• Law, Policy -- and IT?

    Tracy Mitrano explores the intersection where higher education, the Internet and the world meet (and sometimes collide).


Get Off of My Cloud!

Little did Jagger and Richards know that their 1965 hit would become a meaningful metaphor for a twenty-first century conundrum involving the law, technology, user norms and the market. 

January 21, 2012
Little did Jagger and Richards know that their 1965 hit would become a meaningful metaphor for a twenty-first century conundrum involving the law, technology, user norms and the market.  
Some background information, if you have not already heard about Megaupload:

Here is a very brief outline of the issues, Lessig, four factors style.

Internet business is big business.  In the same way that what used to be good for General Motors was good for America, Internet business is what drives the global economy.  Everything else -- the technology, the law and social norms -- rides around this factor.

Technology has once again outstripped the law.  Title 17 of the United States Code, Copyright, was last fully revised in 1976.  (The DMCA and other laws are amendments to this foundation.)   When people spoke of networks back then it was in reference to televisions stations, the phone system or the Mafia.  Packet-switching was early in its development as functional technology, digitalization had not entered the popular media arena and the only thing about a personal computer that might have sat on someone's desk was a book of science fiction.  
The law remains startlingly simple in some ways: any copying of original work in a tangible medium that is not in the public domain or subject to an exception is a violation actionable in both civil and criminal law.  Movies, music, software and video games are registered as a means of securing greater damages, but registration is not even necessary for a copyright owner to sue an alleged infringer, who, for his or her part, need not (due to another amendment to copyright law in1997) be violating the law for financial gain.  (Which is why copying tapes and sharing with friends back in the day was probably not even actionable, but file sharing, even one song, is now.)  And the damages are tremendous: a minimum of $750 per infringement that with more intention to profit from the action can rise as high as $150,000.  Not only is the law in contrast to a technology that has made copying quite easy (in fact, technology functionally relies on copying when you consider what it takes for this web page to appear before you), but it is is quite the cudgel with which to beat bad actors.
Who is a bad actor?  That is where social norms come in.  Megaupload comes to mind as a good example given the enthusiasm with which they advertised themselves in defiance of law.  Are users who "download" content for which they have not compensated the owner and then upload it to this site bad actors?  A whole lot of electrons (remember when we used the "spilled ink" or "dead trees" metaphors?) have been spent on this point, and about it I shall say more in subsequent posts (look for one labeled "Hamlet's Dilemna" coming soon), but for now it is at the expense of the obvious to say that it is a behavior embraced by hundreds of millions of users around the world.  That is what makes this issue important, complicated, and critically in need of the kind and quality of attention that it is now just starting to receive on a broad basis.  
Were I the president of Box, I might, too, have shivers down the spine at the news about Megaupload, but for the moment I am going to leap to a quick legal distinction with a difference grounded in the Grokster case of 2005 that should warm the heart.  To many people's surprise, the court issued a Solomonic decision, whereby it did not make file share technology a per se violation of law, but only in the case of when the business model around which it was wrapped induced users to violate copyright.  Setting aside the complications of how to enforce copyright law globally for today (but as subject to which I shall return in early spring of this year), Megaupload rang that bell loud and clear.  Amazon, Box and others do not.  If the Eric Holder can keep that distinction in mind when approached by content owners with a complaint that rises to the level of criminal investigation and enforcement, we might still be able to rely on the cloud for business solutions without fear of giving it all up to overly broad cudgels of the law. 
And now for a word to users (individual customers, business, enterprise all included): Caveat Emptor.  Yes, you have heard it before in the context of real property, and now we have significance for it in intellectual property.  Buyers who unknowingly contract for services without looking into the background of an Internet company assume the risk.  And they might be especially cautious if the reason for which they intended to use the service is actionable in nature.   I have been waiting a long time to educate users. (See: "Copyright, Civil Rights and Middle Age") The moment is upon us.





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