"Pirate: thief or information freedom fighter? Regulation and copyright in a post broadcast world."

Speech by Adam Singer at the Interactive Exchange 09 Conference at The Carlu, Toronto, Canada, on 18.03.09

‘We are living in an age of transition.’
This sentence should kill off any anticipation, as it signals an onset of stupefying clichés. Anyone who starts a talk with ‘We are living in an age of transition’ should not be listened to.

I have heard broadcasters say ‘we are living in an age of transition’ as an incantation against digital evil, implying that this technical transition is just temporary, as if familiar normality will return next Thursday. Thus echoing the man whose Bronze Age sword, having been cleft in two by a bloke with an iron one, says, “Gosh, Einstein was right, ‘Technological progress is like an axe in the hands of a pathological criminal.’

The question at the heart of this talk is; if a criminal is a minority that commits an act that the majority wishes he hadn’t; and the criminal wielders of the technological axe have become the majority, are they criminals, if they are the norm?

In other words, do shifts in technology create shifts in morality?

Transition is an integral part of our obsession with technology; there is no such thing as a human who does not love technology, for we are all technophilic monkeys. The only question is which tech? And that’s an issue of utility. We adopt the technology that is most relevant to us, and reject the other with taboos, and anathemas.

As in, ‘You won’t catch me using zips; what’s wrong with buttons?’ Did not the prophet say, ‘Beware the lustful consequences of teenage flesh pinched by mechanical fastenings?’ Further back, and it’s newfangled buttons, ‘What’s wrong with a broach as a fastening?’

Further back, and it’s, “What! You fasten your cloth! What’s wrong with a saber tooth tiger skin? Keeps your shoulders snug, especially when he’s chewing them.”

Our attitudes towards technology are mostly prejudice, often determined by how old you are. There is a fundamental truth about new technology: you can live without it, because you have lived without it, and the older you are the more you have lived without it.

I don’t know how you are managing to live without your quantum computing iPod, and your Play Station Five, but somehow you are: in the same way that nearly all our ancestors lived without a phone.

Here lies the issue at the heart of all technology adoption: as you get older new tech’ needs to be more persuasive in its usefulness for you to adopt it; which is why immortality is a bad thing. Can you imagine your great grandparents still on the planet making all the technology decisions? The older one gets the more partially sighted one becomes about new technology, which is why teenagers are the Seeing Eye dogs of the technologically blind.

The technology we adopt bestows identity, and defines us. Iron Age, Steam Age, Information Age; or look at the clothing technology of a Goth or a Hell’s Angel. Even one’s intangible beliefs get revealed in the technical icons of a chosen dogma. A translated bible, incense burners, dog collars, crucifixes, hammer and sickle, a national flag, a Fender Stratocaster, or a flat head Harley.

All tech’, all material goods, are an icon, which in part defines us. These icons help make the box, with its distortions and truths, that contains our culture, our knowledge, and our view of the world. The box is the tribe, they are one and the same, and in my experience there is no such thing as stupid people, only stupid boxes.

An albeit clichéd illustration of the box is: Railways thought they were in the railway business, not the transport business, and thus missed the aviation business, saying, ‘We can’t do planes because we are the railway box, and if we do planes we won’t know what box we are’.

Or Traditional broadcasters face the same issue: the BBC, CBC, NBC all use the web but all of them have failed to invent a Face Book, or any of the great needle movers of the new age because they are in the broadcast box. “As broadcasters we speak unto you, and if you the audience can use new technology and speak back with an equal voice then who are we?’ What is a broadcaster?

Boxes confer identity: mess with identity at one’s peril. Boxes come labelled with clichés, as in ‘age of transition’, or ‘save the planet’ on the one hand communicating an ethos; on the other thoughtlessness, as it really means save the human. As a human I am in favor of that, but the planet knows that 95% of everything that has ever lived is extinct, and must be amused by our self-obsession. But my pet hate is the exhortation, ‘think outside of the box,’ if you can do that you will be burnt as a heretic. You can change boxes, but you can never be free of them.

Why I have inflicted this on you? Governments and regulators are viewing this age from a constituent box of top-down regulation, based on their historic and monolithic control of communications.

In other words, what permission do we have, to believe that past regimes for regulating communications are right for now?

The way most governments are tackling the issue of modern web communication is like that MTV show, where they take an old car, a beat up Chevy Nova, strip out the grungy bits, re paint, re chrome and put in a flat screen TV, and a bowling alley. Do absolutely nothing to the engine, nothing to the gear box, brakes, chassis, steering, and then say ‘hey look it’s all shiny.’ You say, ‘what about the steering?’ and they say, ‘Mmmm shiny, what about the engine?’ and they go, ‘Mmmm shiny.’

Thus the coolest show in Government Communications is called Pimp my Regulator.

This is where a Government takes an old broadcast regulator and converge it with some digital chrome. You ask, ‘What about the future of broadcasting?’ And they go, ‘Mmmm shiny.’

Shiny is a useful concept. For example, the UK Government has several favourite descriptors, ‘world-class’, as in ‘We need world-class sport and physical education, as part of a world-class education for every UK child.’ Or ‘innovative’: ‘We need innovative polices for the future we face.’ Or ‘digital’, as in Minister says ‘A successful Britain is a ‘Digital Britain’, that has Digital Inclusion Champions fighting the ‘digital divide’. (I didn’t make that up).

Wherever you can replace a descriptor with ‘shiny’, as in we need shiny education, or shiny policies, or a shiny country, you have reason to suspect that thought has not been turned to the full ‘11’ and they are trying to avert your gaze with the rhetoric of bling.

Armed with the philosophical concepts of the box, and shiny, let’s look at some of the issues of the age, starting with piracy and copyright.

Copyright piracy is like bacteria in the gut, too much and you’re dead; too little and you’re dead. After all, if you have no piracy you have a product nobody wants: so massive piracy may be nature’s way of telling you that your pricing model is wrong.

My favourite illustration of this is from the1780s when Pitt The Younger, the British Prime Minster of the time, realized that smuggling accounted for half the tea in Britain. This was a huge loss in Customs revenues, and high taxes made smuggling profitable. So Pitt had a choice: he could spend more on enforcement, or reduce the tax. No matter what, there was going to be a cost somewhere. So he reduced import duties from 119%, to 25%. This made the risks of criminality higher, as smuggling became less profitable. By 1789, tax revenues had doubled with the increased quantity of tea now passing through Customs.

He could’ve gone the other way - had a ‘war on tea’; just said ‘no to tea’, regarded India as a ‘narco’ tea state, and spent huge sums to prevent smuggling. But he had a near bankrupt economy and could not invest enough in enforcement to counter the profitability of smuggling.

Law is an economic issue; laws work in proportion to the resource behind them. That ranges from the societal investment in moral education, to the police and the prisons. Laws only exist while society is prepared to invest in them. It’s the same for the enforcement of copyright on recordings - I use the word ‘recording’ to mean any stored written, audio, or pictorial information. The arrival of digital technology rebases the economics. It’s hard to deter from illegal copying, as so many are doing it; the price of content makes the reward of piracy high, your chances of getting caught are low, the problem is so large investment in enforcement is unlikely to have an impact, and moral education about copyright theft is undermined by the giving away of free music to boost the circulation of newspapers, as they do in the UK.

Our laws shape us, but they are not immutable, and laws are just another fashion statement. Human laws are as transient as any other endeavor. The laws we live by are determined by when we live. In Ancient Greece sex with a 12 year old boy; no problem; in the 1600s cursing a cow could make you a witch and was a burning problem. Crime and punishment change to reflect the mores of the moment and it seems that the mores underpinning the copying of recordings are going through a shift.

The usual response to a shift of mores is first clamp down, and then reform. On copyright we are in the clampdown phase, as governments call for stringent ways to enforce copyright. A recent Minster in the UK - and I have heard similar from elsewhere - said, “I regard illegal copying as theft, it’s the same as stealing a bicycle”.
Not quite.

The problem is the ‘thou shalt not’ laws as in ‘thou shalt not kill’, thou shalt not steal’, are clear enough. But the 11th commandment, ‘thou shalt not copy; unless you have a license and have ticked the box that says you agree to the terms, is not quite so simple.

Copyright is the reverse of a don’t do it law, as copyright assumes you will do it, but lays down the terms under which you can do it.

Real manly laws, ‘thou shall not kill’ fit in big type on a small tee shirt; laws that need small type on an extra large tee shirt get us confused. Simple ‘thou shalt not’ laws are pretty much technology free, they don’t say ‘thou shalt not kill with an axe but a Smith & Wesson is OK’.

Copyright is confusing because it is not a standard property right; it is not like a bicycle. Unlike simple theft, when you copy you don’t remove the original, but you are removing the revenue opportunity of the creator. So copyright is a temporary monopoly, a temporary right to grant a license to copy, a right that expires and then this intellectual property belongs to all of us.

I used to work for the PRS that, like ASCAP or SOCAN, is a body that collects revenues from rights for composers and publishers. My composer friends used to say, “I wrote that, it’s mine, for my life plus 70 years, why can’t it be like a normal property right, mine and my descendents forever?’

Our forefathers created the origins of the current copyright regime in the early 1700s. They believed monopoly was bad, that printers claiming to own Shakespeare in perpetuity were bad, and if ideas could be held in perpetuity then Shakespeare would have been a bit stumped for plots, as he stole from Petrarch.

Our forefathers knew it was a balance between a return for the creator and a return for society; that creative works must eventually be part of the common intellectual wealth, so that others could build on them. There is no such thing as a wholly original work, after all, education is the act of loading a head with other peoples’ intellectual property. If there was a total lock down on owning intellectual thought, I could not have used references from Spinal Tap, the quotes about Pitt the younger, ideas I derived from Lawrence Lessig, or the jokes I stole from my son, Daniel.

Copyright is a child of print. Pre-print intellectual mores was to encourage copying as much as possible to ‘spread the word’.

Copyright worked not least because copying was hard; in the analogue world each successive copy lost fidelity. The distribution of copies involved solid carriers - discs, tapes, post and trucks. The real barrier to copying lay in the effort needed to copy, and if you made a cassette of favourites it was unlikely to be replicated or click-li-pated across the world. In other words, did copyright work because of a major underpinning moral system, or did copyright work because of the technical frictions?

We copy because we can, the easier it gets the more we copy. Copyright was always a reflection of the technology du jour, and the question is does it reflect today’s technology? Copyright aggregators with large sunk investments argue for the regimes of the past - Studios, record companies and broadcasters. The past is always more vociferous than the future. The question is this: in a world where the value of a recording – book, film, record - is trending towards zero, where the most valuable content is the most linked to content, where the act of linking fuels quoting, mash ups, and new works, what is the new copyright regime?

Truth is; old copyright works, and though there is erosion, bands are recorded, movies are made, money flows, but old copyright is terminally wounded, and reminds me of the steady decline of photographic film.

I know a few of you were keen to know that 35mm single lens reflex film camera production peaked in the 1980s at 640,000 cameras a month. By last December it was down to 958. Now if your government sent a telegram to Japan demanding they stop digital camera production to preserve the photographic snap shot industry of Canada you would think they were barking, but that’s what governments are doing in the copyright debate: they are failing to see it as an act of inevitable industrial change.

In lieu of technology that solves the problem, the issue is the same as it was for Pitt. Do we have the economic resources to enforce copyright as we know it, either by building the right moral framework, or through enforcement, or both? Probably not, and then what…the mores shift? Mores tend to adapt to the new technological reality, seldom does technology adapt to the prevailing mores.

So what kind of creative work can be sustained by the new economics, where the value is shifting from recording to the scarce moment, i.e. live sports, concerts, or World of Warcraft? If copyright is weakened, how do we sustain creative talent, and maintain the big budget works we like?

Maybe we can’t. The recordings we love have no more right to immortality than the thousands of vaudeville theatres, or the mystery plays of the Middle Ages.

TV and movies are so 20th century: the 21st will have its own entertainment, and I did not say it would be preferable or better, just relevant to the age. All I know is that old media never dies it just fades with each increase in bandwidth.

None of this debate is new. Nearly 100 years ago the pianist Artur Schnabel argued that recording went “against the very nature of performance” by dehumanizing the art. Not for him arguments about piracy as recordings were an irrelevance; a piece of music once played should never sound the same again.

Now for something much easier - regulating the internet.

So in my role as a Government Regulator, as Deputy Chair of the Ofcom Content Board - Ofcom being the UK equivalent of the FCC, or the CRTC - I was recently part of a delegation meeting a senior Minister of Communications from China. We sit in a room overlooking the Thames and St Paul’s, and this witty and urbane Chinese minster shrugs, then sighs and says, ‘Our biggest problem is the internet.’ I expected that, but what I didn’t expect was my senior political regulating colleagues from a democratic state saying, ‘Yup, ours too.’

Both parties realized that the regulation wanted may be different but that both wanted controls over the net, and I doubt it’s any different here or in the US.

I know as soon as one utters Internet and regulation, the libertarian tendency bridles, and in my heart I agree with them. However, what am I bridling at?

Whenever you have two or more humans living collectively you have regulations. In my libertarian household the regulations involving the purification and loading rituals of the dishwasher are strict, and I am punished if I fail to observe them.

Wherever you have human society you have regulations. If you export human society into virtuality, then why not its desire to regulate?

We love regulations, it’s one of the reasons why we are fond of religion, it’s a regulatory force, and we love regulations because regulations confer the benefit of scale economies.

If everyone is doing something different there is no scale; if we are all doing the same thing then we get scale. Never underestimate the deep desire in one’s gene to create scale, as scale increases the chances for our genes. No regulation, no scale economics and, as ever too much regulation destroys scale economics.

Regulation is a continuum from manners - not picking one’s nose at the dining table, dogs fouling the sidewalks, through to car insurance, on to theft, murder, treaties, and world trade agreements.

Do I really believe that the Internet, which is a human creation, is going to be without the regulatory foibles of its makers? Of course not, but this makes me sad ‘cause I want it to be unfettered.

We have of course been here before; the Internet is another New World. Going to new worlds, new places, or new jobs, allows one to reinvent oneself. The essential you is inescapably there, but you can try and change. From 1500 to 1900 for Europeans (not for the natives) North America was the Internet - a vast region unfettered by laws and full of economic and social possibility. By 1900 and the end of the Wild West there was nowhere that the remit of law did not run.

North America is Europe 2.0. It’s an example of what you can and cannot escape; the essential Western Europe is here but reinvented without some of the stifling history of monarchy, class, and lingering privilege. Fighting to lose that was worthwhile, and it’s why fighting for the libertarian soul of the Internet is worthwhile, but it will end with regulations, the question is what form?

Politicians love to do; nobody ever got elected with, ‘Vote for me, I’m doing nothing about the economy, crime, and immigration.’

In the UK the Internet is attracting the ‘doing’ classes. This is made worse if you have a Prime Minster who has the natural fears of an older parent with young children that the Internet is out to get them, and he asks what are we going to ‘do’ about the Internet?

You can take the Chinese route and have 50,000 people policing the net, perfectly fine while wage levels are low, but a combination of rising wages and an exponential growth in information probably gives this approach a finite life. You can hope technology rides to the rescue and polices for you. But if you have ever sent an email to Mr. Henry Cockspur to keep him abreast of investment opportunities in virgin forests, and had it come bouncing back, you will not have much faith.

You can try ‘thou shalt not’ laws and hope the neighbouring country is not hosting all the stuff you want stopped. The World Wide Web is so vast that single territorial laws are unlikely to have much effect.

Governments have spent hundreds of years doing top down ‘thou shalt not laws’ and it’s hard to get them out of the habit. They don’t believe the famous John Gilmour quote, ‘The Internet interprets censorship as damage and routes around it’ and are reluctant to see that a single node of authority in a network world is an oxymoron. They believe that sufficient resource will solve the issue that they can build the death node, or ‘one node to rule them all, one node to find them, one node to bring them all and in the network bind them.’

They may be right but there is an easier way. If you want to regulate the Internet, it lends itself well to bottom up control, but that takes time.

The Internet is algorithm based. An Al-Gor-rythm is not the un-syncopated dancing of an eco warrior, but as the dictionary says ‘a process or set of rules to be followed in calculations or other problem-solving operations, especially by a computer.’ Algorithms are rules and the basis of games. When one says, ‘Teach me how to play chess’, one is asking for the algorithms that determine your options. Algorithms determine the net.

Isaac Asimov realized this in his ‘I Robot’ series, that artificial intelligence would be game-able and could be controlled by behavior inducing algorithms, such as his 3 laws of Robotics.

So what may be needed are the equivalent algorithms for the net. You have seen nascent versions of these in firewalls, spam filters, agents, bots; all are programmes to game the internet, you will think of more. We may not be able to control the net but we might be able to game the net, to play the net; not to ‘get what you want but if you try sometime you might find you get what society needs’.

In other words, laying down little pieces of algorithmic coral that become self-organizing reefs of regulation.

But as anyone who has worked round the various MP3 codes knows, you can always game the regulating gamers.

But an example of simple bottom up regulation resting on a few initial algorithm inputs can be seen in food.

In the early 1960s a delegation from communist Russia visited Britain and demanded to see the Minister in charge of food for London. It was inconceivable to them that London could feed itself. But Food regulation starts with a simple algorithm - don’t poison the customer. There are sub routines about what constitutes poison, and when stale become poisonous, but it’s pretty simple. There is a police force to back it up but that’s small; the customers do most of the policing and they report infringements, and the key to all of this is labeling: know what you are eating.

Tell a customer what she is eating and let her make the choice about to consume it or not. So treat information as food. Given the meta data of the digital world - meta data being a fancy word for a label. Meta data provides a foundation for gaming the net, by letting one label information in the same way as one does food: let the consumer decide. But of course this won’t work, as you can trust the citizen with food, but you can’t trust them with information!

Besides, labelling is so namby-pamby compared with thou shalt not. Labelling might not control the net but it might provide the manners of the net, and in their own way manners are an equally powerful form of social control, as laws.

However, when you say to a politician the way to regulate the Internet is in a slow, self organizing, coral-like way, to create manners, they feel it lacks a certain election- winning, do something, ‘Je ne sais quoi’.

But the point is this; the increasing regulation of the net is inevitable, and it’s on every democratically elected government’s agenda, it will become information suburbia.

However, governments are not the only regulators. The net is also regulated by other participants - Microsoft, Google, Apple - they are all variants of gatekeepers, thus regulators. A cloud computing world where huge server farms are owned by a few commercial organizations is also regulation.

Games are my last example for today. Games are where the cultural locks inherent in the copyright debate meet the regulation of gatekeepers. Games are powerful and engaging, and there is no subject they cannot tackle. What better way to teach the dilemmas of a historic situation than a game, or to teach a language than a game?

Novels or movies are about providing vicarious rehearsals for life. They let you look at the world from outside of yourself. Games or simulations, with their multiplicity of options, could be the greatest medium for providing rehearsals for life. But somehow, games have yet to seize this. In my view, the question is why are games always two levels short of being a full medium?

Major platform games are by definition mainstream. So where is the Art House console alternative to Xbox, or PS3? You can tell me, but ‘Art House’ is important because today’s creative edge is often tomorrow’s centre.

No Kurosawa, no 7 Samurai, no Magnificent 7, or without that black and white subtitled Art House showing of Hidden Fortress, where would George Lucas have borrowed the inspiration for C3PIO and R2D2?

Is the reason why games haven’t fulfilled their potential, the cultural lock down by PS3 and Xbox?

Of course it’s true that the PC is a major platform for games, and where Art House games probably reside but PCs have lacked the proselytizing power of the games consoles. To become a medium one needs to push the boundaries, of art. X box and PS3, by determining what can be played on their boxes, by determining the economics of access to their boxes, determine what gets made.

This control by the games platforms echoes the Stationery Office that controlled print in Britain, or the Hays office censoring Hollywood, or the radio stations not playing black music. Of course you can argue that as private platforms they can make their own rules. But aren’t games stifled by a lack of independent consoles as powerful as PS3 or Xbox? Where is an open source Linnux type console when you need one?

I may well be wrong, or bit shiny on this one. It may not be a problem, and certainly a doubling of power may make propitiatory consoles a thing of the past. But I doubt it. There will always be another proprietary platform behind, and we will be in the perennial dilemma of gate-keeping powers generating a return on investment, so that it can exist in the first pace versus the cultural control of those gate-keeping powers.

Let’s sum up: Analogue copyright does not reflect the needs of a digital world.

On the internet, our need to define our tribe, now called a community of interest, will drive regulation, but in this world those traditional barriers of identity, immigration controls, armies, quirky local laws, can all be done by labels.

The issue with corporations is they all believe they do no evil, and they should define what evil is.

At some point we always challenge the definitions.

Which is why some information pirates become information freedom fighters. But they are only freedom fighters if they get to write the history. The info’ pirates are part of an inexorable process from edge to centre that is everywhere. In a way, piracy is Art House politics, experiments in alternatives, most will die but some will become the mainstream

I don’t believe there are answers to all this. I do believe that you can only navigate these issues if you are aware, and that all these issues are boxes that we view from other boxes, the only question in life is how do you know your box is the right box?

Those among you will be thinking ‘box’ has become a descriptor - doesn’t that mean boxes are Mmmm shiny, and doesn’t that render the last half hour just shiny? But you were given a health warning at the beginning: never trust a man who starts a talk with, ‘We are living in an age of transition.’

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