Ole, a Canadian independent record label, put forward an often-heard and much disputed proposal to enhance record label revenues: Ole wants ISPs to surveil Canada’s digital networks for copywritten works. In the record label’s filing on July 12 for the Digital Economy Consultations, entitled “Building Delivery Systems at the Expense of Content Creators,” Ole asserts that ISPs are functioning as “short circuits” and let music customers avoid purchasing music on the free market. Rather than go to the market, customers are (behaving as rational economic actors…) instead using ISP networks to download music. That music is being downloaded is an unquestionable reality, but the stance that this indicates ISP liability for customers’ actions seems to be an effort to re-frame record industries’ unwillingness to adopt contemporary business models as a matter for ISPs to now deal with. In this post, I want to briefly touch on Ole’s filing and the realities of network surveillance for network-grade content awareness in today market. I’ll be concluding by suggesting that many of the problems presently facing labels are of their own making and that we should, at best, feel pity and at worst fear what they crush in their terror throes induced by disruptive technologies.
Ole asserts that there are two key infotainment revenue streams that content providers, such as ISPs, maintain: the $150 Cable TV stream and the $50 Internet stream. Given that content providers are required to redistribute some of the $150/month to content creators (often between 0.40-0.50 cents of every dollar collected), Ole argues that ISPs should be similarly required to distribute some of the $50/month to content creators that make the Internet worth using for end-users. Unstated, but presumed, is a very 1995 understanding of both copyright and digital networks. In 1995 the American Information Infrastructure Task Force released its Intellectual Property and the National Information Infrastructure report, wherein they wrote;
…the full potential of the NII will not be realized if the education, information and entertainment products protected by intellectual property laws are not protected effectively when disseminated via the NII…the public will not use the services available on the NII and generate the market necessary for its success unless a wide variety of works are available under equitable and reasonable terms and conditions, and the integrity of those works is assured…What will drive the NII is the content moving through it.
Of course, the assertion that if commercial content creators don’t make their works available on the Internet then the Internet will collapse is patently false.
All sorts of nasty things as said about ISPs that use Deep Packet Inspection (DPI). ISPs aren’t investing enough in their networks, they just want to punish early adopters of new technologies, they’re looking to deepen their regulatory powers capacities, or they want to track what their customers do online. ISPs, in turn, tend to insist that P2P applications are causing undue network congestion, and DPI is the only measure presently available to them to alleviate such congestion.
At the moment, the constant focus on P2P over the past few years has resulted in various ‘solutions’ including the development of P4P and the shift to UDP. Unfortunately, the cat and mouse game between groups representing record labels, ISPs (to a limited extent), and end-users has led to conflict that has ensured that most of the time and money is being put into ‘offensive’ and ‘defensive’ technologies and tactics online rather than more extensively into bandwidth-limiting technologies. Offensive technologies include those that enable mass analysis of data- and protocol-types to try and stop or delay particular modes of data sharing. While DPI can be factored into this set of technologies, a multitude of network technologies can just as easily fit into this category. ‘Defensive’ technologies include port randomizers, superior encryption and anonymity techniques, and other techniques that are primarily designed to evade particular analyses of network activity.
I should state up front that I don’t want to make myself out to be a technological determinist; neither ‘offensive’ or ‘defensive’ technologies are in a necessary causal relationship with one another. Many of the ‘offensive’ technologies could have been developed in light of increasingly nuanced viral attacks and spam barrages, to say nothing of the heightening complexity of intrusion attacks and pressures from the copyright lobbies. Similarly, encryption and anonymity technologies would have continued to develop, given that in many nations it is impossible to trust local ISPs or governments.
In the past several months there have been more and more fractures in the carefully maintained facades of the RIAA and EU’s democratic openness. They have also been the formative months of Nicholas Negroponte’s dream of putting inexpensive notebooks in the hands of the most disenfranchiased youth in the world, a dream that will be realized in a few short weeks. I want to quickly elaborate on the first two ‘bombs’, and then quickly comment on Negroponte’s dream.
Reznor Serves His Walking Papers
Trent Reznor is a brilliant salesperson. Over the course of his last album he used some incredible guerrilla marketing to generate (more or less) free advertising for his album . . . only to have the RIAA threaten to sue his fans! Reznor has been incredibly critical of the record labels for some time, but now he’s free of them! On the Nine Inch Nails’ website he has written;
Hello everyone. I’ve waited a LONG time to be able to make the
following announcement: as of right now Nine Inch Nails is a totally
free agent, free of any recording contract with any label. I have
been under recording contracts for 18 years and have watched the
business radically mutate from one thing to something inherently very
different and it gives me great pleasure to be able to finally have a
direct relationship with the audience as I see fit and appropriate.
Look for some announcements in the near future regarding 2008.
Exciting times, indeed.
As an initial aside: Linux betas really are betas, nothing like the relatively polished (in comparison) betas that Redmond released.
Piracy or ‘Avast Me Mateys!’
I don’t spend a lot of time talking about software or music piracy, largely because I think that there are alternate sources that more effectively aggregate and deliver news about it. That said, I couldn’t resist commenting on Jennifer Pariser’s (head of litigation for Sony BMG) statements surrounding digital technologies. When under oath, Pariser responded to Richard Gabriel’s (the lead counsel for record labels) question of whether it was wrong for consumers to make copies of music they have purchased, stating,
When an individual makes a copy of a song for himself, I suppose we can say he stole a song.” Making “a copy” of a purchased song is just “a nice way of saying ‘steals just one copy’ (source).
Her comments directly point to why fair use is under such duress. More importantly, however, even when we apply the principle of charity to her general position, her comments seem to defy the public’s position on the matter. I don’t want to suggest that because people generally believe something that the law should reflect their beliefs – if that was the case then racial segregation would be more prominent than it is – but that when extensive public discourse has been undertaken and a common position is held by the deliberative participants, that their shared consensus should operate as the basis for developing legitimated law. I think that this discourse has, and continues to, occur in North America.
The Canadian SIGINT Summaries includes downloadable copies, along with summary, publication, and original source information, of leaked CSE documents.
Parsons, Christopher; and Molnar, Adam. (2021). “Horizontal Accountability and Signals Intelligence: Lesson Drawing from Annual Electronic Surveillance Reports,” David Murakami Wood and David Lyon (Eds.), Big Data Surveillance and Security Intelligence: The Canadian Case.
Parsons, Christopher. (2015). “Stuck on the Agenda: Drawing lessons from the stagnation of ‘lawful access’ legislation in Canada,” Michael Geist (ed.), Law, Privacy and Surveillance in Canada in the Post-Snowden Era (Ottawa University Press).
Parsons, Christopher. (2015). “The Governance of Telecommunications Surveillance: How Opaque and Unaccountable Practices and Policies Threaten Canadians,” Telecom Transparency Project.
Parsons, Christopher. (2015). “Beyond the ATIP: New methods for interrogating state surveillance,” in Jamie Brownlee and Kevin Walby (Eds.), Access to Information and Social Justice (Arbeiter Ring Publishing).
Bennett, Colin; Parsons, Christopher; Molnar, Adam. (2014). “Forgetting and the right to be forgotten” in Serge Gutwirth et al. (Eds.), Reloading Data Protection: Multidisciplinary Insights and Contemporary Challenges.
Bennett, Colin, and Parsons, Christopher. (2013). “Privacy and Surveillance: The Multi-Disciplinary Literature on the Capture, Use, and Disclosure of Personal information in Cyberspace” in W. Dutton (Ed.), Oxford Handbook of Internet Studies.
McPhail, Brenda; Parsons, Christopher; Ferenbok, Joseph; Smith, Karen; and Clement, Andrew. (2013). “Identifying Canadians at the Border: ePassports and the 9/11 legacy,” in Canadian Journal of Law and Society 27(3).
Parsons, Christopher; Savirimuthu, Joseph; Wipond, Rob; McArthur, Kevin. (2012). “ANPR: Code and Rhetorics of Compliance,” in European Journal of Law and Technology 3(3).