Saturday, January 21, 2012

The "Mega Conspiracy" indictment

The indictment for those involved with Megaupload, Megavideo, etc, etc, (the people and companies referred to in the indictment as the members of the "Mega Conspiracy") makes for interesting reading. Broadly, it seems that the argument in favour of treating the whole "Mega" enteprise as a criminal conspiracy to make money from stolen goods rests on three main sets of claims (1) that the people involved repeatedly demonstrated awareness of the existence of movies and television programs that they knew were copyrighted being distributed through Mega sites, and did nothing about it; (2) that the Mega sites were trying to give the appearance of complying with the Safe Harbor provisions of the Digital Millenium Copyright Act (DMCA), but actually weren't; and (3) the Mega enterprise only made a profit by engaging in illegal acts.

To the first one, the indictment repeatedly highlights e-mails from the highest-level owners and operators of the Mega sites instructing their clients on how to access popular TV shows, movies and music that were the product of big-name studios. For example, item 25 of the indictment lists an e-mail in which one high-level staffer e-mailed another complaining that the copies of TV show the Sopranos that he'd found was in French, and whether there was another version available.

Basically the prosecution is trying to attack the claims to ignorance of actual content that the defendants are most likely to make. It's relying in part on the actual claims of the higher-ups (example from item 69 (kk), a chat log in which one higher-up wrote "we're not pirates, we just provide shipping services to pirates"), but also in part on the assumption that much copyrighted and restricted content should be instantly recognisable as such: if it's a popular TV show, movie or song, then someone or something, most likely a media company, must own it, and must have restricted its distribution. The sad thing is that this seems to me to be basically true:popular media is so dominated by corporate-owned, highly restricted content that a reasonable person would assume that distributing it must be illegal unless explicitly told otherwise. So if someone becomes aware that, say, an episode of the Sopranos is online, then surely they know that they're violating copyright by distributing it, right? It should be interesting if the Mega site operators try to argue that the answer to that question is no.

To the second set of claims, the indictment points out an interesting technical quirk of the various Mega sites: if a file to be uploaded was identified as already present on the relevant Mega site, then there would be no duplication of the file on the Mega server, merely provision of a new URL that the "uploader" could distribute to share the content that they wanted to share. Multiple access URLs could thereby be generated for the one file. This is relevant because, according to the indictment, when a Mega site received a takedown notice, they did not remove the file, merely the access URL. The actual content remained on the Mega site servers, and could still readily be accessed by anyone who had an alternative URL for it. Further, the DMCA requires that a site have some sort of procedure in place to deal with repeat offenders if the site is to qualify for the Safe Harbor provisions. The indictment claims that the Mega sites made no effort to put any such procedure in place.

The situation here is somewhat more complex due to the technical issues at play. I don't think the DMCA is precisely worded enough to give a clear answer on the Mega sites' responsibilities. The relevant section of the DMCA keeps referring to how a site must "remove or disable access to" content that is the subject of DMCA takedown notice. There is some evidence of a cavalier attitude towards the DMCA, but also an attempt to abide by precise letter of the law: disabling access to content when a means of access is pointed out but not assuming that this means they have to hunt down and disable other ways of accessing the same content. I fully expect the defendants to argue that they were in full compliance with the DMCA at all times. I also fully expect that if the defendants are successful in such an argument, copyright owners will point to such a result as proving that the DMCA is deficient.

To the the third and final set of claims, there's a bit of insistent terminology going on in part I think. In item 7, a "cyberlocker" is characterised as exclusively being for private storage only, and the Mega sites are contrasted with this on the basis that they derive their profits from downloads and uploads (through advertising and through selling subscriptions that allow for greater capacity to download and upload) rather than from file storage. I'm not sure if the definition of a cyberlocker is so clear-cut: many storage sites (for example, Microsoft's Skydrive) provide facilities to easily share files with others, and many people only use "cyberlockers" for sharing, preferring to keep their private data, you know, private. This alone is not proof of nefariousness.

But in this set of claims, there's also a highly revealing sentence in item 5: "In contrast to legitimate Internet distributors of copyrighted content, does not make any significant payments to the copyright owners of the many thousands of works that are willfully reproduced and distributed on the Mega Sites each and every day". There seems to be no alternative concept of copyright to the one in which content must be bought from a content owner - no copyleft, no Creative Commons licensing. There is also no concept of volunatary sharing: content is distributed once, by the "legitimate" distributor, and that's it.

Combined with the implicit assumption above that any popular content must be owned and restricted by a media company, and you start to get a picture of the world according to the people who most likely pressed for this indictment, i.e. media companies. In this world, power over the distribution of content is exclusively in the hands of those who own it. This power exists solely so that a profit can be made from it. Distribution of content must be restricted so that profit can be maximised. Content that is not so restricted is not popular, and is therefore not profitable. It is also, therefore, irrelevant. The cultural value of content - the emotional attachment of an individual to it, the desire to share this attachment with others, the bonds formed through shared experience of it - is secondary to its value in turning out a profit. Alternatives to this arrangement simply do not exist.

To be honest I expect the "Mega Conspiracy" to lose most if not all of their case, including the charges of money laundering. They thought that they could monetise culture by charging for facilitating the cultural act of sharing. Unfortunately it is impossible to make such a business model work when the most culturally salient content is owned and restricted by entities who are more interested in turning a profit than in developing actual cultural involvement among people.

That problematic control over popular content is what must be addressed. I hope to write more on it tomorrow, hopefully in a shorter and less meandering post. Blogging certainly seems harder to do than I remember it.

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