Today I noticed an editorial by founding member of the Eagles, Don Henley asking for the passage of the PROTECT IP Act currently stalled in the U.S. Senate.

The basic of idea of the PROTECT IP act is that the Attorney General or private intellectual property rights holders can ask the court to issue an injunction against foreign “rogue” sites whose primary purpose is to engage in intellectual property violations. When such an injunction is granted, search engines, Internet providers, credit card companies, and ad networks would be required to cut off all access to these sites.

There are perhaps some arguments to be made for such an approach, but Henley doesn’t seem to find them. Instead, he seemingly wants to engage in dramatic hyperbole. He begins with a claim that foreign websites trafficking in “American arts and entertainment products” cost the U.S. 58 billion dollars annually and 373,000 lost jobs, with 16 billion dollars in lost earnings and 2.6 billion dollars in lost tax revenue. Wow! That does seem serious.

But where do these numbers come from? Apparently from this study this study by IPI.org. These numbers are apparently drawn from a study which examined data from 2005. But where did they get these numbers? By numbers which are for the most part reported by industry groups that represent rights holders, rather than by any actual statistics on piracy costs. For instance, the IPI study highlights numbers from the Business Software Alliance, a group which has been widely criticized for methodology which exaggerates the cost of infringement on copyrighted software.

But we could argue about what those numbers are all day. I’m not going to really try to argue them because I doubt any meaningful numbers exist. I certainly have none that I would propose.

What is really disturbing is that it can’t possibly work. The PROTECT IP Act requires that DNS servers and search engines remove the information and routes that would allow American citizens to reach these foreign infringing websites. In other words, it requires them to censor websites. And in the words of John Gilmore,

The Net interprets censorship as damage and routes around it.

If domestic name servers start to censor individual websites, all we will have done will be to create a market for offshore name servers and search engines which aren’t censored. The Internet is supposed to allow every end point to talk to every other end point. That is what it is for.

This article lists eight different ways to circumvent the PROTECT IP Act. It’s easy. Really easy. Provide incentive to anyone, and it will be even easier. It’s not like every downloader needs to be smart. As Mike Godwin said, all you need is one smart cow, the rest will follow him out the open gate. It’s not clear that the PROTECT IP Act will recover even a single dollar of lost revenue, or create one job.

Unless of course, you consider the government jobs it creates. The Congressional Budget Office estimates that enforcement of the law will cost about $10 million annually, and will require the Justice Department to hire 48 people. It should be noted that this does not include the cost to tech companies for whom compliance with the Act is simply an expense.

But what really irks me about Henley is this paragraph:

Critics of this pending legislation need to be honest about the company they keep and why they essentially aid and abet these criminal endeavors. The Electronic Frontier Foundation (EFF), a civil liberties group, claims such a bill would “break the Internet,” while Google Executive Chairman Eric Schmidt says it sets “a disastrous precedent” for freedom of speech. No one has the freedom to commit or abet crimes on the Internet. Stopping crime on the Internet is not, as EFF says, “censorship.” There is no First Amendment right to infringe intellectual property rights.

It begins with an intended slur: if you object to the PROTECT IP Act, you are aiding criminals, as if there were no reason to object to it. You could object to it on the grounds that the MPAA and the RIAA have consistently misrepresented their losses. That they have continued to successfully lobby for increasingly expansive and draconian remedies against infringers. That legislation like the PROTECT IP Act do signficant damage to fundamental principles like “presumption of innocence”, “burden of proof” and “freedom of speech”. And from my view, that it cannot possibly work without creating greater damage than it prevents.

Google CEO Eric Schmidt said it thusly:

“I would be very, very careful if I were a government about arbitrarily [implementing] simple solutions to complex problems,” he said. “So, ‘let’s whack off the DNS’. Okay, that seems like an appealing solution but it sets a very bad precedent because now another country will say ‘I don’t like free speech so I’ll whack off all those DNSs’ – that country would be China.

“It doesn’t seem right. I would be very, very careful about that stuff. If [the UK government] do it the wrong way it could have disastrous precedent setting in other areas.”

In the United States, we are supposed to consider even bigger issues than money and jobs.

Don Henley: Internet theft is a job-killer, too – USATODAY.com.

Sigh. The Ninth Circuit Court of Appeals handed down a decision on Friday that says that software makers can use use licenses (in particular, shrink-wrap and click-wrap licenses) to keep you from legally reselling the software that you bought.

In other words, they just gutted the first-sale doctrine.

Guess What, You Don’t Own That Software You Bought

The somewhat poorly thought-out aspect of this ruling is that there is absolutely nothing keeping people from preventing any copyrighted work from resale on the used market. If you merely ship your book in a wrapper which includes a license agreement, you could be charged with copyright infringement for selling that book.

The EFF had this write up on the principle.

Wow. It’s hard to comprehend just how bad an idea plotlines patents actually are. I think I’ll need a bit more coffee before I could even attempt to try. Still, there is little doubt that intellectual property law is heading toward a precipice.

Some particularly good quotes from Andrew Knight’s justification for plotline patents:

There is little fear that artistic creation will be halted due to the enforcement of patent protection newly applied to artistic inventions. … In fact, most artistic concepts today are very old–which is precisely the problem that must be remedied by patent protection for artistic inventions. Unless patents on artistic inventions are upheld and enforceable, the great artistic minds of the day will be compelled to continue composing predictable love songs for pop stars and slightly altered dialogues for carbon copied movie plots.

Really? Does that make any sense to anyone?

There is currently little motivation for artistic inventors to innovate new plots, themes, and methods of expression.

Boggle!

A patent system that sanctions and defends patents on artistic inventions, such as new and nonobvious plots, will spur an array of never-seen-before, never-experienced-before, intellectually inspiring forms of entertainment. A patent system that lethargically clings to an as-of-yet unarticulated rule that artistic inventions are not patentable subject matter because they are not closely enough related to a mechanical gear or an electronic integrated circuit will guarantee our nation the same repertoire of mind numbing movies and dime-a-dozen boy bands.

I can’t help but think that this is merely the absurd argument which demonstrates the vacuousness of
software patents.

Well, I haven’t had a chance to read the ruling yet, but it appears that the SCOTUS has unanimously gutted the Sony decision and made software companies potentially liable for infringing uses of their software, regardless of whatever significant non-infringing uses their might be.

I’ll post again when I have something in the way of analysis.

Addendum: I’m probably overreacting by claiming it gutted the Sony decision. My initial skim of the decision has only served to confuse me on what practical importance (if any) today’s decision had. It definitely seems to make companies which promote copyright infringement to be dangerous to fund, but I’m not sure it goes beyond that, and it is far from clear that even a company like Grokster would qualify.

Addendum2: The best discussion I’ve found so far was here, on the SCOTUSblog.

Congressman Rick Boucher is a rare animal indeed: a man looks at the bigger picture of intellectual property and tries to determine the appropriate balance intended by the founding fathers in creating patents and copyrights. I first became aware of the Congressman when he guest blogged on Lawrence Lessig’s weblog, where he showed surprising sense. He has written a guest editorial for news.com, where he suggests that in exchange for enacting the FCC’s Broadcast Flag rule, Congress should restore fair use rights which were destroyed by the DMCA.

Hmmph.

I can’t help but think that this is a bargain with the devil. The DMCA should never have restricted the fair and unregulated uses of copyrighted material. It was a travesty: one that robbed the American people their rightful property. I’m not sure why Congressman Boucher thinks that we should pay for giving back a right which never should have been taken.

And make no mistake: the Broadcast Flag does nothing for consumers. In the page I linked above, Congressman Boucher claimed to fear a culture where everything was “pay per use”. That is precisely the kind of world that the Broadcast Flag is designed to create. The Broadcast Flag is an annoyance to consumers. It means that transferring your time shifted video from your TiVo to your PDA will be a hassle. That transferring it to your Unix box will be a bigger hassle.

When Mr. Glickman says:

“So why should I care about a so-called broadcast flag regulation? The answer is simple. I want to make certain that the American people will continue to have the opportunity to see our movies and television shows on free television in the digital age.”

First of all, just where is this “free television”? I live in the bottom of a valley, so over the air broadcasts are basically impossible. I pay $45 a month or so for my traditional analog cable from Comcast. I don’t have free television, and as time goes on, fewer and fewer Americans do.

Next, there is currently no broadcast flag, and yet there seems to be no shortage of programming. One could, of course, make claims as to its quality, but one presumes that there could be only a single reason for not having better programming: the almighty dollar.

Really, what Mr. Glickman is saying that “if we made more money, we could create more programming, and the Broadcast Flag will enable us to make more money.” Glickman expects us to sign off on this, and we will see this new programming as a result. It sort of reminds me of the ideas that were floated early in the early days of Cable TV. “Pay us, and you can have fewer commercials!” they said. Uh huh. We all know how that worked out.

Giving teeth to the FCC Broadcast Flag resolution in exchange for restored fair use is basically robbing Peter to pay Paul: it doesn’t really make any sense.

I recognize you are one of the “good guys”, Congressman Boucher, but I think you can come up with a better idea than this.

Although, perhaps no better compromise.

Ars Technica points us at both an article from The Economist which questioned the accuracy and methology of the BSA in determining of piracy to businesses, and the terse and unresponsive reply from Beth Scott of the BSA.

Reproduced here in full:


SIR —
Your article on software piracy was extreme, misleading and irresponsible ("BSA or just BS?", May 21st). The headline was particularly offensive. The implication that an industry would purposely inflate the rate of piracy and its impact to suit its political aims is ridiculous. The problem is real and needs no exaggeration.


Piracy probably is a problem for businesses. The question is: how much of a problem is it? In the BSA’s world, every pirated copy of software is a lost sale. They, like the MPAA and the RIAA, don’t realize that software, like movies and music, are incredibly elastic commodities. If faced with actually having to buy them for current market price, most people would simply do without rather than pay for them. In strictly economic sense, this severely limits the potential losses. It’s like saying that if you doubled tolls on the Bay Bridge, you’d make twice as much money. What really would happen would be that less people would travel over the Bay Bridge. Effects on actual revenue are considerably harder to predict.

I don’t support piracy, but the BSA is full of BS.

Xeni Jardin filed a story for Wired on the installation of spy cams funded by the MPAA. These cameras monitor a couple of alleys and feed directly to the LAPD’s Central Area station. Are these cameras there do detect assaults? Robberies? Drug trafficking?

Nope, illegal bootleg DVD sales.

Read the article. Does anyone think that the movie industry is losing substantial money to these poor quality bootlegs?

Dan put me onto Turtle’s 78 RPM Jukebox, a site which contains some very nice recordings of old 78 RPM records which are in the public domain. Some very cool stuff, but it contains the following puzzling disclaimer:

All original recordings are understood to be in the public domain.
All selections in this jukebox are the sole property of Turtle Services Limited.
Each contains a unique signature.
Enjoy each for your personal pleasure but do not use any for a commercial purpose!

If something is in the public domain, you can’t put any restrictions on its use. From the Copyright FAQ:

Where is the public domain?

The public domain is not a place. A work of authorship is in the public domain if it is no longer under copyright protection or if it failed to meet the requirements for copyright protection. Works in the public domain may be used freely without the permission of the former copyright owner.

You can’t claim that a work is in the public domain and then turn around and pretend like you have copyright on it without creating a new derivative work out of it. The courts have pretty consistently upheld that mastering old material into new formats does not qualify because typically such transcriptions involve purely technical as opposed to artistic decisions.

Nolo has an excellent book on the subject that can help educate you on issues relating to this.

Addendum: To back up my claim, check out this page, section 496.03(b)(2) Noncopyrightable elements for a list of modifications which do not justify the claim of copyright.

Dan Glickman, CEO of the MPAA has an editorial running on news.com entitled: Why the broadcast flag should go forward. I urge you to go read it and think about it.

A federal appeals court ruled that when the FCC mandated that all manufacturers of digital video equipment must implement and support the use of a Broadcast Flag by July 1 of this year, they considerably overstepped their powers granted to them by Congress. The FCC took the rather shocking stance that there powers are implied, rather than enumerated by Congress, and that they were free to effect mandates without legislative oversight, permission, or the involvement of the public.

The court naturally held a dim view to this interpretation, and rightly struck down the Broadcast Flag requirement, stating that the FCC did not have statutory authority.

Of course the MPAA is in support of this legislation. Despite Glickman’s claim that this is to “protect the magic of the movies”, it is really quite simple: they want to limit the ability of the public to trade in what they view as their property. For decades, individuals have had the right to record programs and play them back at a later time, or to send these tapes to their friends who may have missed them. They have had the right to record them and amass large tape libraries of shows. The MPAA views this as potential lost revenue, and they want it to stop.

Glickman says:

Our companies want to continue to show their movies and television shows to viewers who don’t or can’t subscribe to cable or satellite systems. But without the broadcast flag, that option will look less and less appealing.

By “less appealling”, he means “we will make less money”. This strikes me as similar to the arguments presented before the Sony case. “The videotape recorder will end movies.” “The entertainment industry will go bankrupt!”

The entertainment industry thought that the glass was half empty. In fact, it wasn’t just half full, it was entirely full. This FUD surrounding the broadcast flag is just more of the same.

Microsoft is sponsoring a short film competition in the UK entitled Thought Thieves on the subject of intellectual property theft.

Thought Thieves is about people stealing and profiting from your creation or innovation. Think about it: how would you feel if you saw your hard work being passed off as the property of someone else? What would you do?

There are two categories: 14-17 year olds, and 18+.

Submissions are limited to 45 seconds or less, presumably because intellectual property law is straightforward and uncontroversial.

I wonder if any of the entries will touch on any of the following topics:

• The difference between copyright infringement and theft.
• The founder’s idea that the grant of copyright and patent monopolies exist to promote the useful arts and sciences, and that they be limited in duration.
• That technological innovation has always lead to periods of extended discussion and compromise.
• That the doctrine of fair use exists to protect individuals who use works in a limited way.

Somehow, I suspect the films will be considerably less subtle in their treatment of this topic.

In a two-fer that illustrates that all is right with the world, the A’s managed to beat the Yankees 6-3 in the 10th by mashing on Mariano Rivera, and the DC Circuit Court of Appeals unanimously struck down laws which enabled the FCC to mandate the Broadcast Flag. They found that the reasoning of the FCC (that they had broad powers in areas previously unregulated) was extraordinary and unconstitutional. The court found that any powers granted to the FCC had to be explicitly conferred by Congress.

Good one.

To reinforce the idea that the not everything is right with the world, it seems like national ID cards are going to happen because the Real ID Act legislation was attached to an appropriations bill for operations in Iraq. Sigh.