Lots of systems available on the Web are on the edge between legality and illegality. Is that just a dark niche on the Web or a business model?

From IT

Just two lines to be fair to the readers: my work here is an attempt to clarify first of all to myself the birth and evolution of copyright, its boundaries and limits. I've based my search mainly on Cory Doctorow's "Content, selected esseys on technology, creativity, copyright and the future of the future", a book distributed under the Creative Common license. My biggest contribution here were to give an order to the articles he published creating a path trough history and time, with the addition of some examples that could help in being introduced in this vast and controversial topic. I'd like to thank the author to made me aware of his thought and experience is this field, generating a new unexpected passionating interest.

Contents 1 Path 2 What is copyright and why did it fail? 3 A bit of history that explains U.S.'s need for copyright 4 What is exactly the information economy? 5 Artists and copyright 6 Censorship threads: the case of Scientology Church 7 Chronology 8 But... 9 Conclusions

Path

In order to explore the blurred outlines between legality and illegality on the Web, I've decided to start form the key brick of the topic: the concept of copyright, described by some events through the time of history. In order of appareance it is about the Statute of Anne in 1710,which defined the first concept of what we now call copyright, the WTO/TRIPS agreement in 1995 that enabled to export manufacture goods to the U.S. without any tariff, in change of signing up American copyrights laws and the DMCA (Digital Millenium Copyright Act)in 1998, which simplified the procedure to remove "illegal"contents from the Internet.Later I try to give a definition to Information Economy and reflect on the concept of copy in the Net Era. The example of The Church of Scientology vs the Internet leads to the conclusions, which are more a springboard than a finishing post.

What is copyright and why did it fail?

(based on an article published on Locus in september 2006 by Cory Doctorow)

Copyright is a set of exclusive rights granted by the law of a jurisdiction to the author or creator of an original work, including the right to copy, distribute and adapt the work. Exceptions and limitations to these rights strive to balance the public interest in the wide distribution of the material produced and to encourage the creativity. Exceptions include fair dealing and fair use, and such use does not require the permission of the copyright owner. All other uses require permission and copyright owners can license or permanently transfer or assign their exclusive rights to others. Copyright does not protect ideas, only their expression or fixation. In most jurisdictions, copyright arises upon fixation and does not need to be registered. Copyright protection applies for a specific period of time, after which the work is said to enter the public domain1.

The roots of the concept date back to 1710 when the Statute of Anne, " An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned" determined that the "copy" was the "sole liberty of printing and reprinting" a book and this liberty could be infringed by any person who printed, reprinted or imported the book without consent and vest the exclusive right of publishing new editions of the copyrighted material only to the copyright holder. Thank to this act editors gained a legal tool against the competitors,separating the physical object called book from the spirit of it, that is the contained novel. Readers had the right to own the object as if for a carrot or a shovel, but obviously they couldn't print any copy of it since printing machines were rare and expensive. The risk of having the copyright violated by common citizens was therefore avoided. It was not the same for people using copies protected by copyright for commercial use. In the following years, radios choosing tracks to be put on air, had the duty to ask the permission, to shoot a film was necessary asking for the right to use the original soundtrack. Theoretically, boundaries between what can be done with or without permission are covered by a doctrine called fair use, defined as a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. Fair use is a doctrine in United States copyright law that allows limited use of copyrighted material without requiring permission from the rights holders. Examples of fair use include commentary, criticism, news reporting, research, teaching, library archiving and scholarship.

According to Cory Doctorow, the concept of copyright fails because costumers are accustomed to buy objects and to treat them as their own, once paid. In other words copyright is like asking someone who rents a car to agree the fact that the same company controls him where you're going putting a web cam on the wheel. The point he underlines is that companies should treat readers' property as such. As the Security Exchange Commission doesn't define rules when you borrow a little amount of money from a friend, and laws against gambling don't attack you if you bet an icecream with your sons in case you arrive first, copyright should not set up obstacles between the final user and the possession of what he has already paid.

A bit of history that explains U.S.'s need for copyright

(based on Cory Doctorow's article "Happy Meal Toys versus Copyright: How America chose Hollywood Wal-mart and why it's doomed U.S. And How we might survive anyway", published on Information Week, 11 June 2007)

In the article Doctorow launches a taunt to his Country, commencing as follows: through most of the America's history, the U.S. Government has had problems with the entertainment giants, treating them as purveyors of filth. But not anymore: today, the U.S. Trade Representative, the U.S. Government Agency responsible for developing and recommending U.S. Trade policies to the President, is using America's political prestige to force Russia to institute police inspections of its CD presses. How did entertainment go from being U.S.'s worst enemy to top trade priority? Probably because of the Information Economy. To manage it economists have put together all the companies based on information (music, movies and microcode) and projected a future in which these would grow to dominate the world's economies.

But when America was born it was itself a pirate Nation! It grounded the biggest part of its culture on Europe's one. Only once they started to be part of the creative industry too, they started to think to international copyright in order to protect other nation rights in return for the same treatment. It's hard to see why a developing country would opt to export its GDP to a rich country when it could get the same benefit by mere copying. That's the answer: in 1995, the U.S. signed onto the World Trade Organization and its associated copyright and patent agreement, the TRIPS agreement, and the American economy was transformed. Everyone who signs the WTO/TRIPS agreement can export manufacture goods to the U.S. without any tariff, but, if you want to export your finished goods to America, you have to sign up to protect American copyrights in your own country. But signing onto those laws doesn't mean you'll enforce them. Obviously all the countries on the barrel will sign up but this could even be a pro forma just to be part of the game. For example, as everybody knows China produces a lot of forged material, and U.S. Should take a legal action against them but...can U.S. give up the advantage in terms of money given by the Chinese workforce?

An information economy cannot be based on information selling. The technology allows to copy information in an easier way. It will be more and more easy to copy information and information economy will not sell information anymore.

What is exactly the information economy?

( based on Cory Doctorow's article "Free data sharing is here to say", published by Information week the 11 june 2007)

Since the 70s, experts have predicted a transition to an information economy. For decades now, they have been creating policies to protect information – stronger copyright laws, international treaties or patents and trademarks, treaties to protect anti-copyright technology. The idea was based on the fact that this kind of economy should be based on information's buying and selling. Politics aimed to make access to information more and more difficult the only exception being on paying. Without creating fences to enclose information, this kind of economy cannot be. Making access to information more and more difficult than buying it should prevent the mass from stealing except for those poor in money but rich in time that would copy instead of buying. But as Cory Doctorow underlines, every time a pc is connected to the Internet a third option appears: a copy can be downloaded from the Internet. In order to verify the existence of the Information Economy, we should put the stress on what Internet allows instead of bother about what it obstructs. Better access to more information is the hallmark of the information economy. The more IT we have, the more skill we have, the faster our networks get, and the better our search tools get, the more economic activity the information economy generates.

Artists and copyright

(based on Cory Doctorow's article "Online Censorship Hurts Us All" published on The Guardian in 2007)

An example of the past as the piano roll, introduce us in a new way of thinking technologies as a bouquet of affordances instead of only a thread from which to defend ourselves. The piano roll is the music storage medium used to operate the player piano, pianola or a reproducing piano. It was the first medium which could be produced and copied industrially and made it possible to provide the customer with actual music quickly and easily. This tool has represented the first way to copy music. It has been invented when the dominant way of entertainment in the U.S. was to have a pianist in the living room playing for you. Companies producing piano rolls bought music papers e converted printed notes into byte on a computer ribbon to be sold in thousand copies. At the time composers and music editors went crazy, therefore the Congress decided that everyone who had paid the editor 2 cents should have had the right to create a piano roll copy of all the copies published by that editor. This licence is still valid and has generated a world in which artists have gained much more money selling thousand more copies. New media don't succeed because they're like the old media, only better: they succeed because they're worse than the old media and the stuff the old media is good at, and better at the stuff the old media are bed at: piano roll didn't sound as good as a live performance but was within eveyone's grasp. As the piano roll introduced a new way for editors and artists to make money, the Internet opened a new way to avoid censorship.

But as Cory Doctorow says ih his article: “How do you protect artists?” being plagirized, ripped off by publishers, savaged by critics, counterfeited and even get the work copied by pirates is better than being censored. Since 1995, with the WTO/TRIPS agreement every legal initiative undertaken by the English Parliament, by the European Parliament and by the American Cobgress is aimed at making illegal online material removal easier. But removing material puts artists work more and more in danger. The 1998 DMCA (Digital Millennium Copyright Act) allows everyone to remove documents from the Internet, simply by getting in contact with the editor and telling that it violates the copyright. The possibilities of abuse are clear as the Church of Scientology demonstrates.

Censorship threads: the case of Scientology Church

The issue "Scientology versus the Internet" is worth a wiki page and is a cutting edge example of how online material removal and copyright laws can both damage/ protect freedom on the basis of different points of view underlining its problematic nature. To understand the range of this topic I've listed a set of actions performed both by Scientology and its legals and from their counterparts (gropus of people, searche engines, forums, ...), all the material being taken from the dedicated Wiki Page.

Chronology

• In late 1994, the Church of Scientology began using various legal tactics to stop distribution on the Internet of unpublished documents written by Hubbard.
• The Church of Scientology starts to be accused of barratry through SLAPP (Strategic lawsuit against public participation ) suits.
• The official church response is that its litigious nature is solely to protect its copyrighted works and the unpublished status of certain documents.
• The newsgroup alt.religion.scientology is created for the purpose of informing the public about Scientology.
• On December 24, 1994, the first of a large number of anonymous messages was posted to alt.religion.scientology, containing the text of the secret writings of Scientology as the OT Levels.
• Scientology's lawyers describe the published documents as "copyrighted, trademarked, unpublished trade secrets", and the distribution of the materials as a violation of copyright law and trademark law
• On January 11, 1995, a Scientology lawyer attempted to shut down the Usenet discussion group alt.religion.scientology by sending a control message instructing Usenet servers to delete the group on the grounds that:
  • it was start with a forged message not discussed on alt.config;
  • it has the name "scientology" in its title which is a trademark and is misleading, as it is mainly used for flamers to attack the Scientology religion;
  • it has been and continues to be heavily abused with copyright and trade secret violations and serves no purpose other than condoning these illegal practices.

• After failing to remove the newsgroup, Scientologists adopted a strategy of newsgroup spam and intimidation they hired third parties. This makes the newsgroup virtually unreadable via online readers such as Google Groups, although more specialized newsreading software that can filter out all messages by specific "high noise" posters make the newsgroup more usable.

• Later, Scientology attempted a similar strategy to make finding websites critical of the organization more difficult. Scientology employed Web designers to write thousands of Web pages for their site, thus flooding early search engines.This problem was solved by the innovation of clustering responses from the same Web server, showing no more than the top two results from any one site.

• In the 1990s Scientology was distributing a special software package for its members to protect them from "unapproved" material about the church.

• On January 14, 2008, a video produced by the Church of Scientology featuring an interview with Tom Cruise was leaked to the Internet and uploaded to YouTube.The Church of Scientology issued a copyright violation claim against YouTube requesting the removal of the video.

...

• Even Wikileaks was involved in this issue: in March 2008,Wikileaks published a 612-page Scientology manual on the eight different Operating Thetan levels, considered secret by the Church of Scientology.Three weeks later, Wikileaks received a warning from the Church of Scientology that the manual was copyrighted and that its publication infringed intellectual-property rights. Wikileaks refused to remove the material, and its operator released a statement saying that Scientology was a "cult" that "aids and abets a general climate of Western media self-censorship

This report through time and space demonstrates how the Church of Scientology has tried in different ways to defend its reputation appealing to copyright laws, but has in turn tried different actions which are not properly intended as fair to the Internet community in terms of freedom of speech and free access to the information.

But...

even if DMCA takedown notices have fast become the favourite weapon in the cowardly bully's arsenal, and even if Viacom, an international conglomerates that manages a lot of audio and video communication channels, has sent (year 2007) over 100.000 takedown notices to YouTube last February, and therefore the same number of removals have been applied, new users have uploaded the "forbidden contents" again and again. Viacom and other companies want hosting companies and online services providers to evaluate all the contents before publishing them. But this system seems to be inapplicable because of two reasons:

1. an exhaustive list of copyrighted materials would be unimaginably long;
2. even if it could exist it should be easy to defeat introducing spam.

If all the worldwide YouTubes are going to prevent infringements they should control billions of blogs, videos, txt files on every single server.This would be a great expenditure to the detriment of the free service that it is.

Cory Doctorow, the one I've been referring to the whole paper long, is beside a user an author himself, and his message suggests to other artists to share freely their works through the Net. His own experiment was to publish his science fiction books as e-books, allowing users to download them. This can apparently seem self-defeating. On the contrary it was him to convince the editor to publish them in an e- fomat and the sales exceeed their most positive expectations. To him the pros of e-books are that first of all they are social objects. Their copies can pass from hand to hands, be read on a PDA or pasted into a mailing list, and their being fluid and immaterial to be spread on a whole life. In addition Doctorow tells that what fans and critics comment about his work is the best viral marketing ever: a virtual form of word-of-mouth. The echo of his production both positive or negative brings him to great selling and to be considered as opinionist in different contests, bringing him to take part to conferences, presentations, lectures... All the incomes of these activities are higher than the simple selling paper copies of his texts. In addition, because the lenght of novel is tiring to be carried out through the screen, it often happens that users start reading e-books and finish buying paper copies. On the whole, according to him, an action that at first glance seems to be counter-productive ends up to be the best "business model". At least in the publishing world. But parhaps even in the music field. Radiohead, one of the most appreciated alternative-rock-band of our times, for the release of their new album "In rainbows" in 2007 took a revolutionary decision: they made it available as a digital download that customers could order for whatever price they saw fit, followed by a standard CD release in most countries during the last week of 2007. According to reports even if the most fans chose to pay nothing to download the album, it still generated more money before it was physically released (on December 31) than the total money generated by sales of the band's previous album, 2003's "Hail to the Thief!"2 Radiohead and their record company didn't explain the selling details but were monitoring the average price daily, prepared to cancel the download facility if the average price became too low. This was taken down after three months, and the album went to Number One in the UK and USA after being physically released. Even in this case the most significant element is the return in terms of image, that made of the group not only a more and more appreciated group of artists but together with their sustainability compaigns a cutting edge one.

Conclusions

Answering the question whether many of the system which are present on the web offering services between legality and illegality are a niche or a business model, is not an easy task. In the light of what I've explored until now I prefer to make suppositions related only to the most known example, that is YouTube. It and its fellow creatures were born as to enable users in easily uploading "recreational" videos. Its echo brought to a great approval of the public who started publishing a lot of material, with a vast range of reliability. There are some who use it as a shop window for themselves and their friends, other who use it as a way to vilify others, others who use protected material they are not allowed to. As usual the main limits and disadvantages are not in in the medium itself but in the way users take advantage of it. But there is another relevant thing to think over: why does a service like YouTube has nowadays this great success? To me, the answer is deeply rooted in here. YouTube is not a business model intended as a process only tended to make money and is not even a niche since the success it gained in few years. It's only, as its fellow creatures, a new service that mirrors Internet's core concepts and the users' needs. This to say that if Computers are mainly machines processing bites, if the Net is mainly a way to share them, and if the web 2.0. is mainly a new way for people to be in contact and share their contributions, all those services are chiefly a careful and just-in time look on our time.