Internet: Aus test case blames ISP for illegal downloads (part II)

In part I of this article, I explained how the fundamental technologies upon which the use of the internet depends - html, browsers, are tools for stealing intellectual property, in particular code and content.

But certain industries: the software, film and music industries in particular, are - at least on the face of it - having much more success in protecting their products.

The reason for this is simple: those industries are big money spinners, create jobs and pay large tax bills. In short, they are viewed as strategic industries by government.

What this means, on the ground, is that a small group of software providers, whose business model depends on anti-competitive practices and high-prices can press governments to act on their behalf. In many countries, industry pressure groups make private raids on premises, supported by the police. Often criminal prosecutions flow. Some countries offer financial rewards to staff who report the use of unauthorised or illegal use of software by their employers.

For the industries concerned, the reason they have a problem is simple: they do not control the technology which delivers their product.

When CDs were introduced to the market, there were four plants worldwide that could write CDs: and they were owned by the product developers Sony and Philips. Now, both the CDs and the technology to write to them is commoditised. The same has happened with DVD. No doubt, in a shed somewhere, someone is working on an economical way of duplicating Blue Ray.

The software, film and music industries are in a constant battle with those who breach intellectual property rights. The "Home Taping is Killing Music" campaigns was a response to the hardware industry's development of "music centres" that combined vinyl record player and cassette recorder in one unit.

Last week, I bought a new DVD player - when I play audio CDs, I can plug in a USB stick and record the tracks on the disk as MP3 files. I can take that stick and plug it into the dashboard of my car to play the MP3 files from it. My parents have a DVD recorder that transfers video tape content to DVD. It's almost five years old.

These are readily available consumer technologies. Move into the world of mainstream, consumer, computing and the options are even wider.

In a PC running Microsoft Windows, the Windows Media Player that comes as part of the operating system has a single button that says "Rip." That's a trendy name for "copy." Yet Microsoft is one of the most aggressive companies when it comes to protecting its own Intellectual property. It also ignores claims about its own breaches of IP: a recent marketing campaign ran the tag-line "Click To Learn More." That's been our trademark, right across the internet, for almost a decade. They did not respond to our report of this violation, although the ad campaign did disappear shortly thereafter.

All of the companies that are members of e.g. The Federation Against Software Theft produce product which, as I explained yesterday, actively facilitates the copying of third party material - graphics, text and other media.

The culture of copying is ingrained and has become a part of the business model of companies that are, seemingly, too big to touch. For example: YouTube, owned by Google, contains untold quantities of material which is subject to third party copyright. Millions of users post home-made video clips with soundtracks from commercially recorded music. There are thousands of clips, filmed on mobile phones, which in music industry terms are bootleg recordings and therefore illegal. Yet YouTube places the burden of identifying those breaches on the copyright holder with a notice that it will take down any material reported to it - if it agrees that there is a copyright breach.YouTube contains a facility, next to each video, to copy code to "embed" a video in another website. This goes beyond mere facilitation: it is both encouragement and the provision of the means to do so.

Internet publishers are in a special category, it seems. They are protected under US legislation (the Digital Millennium Copyright Act) and case law (Perfect 10 v Google) and UK case law (Metropolitan International Schools v Google and ors).

Basically, what the law and cases say is that search engines can republish whatever they like with total impunity as to the intellectual property rights of third parties. The USA's DMCA goes even further: it says that an internet publisher is not liable for any consequences that might arise from the re-publishing of material already on the internet.

The popular blogging service Blogger.Com provides a platform for users to open anonymous accounts and to post anything they like. It is awash with copies of content taken from the websites of their original creators. Blogger.Com is owned by Google. No one seriously suggests that Google should be liable to the original copyright owners by reason of its ownership of the platform - even though it gains revenue from the blogs that it hosts and therefore shares in the profits of those breaches of intellectual property. Many thousands of blogs hosted on Blogger.Com include embedded YouTube videos.

The arguments raised against ISPs, that they are to blame for the use their systems are put to, is the same, in principle, as the arguments that car manufacturers should be held liable for the dangerous antics of users of their products. Or similar arguments against weapons manufacturers.

One of the arguments in the iiNet case is that the company's terms and conditions require users to respect third party intellectual property rights, yet they have failed to enforce the relevant term. If that argument is valid, then the manufacturers of the various consumer devices and even the software referred to above should also be sued. So should the telecoms companies that provide the cables across which the stolen copyright material is carried.

To single out an ISP and to blame it for the actions of its users is illogical, and flies in the face of the realities of the situation.

For sure - an action against those persons who make unauthorised copies and distribute them is valid.

But this is extremely difficult, particularly when peer to peer file-sharing programs are used: these break up the content and host it on many personal computers all over the world in a perfect use of the internet for its original purpose of ensuring that data can always be accessed. It is, incidentally, similar technology that is used in large-scale attacks on computer networks, using distributed code to act in concert on a given signal or trigger, such as a date.

In Sweden, an action against The Pirate Bay was based upon the premise that a service that provides links to downloadable material was itself engaged in improper activity. The Pirate Bay did not host any of the software. Does it link to illicit material? Absolutely: only yesterday, a link appeared to "Cracked iPod IPA's (Apps). "

So I searched for that phrase in Google. The top response is "how to install Cracked IPA apps iphone/ipod. It's a video posted on YouTube. There are more than 100,000 results for the search. The Pirate Bay's entry is fourth, behind another YouTube video and a video at MetaCafe.com.

On balance, actions against ISPs - and the proposed action by the UK Government against individual internet account holders - that they are facilitators of breaches of copyright - is flawed. And, in any case, the actions are selective by a few companies to protect their own interests while themselves often using the very same technologies for their own commercial purposes.

For the avoidance of doubt, Google is not alone in the facilities it provides: there are many other search engines, video and blogging platforms that provide identical or near-identical facilities. Microsoft is not alone in providing copying facilities within its media player software. Manufacturers of web-page design and programming software that allow the embedding of third party images, media and other content are legion. The examples here are merely because they are the biggest.

But in a serious irony, the conglomerate Sony owns the copyright in films and audio which are frequently copied and distributed and which is a member of various pressure groups that seek to enforce those rights. And it makes consumer technology that is designed to make that copying easy. And in the manual for that technology, it contains a warning that third party copyright should be respected.

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Nigel Morris-Cotterill is Head, The Anti Money Laundering Network, the Group which publishes, inter alia, The Chief Officers' Network. He is formerly a solicitor in private practice and now specialises in systems to detect and deter financial crime. www.antimoneylaundering.net

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