I had to send a fax to a US university recently on behalf of my daughter, and I realised that not only do I not own a fax machine, I have never owned a fax machine.  During the 1990’s I would occasionally approach one of these mysterious devices, a sheet of paper in hand ready to be fed into the slot and transmitted through some mysterious method to other parts of the world, but it was clearly the devil’s work.

I never wanted one of the infernal devices in my home, and it has been wonderful to see emailed attachments replace them for most uses, apart from the odd recalcitrant academic institution.

The recent advent of on-demand video streaming of the main terrestrial TV channels has made me realise that I may never get round to acquiring a PVR, a hard-drive based TV recorder, before they too are swept away in the flood of technological innovation. Farewell, then Sky+ box, I hardly knew thee.

One of the technologies that makes PVRs redundant is of course BitTorrent, the distributed file-sharing protocol that allows very large files to be split into large numbers of  relatively small chunks that can be scattered over thousands or indeed millions of co-operative hosts all over the internet, where they are tracked and reassembled at will by software like the open source Miro player.

Thanks to BitTorrent multi-megabyte presentations, home videos and recordings of one’s children singing can easily be made available without the need to invest in large servers, high speed internet connections or generous bandwidth allowances.

BitTorrent is a transformative technology, and the peer-to-peer delivery of content it offers has inspired many imitators, one of which powers BBC iPlayer downloads.  While some internet service providers are unhappy with BitTorrent because the cumulative impact of its millions of happy users can occasionally degrade their network performance it is safe,  reliable and completely legal.

While the technology may be legal, however, many of the files which it is used to distribute contain unlicensed copies of copyrighted material, with  songs, videos, films and software that were never intended for release by their owners.

One consequence of this is that any website which indexes the tracker files that are used to note where the many small parts that make up a single BitTorrent file will inevitably enable its users to locate lots of unlicensed material and, since the tracker file is all that is needed to download that material, it could lead to the breach of copyright that any download implies.

This is the chain of reasoning that dragged the team who run PirateBay, the Swedish website that has become one of the world’s largest BitTorrent indexes, in front of a court earlier this week charged with assisting copyright infringement and  assisting making available copyright material.

It needs to be pointed out very clearly that neither PirateBay nor any of the other torrent tracking sites have infringing content on their servers. You can’t download Quantom of Solace from www.thepiratebay.org, but you can find many places that will tell you what you need to know to do so.

Early in the trial the first set of charges were dropped, implying that the court has realised that simply pointing to someone else’s infringing material does not help them in the act of infringement, but the serious charges still remain.

It is possible that Gottfrid Svartholm , Fredrik Neij and Peter Sunde will face fines or prison sentences and the site will be closed down, although it seems unlikely that even the combined weight of the music industry can persuade a Swedish court to restrict freedom of expression to this extent.

The Pirate Bay case hinges on what counts as infringement, and whether simply linking to a site is enough to make someone liable, treating a hypertext link to a third-party URL as an endorsement, as something that makes a connection between two web pages or information sources that has real legal significance and weight.

Yet it is nothing of the sort.  Ever since Tim Berners-Lee defined the Hypertext Markup Language and its Uniform Resource Locators one fundamental thing has applied – a link is just a link.

As time has gone by we have seen that this simple-minded approach is not enough, and the work currently going on to define and implement the ‘semantic web’ is to a great extent about providing mechanisms for assigning values to links, so that I can find links that ‘approve’ of the item linked to, links that ‘deprecate’ it and perhaps even links that ‘deny’ what is being said at the other end.

As things stand a link from one page to another is simply a connection, and does not imply any specific intention.  Yet lawyers representing the content industry and politicians scared of the shift in the balance of power the internet represents are trying very hard to ensure that the legal system ignores the technical reality and imposes a commercially and politically useful reading.

As part of his contribution to the philosophy of  language the great Cambridge philosopher Ludwig Wittgenstein noted (PI §43) that ‘the meaning of a word is its use in the language’.

Perhaps we need a ‘philosophy of linkage’ to explore what the use of a link can signify, before the lawyers decide it for us and limit the creative potential of the web through their lack of imagination and understanding.

Bill’s Links

Pirate Bay: www.piratebay.org

Court case: http://news.bbc.co.uk/1/hi/technology/7895026.stm and http://www.guardian.co.uk/technology/2009/feb/17/pirate-bay-internet

Wittgenstein: http://plato.stanford.edu/entries/wittgenstein/#Mea

• Al Gore Places Infant Son In Rocket To Escape Dying Planet – the only sensible option…
• Reporters sans frontières – Beijing Games 2008 – Advice from RSF
• Test: Silicon Swings and Silicon Roundabouts – read and digest before taking any action
• Cory Doctorow: Filesharing deal will drive swapping underground | Technology | guardian.co.uk – Cory speaks the truth, but underestimates just how painful, protracted and destructive the battle will be.
• Media face web censorship at Beijing Olympics | Sport | guardian.co.uk – Indeed

• Web curbs for Olympic journalists – What a surprise…
• Plenty of Blame to Go Around in Yahoo Music Shutdown – Ed Felten knows who to blame, and I agree with him entirely.
• Exploit code targets Mac OS X, iTunes, Java, Winzip… – nasty little piece of software called Evilgrade that uses a man in the middle attack to exploit automatic update code.
• Consultation on legislative options to address illicit P2P file-sharing – BERR – UK government consultation opens..
• How to make our newspapers profitable again: David Aaronovitch Simulator | The Wardman Wire – ah, how entertaining…
• Google Knol is evil | Seldo.Com Blog – Hard-hitting analysis: is Knol Google's 'IE vs Netscape' moment?
• Rocque London Index Map – Useful for anyone reading Neal Stephenson's Baroque Trilogy, especially The System of the World
• AWS Service Health Dashboard – Amazon S3 Availability Event: July 20, 2008 – "With a large number of servers gossiping and failing while gossiping, Amazon S3 wasn't able to successfully process many customer requests" Excellent explanation, and good communication with customers
• xkcd – A webcomic of romance, sarcasm, math, and language – By Randall Munroe – Ah yes…
• Ofcom report into Social networking usage – some reading for us all I think
• DRM still sucks: Yahoo Music going dark, taking keys with it – And yet the music industry wants ISPs and government to sustain their broken business model…
• Announcing the Open Web Foundation – Open Web Foundation – Could be useful
• Read Giles Coren's letter to Times subs | Media | guardian.co.uk – I didn't expect to, but I agree with him
• Cuomo strong-arms Comcast over Usenet | The Iconoclast – politics, law, and technology – CNET News.com – Nice analysis of a dangerous tactic
• MySQL forks: could Drizzle be the next of the new generation of relational database? | O'Reilly News – Seeing a major system fork is like watching close friends divorce. Wish them both well…

• Matasano?s ?blunder? « Ars Militaria: Research Institute of Systematic Misanthropy – Outline of what is believed to be Dan Kaminsky's cache poisoning finding
• RANDOM.ORG – Coin Flipper – I really like this… especially the older coins
• Techdirt: A Detailed Explanation Of How The BSA Misleads With Piracy Stats – Excellent dissection of the dodgy stats used to overstate the financial impact of unlicensed software
• how carphone warehouse took my iphone & ruined my credit rating – I'm so glad I didn't try to get myself an iPhone. I don't think I ever will

• Shirky: A Group Is Its Own Worst Enemy – Ecellent piece and one of the few that goes back to the psychology literature.
• Wordle – EU Telecoms Law –
• Tim Berners-Lee at NESTA on the Future of the Web « Perfect Path – Excellent critique from Lloyd.
• Understanding the Web browser threat by Stefan Frei – Important study of browser update patterns

And here’s its Wordle…

Making laws in the European Union is a long, complicated and often tedious process that involves a delicate ballet featuring the Council of Ministers, the Parliament and the Commission. Before a Directive is passed there will be numerous committees, occasional votes, multitudinous amendments and many, many occasions for lobbyists, campaigning groups and special interests to try to influence things in their favour.

So it shouldn’t surprise us that a package of amendments to telecoms laws currently making its way through the European Parliament’s committee system has received careful scrutiny from those who worry that the interests of the music and film industry are being placed before freedom of expression or civil liberties.

Several amendments from British MEP Syed Kamall, a member of the Conservative group, have been criticised by those campaigning for a more open net, including a change to Article 21 (4a) that asks member states to oblige them to “distribute public interest information to existing and new subscribers when appropriate. Such information shall be produced by the relevant public authorities in a standardised format” and may include “Illegal uses of electronic communications networks… including infringement of copyright and related rights”

This reads like a call for a public information campaign, but observers like the UK-based Open Rights Group and the French-based La Quadrature du Net believe it would oblige ISPs to contact subscribers when they are accused of transmitting licensed content without permission, for example when using file-sharing networks or downloading from unauthorised sources.

Another amendment put forward by Kamall allows that ‘traffic data may be processed… to ensure the security of a public electronic communication service’, which the campaigners read as giving carte blanche to the content providers to monitor and control what happens on the network on the grounds that copying files or breaking digital rights management counts as a ‘security’ breach.
I’m not so sure.

Kamall is an expert on telecommunications and has a strong libertarian approach to global trade. In 2005 he spoke about ‘The Dilemmas of a Free Trade Liberal in the European Parliament’ at the Libertarian Alliance conference, and he features photos of himself with Brian Mickelthwait of the Libertarian Alliance.

It seems unlikely that he would put forward amendments designed to support the old-fashioned business models of the film and music industries.

And one of the other amendments he is proposing seems to stop the music industry from putting blocks and filters in place, as it calls for ‘no mandatory requirements for specific technical features including, without limitation, for the purpose of detecting, intercepting or preventing infringement of intellectual property rights by users’ on the grounds that they might damage the free market for goods and services.

So I don’t think his proposals are as dangerous or as supportive of the music industry’s viewpoint as other commentators and campaigners argue.

However the fact that they are being read as such shows how twitchy the open rights movement is at the moment, and even a cursory glance at current practice and proposed laws will show why.

In the UK Virgin Media is sending out letters to subscribers on behalf of the BPI, accusing people of downloading unlicensed music, while proposed laws in Canada would make it a criminal offense to load your iPod with music from CDs you have bought.

Around the world the content industries are lobbying hard to get laws passed that will help them support their twentieth-century business models in the networked world, giving them legal protection from the winds of change that are blowing through the music, film and other creative industries and allowing them to threaten, sue and even imprison those who challenge their ability to make a profit.

The clearest example of this is the Anti-Counterfeiting Trade Agreement, or ACTA, a proposed international treaty that would rigidly impose current copyright laws on online activities and give those who own intellectual property rights immense legal authority over anyone they accused of infringement.

The whistle-blowers site Wikileaks revealed a draft of the agreement in May, and recently it published what it claims is a memo prepared by the Recording Industry Association of America outlining what they would like to see in the final version.

It includes a call to make ISPs liable for material copied over their networks, and a request to ‘make deterrence against piracy and counterfeiting a priority legal matter’. It seems that U2’s profits are at least as important as counter-terrorism and investigations of child slavery.

The RIAA also wants ‘Internet service providers or other intermediaries to restrict or terminate access to their systems with respect to repeat infringers’.  This is an idea that has grown in importance over the last year or two, often expressed as a ‘three strikes and you’re out’ rule, where anyone who downloads or shares unlicensed material gets two warnings and is then cut off from the network.

It is the equivalent in the network world of hanging someone for stealing a sheep – or perhaps hanging them for daring to look at your sheep in a way that makes you believe they might be thinking about stealing it.

As author and blogger Cory Doctorow put it in The Guardian,  ‘the internet is only that wire that delivers freedom of speech, freedom of assembly, and freedom of the press in a single connection. It’s only vital to the livelihood, social lives, health, civic engagement, education and leisure of hundreds of millions of people.’

Yet EMI, Warner, V2, Sony BMG and the other four hundred or so members of the BPI want to cut people off from that network for copyright infringement.
Imagine if you had a child who was excluded from school for cheating in an exam, and you were told that they weren’t allowed to watch tv, listen to music, read books, talk to their friends or go into any shop during the exclusion. Oh, and you and your entire family were subject to the same restrictions.

That’s what the music industry wants at the moment – if you dare to damage their economic viability then you have to be excluded from everything the internet has to offer.

Of course you’re also then cut off from buying from Amazon or Sainsbury’s, clicking on Google adverts, sending campaign donations to your favourite candidate or taking part in a great deal of economic activity that benefits other organisations.

Perhaps the twenty-first century industrial giants might like to have a quiet word with the record industry and tell them to give up trying to stop the digital tide coming up the beach. Cnut knew it was impossible but had to show his sycophantic advisors that the sea was no respecter of monarchy. Clearly the BPI needs to be taught the same lesson when it comes to the internet.

Bill’s Links

Kamall on TV without Borders:
Register reports French plan:
La Quadrature du Net (PDF):
Mashable on French plans:
The Telecoms Package:
RIAA ACTA Wishlist on p2pnet:
Cory Doctorow comment:

The chances are that I’ll be getting a letter from my internet service provider in the next few weeks telling me that they’ve been watching my network activity closely and think I’ve been breaking the law.

Virgin Media, who used to be called ntl before they acquired Virgin Mobile and turned themselves into a ‘four-play’ media company, has announced that it is working with record industry lobby group the British Phonographic Industry to write to customers whose network connection seems to have been used to download unlicensed content.

Like almost every technically-competent internet user of my acquaintance I’ve used BitTorrent to get my hands on a copy of a TV show that I missed, taking advantage of the kindness of strangers who bothered to record and upload the shows for fans because the companies that make and broadcast them choose not to. However I also go out and buy the DVD box sets as soon as I can.

And I don’t feel like a criminal, because I don’t see why downloading a copy of a show that someone else has recorded should be seen as a breach of copyright while recording it myself onto a DVD is not.

According to the BPI’s press release the letters are part of a ‘new education campaign to help Virgin Media’s broadband customers safely download music from the internet and avoid the risk of legal action’.

But from the outside it seems more like a softening up move to get Virgin customers used to the fact that they are being observed by their ISP. And we can confidently predict that they will be quite happy to help the BPI identify individual account holders so that they can be threatened with prosecution over their downloading activities later on.

The move follows a massive campaign by the BPI to persuade UK ISPs to adopt a ‘three strikes and you’re out’ approach to downloaders, where they would have their network connection terminated if they were found to be downloading unlicensed material after two warnings.

This hasn’t happened, not least because the two sides can’t agree who would pay the costs of monitoring or sending letters, or who would be liable for the inevitable lawsuits when innocent users decided that arbitrary disconnection without due process was likely to prove unpopular in the courts.

They should be careful who they sue. Researchers at the University of Washington recently announced that they had managed to fool US film industry body the MPAA into sending formal legal notices to three laser printers, claiming that they had been downloading copies of Iron Man and Indiana Jones.

They had set up their network to fake the relevant internet addresses and the software used by the MPAA was unable to spot this.

Virgin will be on slightly firmer ground because it’s their network, and although some users may claim that they have open wireless networks that could have been used by anyone the buck will stop with the account holder.

There continues to be concerted pressure from established content providers in film, television and music, hoping that aggressive enforcement of copyright law will ensure that their twentieth-century business models survive against the onslaught of the network society.

It’s a doomed enterprise, as the growth of a fast internet coupled with the ability to make perfect copies of digital content means that all of the assumptions that underpin film studios, TV broadcasters and record companies have been stripped away, leaving them flailing around, threatening and suing the people who should be their best customers and hoping to persuade thoughtless politicians to pass new laws to give them special privileges online.

As more licensed download services become available, many offering songs without usage restrictions enforced by digital rights management technologies, the wholesale copying of unlicensed copies becomes a lot less defensible.

But the habits that grew up when the music industry was simply unwilling to accept that downloading was the way forward – and the technologies that support those habits – will be hard to break. Evidence that heavy downloaders are also heavy music purchasers doesn’t seem to have made any difference to the BPI’s approach either, and instead of finding new business models they hold on to the old ways of working.

It gets more complicated because the larger ISPs in the UK, Virgin, Sky and BT, are also content providers with their own interests in shoring up the current copyright regime. Virgin don’t want programmes they have paid to distribute ending up on the internet for people like me to download, but by acting in concert with trade bodies they can pretend that they are just being socially responsible instead of simply serving their own broader interests.

The spaces within which we can live unobserved are constantly diminishing, as both public and private sector agencies link their databases together or co-operate to ensure that nothing we do goes unremarked.

We need a space for experimentation, where we can test the limits of old laws and explore how they might be altered in future, but once ISPs decide that they are no longer neutral carriers of bits and choose to ally themselves with the content industry then we lose another sliver of freedom.

At the moment it’s hard to use BitTorrent anonymously, although since the service itself is entirely legal and legitimate there should be no need to do so. The moves by Virgin and other ISPs will simply spur the development of new ways of sharing files, just as the clampdown on Napster lead directly to the development of the current generation of peer to peer networks.

Virgin has just given its thousands of users an incentive to explore these new tools in order to confuse their peeping tom administrators. After all, we pay them to move my bits around, not to go running to the record company if they suspect us of downloading unlicensed music.

Bill’s Links

Press Release:
BPI
Laser Printers guilty of infringement:
BoingBoing’s take:

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