silly euphemism The stuff we call "intellectual property" is just knowledge - ideas, words, tunes, blueprints, identifiers, secrets, databases. This stuff is similar to property in some ways: it can be valuable, and sometimes you need to invest a lot of money and labour into its development to realise that value. But it is also dissimilar from property in equally important ways. Most of all, it is not inherently "exclusive". If you trespass on my flat, I can throw you out (exclude you from my home). If you steal my car, I can take it back (exclude you from my car). But once you know my song, once you read my book, once you see my movie, it leaves my control. Short of a round of electroconvulsive therapy, I can't get you to un-know the sentences you've just read here. Fair Use:  Fair Use Fair use is the right to use copyrighted material without permission or payment It is a general right that applies even in situations where the law provides no specific authorization for use (e.g in educational and artistic contexts) One of the key definitions of the term was derived from the Sony Betamax case in 1984 Fair Use:  Fair Use Fair use may be found when a work is used "for purposes such as criticism, comment, news reporting, teaching, . . . scholarship, or research." ... Each of these uses, however, reflects a common theme: each is a productive use, resulting in some added benefit to the public beyond that produced by the first author's work.. Judge Harry Blackmun US Supreme Court (1984) Digital Rights Management:  Digital Rights Management DRM is a form of access control technology used by manufacturers, publishers and copyright holders to limit usage of digital media or devices. Unlike copy protection methods DRM allows the issuer of the media or file to control in detail what can and cannot be done with its product The DRM disaster:  The DRM disaster In 2005, Sony BMG introduced a new technology which installed DRM software on users' computers without clearly notifying the user. The software included a rootkit, which created an exploitable security vulnerability on the buyer’s PC. When the nature of the DRM involved was made public much later, Sony was eventually compelled to recall millions of CDs and release several attempts to patch the software to remove the rootkit. Sony were sued by a number of users and ultimately settled by agreements to provide affected consumers with a cash payout or album downloads free of DRM. In 2007, EMI was the last company to stop publishing audio CDs with DRM, stating that "the costs of DRM do not measure up to the results." Audio CDs containing DRM are no longer released by any major record labels Defective by design:  Defective by design The negative effect on sales and public attitudes by the use of software-based DRM has led manufacturers to find hardware based solutions which limit the kinds of files that can be used or the number of times a piece of software can be run or transferred from user to user DefectiveByDesign.org is a broad-based anti-DRM campaign that is targeting Big Media, unhelpful manufacturers and DRM distributors The campaign aims to make all manufacturers wary about bringing their DRM-enabled products to market. DRM products have features built-in that restrict what jobs they can do. These products have been intentionally crippled from the users' perspective, and are therefore "defective by design" Defective by design: ‘Big Media & DRM revisited:  Defective by design: ‘Big Media & DRM revisited Although DRM is no longer used on CDs, digital providers such as Apple, still use forms of DRM to limit the use of their products iPod users are restricted from transferring their music to other non-Apple devices and new Macbooks contain a hardware chip that prevents certain types of display being used, The Amazon Unbox movie service user agreement requires users to allow DRM software to monitor the hard drive and report activity to Amazon. Removing the software means losing any movies purchased A number of games manufacturers have installed programs which prevent or limit multiple installing and the second-hand sale of games as secon The RIAA and the MPAA are actively lobbying Congress to pass new laws to mandate DRM and outlaw products and computers that don't enforce DRM. The ‘darknet’:  The ‘darknet’ Originally coined in the 1970s to refer to computers linked to Arpanet but not on the official network Darknet now refers to private networks used predominantly for sharing content Biddle et al (1992) characterise its evolution alongside the development of the Internet from ‘small world networks’ to large scale file-sharing P2P networks Evolution of the darknet:  Evolution of the darknet Source: Biddle et al, 1992 Policing the Darknet:  Policing the Darknet Source: Biddle et al, 1992 Implications of the darknet:  Implications of the darknet Biddle et al (1992) argue that the darknet will continue to exist and expand and that this has profound implications for business strategy: Increased security (e.g. stronger DRM systems) may act as a disincentive to legal commerce. Both users and sellers can benefit from ‘disemcumbered’ software They conclude In short, if you are competing with the darknet, you must compete on the darknet’s own terms: that is convenience and low cost rather than additional security. Copyright:  Copyright Copyright was originally intended to restrict the activities of printers and evolved as a means of protecting the rights of authors to benefit from their work Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed. Copyright law does not restrict the owner of a copy from reselling legitimately obtained copies of copyrighted works, provided that those copies were originally produced by or with the permission of the copyright holder. The length of copyright depends on several factors, including the type of work (e.g. musical composition, novel), whether the work has been published or not, and whether the work was created by an individual or a corporation. Big media and copyright:  Big media and copyright Media and software companies have used copyright law as a means of attacking and policing file-sharing and piracy In the US and Europe they have lobbied consistently for extended copyright periods, stricter controls and harsher penalties for infringements In Britain and the US stricter copyright laws have placed greater power in the hands of the media industries to police and protect their copyrights The Digital Millenium Copyright Act (DMCA) 1998 :  Digital Millenium Copyright Act (DMCA) 1998 In the US the Digital Millenium Copyright Act prohibits the development of copyright circumvention software. The DMCA gives publishers the power to lock books, songs, and movies up with reader, player, or viewer software, and to threaten anyone who examines the software with legal action. This has led to the imprisonment of at least one programmer, Dmitry Sklyarov, for circumventing Adobe’s e-book reader system and making ebooks readable on non-Adobe software The law, campaigners argue, endangers scientific pursuits such as cryptography which contributed to making the internet possible. Edward Felten, a Princeton professor and encryption researcher, received a letter from recording industry lawyers warning him that a paper he was about to present at a conference -- it described the weaknesses of an encryption system -- could subject him to enforcement actions under the D.M.C.A.. Copyright Extension:  Copyright Extension In 2007 Britain rejected plans to extend copyright protection from 50 to 70 years The current culture minister Andy Burnham is now considering that extension and in the EU, Charlie McCreevy is backing a retroactive extension to 95 years. These decisions appear to be the product of pressure from the music industries and performers many of whom (such as the Beatles and Cliff Richard) have work about to enter the public domain The arguments for extension have been presented in moral terms, when the evidence suggests a purely economic motivation with minimal benefits to both artists and increased costs for the public Leading academic across Europe have attacked these decisions primarily on the grounds that the evidence for their adoption is non-existent, weak, or biased Gowers’ Review of Intellectual Property:  Gowers’ Review of Intellectual Property Copyright is an economic instrument, not a moral one, and if you consider the economic arguments – as I did two years ago at the request of Gordon Brown – you will find that they do not stack up. All the respectable research shows that copyright extension has high costs to the public and negligible benefits for the creative community. Consumers find themselves paying more for old works or unable to access “orphan works” where copyright ownership is unclear. Small businesses that play recorded music such as hairdressing salons and local radio stations face a hidden extra “tax” in the form of higher music-licence fees. Andrew Gowers 2008 Copyleft: All rights reversed:  Copyleft: All rights reversed In response to stringent or restrictive copyright laws, some content creators have opted for less restrictive means of protecting their intellectual property rights Copyleft allows an author to impose some copyright restrictions but permits activities that would otherwise be considered copyright infringement Richard Stallman, founder of the Free Software Foundation, originated the GNU General Public Licence (GPL) which forms the basis for much open source software including Linux Copyright, Copyleft & GPL:  Copyright, Copyleft & GPL Copyleft utilises copyright law to protect intellectual property by granting rights to users Copyleft applies only when a person seeks to redistribute a program. User are allowed to make private modified versions, without any obligation to divulge the modifications as long as the modified software is not distributed to anyone else. The GPL terms apply once the modified product is re-distributed It must be distributed under the same terms as the original software. As a consequence all enhancements and additions to copylefted software must also be distributed as free software. Further Reading:  Further Reading Biddle P et al 1992 The darknet and the future of content distribution http://www.bearcave.com/misl/misl_tech/msdrm/darknet.htm Gowers A (2008) Copyright extension is out of tune with reality http://www.ft.com/cms/s/0/ba280756-ca07-11dd-93e5-000077b07658.html Ian, J (2002) The internet debacle: An alternative view http://www.janisian.com/article-internet_debacle.html Doctorow C (2008) http://www.guardian.co.uk/technology/2008/feb/21/intellectual.property Sanchez, J (2008) 750,000 lost jobs? The dodgy digits behind the war on piracy http://arstechnica.com/articles/culture/dodgy-digits-behind-the-war-on-piracy.ars The Issue http://www.anti-dmca.org/index.html

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