When Understanding lags behind Technology
Peter de Jager is a provocative Speaker, Writer and Consultant. His primary focus in on how we manage change, technology and the future.
In addition to speaking at conferences worldwide, he also writes monthly columns for CIO Magazine and Computerworld Canada.
His goal is always to question what we think is so, and in so doing perhaps open up new opportunities.
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Background:
On the 31st March, 2004, the Federal Court of Canada dismissed CRIA's (Canadian Recording Industry of Canada) motion to force Internet Service Providers to divulge the identities of 29 subscribers using P2P networks to share music over the Internet.
In reaching this decision (http://www.fct-cf.gc.ca/bulletins/whatsnew/T-292-04.pdf), the court determined that the CRIA had not shown prima facie evidence of Canadian copyright infringement. Specifically:
[27] As far as authorization is concerned, the case of CCH Canada Ltd v. Law Society of Canada, 2004 SCC 13, established that setting up the facilities that allow copying does not amount to authorizing infringement. I cannot see a real difference between a library that places a photocopy machine in a room full of copyrighted material and a computer user that places a personal copy on a shared directory linked to a P2P service. In either case the preconditions to copying and infringement are set up but the element of authorization is missing.
[28] The mere fact of placing a copy on a shared directory in a computer where that copy can be accessed via a P2P service does not amount to distribution. Before it constitutes distribution, there must be a positive act by the owner of the shared directory, such as sending out the copies or advertising that they are available for copying. No such evidence was presented by the plaintiffs in this case. They merely presented evidence that the alleged infringers made copies available on their shared drives. The exclusive right to make available is included in the World Intellectual Property Organization Performances and Phonograms Treaty, (WPPT), 20/12/1996 (CRNR/DC/95, December 23, 1996), however that treaty has not yet been implemented in Canada and therefore does not form part of Canadian copyright law.
The Issue:
As a non-lawyer I can no more argue the finer points of international copyright law, than I could defend myself in court. That said, the above arguments have little to do with "law" and everything to do with a lack of understanding of how "technology", especially the Internet, enables the "copying" a document/file.
Let's take them one at a time, and in pieces. In section [26] the court, Honorable Justice von Finckenstein, states:
a) "I cannot see a real difference between a library that places a photocopy machine
in a room full of copyrighted material and a computer user that places a personal
copy on a shared directory linked to a P2P service. In either case the preconditions
to copying and infringement are set up…"
The difference is in the cost and speed of copying. Operating 24 hours a day, a photocopier can only copy a few thousand pages at a cost of about $0.20/page. It costs more to copy a book and violate its copyright, than it does to legitimately purchase the entire book, in a more attractive and permanent binding.
If your objective is to violate copyright then the photocopier is a less than optimal means of achieving that goal.
Photocopying a book is far less cost effective than buying it.
However, a file placed into a P2P network can spawn 10,000s of copies in a day at an infinitesimal cost per copy.
For example: I have an e-book at www.truthpicks.com, it's about 130 pages long, and it's been down loaded at least 30,000 times. It costs nothing to produce those 3,900,000 copied pages. That is qualitatively and quantitatively different from a photocopy machine in a library. If it is nothing else, the Internet is the most effective means of distribution on the face of the planet.
"Sharing" an electronic file, is far more cost effective than buying it.
b) "…but the element of authorization is missing."
Like nearly everyone else, I have music files on my PC, but to make them available to others on the internet, I have to take some very conscious steps. Access to my music files cannot happen by accident. I have to:
1) Connect my PC to the Internet.
2) Install a P2P application on my PC.
3) Specifically point the P2P application to the directory
I am choosing to make these music files available to the network.
Legal wordplay and semantics aside, these are the non-trivial steps each P2P participant must take in order to authorize other P2P participants to access their files. Far from being missing, the element of authorization is a necessary and critical component of P2P file sharing.
A more subtle, but more far more substantive lack of technological misunderstanding occurs in section [28]:
a) The mere fact of placing a copy on a shared directory in a computer where that copy
can be accessed via a P2P service does not amount to distribution. Before it
constitutes distribution, there must be a positive act by the owner of the shared
directory, such as sending out the copies…
The technological subtlety being overlooked here, is that if a file is placed into a "shared directory" on a network, then (using the full legal phrase) to all intents, constructions, and purposes, that file has been placed "on" every computer connected to the network with authority to access that directory.
This isn't, or at least shouldn't be, a revelation, it was the basis for Scott McNealy's battle cry for SUN Microsystems in the 1980s,
"The Network is the Computer!". Today, it's a reality, due in part to P2Ps, but in more general terms because of the explosive growth of the Internet.
In some cases, files in "shared directories" are more readily accessible than files physically residing in your office. The Magic of the Internet is that it places the entire world of information, including
all the sounds of music, on your screen, as if you had legal and physical possession of it.
The positive act of placing a file into a "shared directory" is the act of distribution to the network. This is why it's called a "shared" directory, by definition. Its contents are immediately available to all users with the authority to access that directory.
Notwithstanding the existing definitions of the word "distribution", placing a file into a "shared" directory immediately "distributes" that file to every computer on the network, regardless of geographical location.
To state this yet one more way, the physical or geographical location of a file, has no meaning or consequence in an electronic network where files move "instantaneously" at the speed of light from one location to the other.
b) …or advertising that they are available for copying.
The importance of advertising to the distribution process is inversely proportional to the ability of the market to search for what they want.
If I want to download music from performer "X", I do not need anyone to specifically announce or advertise that they've made that music available; I need only have access to a search engine allowing me to scan all available "shared directories" for that specific file.
This capability to search for specific music is a key component of all P2P applications. Without this global search capability, it is impossible for P2P participants to "distribute" millions of music files.
This ability to "find out for oneself" negates the traditional need to "be told by another".
The two arguments, [27] and [28], demonstrate a deep and stunning lack of understanding, not of the law, but of how Internet technologies operate and how they impose new definitions on archaic words such as "distribute".
Stating that there is no difference between access to a Photocopier, and access to a P2P network, means that either the capabilities of the copier or P2P
Networks are poorly understood by the speaker.
Photocopiers are low level threats to copyright because they can only produce a limited number of copies in a short period of time with a not insignificant cost to the copier.
A P2P network is a horse of a totally different kaleidoscope of colours, it enables the creation of thousands upon thousands of copies, at zero cost to the copiers, in seconds. P2P distributes music faster, more efficiently and more widely than all other prior distribution methods.
The sad fact is that the notion of Copyright is being eroded by our ability to Copyoften, Copyfree and Copyeasy. These new abilities have only recently been bestowed upon us by the global computer network. a.k.a. The Internet.
By the time the Law catches up with these concepts, Copyright will have become a quaint notion similar to stories told by aging grandparents of walking miles in chest deep snow, uphill (in both directions!), to
sit in schools heated by burning lumps of dried cow dung..
© 2005,
Peter de Jager – Peter is passionate about change, how it affects both
individuals and organizations and allows them to grow and prosper. To contact him, and
host internal seminars on Change Management visit www.technobility.com
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