The recent FBI takedown of MegaUpload.com and arrest in NZ of four of it’s senior staff, including Kim Dotcom, has been very interesting and there are a few things that I find myelf thinking and saying over and over again, so I’ll try and elaborate them here…
A Pirate Empire
It can’t be denied that MegaUpload was the source of a lot of copyright infringing content. Although despite being aware of MegaUpload for a few years this was something I only discovered recently, even though I tend to believe I have a pretty good handle on these underground internet things, or something.
I have used MegaUpload in the past for various legitimate purposes. I’ve put files there for others to fetch, and I’ve collected files that others wanted to share with me, all legitimate.
The fact that infringing content existed on the site is hardly evidence of wrong doing on the part of MegaUpload. They can’t actively control what people upload or who they share links with. They had also implemented systems to allow verified rights-holders (movie studios, record companies etc) to unilaterally have content removed. In fact Watner Entertainment, according to the Indictment, had the number of links they could remove raised from 2,500 to 5,000 per day.
At this point what MegaUpload does is not a whole lot different to what YouTube has done for years. Except that YouTube hosts the content and indexes it, making almost all content available to everyone with a simple search.
The Indictment lists email exchanges where MU staff shared links to pirate content as evidence that they were aware that the service was being used for that purpose and complicit in it. I find it very hard to believe that Google/YouTube staff don’t share amusing links to unlicensed content with one another.
Multiple Links
A point that is made in the indictment and repeated in many other places is the fact that MegaUpload was not complying with the DMCA as it was allowing multiple links to the same file to remain even when one or more links to that file had been subject of a takedown notice.
This is based on the concept of de-duplication. In a storage system like the one MU was operating it’s possible that many people may upload identical content – rather than storing every single copy of that content as a separate file you simply point multiple copies of that file to the same physical data. In the indictment the FBI argues therefore that when notified of one infringing link MegaUpload should also have removed all other links to that same content.
However every single one of those links has been uploaded by a separate user. While in theory it is technically illegal for me to have a copy of The Big Bang Theory that’s been ripped from TV, it is not a DMCA violation for me to have that on my computer or to upload it to a cloud storage system. It only becomes a DMCA issue when I share that content with someone else. Also some people might have a legitimate claim to that content – MegaUpload was widely used by people in the film, television and recording industries including high-profile musicians. If the FBI’s suggestion were followed then it’s entirely possible that in removing a notified and infringing file they also remove a legitimate and approved copy of the same file that had been uploaded by another user.
In the same way when YouTube is made aware of a DMCA violation they only remove the specific video in question not necessarily all other copies of the same content (which YouTube’s fairly advanced content analysis could probably identify quite easily).
The FBI goes on the say that MegaUpload has used the checksum before to remove ALL links to notified child pornography and terrorism related materials. This is different – those things are specifically illegal, no one has a legitimate right to be storing or redistributing that material.
“The Mega Conspiracy”
Early in their indictment the FBI term the participants in MegaUpload and it’s related sites collectively the “Mega Conspiracy” – the quotes are even in the document. It’s a term defined by the FBI for the participants, it is not a name they called themselves.
However this name, The Mega Conspiracy, has then been used by media, and even a New Zealand judge, in a way that could easily imply it was a name the accused gave themselves which certainly lends weight to the idea they they knew they were a criminal conspiracy. This seems unfairly prejudicial to me.
Flight Risk
I’m no judge but the decision to refuse bail to Kim Dotcom while awaiting an extradition hearing seems unfair. It entirely hinges on two things… The first is the unsurprising revelation, thanks to special testimony and a report from NZ Customs at the request of the FBI, that it’s pretty easy to get out of New Zealand, and that it’s possible to buy false documents. The second is that Kim Dotcom has “criminal connections” he could use to source these false documents.
This applies to anyone in this country. Anyone wiht a bit of money and sufficent determination could obtain false documents and escape the country by boat or small plane. There appears to be nothing more than the FBI’s imagined scenario to suggest that such an escape is likely.
On the other hand Dotcom has a wife, three children under five, two step-children in school here and twins due in a few months. Going on the run is hardly a simple thing to do, unless he plans to leave them all behind. Also he’s a show off, he likes to be noticed, hardly the sort to go underground for a while, and he seems to believe he has a strong case to defend.
The Bigger Issue
This all comes down to the content industry’s war on piracy, which is, in part, a war on new technology. As has been pointed out in many places these industries have a terrible history when it comes to fear of new technology. The recording industry declared that home taping would kill them, the movie industry said the video tapes were the end of the world, the recording industry sued Napster into the ground before finding an entirely new (and huge) market in online sales.
Piracy of content for most people probably has little to do with wanting something for nothing, and a lot to do with wanting things swiftly and in a convienent way. As the sucess of iTunes and similar stores for music has demonstrated, people will pay a reasonable price for content that appeals to them in a way that works for their needs.
While the movie industry insists on treating its paying customers like criminals with unskippable piracy warnings on DVDs and DRM systems that can render legitimately purchased films unusable people will instead go for alternatives, legal or otherwise, to get what they want.
Artists, too, are starting to see a new business model online where they can sell directly to their fans and not have to give up the majority of their earnings (as well as the intellectual property rights) to middle men. This threatens an industry that’s built entirely on profiting from the labour and art of others.
The market WILL change – for some people it already has. Eventually the industry will have to adapt to meet these demands, it is not a challenge that can be nullified with legislation or legal action.
I’ve written in more detail previously about the idea of Better Than Free and the larger challenge face by the television industry in adapting to an audience that has global connections and doesn’t want to wait.
