No Cost Too Great for Copyright,
How timely. Soon after my post on confirmation bias in copyright came two examples of it in action.
First, the Coshocton Tribune reports that, a public service wifi system has been shut down because a single (unidentified) person is accused of illegally downloading a single movie over it. According to the report, the service had apparently been put in place five years ago and provided free wireless Internet access in the city block around the local courthouse. Further, Sony Pictures sent an infringement allegation to the ISP running the service, who on forwarded it to the county. The county decided to shut the service down as a result. The report does not disclose whether the county just took Sony’s word for it, or whether the infringement was proven with any degree of rigor. Second, CNet reports that a pub in the UK was ‘fined’ £8,000 (probably a settlement rather than a fine as the article refers to it as a civil action) because someone downloaded copyright material over the pub’s open WiFi network.
The whole issue here is one of the climate of fear which the legislature (aided somewhat by the courts) have created around copyright and copyright infringement. This climate of fear creates extreme risks for honest, law abiding citizens who find themselves in a copyright dispute. In theory, Sony ought to have had to prove: that copyright subsisted in the movie, that the copyright was held by Sony, that Sony had not granted an exclusive right over the copyright, that the movie was copied, that copying was an infringement. What happens in practice is that people receive one of these notices and realize that because the legislature has vastly inflated the consequences of copyright infringement that they must err exceedingly on the side of caution. Presumably that happened in this case, with the county shutting down a wi-fi network which served up to 100 people a day during its peak times.
There is a ‘solution’ – acquire a filtering solution for $3000 ish up front, and $1000 ish per year. These sorts of costs are prohibitive in the context of a small initiative like that in Coshocton. Morover, they add nothing to the service – indeed, they put a drag on the service by requiring traffic to pass through the filter. This lost innovation is an enormous cost to the community in order to protect a $20 movie. The provision of a free Internet wi-fi service is a valuable local innovation. It provided a substantial contribution to the administration of justice (police parked nearby and filed incident reports over it) and to commerce (with vendors using the network for processing payments during festival times). It is just the sort of local innovation by the aggregation and propagation of which our society advances. Once you start imposing such large costs on innovation, you cut its throat. You also destroy the benefits which flow from it. Outcomes such as these may well spell the death of open WiFi for example, yet no one mentions this category of cost when discussing taking further rights from citizens under the copyright law.
Of course, we should also ask whether this corresponds in any reasonable manner with our ordinary everyday lives. Imagine for example, if someone unidentified got off a bus outside some department store, went in, shoplifted and then left. The store, analogously to Sony here, could well send a letter to the bus company complaining about authorising the shoplifting. They have, after all, clearly provided the means for the person to access the material which was taken. The bus company could easily put in place measures to prevent this sort of thing happening. They could easily prevent known shoplifters from riding on the bus, for example. What’s stopping the drivers from having a list of faces in the cabin? Or from having a face recognition system? Or requiring the use of electronic tickets which uniquely identify the passengers? Passengers could be required to wear clothing with few, small pockets. Sure, these things may be a little expensive, but we’re talking about stealing here – don’t you care about property rights?
None of these things are impractical in the sense that a bus operator could implement them if they had to. The only question would be the cost, and the inconvenience that would be involved. In the real world we give credence to the costs which we impose on innocent third parties even when they are carriers of or faciliators of law breakers. Indeed, I don’t believe people would change their view even if the store had repeatedly been the subject of shoplifting by passengers of the bus company, or if the store had told the bus company about the shoplifting and/or the possibility of the shoplifting by its customers. Despite the fact that connecting the bus operator with the shoplifting done by a passenger would be considered by many to be, well, frankly insane, courts have been particularly willing to engage in a form of cognitive dissonance and think it completely rational to make this connection as between ISPs and their customers.
Presumably courts are more willing to ping ISPs because they are perceived as having more capacity than a bus company to control the actions of their passengers, but this is an illusion. A bus company has much the same ability to control its passengers, as an ISP does its users. The difference however is that courts respect the rights of passengers, but don’t respect the rights of users. The bus company’s passengers have a right not to be subject to a demeaning search by the bus company and courts are happy to respect that right. However, courts do not afford the same respect to passengers when the fire up their internet browser. They ought to.