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As web moves to TV, child protection is key, but ISP-level filtering won't work

So, Digital and Culture Minister Ed Vaizey has backed MP Clare Perry's calls to create a firewall of Britain to support the seemingly reasonable aim of protecting children from pornography (and potentially keeping adults from materials classified under the Obscene Publications Act). With the web now moving further towards the TV, the suggestion is not much of a surprise.

While it's tempting to dismiss it as an attempt for the government to filter the web so it can block a future Wikileaks - especially after Vaizey's Network Neutrality misfire - the discussion of how to deal with the difference between TV, where you can't say certain words before 9pm, and the web, which knows no limits, needs to take place. And as The Register - telling people to calm down - points out, Vaizey has suggested he doesn't want to legislate but wants to act as broker between industry and ISPs.

Indeed Vaizey was cautious when the issue was first raised by Conservative MP Claire Perry in the Commons on November 23rd, afraid of what he called a 'Twitter Storm', but in yesterday's Sunday Times he said he wanted to see the ISP industry introduce measures soon. To recap what Perry was calling for:

"I am asking for a change in regulation that would require all UK-based internet service providers to restrict universal access to pornographic material by implementing a simple opt-in system based on age verification."

Yet - as anyone who understands the web's structure will know - there is no 'simple opt-in system'. So asides from the censorship problems of blocking entire websites - spelt out well by the Guardian today, which points out that sites like Flickr, YouTube, Blogger and Tumblr all have adult channels - is the practical fact that the kind of filtering Perry and Vaizey are calling for just has never been proven to work - indeed research below suggests it could slow down connections by up to 86% while wrongly blocking millions of child-safe websites, and letting millions more child-unsafe websites flood thru.

There are three ways to crudely filter content by age:

  • on websites themselves, putting responsibility on publishers; 
  • in browsers, putting responsibility on parents and those who control the web connection; 
  • and at ISP level, which requires the ISPs to track, review and filter all of their traffic thru some automated process.

Vaizey pointed out to Perry in the commons debate that a UK adult website was recently prosecuted for not providing sufficient adult content warnings on their front page (which in turn alerts browser blockers like CyberNanny). Perry responded that this is no help with foreign websites and suggested that most parents are either too busy to know how to install a filter in the browser - "through technological ignorance, time pressure or inertia or for myriad other reasons, this filtering solution is not working" - so the responsibility should be with the ISP.

To avoid parents having to take responsibility for what their children has access to (unlike alcohol, cigarettes, DVDs or TV in the home) Perry says the ISP should play a kind of gatekeeper nanny, filtering all content unless someone tells their ISP they are an adult, while presumably auto-filtering anything else that looks like it might be illegal under the Obscene Publications Act. And here is where many online have started to panic - it would surely just be a matter of time before other kinds of content got added - first suicide forums, racist hate sites, terrorism related content, then alleged copyright misuse perhaps. At such a point, the Internet would be a different place, subject to the whims of the government of the day. If a filter was in place it would be a challenge for MPs to avoid using it as a political tool, and it's hard to imagine in the long term during, say, student demonstrations them not blocking sites for protesters who 'may be planning violence', or sites which publish damaging leaked confidential documents.

But let's not get ahead of ourselves - right now, all that's happening is a meeting of ISPs and concerned parties, around a table, some time next month. And whatever the outcome of that, the simple issue is that ISP-level auto filtering doesn't work. As well as slowing down web connections considerably, ISP-level filters fail to block what they’re supposed to, and succeed in blocking what shouldn’t be.

It's a no brainer - how could can anyone other than a well-informed human distinguish between, for instance, scenes from Lars von Trier's Antichrist or Mel Gibson's Passion of the Christ and material currently banned under the Obscene Publications Act?

In one of the main studies into the area, ahead of trying to implement a similar Australia-wide firewall, Australia's OFCOM, the ACMA, did research into the accuracy and impact of ISP-level filtering, called “Closed Environment Testing of ISP-Level Internet Content Filtering” which showed five big problems with ISP filtering:

  1. All filters tested had problems with under-blocking, allowing access to between 2% and 13% of material that they should have blocked;
  2. All filters tested had serious problems with over-blocking, wrongly blocking access to between 1.3% and 7.8% of the websites tested;
  3. One filter caused a 22% drop in speed even when it was not performing filtering;
  4. Only one of the six filters had an acceptable level of performance (a drop of 2% in a laboratory trial), the others causing drops in speed of between 21% and 86%;
  5. The most accurate filters were often the slowest.

If you were one of the 3 - 18 million inaccurately blocked websites because of ISP filtering (based on 231m websites world), who would you sue for loss of business? The government? The ISP? Meanwhile websites that auto-publish content, like Netribution, as well as web forums, would be at risk of being blocked automatically from the actions of one user - only the web giants who could afford constant 24-7 moderation would be able to survive.

The fact that children and teenageers have access online to images and video beyond my wildest imagination when I was that age has long troubled me, and a serious debate between ISPs, web and browser companies, content producers and end users is a good thing - especially as the web moves to the TV. It also troubled me when working in a primary school last year which had a strict web firewall,that it offered unlimited access to YouTube - which is filled with adult content - but not the website we'd built for the school, or the Vimeo videos embedded in those pages (until we spoke to a filtering help desk for 30 minutes).

So it's an important issue, but what must be avoided - after the chaos of the Digital Economy Act - is for an MP with rudimentary technical understanding to push thru an invented 'solution' to a genuine problem that bears so little relationship with reality they end up creating a heap of new problems - and alienating the people whose support would be needed for a solution to work.

Because the only solution that I can imagine working is the crowd-model, the - gulp - Big Society answer. A huge federated opt-in crowd-built database run by parents, teachers and concerned people ticking off websites and video safe for different ages, based on common guidelines. And then browser and operating system makers could hardwire a very simple way for parents to turn ON a filter for their children not showing anything that isn't on the ever increasing list for that age group. Crude, but more dependable than any of the other controls - and at the same time not absolving the parent from their responsibility over what their child can do at home.


Freedom of expression, privacy, remix + autoblur - the 2nd Open Video Conference

It's taken me a while to gather my thoughts about the Second Open Video Conference which took place at the start of October in New York. It featured a vast mix of people and organisations interested in the future of video online - from tech and web shapers to creatives and lawmakers - there's not many places where you can end up round the table with implementers from the W3C, the Firefox and Safari developer teams, the inventor of VLC and someone whose mashup has just been retweeted by John Cussack and got half a million views.

Some background

Williamsburg Bridge CC by Nic WistreichThe first event in June 2009, came against the backdrop of the mass Iranian 'green wave' uprising. As the conference continued we could see first hand the importance of a free, open and impartial media space, as well as the importance of social media tools such as Twitter to share information and connect people. There was also buzz around the hopes for a royalty free video codec, Ogg Theora (just as web image formats jpg, png and gif are royalty free), while filesharing seemed certain to have changed the media landscape forever with filmmakers like Nina Paley explaining how she was staying afloat with a near-copyright-free model for her film Sita Sings the Blues.

15 months later and there's been some troubling moves. Britain has adopted the Digital Economy Act, France is already implementing HADOPI - both are 'three strikes and you're out' internet laws that will push the serious pirates into hidden and untracable proxy networks, while penalising with digital excommunication the casual or accidental downloader (or indeed anyone who shares a wifi connection with them), alienating and disconnecting the very audience indie filmmakers are desperate to engage with. The way such massive legislation was pushed through Parliament angered many of the copyright industry's former supporters and has been met with widespread condemnation through the tech, web and telecoms sector. While the LibDems said they would rescind the bill, it's been added to the many election pledges they've backtracked on. Google, meanwhile, appear to have also broken their word over network neutrality, at least on mobiles - breaking the internet's golden rule of 'all data is equal' by saying some data is more equal than others - if you're rich enough. Meanwhile the ACSLaw debacle shone some light on dirty world of copyright blackmailing, a 21st century 'get rich' scheme where consumers get bullied and frightened into paying a fine for an infringement that may or may not have happened. 

But it's not all bad - Google has also released the WebM video codec royalty free and claim that they will be better placed than Xiph, who develop Ogg, to defend patent claims - while Ogg still has widespread use through Firefox. Platforms such as Vodo are opening more of the film community's eyes to the benefits of P2P, while the P2PNext project has finally blossomed with a torrent streaming protocol (aka bandwidth-free streaming) implemented in the last few weeks with Wikimedia and a Firefox plugin. HTML5 is a browser reality and the next generation Javascript and WebGL languages are offering some truly dazzling glimpses of the future of video online (people are even saying nice things about IE9), while the Universal Subtitles project (and sister Drumbeats lab newling Popcorn.js) offer practical solutions for attaching meaningful metadata to online video, right now.

Freedom of expression vs privacy

Williamsburg BridgeIf there was one news story that - like Iran last time - backdropped the discussions at the conference, for me it was the tragic suicide of Tyler Clementi, a student at Rutgers university whose roommate had filmed him having sex on a webcam and uploaded it to the internet. As a generation we're only just beginning to understand what having our data carved in stone into the Internet for the rest of human history really means, and our free and open video space comes with huge privacy issues.

So for a major theme running throughout the conference, for me it was the tension between freedom of expression and privacy in the digital age. Take Arin Crumley, for instance, who's spent the last three years filming a docu-drama at Burning Man, his follow up feature to Four Eyed Monsters which he plans again to offer for free download. The preview trailer he showed at the Future of Exhibition panel we were both on looked incredible - visually stunning and unique. Anyway, arriving at Burning Man this year, with a changed production team and evolved project description, he was told that he couldn't film any more, and that he couldn't release his film without being sued. Burning Man - bastion of free spirited, well managed anarchy - was challenged about this new tough 'no photos, no cameras' policy by the Electronic Frontier Foundation, an organisation who curiously had the current head of Burning Man as their first legal counsel. It was an interesting debate with no simple answers, and when challenged by Arin, Burning Man's legal counsel Lightning Clearwater III (seriously) floundered and talked about BM videos being used in porn, a troll-like flame which Arin challenged him on as being irrelevant to his situation, ultimately to applause from the audience.

Interestingly although it was easy to support the freedom of expression argument within the limits of respect (don't film someone who doesn't want to be filmed) - the conference party that night with Eclectic Method sought to break the record for the most videos uploaded at a party, and as a result everything was being filmed. As the other panelists Jon Reiss and Eric Dunlap and myself remarked - what better way to discourage people from dancing and relaxing than having a hundred cameras threatening to render you to the internet for eternity! So even in the first night party, the issue of privacy vs freedom was present and intentionally or not the ever present Flip Cams gave a good moment for reflection - just as the constantly appearing logo for throughout the VJ sets was an implicit suggestion - to me at least - that ad supported was not the most elegant solution for funding content.

During the hack day on the Sunday after the conference, the talented folks from Witness - who use video to open the world's eyes to human rights abuses - created and demo'd a facial recognition and obfuscation filter, nicknamed Auto Blur the News. In short it's a prototype Android phone ap that can take the camera input and apply a blurred box around the head of someone in the shot. The potential is great, especially in realtime news situations, with phones now capable to IP stream video live from camera to website. Imagine someone at a demonstration filming an act of brutality, unable to get permission from the other protesters - being on video could endanger them or their family. An automated blur filter would offer protection, tho at present the technology is far from dependable. Perhaps the developers could work with the UnLogo logo blocking filter for video which launched around the same time and is also open source (and currently on a Kickstarter campaign).

Remix comes of age, at last

Brooklyn Bridge from Williamsburg Bridge

Another great things that happened at the conference was the world premiere, and subsequent explosion, of Jonathan McIntosh's Right Wing Radio Duck (Glenn Beck meets Donald Duck). Created over three months, McIntosh pulled together countless Donald Duck cartoons and far right ramblings from ShockJockFox Glenn Beck. So Friday, Jonathan (creator of the brilliant Buffy vs Edward Twilight shit-rip) was still putting the finishing touches to the film. Saturday midday he showed it at the conference, wherupon it got its Twitter explosion. By the end of the day it had been tweeted by Roger Ebert and John Cusack, and by the end of the weekend a quarter of million people had seen it. Over the following week, Glenn Beck responded, complementing it on being the best made propaganda he'd ever seen, suggesting McIntosh must be funded by the Democrats. Beck's response was then turned into a Mickey Mouse cartoon by YouTube user iKat381, and by the time the news channels picked it up, they were declaring this the moment that someone could make a big widely seen political statement through the web without any funding. It was also, perhaps, the first time many in the mainstream media saw the power of remix and mashup as an art-form and message-maker in its own right.

Another panel presented by Jonathan, with help from wunderblogger Anita Sarkeesian, aka Feminist Frequency, was Remixing Gendered Advertisements: A New Kind of Media Literacy Education. Here he talked about giving kids the tools to remix toy adverts to help understand the gender stereotypes enforced thru them. The more 'Boys are competitive aggressive battlers and Girls are nurturing fashion lovers' videos we saw the more I got quite upset. I'm not a fan of the myths perpetuated by advertising to begin with, proud to have written for Adbusters, but the blatant sexism and psychological manipulation targeted at children left quite a few of us in the audience in stunned silence. If our children were to follow the messages presented in advertisement alone (as opposed to, say, Sesame Street or Pixar) then there would really be no hope. The idea took hold and on the hack day one of the Kaltura developers created a tool to let people remix toy adverts in realtime, putting the tools in the hands of anyone.

But what about the art (and its sustainability)?

A big wow quote from the conference for me was from Saskia Wilson Brown, talking about the Curatorial Paradox - people benefit from curation (galleries, festivals, TV schedules), but nobody wants to deal with exclusionary practices online. It is another version of the old 'wisdom of crowds' argument, but at a time where BoingBoing goes from strength to strength and Digg is losing viewers, the importance of curators should perhaps be reassessed. Indeed what is a popular tweeter but a curator? For me, the smart money in the future is on the expert curators who will have sufficient followers and influence to be able to make (or break) the career of an independent creative, in turn helping raise money by promoting everything from handmade packaging to T-shirts and events.



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A lesson in how to profit from the free for the film industry

open_source_bart_cartoonA few months ago I downloaded an open source add-on for Joomla, the (free) software that powers Netribution. It's a powerful tool which should make a nice addition here at some point - and it was free. So impressed was I after half an hour of using it that I checked out some of the add - available for it. I could buy alternative templates for $19 a time, an iPhone version, integration with other bits of software - or the whole bundle of extensions with a year of updates for $99. Plus there was a discount code of $20 floating around. It took me about five minutes to decide to make the payment.

To reverse this process, psychologically: if at the beginning I had learnt about a good piece of software costing $80 I would probably have ignored it and looked for something cheaper or free. Instead, because I got something very powerful at no cost, that I could try out, I decided to trust the software developers to make something even more incredible at a price.

It reminided me how the film and creative businesses who succeed on the internet will be those that find a way to first offer something incredible for free, and then offer something even better that is worth paying for.

Music is pretty much there. Listen to a song on MySpace or Spotify or wherever, and like it enough to pay £25 to see the artist in concert. Radiohead made more for pay-what-you want In Rainbows than their previous three albums combined, and followed with their largest tour in years. The same with books - Cory Doctorow's and Paulo Coelho's sales famously rose after they began to offer the full texts online for free. For film tho we have a significant challenge. The non-free experiences worth paying for are merchandise, DVDs and going to the cinema. DVD sales are in decline, while merchandise and cinema releases are typically reserved for bigger budget releases.

age_of_stupidThis is why the news that Franny Armstrong's Age of Stupid made £110,000 (over $160,000) through non-theatrical exhibtion - eg screenings in community groups, schools, town halls and conferences - is worth paying attention to. She not only probably made more money for distributor-free exhibition than anyone in British film history, but also got people to promote her film endlessly for free (the same people who had previously funded it's production, often). At the same time, while Franny didn't offer the full film on the web, she created a huge universe of free content that could be watched and read online, as well as a compelling narrative from the film's inception (and first public mention here on Netribution) through it's record-breaking fundraising through to it's legendary release. - launched last week in partnership with the ever dynamic BritDoc - seeks to bring the system to more films and filmmakers and builds on the famous work of Jim Gilliam and Robert Greenwald in re-conceiving exhibition.


The Digital Creative Economy - five suggestions for Vince Cable & Jeremy Hunt

While there is some hint that the new British coalition government will follow through on the Lib Dem policy of rescinding the rushed and hated Digital Economy Bill to let it get full and appropriate scrutiny, I would imagine that many new cabinet members are grateful to Ben Bradshaw and Lord Mandelson for pushing through an unpopular piece of legislation as a parting gift and saving them from having to implement it themselves.

However the expected consequences of the Act on the healthy and profitable parts of the digital economy (from coffee shops with wifi to iPhone developers), essential for any kind of economic recovery or new growth, means the new government should at the very least reconsider the last government's approach to the problems of piracy and the promise of the digital economy. It may be that the OFCOM guidelines currently being discussed can exempt public wifi, scrap website blocking and push the three strikes option further into the future. But it may end up being smoother to introduce a new Act in 'DEAct's place, closer to Lord Carter's original recommendations before Mandy yachted with David Geffen and amended the public consultation. For what it's worth, I outline below five points that I think should be held in mind when shaping policy or campaigning in this area.

1. The Sky is not Falling

DVD and Music revenues are currently rising (DVD up 31% Q1, UK music sales up in 09,  digital royalties rise outstrips CD fall). Indeed, file-sharers using the Pirate Bay apparently spend 75% more each year on music and film than non-filesharers (£77 as opposed to £44 pa). 

2. Hollywood is stalling on providing legal alternatives

There are very few legitimate, comprehensive and competitive film streaming or download services: iTunes has less films than Tescos and getting your film on there is very hard (plus it costs more than my video shop, which makes little sense). Penalising consumers before the content industry has offered proper download solutions de-incentivises the studios to collaborate on these solutions - indeed shortly after the Bill went through, dropped plans to launch in the UK. Currently there is a lot of delay from the studios over technology as all of them want to control it. Piracy may be the most effective motivator to get them to release a legitimate alternative - ie. without filesharing we probably would never have had music industry agreement on Spotify.

3. The Digital Economy is not the Information Economy

Facebook, Google, Flickr, Twitter, etc (ie the centre of the Digital Economy) build their businesses around the intellectual property of their users; they depend on people sharing their own IP, without limit or compensation, to sell adverts against. They see little or no difference between a content producer who tweets, blogs, shares a link, mashups, photoshops, comments or makes an album or feature film as they're all advert opportunities, and there's nothing to presume that the quality of the content equates to the demographic value of the viewer to advertisers. Few professional web-native content creators - if any - would risk the backlash from trying to sue one of their fans (just as Oasis wouldn't sue someone who jumped the fence at Glastonbury for lost ticket sales).

4. Legitimate free content is just as much a threat to producers

Content creators distributing online must compete with a near-infinite amount of free and legitimate video, growing at an exponential rate. While Hollywood has committed itself to prosecuting and criminalising its potential audience, the British film and video industry may not have the luxury of being able to alienate potential cinema-goers and DVD-buyers. It is unlikely that the competition for attention online will be won by those companies that display the most bullying and aggressive behaviour (unless they have the new Batman or James Cameron film) and the British industry would be sage to study how the Pay-What-You-Want experiments of Radiohead (3 million sales of In Rainbows, avg £4 price) and the Humble Indie Game Bundle (which has just taken over $1m in one week) have done so well from of the 'Buskers Hat' model. 

5. Even if piracy stopped, lots of people will lose their jobs (and need to retrain)

Part of the root of Hollywood's panic is the threat - not from pirates or even free legit content - but of technology replacing the bulk of their jobs. Social media makes marketing departments redundant, getting a trailer cut is less of a priority when dozens of YouTube fans will make one themselves, digital distribution replaces not only buyers and planners, but video rental shops and DVD designers. Filmmaking still needs a large team, but sales, marketing and distribution needs a smaller, more savvy breed of wired, serial networkers fluent in all digital media forms. Avoiding job losses is as unlikely as YouTube videomakers paying union rates. Much of the attitude from legacy Hollywood and the unions is that 'if we get governments to legislate hard enough, the realities of doing business on the Internet in the 21st Century will go away'. While ridiculous, this is an opportunity for British companies to make a head-start in building the future infrastructure and services that support the Digital world we're approaching. One where attention is such a scarcity that few, if any, artists would add barriers such as payment or court summons to stop people 'spending' their time on their work, and instead will build their business models around the slipstream of such activity, once the user is engaged.

I hold little hope that our new government will listen to this and similar arguments from those across Britain's digital economy; personal contact with my local MP, the House of Lords enquiry, lobbyists, a union head and Digital Minister Stephen Timms amounted to nothing during the last parliament. That said, the Liberal Democrats did vote against the Bill, while Tory MPs such as Bill Cash and John Redward were highly critical of it (and surprisingly well informed). If we simply implement it as it is, the new global digital economy will continue to be driven by Sweden and California, unlikely to get similar legislation soon, with the UK - behind only two of the 250 most popular websites in the world - becoming a 'quaint' and frustrated digital backwater.


Three reasons why the Digital Economy Bill will damage British biz & what to do about piracy

Part 1 - Three reasons why the Digital Economy Bill will damage British businesses

Part 2 - What can be done? Five steps the UK content industries could take to offset piracy losses

cc_purdman1A few weeks ago I chatted with a single dad in his 40s, working in a brewery. He's a biker, Sun-reader and towards the right politically, hating to see his taxes used to fund free school meals or asylum seekers.

Nevertheless, Jack (let's call him) talked with great pride about his downloading habits. He had already seen Shutter Island tho it was yet to hit cinemas. He had hard drives packed with every feature you could imagine and had the unreleased new Matt Damon film torrenting at home while we spoke. When I suggested to him that the film industry was struggling and without people paying for films the good ones might stop being made, he said he couldn't remember the last good film he'd seen, that most of them were terrible with overpaid actors and not worth paying for. When I mentioned the proposed legislation in the Digital Economy Bill he didn't blink - at worst he said he would go back to his former method of having a Love Film subscription and copying every film he received onto a hard disk, and swapping the files with his work mates, who were quick to educate him on the latest software or technique. I asked him if there was a film he downloaded that he really liked, if he would consider paying something after watching it to help the filmmaker make more, and he paused a few moments before diplomatically saying that most people he know would consider that they've already seen it, so what's the point.

This conversation illustrated for me two key points: that there is a good reason for the film industry's concern about downloading;  and that the proposed new legislation won't make the slightest difference to Jack and pirates like him. Indeed he looked excited by the challenge of a new cat and mouse race with the powers that be, like being alerted to speed cameras on his sat nav.

Yet, the proposed new Digital Economy Bill will allow any foreign company to block a British website or disconnect a British business, school or family from the web without first having to go to court (and with no penalty if they make a mistake).

Some organisations have even argued that it shouldn't even be debated by MPs before it becomes law. And indeed it appears that on Tuesday the Bill is expected to get one or two hours debate rather than the 80-90 hours such a bill would normally receive because of the planned election announcement. As a result, the most substantial piece of legislation about the Internet in British history is likely to be pushed into law without any debate by elected representatives.

There has, however, been much online discussion of the Bill, with some 18,000 letters sent to MPs, with The Register's Andrew Orlowski describing it as 'the political issue for people who don't want to do politics'. He defines the polarised positions of the debate well:

"On the one side is [the] idea that coercion will cause "behaviour change", leading to the public embracing the current set of retail choices. This permits them to apply the might and logic of physical distribution control in a digital world, and avoids embracing structural reform. On the other side is the idea that music just had to be free, just because some people demanded it must be - therefore it had no value... The possibilities that new technology opens all go legal eventually, as black markets go white. To deny this - as both sides do - requires self-interested and incredibly unimaginative arguments. We got no shortage of those."

At this point I would like to state categorically that I am not a 'freetard'. I have pointedly avoided downloading music and films illegally, against the incredulity of many friends and colleagues - in part so that I could one day write this article. I have - I confess, downloaded one episode of Heroes, after my iTunes purchase went thru but didn't download and I couldn't wait to see it, and I also tested the Tribler software after learning it was being used in a major EU-funded project with the BBC, by successfully streaming a Torrent of a Harry Potter film (an activity that combined with an IP Spoofer would be untraceable under the Bill). Beyond that my only torrents are from filmmakers who chose to distribute their work that way as it costs them nothing (unlike the £1.50 or so per download it would cost via Amazon S3 storage).

I am - as I have been since setting up Netribution ten years ago, and trying to map the world of film finance - concerned about the future for indie filmmakers if everyone takes the attitude of Jack. Nevertheless, this rushed Bill as it currently stands would be a disaster if it was ever implemented and I urge you to ask your MPs to give it the debate it deserves - if not to block it altogether. Here's why:

1 - The consequence of site blocking = you can't visit this website

barbed_wire_clouds_tanakawho2A late amendment to DEB by the Liberal Democrats (as a way to prevent control over Copyright Law being subject to the whims of the Secretary of State at the time) will let any copyright owner ask that a website be blocked from the Internet if there is a 'substantial' amount of infringing content on it. Although the process can be opposed by an ISP and taken to court, if the ISP loses, all legal costs must be met by them so takedown requests would only be refused with the biggest sites such as YouTube or MySpace. With no financial incentive to defend websites, ISPs may start blocking hundreds of thousands of them on demand, regardless of the non-infringing content also hosted there. Writing about 120A on her blog panGloss, Lilian Edwards of the Sheffield Faculty of Law illustrates how obliging ISPs will be:

"In one amusing study , an Oxford team posing as rightsholders asked ISPs to take down a chapter from John Stuart Mill's On Liberty - out of copyright for several centuries. All the ISPs complied without a murmur."

Picture this scenario. Netribution publishes an article with an exclusive that a big movie star punched a TV producer backstage at a London awards ceremony. The studio representing the star submits a site blocking request for Netribution and - given that as a user-generated website, where we do not own the content that has been posted here by our users - our site would get blocked. Most of our photos are publicity stills and posters, yet it would be easy to argue in a court that a substantial proportion of the images on this site were 'infringing' as we've no paper-trail to show these we were assigned a license - and of course Netribution is not worth enough to any ISP for them to consider fighting the studio request in court. So Netribution (and your blog or website) could get blocked as the UK adopts a law that goes one further than the great firewall of China in that it allows foreign companies to decide which websites British people can and cannot access.

2 - The consequences of web disconnection = I can't run my business

clouds_barbed_wireI share a nice home with four other creative people. Sometimes they go away for several months and rent their room out - and occasionally these new folk aren't the best sort and leave without paying their bills - it happened last summer. So it's entirely plausible that they could also use our web connection to download. Easily, then, visitors to the house - not to mention my flatmates' partners and close friends - as well as mistaken infringement where a wrong link is clicked or something is downloaded that appeared to be legitimate - could add up to three infringements and we get disconnected from the web indefinitely.

Our flat is packed with legal DVDs (I'm not a BAFTA member), hundreds of CDs and we spend a fortune on trips to the cinema and live music. Yet through an automated process - the mechanisms for which is about to be signed into law - I could suddenly be unable to update this site, check my bank accounts, administer the websites I manage, submit my VAT and tax returns, look for new jobs, promote new films and - well - do my job. Nor would I be able to go to the nearest coffee shop or pub to use their Wifi as no business will be able to risk running free wifi any more. I probably won't even be able to plug my laptop in a paid web cafe via ethernet, as they couldn't risk the chance I was downloading something.

In short my business goes bankrupt, I sign-on yet can't even search the web for jobs, and the British Digital Economy has become one of the least competitive places to do business in the world.

3 - The consequences of Clause 43 = large corporations still can rip off creators

After the sad death of British casting legend Mary Sellway, we were flattered to see the New York Times quote her interview with Tony Pomfrett on Netribution in their obituary. That same week Screen International printed an obituary and reproduced a photo by Tom Fogg from the same interview - again without permission or fee, but also without credit. Having credited them as source to countless news stories over the years, we were a little miffed, not least because they rarely returned our calls (but we moved on!). Clause 43, a peculiar addition to the bill, enshrines the right of Screen to do this, into law. In an attempt to deal with orphan works, ie works where the author cannot be found, the bill somehow assigns a right for use for any photos or images online where it's not immediately obvious who owns a photo (eg if the photo credit was on the first page of an article, while the article was found on page three).

It's the Alice in Wonderland part of the legislation which contradicts the arguments of the rest of it. Businesses and households risk ruin by losing web access, in order to protect commercial copyright owners. Yet your family holiday photos posted online can be exploited by commercial entities without asking your permission. More can be learned at the Stop 43 website.


The Bill has arrived at the demands of US studios, yet goes further than anything that America, would consider implementing domestically. Given the potential problems, open questions and the drastic last minute changes - one or two hours of Parliamentary time to discus it and no third reading is really insufficient.

Britain is a world leader in the creative industries - across film., TV, music and video games we are remarkably successful, and the sector contributes £112bn or 7% of GDP - almost 4 times more than agriculture - to our economy. Understandably, the support for DEB is built on a desire to protect this sector. Yet this proposed solution to the content sector's problems is built on misguided assumptions about how the web is won.

The Internet was meant to unfetter indie creatives from the stranglehold of studio distribution control, which long forced independent movies out of cinemas and off the shelves at Virgin, yet instead we have new battles - to get on the front page of YouTube or to persuade iTunes to sell our films. The biggest earner for content online is ads, yet Google have most of that market sown up - and we can't even get them to pay tax on the £1.6bn they earned in the UK last year. 

Indeed, Britain is largely a web failure, beholden to the US giants (just as with film distribution). Of the top 250 most popular websites in the world, only two are British - the BBC and the Guardian. The BBC sits on healthy license fee income (tho it's budget is illogically threatened with 50% cuts), while the Guardian was the first UK newspaper to go online for free fully, and has stated that its business model, in opposition to Murdoch's, is multifaceted, with the free website supporting other profitable activity. But elsewhere we are tiny fry - the subscription business model of pioneering Friends Reunited, for instance, losing to the free, yet billion dollar turnover, 400 million member Facebook; QXL and surrendered to foreign buyers.

The government is dependent on our high tech sector to help us into recovery. Yet while San Francsico looks set to implement free city-wide Wifi and continue to rule the Internet, the UK is just a week from effectively banning free public wifi and handing control over which website is visible and which homes and business have web access, to foreign companies. If the world's leading high tech economy - the US - isn't debating such laws, is it wise that the UK should?

So what can be done? Five steps to removing piracy losses

cc_baltimorefreepressIt's easy to condemn the bill, but there are scarce few alternatives around, so a critique needs to be accompanied with some alternative thinking.

I would firstly echo Paul Carr's excellent description of the Bill at Tech Crunch and suggestion that above all the legislation must not be rushed through before the election, as it is too important. If we get it wrong it could cripple British new media (and creative) businesses for the next decade. Furthermore, badly written legislation could be easily manipulated for censorship and backfire on the media industry as a whole with a public backlash against commercial media. Paul makes other good suggestions at the foot of his article: penalties for copyright owners who file spurious claims, and more protection for businesses/libraries/universities who offer free wi-fi. TechCrunch have also backed the creation of Coadec - the Coallition for the Digital Economy which looks at the Bill from a business perspective (unlike the excellent campaigners the Open Rights Group whose focus is more about civil rights).

But for the more pressing concerns of the content industry - for whom this bill may appear the only hope of salvation at a desperate time - I suggest five things that can be done to tackle piracy losses...


After the Open Video Conference part 1: background

Two and a half weeks may be a little late to begin writing up the Open Video Conference, but then my first essay, penned in the few days after, discussed Pirate Bay at some length and even mentioned Michael Jackson and Brian Newman and so is now largely irrelevant. But with our new Tweeting Netwitbutions, perhaps this is the time to sign up fully for the more anti-knee-jerk Slow Blog Movement - if something's going to sit in Google's cache until the end of time, I suppose it's worth thinking about first. (Nothing to do with procrastination..)

So over this and the next couple of write-ups I'd like to introduce to those new to it the thinking behind Open Video, before looking at some of the technologies and ideas that were creating a big buzz and may go on to define the web of tomorrow, before trying to picture the long term scenario - for both technology and film - in light of some of the major changes that are coming in the next year (and the more interesting 'shifts' such as Pirate Bay's decision that, after all, they would like to be paid for their labour).

The first big realisation for me and perhaps the most ithree_worlds_openvideomportant point for the (legacy) film world is that we're just one pane of the huge stained glass window that is 'open video'. It's more like the novel's relationship to the printing press; one application from as many as there are uses for the printed word. Also worth understanding is that the passionate vigour from the movement's prime movers is not the same as the similarly passionate pro-pirate movement, but rather folks who believe that technology must never stand in the way from any of us expressing ourselves with video. Back-dropped against the demos and mass communications of Iran the mood was generally one of somber valediction – here was proof that decentralised peer-generated media was capable of doing what no news organisation was able to do, while emphasisng the importance of keeping these tools on open standards and formats.

Splitting decentralised video, from which open video is born, into legitimate and non-legitimate activity we see on the one side massive (and inspiring) activity - including video in learning and education, reportage of human rights abuses, public archives, and free open source video editors, codecs and file formats. On the other side - the area of copyright & patent infringement - we see a history where the 'pirate' activity has gradually become absorbed by the mainstream. The independent rebels who refused to pay Edison's Motion Picture Patents Company license fees headed west to California to avoid being fined and included William Fox (who later founded 20th Century Fox), Carl Laemmle (one of the founders of Universal Pictures) and Adolph Zukor (whose company became Paramount Pictures)., Napster and now Pirate Bay have all been acquired by legitimate businesses, while the steps from Napster to Spotify are not really so great. Even former studio boss Lord Puttnam recognised the sector's value in certain conditions, during his recent keynote in Edinburgh - it was pirate copies of The Killing Fields circulating the Ukraine in the late 80s, which in part helped educate against mass violence and prevent civil war, according to Ukraine's President Yushchenko. And with seats in the European Parliament, the pirate movement is inching closer to the mainstream, albeit on the back of a technology far more powerful than anything DVD street sellers or home bootleggers ever had at their disposal - which is they key point: ultimately Torrents and their successors are a very powerful, arguably unstopable, way to share pirate material. They also are a cost-free way for content owners to distribute their work.

If these two green and red worlds above could be polaraised as acceptable and inacceptable to the film industry and the majority of copyright holders - in the middle comes the murky world of creative re-use. Much of it technically illegal, yet almost all of it is the creation of new art and culture, the modern-day equivalent of basing Star Wars on a Kurosawa film or the Da Vinci Code on The Templar Revelation. More to the point, much of it is potentially profitable: as is often pointed out, had DRM been widespread in the early 80s, Hip Hop music just might not have happened, preventing a sector worth billions.

While the copyright industry has long legislated against this middle ground, in a peer-generated media space, such re-use may soon outnumber original content - how many more people must have seen remixes to Hitler's speach in DownFall than the original film? Indeed increasing numbers of copyright owners who find infringing derivative works of theirs on YouTube agree to leave it up so they can sell adverts against it. The longer the media industry and copyright owners oppose open creative re-use, the more it pushes next generation creatives, the lifeblood of the creative world, to the area of full infringement -  and the more power it devolves to the new oligarchs - tech companies, ISPs and web services who will profit regardless of the origin, legality or quality of content (and whose collective size is so much bigger than the film industry that they will always be able to find legislative and mainstream support). To date the only music torrent I've  downloaded was DJ BC's Wu Orleans - a mashup of the Wu Tang Clan and old New Orleans Soul which can't be bought anywhere, like Dangermouse's Gray Album. My interest in Creative Commons and opposition to DRM only came in 2003 when I got into the VJ world and Clip-Hop. Most VJs I know have nothing against sharing earnings - if and when they get any - with copyright owners provided it was a reasonable price and easy to do - at present the use of a tiny clip from Star Wars or An Inconvenient Truth may take a VJ weeks to clear and cost ten times more than they'd get paid for a night's work.

piracy-probs.gifSo the only DRM-free and creative-reuse space for films at present is mainly illegal. At the same time much of the Torrent sector seems to care little about their ability to destroy an art form. As one person told me at the conference in response to my exclamations that indie and art film could die if a payment solution wasn't found: 'that's kind of like moaning about being in the horse and cart business after the Model T Ford came out'. When I asked him what his favourite films were he admitted he didn't really like watching them, but was building a new web video platform nevertheless

Many in the tech community use the example of Bill Gate’s infamous arguments in the late 80s saying that there was no financial model for software based around its free distribution. He was wrong on a significant scale, at the loss of Microsoft and benefit of Linux, Apache, Firefox, PHP et al; yet simply because film can also be described in binary does not mean that the business of film production is the same as writing software. For one thing your average indie filmmaker is probably already working for free on the bulk of theirs' and their friends' films, yet they can't supplement this with $500 a day writing code or doing consultancy, like the open source sector. Payment for them is not about getting rich, but paying off the second mortgage they took out on their house for the film. For another, unlike music and books, real-world non-piratable activity (theatrical) is rarely profitable and very hard for small operators to get into, as I've long been saying here.

But this debate is unlikely to be resolved soon, and I only repeat it now because a number of emerging factors I hope to cover soon (once I understand all the issues) suggest that the train may already have left. So as the film and web worlds try to communicate with each other, the tech sector urgently needs to recognise the danger of a world where the only feature films are either zero budget or funded by major brands, while the film sector should re-appraise the value of fair and creative re-use at a time when it's getting harder than ever to get attention for what you do. With all thats on the horizon, every 'fan, friend and follower' is going to be needed, and some new revenue streams may emerge in the process, which also wouldn't be a bad thing.


The future of film financing, an essay by Adam P Davies

If it is clear that the producer wants the product on as many websites as possible, would market forces really create competition amongst filmsites or encourage them to scramble to pay money upfront in return for the "privilege" to sell the movie?"

If you thought the biggest threat facing the international film business was piracy, think again. The creation of a single global market on the Internet for distribution also challenges the pre-sales model where film rights are sold on a territory by territory basis. The majority of independent films intended for theatrical release often raise a third or more of their budget through pre-selling rights: in a world where distribution is day-and-date across territories and platforms this doesn't make so much sense, as a producer you would probably not want to favour one country over another any more than there would be a point in releasing through only one download/streaming service.

Adam P Davies, one of the top film finance and tax brains in the business, and adviser on several hundred features, including Warzone, Nil by Mouth, Gods and Monsters and Sexy Beast, has written a detailed explanation and exploration of this little discussed but genuine problem. The threat of piracy is still tough to quantify: however the loss of some 30% or more possible production funding is far more immediate - it is as if all sources of public finance were to vanish suddenly. The article first appeared earlier this year in the Film Finance Handbook - World Edition which we wrote together, launching in Europe at Cannes in May and hopefully debuting in North America at Sundance next year.

The Future of the Mainstream Financing Model by Adam P Davies, taken from the Film Finance Handbook: How To Fund Your Film (Netribution, 2007).

The Tangling of the Web

No discussion about the future of the film financing "model" is complete - or should even start - without serious thought being given to the impending changes from the growing impact of the internet. Not just from the perspective of the end-user's experience, but also the implications for distribution methods, real-time transfer of money, sources of production finance, piracy and so-on. It is true that no-one can unequivocally proclaim through a crystal ball exactly how the business will be run in ten years time. But what is clear is that the various "possibilities" thrown up by the internet that everyone was hypothesising about five years ago have now been replaced by "probabilities". At the numerous over-priced seminars regularly addressed by top-brass industry executives discussing forthcoming issues, the phrase "This is how things could change" has finally switched to "This is what we are currently planning and testing"...



Out of the strike: new models for film from Silicon Valley

duchovny_williams_apAs talks restart in an attempt to end the US Writers Guild strike, commentators are discussing whether the dispute will drive more writers and talent out of the studio system and onto the web. It is one thing to win a doubling of DVD royalties, from four cents to eight, and a share of web advertising, as with TV (the main WGA demands); but another altogether to actually own, or co-own the show or film you devise and write.

"The writers' strike, and the studios' response to the strike, may radically accelerate a structural shift in the media industry - a shift of power from studios and conglomerates towards creators and talent."
Marc Andreesson

Marc Andresson, who founded Netscape amongst other ventures, is arguing that the film industry needs to rebuild itself on a model closer to that used by startups in Silicon Valley. Here venture capital companies will normally back talent with a good idea, and leave them running the company with a big share, perhaps over half, of the profits.

There's a certain over-simplicity in the argument, which sidesteps independent financing where VCs rarely, if ever 100% or even part finance film. While the next eBay may be able to prove itself through a demo site, few hit films or shows are identifiable at script stage. But the arguments are otherwise convincing, and echoes some of the notions in my essay - the Internet as the Seventh Major Film Studio (PDF download) - which argued that all filmmakers and artists using the jackblackweb for fundraising, marketing, casting, production or distribution, etc are effectively members of a single vertically integrated virtual studio conglomerate/co-op, spanning the world. Furthermore, the principles of the open source/dotcom/Silicon Valley world, make that virtual studio far more cooperative, supportive and talent/idea driven than traditional studios.

Both Scott Kirsner and LA Times picked up on Andreesson's blog (reprinted below) with much support, arguing writers need to become entrepreneurs and ditch the industry standing between them and their audience, much as CASHMusic (see below) is trying to support for the music world. In fact the shifts of the music industry, which online seem to be a few years ahead of film, are worth studying.

Blog B-Side recently outlined, with examples, five models the music industry could adopt to survive as a business in the 'binary economy' - free (music as loss-leader), pay what you want, pay-by-popularity, subscription and tax- all of which could be reapplied to the film world, with a bit of imagination. Most significantly all of these models can be (and already are) facilitated by technology, allowing artists to connect with (and earn from) potential audience directly, without needing to go through a studio machine.


Radiohead embraces trust over DRM: will it work for film?

I recently heard from a music industry insider that Radiohead make some 80% of their income from touring, which opened up the question of why they put so much effort into packaging, selling and protecting albums. A question that has now been answered. Free from a record label after their six album deal with EMI had come to an end, one of the most revered bands of the last 20 years have taken the twin giant leaps into self-distribution and inviting downloaders to decide how much to pay for their new album (In Rainbows).

Thousands of buskers today make a living from an upturned hat, which - tho no DRM system can ever force people into filling, often they do.

Trust - it's a model that has supported musicians perhaps longer than any other system, and hundreds of thousands of buskers and touring musicians today make a living from an upturned hat, which - tho no DRM system can ever force people into filling - somehow they do. Magnatunes has already been using the 'pick your own price' system for a while, and despite having a minimum cost of £5 (unlike In Rainbows where there will be no lower limit), sees an average payment of around £8 (Magnatunes also have great licenses for filmmakers wanting to only pay for music rights *after* the film starts making money).

We've seen the publishing industry shift from a paid-for model for newspapers and magazines to free ad-supported distribution in less than a decade. The New York Times was set to make millions this year from pay-per-view articles, the management eventually decided it would make more from advertising in the long run and made everything free. Rumours abound that and are set to follow suit.

With Amazon now opening a 2 million song DRM-free store, making it easier than ever to pirate (if you are so inclined), the tide for music too seems to be shifting towards a more open trust-based situation. Inherently - as with life - the trust approach has a lot going for it, viewing people as decent until proven otherwise, and it is sufficient to support church collections, eBay and plenty more. 

Supercomputer HAL in 2001 A Space Odyssey would be upgraded to Windows Vista and instantly cheer up.

 But film is that much more expensive than music or writing to produce, and it'd be foolish not to consider what if trust doesn't work? If so, and unless we are to adjust to watching only microbudget productions and demand that film professionals work for free, then we are presented with the nightmare scenario Orange has been taking great pains to illustrate over the past decade with its Film Funding Board cinema ads - the advertiser as film funder and script developer. In some ways its only a small step away from current practices where Spiderman is filled with Sony technology, or films eligible for British tax breaks have to have sufficient 'British elements'. But it would spell the end of big budget art films. Supercomputer HAL in 2001 would be upgraded to Windows Vista and instantly cheer up.


The long tail: why the web loves indie filmmakers

longtail“Our culture and economy is increasingly shifting away from a focus on a relatively small number of "hits" (mainstream products and markets) at the head of the demand curve and toward a huge number of niches in the tail. As the costs of production and distribution fall, especially online, there is now less need to lump products and consumers into one-size-fits-all containers.”
Chris Anderson,

Wired Magazine editor Chris Anderson's landmark 2003 book The Long Tail looked at how the scale of the web and the ease of mass digital distribution creates a significant market for smaller and niche titles - be it books, music, film or special interests. Where shops have traditionally only been able to sell as much stuff as they can fit on their shelves, the web allows retailers to offer near unlimited catalogues. Indications seem to suggest that the effect of this is that far more books, films and media are sold in the 'long tail'; the part of the sales chart that tails off after it peaks on the bestsellers.