Smoke on the Water Part 2: What’s in a “locker”?
Not surprisingly, someone has hacked Google’s much ballyhooed “cloud” music service. I’m shocked, shocked that such a thing could happen. It’s unfortunately going to help promote the service prematurely…and accidentally. And if you believe that one, you’ll also believe that Germans spontaneously began egging the homes of Germans who opted out of Google Street View–and posting notes on their doors saying “Google is Cool!” Spontaneously. In that great tradition of European activism supporting American multinational corporations. (See “Egginghaus and German Street View“.)
Assuming that there is still a need to think about licensing for The Cloud, one might want to consider the following regarding “locker services.” Of course the first step is getting a license. But beyond that, here are some ideas to think about.
1. Purpose of the “Locker”: One of the fundamental issues in negotiating a license for a cloud music service is defining what the file storage areas will look like. It is common to refer to these storage areas by a physical meme, such as a “locker”. (For those in the space in the late 90s, this really is like Groundhog Day.)
We know what a locker is, we’ve all had them. It’s a place where you keep things that belong to you and you put a lock on it that only you can open. It’s a private area in the middle of a bunch of people, like a gym. It’s a private secure area where only the locker owner is supposed to control access. A private locker is just that—a place with access usually limited to one person whose identity is known (to the gym, for example) and that person, or that person’s parents, usually have a contract with the gym or wherever the locker is located.
If you look at some of the functionality of the sites that often call themselves “cyberlockers”, you’ll see that they bear little resemblance to the locker meme, and a lot more resemblance to a website with a bunch of links. Or a virtual chop shop, albeit one with an endless supply of luxury cars.
Remember—the purpose of the storage area is to allow a user to store music they acquired legally (or created themselves) in an online location that they can access conveniently. Perhaps the “user” includes a family. And of course, the copies that are stored are licensed. That limitation on access and that license are two fundamental attributes of a licensed storage area and are the fundamental distinctions between a virtual private “locker” and a virtual chop shop.
Key aspects of an honest private locker service would include:
(a) Identification: Knowing the identity of both uploaders and downloaders—because if the true purpose of the service is to let users access their own content, then why wouldn’t the service offering the storage space and access want to know who was accessing the account? Isn’t the value of an honest locker in offering storage to a known person who presumably pays something for the service or has an expectation that their identity will be known to at least the service offering the storage?
(b) Access: Limiting the number of persons who can access the account—because why wouldn’t an honest locker expect that a limited number of people had access to the private locker. If you had even dozens of people accessing the private locker, at what point does it stop being private and start being public? And if it’s public—it’s not private. So if you don’t have a limit on the number of users when does the private locker stop being private and start being merely a user page in a larger website?
(c) Terms of Service: The honest locker operator should provide terms of service that prohibits misuse of the account, including making the content available to anyone other than the limited set of people with access to the private locker.
(d) Account Termination: A repeat violator policy needs to actually result in a meaningful termination and deletion of the account—not just allowing the user to sign up under a different name within minutes and maintain previously uploaded files.
(e) URL registration: If linking is permitted at all, there’s no reason why a private locker would link to more than a handful of URLs.
(f) No Toolkits: It is very common for rogue sites to support any of a number of tools that allow users to check links, repost links that have been taken down under a DMCA notice (sometimes automatically reposting), permit files to be converted from one format to another (such as the many, many applications that allow YouTube videos to be converted to unauthorized mp3s). No honest locker service should have any legitimate reason to promote these tools or to support their use.
2. Purpose of the Virtual Chop Shop: Unlike a “locker”, the virtual chop shop is not intended to be accessed by a limited number of users, not even a limited number of users who are related to each other. Just like a real chop shop, nobody acknowledges where the illegal goods came from or even that the chop shop maintains willful ignorance of the origin of the illegal goods. Also like a real chop shop, one reason that the virtual chop shot exists is to redistribute the illegal goods—at a profit.
Don’t forget—some of these are major operations including many that are consistently in the top 100 sites in the world (www.alexa.com) including Rapidshare, Megaupload, Hotfile, MediaFire, 4Shared and Fileserve. This is big, big business. By comparison, licensed services like Pandora is number 349, Spotify.com is 2,633, Rhapsody.com is number 5,649 and Slacker.com is 15,527.
Rapidshare is number 88. As Officer Malone said in The Untouchables, “Everyone knows where the booze is, Mr. Ness.”
So a virtual chop shop is the opposite of the “locker” in at least these important ways:
(a) The copies to be stored are not acquired legally. Not only are the copies not acquired legally, they are often pre-release copies that have not even been authorized for distribution by anyone.
(b) The copies are intended to be distributed to unknown and unrelated companies that profit from the distribution by selling advertising or by selling faster access to the illegal copies.
(c) The chop shop encourages other operators to link to them, and often compensates these operators for bringing traffic or referring users.
(d) They make no effort to identify users or to cross-reference content described in DMCA-style takedown notices. (If I own the movie Casablanca and there are 1,000 instances of Casablanca that I can find in a chop shop but have not authorized, I have to send 1,000 separate notices—even if the chop shop provides tools for its users to locate these illegal copies. And if the chop shop uses automatic reposting, the next minute I have to send another 1,000.)
(e) They allow users to use toolkit applications to check links for posting to blogs, message boards and the like, as well as reposting links that are disabled through take down notices.
3. The DMCA Is Not An Alibi: It is a mistake to think that a chop shop storage service can be addressed with DMCA notices.
When first passed by the Congress, the purpose of the DMCA safe harbor was arguably to offer a little latitude to reasonable people acting reasonably. I have to believe that if you asked the Congressional judiciary committees as they were then constituted, much less the bodies as a whole, no Senator or Member would have ever, ever thought that they were passing a law that would require copyright owners to send what now in the ensuing years must be millions and millions of take down notices and to monitor the Internet 24/7.
Let us be clear—the DMCA has not only become an alibi, it is a really bad joke. I used to think that all the DMCA did was create an underclass of artists who could not afford to enforce their rights. What it really has accomplished is to create a massive income transfer program to rogue sites.
Neither would Members of Congress have thought that their carefully crafted statute would be turned into a cat and mouse game where copyright owners large and small, independent artists, film makers and major labels and studios, would be told that the DMCA imposed a “shared” responsibility—if you catch me, and only if you catch me, and only each time you catch me, will I disable access to infringing material. “Shared”, get it? Stop me before I infringe again.
Yes, in a world where massive theft is passed off as “file sharing” and placing 100% of the online policing burden on the copyright owner is “sharing”, I really wonder what responsibility looks like? Maybe it’s being responsible for exercising your Google options?
To paraphrase David Mamet, “sharing is collaborative…now bend over and collaborate.”