Bad Idea: Internet Service Providers Should Assume Most Digital Locker Content Is 'Illegal'

from the slippery-slope dept

In an interesting blog post, James Firth discusses a comment from music industry analyst Mark Mulligan, quoted in a BBC story about the digital locker site Hotfile:

“If the service providers are serious about wanting to heed the industry’s concerns then instead of assuming that all of the content is legitimate until found otherwise, they should actually assume that most of the content is illegal and take action.

“Much of the content on these service is very high quality video files — how many consumers genuinely create large high definition videos of their own and upload them?”

Mulligan clarified his views in an update to Firth’s post:

Just to be clear I at no stage questioned anyone’s right to create digital content (I myself have a recording studio and create lots of my own music). My point was simply that the vast majority of us do not create feature length high definition videos and that the vast majority of the content on Hotfile is not UGC [user-generated content], rather unlicensed professional content. Just run a google advanced search on the hotfile domain and enter the name of any movie and you’ll find it there — normally multiple different versions.

The comment that “the vast majority of us do not create feature length high definition videos” may be true for the moment, but underestimates the power of Moore’s Law. The improved quality of cameras built into smartphones, combined with ever-increasing storage capacities, means that producing such videos won’t be the preserve of film studios for long.

Once the technology is available, many people will start creating and uploading such things, just as many already create blogs, or post high-quality pictures to Flickr. Nobody predicted any of these things would happen, because it seemed unlikely that “ordinary” people would write hundreds of articles a year, or share thousands of photos.

As the same thing happens with high-quality video, Mulligan’s assumptions about what is and what is not “legal” are likely to become more and more dubious. Meanwhile, switching from that quaint “innocent until proven guilty” thing to the contrary is an incredibly dangerous step to take, since it will add to the presumption of online guilt that is already popular in some circles.

Not only is that likely to chill innovation, since fewer people will be willing to take the risk of creating the next YouTube or Facebook if ISPs just assume people are guilty until proven innocent and “take action”, it also plays into the hands of governments looking to repress dissent. Attacking the fundamental principle of “innocent until proven guilty”, even in this apparently “minor” way, makes it much easier to start branding people who protest as terrorists, for example, because it forces them to prove a negative.

What’s particularly disappointing about Mulligan’s view is that he is normally a much more thoughtful commentator in this area, as Techdirt has noted before. His “Music Format Bill Of Rights”, for example, is closely aligned with many of things that Techdirt has been advocating for years. And a recent post entitled “When the Media Industries Really Need to Start Worrying About Piracy (and it’s not yet)” has the following original and provocative idea:

The nightmare scenario for media companies is that the pirates turn their attentions to developing great user experiences rather than just secure means of acquiring content. What if, for example, a series of open source APIs were built on top of some of the more popular file sharing protocols so that developers can create highly interactive, massively social, rich media apps which transform the purely utilitarian practice of file sharing into something fun and engaging? If you though the paid content market was struggling now imagine how it would fare in the face of that sort of competition.

That’s a much more insightful and nuanced comment than unhelpful calls to reverse a crucial legal tradition that has been around for centuries.

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Comments on “Bad Idea: Internet Service Providers Should Assume Most Digital Locker Content Is 'Illegal'”

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76 Comments
Dannysays:

Re: Re:

Exactly.

Amtrack are on the look out for possible criminal activity, not presuming that you are committing criminal activity and expecting you to show you aren’t.

FedEx might examine your package in case there are drugs in it but they don’t start off assuming there are drugs in it and then start searching from there.

Likewise ISPs should not be expected to just assmume that all content related net traffic is unlawful

kirilliansays:

Re: Re: Re: Re: Re: Re:

The MegaUpload issue is so botched and hung so heavily on Kim Dotcom’s bad reputation to make it work out, that when all is said and done, I doubt we are going to find a “vast majority” is really the case. We keep hearing more news that the investigation was not thorough and I intend to keep my eyes and ears open until everything is said and done because it won’t surprise me to find out that more has gone wrong with the case. Kim Dotcom doesn’t have a lot to his name right now until he gets access to his money. So those high profile lawyers of his must think he has a legitimate case…or at least one that they have a decent chance of winning. That does not aid your position in any way.

Watchitsays:

Re: Re: Re: Re: Re: Re:

megaupload is not the only internet locker, and not every internet locker is the same as megaupload. Also, no one really knows how much of Megauploads servers was “infringing” because no one’s paying the servers to keep the data anymore, and last I checked besides people desperately trying to retrieve lost data, no one is really checking what all IS in them. All this “the majority of Megaupload is illegal” talk is all based on assumptions.

:Lobo Santosays:

Re: Re: sodomy!

Yes, like a vast majority of what occurs in people’s homes is illegal–what with the unmarried sex, smoking pot, letting teenagers drink alcohol, people playing music at parties…

Why, given that fact I’d say we definitely should have police cameras in every home to prevent these and other illegal activities.

MikeVxsays:

Re: Re: Re: Air

Actually, that is true. Everything with lungs on Earth breathes nitrogen, it just isn’t used. The oxygen that is mixed in to all that nitrogen is another matter. That small percentage of the gas mix is vital.

Much the same could be said of the file mix on digital lockers, much may be of dubious legality, but the clearly legal stuff is much more important to the “intellectual respiration” of civilization.

TtfnJohnsays:

Re: Re:

To say that it is held up in fact isn’t true, unless you can cite it or have some valid statistics to show it.

Mulligan’s “discovery” doesn’t count as valid statistics. It’s a start but not much else. And not all file lockers are Hotfile. Or, even, Megaupload though there’s still not much evidence one way or another about that.

If we’re going to move to so-called cloud computing then file lockers are going to be a reality. I’m not going to store files on line if Mulligan’s notion of an ISP assuming guilt before innocence for anyone and any locker. I’m not even talking about illegal content, I’m talking about ANY content be it a silly document of a story I’m trying to write, to a song I’m trying to put together or whatever. Or my accounts. Not that I’m planning any of that soon but if Mulligan’s view becomes the majority view among ISPs then I won’t because I don’t want them peeking at every upload and download I make.

I’m not even sure that if I did what Mulligan did that I’d even want 90% of what he found. The missing piece is is this stuff being downloaded and how often.

So we’re dealing with speculation here which you’re parading as fact.

G Thompsonsays:

Re: Re:

What fact(s)?

See here’s the problem. I deal with evidence every day in both criminal and civil situations, and the forensic examination of that evidence needs factual and true information.

Forensics is the study of what is, not what some entity ( be they plaintiff, respondent, defendant, prosecutor, or some ‘concerned’ industry body or group) wants it to be. It is needs factual and presentable truths based on specific reproducible observations and testimony.

If some organisation turns around and states, Oh sorry, we KNOW based on “hearsay, conflation, or correlation” so it must be true, my and any investigators response is “so what, that is not how it works” and what we discover as the real facts might not be to their liking but our job is NOT to say or present what you think but what the evidence shows instead.

To turn around and totally wipe out that onus of basing the evidence on what is, and instead basing it on what [insert entity here] wants it to be and for the opposing party to prove otherwise. ie: the onus of proof is on the defendant/respondent is not just wrong and unethical but disregards centuries (if not eons) of legal principle.

Think of it this way, If your idea and wish came to fruition, anyone could accuse you of doing any illegal act based on any correlation whatsoever.

For example: I know most [insert major criminal offence here] have eaten potatoes, therefore all potato eaters must be criminals until proven otherwise.

Watchitsays:

Re: Re: Re: Re:

Ok how about this?
1. I buy a DVD.
2. I take the DRM off.
3. take a picture of the data inside the DVD so I’m not really stealing any data from the DVD, the data is still safe inside the DVD unmolested.
4. Put DRM back on the DVD, just like nothing ever happened.
5. Now I have a DVD and a copy of the data inside without circumventing DRM.

๐Ÿ˜€

Mark Mulligan keeps digging ...

Mark Mulligan is quoted as having said, “If the service providers are serious about wanting to heed the industry’s concerns then instead of assuming that all of the content is legitimate until found otherwise, they should actually assume that most of the content is illegal and take action.”

In his clarifying view, he says, “My comments were entirely and squarely aimed at the site, not users.”

It seems to me Mark is indeed “entirely and squarely” aiming at the user and not the site, more specifically, the users’ uploaded content and not the site created content.

He goes on to say, “I have never suggested, nor would support the position, that someone’s personal content is anything other than their own.”

Yet he does say that a users’ uploaded content to Hotfiles should be assumed to be illegal. The extension of this is that content that a user uploads should not be considered “personal” content until it has been checked by Hotfiles for infringements – deemed guilty until, somehow, deemed innocent.

Mark has got himself into a muddle, his comments were squarely aimed at users and the content they upload.

http://www.sroc.eu/2012/03/copyright-battle-turns-into-all-out-war.html

Anonymoussays:

Re: Re: Mark Mulligan keeps digging ...

“If the service providers are serious about wanting to heed the industry’s concerns…”

I’m wondering why should they, the “Industry” isn’t paying $30+ per month per household for internet service.

If my carrier didn’t give a whoot about some nebulous industry across the continent from me, it shouldn’t affect them. If they call me a criminal cause I don’t want to carry a bag of flash drives around, I am able to move to a different carriers area and pay them instead.

PRMansays:

Soon?

Actually, the time is now. I have been playing Batman: Arkham City and at various points I have been stuck and watched a YouTube video. Since I have a very fast internet connection, I typically put it on the highest resolution. Almost every video of people running around as Batman is in HD. That really surprised me. But we are long past the days of SD video already.

Overcastsays:


“Much of the content on these service is very high quality video files — how many consumers genuinely create large high definition videos of their own and upload them?”

Uhhh, those of us with.. HIGH DEF CAMCORDERS – genius.

My camera has a Hard Disk and does Full 1080 High Def Video. That’s why I bought the damn thing, so I can record massive amounts of video, if I so desire. And well, I have – last I checked I had over 120 GB of Video that was sorted on my PC.

What kind of clueless dolt makes that kind of a comment? What family doesn’t have some personal video? Most all of them do – that I know. Just because I have a non-cheap High Def camera doesn’t mean these article writers have to insult us.

… except that you cannot extrapolate the percentage of legal to illegal files on Hotfile by searching for a single movie.

Yeah – but that’s just what they did with Mega-Upload. There’s lots of content that was created by people out there that’s no longer accessible because of the ‘take down’ – I’m curious – aren’t those people who created content and posted on Mega-Upload entitled to rights too? That data they uploaded could well be copywritten, but now the government just ‘hi-jacked’ it – with NO due-process.

Each and every person that posted content to Mega-Upload that is legal should sue for royalties on the content.

And not all of us give access to the whole world or use that particular site, but it’s not the only site out there. So even if you find 8000 illegal videos – there could well be 1.5 million legit videos out there.

Just a few days ago.. I downloaded some ‘modded content’ for a video game off an official game developer site – in that ‘mod’ there was copy written music – does this make the game developer liable then?

And no, I won’t give details – because, well I forgot the specifics… ๐Ÿ™‚

And so what if I want to make my own movies and post them? Hollywood most certainly doesn’t own the rights on creating a movie as a concept, but I’m sure they would love to.

Baldaur Regissays:

Re: Re:

I often film ordinary events using my HD camera and come up with popular titles just for fun (since movie titles are not copyrighted)…

My two boys digging in the backyard runs 142 mins and is called “The.Shawshank.Redemption.720.mkv”…

footage documenting rural religious rites runs 108 mins and is called “The.Boondock.Saints.720.mkv”…

…and of course, that bout of intestinal distress I had a while ago was humorously named – by my wife – “Teenage.Anal.Nightmare.720.mkv”…

…so I can understand if Hollywood assumes MY movies are THEIR movies. But it’s up to them to prove it.

Watchitsays:

Re: Re:

You have no right to defend what ever it is you are defending because the Wookie is a lie, just like the spoon, which you pirated from The Matrix on the Pirate Bay, by which I mean you are really a ninja not a pirate, and ninja’s are asian and everyone knows you can’t trust asians! Ergo everything you say from now on will be utterly pointless, including your argument which shall henceforth be regarded as invalid!

I have now countered any forthcoming Chewbacca defense with my own Chewbacca Offense!

Overcastsays:

It’s actually a pretty good assumption, because it is held up in fact.

Fact… as in determined by a court?

Of Fact as in some asshat claiming so?

See the rule of law – supposedly – in this country is supposed to assume innocence – until.. (get this part) PROVEN GUILTY IN A COURT OF LAW.

We are ENTITLED to a trial by a jury of our peers, if you assume guilt PRIOR to that, you are the one breaking the law.

See:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Check that shit out – it’s a law too!!! DAMN!

So sure, after a trial – than fine, but how does the government EXPECT us citizen to follow the law, when it won’t?

Regardless of what all other little asinine laws say – the above is from the US Constitution and by definition is supposed to trump all other laws. To take down content without due process IS ILLEGAL. No matter how you spin it.

Swansays:

Apparently, this guy has obviously never heard of The Cinema Snob, That Guy With The Glasses, or other internet celebrities that have indeed created full length, high definition movies that are widely available on their site. As there’s usually tons of different edits and other people acting or redoing scenes, I’m sure they use digital lockers to send the videos back and forth and put them together.

Using a broad brush only paints everyone the same color, it makes no sense because not everyone uses these services for the same reasons.

Berenerdsays:

Not so true...

One of the Contracting companies I had worked for had several customers who recorded online training sessions for everything from On the job safety to full feature indie movies. They all backed up to Livevault and most of their high def videos were on there. I would assume they are not the only ones? What about advertising companies? Companies that do demos? Companies who allow users to store their personal music on their systems to allow for a relaxing work place?

big alsays:

dig lockers

for years i have used a dig locker to backup my daily invoices and year end work for my cpa…i can give my accountant a daily, weekly or quarterly report just by giving him a file name. in cost savings alone i’m up several hundred dollars each year and an automatic upload at 3 am makes sure that i’ve always got a fresh backup each day…

so now i’m a thief and a pirate….

Anonymoussays:

“If the service providers are serious about wanting to heed the industry’s concerns then instead of assuming that all of the content is legitimate until found otherwise, they should actually assume that most of the content is illegal and take action.”

If their gonna start applying real world values on the internet, then they should apply all of them and not just the ones that suit their needs, otherwise leave the damn internet alone

Rich Kulawiecsays:

Ah, but we did

Once the technology is available, many people will start creating and uploading such things, just as many already create blogs, or post high-quality pictures to Flickr. Nobody predicted any of these things would happen, because it seemed unlikely that “ordinary” people would write hundreds of articles a year, or share thousands of photos.

The folks that invented Usenet, and those of us who ran Usenet sites during its formative years, not only predicted that such things would happen, we knew they would happen and we made them happen. Both of those were going on 20 years before blogs or Flickr — they just weren’t going on in a highly-visible way, because there were a lot fewer people online. And while there have certainly been profound improvements in the underlying technology (from transport all the way up to UI), the basic principles remain the same: write, create, post, share, feedback.

Michaelsays:

Howto videos subject to these limits even today.

Just try uploading a nice HD instructional video to youtube. It won’t let you upload one >=15 min long without some kind of ‘I am not a copyright terrorist’ agreement.

My first Let’s Play howto video was aborted AFTER spending hours uploading it three times before I found the tiny text informing me of this limit. (The video is about using a mod for Minecraft; while I do recognize that the game it’s self is copyright and likely trademarked, I do not recognize that the patterns created by my self with that tool are anyone else’s creation.)

ZombieBotsFromMarssays:

Oh just go...

“””Much of the content on these service is very high quality video files — how many consumers genuinely create large high definition videos of their own and upload them?”””

Uh how about a growing number of us? Whether we’re collaborating on a project or just shooting day in the life short of stuff hi-def cams are getting cheap and easy to use and more and more consumers are filming and sharing hi-quality home movies.

Hells, what if I was working with someone on a 100% original project and the best way to port movies around from one project member to the next was a file-locker? Does that mean we’re illegally file sharing just cause someone using the same service uploaded a episode of the Simpsons?

How many “honest” users and companies were screwed without lube with the pulled down MU and erased all the content regardless of what it was?

Once again DinoMedia proves that they have no one that actually understands the technology and services they’re fighting against. As well as proving that they give no-f**ks about our basic rights.

Anonymoussays:

Why is the focus being on “self created content”?
A cyberlocker can be used to store legally bought media, I didn’t created but I bought it and want for some reason(i.e. backup, easement of access for myself) to be available there.

That is high quality media and if assumed illegal, it would put tremendous pressure on others to start doing dumb things.

On the plus side this could end up being good, it would demonstrate again the need to have limits and those probably come in the form of laws making the accusing party responsible for the expenses incurred by someone for being wrongly or falsely accused of something, but it could take decades until those things happened.

G Thompsonsays:

Re: Re: Re: Re:

f you’ve ripped it from a DVD, it’s illegal. You used DVD ripping software, which circumvents the DVD’s DRM in order to rip it, and that’s illegal. Stupid, but true.

Not true in all jurisdictions..

ie: Australia where region locking is absolutely wrongful and anyone can legally modify or remove those Controls/DRM/Eprom that enables that region locking, which means you can rip for personal and/or lawful purposes to both backup your data for non-commercial viewing and remove the RL at same time. Note: that this doesn’t pertain to BlueRay since there is no RL and the law doesn’t include BlueRay in its exempt devices

G Thompsonsays:

Re: Re: Re: Re:

f you’ve ripped it from a DVD, it’s illegal. You used DVD ripping software, which circumvents the DVD’s DRM in order to rip it, and that’s illegal. Stupid, but true.

Not true in all jurisdictions..

ie: Australia where region locking is absolutely wrongful and anyone can legally modify or remove those Controls/DRM/Eprom that enables that region locking, which means you can rip for personal and/or lawful purposes to both backup your data for non-commercial viewing and remove the RL at same time. Note: that this doesn’t pertain to BlueRay since there is no RL and the law doesn’t include BlueRay in its exempt devices

G Thompsonsays:

Re: Re: Re: Re:

f you’ve ripped it from a DVD, it’s illegal. You used DVD ripping software, which circumvents the DVD’s DRM in order to rip it, and that’s illegal. Stupid, but true.

Not true in all jurisdictions..

ie: Australia where region locking is absolutely wrongful and anyone can legally modify or remove those Controls/DRM/Eprom that enables that region locking, which means you can rip for personal and/or lawful purposes to both backup your data for non-commercial viewing and remove the RL at same time. Note: that this doesn’t pertain to BlueRay since there is no RL and the law doesn’t include BlueRay in its exempt devices (basically only CD’s, DVD’s and PS2’s)

Gwizsays:

Re: Re: Re: Re: Re: Re:

Interesting. So let’s say an Austrian citizen creates a backup copy of the latest blockbuster movie and uploads it to a service like MegaUpload. Is that legal in Australia?

If so, then that would support even more cases of perfectly legal uses of Mega for what would be considered copyright infringement in the US for the exact same files.

Dustinsays:

Protect your internet privacy

There are ways to protect your internet privacy. You can prevent ISP’s from spying on your traffic by using an encrypted tunnel such as hushtunnel.com.

Most proxies available are SSL based and as such are prone to trusted man in the middle attacks. Hush Tunnel uses SSH and is the easiest way to protect your online privacy, encrypting and anonymizing your internet traffic with a single click.

Dustinsays:

Protect your internet privacy

There are ways to protect your internet privacy. You can prevent ISP’s from spying on your traffic by using an encrypted tunnel such as hushtunnel.com.

Most proxies available are SSL based and as such are prone to trusted man in the middle attacks. Hush Tunnel uses SSH and is the easiest way to protect your online privacy, encrypting and anonymizing your internet traffic with a single click.

PaulTsays:

“The improved quality of cameras built into smartphones, combined with ever-increasing storage capacities, means that producing such videos won’t be the preserve of film studios for long.”

Actually, it already it beyond their preserve. RED One cameras have been commonly used to shoot movies and cost far lower than film. I’ve seen very good independent movies shot on cameras like the Canon EOS 5D Mark 2, which costs just over $2,000. It’s not hard to imagine sub-$1,000 cameras with the same capabilities in the very near future, but would-be filmmakers are not anywhere near as prohibited by cost as they used to be.

But, apparently, they need to be blocked from free distribution methods if their work looks too good…

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