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As I noted on Friday, the seizure of popular cyberlocker Megaupload demonstrates that, even without controversial new legislation,
our government already has extraordinarily broad powers to take down
U.S.-registered websites (including any site in the .com and .org
domains) before anyone has been tried for illegal conduct, let alone
convicted. While the evidence presented in the indictment charging
Megaupload’s executives with criminal racketeering and copyright
infringement certainly seems damning, I also worried about the broader
chilling effect such seizures could have on cloud storage services
generally.
It didn’t take long for those effects to become apparent. The cyberlocker Filesonic has now disabled file sharing functionality:
Users can still upload files for personal storage, but can’t create
public links to enable others to access those files. (Though I’m not
sure what prevents someone from simply creating a dummy account,
uploading files, and then publicly posting the login information.)
Another cyberlocker, Uploaded.to, is just blocking all traffic
from U.S. Internet addresses, though it’s not at all clear how much
legal protection that’s likely to afford them. You can hardly blame them
for being skittish: The Megaupload indictment suggests that the U.S.
government considers a wide array of cyberlocker business practices to be ipso facto
evidence of criminal intentions, even though there are arguably
legitimate reasons for many of them. Yet the government doesn’t think it
has to wait for a trial, or give the folks who run a site an
opportunity to explain their practices, before seizing an entire
domain—which would be an effective death sentence for many startups.
If you think all cyberlockers are nothing more than piracy tools, and
there’s no legitimate reason to make use of cloud storage for anything
but personal backups, this might sound like an entirely healthy
development. It’s a little more worrying to those of us who see many
valid reasons that law abiding individuals—even those who lack contracts
with major record labels and movie studios, or the funds and tech savvy
to run their own servers—might want to share large files with friends
and colleagues, or distribute them to the general public.
To be sure, such services aren’t going to vanish entirely.
Established corporations like Google have sophisticated filter
algorithms that can help identify copyrighted content—though those are
trivially defeated by file compression and encryption—and large, well
paid legal teams to handle copyright compliance and fend off lawsuits,
like the one Google’s own YouTube continues to fight with content behemoth Viacom. The question is whether these are the only companies we want offering such services. Is the market for cloud-based platforms that enable sharing (which is one of the big selling points of cloud computing)
a market we’re prepared to see effectively closed off to startups that
can’t preemptively police every user-uploaded file to Hollywood’s
satisfaction? Because that is the predictable effect of a regulatory environment
where investors know a nascent site can be summarily yanked offline by a
district judge who thinks a Tumblr is some sort of gymnastics
aficionado.
If you’re only thinking about current, known uses of the Internet,
this might not seem like that big a deal: Why do we need lots of
different platforms for sharing large files? But then, just a few years
ago it was hard to envision why we might want a platform for sharing
streams of 140-character messages (“Just a bunch of people gabbing about
what they had for lunch, ho-ho-ho!”) or a platform where anyone, not
just Professional Content Creators, could upload short videos (“Amateur
videos? Sounds like an excuse to steal movies!”) or half the other
technologies that are so profoundly shaping 21st century life.
The last innovation is always safe. That’s why it’s easy to
claim concrete examples of the harm regulation might do are hyperbolic
fearmongering: Nobody’s going to shut down YouTube or Twitter now,
because we’ve already seen the incredible value creation they enable,
even if they also make it a bit easier to infringe copyrights. And
anyway, the success stories eventually get big enough to afford their
own fancy lawyers. It’s the next platform that we risk
strangling in the cradle, because every new medium starts out
recapitulating old media content before it becomes truly generative.
Early radio is full of people reading newspapers and books out loud.
Early TV and film looks like what you get when someone points a camera
at a stage play.
File lockers still look like nothing but piracy tools to a lot of people, because most
of us aren’t yet generating and sharing gigabytes worth of content on a
daily basis. But it doesn’t take a whole lot of imagination to imagine a
world where that’s not at all the case, a world where cheap,
ubiquitous, powerful computing and rising bandwidth and falling storage
costs make collaborative creation of high definition sound, video,
and—who knows—maybe entire 3D environments a nigh universal recreational
activity. (Like TV has been for the last couple generations, only with
fewer dead brain cells.)
That world can be run by Google and Sony and a few other behemoths
capable of negotiating byzantine licensing deals (and filtering
protocols), with incumbents ill-disposed to see the value in anything
that isn’t easily shoehorned into their existing business models. Or we
can have a more dynamic, open world where someone with a cool idea for a
platform can give it a try without spending more money on lawyers than
servers first. The interesting, important question isn’t—as regulatory
advocates want to make it—whether Megaupload should go out of business.
Odds are it will and should, after a proper trial. It isn’t
even whether sites like Rapidshare or Hotfile ought to follow suit. The
interesting, important question is whether we’re going to have a legal climate that’s capable of giving rise to the second kind of cultural ecosystem, or one that’s only hospitable to the first kind.
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