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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Filed Under: assumptions, copyright, digital lockers, dmca, mark mulligan