The entire world is within reach for an Internet-savvy individual with a computer: an entire world of free music, television, movies, software, and more. Knowing the right sites to go to can give anyone the opportunity to become an online pirate.
It’s an impossibly fast revolution, and now governments and corporations trying to do business and protect intellectual property are racing to keep up.
“Whenever there’s a technological transformation it takes a little while to shake up [the system] but it’s premature to draw a conclusion,” said Barry Sookman, a partner with Toronto-based law firm McCarthy Tétrault.
“There’s been a huge innovation with business models,” he said, referring to music-selling platform iTunes specifically. While digital media players and Internet radio services such as Slacker, TuneIn and Songza seem commonplace now, Sookman pointed out that “those models weren’t around 10 years ago.”
The government response to online piracy is also changing, Sookman said. He said Bill C-11 allows users to format shift and time-shift files, as well as to create mash-ups, all legally.
“The rules changed to recognize what people were doing anyway,” Sookman said. “[They] changed to help facilitate digital commerce.”
Bill C-11 also allows enablement, a law that Sookman said “the government put in place to enable rights holders to close down file-sharing services.”
According to Sookman, copyright laws have two main purposes. The first is “to promote the dissemination and access to works,” he said. The second is “to create incentives to ensure that creators will invest their time and money to create content and distribute it.”
“If those two things are out of balance you have a problem. You have to have a balance,” he said.
How to combat the pirates
Sookman said there are three main responses to piracy from governments and corporations.
The first response involves creating alternatives that are easier than illegal streaming.
“Availability of services is certainly a major factor,” Sookman said.
Illegal downloading or streaming is often done mainly for the sake of convenience, Sookman said. Those downloading “want something, want it quickly, with ease of access,” he said. Companies such as Netflix provide this ease of access more reliably than most illegal filesharing websites, Sookman said.
The second response is eliminating the source of piracy, Sookman said, pointing out the recent shutdown of file-sharing company Megaupload.
The third method is a graduated response system gives illegal file-sharers warnings about their activities. An example of this, Sookman said, is France, where governments often try to reduce piracy by “creating disincentives.”
Sookman said with the changing nature of the Internet, the ways in which copyright law will be enacted must be an ongoing discussion.
“Around the world . . . everybody is focusing on copyright law and looking at how much it needs to change in order to serve its function in the digital age,” he said.
“In the next five years there will be a review [in Canada] to ensure that the copyright act continues to achieve its goals.”
Michael Geist, Canada Research Chair of Internet and E-Commerce Law at the University of Ottawa, said he thought there was “a lot to like about C-11.”
“The government added new user rights, modernized the law with things like time-shifting and protection for user-generated content, placed a cap on liability for non-commercial infringement, and addressed the role of ISPs (Internet Service Providers),” he said via email.
However, Geist, who writes a weekly technology column for the Toronto Star, is not entirely supportive of all aspects of the bill. “The big shortcoming was with the rules on digital locks,” he said.
“The digital lock rules provide legal protections for digital locks such as those found on DVDs and e-books. The law now says that attempts to circumvent those locks — ie. get around them to copy a clip from a DVD — is itself an infringement.”
This digital lock rule means that this is the case even if the clip being used will be used in a fully legal way, Geist said. “The law may permit some activities (i.e. using a clip for a media criticism class in school) but the digital lock rules may take some of those rights away,” he said. Furthermore, Geist said that this rule “undermined some of the benefits of the law, and represented a caving to US pressure.”
Geist said that the existence of illegal streaming sites like the recently shut-down Megavideo, would not necessarily prevent the business of legal streaming sites such as Netflix.
“Canada was the first non-US market for the company (Netflix) and it did so without copyright reform,” Geist said. He added the Netflix business model was a good example of a working model in an online environment.
“Its success points to the need for innovative business models and well-priced services rather than constant lobbying for copyright reform,” he said.
Ryerson University digital media professor Richard Lachman agreed.
“Through music streaming, through media streaming, the business model of a Netflix is able to get additional value and grow as a company,” he said. “A site like Hulu in the United States, sites like Netflix, they’re trying different business models, they’re trying different ways of getting their content out there,” he said.
Lachman also pointed out that illegal streaming is extremely difficult to trace. While it’s possible to find illegal downloads on a hard drive, “the stream is only live for the period of time someone’s connected to the stream.”
“There aren’t the same kind of lasting traces left on our hard drives,” he said.
Lachman said there has been a back-and-forth struggle between would-be pirates and authorities for as long as the opportunity has been there. In the late 1990s and early 2000s certain companies began to avoid putting anything online legally for fear of their digital locks being removed, Lachman said.
“There was this very heavy DRM-based (digital rights management) approach to try to stamp out piracy, and then there was a sort of escalation of war where there would be software tools to defeat the digital lock and then there would be a new digital lock,” he said.
Is piracy changing the industries?
Lachman said that the nature of online piracy is not only forcing business models to change, it’s also changing how independent artists such as musicians choose to market their products. He used the example of Amanda Palmer, an independent musician who is known to give away her music using the “tip-jar model.”
The model allows those searching for the music to download it for free if they wish, but it also gives them the option of paying as much as they want. In a sense consumers are being invited to do the same thing they’d do if they were pirating—but it’s legal.
“When they track statistics on this they find that a certain number of people . . . paying more than what your standard retail price would be,” Lachman said. “There’s a certain number of people who pay a lot more because they feel a connection to you with the artist.”
While these models aren’t likely to be implemented with larger, more mainstream artists, they are growing in popularity, Lachman said. Artists are successfully able to make money, with a method that doesn’t leave them at the mercy of online piracy.
“It rather finds a better connection between the creator and the audience member,” Lachman said.
Lachman, Barry Sookman, said he sees a need for balance when it comes to the purposes of copyright law.
“Copyright was originally brought in to benefit society as well as individuals,” he said.
“It was brought in so that society would get the benefits of this creation and individuals would get the benefits of their individual acts of creation. We need to be sure we’re protecting both aspects of this,” he said.
Ultimately changes to the industry will have to continue to ensure that businesses remain lucrative online, Lachman said. In the future, he said business models will continue to adapt more effectively to keep the pirates at bay. This could mean changing models that become obsolete at a more rapid rate, he explained.
“We’re in a time of experimentation,” he said. “There’s so much push in the cycle between technology development and social practice. We need to evolve.”
