Monday, April 12, 2010

Copyright, and the UK's Digital Bills to clamp down on my viewing habits

Just been reading The Register's article on the Digital Economy Act. Thought it was finally time for a bit of a rant...

The way forward is, was and always has been encryption. It just wasn't needed at any point in the past because the chances of being caught, the implications of being caught and the mass of possible defences made it a non-issue to be caught. Tor exists and does a pretty damn good job at stopping people knowing who you are. It's just that nobody has bothered to integrate such facility into a popular file-sharing protocol that's widely used because, to be honest, it hasn't been needed. When the necessity arises (and such a Bill being implemented in such a way *in real life* and not just in a politician's head would be that point), encryption destroys all the chances of monitoring such activity.

But "Piracy" as a concept isn't something that will die easily because it's mainstream and solves many mainstream problems much more effectively than anything else available.

The piracy problem, as thus stated, won't be solved by "looking for" people doing it. The record industries did that with a group of individuals and most of them either ignored their demands, provided a reasonable defence, cost too much to convict or when the record companies took them to court they made enough of an argument to stop things happening. Literally only a handful of cases ever made court, maybe a lot more were settled out of court, and still it's a tiny, tiny, drop in the piracy ocean (with maybe a handful less grannies and 10-year-olds downloading songs because they "got caught").

When you look for people, you only find those that *want* to be found or that aren't taking care not to be found. The people who are the real problem (the warez groups, the industry insiders providing pre-release movies, etc.) very, very rarely ever get traced back and hardly ever face any sort of sanction. Who gets stung? The people trying to view the content they would like to see. And those same people 99.9999% of the time have a reasonable defence, whether the government likes that or not (and, no, I don't consider "I'm pirating out of protest" to be a defence - but something like "I own it on DVD and wanted to watch it on my foreign DVD player" I consider pretty reasonable).

Of course, there is an obligation to uphold the laws but the fact that piracy is *so* prevalent, so tricky to define, can be made *so* hard to track / prove by the simple step of running, say, TOR, can be understood and performed by uneducated users, and provides material that just isn't available any more means that's it's not going to be pushed underground quietly.

It's almost a service now. And the problem is that the whole piracy thing goes ten million times deeper than "kids posting MP3's online". Let me give you some real-world examples that have occurred since only the beginning of the year (so only 3-months or so).

I was on a trip around Europe with some friends. We wanted music to play in the car. I don't buy, download or otherwise listen to music (the only CD I have ever personally owned was Jive Bunny and that was because someone bought it for me to go with a CD player they'd bought me, which never got used) but my passengers insisted on having something. They copied the tracks from their iPod to an SD card and we played it in the car (the fact that I have only a tape-player and that we had to use an SD-to-tape adaptor should tell you how often I listen to music).

Technically, I'm not even sure if that's legal or not. Is that "broadcasting"? Is that distribution? Should I be required to report my friend? Did my friend pay for the track originally? My friend is Australian - does that mean she might have contravened international laws and/or license restrictions on her purchased music? I have no idea whatsoever, and the SD card got wiped because I needed it for my digital camera. To the layman, we were just playing some music in the car, the same music we hear on the radio for free but without the annoying guys talking over it or stupid "customisations" of songs (we heard Capital's version of Kesha's Tik Tok which had a ten-second intro "sung" especially for Capital... it just made us laugh).

I was talking to my girlfriend about an advert that used to be on TV. She's foreign and had never seen it. I found it on YouTube, in what looked like a recording from an old videotape. Is that copyright infringement? Should I have reported it? Does the company that made the squirrel-assault-course ad for Carling Black Label care, or are they grateful for the publicity? How long would it take to find all the rights-holders for that 30-second clip and ask their permission? Was Youtube broadcasting it in contravention of international / UK law and/or was I doing so in showing my girlfriend?

I wanted to show her Button Moon, Count Duckula, Trap Door and Dangermouse. I have a load of episodes of each on DVD (not to mention the complete set of Batfink and Dungeons & Dragons cartoons) and the DVD's were in the room next to me. Time how long it takes to hunt a disc, remove from box, insert it into laptop, set up the DVD software, wait for the disk to spin up, etc. It was ten times quicker to go on Youtube and show her them. Was that wrong? Does the average person understand that stuff on Youtube may not be there legally? How does that mesh with content-holders who post *all* of their stuff legitimately on Youtube? Does the rights-holder for some of that material even exist any more? I have no idea. Technically, Happy Birthday is only licensed legitimately if you pay money to a corporation... how many average people even *KNOW* this let alone care, let alone would bother to report themselves, let alone pay, let alone want to sing it if they had to pay for it? It's no excuse, the law is the law, but the law sometimes make an ass of itself by painting itself into a logical corner filled with nonsense and then realising its mistake only decades later.

The same girlfriend had never seen The Good Life, and I wanted to show her. I have the complete set of DVD's at home with every episode ever made, but they were about 3000 miles away. I couldn't find anything but clips online except on torrent sites, and we were having a quiet evening in and wanted something to watch. I downloaded the torrent. It took three clicks, 20 minutes and less than a Gig of disk space and I had every episode. We watched them. Is that illegal? Is it immoral? Did the BBC suffer through my actions? The program is over 30 years old now, are the BBC still making money from it, or relying on it to generate revenue for them, or expecting it to do so indefinitely?

The same girlfriend also loves QI. We have all the books and DVD's. We watch one or two every night, along with things like Have I Got News for You or Whose Line is it Anyway. We were abroad, though, and didn't want to miss the latest one, but I couldn't access it. I used a UK proxy and get_iplayer and after about 5 minutes had a copy sitting on the hard drive. I was very, very careful not to download it while it was being broadcast because that would be illegal because I don't have a TV licence at home (no TV's!) and I knew I was bypassing the BBC's protections already. I knew my actions would be traceable but I didn't really care about the temporary storage and later viewing of that episode, though, only the TV license. I have quite a good knowledge of copyright law, but even I know that's still a grey-area and I still "take the risk". How does the same situation translate to a layman?

I've religiously bought every one of the QI DVD's and ripped them to my laptop (our primary viewing apparatus) for convenience - the DVD's occupy a coveted and well-guarded section of my DVD-shelf and would just add to my baggage allowance. Have I broken DMCA-type-laws by downloading them illicitly, or by decrypting the DVD, or transporting them to regions they aren't licensed for? Am I hurting content producers? If I let my girlfriend's family watch the episode with us (they don't speak English anyway, but hypothetically), is that illegal? I have *absolutely* no idea.

We both love Whose Line Is It Anyway and love the fact that 4od has them all online. We're slowly working our way backwards (the early series were crap) through them all. I used a proxy to do this from a foreign country after reading the following snippet from their FAQ:

"Can I watch 4oD in another country?
Rights agreements mean that our 4oD service is only available in the UK and the Republic of Ireland, (although C4 does not always have rights for programmes in ROI). Even if you are a citizen of the UK or ROI you cannot access the service from abroad"

It was easier to leave a program running on a computer left at home because I *know* I'm English and that if I was at home, I could watch them. I have lots of the DVD's but they don't really have the complete set available in a simple fashion (it's lots of old VCR compilation-tapes and things to get *every* episode, I believe). We even looked for a way to buy/download the episode quickly online, hoping that a British-registered card would allow us to download them even abroad. No chance, according to Wikipedia:

"A Download to Own (DTO) or "Buy" feature was once available on selected content, allowing users to purchase a programme and keep it for as long as they wish. This service has now been suspended..."

But now all their programmes are available for free on 4od or (some) on Youtube. So we went via a proxy (read: my home broadband connection) and we suffer the 20-seconds of ad's quite gladly because they are reasonable (like ad's on TV used to be). They get an extra viewer of their ads and content (which is what their entire business model is based on, I assume, being a TV channel?) and we got the episodes we wanted to watch without too much hassle. Did I break the law? Have I harmed Channel 4 by watching these programs that haven't been filmed for about 20 years with some adverts in them, bypassing their "region protection"?

My ex is a big, big fan of Just Good Friends (remember that?). I bought her Series 1 and 2 from Amazon and we were waiting for Series 3 to come out. Every time the date given approached (even with industry blogs saying dates, and Amazon pre-order dates, etc.) it would slip. Eventually they gave up giving dates and still now, five years later, you can't buy it. It's assumed that it's because of music-licensing rights to some of the music playing on the jukeboxes in the background in the pub and various minor things like that. Have I destroyed Ronnie Hazlehurst's life by downloading that last series so we can finally watch it after about 30 years since it's original broadcast, and five years of waiting for a DVD to come out? Do you really think that a person who's waited that long *wouldn't* buy the DVD if it were to come out tomorrow, just to complete their collection? You can't gift DVD-R's with some torrented AVI's on them - it's not the same. Incidentally - anyone ever seen "The Two Of Us" with Nicholas Lyndhurst available for sale *anywhere* on any format? Me neither. But if I found a torrent, I'd want to see it again. But EVEN THEN, if a DVD was released, I can name at least five people it would make a good present for (myself included!).

My girlfriend's father is a big WW1 fanatic. He has a huge collection of memorabilia and regularly goes metal-detecting in the mountains to get more. I wanted to show him Blackadder, series 4, which is set in the trenches. He doesn't speak English so he can't "watch" it but I had a quick look for it online in case there were Italian subtitles available. I didn't find any (if anyone knows of some, please do tell) but I did find the entire Blackadder, all series, available for streaming from some random website. Almost certainly illegal. Did it really hurt anyone to show him a brief few seconds and explain the jokes and let him look at the set, uniforms, etc. to see if they were accurate? If I could have found some Italian subtitled DVD's, I'd have bought them but would it be a big deal to show him an episode with Internet-posted subtitles so he could see if he'd enjoy it? Are the sites that host foreign subtitles to things like that breaking the law?

Since New Year, I've paid about £200 and downloaded dozens of games for that money from and Steam. It's said that Steam uses a Bittorrent derivative to download games quickly to my hard drive (they employed Bram Cohen, author of Bittorrent). All I know is that I click a button, enter my card details and in about ten minutes I have a game on my hard drive. The protocol, then, isn't illegal so it's an enormous job to distinguish legitimate downloading from piracy. Ever Linux distro I've ever used has a Bittorrent download too. I'd hate to go back to the days of HTTP / FTP downloading a 4Gb ISO.

I've been in schools that like to show DVDs to kids at the end of the year (on their "fun days"). I have absolutely no idea about the legality of that at all (I'm pretty sure that's broadcasting). I know that the music teachers have to tick a sheet saying which hymns they've sung that year in assembly so they can be charged for them (ask your child's school - it's pretty universal and quite expensive apparently). I don't think Disney do the same but they would certainly do it if the school would pay. I've also seen people copying tapes of educational programmes (that they have bought legitimately several years ago) that are no longer broadcast onto a DVD so they can play them on the modern projectors through their laptops. Is that illegal? I have no clue at all. What about kids going on Google Images and copying/pasting an image into a Word doc? Stupid, from a filtering point of view, yes, but almost all schools do this. Is that infringement?

So, with all the DVD's I've bought and can't use in the quite reasonable way that I want without (potentially, theoretically and only "possibly") breaking the law, with all the money I've spent online for various games, books, movies, etc., with all the stuff I have on my Amazon wishlist (if it even exists online) and want to buy, with all the content I want to absorb each night, I've somehow played my part in destroying the market and should be monitored, penalised and even taken to court?

The average person just can't see sense in that at all. And so the average person just doesn't *care* about piracy, because they've probably done it inadvertantly dozens of times in the past year. Did you publically perform Happy Birthday this year? Have you photocopied pages from a book? Did you put your music from your CD's onto your iPod? Have you watched YouTube clips?

When a law become ridiculous, it gets ignored. Eventually it gets removed from the statute books because it was worthless, stupid, unenforced and ignored. That's the way such "laws" were heading and these Bills only put a blip in that death-curve. Taxi drivers don't need to keep straw in their boot any longer, because it's irrelevant, outdated, nonsensical and pointless. But for many years, that law persisted even into the era of the motor vehicle. Copyright laws are in the same position, but this time we're not moving from horses to cars, we're moving from traditional media to the Internet.

I don't really care about the TV/movie/music industries. As far as I'm concerned they should make money where they can and if they can't, they should pull out of that market, the same as every other business. The fact is, though, that the only legitimate sites I've ever used are BBC iPlayer, 4od, ITV Player (since the stupid Silverlight requirement was scrapped) and similar. I get the content I can on DVD (because it's the least evil digital method, not because it's perfect) and even go to the extent of buying things on video from bootsales so that my digital content is "legitimate". And even my uses of those sites / media are potentially infringing under certain interpretations. I try hard to stay within the law, but the fact is that staying within the law while performing some quite harmless actions is hard - thus it's a bad law.

There's a point where a reasonable person has to make a choice - (potentially) break a (badly-written, outdated, irrelevant and relatively untested) law or stop consuming certain media. The problem is that piracy measures *don't* add a third choice, they just force you to make a choice between those two even more quickly and decisively. I gave up my TV licence because it wasn't value for money. When "piracy" becomes "criminal", then I have to make another choice - continuing consuming that media (potentially against the law) or take up mountaineering, learn Italian, play board games, etc. Neither of those options help the content makers, but they are precisely the ones forcing me to make that decision.

You know what? I'd rather buy second-hand tapes and DVD's at a boot sale of 30-year-old programs that they don't show any more and keep an old VCR running (and risk potential legal action) than use the other legitimate options available to me. That has to say *something* to the media industries surely?

Please, please get real. Come into the land of the sane. It's nice there, honestly. A £1 / episode download link on iPlayer / 4od / etc., a "Buy the DVD" option for just about everything in your archives. Stop pissing all the money I'm giving you away on trying to criminalise my quite reasonable actions to watch YOUR content that I enjoy. It's a nonsense, and the sooner you force me to make that decision the better.