Sunday, 17 February 2008

Technology and the Law

The injunction slapped on Channel Nine to stop them showing the new drama Underbelly in Victoria is yet another example of the law failing to keep up with technology.

Underbelly is a dramatisation of some relatively recent events, some of which are the subject of an ongoing criminal trial here in Melbourne. It's thought, probably quite reasonably, that the content of the show could prejudice the trial.

But anyone who wants to watch Underbelly can easily download it from file sharing sites. Anyone who didn't already know this was helped along by wide reporting of the fact in the mainstream media, and there were torrents up within hours of its broadcast in Sydney.

This sort of thing is starting to crop up more and more as the pace of technological advancement increases, and it's not going to stop.

For a long time in Australia it was illegal to put anything on your iPod to which you didn't personally own the copyright. When was this changed? Not until late 2006, five years after the iPod first appeared. It's worth noting that the same act finally made it legal to tape TV shows and watch them later, thirty years after the arrival of VHS.

But this Underbelly situation is a bit trickier. In this case it's not just the written law that's out of date. It's the process of application of the law that's out of date.

And if the former can take years to correct, then the latter could take decades.

But here we are. The question that must be answered is . . . how do you restrict the viewing of a show in a local area, when we have a global network from which to easily get it?

The short answer is . . . you can't. The technology is there. It's not going to go away and it's not going to change. It's the law that will have to change.

But of course, something like that doesn't change easily. While the change is inevitable, so is the huge amount of resistance that will accompany it.

We're seeing this sort of resistance already among the major TV networks, who are fighting tooth and nail against digital distribution of their content.

The problem there is that the networks are clinging to a distribution model developed fifty years ago when the only other things competing for viewers were cinemas and the wireless. There are now much better distribution models out there. But rather than embracing all this new technology as an opportunity to expand their viewer numbers, they're fighting to keep their old outdated models alive.

The really interesting thing is that the networks are trying to use the law to do their fighting for them. So when the lawyers start understanding that the law needs to change for precisely the same reasons . . . there should be some interesting times ahead.


Spoon said...

This is probably going to sound a little trite, but the question you ask: "how do you restrict the viewing of a show in a local area" is a little like asking "how do we stop someone from jaywalking in an unpopulated street?" You can't. But it doesn't make it any more legal just because everyone does it and it's hard to catch those that do.

I download stuff. A whole bunch. And I've been copying software since I was in early high school. And it amazes me how blasé about it I am. No matter how many times they play that "You wouldn't steal a car..." preview it still doesn't feel like breaking the law.

But it is.

And if they change the law it probably won't help. If they change the distribution method it won't help, cos people will get around it. I won't, at least to start off with. But I will read about how to on the internet. and then someone will make a tool that makes it easy and then I will.

And the networks, at least the American ones, must be embracing the new technologies, because it's the revenue from those new technologies that the writers want a piece of. I think there's a bit of a conception of TV networks as dinosaurs that don't know the first thing about entertainment .And maybe they don't know about entertainment, but I reckon they know how to make money.

I think I lost the point I was trying to make. but I've written so much, it seems such a waste to delete it just cos it's pointless.


Matt said...

Shame, because it sounded like you were leading up to something there.

You're right. Downloading doesn't feel like breaking the law. It's not like stealing a handbag. Or if it is, it's like stealing a handbag from a warehouse with infinite handbags that everyone else is stealing from too.

When enough people are committing a crime, at some point it must stop being a crime, and the law against it becomes the anomaly.

I guess what I'm musing on is the futility of trying to legislate against the march of technology. At some point the law will always roll over. But it takes far too long and far too much time and money is spent resisting it.

And I disagree about the networks embracing technology. Some of them are starting, just starting, to set up downloads / podcasts / streaming content (unlike Your ABC which has had this stuff for years). But they're spending all their time working out how to use it to point people towards the broadcast versions, and trying to work out how much they can get away with charging people for it.

How many of them are using file sharing, easily the most efficient method of distribution? None.

And the thing is that because we're so early in the piece there aren't even any real revenues yet. The WGA strike was all about potential future revenues. That's why it took so long to get settled. No-one could agree on what they were actually fighting over.

I think I've lost the point I was trying to make too.

Spoon said...

"When enough people are committing a crime, at some point it must stop being a crime, and the law against it becomes the anomaly."

I'm not sure I can get on board with this one. If the law is there to protect from harm (a big if, sure, but sometimes it is), and if the crime involves harming someone then it kinda doesn't matter how many people are doing it. Doesn't make it any less wrong.

The point of fact is, by downloading tv shows I am bypassing advertising, and it is that advertising that is paying for the show. I am directly harming the networks of that show, by not watching, and directly harming the show itself.

Let me jump to a huge conclusion which I just thought up and has no basis in fact (or for that matter realism).
Jericho (a show that I know you love) was cancelled due to poor ratings. Same with Journeyman (which I am really enjoying). Seems to happen a lot to sci fi (i.e. nerd) shows. I wonder how many people didn't watch it, and instead downloaded it. Using, as I like to term it, the internet VCR.
These shows were cancelled because not enough people watched them when the networks wanted them to (i.e. when they were being paid for it).

Now sure. If the networks put the shows up on Torrents, with ads, then maybe some conscientious nerds will download the version with ads, and the networks can get a true rating of the show, and the revenue to match.
But maybe someone will take out the ads and upload that, and everyone who doesn't want to spend 5 minutes of their viewing time in fast forward will get that one instead and we're back to square one.
The point is there isn't much revenue in a network uploading their content to a file sharing system, because people still won't use it, because it will always be there with some kind of money making caveat. It's the reason they exist. Contrary to popular belief, these guys aren't here to entertain us, they are here to make money. It's why reality TV STILL gets shoved down our throats long after the novelty has worn off.
By the end of its last season, Ross, Rachel, Chandler, Joey, Phoebe and Monica were getting a million dollars an episode. Each.
That's more than an entire season of Big Brother would cost. AND they get the people who watch it to phone in, to raise more revenue.
I am sure the accountants have looked at file sharing, seen there is little to no money in it and left it alone.

And on your other handbag point: Let's say this handbag factory has developed a way of making an unlimited suppply of handbags. But it's not cheap. To make it viable they need to sell 1000 handbags.
Sure, there's an unlimited amount of them, but there still need to be a finite amount sold before they make their money, and a finite amount above that to make it a worthwhile venture, and to know that that style of handbag is popular.
Now if they only sell 800 handbags (and they can't tell exactly how many fell off the truck cos, dammit, as soon as they fall off, the damn truck just magically fills up again) then they haven't made enough money on that particular handbag, so they shut down the factory. Even if they can tell that another 900 fell off the truck, they still didn't make the required cash to keep going.

Same goes for the music industry. I like Lily Allen's "Allright Still" but she doesn't know that cos I haven't given her any moeny for it. There's a website: Dear Rockers which hopes to remedy that by encouraging people to send cash to the artists from whom they have downloaded music.
But even that gesture won't send the message to the record company that this is a viable artist who is worth investing in.

Maybe I need to change the error of my ways.

But it's so damn easy.

And cheap

Matt said...

The law isn't always there to protect from harm. Sometimes it's just there to protect private business interests.

But even if it were just to protect from harm, my point still stands. If enough people are doing something then it will eventually become legal. It won't necessarily be moral or ethical or even 'right'. But it will be legal.

And I agree that advertising is precisely the point of network television. The availability of VHS, TiVo, time-shifting recorders and downloading have all meant people can easily bypass the advertising.

But while this is currently illegal, I don't think it's morally wrong. Copyright is a man-made artificial construct, and if another man-made artificial construct gets around it, I don't think morals enter into it at all. What does enter into it is the law.

But in the end you can't legislate against the technology. The technology will always win.

So the networks are having trouble getting their advertising out? Cry me a river. They just need to work out how to do it. They will eventually. That's their business.

The real point is that the future is not about this old distribution model at all. In the future there won't be a TV guide that tells you what shows are on at a particular scheduled time. The future will have content available for download whenever you like. Costs will be covered via subscriptions and the sale of one-off specials. The prices (currently the major stumbling-block to wide acceptance) will have come right down, and free file-sharing sites will be so corrupted by spam content from the producers, that very few people will bother using them anymore.

Of course there'll still be sharing of files, but it'll be more at the level it was prior to BitTorrent, when people would just tape shows for each other.

The bloated network and record companies we have today will have ceased to exist. The profit margins on the new model are too thin to sustain them. Small operations and individual content producers will rule.

The current entertainment powerbrokers know all this, and that's what they're really fighting against.

What we're seeing right now is the changeover to a new world of entertainment. Ooh it's an exciting time to be alive.

Faceless MIPI goon said...

Spoon's comments on downloading shows has been noted.

Spoon said...

Ahhh yes, but I have seen the error of my ways.
I now promise, whole heartedly, to never again post to the internet about nefarious activities.

And I don't think there's anything wrong with making money, and I don't see why the law shouldn't protect from private business interests. I honestly don't believe that downloading stuff for free when you are supposed to pay for it is a victimless crime that is made any moreso by the fact that everyone else is doing it.

Copyright is incredibly important to an artist. If someone wants to actually make a living off their art then copyright becomes tantamount, whether you consider it a man-made construct or not. If you have an item for sale, and you hope that the sale of that item will put food on your table then you don't want people taking it without paying for it.
Now the internet should be used a lot better than it is, and I suspect that, out of all the stuff on my ipod it was Lily Allen I used as an example previously. She had a bunch of her stuff up on her MySpace for free, and got herself a name that way. It's the way to use the internet. BUt no amount of free downloads is going to make you money. At some point you have to start selling the stuff. And I don't think it's "legally wrong but morally OK" to do that.
Now you can talk about TV Networks and Record Companies skimming way too much off the top, and I believe they do. (That Dear Rockers site I linked to earlier said to send an artist $5 US to cover how much they would make from the sale of 3 albums on iTunes. That's really not much.)

And your prophesies of the Brave New World of entertainment distribution sound like that story you hear of people in the middle ages (or whenever it was) saying that the crossbow is such a devastating weapon that it will end all wars, as no one will want to use it.

The internet is so powerful and huge that it will completely change the way we do things.


People, as a rule, are one enormous blog of intertia. They will do things the way they have always done, because it's easy, especially if there's someone out there who is going to tell them to. And that someone is someone who entertains them every night.

The phone and fax machine. Computers. Networks. email. internet.
All of these things were supposed to radically change the model under which businesses run, how our children are educated and change our day to day lives. The paperless office is STILL talked about.
And yes, things have changed. 50 years ago I would get up in the morning, go to work every day. Shuffle papers around, go to meetings, and then come home and veg out in front of a TV.
Now I get up in the morning, go to work every day. Shuffle papers around, go to meetings, and then come home and veg out in front of a computer.
Sure I work for a computer company, whose sole purpose is to support other businesses who believe we have made their lives better by introducing computers into them. But while my actual day to day activities might be a little different from what they would have been 50 years ago, the model isn't.
Changing the model is incredibly difficult as it requires a whole bunch of people, who are all in their own little rut, to actually want to break out of it at the same time. At the moment it's a handful of rebels who download stuff cos it's easier than looking at a tv guide.

Spoon said...

Damn train of thought.
Where I said "And I don't think it's "legally wrong but morally OK" to do that." I should have said "And I don't think it's "legally wrong but morally OK" to circumvent that."

Budge said...

I think too, that if the media we consume was entirely for our own private entertainment, there'd be much more room for change. But it's not. The media we consume helps us make meaning of our lives and define ourselves, ideologically and socially.

How many close friends do we have who neither read, watch, or listen to any of the same stuff as we do? And in a wider context, how do we make meaning of the world around us? Is it an Anna Coren world, where Good is generally about a rich person doing something nice for a bunch of fat orphans and Bad is generally about a 16 year old black kid ripping off the welfare system? Or is it a Kerry O'Brien world, where Good is more likely to be a government policy on the environment and Bad a multinational corporation harpooning people who won't sign AWA's?

On top of which you can mount an argument that people fought for GLBTI rights using logic, ethics, protest and all kinds of ways for years without getting very far, but then Will and Grace put a couple of fairly asexual, bland gay guys on our screens on a weekly basis and "middle australia" finally shifted.

This may or may not be true. What it suggests though is that we use our media to work through our communal identity, and for that to happen it probably has to be "mass". Which I think probably means the big mo-fo networks and distributors will stay, and that even though there's some technological catching up for them to do, we'll still to some extent be watching the same stuff, at around the same time as the people we live and work with.

god that last one was a long sentence. sorry.

Matt said...

The change to downloading shows wouldn't really be changing the way people view. Because you're right . . . it won't happen unless it's easy.

So picture this:
A simple to operate, cheap device attached to your TV that brings up a menu of shows available. The menu is huge. Everything from the latest episodes of Heroes to the classic movies of Bogart.

You can watch whatever you want whenever you want at the touch of a button. All the downloading, P2P file sharing etc etc happens behind the scenes.

Advertising will be incorporated by having ads in the middle that it won't let you fast forward through. For a slightly higher subscription fee it's ad-free, or has ads only at the start.

The technology to do this is here right now. All that's missing is the corporate structures and pricing required to support it. And we're already starting to see the moves towards that.

Netflix is the company in the states that distributes rental DVDs by post (similar to Telstra Bigpond Movies here). It's a much bigger operation in the US than it is here, and has basically replaced the old video store.

And they've just started a video download service. Expect it to be huge.

Once the boxes become cheap and the content includes first-run TV shows, FTA television will become the domain solely of live sporting events and cheap variety shows.

So maybe the change won't be that big after all.

And on the paperless office, it may not have completely arrived, but it's pretty damn close.

My job ten years ago wasn't (and couldn't have been) done without five filing cabinets full of documents and records of meetings and conversations. Now it's all held in my email and online, and I don't have any filing cabinets at all.

All I have is three magazine racks on my desk for documents I refer to regularly, and that's only because it's slightly easier than looking up the scanned copies online.