In Defense of P2P

While an emblematic trial against the activist group piratebay.org now starts in Stockholm, various parliaments – in an attempt to keep alive the obsolete business models of some ailing industries – are debating bills of law degrading further the intertwined principles of secrecy of correspondence and freedom of ideas.

As we all well know, ancient democracy, the system by which citizens directly govern themselves, is no more. Modern democracy, the system by which citizens actively protect themselves against their own representatives, is losing momentum. With a reduced constitutional protection of privacy and freedom, democracy vanishes altogether. It is the nature of governments to invade the content of private communications as much as they can, and to limit the scope of civil associations. Public officials are prone to always find new reasons for eroding the corpus of legal guaranties which is their sole hindrance. They usually base their will of control on the somewhat cynical claim that ‘good citizens’ should have nothing to hide and should never pursue any activities not in the immediate interest of the State. War, crime or even the mere consideration of health are the main chapters in the sad book of Attrition of Civil Liberties, which is now describing our political lives. The perpetual guerilla between ordinary citizens and their benevolent enemies mostly takes place on a series of seemingly benign grounds, carefully chosen as to minimize the probability of efficient counter-reactions. Peer to Peer electronic networks (P2P) are a recent example of such local battlefields where essential principles are nevertheless at stake.

P2P networks enable a correspondence between individuals in the same way postal and telephone services do. What makes them specific is that individuals subscribe  to information services providing the electronic address of other individuals willing to exchange pieces of data files. To compare it with older technologies, one could simply say that the system works as if lists of postal addresses were published, allowing readers to exchange letters, each containing parts of the texts they are mutually interested in and contain description of ideas, poems, drawings, musical scores, or any such intangible products of the mind. The main difference is that they P2P networks are much more efficient.

It is important to remember that ideas may not be appropriated, and that even the fiercest advocates of intellectual property do not go as far as pretending that they should. When Einstein discovered ‘E=MC2’, no patent, copyright, monopoly was provided to make him as rich as any successful music composer or movie director can become. What is supposed to be protected by intellectual property, as an exclusive right or monopoly, is only the material form under which the idea is expressed, in this case a scientific paper or a book containing the original expression of the celebrated formula, not the formula in itself. For a period of time, the paper  may not be copied by anyone unless previously authorized by the original publisher or the subsequent owners of the rights. Brief quotes, however, are permitted in order to avoid the obviously absurd consequence of preventing ideas from being not only copied but even mentioned.

The problem is that the distinction between an idea (or any product of the mind) and the form under which it is expressed is a misleading metaphysical concept. Suppose that the formula, instead of being short enough to be quoted in less than one line, would be so complex that it would take a whole scientific paper to express it. Then, quoting the idea would actually mean copying the entire text of the paper. As doing so is expressly prohibited by law, the very idea – not only its form -  then becomes the object of a monopoly and may  not be legally spread. This shows in a lear light how absurd the foundations of  the so-called ‘intellectual property’ can be.

This situation is not restricted to mathematics, physics or philosophy. When asked by a lady how he could possibly put his ideas into the marble with such ease, Rodin answered: ‘Madam, I think in marble…”. The same applies to all arts. There is no real difference between a product of the mind and its very expression. Therefore, preventing the copy of the expression of an idea (or any product of the mind) is equivalent to preventing the free communication of ideas, an unreasonable prohibition indeed. Legislators, being at least subconsciously aware of this implication, the more an idea or product of the mind is important for mankind, the least protection they actually grant it. Disney and rap dancers thus turn much better protected than Einstein.

Great artists are not put in any more danger by P2P than scientists or thinkers have always been. The main ones to be threatened by this development are the traditional music industry, and – to a certain extent – film industry, as their business model is based on the material monopoly they had kept in the distribution of music and films. It was not only illegal to multiply copies of songs and films, but it was mainly impractical. The progress of electronics now makes it extremely easy in the case of music, and rather easy in the case of films.

Adjusting the business models of these two industries to the technical change requires a degree of imagination their management is lacking. It would in any case hurt their short-term interests. So they found simpler to initiate a brutal crusade against P2P, mobilizing part of the vast financial resources and influence they had accumulated over the past. This is i nothing but a crusade against the tens (or possibly hundreds) of millions of consumers over the world now enjoying P2P protocols which have rapidly grown as the main usage of the Internet, way beyond browsing and email. What the crusaders are trying to obtain from gullible legislators is the protection of their old business model, an undertaking directly rooted in medieval corporatism. More modern is their lobbying practice: they take the precaution to pretend acting for the defense of artists and creators more than of their own. Who would indeed be cruel enough to deprive an aging industry from revenues artists and creators receive a (small) percentage of?

Of course, things are quite different. Musicians can always make money by giving concerts, and the more famous they become through free electronic access to their music, the larger the audience they attract. In other words, music production companies do no need to exist anymore for musicians to thrive. Younger talents can find a career after being chosen by the public rather than after being selected by the executives of music companies. Other industries would also be better off without them, such as radio and TV, not to mention night-clubs, bars and the many other businesses broadcasting music as waiting tones or in elevators.

The situation is slightly different with films, as the movie industry is better protected by the material nature of the product. Blockbusters are better viewed in large theater than at home, and can generate income in the traditional way. The more modest independent films are more difficult to find on P2P networks than on DVDs. The least well placed are the mid-size productions which are too expensive to amortize on the limited number of screens distributors are usually willing to grant them. Yet, even they can survive, cable channels having proven (immense) profits can be made by financing such films even in the absence of any other distribution. More importantly, all segments can thrive, provided the whole industry accepts to change business models from copyright-based to service fee-based distribution. Consumers, as a matter of fact, have shown (for instance with i-Tunes) that they are not unwilling to pay (large fees) for the service of providing good quality files from fast servers, as soon as or shortly after the content is available otherwise, in the same manner that they are willing to pay for theater seats. Artists and creators do not care which model is used or who pays them, as long as they are rewarded by salaries or otherwise.

The notion that replicating electronic files is a forgery is the miserable argument multimedia crusaders have found. By definition a forgery is the act of imitating documents or objects in order to deceive. When a file is exchanged on a P2P network no one is deceived, as nobody claims that the compressed electronic version of any given film is the film itself or has qualities equivalent to those of the original versions available from theaters or from high definition supports. The only exceptions are the fake files sometimes injected by the movie industry vainly hoping to make the selection of good files more cumbersome for P2P users. I see no reason why the authors of such injections, deliberately violating the contractual usage policy of P2P servers of trackers (the lists of addresses of interested users), should not be sued rather than the generally non-profit activists who maintain the servers.

From a broader standpoint, copying or replicating any document or product of the mind should never be restricted, unless the original remains unpublished, or unless the copy is a strictly defined forgery. It is not at all the same thing to distribute a copy claiming it is the original than distributing a copy advertized as such. Forgeries mislead consumers on the nature of their purchases. Overt copies don’t. The history of art and culture in general is made of a large number of overt copies and a smaller number of forgeries. Let the courts deal with the last. Let consumers determine the value of overt copies. At times, they give a higher value to copies, like the Romans did for marble statues imitating Greek bronze originals. At others, they are fetishistic enough to pay a fortune for one of Duchamp’s ‘original’ urinals and not a dime for the exact same object yet not approved by Duchamp himself. Legislators are not to interfere with such preferences.

Sadly, they do. Giving way to the outrageous claims of corporatist defenders of old business models, a galore of intrusions in the privacy of consumers is sanctified. Government agencies and private operators are allowed to set up a full scale surveillance of Internet users: who contacts whom, exchanges what files, using which trackers, ports or protocols. This information, kept in databases, will serve the purpose of fining users, shutting down servers, suspending Internet access, in other words, punishing in any possible way consumers who are simply hoping for the new business models to emerge and, who, by the way, often turn out to be the same people who also go to the theater and purchase DVDs (preselected after a P2P screening). Such information can also serve more perilous purposes, too easy to imagine and useless to describe here.

Even when reluctant to so restrict civil liberties, many governments seriously consider compensating the loss of income incurred from the obsolescence of the business models, by so-called ‘global’ licenses, which are taxes unfairly levied on Internet subscriptions, no matter the nature, number or even absence of downloaded data files.

Surprisingly, such blind and large concessions made to the lobbying of aging business actors, seem insufficient to appease the wrath and greed of some enraged multimedia crusaders. Recently, Luc Besson, a French filmmaker turned into owner of a film studio, published a most heinous article, asking all people even remotely related to P2P or streaming, from advertisers to Internet access providers, to be sent to prison as accomplices of a crime he compared to drug dealing. You would think this is the mere utterance of a deranged mind. Unfortunately, the current trial against the young activists of piratebay.org, shows that the danger is real, and that greedy madmen, when influential enough, may sometimes succeed in destroying the life work of good-will visionaries.

This is how the world goes. But let’s hope (and fight) for the best.

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