Fighting the IP Mafia

Intelectual property issues

A Not-So-Brief History of DNS Blocking — And Why It Sucks

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I suppose I’m getting old. I cannot believe that the intellectual property lobbyists (or, as I affectionately refer to them, the “IP Mafia”) have once again trotted out their Holy Grail of blocking websites at the domain-name level. More mind boggling, I cannot believe that this idea gets more popular with policymakers over time, despite the fact that DNS blocking would do far more widespread damage to our overall economy and communications infrastructure today than it could have done back when the IP Mafia, the anti-pornography crusaders, and all the other would be censors of the Internet first floated it in the late 1990s. Part of the problem, of course, is that the vast majority of people (lucky for them) never had to sit through the endless iterations of this for the last fifteen years. Hence, the endless repetition by “serious” white-haired guys who just happen to work for the largest content companies who have not updated their talking points since the late 1990s and rant about how this ‘gosh-darned Internet is full of lawlessness and by-gum we gotta do something con-sarnit.’

So please forgive yet another old geezer his wander down memory lane on DNS blocking and why it builds a massive security hole into our underlying broadband infrastructure. For those playing at home, this is why the vast majority of the cybersecurity establishment in the United States is having serious heebie-jeebies about PIPA/SOPA. Sandia National Laboratory is not exactly a hotbed of piracy, and former Bush Admin Cybersecurity Czar Stewart Baker is hardly part of the “information wants to be free” crowd. They are freaked out because the proposal builds a permanent hole in our broadband infrastructure and invites every identity thief and Iranian hacker to come in and do their worst. Which means that even if we totally 100% believed the Hollywood lobbyists about the legal intent of the law, building the capacity to do DNS blocking compromises security for everyone. Because once the capacity is built in to the system, it will get hacked and exploited. So while we are sitting here in the dark because some hacker crashed our electric grid, or trying frantically to chase down every identity thief who redirected our credit card information from Amazon.com, we can console ourselves that Congress never intended for this to have any domestic impacts.

More below . . .

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The Internet Is For Porn — House of Representatives Version

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Based on this news report, it would appear lots of member offices in the House of Representatives are using BitTorrent to download lots of infringing material. Including, not surprisingly, porn. Now we know why SOPA supporters are convinced that the only use for peer-2-peer and cloud services is piracy and porn. It’s what they use it for.

Inspired by Rep. Jared Polis’ inclusion of the lyrics of the “Internet is For Porn” from the musical Avenue Q in the record during the SOPA mark up, I bring you the fair use parody below . . . .

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Why Does the US Trade Representative Keeps Trying To Piss Off Our Trading Partners?

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Everyone talks about promoting our exports and hooking in to the emerging economies as the means of leveraging our economic blahs. With Americans consumers still considered the walking dead, and likely to remain so for some time, anyone hoping for job growth and overall improvement in the American economy recognizes that we need to get other countries to buy our stuff.

Unfortunately, someone seems determined to piss off our potential trade partners. Worse, that “someone” is the office of U.S. Trade Representative (USTR), the folks in charge of getting trade agreements negotiated and boosting trade. If that seems odd, take a look at the most recent Special 301 Report (aka “the IP Naughty List”) released by the USTR at the end of April. Pretty much everyone we want to trade with is on either the “naughty” or “very naughty” list. True, some countries, such as Russia and China, appear genuinely naughty — in the sense that massive wholesale counterfeiting and infringement appears to be going on while the governments appear relatively uninterested in enforcement. But a large number of other countries — Canada, Israel and Brazil, to name a few — appear on the list because they failed to modify their laws to suit the demands of the U.S. pharmaceutical industry and the U.S. entertainment industry.

My colleague at Public Knowledge Rashmi Rangnath, has written up a general summary of what USTR got wrong (again!). I want to focus here on how this fits into a creeping systemic problem with USTR’s approach.  While the U.S. remains a strong market, we no longer rule the roost. The time when we could simply dictate to other countries what we expected of them and could force them to amend their constitutions, sell off vital natural resources, and dance for our amusement as a condition of getting access to our markets are pretty much over. You would think after holding up ACTA for three years trying to get other countries to adopt the MPAA’s wish list and then finally being forced to cave at the end would have impressed this point on the good folks at USTR, if not on the utterly uneducable lobbyists that make up the vanguard the IP Mafia. Alas, to judge by the USTR’s conduct here, USTR still lives in a fantasy-land where it can snap its fingers and the world hastens to do our IPR bidding. Anyone hoping for a more sensible approach in the negotiations around the Transpacific Partnership Agreement (TPPA) should prepare for disappointment, which is bad news for all those businesses hoping for a trade deal with some of the world’s fastest growing economies.

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Protecting The Future of 3D Printing, Don’t Let the IP Mafia Rob You of Your Right To A Replicator.

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My colleague Michael Weinberg at Public Knowledge has written a truly awesome piece on 3D Printing and how folks should organize now to prevent the IP Mafia from screwing it up. You can see the full white paper here.

For those unfamiliar with it, 3D printing is the closest thing yet to the Star Trek replicator. You place a physical item in the machine and the machine makes a replica. As explained in the article, we are now at the point where 3D printing can replicate devices with moving parts. You can get a lot more info on 3D printing on PK’s issue page. There are a lot of very obvious advantages to this technology and many potential cool applications — especially as the technology advances. It also challenges a lot of business models and assumptions based on existing copyright, trademark, and patent law.

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DC Gives Hollywood A Little Holiday Pick Me Up To Show They Care — With A Surprise SOC Ending.

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The Copyright Mafia have certainly been feeling needy recently. Maybe it’s all that talk about how wonderful broadband access is — with all the awful piracy it creates — clouding out how movies made record breaking profits this year. Maybe it’s because the London Times linked to studies that show that musicians (but not labels) do better in a world of file sharing. Maybe it’s just the sadness of winter time and the end of a decade in which PK managed to hold off nearly all the awful legislation the Copyright Mafia proposed. But whatever it is, Hollywood has been saying to it’s friends in DC “hold me,” and their DC friends have been ready to oblige.

But what caught my attention was not just the usual round of festivities by Democrats to reassure Hollywood before an election year that “we love you like no other, don’t pay that foolish broadband stuff no mind.” No, it was the surprise statement by Professor Chris Yoo that if the FCC gave Hollywood a waiver so it could shut off your television’s analog outputs (what we call in this biz Selectable Output Control or SOC), it would help stop live sports piracy?

Funny, whenever we say to the folks at the FCC (or anywhere else) that Hollywood wants to control analog outputs generally and that after they get a “narrow waiver” for releasing movies to VoD earlier than they do on DVD, they will come after live sports events, the MPAA does that eye-rolling thing where ya know, whacky info commies and their crazy conspiracy theories about how big bad Hollywood wants to control everything and the FCC staff get those fixed smiles on their faces that anyone who has ever dealt with teenagers will recognize as the “I’m stuck sitting here pretending to listen until you go” look.

So to have Yoo come out and — apparently unprompted and after a hearing that had nothing whatsoever to do with SOC — come out and say “yeah, the FCC ought to waive SOC rules for live sporting events, because everyone knows analog outputs are just STRAWS OF PIRACY SUCKING THE LIFEBLOOD OF THE CONTENT INDUSTRY INTO THE GREEDY CRIMINAL MORASS THAT IS TEH INTERWEBZ” kinda grabbed my attention. As I always tell my critics — if I’m delusional, it seems to be a functional and prescient sort of delusion.

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Now Associated Press Has A Plan So Cunning Even They Don't Know How It Works. (Updated)

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It seems every now and then I see some company or organization that finds itself challenged by the fact that the internet gives people lots of interesting alternatives and thus upsets traditional business models. This prompts said company to flail around for a bit, denouncing how piracy or whatever is unfairly destroying it, then announcing some stunning new proposal or plan that lashes out at this supposed piracy. Usually, since the problem is not “piracy” but “competition,” this plan makes no sense whatsoever.

As I noted previously, the newspaper industry generally is flailing around and proposing all kinds of foolish things rather than figuring out how to adapt and thrive in new market realities where people and advertisers have a very different set of choices and the days of 20% profit margins are gone. The Associated Press is the latest organization to jump off the deep end. AP believes that by setting up a “beacon” system for its content it can require everyone “stealing” its content to pay royalty fees.

There are several problems with this scheme. First, the article does not make clear whether it tries to cover linking as “using content” for free. I’m not sure that it could, nor does it make sense given their theory of “piracy.” If I link to an AP story, I haven’t copied anything and clicking the link actually brings people to the content — the desired result from AP’s perspective. Nor can the AP prevent me from describing an AP story even without a link. Heck, many of my local radio stations do this with my local newspapers, simply summarizing articles with an attribution. So if the object is to prevent people from linking to AP articles, or discussing AP articles (the “free ride” that so incenses the traditional news media and its defenders), this proposal really doesn’t seem likely to help.

The AP can prevent wholesale copying of its articles where the amount copies exceeds fair use. But, as the article linked to above points out, the AP already uses software to do this. The new system may make it easier to license AP works (a result I would heartily support — AP should use technology to make it easier to monetize its content with license fees for reprints), but the description seems to go well beyond that. Either I am dramatically underestimating the number of websites that reproduce significant amounts of AP content over and above linking and simple descriptions of stories (which is certainly possible), or the technology dramatically lowers the transaction cost of licensing content and thus makes collection of license fees easier, or this fails to strike at the real root of the problem — people have lots more options for news.

Ultimately, it is this last point that has me scratching my head about how the AP expects this to work. If the AP locks up its content, I can find lots of other news content. True, AP might be “better” — although modern reporting leaves me dubious. But the ability to access, debate and discuss news far outweighs any marginal superiority in quality AP can claim over other outlets (which include many traditional news outlets with high quality reporting) that provide accessibility.

There is a delightful historic irony here, in that AP was to some extent the product of the last revolution in telecommunications. Ubiquitous telegraph service made it possible for small news organizations to have the same reporter resources as larger operations by sharing costs among their members and leveraging local reporters. Finally, papers in small towns and on the frontier could run the same stories as the NY Times or the London Telegraph, reporting news from around the world thanks to a global communications network. Larger papers, which had traditionally held a huge advantage from their superior ability to send reporters to distant sources of news and receive faster reports, found they had to join the AP themselves or risk missing important stories covered by the AP’s superior network of on the ground reporters already present as news developed.

AP should learn from its own past and adapt to the future, rather than trying to fight the future and cling to the past. AP and other news media need to work on how to leverage the advantages of a global communications network that allows for distribution of news reporting resources rather than chasing phantom “pirate” gold.

Stay tuned . . . .

Update: This article in Columbia Journalism Review clarifies that the intent is to go after those who are doing wholesale copying, rather than those linking or quoting. As I said above, good for them. I hope that the program in question actually provides some data on how widespread this practice really is. Given the tools that already exist to find direct copying, I’m not sure how this new beaconing adds value.

Comcast & AT&T Apparently Smart Enough To Resist RIAA Invitation to Slit Own Throats.

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As I’ve observed before, the IP Mafia have absolutely the worst judgment imaginable when it comes to their agenda. Now, the people who tried to kill the VCR, have just about killed internet radio, and who have sued dead people and sick children, have hit on another winning plan — using ISPs as enforcers.

Once upon a time and long ago, ISPs understood why it was important to be a common carrier and have no liability for this. That was why Congress included Section 230 and the “Good Samaritan” provision in the 1996 Telecom Act. It boils down to “when you act like a dumb pipe and just pass stuff from one place to another, we will not hold you liable for what happens.” For the same reason (as Bob Cannon explains over here on Cybertelecom), Congress generally immunized ISPs and created the whole “notice and take down” scheme in the Digital Millenium Copyright Act.

But all that was before our ISP industry boiled down to a handful of companies that were also either big content producers or video distributors dependent on the good will of big content producers. Suddenly, from the perspective of the IP Mafia, a whole new world of possible backroom dealings opened up. A world in which a few companies could make policies that would cover nearly the entire high-speed access market, and where they either shared common interest with the IP Mafia or could be “persuaded” to do so by threatening to withhold needed video content.

And so, the MPAA and RIAA walked right into my cunning trap, the fools! Alas, turns out Comcast and AT&T were too clever for me.

More below . . . .

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Broadcast Flag Through The Back Door — Yet Another Episode of “Outsourcing Big Brother.”

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The Motion Picture Association of America has asked the FCC to give it a waiver of something called the “selectable output control” rules for cable boxes. As usual, this apparently minor request for a waiver of an obscure FCC regulation of unknown origin, governing a highly-technical and mind numbingly boring set of rules about cable set-top boxes, hides a bold power grab designed to rip off every owner of a Tivo, VCR, or other perfectly legal recording device available to consumers to engage in the legal practice of recording television programs to watch them later (“time shifting”).

For details on this latest effort to circumvent limits on government by outsourcing the process to an industry cartel, aka “outsourcing Big Brother,” see below . . . .

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MPAA Suffers “Intelligence Failure” On Piracy, No Weapons of Mass File Sharing On College Campuses

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“We have also learned that college students have used university networks to download 40% of all pirated movies, while eating yellow cake (aka ”Twinkies“).”

— Dan Glickman, CEO of the Motion Picture Association of America (MPAA), Testimony Before the House Wholly Owned Subsidiary Subcommittee on Intellectual Property

As some of you may know, the MPAA ad RIAA have been pushing their wholly owned subsidiaries in Congress to pass rather draconian laws against those vile dens of vice and iniquity, colleges and universities (Or, as RIAA President Mitch Bainwol explained: “never will you find a more wretched hive of scum and villany.” He was promptly sued by ally MPAA CEO Dan Glickman). They have justified this on the basis of a 2005 report Commissioned by the MPAA and created by
LEK Consulting Services that purported to show that an astonishing 40% of industry loses from internet piracy could be traced to file sharing at universities. Because the MPAA refused to share either the methodology used or the underlying data, a number of folks expressed a healthy skepticism about this evidence. Nevertheless, a credulous Congress accepted this as “credible evidence” of a “weapons of mass file sharing” in our nations colleges and universities, and sought to impose heavy sanctions and possible invasion by federal troops.

The MPAA now admits it overstated the numbers a wee bit. According to this story, it turns out that the real number even using the data and methodology approved by the MPAA and LEK was 15%, not 40%. Further, as Mark Luker at EDUCAUSE points out, since the number was based on college students without regard for whether the activity took place on campus, the real number of files traded illegally over college networks is more like 3%. (And again, that’s based on the MPAA’s numbers and methodology as now disclosed, not confirmed by independent evidence).

Members of Congress — who uncritically accepted the MPAA’s previous statistics despite the lack of any corroborating evidence, the refusal of the MPAA to disclose its data or methodology, and the utter ludicrousness of the number to anyone who actually knows anything about file transfers and the amount of bandwidth and computer powering it would take to even come close to the numbers MPAA estimated for college campuses — expressed surprise at the disclosure. “Wow,” said a Spokesman for a Senator from California who has vigorously supported the sanctions against colleges when she can take time away from supporting immunity for telephone companies who secretly spied on Americans based on Administration insistence this was “necessary for national security” and who voted to authorize the war in Iraq based on intelligence reports and statements by the Bush Administration that later proved to be filled with outright lies, questionable data, and utterly ludicrous statements questioned by the vast majority of reputable experts. “Who would think we’d fall for this again?”

Nevertheless, both California Senators and a majority of the California delegation to the House issued a joint statement that while the MPAA and RIAA evidence continues to turn out to be total self-serving bunk, support for a raft of bills that would curtail fundamental freedoms and cost tax payers billions in both direct costs and lost productivity remained strong. “We will continue to support whatever means prove necessary to end the scourge of piracy that do not impact the monopoly profits of the entertainment industry for as long as the threat against this industry — which produces more of our home state’s jobs and revenues than you could possibly imagine — persists,” said the statement. “Sticking it to colleges and universities seems like a good way to do that even without any real evidence that it will help.” The statement was pointedly not joined by Rep. Zoe Lofgren (D-CA), who, in a separate statement, pleaded with her colleagues to “please get a Goddamn clue already” And to “stop embarrassing me, the State of California, and the Democratic Party.”

The MPAA blames the gross overstatement of internet piracy on college and university campuses — which it pushed aggressively for the last two years — on “human error.” The MPAA has promised a thorough investigation to determine what has went wrong. “We take this error very seriously and have taken strong and immediate action to both investigate the root cause of this problem as well as substantiate the accuracy of the latest report,” the group said in a statement.

In an unrelated item, the MPAA announced it would give LEK Consulting, which created the 2005 Report, the coveted “Oscar of Freedom” at this year’s Academy Awards.

Stay tuned . . . .