Tag Archives: copyright

Piracy cannot be stopped

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The Pirate Bay logo

Image via Wikipedia

Paul Tassi, writing in Forbes, has a good overview of an underlying and unavoidable reality of the digital age in which we live: piracy cannot be stopped. Technological blocks are temporary at best, because blocking any particular digital tools for sharing content merely results in the rapid invention and deployment of new technologies. Consider Napster. When it was such down, numerous clones of its technology appeared. As the IP industry filed lawsuit after lawsuit to shut down the Napster clones, bit torrent technology was created and widely deployed, leading to Pirate Bay. Sharing sites themselves come and go as well. If Pirate Bay is shut down, it will matter little as there are dozens of alternatives already in operation.

But Tassi also notes that piracy will not kill the IP industry. The industry’s claimed number of lost sales caused by piracy are simply silly. Most pirated material is acquired by people who would never buy the content in any case, either because they don’t have the money to do so, or the content is not available in any legal fashion at the time, or because it is simply not worth the trouble or expense to buy, say, a $30 Blu-ray disc.

The real problem, in his view and mine as well, is that the IP industry has failed to adjust their its business model to something that customers actually want and are willing to pay for.   (Perhaps the exception to this is the music industry that was successfully prodded by Steve Jobs into relatively easy legal access at a modest price).

Here is how Tassi put it:

The seven step, ten minute [Pirate Bay] download process (which will be about ten seconds when US internet speeds catch up with the rest of the world) is the real enemy the studios should be trying to tackle. Right now, the industry is still stuck in the past, and is crawling oh-so-slowly into the future. They still believe people are going to want to buy DVDs or Blu-rays in five years, and that a movie ticket is well worth $15. Netflix is the closest thing they have to an advocate, but the studios are trying to drive them out of business as they see them as a threat, not a solution. It’s mind boggling.

The primary problem movie studios have to realize is that everything they charge for is massively overpriced. The fact that movie ticket prices keep going up is astonishing. How can they possibly think charging $10-15 per ticket for a new feature is going to increase the amount of people coming to theaters rather than renting the movie later or downloading it online for free? Rather than lower prices, they double down, saying that gimmicks like 3D and IMAX are worth adding another $5 to your ticket.

They have failed to realize that people want things to be easy. Physically going to the movies is hard enough without paying way too much for the privilege. Going to a store and buying a DVD instead of renting or downloading is generally an impractical thing to do unless you A) really love a particular movie or B) are an avid film buff or collector.

The essay is worth a full read.

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The Megaupload case (updated)

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I am sure you heard that late this week the United States Department of Justice, with the cooperation of New Zealand authorities, shut down a very popular site called Megaupload. Megaupload was a “file locker” site, a category of cloud based service providers that allow users to upload files to the site for easy Internet access on multiple devices later. This type of site is not rare and includes sites like box.net, DropBox, Facebook and YouTube.

The DOJ claims that the operators of Megaupload paid users to upload copyrighted media for distribution to other Megaupload users, and that such uploads cost the media industry damages in excess of $500 Million.

But there are at least two important questions raised by the DOJ action. First, if the government is able to shut down a site unilaterally and without a prior judicial hearing why in the world is either SOPA or POPA necessary.  The law enforcement shutdown provided no opportunities for due process whatsoever, and immediately rendered inaccessible presumably thousands or hundreds of thousands of files uploaded by innocent users and stored on Megaupload that contained no intellectual property whatsoever. Were those users not entitled to a hearing before their data was seized?

Second, what stops government seizures of any sites that store user uploaded content?  Keep in mind that this type of situation is purely financial in that there were no claims of injury or possible injury to individuals. No violence was involved. If there is a claim that Party A stole and sold the property of Party B, isn’t that claim heard in court?

This action demonstrates quite clearly the dangers of legislation like SOPA. But it also shows that law enforcement acts precipitously in commercial disputes if they occur on the Internet. If I were YouTube, Dropbox or the others, I would be very concerned.

Robert Bennett has been hired to represent Megaupload, so it is likely that a strong defense will be mounted.

Update: Glenn Greenwald, writing at Salon, has much more on this point. Worth a full read.

… the U.S. Justice Department not only indicted the owners of one of the world’s largest websites, the file-sharing site Megaupload, but also seized and shut down that site, and also seized or froze millions of dollars of its assets — all based on the unproved accusations, set forth in an indictment, that the site deliberately aided copyright infringement.

In other words, many SOPA opponents were confused and even shocked when they learned that the very power they feared the most in that bill — the power of the U.S. Government to seize and shut down websites based solely on accusations, with no trial — is a power the U.S. Government already possesses and, obviously, is willing and able to exercise even against the world’s largest sites (they have this power thanks to the the 2008  PRO-IP Act pushed by the same industry servants in Congress behind SOPA as well as by forfeiture laws used to seize the property of accused-but-not-convicted drug dealers).

* * *

The U.S. really is a society that simply no longer believes in due process: once the defining feature of American freedom that is now scorned as some sort of fringe, radical, academic doctrine. That is not hyperbole. Supporters of both political parties endorse, or at least tolerate, all manner of government punishment without so much as the pretense of a trial, based solely on government accusation: imprisonment for life, renditions to other countries, even assassinations of their fellow citizens. Simply uttering the word Terrorist, without proving it, is sufficient. And now here is Megaupload being completely destroyed — its website shuttered, its assets seized, ongoing business rendered impossible — based solely on the unproven accusation of Piracy.

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Tech quote of the day

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Now, it may seem like SOPA [the U.S. Stop Online Piracy Act] is the end game in a long fight over copyright, and the Internet, and it may seem like if we defeat SOPA, we’ll be well on our way to securing the freedom of PCs and networks. But as I said at the beginning of this talk, this isn’t about copyright, because the copyright wars are just the 0.9 beta version of the long coming war on computation. The entertainment industry were just the first belligerents in this coming century-long conflict. We tend to think of them as particularly successful — after all, here is SOPA, trembling on the verge of passage, and breaking the internet on this fundamental level in the name of preserving Top 40 music, reality TV shows, and Ashton Kutcher movies!

…

Freedom in the future will require us to have the capacity to monitor our devices…to maintain them as honest servants to our will, and not as traitors and spies working for criminals, thugs, and control freaks. And we haven’t lost yet, but we have to win the copyright wars to keep the Internet and the PC free and open. Because these are the materiel in the wars that are to come, we won’t be able to fight on without them. And I know this sounds like a counsel of despair, but as I said, these are early days. We have been fighting the mini-boss, and that means that great challenges are yet to come… we may yet win the battle, and secure the ammunition we’ll need for the war.

– Cory Doctorow, from his speech The Coming War on General Computation, presented at 28C3,the Chaos Computer Congress in Berlin, Dec. 26, 2011.(via Quotation of the Day Mailing List)

Cato Institute calls for SOPA block

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More from Cato on anti-piracy legislation here.

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Stop the E-PARASITES Act (updated)

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The E-PARASITES Act (the latest name for legislation originally named the PROTECT IP Act) has been proposed in the House. It is also called the “Stop Online Privacy Act” or SOPA. The bill, if enacted, would effectively allow websites to be blocked, without judicial review or due process, based merely on claims of infringement. It would also make it illegal to use any technology to bypass such blocks. It would also make it a felony to illegally stream content online.

Here is a summary of the guts of bill from the EFF:

As with its Senate-side evil sister, PROTECT-IP, SOPA would require service providers to “disappear” certain websites, endangering Internet security and sending a troubling message to the world: it’s okay to interfere with the Internet, even effectively blacklisting entire domains, as long as you do it in the name of IP enforcement. Of course blacklisting entire domains can mean turning off thousands of underlying websites that may have done nothing wrong.  And in what has to be an ironic touch, the very first clause of SOPA states that it shall not be “construed to impose a prior restraint on free speech.” As if that little recitation could prevent the obvious constitutional problem in what the statute actually does.

But it gets worse. Under this bill, service providers (including hosting services) would be under new pressure to monitor and police their users’ activities.  Websites that simply don’t do enough to police infringement (and it is not at all clear what would qualify as “enough”) are now under threat, even though the DMCA expressly does not require affirmative policing.  It creates new enforcement tools against folks who dare to help users access sites that may have been “blacklisted,” even without any kind of court hearing. The bill also requires that search engines, payment providers (such as credit card companies and PayPal), and advertising services join in the fun in shutting down entire websites.  In fact, the bill seems mainly aimed at creating an end-run around the DMCA safe harbors. Instead of complying with the DMCA, a copyright owner may now be able to use these new provisions to effectively shut down a site by cutting off access to its domain name, its search engine hits, its ads, and its other financing even if the safe harbors would apply.

The full text of E-PARASITES is available here. And an explanatory video is here.

Taken together, this would effectively allow a government-mandated firewall on the Internet violating free speech rights of American citizens (and those around the world), all for the private benefit of the music and movie industries. It is outrageously over-reaching and should be firmly opposed.

And here is how you can easily oppose the bill without cost in less than a couple of minutes

Update: And you should read this essay by Lauren Weinstein, who clearly outlines the stakes involved.

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Six strikes

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The major ISPs have agreed with media companies to implement a “six strikes” program. Under the agreement, when content companies report to an ISP that they believe an ISP customer is accessing illegal content, the ISPs will implement a series of notices intended to get the customer to stop. Ultimately, the customer could be terminated by the ISP if they cease the activity.

The problem with this approach is that it is based merely on claims made by private companies, with no judicial oversight whatsoever. In effect, the ISPs become cops for the media industry and the media industry has the unilateral power to block (or severely degrade) service for those accused.  Imagine if a private company could go to the phone company and accuse a customer of using his phone to commit a crime and demand that the phone company take action, including disconnecting the phone. Would we agree to that approach? Since when do private companies engage in law enforcement?

The Center for Democracy & Technology, along with Public Knowledge, said in a joint statement they were concerned about the accord. “We believe it would be wrong for any ISP to cut off subscribers, even temporarily, based on allegations that have not been tested in court,” the groups said.

Corynne McSherry, the intellectual property director at the Electronic Frontier Foundation, also had concerns. She added, in a telephone interview, that the EFF was “pretty disappointed that ISPs have agreed to serve as a propaganda agent for big media.”

If a media company believes that a person has illegally stolen their content, the law provides existing remedies.

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Jail breaking is legal (updated)

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It is now clear that jailbreaking your iPhone is legal, at least under the copyright law. Jailbreaking an iPhone is the process of opening up the software to allow the installation of applications other than those available through the official iTunes App Store. The EFF won the decision from the Copyright Office and the Librarian of Congress.  Apple had argued that altering its software on the iPhone was a violation of Apple’s software copyright. It is not. This process is also now legal on other handsets as well.

I don’t think this is actually a very big deal. Jailbreaking iPhones has been easy for some time and most people don’t bother. And it is true that jailbreaking and installing non-approved apps may make the phone less stable.

In any event, before you get too carried away by this new ability, be aware that Apple’s position remains that jailbreaking your iPhone voids it warranty. While it will not be a copyright violation, jailbreaking may be a contractual violation that causes the loss of warranty.

Update: And then there is this from Jon Zittrain, a Harvard Law professor:

The victory for those who want to hack is not trivial even though in large part it is symbolic. I mean here it is in honor of the United States government saying this is actually not illegal behavior, this is OK to jailbreak your phone. Interesting thing though is, the specific provision in title 17 of the US code is 1201 and this is 1201 (a)(1), that says you can’t hack in order to gain access to something protected by copyright. It turns out that there’s another provision that says you’re not allowed to market or traffic in tools whose primary purpose is to let people hack and the exceptions are not permitted to be applied to that provision. So even though the Library of Congress has given blessing to the act of hacking here. It’s not able to give a blessing to trafficking in the tools that let you hack.

Blonde we like wins Downhill

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A poem for the day:

Blonde we like wins Downhill (Last name rhymes with “Bonn”)

There once was a lawyer from the IOC,
who called us to protect “intellectual property.”

“During the Olympics”, she said with a sneer
“your site can’t use an Olympian’s name even if they use your gear.”

“No pictures, no video, no blog posts can be used…”
Even if they are old? “No!”, she enthused.

While Olympians chase gold the IOC pursues green.
Cough up millions, or your logo cannot be seen.

Except there it is, on top of countless heads!
Tax free endorsements the IOC dreads.

And so it is with a wink and a nudge
that we would like to congratulate a skier whose name we must fudge.

Her hair is long and blonde
Last name rhymes with the German city of Bonn.

Congratulations Women’s Downhill winner –
from all of us here at UVEX (no longer an IOC sinner).

- John Rowles, of sporting goods maker UVEX, on how the racketeers of the International Olympic Committee tried to prevent them from mentioning their clients’ names. (via Quote of the Day Mailing List)

[http://www.uvexsports.com/2010/02/blonde-we-like-wins-downhill-last-name.html]

A secret treaty

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As the New York Times is reporting, there is currently an international effort underway to negotiate a new treaty primarily aimed at protecting intellectual property.  And it is being done in secret.

Behind a veil of secrecy, the United States, the European Union, Japan and other countries are forging ahead with plans to coordinate an international crackdown on illegally copied music, movies, designer bags and other goods that change hands in sidewalk souks and Internet bazaars.

Negotiators, under intense pressure from media companies, luxury brands and other corporate victims of piracy, are scrambling to complete a so-called Anti-Counterfeiting Trade Agreement by the end of the year.

But the process is running into growing criticism from Internet campaigners, lawmakers and even some people involved in it.

Since when is it good policy to negotiate law in secret and primarily for the benefit of private parties rather than sound policy reasons? One of the possible approaches apparently being considered would mandate some sort of regulations that would require ISPs to disconnect customers who content provider claim have engaged in illegal file sharing. Where is the due process? Why isn’t this just a way for a private industry to get law enforcement for its own protection for free?

More from the EFF, Public Knowledge and James Love.

Copyright: Dead man walking?

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Yes, according to Lauren Weinstein:

As I type this text, I’m listening to old tunes on imeem in the background. In case you haven’t being paying attention recently to the Media Piracy Wars, imeem is perhaps the best demonstration to date that the RIAA and record labels have already capitulated — a fate likely to follow in relatively short order for all other media that can be easily digitized. Right now I’m playing a stream of Animals classics — with “We Gotta Get Out of This Place” spinning at the moment (as it happens, long my theme song).

The imeem site, among various other fascinating features, legally allows you to play — in their entirety — pretty much any single or album track you’re likely to care about. Rock, classical, pop, novelty, soundtrack — whatever, it’s a seemingly bottomless box. OK, there are some exceptions, but I have to try pretty hard to find selections that aren’t available.

While in theory you can only play (not download) the tracks for free, there are of course a variety of ways to capture such audio content, in either analog or digital domains. Even postulating the unlikely government mandating of draconian content control mechanisms (like crippled A/D converters, analog tagging blocks, and other similar creepy crawlies) trying to prevent the essentially unlimited transfer of digitized media materials between private parties is already a lost cause.

And while most of the arguing to date has been over illicit media exchanges (e.g., via P2P networks) — it seems inevitable that ultimately motion pictures will follow a similar path to that of music when it comes to pretty much universal legal free online access in some form — after all, from a digital standpoint, the only real difference is the much larger number of bytes, and that’s decreasingly a practical problem. Books and other written materials may likely follow the same course in due time. Software packages have achieved some protection when tightly tied to individual computers through online registration systems, but pushback from users, non-copy-protected applications, and open source packages are increasingly impacting this arena as well.

Back in YouTube and Google Book Search: Pain, Delight, and Copyright, I suggested that technological change was “diluting” the concept of copyright.

I’ll now go one step farther. Copyright — for most practical purposes — is effectively dead. Now, that doesn’t mean that the slowly moldering corpse of copyright won’t be with us for quite some time in various forms. Copyright concepts will maintain their value longest as mechanisms to prosecute illicit commercial exploitation of associated media, but as a tool to prevent or control mass distribution, the coffin nails are being hammered in more deeply with every passing day.