Internet Theft Providers?

"Every poet is a thief," whispered U2's Bono in the sonic masterpiece, “The Fly.” According to U2's manager, Paul McGuiness, so is every Internet Service Provider (ISP).

During a keynote speech at the MIDEM music conference, McGuiness expressed displeasure with the reduced quality of the current lossy digital music formats; questioned the trustworthiness of record companies; and railed extensively against ISPs who fail to prevent the transmission of illegal music files across their networks. While McGuiness' address was, by all accounts, passionate and well-received by the audience of music managers; ultimately, it revealed a flawed and – most importantly – dangerous view that ISPs are obligated to police the world's citizens. Let’s explore why this is pure fallacy.

ISPs Are Not Akin to Magazine Publishers

McGuiness compares ISPs to magazine publishers and posits, "If you were a magazine advertising stolen cars, handling the money for stolen cars and seeing to the delivery of stolen cars, the police would soon be at your door." While his claim is most assuredly true, it's a non sequitur in relation to the problem of ISPs and pirated music. ISPs are not akin to magazine publishers. They do not derive their revenue from content; rather, they simply provide a mechanism for delivering content to subscribers. A much better analogy would be to liken ISPs to couriers, or even the postal service, as they are in the business of delivering content to subscribers. In other words, they deliver the magazine to your door; they do not publish the magazine. No rational person would consider holding UPS accountable for unknowingly delivering a bunch of stolen CDs, would they? Additionally, no rational person would expect UPS to examine every parcel to determine its legality.

Success Does Not Heighten One's Moral Obligation

McGuiness goes on to infer that, because many ISPs are successful, they should be compelled to share their wealth with the music industry – specifically, the artists. He requests that ISPs "make a genuine effort to share the enormous revenues." He goes on to claim that "their snouts have been in our trough for too long." What exactly is Mr. McGuiness proposing? If indeed ISPs are aiding in the theft of intellectual property, why would he request that they share the proceeds of the crime? If a crime has been committed then the perpetrators should simply be brought to justice. Why ask to share in the proceeds of a clear-cut crime? Of course, the answer is that no clear crime has been committed and that what is inferred is that the success of the ISPs coupled with images of starving musicians should somehow guilt the ISPs into sharing their wealth. The logic of this argument quickly evaporates as morality is surely not governed by success.

Treatment of Intellectual Property is Not Globally Homogeneous

An undercurrent of assumed homogeneity exists throughout much of the McGuiness speech with respect to Intellectual Property (IP). Clearly, Mr. McGuiness believes strongly in IP rights. Unfortunately, there is no well-defined, single "standard" regarding IP in developing nations or, for that matter, in developed nations of this world. Expecting ISPs, many of whom would transmit IP to and from a variety of nations, to enforce the cornucopia of applicable copyrights is simply not feasible. The question of feasibility is a terrific segue into the next flaw in Mr. McGuiness' position: Technical limitations.

Technical Limitations Equal Inability to Police

ISPs carry a variety of data: some appears as readable text; some appears as gibberish due to obfuscation; some originates in countries with stringent IP protection; and some originates in developing countries with virtually no defined protections for IP. What's a poor ISP to do? Should the ISP invest copious amounts of money attempting to crack encrypted data looking for "illegal" MP3s? What about protection of personal privacy? Should an ISP be allowed to rummage through personal information, looking for something that appears to be in violation of an IP law? How do we distinguish personal from pirated? How would an ISP accurately determine if the MP3 you're retrieving from your online data store is pirated or simply a legal copy you made for personal use under the fair dealing doctrine common to many Commonwealth Nations? Of course, the answer is they could not accurately determine any of these things and, most importantly, they could not attempt any of this without violating personal privacy laws in a multitude of countries. Without massive structural changes to the Internet, the technical limitations are such that the ISPs could not effectively police content passing through their networks, even if they wanted to. (Believe me, they do want to; as peer-to-peer (P2P) file exchange, the most frequently used mechanism for sharing pirated content, is threatening to overwhelm networks.) However, in actuality, network strain caused by P2P is a separate issue from piracy. When all is said and done, enforcement of the law must be left to – you guessed it – the police.

Much has been written and said about how the entertainment industry, especially the music business, has changed because of the digital revolution. New models for delivering content are appearing at regular intervals. Some of them, such as Apple's iTunes and YouTube appear to be viable; while others do not. Individuals and corporations that do not understand the fundamental shift which has taken place – and continues unabated – are doomed to extinction. “Now you're stuck in a moment and you can't get out of it” lamented Mr. McGuiness’ favourite client back in 2000. It’s now 2008 and it's time to get unstuck, Mr. McGuiness.

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