Thursday, April 05, 2012

File This Under "Technically Illegal, But Really Pretty Awesome"

 File sharing is an incredibly tricky concept for our criminal justice system to wrap its collective head around. Obviously the major media conglomerates have been arguing that it's thievery and should therefore be treated with the same harsh measures we use on all other forms of Type I crimes (what are usually called the "street crimes").

But as this comic points out, file sharing (and specifically piracy) is not that conveniently analogous to theft. Because it doesn't actually remove anything from the original owner. In a traditional theft of an album from a music store, that store is out both what they paid for the album in the first place and the presumable profit they could have gleaned from its sale. But with digital piracy, the original owners are still very much in possession of what they have. So they obviously don't lose that first sum of money (the money that in the past was turned into a physical product). Now these conglomerates will argue this does cause them to lose out on the second sum (the profit) because that person took it for free rather than give them money for it. But this argument is built on a number of assumptions (that said person would have paid for this were it not free, ignores evidence of digital pirates also being the biggest purchasers of digital content, etc.) that may or may not be true, but clearly position it as different than the act we call theft our laws were written to address.

Now had I the time or inclination, this is where I'd make the argument that the music and movie industries really need to figure out a new business model because their old one is clearly becoming obsolete, but instead they refuse to acknowledge reality and instead are trying to sue it out of existence. But suffice it to say, the criminal justice response has been inadequate at best. And it's largely because our criminal justice system and the vast majority of our laws in these areas were more-or-less cemented into form long before the internet existed. The police and the courts simply lack the sophistication to effectively combat digital piracy. Because, again, not only are you not taking something away from someone, but you're also not even making a direct copy of one person's material. Instead you're taking fractions of that source material from thousands of different places. This is, in short, very hard to prosecute.

So as I've mentioned, the industry's response to this has been to try to sue individual downloaders (you will never be able to sue even a fraction of all people who have illegally downloaded something) and file-sharing sites (ignoring the fact that these places don't have control of their users and provide many legal functions as well). But as anyone who knows even the slightest bit about the internet will attest, shutting down individual websites doesn't do anything. It's like arresting individual drug dealers; sure, you stop that particular one, but there will be another doing the exact same thing in the exact same place by tomorrow at the latest.

Further complicating matters is the continuing advance of technology (and the resulting price drop in formerly prohibitively expensive technology) means digital piracy can evade any attempt at stopping it through the criminal justice system simply by keeping somewhat up-to-date. For instance, take Pirate Bay, the world's largest (and arguably best) torrent site for digital piracy. Operating out of Sweden, they've been indicted by several US courts, but have argued that their physical location in Sweden means they're not subject to US laws. The US DOJ responded by attempting to strong arm the Swedish government into getting involved. Sensing the writing on the wall, Pirate Bay has announced they are going to send their servers into space in unmanned drones, where it's pretty well agreed that if laws don't count once you're 20 miles into the ocean, they must not count in space (though maybe someday we will have some sort of...Space Law. Which, incidentally, would make for the world's best t.v. show and profession. I would totally go to space law school).

And this is when even the staunchest defenders of law and order have to admit the criminal justice response is simply not ever going to work in stopping digital piracy. Because now that pirates can have the only physical thing you could possibly seize to shut them down (their servers) out in outer-fucking-space, you're probably not going to catch them. Unless we're willing to invest billions in a police program that sends highly-trained officers to space to intercept these drones, which I don't doubt someone will seriously propose, but will likely not happen (though, on second thought, it totally should. Space Police! I think we just found a show and profession better than Space Law.)

No comments: