 Eddie Schwartz. |
By Eddie Schwartz
In recent weeks, the government has revealed details of Bill C-32, its long-anticipated revision to the Canadian Copyright Act. It is a complex piece of legislation and one that, if enacted, would affect all the creative endeavors in which copyright plays a role, such as music, movies, books, photography, and television, among others. The bill’s impact, or lack thereof, on the music industry is the focus of my comments below.
Bill C-32 comes at a time when there has been much talk that Canada is a “rogue” nation—that our current laws are inadequate to stop “piracy” and that we have become a “nation of infringers”.
See also
Canadian copyright bill opens up debate on digital locks
Geek Speak: Geof Glass, cofounder of Vancouver Fair Copyright Coalition
One of the ways the Bill C-32 seeks to address these concerns is by harmonizing our copyright law with the United States and other World Intellectual Property Organization compliant nations. But WIPO compliance has not restored the music industry to health in the United States or any of the other countries where its provisions have been adopted. In fact, even more draconian measures, such as disconnecting file-sharers from the Internet are being experimented with in a number of European countries that are WIPO compliant. Just as a decade of lawsuits failed to stop or significantly slow the growth of file-sharing in the U.S., these efforts are likely to be counterproductive. File-sharers can easily employ available masking technologies and instead of ending “piracy”, it will simply be driven underground.
Under the proposed legislation it would be illegal to “break” digital locks, also known as technical protection measures or TPMs, used by the entertainment industry to control digital copying. In addition, infringers could be sued for up to $5,000.
Given that currently something in the order of 100 million unique songs without TPMs are already being shared over P2P networks in Canada and around the world, it’s difficult to understand what the government hopes to achieve by “locking the barn after the horses have run off”. Music file-sharing now constitutes well over 90 percent of all the music obtained on wired and wireless networks, and dwarfs all other means of distribution, including iTunes.
The Songwriters Association of Canada has proposed that Bill C-32 be amended to legalize music file-sharing in conjunction with a remuneration system for creators and rights-holders. Consumers who wish to file-share would be asked to pay a reasonable monthly licence fee. The revenue received could be distributed to performers, songwriters, and rights-holders on a transparent, pro-rata basis by one of Canada’s respected music collectives, such as SOCAN.
This one simple measure would not only go a long way toward eliminating the need for “locks and lawsuits”, but would create a new business model that would be fair to consumers and creators alike.
Apparently the government will hold consultations with interested parties later this year with a view to improving Bill C-32. Many of us who write and perform music for a living hope that the government takes a progressive approach to the difficult issues facing our industry, and moves beyond the failed policies of the last 10 years.
Rather than follow other nations down the copyright rabbit hole into a netherworld that makes less and less sense, Canada can lead the world to a forward-thinking approach that gives consumers the unrestricted access to music they want, while at the same time fairly compensating creators.
Eddie Schwartz is a Juno award-winning recording artist and songwriter, the president of the Songwriters Association of Canada, and a director of the Canadian Songwriters Hall of Fame. He represents the Society of Composers, Authors and Music Publishers of Canada in Nashville, where he resides with his family.
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Comments
I think Bill C32 is a good starting point to long overdue copyright reform in Canada, but I am against extending the levy to ISP bills.
Now it is not about stopping theft, it's about managing it. Pretty short sighted. Those against TPMs seem to think that Canadians of all backgrounds would rise up in great numbers against Bill C-32 if they only knew that it was being debated. I content that most Canadians think that piracy is theft. Period.
Wonder how they'd feel about having to paid another tax because people like Eddie think it's pointless to even try to stop illegal downloading. Pretty negative. Of course, it may be hard to judge the reaction - all the way from down in Nashville.
I've seen some out there ideas on the copyright issue, but this one is right up at the top.
The internet and digital technology has changed many businesses and industries already. It has changed you and me as well. It isn't going away. Copyright, and industries based on copyright are simply the latest in a long line of things affected and revolutionized by digital technologies and the internet.
These technology advancements change our society and it's values. Calling someone who downloads a song or a movie a thief, has about the same amount of impact as calling someone that owns a cell phone an "over-talkative gabbling idiot". There is no stigma attached any longer. It just draws strange looks to the accuser.
In the days when "illegal copying" was a major undertaking, requiring a major investment and commensurate returns, our current laws sort of made sense to the average person. Now they no longer do. Face reality, the world has already changed. Prohibition didn't change human nature, and neither will stronger laws cause irrelevant social agreements and business models to become relevant again.
So what will replace our current copyright structures and business models? I don't know. Or more accurately, I don't know which one, or if there will even be "only one" model. It's time to experiment, adjust to the changes, adapt.
I don't know if Eddie's idea will work. I know we have the ability to play into the technology and the drivers for these social changes. It won't be a simple "tax". It's worth discussing the idea, perhaps even trying it.
As far as this ISP levy idea goes, I'm somewhat for and somewhat against it. If everybody were forced to pay a nominal fee of say, $3 to $5 per internet connection, then we could all download to our heart's content, and nobody could say a damned thing about it... But then, I think the industry would start to get lazy, because a good number of people would stop buying songs, where they currently already do.
I respect copyright (or at least, copyright in its ideal - not its current form), and I resent those people who imply that most file sharing people don't. I've told many people that if some miracle happens, and canadians are given the right to circumvent their digital locks for "legal purposes", then you'd see me going out to buy a lot of digital media, because I know that I won't be getting scammed anymore. Although I know there are people who would never pay a dime for digital media, I'm sure most other respectful people would do the same as me.
The moment that respect is given to the average consumer is the moment that these consumers start to respect copyright again.
Deep packet inspection isn't the answer. Full packet encryption defeats this handily, and is already in deployment (although not universally implemented by P2P users yet). ISP's cannot be expected to "enforce" or "track" sharing through packet inspection. It would be less reliable than TPM/DRM has proven to be.
Likewise, monitoring of various P2P technology is fraught with false positives that make it expensive to monitor.
An across the board levy is really unfair for many, for the benefit of the few. Compare a user who downloads a single movie or song a month, to a user that downloads one a day.
Taxes/levies or technology isn't the answer - directly. But using technology to play into the social drivers for sharing can give results that might be desirable. Consider:
1) ISP's control their own internal bandwidth. Costs of upgrading or delivery are totally within their own control for content that remains within their network. The costs they can't control, are the inter-ISP payments and the backbone network costs. When a customer accesses a server or connection outside the ISP's network, money changes hands between the ISP's and the backbone provider. Better, and cheaper, if the ISP can contain the bandwidth usage within their own network.
2) The primary drivers for P2P sharing isn't really "free". It's impulse driven, easy access, and low cost. Witness the acceptance and usage of iTunes for an example.
3) The widest used P2P application is bittorrent. It has certain "technical characteristics". The one we can exploit is it's "fastest download" behavior, where it tends to prefer other systems with a fast download.
Now combine the able with the ability for ISP's to legally host torrent files and trackers. Bandwidth speed limits become purely an "outbound/outside" restriction for the ISP, which will influence the bittorrent applications to "prefer" systems within the ISP network. ISP's now have information about which customers are doing downloading, which files are being downloaded, and how much data usage a customer has. It has the information needed to generate a usage based "excess data billing" based primarily on copyrighted files. If this billing is too high, the customers will suffer the slower speeds and "lock out" the ISP systems from downloading so there is a check and balance in play, based on desires and drivers. Customers that don't do a lot of P2P of copyrighted material don't get charged even if they do a lot of internet data usage.
Then throw other things into the mix. Copyright holders get paid simply on the amount of times their work is downloaded, times the size of the work. Indies can place their works directly on the ISP systems, and collect directly. Throw in promotions, some advertising on the ISP tracker web sites, etc. Things get interesting. ISP's start competing on "P2P download speeds". The ISP's gain through the advertising on the trackers, and a percentage on the "copyrighted P2P levy". Artists and creators get something, based purely on "popularity" and content size/quality. Indies have a brand new channel. Marketing people will come up with more ideas.
There are a lot of potential pitfalls to this idea, but the concept is to use existing and proven technology to play into the social drivers. It wouldn't be perfect, but it would be far better than what we are facing.
Think about the idea, kick the tires. The technology would work, the question is if it socially and business acceptable.
How about taking the stance that the old business models are no longer working and you need to create new ones. Give the consumers the reason to buy and they will, on their own.
If you look closely, what I proposed above isn't really a levy, it's a business model. It could work without any changes to our laws if the various parties all got together and worked it. It's unlikely to happen because the biggest player in the current market, the media distributors, can get cut completely out of this model. We may need some kind of legal framework to allow (or force) such a model into existence.
Although I am against legal frameworks that force certain business models, in this case we may need one to allow new models to come into existence. Disguising it as a "balanced levy" may be the wedge needed to shift the market balance.
At any rate, what we have now isn't working very well any more. It's time to rethink things from the ground up. Another industry (and people), that have to reinvent themselves for the digitally interconnected world.
issue with your idea in general is that if the ISP is more involved then we loose our Net Neutrality. We already see that ISP's re-route 404 pages to show their content or suggest ads, and thats really just the tip. They can direct us to their content or deals they make to supply us what "they" want. The mom and pops wouldn't know the difference.
Eddie makes the point "But WIPO compliance has not restored the music industry to health in the United States or any of the other countries where its provisions have been adopted." I doubt very much it's the " music"industry that has issues here, it's the recording industry, the people who make their money as middlemen.
To paraphrase Mike Masnick, connect with fans + reason to buy= money for the artists.
It all reminds me of the British Recording Industry in the 80's.
Home Taping is killing music...
Although I agree that we need to watch the issue of net neutrality, this issue will be with us regardless of "ISP enhanced P2P sharing" or not. It becomes just another factor to take into account. It's not a "killer" for the concept, or something derived from it.
What you call the "middlemen", is what I called the distribution channels. In many cases they are the same company or business. They are the ones that will fight an idea like this the hardest.
There are 2 technical elements to bittorrent sharing, the torrent tracker which is nothing but a "switching center" that tells clients which other clients might be active in sharing a particular file, and the clients applications that are actively sharing (both downloading and uploading chunks of the file). The clients contact each other directly to exchange file data. There are flourishes you can add to this (distributed tracking, end others) but these elements are enough.
Full packet encryption will prevent a 3rd party from sniffing your packets to determine the contents. This is why deep packet inspection cannot work in the long run.
The trick is to become one of the parties to the actual packet exchange, preferably a "preferred" target for P2P exchanges. For this you need to participate in the sharing of that file, and do it so well that the P2P applications will tend to prefer obtaining the data from your system over any others. Be significantly faster. For an ISP, they can do this by moving the bandwidth throttling to the outside edge of their networks (some already do), and allow full speed within the network. This will already bias things so the apps will tend to do the most data transfer within the network. Then the ISP can add an additional bias by throwing their own P2P client onto the network, with a really fast "upload" channel. Now they are a full participant in the P2P sharing, and it doesn't matter if the packets are encrypted or not (lower cpu load on both ends if they aren't). They can track which IP addresses are obtaining chunks from their system for any particular file directly. If there is only one chunk obtained by the client from their system they know the client was "interested" in data from that file. They already have the means to track your individual data usage, by the hour if need be, and can cross reference to the size of file an IP was "interested" in. They have the cross reference from IP address to customer accounts.
Throw in an ISP hosted tracker and "torrent site" (ala Pirate Bay), and the list of participating P2P systems for a file can be biased towards other P2P clients within the ISP network, further limiting outside of network traffic, speeding up the transfer even more.
But there is a catch. Any customer can configure their system to avoid connections to certain other systems. If the pricing is too high, or the speed is too low, there won't be any perceived advantage in obtaining the file through participating within the ISP's "P2P networking". They will block out the ISP owned P2P systems, and go elsewhere. Find the right balance, and everybody can get what they want.
Note that the customer can easily avoid the network, and suffer slower speeds, if they block out the ISP systems. The only way this works, is by giving the customer something they want, in an easy and cost effective manner. It won't work as an enforcement tracking tool.
It isn't perfect, but with some fine tuning and treating customers as partners, it can get pretty good. Don't fight the technology, work with it (you can't win that fight anyway). Find ways to play into the social drivers that the technology has enabled. It's important to understand the technology, but even more important to understand the social drivers it enables. P2P usage would never have become widespread if it was as clunky, awkward to use, and restrictive as the offerings we have seen from most "pay to play" players. "Free" isn't the primary social driver the technology has enabled. iTunes has already proven this point.