When people are about to download content from the ‘net that is copywritten, many often ask ‘will I get caught doing this?’ For many, the response is ‘no’ and then continue to download that episode of Seinfeld or whatever. Given that there are so many people downloading, and that record companies in the US have claimed to have abandoned filing new lawsuits against individuals, then things (in North America) appear to be getting better.
At issue, however, is that filing lawsuits is big money, and in Europe especially it looks like Digiprotect has moved in to assume first-mover advantage. Digiprotect gets “the legal rights from the companies to distribute these movies to stores, and with these rights we can sue illegal downloaders. Then we take legal action in every country possible, concentrating on the places where such action will be profitable” (Source). They avoid demanding too much money from infringers, on the basis that few judges like the idea of imposing million dollar fines on individuals – usually opting for suits demanding in the vicinity of 500 Euros. This amount of money ‘teaches’ individuals and provides enough money to keep the employees paid. No staff member has a fixed salary – they are paid according to the ‘cases’ that are won. The actual method of determining the financial burdens are based on the business expenses, profit, and money to be distributed to artists. In effect, the company sets up a honeypot and then sues whomever it is profitable to sue.
Immanuel Kant’s essay “On the Common Saying: ‘This May be True in Theory, but it does not Apply in Practice'” argues that theory is central to understanding the world around us and that, moreover, attempts to say that ‘theory doesn’t apply to the world as such’ are generally misguided. Part of the reason that Kant can so firmly advocate that theory and reality are co-original emerge from his monological rationalism, but at the same time time we see him argue that the clearest way to bring theory and practice into alignment is with more theory – rather than adopting ‘parsimonious’ explanations of the world we would be better off to develop rigorous and detailed accounts of the world.
Parsimony seems to be a popular term in the social sciences; it lets researchers develop concise theories that can be applied to particular situations, lets them isolate and speak about particular variables, and lends itself to broad(er) public accessibility of the theory in question. At the same time, theorists critique many such parsimonious accounts because they commonly fail to offer full explanations of social phenomena!
The complexity of privacy issues in combination with a desire for parsimony has been a confounding issue for privacy theorists. Nailing down what ‘privacy’ actually refers to has been, and continues to be, a nightmarish task insofar as almost every definition has some limiting factor. This problem is (to my mind) compounded when you enter online, or digital, environments where developing a complete understanding of how data flows across systems, what technical languages’ demands underlie data processing systems, and developing a comprehensive account of confidentiality and trust, are all incredibly challenging and yet essential for theorization. This is especially true when we think of a packet as being like post card (potentially one with its content encrypted) – in theory anyone could be capturing and analyzing packet streams and data that is held on foreign servers.
I rely on other people to produce content for me to consume, and I reciprocate by providing my own content (via this blog, government submissions, submissions to alternative news sites, interviews on radio, etc.) to the public. I see this as a reciprocal relationship, insofar as anyone can come here and use my content so long as they abide by my creative commons license. Unfortunately, most advocates for newspapers would see what I do (i.e. blog, think publicly) as unequal to their own work. I’m just an amateur, and they’re the professionals.
One of my colleagues recently linked me to a statement that David Simon presented to Congress about the life or death of newspapers. His argument is (roughly) that bloggers and other ‘amateurs’ cannot be expected or trusted to perform the high quality journalism that these ‘amateurs’ then talk about online (Note from Chris: clear case in point, the critical analysis by journalists of the Bush administration and Iraq compared to bloggers. Oh…wait…). You need dedicated professionals who are professionally trained to generate consistently high quality and accurate content. At the same time, the for-profit model of newspapers has led them to cannibalize their operations for profit. Newspapers will perish if capitalism and the market are seen as ‘solutions’ to the demise of newspapers, just as amateur culture and their appropriation of media will destroy content producers. Something must be done.
I’m perhaps a bit idealistic, but I think that there are clear contemporary demonstrations of democracy ‘working’. Today’s example comes to us from Europe, where the European Parliament has voted to restore a graduated response to copyright infringement that pertains to when and how individuals can be disconnected from the Internet. Disconnecting individuals from the ‘net, given its important role in citizens’ daily lives, can only be done with judicial oversight; copyright holders and ISPs alone cannot conspire to remove file sharers. This suggests that any three-strike policy in the EU will require judicial oversight, and threatens to radically reform how the copyright industry can influence ISPs.
What might this mean for North America? If policy learning occurs, will we see imports of an EU-style law on this matter? Do we want our policy actors to adopt an EU-model, which could be used to implement a three-strike rule that just includes judicial review at the third strike? In Canada, with the tariffs that we pay, there are already permissible conditions for file sharing – do we really want to see strong American or WIPO copyright legally enforced on our soil?
[Note: this is an early draft of a section of a paper I’m working on titled ‘Who Gives a Tweet about Privacy’. Other sections will follow as I draft them.]
Unauthorized Capture and Transmission of Data
Almost every cellular phone that is now sold has a camera of some sort embedded into it. The potential for individuals to capture and transmit our image without permission has become a common fact of contemporary Western life, but this has not always been the case. When Polaroid cameras were new and first used to capture images of indiscretions for gossip columns, Warren and Brandeis wrote an article asserting that the unauthorized capture and transmission of photos and gossip constituted a privacy violation. Such transmissions threatened to destroy “at once robustness of thought and delicacy of feeling. No enthusiasm can flourish, no generous impulse can survive under [gossip’s] blighting influence” (Warren and Brandeis 1984: 77). Individuals must be able to expect that certain matters will be kept private, even when acting in public spaces – they have a right to be let alone – or else society will reverse its progress towards civilization.
The problem with walled gardens such as Facebook, is that you can be searched whenever you pass through their blue gates. In the course of being searched, undesired data can be refused – data like links to ‘abusive’ sites that facilitate copyright infringement. As of today, Facebook has declared war on the Pirates Bay, maintaining that because links to the site often infringe on someone’s copyright then linking to it violates the terms of service that Facebook users agree to. Given that the Pirates Bay is just a particularly specialized search engine, it would seem that Facebook is now going to start applying (American?) ethical and moral judgements on what people use to search for data. Sharing data is great, but only so long as it’s the ‘right kind’ of data.
What constitutes ‘infringing’ use when talking about a search engine? Google, as an example, lets individuals quickly and easily find torrent files that can subsequently be used to download/upload infringing material. The specific case being made against the Pirate Bay is that:
“Facebook respects copyrights and our Terms of Service prohibits placement of ‘Share on Facebook’ links on sites that contain “any content that is infringing. Given the controversy surrounding The Pirate Bay and the pending lawsuit against them, we’ve reached out to The Pirate Bay and asked them to remove the ‘Share on Facebook’ links from their site. The Pirate Bay has not responded and so we have blocked their torrents from being shared on Facebook.” (Source)