The people who sit on this kind of power hold the power of narrative. They hold the ability to literally dictate truth from lies. If you are able to determine and describe the problems that society must solve, and perhaps even how to solve them, you hold the greatest power of all.

Some people, when faced with this thought experiment, think in terms of affecting public opinion on some favorite issue. Those who are a little more daring think in terms of getting rich. But it doesn’t stop there, far from there. If you held the power of narratives, you wouldn’t need money ever again in your life: you could be a god. You could quite literally be seen as a walking deity on the planet.

The ability to interpret reality and tell other people what is true and what is false is the greatest power that humans have ever held. The power of narratives.

In the Middle Ages, this power was held by the Catholic Church who interpreted the Bible in sermons all over Europe. The Bible was written in Latin, and you could even be sent into exile for unauthorized reading of that Bible in Latin.

The Church had no reason to fear any laws being made against their interest, for they controlled the entire worldview of the legislators. They defined the problems and they defined the applicable solutions.

In this day and age, some crazy guy named Gutenberg made it possible to bring Bibles by the cartload into the streets of Paris?. In French! Readable without interpretation! This tore down the church’s power of narrative like a house of cards under a steamroller.

In this, the Church saw themselves as the good guys and wanted to set the record straight, to prevent the spread of disinformation. They had learned that they were the carriers of truth and could not unlearn having this position. Thus, the penalties for using the printing press gradually increased all over Europe, until it hit the death penalty: France, January 13, 1535.

Yes, there has been a death penalty for unauthorized copying. Guess what? Even the death penalty didn’t work.

But as illustrated here, cracking down on the copying technology wasn’t really a matter of preventing copying. It was a matter of maintaining the power of narratives – the complete and total control over the world’s knowledge and culture.

Between the printing press and now, that power has been held by the operators of printing presses. They have observed, they have interpreted, they have retold the story of reality. Recently, the printing presses have received company from radio and TV broadcasts, but the model has remained the same: a small, small elite has determined what the world should know and how they should relate to the events going on.

The net changes everything.

All of a sudden, anybody can publish their ideas to the world in 10 minutes. And just like the Catholic Church, the previous powerholders of the narrative can’t deal with the situation this time around either, and see it as their job to restore order.

The gatekeepers of music – the record labels – are a very minor player in this game. It is much, much larger than that. The net redefines the entire previous classes of power. Those able to tell their story, rule. Those being arrogant enough to demand that people should just keep listening to them for no reason will lose their powers of influence.

Just like when the means of spreading ideas and information accurately, quickly and cheaply came along with the printing press in the mid-1450s, those who now hold the power of narrative are fighting the already-happened loss of their power of narrative with everything they have, and using any excuses they can think of. The actions are the same from every regime in the world – only the excuses differ.

In China, it is sometimes worded as “stability” or “morale of the nation”.

In some very religious Muslim countries, “sanctity of the Prophet” has been heard as motive.

In the West, it can be “terrorism”, “file sharing”, “organized crime”, and “pedophilia”.

Everywhere on the planet, the current regime – not necessarily meaning elected political leaders – choose locally acceptable excuses to crack down on the net. But the actions remain the same, and are aimed at preventing something much more fundamental.

The power for every person on the planet to observe, interpret, and tell their story is breaking the power of money. A fat bank account can no longer buy belief in a story. This equalization of humankind is something tremendously beneficial for about 99.99% of humanity – for the ones trying to destroy the net with every trick in the book are the very few that are being equalized downwards.

Just like in the 1450s. The more things change, the more they stay the same.

Source: The Net vs. The Power of Narratives

Pirates are ruining the industry and are the direct reason for the loss of thousands of jobs, they say. Better copyright protections are the solution, they conclude.

A recent example of this reasoning was displayed by MPAA boss Chris Dodd earlier this week at the CinemaCon meeting in Las Vegas. Dodd told the audience that copyright protection has always been vital to the US movie industry, and it’s copyright that has allowed Hollywood to thrive .

The MPAA used this to emphasize that the movie industry and the tech sector have a mutual interest in strong copyright legislation. Or put in his words:

The truth is that neither the content nor the technology industries could survive without strong protections for intellectual property.

Many of you are familiar with how the name Hollywood became synonymous with the birth of the American film industry. It was in Jacob Stern’s horse barn, at the corner of Hollywood and Vine, the story goes, that Cecil B. DeMille screened the first full length feature film 100 years ago.

Well, when it comes to the tech sector, replace “Jacob Stern’s horse barn” with “Mark Zuckerberg’s dorm room” at Harvard, and you have almost the same story with the birth of Facebook.

In these and countless other examples throughout our history, the ability to give birth to an idea and convert it into economic success, whether it is the content of a film or the technology of the internet, depends on copyright and patent protection

An interesting argument, but also an unfortunate one. Not only because Facebook’s Mark Zuckerberg has been accused of stealing the Facebook idea himself, which Hollywood turned into a movie recently. But also because it’s easy to argue that the American movie industry was built by copyright “thieves.”

In fact, Hollywood wouldn’t be what it is today if a bunch of rogue filmmakers hadn’t fled New York early last century. This “pirate” version of the movie industry history starts with one of America’s greatest innovators, Thomas Edison.

Little over a century ago Edison stood at the cradle of the filmmaking industry. He was the first to invent a device through which people could project film and obtained many movie related patents. To make money from his hard work he asked a licensing fee from those who were making movies with his technology.

This licensing requirement motivated a group of rogue filmmaking pirates to flee New York, including a man named William. They left for the then still wild West, where they recorded many films without a license until Edison’s patents expired. These pirates continue to do business there today in a place they named Hollywood. William’s last name? Fox.

So Edison got no money from these Hollywood pirates. While today’s Hollywood would be up in arms about this gross circumvention of intellectual property rights, we should mention that Edison himself wasn’t squeaky clean either.

In fact, in 1902 Thomas Edison himself copied “A Trip to the Moon,” a movie from Georges Méliès, without permission to show it in US theaters. This overt act of piracy eventually resulted in the bankruptcy of the French filmmaker.

The above shows that it’s not a stretch to argue that the movie industry was built by pirates. Or to put it in other words, if early 1900 filmmakers would have paid for their licenses, Hollywood would probably have never been built.

But you won’t hear that from the MPAA of course…

Source: MPAA Boss ‘Forgets’ Hollywood’s Pirate History

Sharing Is Caring

Yesterday a young lad asked me, “Dan Bull in the charts? Is this a ‘fuck off’ to the record industry then?”

Good question, I thought. What do I really want to say to the entertainment industry?

When I released my first album “Safe” in 2009, I sent it to record companies and radio stations but they ignored it. When I telephoned Q magazine with a story, they told me they couldn’t write about it because they only feature artists with record deals.

In frustration at the glass ceiling that independent artists face, I started to publish protest songs on YouTube. To my surprise, they got much more coverage. I was excited, but thought “What if the labels see my tracks? They’ll never sign me now!”.

At that point, I realised something; if they didn’t want me, then the feeling was mutual. I didn’t need a record label telling me what to do, how to do it, and then keeping 80% of the takings for the privilege. I had the internet and I had my brain.

By embracing the free flow of information the internet allows, through filesharing and social media, I’ve found a worldwide fanbase without leaving the house. I’ve collaborated with artists across the globe without ever meeting them, and I can chat to my supporters whilst lying in bed eating pizza.

None of that would have been possible without file-sharing. If I followed the copyright law that lobbyists like the RIAA and the BPI insist is in the interest of artists like me, I would have no musical career. If pro-filesharing sites like TorrentFreak and The Pirate Bay didn’t share my work with you, you wouldn’t be reading this. I owe a debt of gratitude to every person that has ripped, burned, copied and shared anything I’ve done.

Sites such as The Pirate Bay do more to help unsigned artists than industry lobbyists ever have. Projects like The Promo Bay, which devotes The Pirate Bay’s home page, free of charge, to any musician who applies, creates overnight success stories.

The Pirate Bay stands defiantly in the face of corporate bullies who tout such nonsensical non-sequiters as “if you copy files, artists don’t get money, and if artists don’t get any money, they will stop making art.” This is an insult to the millions of dedicated amateur artists around the world.

What’s funny is that I’d have more respect for major labels if they just admitted what we already know – their bottom line is nothing but profit. There’s nothing wrong with that; there’s no need to hide it. But there is a need to play fair.

Entertainment lobbyists want to have their cake and eat it – they accumulated massive wealth through exploiting a free market when the means to distribute recorded art was scarce. This scarcity no longer exists – the market has moved on; and now they’re fighting to enforce artificial measures which will recreate those fleeting economic and technological conditions which allowed them to flourish.

Art has always been about sharing, adapting, and re-interpreting what you experience. Our children deserve to grow up in a world where they can enjoy this freedom without the fear that a pack of corporate lawyers will circle in and extradite them overseas.

People born in the late 80s have now lived more of their lives in the 21st century than the 20th century. A new generation has arrived for whom sharing information online is as easy and reflexive as breathing.

This generation isn’t going away; it’s growing larger all the time and to them, defunct business models developed by greying monopolists are utterly irrelevant. But these kids aren’t freeloaders or criminal masterminds, they are normal, decent people. When they hear a song or see a video that they like, they’ll post it to Facebook; they’ll Tweet it. They might remix it, or poke fun at it. This very behaviour which big entertainment claims to be the death knell of creativity, is the same behaviour that I believe will make my single a success.

“Sharing Is Caring” is a satire on this age of instant communication. It’s about what happens when things go wrong, and whether we are using the power of online communication to its full potential. Hidden somewhere in the track you can hear me urinating on a printout of the Digital Economy Act.

There are three main versions of the song – each about a different social network (Facebook, Twitter and Google+). There’s also a dubstep remix by Benny Aves and a reggae-tinged reworking by Animal Circus. I’ve also provided instrumentals and acapellas for you to remix and re-imagine at will.

I invite you to download “Sharing Is Caring” for free. If you like it, and want to support the campaign, you can choose to buy it. Each version you buy will count as a sale towards the charts. There are ten versions in all, meaning a single person can create ten sales towards the charts.

The singles charts are worthless as an indicator of quality, and artists needn’t strive for the validation of reaching them. However, by taking a free song by an unsigned artist to the echelons normally reserved for the industry elite, I want to smash the glass ceiling and show that there is another way of doing things. We don’t need the protection of ACTA, CISPA or any other acronym. As long as our internet is free, creativity will thrive.

And so, to answer the original question – I’m not shouting “fuck off” to the entertainment industry.

I’m saying “excuse me, but I think you’re in my seat”.

Links to the torrent or paid version of “Sharing Is Caring” are available here.

Source: Dan Bull & Pirate Bay Attack the Music Charts With “Sharing Is Caring”

All of a sudden, the Pirate parties are making it possible to vote for the defense and enrichment of the connected lifestyle, which is relevant to the core for the net generation. Thus, because you can vote for it, by definition, it becomes politics – which it wasn’t before.

I guess that’s why it took a long time for me to reconciliate with the fact that i’m a politician. I grew up knowing that politicians are boring, pretentious and infighting. It is only with the expanded use of the word that it makes sense that fighting for civil liberties is, in fact, policymaking. And those of us who fight for net liberty have become politicians, as people can vote for us to… fix things.

Politicians have been de-pedestalized. And that’s good every part of the way.

I’ve understood that a lot of US readers misread me when I say that 9% in an election is a sensation. That’s because the United States and Europe have completely different election systems: in the United States, if you take 9% of the votes, you are crushed, down and out. In (most of) Europe, when you take 9% of the votes, you get 9% of the seats.

That’s why it is fantastic that the German Piratenpartei is polling at 13% and that several more are on the verge of breaking through.

I was struck at the meeting by how many new Pirate parties are on the rapid rise: Estonia, Lithuania, Poland, Greece, Slovenia, Slovakia, Serbia, the list goes on.

When I was at last year’s PPI meeting, I confided in some people that I thought we could approach 15% long-term. If somebody had told me we’d be there in 12 months, I would not have believed them. Would Not. Things are progressing much faster than I have anticipated.

As I held the closing keynote, I noted that two countries are currently polling at parliamentary levels – Germany and Austria – and made a bold prediction: one year from today, between two and five more countries’ Pirates will be polling at parliamentary levels, meaning they’d enter their parliaments if elections were held.

Czech media was everywhere during the international meeting. The Greek Pirates are polling at one percent, just three months after founding. PP Luxembourg is showing clear signs of making the next election.

And as I flipped open my Android netbook to write the summary of the meeting, I learned that the Austrian Pirate Party had just taken its first parliamentary seat, in the local election of Innsbruck.

This journey is great to be part of.

Source: Impressions From The Pirate Parties International Conference

Today the RIAA takes this notion back.

“The single most important anti-piracy strategy remains innovation, experimentation and working with our technology partners to offer fans an array of legal music experiences,” they now say.

The usage of the word “remains” is remarkable, since to our knowledge this is the first time the RIAA has admitted that innovation is more important than enforcement. But let’s not dwell on that for too long.

While the RIAA’s statement can be seen as a victory for those who in recent years spread the “innovate not legislate” mantra, it is tucked away in an article that spreads dubious claims and statistics on the effectiveness of copyright enforcement.

RIAA Vice President of Strategic Data Analysis, Joshua Friedlander, begins as follows:

“Although the impact of anti-piracy efforts often seem self evident to us, it’s important to see the real world effects, and we’re happy to see two new studies illustrating the value of these efforts in the marketplace.”

The first study highlighted by the RIAA shows that the French anti-piracy law Hadopi boosted iTunes sales. A highly controversial report, as the main conclusion is that the media buzz a year before the law went into effect was the single cause for this jump.

No third variables are seriously considered, and the authors fail to mention that digital sales actually went down in 2011, the first full year Hadopi was active. More on this in our full analysis of the report.

The second “study” isn’t really a study, but an attempt by the RIAA itself to show how effective the LimeWire shutdown was.

Using Nielsen Netview data the music group reveals that 9.5 million of the 14 million people who used LimeWire shortly before the shutdown, stopped pirating entirely. This also had a significant impact on the total number of US file-sharers.

“The Limewire shutdown affected the overall numbers of users of illegal content sources. The overall number of U.S. users of the illegal sites in September 2010 was 28 million, but that fell to 19 million by September 2011,” the RIAA writes.

In other words, the total number of US file-sharers dropped 9 million a year after the LimeWire shutdown (which is +0.5 million if we discount the LimeWire users).

So far so good, but what the RIAA fails to point out is that there’s absolutely no evidence that the drop is related to the LimeWire shutdown. We doubt it, and also have some numbers to show that RIAA’s conclusion may be completely bogus.

Let’s add two more data points that former RIAA boss Mitch Bainwol shared last year.

“The number of Americans engaged in illegal music consumption fell from roughly 30 million in May of 2010 to about 24 million in May of this year,” he said.

Combining the four points, we see that during the 4 months prior to the LimeWire shutdown the number of music pirates decreased by 0.5 million a month. The 8 months after the LimeWire shutdown this average is exactly the same, 0.5 million a month.

Interestingly, there is a larger drop between May 2011 and September 2011, a decrease of more than 1 million music pirates a month. Surely, that can no longer be a LimeWire effect?

What it is, we don’t know, but something happened last summer around the same time Spotify was introduced in the US…….

And that brings us back to the innovation part.

After all, we now agree with the RIAA that innovation is the best way to kill piracy – creative statistics and overbroad censorship clearly aren’t.

Update: Innovation was mentioned here as well.

Source: RIAA: Innovation is the Best Way to Kill Piracy

The problem recently is that civil servants, not politicians, have been tasked with upholding the copyright monopoly. These people are not only unaccountable, but also easily accessible to copyright industry lobbyists, and these civil servants provide background material to the actual decision-making politicians. And if you control the background material, you also control the decision’s outcome. Long story short, these civil servants don’t care about the costs to society of enforcing the copyright monopoly in a changed communications environment: it’s literally not their job.

If the issue had been properly politicized, then politicians would be forced to look at more than just the necessary methods for enforcing today’s monopoly laws – they would also have to look at the overall cost of society to using those methods, and simply question if those laws are really worth the sacrifices required to uphold them. This is the discussion that needs to happen on the political level, and which the Pirate parties are trying to make happen.

For when I send a piece of music in an e-mail to somebody, I typically violate the copyright monopoly. When I drop a video clip in a private chat channel, same thing. If I use some other protocol, maybe BitTorrent, same thing again. If you are to enforce the copyright monopoly in the connected environment, then you cannot do that without abolishing the right to private communications as a concept. And that’s exactly what the copyright industry is trying to do.

Let me explain. If there is a list of bitpatterns that are illegal to transmit – and such a list could indeed be constructed with today’s laws – then the only way to find those bitpatterns is to eavesdrop on all the ones and zeros that leave my computer, assemble them by protocol to analyze my communications in the clear, and then sort my transmissions into “legal” and “illegal”. But you can’t do this without breaking and abolishing the postal secret. There is no way to tell one from the other without looking at them in the first place. So, out goes the postal secret, the right to communicate in private.

At this point in the discussion, the copyright industry will complain that they only take action for the illegal bitpatterns found, and that there is no infraction on the right to legal communications. And in doing so, they put themselves in the exact same spot as the old East German Stasi, which also steamed open all letters sent in the mail – but only took action on those with illegal content, just like the copyright industry describes as their preferred scenario. Stasi, too, sorted legal from illegal, and left the legal alone.

With the loss of the right to communicate in private, we also lose several other important rights. We lose reporters’ right to protect their sources (since such communication happens in the same digitized private space). We lose a large portion of the ability for attorneys to communicate in private with their clients. These are considered cornerstones in the construction of checks and balances in the powers of our society, and yet an industry of entertainment middlemen expect to strike them out with a pen in order to uphold a crumbling distribution monopoly?

It goes even further. With a loss of private communications, you lose the ability to safely confide in people – the mere suspicion of somebody else eavesdropping on your communications will lead you to stay silent, in case the communication would later be used against you. (This effect has already been observed on a large scale: over half of the population are now thinking twice whether to communicate in ways that could later be used against them by a third party, regarding everything from contacting suicide helplines to divorce counseling.) So, without the ability to confide in people, you even lose your very ability to form an identity. How are you going to come out of the closet, for example, if you can’t talk to a trusted friend first?

The bottom line is that the fight for basic civil liberties and the fight against the copyright monopoly are one and the same. They are not two identical fights; they are one and the same fight.

When our parents sent a letter in the mail, they alone determined whether they wanted to be identified as sender, and nobody had the right to open the letter in transit just to check that the contents were legal. When our parents sent a letter in the mail or placed a phone call, they had an expectation of privacy – considered a fundamental human right. It is entirely reasonable that our children get the same rights – completely regardless of whether that means that an obsolete distribution industry will go out of business or not.

Perhaps the policy of FreeNet, the darknet project, worded most clearly how a copyright monopoly on today’s level simply cannot coexist with freedom of speech (my highlights):

“You cannot guarantee free speech and enforce the copyright monopoly. Therefore, any technology designed to guarantee freedom of speech must also prevent enforcement of the copyright monopoly.”

Source: The Fight Against Copyright Enforcement & The Fight For Civil Liberties Are The Same

Then late last weekend and out of nowhere came a gift. The Pirate Bay team put up a blog post declaring that the site would be hosted in the sky inside flying drones.

As Ernesto quite rightly pointed out to me, this kind of thing makes a perfect Sunday article. If i’m honest all I could think at the time was that the TPB boys had just returned home after a weekend-long hallucinogen binge and hadn’t had the good sense to keep off the keyboard.

“Being this connected to the ground doesn’t feel appropriate to us anymore,” a TPB insider wearing a glazed expression, bandana and a smiley-face t-shirt told TorrentFreak.

For those who follow the adventures of The Bay, these crazy stories are nothing new. During its life The Pirate Bay has been hosted in a Cold War nuclear bunker and was even destined to move beyond the law and onto a North Sea platform known as Sealand. If Peter Sunde hadn’t spent all the donated money on trees, Pirate Bay drones might have never been needed.

Nevertheless, despite it painting a fairly unlikely picture the drone story spread faster than a well-seeded torrent and was retold around the web dozens and dozens of times. Of course there were the usual Doubting Thomas writers and skeptical readers, but interestingly there were plenty of people discussing how it might be achieved. Several big publications even quoted experts who said that the idea is technically possible.

Yet again The Pirate Bay had done what it is very good at – firing people’s imaginations. Last week millions of people daydreamed about the possibility of tiny flying servers, each hovering tantalizingly just out of the copyright bogeyman’s reach. Those same people want to believe that The Pirate Bay will create its own laws inside its own floating nation. They positively love the idea of a defiant server fighting a digital war encased deep inside a nuclear bunker.

And the reason people are ready to suspend their disbelief and are willing to give these crazy ideas a chance is because The Pirate Bay continually does amazing things, things that really shouldn’t be possible.

The Pirate Bay’s founders have been sued into oblivion and ordered to pay millions yet not a penny has or will be paid. The theory is that soon they will go to jail, but given the site’s Houdini-like abilities one has to wonder if that will ever happen.

The site itself is absolutely huge and has remained so for nearly a decade. It was physically and completely dismantled only to reappear phoenix-like just a few days later. Everyone on the Internet can find the site yet mysteriously no-one knows where it is to shut it down. Even if it was found it would clone itself immediately and reappear tomorrow. It’s the beast that can’t be killed, the stuff of legends.

What The Pirate Bay does every single day is the impossible, and whether you love them or loathe them there can be few who don’t quietly admire them. Despite overwhelming odds they are still here, doing what they promised to do a decade ago and there just aren’t that many people around who are that reliable.

As a symbol of digital defiance, The Pirate Bay has no equal and its operators are perhaps the most inspirational maniacs the Internet has ever seen. So when they talk about hovering drones or pocket-sized personal WiFi proxies for all TPB users (oh, you haven’t heard about that one yet?) not everyone will believe them.

But the rebellious side in all of us will be intrigued nonetheless and will come to the conclusion that however unlikely the proposition, if anyone can pull it off, the inspirational maniacs at The Pirate Bay can. And even if only secretly, most people will be cheering them on.

Source: The Inspirational Maniacs Of The Pirate Bay

Having this gatekeeper position – having had this gatekeeper position – teaches somebody what power is, in the worst sense of the word. If you can determine what culture, knowledge, and ideas are available to people – if you are in a position to say yes or no to publishing an idea – then it goes much beyond the power of mere publishing. It puts you in a position to select. It puts you in a position where you get to decide people’s frame of reference. It literally gives you the power to decide what people discuss, feel, and think.

The ability to share ideas, culture, and knowledge without permission or traceability is built into the foundations of the net, just as it was when the Postal Service was first conceived. When we send a letter in the mail, we and we alone determine whether we identify ourselves as sender on the outside of the envelope, on the inside for only the recipient to know, or not at all; further, nobody may open our sealed letters in transit just to check up on what we’re sending.

The Internet mimics this. It is perfectly reasonable that our children have the same rights as our parents did here. But if our children have those same rights, in the environment where they communicate, it makes a small class of industries obsolete. Therefore, this is what the copyright industry tries to destroy.

They are pushing for laws that introduce identifiability, even for historic records. The copyright industry has been one of the strongest proponents of the Data Retention Directive in Europe, which mandates logging of our communications – not its contents, but all information about whom we contacted when and how – for a significant period of time. This is data that used to be absolutely forbidden to store for privacy reasons. The copyright industry has managed to flip that from “forbidden” to “mandatory”.

They are pushing for laws that introduce liability on all levels. A family of four may be sued into oblivion by an industry cartel in a courtroom where presumption of innocence doesn’t exist (a civil proceeding), and they’re pushing for mail carriers to be liable for the contents of the sealed messages they carry. This goes counter to centuries of tradition in postal services, and is a way of enforcing their will extrajudicially – outside the courtroom, where people still have a minimum of rights to defend themselves.

They are pushing for laws that introduce wiretapping of entire populations – and suing for the right to do it before it becomes law. Also, they did it anyway without telling anybody.

They are pushing for laws that send people into exile, cutting off their ability to function in society, if they send the wrong things in sealed letters.

They are pushing for active censorship laws that we haven’t had in well over a century, using child pornography as a battering ram (in a way that directly causes more children to be abused, to boot).

They are pushing for laws that introduce traceability even for the pettiest crimes, which specifically includes sharing of culture (which shouldn’t be a crime in the first place). In some instances, such laws even give the copyright industry stronger rights to violate privacy than that country’s police force.

With these concepts added together, they may finally – finally! – be able to squeeze out our freedom of speech and other fundamental rights, all in order to be able to sustain an unnecessary industry. It also creates a Big Brother nightmare beyond what people could have possibly imagined a decade ago. My undying question is therefore why people waltz along with it instead of smashing these bastards in the face with the nearest chair.

On July 12, for instance, we hear that ISPs in the United States of America will start to serve the copyright industry in the treatment of its own customers, up until and including a possible exile of them as citizens, and most likely scrapping their right to anonymity for the already-going industry game of sue-a-granny.

This is bound to become a textbook example of bad customer relationships in future marketing books: making sure that your customers can be sued into oblivion by entire industry organizations in a rigged game where they’re not even innocent until proven guilty. Seriously, what were the ISPs thinking?

Today, we exercise our fundamental rights – the right to privacy, the right to expression, the right to correspondence, the right to associate, the right to assemble, the right to a free press, and many other rights – through the Internet. Therefore, anonymous and uncensored access to the Internet has become as fundamental a right itself as all the rights we exercise through it.

If this means that a stupid industry that makes thin round pieces of plastic can’t make money anymore, they can go bankrupt for all I care, or start selling mayonnaise instead.

That’s their problem.

Source: How The Copyright Industry Drives A Big Brother Dystopia

But Germany didn’t have copyright monopoly laws at this point in time, and historians argue that was the direct cause of Germany’s engineering excellence overtaking that of the United Kingdom. In the UK, knowledge of handicrafts was expensive to come by. Books and the knowledge they carried were locked down in the copyright monopoly construct, after all. In Germany, however, the same knowledge was available at print cost – and thus, engineering skills proliferated. With every new person learning engineering, one more person started to improve the skill set for himself and for the country at large. The result is that Germany still, 200 years later, has an outstanding reputation for engineering skills – the rise of which are directly attributable to a lack of the copyright monopoly.

There are more examples. Pharmaceutical companies argue how they absolutely, positively need the knowledge monopolies we call patents in order to survive. The company Novartis is one of the worse offenders here. The claim that patent monopolies are needed is not only false in an objective light – as in the patent monopolies not being needed at all today for the pharma industry – but more interestingly, Novartis itself was founded in a time and place when no such knowledge monopolies existed – more specifically, in Switzerland in 1758 and 1859. If the patent monopolies are so vital for success, how come the pharmaceutical giants of today were successfully founded in their complete absence?

Rather, the pattern here is that the people who have made it to the top push for monopolies that will lock in their positions as kings of the hill and prevent people who do something better from replacing them. It’s a power grab.

In Sweden, the telecoms infrastructure giant Ericsson was founded making a telephone handset that directly infringed on a German patent from Siemens – or at least, would have done so with today’s monopoly laws. A Norwegian company later copied Ericsson in turn. Nobody cared. Today, with the patent monopolies we have today, Ericsson would not have survived the first phone call. And yet, Ericsson is one of the giants pushing for more restrictive monopoly laws. Of course they are; they have been successfully founded already. What innovative giants of tomorrow are we smothering stillborn through these monopoly constructs?

Indeed, the United States itself celebrated breakers of the monopolies on ideas and knowledge as national heroes when the country was in its infancy and building its industries. When the US was still a British colony, the United Kingdom had this idea that all refinement of raw material into desirable products should happen on the soil of the United Kingdom, and only there. Industrial secrets were closely guarded, and the United States sought to break the stranglehold for its own benefit. When somebody brought the British industrial secret of the textile mills to the United States, for example, he was celebrated by getting an entire city named after him and named a father of industry as such. Today, the same person would have been indicted for industrial espionage.

Or why not take a look at Hollywood and the film industry? In the infancy of filmmaking, there was a patent monopoly blanket on the entire concept of moving pictures owned by Thomas Edison, who was adamant in claiming his legal monopoly rights. In order for innovation in the area to flourish, the entire industry moved from the then-hotseat of moviemaking, New York. They moved as far away as they could, west across the entire country, and settled in a suburb outside of Los Angeles. That was outside of the reach of Edison’s patent monopoly lawyers at the time, and so, moviemaking took off big time. Today, the fledgling industry wouldn’t have been outside of the reach of those monopoly lawyers.

I could end with mentioning Internet and how monopolies try to tame it from every angle, but I am sure everybody can fill in the blanks here. Just for fun, we could mention Bill Gates’ famous quote that if people had taken out patent monopolies when the web was still in its infancy, the industry would be at a complete standstill today. It is consistent with the overall pattern.

The pattern here is clear: copyright monopolies and patent monopolies encourage neither creativity nor innovation. Quite the opposite. Throughout history, we observe that today’s giants were founded in their absence, and today, these giants push for the harshening and enforcement of these monopolies in order to remain kings of the hill, to prevent something new and better from replacing them. Pushing for copyright monopolies and patent monopolies was never a matter of helping others; it was a matter of kicking away the ladder once you had reached the top yourself.

But for the rest of us, it makes no sense whatsoever to carve today’s giants in stone. We want them to be replaced by something better, and the copyright and patent monopolies prevent that.

Source: History Shows That Copyright Monopolies Prevent Creativity And Innovation

This ruling means that it’s almost inevitable that the UK’s major Internet service providers will be compelled to block The Pirate Bay in the coming months to serve the members of the music lobby group BPI.

While there can be no doubt that some users of The Pirate Bay are indeed engaging in copyright infringement, for others the site is their gateway to the world, the mechanism by which their own work can be distributed – for free – to the masses.

A block of The Pirate Bay will not discriminate – all content will be blocked, infringing or not, and artists relying on the site to reach their fans will be unjustly penalized.

Just hours ago and after working throughout the night, UK artist Dan Bull finished his latest track which was inspired by the recent TPB ruling.

“The BPI claim to represent the interests of musicians like myself and the people in my video, but the fact is that only the very elite few at the top of the music business will see a benefit. The rest of us are having our internet censored and are being ushered into an age of guilt until innocence is proven,” Dan told TorrentFreak.

“The tech sector is being damaged in order to prop up a comparatively tiny and irrelevant industry which the vast majority of musicians have absolutely no need for.”

So without further delay, here’s Dan’s musical message. ‘Bye Bye BPI’ is the follow-up to the hugely successful track SOPA Cabana which has been viewed nearly 1.3 million times. Both songs were created with material crowdsourced via Dan’s Facebook page.

Source: Pirate Bay Block Inspires Crowdsourced Song – Bye Bye BPI

The article in question was mysteriously flagged as being infringing by an automated DMCA takedown tool. An honest mistake according to the people who sent the notice, but one that doesn’t stand in isolation.

Google previously noted that that 37% of all DMCA notices they receive are not valid copyright claims.

One of the problems is that many rightsholders use completely automated systems to inform Google and other service providers of infringements. They swear under penalty of perjury that the notices are correct, but this is often an outright lie.

Microsoft, for example, has sent Google dozens of notices about the massive infringements that occur on the site Youhavedownloaded.com, a site that is completely non-infringing. As a result, many pages of the website have been de-listed from Google’s search results, directly damaging the site’s owners.

Other rightsholders make even stranger mistakes by massively taking down content that they don’t own. The adult content outfit AFS Media for example asked Google to remove links to the movies Braveheart, Monsters Inc, Green Lantern and many more titles that have nothing to do with the content they produce.

Similar mistakes are made at NBC Universal who got Google to censor the independent and free-to-share movie A Lonely Place for Dying.

Or again by Microsoft, who successfully requested Google to remove a link to a copy of the open source operating system Kubuntu.

And then there’s YouTube’s content-ID system. We previously outlined many mistakes that were made by the DMCA-style anti-piracy filter, resulting in tens of thousands of ridiculously inaccurate claims.

This week yet another example came up when YouTube labeled birds tweeting in the background of a video as copyrighted music. Again a mistake, but one that probably would have never been corrected if Reddit and Hacker News hadn’t picked it up.

Aside from the mistakes outlined above, there’s also a darker side to DMCA abuse. Google previously revealed that 57% of all the DMCA notices they receive come from companies targeting competitors.

The “competition” angle also ties into the row between Megaupload and Universal Music Group. The latter removed a promo video from the cyberlocker from YouTube on copyright grounds, without owning the rights to any of the material.

It’s safe to say that the DMCA is broadly abused. Thousands of automated notices with hundreds of links each are sent out on a daily basis, turning it into a broad censorship tool. Only the tip of the iceberg is visible to the public thanks to companies like Google who publish some of the notices online.

We can only wonder what’s happening behind the scenes at other sites, but it’s not going to be any better.

Just a few months ago the cyberlocker service Hotfile sued Warner Bros. for DMCA abuse. In the suit Hotfile accuses the movie studio of systematically abusing its anti-piracy tool by taking down hundreds of titles they don’t hold the copyrights to, including open source software.

Not good.

While we’re the first to admit that copyright holders need tools to protect their work from being infringed, mistakes and abuse as outlined above shouldn’t go unpunished. The DMCA was never intended to be an overbroad and automated piracy filter in the first place.

The above also illustrates why it’s dangerous to allow rightsholders to take entire websites offline, as the SOPA and PIPA bills would allow. The MPAA and RIAA have said many times that legitimate sites would never be affected, but didn’t they say exactly the same about the DMCA?

Source: DMCA: Horrors of a Broad and Automated Censorship Tool

First and foremost is that I was trying to provide my viewers with history and context. I wanted to inform their positions and decisions, rather than hand them a ready-made set. Secondly, it just seemed like a really uncinematic way to close the series, almost like a premature credit roll. I find the topic ill-suited to an audio-visual treatment.

A much better way to discuss it is right here in good old-fashioned text. So consider this an addendum to Everything is a Remix, a brief overview of what we can do and what we should push for. Some of these are attainable, some probably aren’t, and they’re all offered with a dose of humility. This is pure opinion, a discussion piece, not a manifesto. It’s food for thought from someone who spent a year-and-a-half living in this topic, both as my subject and as my creative technique.

This was written fairly swiftly, so if there are any factual errors or poor arguments, I would appreciate your help in correcting or improving them.

Copyright Classic

The hard truth is that most creations are worthless immediately. Most books, films, albums, computer applications, or whatever else are met with not just indifference but disuse. They basically aren’t read, aren’t viewed, aren’t used. Of the lucky ones that find a modest audience, almost all of those fall into obscurity within a few decades. Only a slim minority of works have commercial value after that and current copyright legislation is clearly written for this tiny group. Copyleft activists sometimes refer to this segment as the “lottery winners.”

Prior to 1976 the American copyright term was 28 years with the option to renew for another 28. Two big changes happened after that. Firstly, the term was dramatically extended to lifetime plus 70 years. Secondly, the option to renew was removed, automatically granting all rights holders the maximum term. Neither of these changes had any benefit to anyone but the lottery winners.

Lifetime plus 70 years is a wildly excessive copyright duration for almost all creations. According to Laurence Lessig, 85 percent of copyright owners failed to renew their copyright after 28 years. That means for 85 percent of them, their creation had little or no commercial value by then – 28 years of protection was plenty.

If I could wave a magic wand, I would wind copyright back to its pre-1976 state: 28 years of protection, with the option for a 28-year renewal. This would put the majority of works into the public domain in 28 years. Those who renew would get 56 years of copyright protection, probably enough to last a lifetime. If this system was in effect now, a vast amount of 20th century material would be ours to use and share freely. Just imagine what Project Gutenberg, Archive.org, YouTube or Google Books would be in this world. They’d be resources unlike anything we’ve ever seen.

The sad reality is that a reduction in the length of copyright’s duration seems enormously unlikely. A more winnable battle will be defeating another extension come 2023, at which point there will undoubtedly be another lobbying effort by the ever-dwindling segment of lottery winners.

If You’re American, Use Your Fair Use

Fair use is a limitation on US copyright protection that allows works to be re-used for purposes like commentary, criticism, and education. Copyleft activists tend to denigrate fair use because it doesn’t prevent anyone from clobbering you with a massive lawsuit. This is unfortunately true. Even with a solid fair use defense, you can get dragged into court and even if you win the case, your legal defense might cost hundreds of thousands of dollars and the emotional toll will be massive.

So the boundaries of fair use need clarification, but the fact remains that fair use is employed reliably and without incident countless times every day. Watch a newscast, a documentary or The Daily Show and you’ll see fair use at work throughout. The high-profile lawsuits we hear about are the exceptions and they over-shadow just how effective and powerful fair use is. (And let’s not forget that should you employ fair use and find yourself in a lawsuit, there are now a variety of public interest organizations that can provide pro bono legal defense.)

The various codes of best practices that have emerged in recent years are a demonstration of how powerful fair use can be when adopted by a community. A superb and under-appreciated resource here is Patricia Aufderheide and Peter Jaszi’s Reclaiming Fair Use, which also happens to be an excellent short history of the copyleft movement.

For those of you outside US and thus without fair use, well, you have the benefit of living in a much less litigious culture.

De Minimis Definitions Needed

This is an example of how fair use needs stronger boundaries. In copyright law “de minimis” refers to uses that are too small to be considered infringing – they would be considered fair use. However, the bizarre Bridgeport Music, Inc. v. Dimension Films suit made it unclear if de minimis even exists anymore. In this losing case a two-second snippet of Funkadelic was unrecognizably used in “100 Miles and Runnin’” by NWA. (And the defendant wasn’t even NWA or their record company, but a film distributor that happened to use the song in a film.) If any case is a signpost for the era of IP dystopia, this is it. Every re-use of even the tiniest fragment of published work now seems vulnerable.

We need some distinct thresholds below which copyright protection doesn’t apply. Maybe it’s two seconds of recorded music. Maybe its five seconds of video footage. These are arbitrary, but whatever these standards are, they’ll make more sense than copyright protection covering subliminal-scale slices of media.

Abolish Software and Business Method Patents

I’m not going to go deep into patents because it’s a complicated realm that incorporates vastly different industries. Real patent reform would need to address this disparity. A patent for a drug that cost a billions dollars to bring to market should be treated differently from a patent for a novelty invention created in a couple weeks by one guy.

What can be stated simply is that patents for software and business methods (which are mostly software) have done nothing to incentivize innovation and plenty to de-incentivize it. We’ve seen a massive arms race of patent holdings in the smart computing realm, an untold number of small companies being exploited by trolls, and the unabashed weaponization of these instruments. It’s so abundantly clear that software patents do not “promote the progress of useful arts,” that the most sensible route isn’t reform but abolition.

The other three episodes of Everything Is a Remix can be found here.

Source: Thoughts on IP Reforms and Best Practices for Creators

I left the site a few years ago to continue working on Flattr and other projects, but I’m just as interested in the questions regarding copyright, Internet and censorship as I’ve ever been. I keep following these issues and keep a close eye on the news.

After having skimmed though the High Court decision regarding a UK Pirate Bay blockade I was intrigued by the claimants’ tactics. They appear to know who runs the site, but somehow decided not to include these persons in the suit.

They put up a list of reasons, mostly rants, about how hard it is to find the people behind the site. But is it really?

They still claim that two old friends and I remain as operators, along with the old owner of the ISP that TPB had back in 2005. However, they decided not to include us. (None of us are actually operators, which they probably know. Indeed, one of the people listed might not even be alive, we haven’t been able to reach him for ages.)

The claimants also say they know which company owns TPB, but decided to not include it in the suit. Those who ever started a company know that you must put up an address, so it’s not hard to find a company rep. Addresses and such are always public information.

So why are they not included? Is there a deeper underlying reason for that? Of course there is. Their main interest is not stopping TPB. They’re interested in making the telco industry liable instead.

The ISPs are usually big corporations, the telco industry is in fact much bigger than the entertainment industry. They’re operating on a global scale with billions of customers. This means that they have lots of money as well as lots of potential customers for the entertainment industry. If the telcos could be held liable for any sort of infringement, and have to police the Internet, there would only be two possible ways to do so.

One would be to shut down their business since it’s impossible to make sure that nothing illegal goes on in your network. The second option is to strike a deal with the entertainment industry.

Just as with any other mafia, the entertainment industry wants protection money. To avoid lawsuits the telcos would have to pay. Either by forcing them to re-sell a service the entertainment industry control (like Spotify) or by charging them a set fee for each connection per month.

The record companies have previously asked for $10 per month per Internet connection. But what about other creators? They don’t really care about that question. Porn, movies, bloggers, search engines are all bigger than music on the Internet. How much should we force-pay them?

A few years back an Irish ISP called Eircom blocked their customers access to TPB. It was an out-of-court settlement which noone knows the details of. Either Eircom got paid or the other way around. That’s plain censorship – Eircom sold out the interest and rights of their customers without a court order to do so. Fortunately the other ISPs refused to follow.

The recording industry really wants a landmark case in order to go demanding money from the telco industry. If they sued TPB they can’t make the telco pay the protection money.
It’s not about saving any artists – it’s about controlling the money flow and owning the rights so the artists and customers can’t go anywhere else.

It’s a corrupt industry which has to be stopped!

Source: Pirate Bay’s Peter Sunde on the Copyright Mafia

This word was used by the copyright industry, to try to get citizens to do their bidding. Honest. Could you believe that today? This industry dared take that word in their mouths?

For some time, it may actually have worked. Not for us who worked with technology and knew sharing as natural and human, and who set the standards of tomorrow, of course, but I got the perception that “following the law” was associated with “being honest” in parts of the population.

That quickly waned.

People realized that “being honest” had absolutely nothing to do with “accepting serfdom in a rigged system” and “doing the wishes of a thoroughly corrupt industry”, quite regardless of the wording of mail-order legislation that had been created at the copyright industry’s persistent tantrums. Following the law and obeying the monopoly became the opposite of being honest.

So the concept of honesty in the debate was replaced by one of humanity and friendship – that good people share, regardless of larger ramifications to society.

As that went on for a few years, more and more people realized that the sky wasn’t falling as had been claimed. Moreover, culture and small bands actually benefited greatly from circumventing the previous gatekeepers. The ramifications weren’t negative. They were overwhelmingly positive.

This view was reinforced by the copyright industry’s attacks on all alternate distribution channels that allowed creative artistry to bypass the middlemen’s skimming of the 90-95% of the pie that they had previously grabbed for themselves.

Something else happened, too: old digital formats went out of fashion. The industry-issued copies became unplayable, especially with silly playback protection methods that never work anyway. All of a sudden, us who had shared culture had done something more; we had also preserved culture. If it weren’t for the so-called pirates, our cultural diversity would have been lost on technology’s scrapheap.

So sharing became a matter of being responsible as a citizen. Sharing culture was not only a good deed in humankind, it was also taking civil responsibility for preservation of our common heritage, a responsibility that neither the industry nor governments took on themselves to fulfill.

But the copyright industry’s war on the people continued.

A very astute observation by Ithiel de Sola Pool in a book from 1984 noted that the copyright monopoly can’t survive in the digital age as it creeps into our everyday activities without heavily regulating conversation itself. This is exactly what the copyright industries have tried to do, and therefore, this monopoly and its industry have become an enemy of our very freedom of speech.

By 2010, about half the population was directly or indirectly involved in this preservation or sharing of culture: many in a household gain from one person taking such civic responsibility. In Europe, that means 250 million people. Put another way, it means 250 million votes.

250 million European votes trump 250 million Euros in lobbying money, every single time.

And so, with the copyright industry’s outright war on the people, on our culture, and our civil liberties, we have arrived at a point where responsible citizens not only share and preserve culture, but also act in defense of society to destroy the copyright industry.

Every act towards that goal helps, and is now an act of everybody’s civic responsibility. 250 million Europeans doing something small every day to destroy this corrupt industry that stands between us and our future makes a lot of difference at the end of the day.

Source: A Responsible Citizen Not Only Shares Culture, But Destroys The Copyright Industries

A boycott against Big Monopoly will not work. Any noticeable drop in profits will cause them to throw a tantrum at policymakers and complain how their profits are dropping due to piracy, and request harder enforcement of their copyright monopolies at the expense of our civil liberties and the freedom of the net.

Buying more of their products (yeah, right) will not work. Any noticeable raise in profits will cause them to commission reports to policymakers illustrating their grandiose importance to the economy as a whole, suggesting that they are the direct reason for at least several hundred per cent of the gross national product. Therefore, they will argue, they need additional protection as a national interest.

Doing nothing will not work either, as we are constantly on the retreat in civil liberties.

There is no course of action or nonaction that the net or its individuals can take that would cause Big Monopoly to behave differently from today.

Attacking Big Monopoly is simply barking up the wrong tree. It’s a complete waste of effort.

Also, I’m quite concerned at the overall attitude. I see many on the net somehow trying to please the copyright industries – if they weren’t as obnoxious, would the copyright industry perhaps show a more lenient attitude…?

As if!

This attitude, I fear, is one of the most dangerous of all, for it puts the individual in a subservient position to the corporations. Reality is quite different, but we are only as powerful as we believe ourselves to be. Those who see themselves in shackles will behave with restraint. On the other side of that coin, those who refuse to accept any limitation placed upon them will find that most, if not all, limitations can be broken.

Obviously, the copyright industry’s dream is having us – the people – seek its consent for everything we do, just like they have trained politicians to do for over a century. When you discuss boycotts, you are playing straight into their game of thinking that it is the copyright industry’s desires that matter for the task of building a sustainable society.

They don’t. Their desires are irrelevant. As are they.

They are just one entrepreneur among many. The role of any entrepreneur is to construct a use case and a business case that allow them to make money, given the current constraints of technology and society. They don’t get to dismantle civil liberties, even if they can’t make money otherwise.

The target for any action isn’t the copyright industry. That’s just playing into their hands as imagined kings of the hill.

Rather, the target is – and must be – the policymakers. They are the ones who are actually cutting down on our civil liberties, not Big Monopoly. Normally, they see issues like the copyright monopoly and freedom of the net as totally peripheral to policymaking; the topics du jour are the same as they’ve been in the past 50 years: healthcare, schools, energy and defense.

This is both a problem and a blessing.

It is a problem, as they don’t realize the gravity of the situation. Most governments in the West would be completely baffled to realize that people are actually holding rallies for freedom of speech: they would not understand why. As in, “we have that already”. In their minds, we do. In ours, however, it’s being cut away.

But it is also a blessing, as they’re not politically entrenched on the issue, thinking it is peripheral. As most political parties haven’t identified themselves with one side or the other, thinking everybody were in agreement already, the policymakers can be made to turn quickly at little internal cost of prestige.

At the end of the day, there’s just one single thing that politicians care about, and that is their job. Their job must be put on the line over our freedoms of speech, or change will not happen. This was the (very successful) formula behind founding the Pirate Party in 2006.

This is also what we saw with the SOPA/PIPA battle in the United States, as politicians realized that there were a serious amount of votes to be lost or harnessed over freedoms of speech on the net. As that realization sunk in, the copyright industry’s efforts were dead in the water.

In Europe, 250 million people preserving and sharing contemporary culture in disrespect of an immoral and overreaching copyright monopoly is not “a business problem that you can put an end to”. It is a power base of 250 million voters. This is the message that policymakers must be sent in the loud and clear.

Once the policymakers get that message, the copyright industry can make their money any legal way they can or go bankrupt in the process, and nobody will care whichever way they go, not any more than you would care about the tire industry or the glass blowing industry.

Source: The Target Isn’t Hollywood, MPAA, RIAA, Or MAFIAA: It’s The Policymakers

After Wikipedia and several thousand other sites staged a blackout recently, everybody nows knows about SOPA and PIPA.

But this is not the only piece of legislation being pushed by governments that many perceive as pro-censorship.

What is ACTA?

For those new to ACTA, or the Anti Counterfeiting Trade Agreement, it is an agreement between multiple countries to establish new international standards for intellectual property rights and enforcement. The European Union is one of those parties. The scope of ACTA includes counterfeit goods, generic medicines and copyright infringement on the Internet.

Why should I worry?

The procedure for drafting the text of the agreement and the text of the agreement itself have received numerous complaints. The negotiations and draft texts of this agreement were kept secret until finalized. Civil rights groups and developing countries were excluded from the negotiations but the MPAA, RIAA and pharma lobby were constantly consulted on the text.

Multiple groups and organizations that defend civil liberties have come out against ACTA saying that the treaty will restrict fundamental civil and digital rights, including the freedom of expression and communication privacy.

According to an analysis by the Free Software Foundation, ACTA would require that existing ISPs no longer host free software that can access copyrighted media, and DRM protected media would not be legally playable with free software.

Nate Anderson with Ars Technica pointed out that ACTA encourages service providers to collect and provide information about suspected infringers by giving them “safe harbor from certain legal threats”.

Under ACTA, copyright infringement on a commercial scale will be criminalized, but the standard for commercial scale is set low.

ACTA also allows criminal investigations and invasive searches to be performed against individuals for whom there is no probable cause: your laptop or iphone could be searched when you cross the border.

Oxfam says that ACTA will impact access to affordable medicines in the EU by curbing generic medicine competition. Put simply, it will make it harder to compete with big pharma. As if this is what we need right now, during harsh economic times, higher prices on medicine.

European Digital Rights (EDRi) says that, with ACTA, the interests of rightsholders are put ahead of free speech, privacy, and other fundamental rights. ACTA pushes Internet providers to carry out surveillance of their networks and disclose the personal information of alleged infringers to rightsholders.

ACTA would therefore place the regulation of free speech in the hands of private companies.

Please act TODAY:

Your voice has been heard with SOPA and PIPA. Your voice can be heard with ACTA.
ACTA is being discussed by several comittess in the EU parliament. Tomorrow, the Development Comitteee discusses ACTA.

Please use the tools from the address below and call your MEP at the European Parliament. All the tools you need, via EDRi.

Here’s a White House petition.

Source: After SOPA in the US, ACTA Being Discussed By The EU

The “Daddy, I want a pony” tactic goes roughly like this:

Little girl: Daddy, I want a pony! Want pony! Want want want pony!
Dad: Uhm, no, uhm, uhm, no, how about a dog?
Little girl: No no no NO! Want pony! PONY! …Dog? Well, ok then.

At this point the dad thinks, “Phew, that was a close call!”. The little girl on the other hand thinks “Wow, that’s the easiest dog I ever got.” That’s the “Daddy, I want a pony” tactic.

You saw it with the DMCA in the United States, which severely restricted our rights to our own property, and the corresponding InfoSoc directive in the European Union. You see it right now with ACTA, which again shows this “the most offensive, repugnant may be gone” attitude, despite still being a giant leap backwards for human rights. You’ve seen it with the Data Retention Directive.

And each time, we defend and defeat the worst parts, burning our activist reserves way into the red, and then there’s another assault three years later. Plus the fact that while we’re fighting one of these evils, another 11 pass in the background.

The point is, as long as we’re just defending, we will always be on the retreat, and we will always lose. The copyright industry has the initiative and the best we can do is to delay or reduce the damages done. That’s not good enough.

It gets worse. The copyright industry has also gotten the rights to collect levies from trade with unrelated items, notably blank media but as unrelated as game consoles, because they can theoretically be used to copy in legal ways. Did you get that? It does not break the copyright monopoly to copy in these ways, and just therefore the copyright industry is compensated.

Let’s take that again.

The copyright monopoly, as wet a blanket as it may seem, does not cover every conceivable act of copying. There are many acts of copying that are fully legal and not covered. But in the industry’s sense of entitlement, they have demanded — and received — compensation for the areas where their monopoly does not extend. Compensation from taxpayer money to a private industry. For not having a monopoly. Really, can you believe this?

In this compensation scheme, they collect ridiculous amounts of money every year for doing absolutely nothing. A lot of the money goes straight towards the war on our civil rights and to collect yet more taxpayer money in new “Daddy, I want a pony” schemes. For us, it’s a vicious circle. Anybody familiar with incentives knows that it’s an absolutely terrible way of optimizing production to give money to an industry regardless of whether they’re doing the right thing, the wrong thing, or no thing at all.

So, to summarize, the copyright industry has put itself in a position where they get insane amounts of money for doing absolutely nothing, and use that money to buy laws that give them even more money and restrict our freedoms of speech. That is not just unacceptable. That is repulsive.

It comes as no surprise that I think the copyright monopoly is harmful (or at best useless) as a whole, and that creativity, business, and civil liberties would be much better off without it. Having studied the topic for six years straight, I discover more and more arrows that point in this direction.

But I’m also pragmatic enough to realize that if you shoot for the moon and insist on not doing any steps in between, you’re not only never going to the moon, but you’re also never taking a single step forward. Besides, getting a small way to the moon may be enough to give you that great view you really wanted. In the same vein, 99% of the problems with today’s copyright monopoly can be solved with a much smaller reform that is both reasonable, achievable and doable.

When it comes to large matters, after all, you can’t change all of the rules of the game overnight. So let’s shoot for a balanced, reasonable proposal that restores our civil liberties while retaining some of today’s investment incentives in culture.

I’m borrowing this blueprint from the Green group in the European Parliament (where, in turn, it came from the Pirate delegation). Let’s try this for a legislation package in Europe, the United States, Australia, and everywhere else we can:

• It must be made absolutely clear that the copyright monopoly does not extend to what an ordinary person can do with ordinary equipment in their home and spare time; it regulates commercial, intent-to-profit activity only. Specifically, file sharing is always legal.
• Free sampling. There must be exceptions that make it legal to create mashups and remixes. Quotation rights, like those that exist for text, must be extended to sound and video.
• Digital Restrictions Management should preferably be outlawed, as it is a type of fraud nullifying consumer and citizen rights, but at least, it must always be legal to circumvent.
• The baseline commercial copyright monopoly is shortened to a reasonable five years from publication, extendable to twenty years through registration of the work in a copyright monopoly database.
• The public domain must be strengthened.
• Net neutrality must be guaranteed.
• Levies on blank media are outlawed.
• Overall, it must always be clear where the line goes; “the courts will sort it out” areas are not acceptable and tantamount to outlawing.

This reasonable, balanced, achievable, and doable proposal would solve 99% of today’s problems, while still maintaining all four aspects of the copyright monopoly. It solves the witch-hunt on teenagers sharing TV series. It solves the problem with orphan works and restores our access to the cultural heritage of the 20th century. It solves the problem with the copyright industry getting taxpayer money for nothing. On the other hand it still maintains a 20-year commercial monopoly (at the most) for investments in cultural productions, defeating every argument from the copyright industry lobby that the monopoly is needed for more culture to be created.

While I don’t agree with patent monopolies, it’s a good talking point here that if pharma companies can do with a 20-year commercial monopoly (patents), then that term should certainly suffice for Disney and Elvis, too.

This, or something along these lines, is what we need to do. We need to go on the offensive for our freedom of speech.

Source: It’s Time To Go On The Offensive For Freedom Of Speech

As with their treatment of sovereign nations the world over, the Americans have no qualms about interfering in our domestic politics and local legal systems. The kind of behaviour that, if reciprocated, would swiftly end the alliance. The latest front in this meddling is the crossover between file-sharing and intellectual property.

Individually, Australians can show enormous courage. Currently, an Australian is enduring a lengthy legal battle that may see him end up as an inmate at Guantanamo Bay, or worse.

Julian Assange and the Wikileaks organisation he help found shone a sterilising light on the behaviour of the US Embassy in Australia’s capital, Canberra. For his bravery Australian Prime Minister Julia Gillard, a trained lawyer, prejudiced any future legal action by prematurely labelling Assange’s actions “illegal.” She has since sacked the Attorney-General whose job it was to give legal advice on the Wikileaks matter, but the damage has been done and the comment has never been retracted.

While the Gillard Government was quick to shoot the messenger, it has remained eerily silent on the message – one of potential interference in domestic legal affairs by a foreign power and so-called ally.

The Canberra Wikileaks cables revealed the US Embassy sanctioned a conspiracy by Hollywood studios to target Australian communications company iiNet through the local court-system, with the aim of establishing a binding common-law precedent which would make ISPs responsible for the unauthorised file-sharing of their customers.

Both the location, Australia, and the target, iiNet, were carefully selected. A precedent set in Australia would be influential in countries with comparable legal systems such as Canada, India, New Zealand and Great Britain. Australian telecommunications giant Telstra was judged too large for the purposes of the attack. Owing to its smaller size and more limited resources, iiNet was gauged the perfect candidate.

The involvement of major American studios in the offensive was suppressed. “The case was filed by … the Motion Picture Association of America (MPAA) and its international affiliate, the Motion Picture Association (MPA), but does not want that fact to be broadcasted,” the US Embassy, Canberra wrote. “We will monitor this case … to see whether or not the ‘AFACT vs. the local ISP’ featured attraction spawns a ‘giant American bullies vs. little Aussie battlers’ sequel.”

The Wikileaks cables also revealed a number of Australian political power-brokers were US informers. Prominent union leader Paul Howes and Federal Senator Mark Aribib were both named in the cables as “protected” informants. Both were instrumental in elevating the current Prime Minister to office in 2009 in what many commentators described as a “bloodless coup.”

Had either been caught spilling secrets to any other national government, with the possible exception of Great Britain, they would have seen their reputations destroyed at best. At worst, been put on trial for treason. The mere hint of back-room dealings with Australia’s largest trading partner, China, has toppled political careers.

Senator Arbib was recently promoted to Assistant Treasurer by the Prime Minister he helped put in office. Without further leaks, we cannot know if Arbib still reports to his American handlers.

Prime Minister Gillard made her feelings towards America known when she addressed the US Congress in March, 2011 and proclaimed, somewhat sycophantically, “You can do anything.” This is not the diplomatic language of allies. It is the language of worship.

Many Australians believe we are special, that the US really does hold us in the highest regard, reinforced by frequent utterings from successive US administrations that America “has no better friend” than Australia. Unfortunately, such a reality is challenged by the even more frequent utterings that the US has no better friend than Canada, Great Britain, France, Italy, Israel, Japan, Poland and South Korea.

The “Australian” Federation Against Copyright Theft (AFACT), a consortium of American movie studios with token Australian representation, began legal action against iiNet in November, 2008.

The MPA and US Embassy badly misjudged their target. In tenacious Australian fashion, iiNet put up the legal fight of their lives. AFACT lost the case and all subsequent appeals. Next month, the final episode of this long saga will culminate with a full ruling of the Australian High Court.

AFACT is already preparing for a loss in February by shifting its focus to lobbying the Australian Government directly. The process began behind closed doors late last year when meetings were held between AFACT, linked copyright industry lobbyists, the Federal Attorney-General’s department and a coalition of Australian ISPs. The voting public have not been told what was discussed or what plans have been developed.

If the High Court rules against AFACT and its Hollywood and US Government backers, as every lower court has done thus far, Australia will be faced with a test of national sovereignty. Only Australia’s Federal Parliament can overturn the decision.

With a Prime Minister visibly enamoured with the United States and known informers in the Federal Ministry, there is a strong likelihood any win for iiNet will herald changes in Australian law. It is unlikely those changes will be friendly to an open file-sharing culture.

Source: Australia: US Copyright Colony or Just a Good Friend?

In short, Doctorow argues that the copyright industry’s fight isn’t against copying, but against general-purpose computers. As more and more devices we buy are general-purpose hardware devices with custom software designed to make that hardware do certain things out of the box, that custom software that drives the device is also custom-izable software that lets the hardware be recoded and repurposed to do completely different things.

Shortly, we’ll see basically every industry trying to crack down on the freedom to tinker, to keep the products they sold us in the same state as they were before we owned them. This is exactly where we’re headed if the current trends continue.

The problem is that many people don’t understand what a general-purpose computer is. Legislators still think in terms of hardware: A cassette player can only play a cassette. Therefore, a music player today must only play music.

That’s wrong of course. A music player today can be recoded to play, stream, receive, remix, or do other things with music. Or, for that matter, it could probably be recoded to become a networked earthquake early-warning sensor instead, if its microphone was sensitive enough to sense the low-frequency sounds that forebode earthquakes.

This idea — that an off-the-shelf entertainment device can be repurposed to become an earthquake early-warning sensor with just the copying of a file — is mind-boggling to today’s legislators. It is just so far out it doesn’t reflect sunlight any more. And it is with this mindset that they legislate that breaking any DRM — repurposing devices that you own — should be punishable with jail time.

This is the reason that I keep reminding the world why we need to ban DRM altogether. It is corporations writing their own laws restricting your property.

But it goes beyond that. Let’s return to the concept of the general-purpose computer. In the mindset of today’s oldish legislators, if you want to kill the possibility of broadcasting music from a music player, you remove some piece from that device. Just like you would remove a “stream” button from a keyboard.

But as we know, it doesn’t work like that. If you want to prevent a general-purpose computer from running a certain type of code, you have to add something to it. You have to add code that prevents it from running this type of code, which it has been designed to do, after all.

And this is where it gets interesting. Since you own the general-purpose computer, you can run any code on it — including code that removes the code preventing you from running some types of code. These instructions that kill the DRM restrictions, seen from the device’s point of view, is just any kind of code that the device will execute happily.

And so protection for the removal of the DRM code is built in next, like Sony did with its criminal rootkit in 2005 (which is why Sony is on my permanent blacklist). So then that code is removed first by the person owning the device, followed by the DRM code.

The general-purpose computer is, by its very definition, a device where DRM will never work.

The major problem is that legislators don’t understand this. They don’t understand that you need to add something to the device to make it less functional, and that this something can easily be removed by an end-user to restore full functionality again. So we get an endless nightmare where legislators mandate more code, more laws, more code, and yet more laws to try to add restricting code to our general-purpose devices, code that we can easily remove.

We need to shift the viewpoint and narrative on this story — we need to make legislators understand the concept of a general-purpose computer, and that by definition, you can’t restrict it from running code. We need a Freedom to Code at the citizen level, at the same constitutional level as Freedom of Speech, even if it goes against corporate interests. No, scratch that: especially when it goes against corporate interests.

Of course, one might argue that a general freedom to code would also be a freedom to code those pesky DRM restrictions. That is true on a philosophical level. The fight here, however, is to get an understanding of the general-purpose computer on a conceptual level into legislatures.

Source: Doctorow’s Omen Shows Why We Need To Ban DRM

Today, Purewal published another on the same subject in the online edition of Edge, which in my opinion is the most intelligent games publication ever committed to paper. As a fanatical gamer, former 8bit games coder, and proud owner of the publication’s issue 1 from 1993, I felt compelled to respond.

“By far the most emotive argument that is often proffered is that CD Projekt are blackmailing people by saying ‘Pay up… OR ELSE!’ and thereby are removing access to justice and denying due process and so forth. Sadly, from a legal perspective, the case seems to be slightly different,” wrote Wrigley in the initial piece.

“…if you haven’t downloaded The Witcher 2 illegally and CD Projekt cannot prove that you have then actually the entire process won’t cost you a single penny,” he added.

What we have here is someone who writes clearly with an undoubted understanding of the mechanics, but also seems to lack specific experience in a practical boots-on-the-ground sense.

Here at TorrentFreak we aren’t lawyers, but we have spoken intimately with dozens of people targeted in similar actions and for them to deal with court-bound accusations effectively they need lawyers, and they cost lots of money. It is not enough to say “oh, well, you’ll get the money back when you win”, because many of these people don’t have the money in the first instance.

In any event, why should innocent people be dragged through hell for months on the word of a faceless and largely unaccountable anti-piracy company? Well let’s not worry right now, since Gamer/Law seems to think that proving innocence is easy.

“It should first be noted that if CD Projekt do take you to court, they have to prove that you downloaded the game [TF note: It's uploading, not downloading], the only thing that you will ever have to try to prove is that their proof is wrong. This could actually be easier than anticipated, as IP tracing is far from a reliable source of evidence,” writes Wrigley.

However, proving innocence in the legal arena chosen by CD Projekt is not easy at all. After first hiring a UK law firm where the lawyers carrying out their pay-up-or-else scheme were later severely disciplined for their activities, CD Projekt shifted their enterprise to Germany to claim money from alleged file-sharers there.

And getting convictions in Germany is like shooting fish in a barrel.

Just recently a Retired, Computerless Woman was fined there for pirating a ‘hooligan’ movie. Her lawyer, Christian Solmecke, with law firm Wilde Beuger Solmecke, outlined her desperate situation to TorrentFreak.

“Normally the copyright holder has to prove who did the copyright infringement. As this is hard for him – because he has no chance to look into a thousand houses – the courts in Germany alleviate this burden of proof,” he explained.

Proving a negative was ultimately impossible for the woman and she had to pay 650 euros to the claimant. This is the environment CD Projekt know they are working in and they will be making nice profits from settlements because after hiring a lawyer at their own expense, people learn that they cannot win in court.

The rest of the initial Gamer/Law post had many other issues, but we don’t have all day and there is a more pressing issue – a fresh ‘open letter’ just published in the online edition of my beloved Edge.

“In case you hadn’t guessed, this is a letter to those folks who oppose developers taking legal action against people who download and play their games without paying. Hello,” begins Jas Purewal.

I’m going to ignore the exclusive nature of this invite and consider it directed at me, since as the title of this piece points out, you don’t have to support piracy to detest these hateful schemes.

Purewal lists several reasons people put forward as to why game devs shouldn’t chase down alleged pirates. His first two points – Technological Reasons and Evidential Reasons – are shown separately but in reality they are utterly intertwined. Here are some observations of our own on the same points:

1. CD Projekt refuse point-blank to reveal who their anti-piracy company is (let alone allow anyone a look at their systems) and as we can see from the ‘hooligan’ case listed above, in their chosen territory, Germany, conveniently there is a reverse burden of proof. In that case the court didn’t even examine the technical evidence. But for a moment, let’s pretend that CD Projekt’s impossible claim of 100% accuracy is real….

2. In previous UK cases, after initial harvesting IP address ‘evidence’ was shifted from company to company, from format to format, with no safeguards and no checks. IP addresses were even copied/transposed by hand (often incorrectly), and the wrong account names were attached to outgoing letters. Trust us, in these case humans can screw anything up, and they have done so in the past, royally.

3. CD Projekt’s ‘perfect’ anti-piracy contractor sends an IP address and a timestamp to the ISP of the alleged pirate and they match it to the correct subscriber – well, sometimes they do. There were several proven cases in the UK where ISPs identified the wrong subscriber and in a huge number of cases couldn’t identify the subscriber at all, which is hardly confidence inspiring.

Only last year, Irish ISP Eircom incorrectly identified 300 account holders as Internet pirates, despite them allegedly receiving the correct information from an anti-piracy company. CD Projekt can not claim to have a complete chain of accurate evidence because they are quite simply not in control of all of it.

Worryingly, Purewal (a UK lawyer) also rolls out the tired notion that it is an account holder’s responsibility to protect his own Internet connection, along with the implication that the person is then responsible for the actions of others. In previous UK cases that didn’t wash with the courts but wait – that is the case in Germany where CD Projekt is looking for settlements. Rest assured, they know that – why do you think they gave up on the UK?

Purewal goes on to give a 5/10 credibility mark to “The ‘little old lady’ reason”, that sending scary letters only scares people. Well, of course they do. The claimants have to give the impression that the end result of not settling is legal action or no-one will hand over their money, but as we know, these companies rarely go to court unless it’s an open and shut case. Like they all are in Germany.

Since CD Projekt’s actions are Purewal’s cited reason for his open letter, let’s end with them.

The company says they’re taking this action to reduce piracy, but the only reason the wider world knew about their lawsuits is because TorrentFreak wrote about them. If we had written something else that day, people would still not know, and if they don’t know they can’t ever be deterred from piracy.

But if people do know, they won’t get caught, and if they don’t get caught they can’t get a $1,000 invoice. Without one of those, CD Projekt don’t get paid.

What we have here is a business model – a complaint filing machine that generates around $1000 a time, split between a law firm, the anti-piracy company and CD Projekt, and the more letters sent out, the better it is for everyone. There are no outward checks, there’s no accountability and absolutely no compassion or understanding for those wrongfully accused through hidden incompetence.

This is why I, a prolific games player and games buyer of more than three decades standing, say that you don’t have to support piracy to hate bullying, intimidation, and abuse of position.

But, most importantly, the reason why games companies shouldn’t embark on these schemes is a lot more simple. They will ruin their hard-earned image and do nothing – NOTHING – to reduce piracy.

Source: You Don’t Have To Support Piracy To Hate Bullying & Extortion

Gray is obviously black, says the District Court.

These liability cases can take a long time with a very uncertain outcome. It is not uncommon for court cases concerning the copyright monopoly to go all the way to the Supreme Court, and yet, the suppressing industries would have us believe that it is clear-cut as day, and that anything they don’t like is, well, so obviously illegal that a low-level customer representative can call the shots.

In reality, things are not black and white, but rather, many expressions are somewhere on a scale of gray. But the effect of these “safe harbor” provisions is that no companies want to risk liability, and so, they choose to succumb for an expression that is even in the slightest doubt of not being perfectly crystalline white as snow.

After all, who knows what the courts will say?

Gray is obviously white, says the Appeals Court.

The effect is a corporatization of the very concept of free speech, where politicians have abdicated their job as ultimate guards of our civil liberties. For corporations don’t care about morally right and wrong — they care about not risking a loss in court. (There is nothing wrong with this; the role of corporations is to make money, and the role of politicians is to safeguard our liberties. The fault here lies squarely with the politicians and their abdication of responsibility.)

Therefore, these corporations will choose not to go to court, and will suppress free speech on behalf of the suppressing industries. They would rather call 1,000 gray cases black in error than calling one single gray case white in error.

The result is that any expression that even risks falling into a light gray area is suppressed as non-free speech or questionable speech. The entire field of gray turns to black. And as it does, over a decade or so, what was once pristine white has become a new scale of grayshades, as the suppressing industries yell and scream about how citizens are exercising their rights unfairly to their bottom line and aspirations of controlling our artistry.

Gray is obviously a complex swirling pattern of gray, says the Supreme Court. The district courts will sort it out.

And so, the cycle begins anew. It takes a decade or less for things that were obviously legal — light-light-light gray — to become suppressed by these “safe harbor” laws, after which the suppressing industries can claim that only a few criminals exhibit this still-perfectly-legal behavior of expressing themselves. New laws, claimed to codify existing practice, actually codify the changed landscape after the scale has shifted. It may indeed be “existing practice”, but one that is due to chilling effects from suppression of speech.

And then, new “safe harbors” are written into law proposals, to shift the border for free speech a great deal further in favor of the suppressing industries.

And again, corporations would rather err on the side of caution, preferring to throw a thousand users to the wolves in error than becoming liable for one shielded in error.

The DMCA was, and is, an abomination. So is the habit of letting corporations guard our right to free speech. It must be unconditional, and it isn’t when there is any kind of intermediary liability. The suppressing industries understand this, and therefore, drive this development.

That’s why we need to turn the tables. Civil liberties, not copyright industries. And never, ever, any kind of intermediary liability under the disguise of “safe harbor”.

Source: Why “Safe Harbor” Laws Are Disastrous For Free Speech

Today, TorrentFreak hands its now regular Sunday guest post slot to a man behind one of the Internet’s leading file-sharing sites. Indeed, one of the world’s biggest websites, period.

Breaking a silence of almost 10 years, Megaupload founder Kim Dotcom tells us about his colorful history, the spark that ignited the Mega Song controversy, and offers to buy us all dinner if we can find a Wikipedia page more unflattering than his. Events of the past week seemed a logical place to start…..

“It was exciting producing the Mega Song and putting the video together. I enjoyed working with everyone involved and I can tell you I am hooked,” Kim told TorrentFreak.

“The song, the lyrics and the video took a lot of love and time to make. I learned that I can be creative and be good at it and I am looking forward to doing more creative work in the future,” Kim added.

But when the video was taken down and we were denied something which was rightfully ours it was like someone knifed me in the heart. Firstly, though, let me give you a little bit more background on this story….

From Rogue To Vogue: Megaupload and Kim Dotcom

I am now living in New Zealand and heard local singer Gin Wigmore’s voice on the radio there. I thought she would be perfect for the Mega Song. Some members of the Black Eyed Peas band and I were chilling in the studio and we decided to reach out to Gin and make her an offer to sing the Mega Song. She agreed, came to the studio in Auckland, and nailed the song in 3 takes.

Gin’s voice is special, she could be the next Amy Winehouse. She seemed excited too. At least that’s what she texted me after the recording session. She was hopeful that we got something we could work with. The following day I received a call from her manager telling me we couldn’t use Gin’s voice. Then we received letters from UMG lawyers threatening to sue us if we used her voice.

The content of the letters was really nasty and personal stuff. They were bothering me about things that happened almost 18 years ago when I was a juvenile. At that time I was active in the hacker scene. I got busted in 1997 for computer hacking and received a probation sentence a few years later. I then became a successful entrepreneur in the new economy selling data security solutions to Fortune 1000 companies.

My mistake was that I embraced the media and gave them the stories they wanted. Let’s just put this into the category ‘young and stupid’. I was giving them a glimpse into my exclusive lifestyle. For this openness I was turned into the scapegoat when the German new economy bubble popped in 2000. I was convicted for insider trading (actually saving a company and over 120 jobs) and got a probation sentence because the judge and prosecutor offered a deal to my lawyers.

Their case was a joke. Since when is the person that saves a company, pays the company money in exchange for shares and buys additional shares (for the same price) on the open market an insider trader? I took the deal and moved on with my life instead of spending the next few years in court rooms defending my innocence. You can’t imagine the rape party the German media had with me.

The Wikipedia page about me is the best account of how long-lasting these effects still are today. Find me a Wikipedia profile of a person that is worse than mine and I will buy you dinner. For your information my criminal record has been cleared under Germany’s clean slate legislation. Officially I can say I am without convictions.

I made mistakes when I was young and I paid the price. Steve Jobs was a hacker and Martha Stuart is doing well after her insider trading case. I think over a decade after all of this happened it should NOT be the dominating topic. I am 37 years old now, I am married, I have three adorable children with two more on the way (twin girls – yeah) and I know that I am not a bad person. I have grown and I have learned. Making this into an issue about my past is unfair to everyone else working at Mega.

The media went as far as finding my father, drunk and living in some garden shed, who I haven’t seen since I was 8 years old. He is an alcoholic who used to beat my mother and myself into hospital many times. And the press got him to complain in interviews that he only sees me on TV with my big Mercedes and that I never visit him. I decided to leave Germany after that and to start over in Asia, in Hong Kong to be precise.

Hong Kong, what an awesome place to do business and to host my new phantom persona. I should write a book about doing business in Hong Kong, that’s how good it is. People there leave you alone and they are happy for your success. But that’s a different story.

Fact is, UMG knew that there was going to be a Mega Song well in advance and they didn’t like the idea at all.

Let me be clear, I don’t blame Gin for any of this. Her label messed this up. Instead of getting Gin in front of a global audience in collaboration with A-list artists, she had to be removed from the song. We actually hired Macy Gray as a replacement and she did an amazing job. There is a good chance that Gin will remain just known to New Zealanders, which would be sad because she has an awesome voice. Google for “Gin Wigmore” and hear for yourself. I wish her the best.

So here we are excited to launch our song and video. The people at UMG see it on YouTube and they don’t hesitate to take it down. They took the video down making a copyright claim and abusing the DMCA take down process that was provided to them by YouTube. In an act of comedy they are trying to tell the court that this wasn’t a DMCA take down at all. It was some kind of magical take down that is not covered by any law. Apparently YouTube has given UMG a license to kill. These are the same people who call Mega “rogue” and want more powers so they can take down entire websites. How stupid do they think everyone is? Wake up UMG, you will not get away with this nonsense.

When UMG took down our video the message for everyone to see was this: “The Mega Song: Taken down by UMG for copyright infringement”. They must have known it’s not Gin Wigmore in the song because in the description below the video it clearly stated that Macy Gray performed the vocals together with me and Printz Board, who is by the way the one of the masterminds behind some of Black Eyed Peas’ smash hits.

You would expect that a label representing an artist knows how that artist sounds, no? I think what really happened is that UMG realized how powerful our message was, how potent it would become, and how positively it would affect Mega’s image. From rogue to vogue. They decided to stop us at all costs, that becomes clear when you see the defense strategy of UMG in court. They have nothing and they don’t even care.

UMG knows that we are going to compete with them via our own music venture called Megabox.com, a site that will soon allow artists to sell their creations direct to consumers and allowing artists to keep 90% of earnings.

We have a solution called the Megakey that will allow artists to earn income from users who download music for free. Yes that’s right, we will pay artists even for free downloads. The Megakey business model has been tested with over a million users and it works. You can expect several Megabox announcements next year including exclusive deals with artists who are eager to depart from outdated business models.

You need to understand that some labels are run by arrogant and outdated dinosaurs who have been in business for 1000 years. These guys think an iPad is a facial treatment, the Internet is the devil, and wired phones are still hip. They are in denial about the new realities and opportunities. They don’t understand that the rip-off days are over. Artists are more educated than ever about how they are getting ripped off and how the big labels only look after themselves.

Dinosaur labels don’t have the answers to today’s new realities. UMG chose to willfully sabotage our campaign instead of analyzing the situation and seeing that the answers to all their problems are right in front of them.

In parallel UMG were calling up all the artists who endorsed us telling them that they are endorsing piracy. That they are working with a convicted felon. That they are losing money because of us. They are trying to force the artists to issue statements against their endorsements and agreements. They are burning their own talents. And I wouldn’t be surprised if some of them fold under this enormous pressure.

I have been on the phone with artists since the shit hit the fan last week and it’s a roller coaster. But we are prepared. I made sure that we are legally covered and that every artist signed a broad release agreement with Mega. Most of the artists we worked with have been in this business long enough to know what’s going on. They can’t wait to gain creative freedom and become the masters of their own careers.

When one of the top artists endorsing Mega received a letter from the CEO of the RIAA with some active download links on Megaupload containing that artist’s music it was shocking at first. But in the same letter it was described how those links were found with a Google search. Giving Mega a hard time when we don’t even provide a search feature on Megaupload? It’s bizarre. And at the same time you find the world’s largest piracy index on Google and most other search engines. But hey, these guys are not rogue. They are just rich.

Mega has nothing to fear. Our business is legitimate and protected by the DMCA and similar laws around the world. We work with the best lawyers and play by the rules. We take our legal obligations seriously. Mega’s war chest is full and we have strong supporters backing us. We have been online for 7 years and we are here to stay, so no need to worry about us.

But you should be worried that these guys might be successful with SOPA or PIPA or any other legal tool for Internet dictatorship.

They are buying politicians to go against the people, freedom and innovation. They want to censor the Internet and bring innovation to a standstill by having their rip-off monopoly protected by Washington. They want to intimidate innovators and take all of us back in time.

But I am telling you, these guys should soon be history, just like cheap oil, because they underestimate the power of the people, the power of the Internet and the power of innovation. To stop them you need to get moving. As you read this the payroll politicians of the MPAA and RIAA are trying to take control of your Internet.

Show your government what you think about all of this. Because if you don’t you will regret it.

I wish you all a Merry Christmas and a Happy New Year.

Kim Dotcom (yes that’s my real name).

Source: From Rogue To Vogue: Megaupload and Kim Dotcom

The label says that they have a private arrangement with YouTube that falls outside of the DMCA, and that essentially they can take down any content they like, whether they own the copyrights or not. Ben Jones takes a closer look at the mechanics.

When something is flagged by YouTube’s Content ID the copyright claimant has to decide what will happen to the video. The video can be monetized with ads,  the video can be restricted from view in any or all countries, or nothing is done so the video can be used as a popularity measurement. In the Megaupload Mega Song case, UMG elected for a worldwide block.

In situations like these a marker is shown on the video manager of the uploader, alerting them to a copyright claim with details of who and what the claim is. It also gives the chance for the filing of a counter-claim with only three options. Once filed, the video is re-enabled and YouTube says they will contact the claimant to get an official DMCA notice.

This is as far as UMG says things have gone. However, investigating this myself, I uploaded a copy, set to ‘unlisted’ on Saturday. When the Content ID matched it and took it offline moments after it had been uploaded, a counter-notice was filed. That UMG would be consulted was displayed as the next step.

According to YouTube’s documents on the copyright process, for a claim to go any further requires a DMCA notice. Which is why late Monday morning, the following notice was sitting on the account.

The following email with similar information was also sent to us, including a link to a page where a DMCA counter-notice can be filed. It also required us to go through ‘Copyright School’ before we could do anything more with the account, including watching videos.

—

Dear BJonesTF:

We have disabled the following material as a result of a third-party notification from UMG claiming that this material is infringing:

P diddy feat kanye west,chris brown – Megaupload song

http://www.youtube.com/watch?v=EWeYXVezepE

Please Note: Repeat incidents of copyright infringement will result in the deletion of your account and all videos uploaded to that account. In order to prevent this from happening, please delete any videos to which you do not own the rights, and refrain from uploading additional videos that infringe on the copyrights of others. For more information about YouTube’s copyright policy, please read the Copyright Tips guide.

If one of your postings has been misidentified as infringing, you may submit a counter-notification. Information about this process is in our Help Center.

Please note that under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material was disabled due to mistake or misidentification may be liable for damages.

Sincerely,

The YouTube Team

—

Others also decided to experience things firsthand. They too got formal DMCA notices from YouTube.

So, for UMG to say ‘you can’t sue us, since we didn’t file any DMCA notices’ is questionable at best. The only way their claims make any sense is if Google (or at least their YouTube subsidiary) has been misleading people over the way their Content ID system works. While the system, which had its 4th birthday only 2 weeks ago, seems like a good idea, its implementation is horribly flawed, as we noted a few months ago.

Yet the Megaupload case now rests on their actions. If they did require a DMCA notice from UMG before taking a further step, then it will be on record and UMG is going to be in a lot of trouble over its pleading.

If, however, YouTube didn’t require a formal DMCA notice from UMG before issuing their formal take-down notice and warning, they’ve not only violated their own documented procedures, undermining their credibility, but they undo a lot of the goodwill surrounding their opposition to SOPA.

At present this is the position UMG has put Google in, and it will come down to Google’s admission of the existence of a notice.

It remains to be seen what Google’s response will be, but it’s certainly a case that’s being watched by many, especially with SOPA under debate, which will only increase the likelihood of such situations happening in the future.

Source: Megaupload, Universal and the DMCA-less Mega Song Takedown

I outlined in 2007 how we could expect to see outright censorship, crackdowns on anonymity and free speech, erosion of privacy and of due process, annulment of whistleblower protections, and at length, cutbacks in the very right to form an identity. I spoke in 2007 of how child pornography was being used as a strategic excuse by the copyright lobby to create a battering ram against our fundamental liberties, even if it hurts children (which they don’t care about).

Five years later, practically all of this has either come true already or is in the pipeline. “Copyright Regime vs Civil Liberties“, indeed.

I went into politics for two reasons. The first is that the copyright monopoly is being taken care of by civil servants today. These people have three characteristics: they are not charged with seeing the whole picture, but just taking care of their lawn; they are completely unaccountable; and they are frequently lobbied by the copyright monopoly, for the two previous reasons. In contrast, a politician can say that “naw, this costs too much and upsets the balance of fundamental rights, let’s scrap it”, something a civil servant cannot.

The second reason I went into politics is that the only way to take this issue away from those same civil servants is to politicize it, and the only way to do that in turn is to take votes from the established politicians. At the end of the day, that is the only thing they care about — any other way of trying to influence policymaking is just another day at the job for them. You have to attack their job security directly. That creates change, and only that.

The most puzzling part is how senior politicians are pretending to embrace the democratizing aspects of the net as long as those aspects don’t happen in their own country. For some reason, it is perfectly possible for a politician to say that the copyright industry must be protected by dismantling the net and our civil liberties, and at the same time, say that the net must be protected against those who would rather keep their power. For anybody else, this means a choice. I made mine in 2006.

The copyright industry is a business like any other. They get to compete for money based on what they offer. They don’t get to dismantle civil liberties even if they can’t make money otherwise, and perhaps especially if they can’t make money otherwise. For some reason, the copyright industry has gotten away with doing exactly this: dismantling civil liberties.

In the United States, authorities are seizing domains on the net without any due process whatsoever, breaking the DNS namespace. This does not just stifle free speech and political speech — it also creates a wiretapping scenario as they see who is coming to visit the domain. Both of these actions would normally require a warrant, which if I were presiding, would never be granted. But they take it on word of mouth from the copyright industry.

In the United Kingdom, courts are giving themselves the right to break the net by ordering certain domains censored. They are even specifically ordering Internet Service Providers to use the previously-installed child pornography filter to censor infractions of the copyright monopoly. See? There is a reason the copyright industry loves child porn so much. If you search for the Swedish word for child porn on the copyright lobby’s Swedish site Netopia, you come up with no less than 62 articles. Unless you knew the reason for this very strong correlation between the copyright industry and child pornography, you would be very puzzled indeed.

At the same time in the United States, China and Iran are held as shining examples of countries which still have a working freedom of speech despite having given the copyright industry the privileges they want. (Even I could not have made this up; it is just too far out) And to applause from the Senate, no less. This was in the SOPA/PIPA debate, and I would have a hard time finding a better example of how completely incompatible the copyright monopoly is with fundamental rights.

In Sweden, there is hard evidence that the copyright industry and the United States was pushing for Data Retention — a fine word for logging all our communications and movements so they can be used against us in the future. This also kills reporters’ right to protect their sources, which I spoke of in 2007.

There is no shortage of further examples. I am sure you could add your own story in the comments field.

Indeed, it is copyright regime or civil liberties. Make your bets and pick your sides.

Source: Copyright Regime vs. Civil Liberties

It started around 1905, when the self-playing piano was becoming popular. Sellers of note sheet music proclaimed that this would be the end of artistry if they couldn’t make a living off of middlemen between composers and the public, so they called for a ban on the player piano. A famous letter in 1906 claims that both the gramophone and the self-playing piano will be the end of artistry, and indeed, the end of a vivid, songful humanity.

In the 1920s, as broadcast radio started appearing, another copyright industry was demanding its ban because it cut into profits. Record sales fell from $75 million in 1929 to $5 million four years later — a recession many times greater than the record industry’s current troubles. (Speaking of recession, the drop in profits happened to coincide with the Great Depression.) The copyright industry sued radio stations, and collecting societies started collecting part of the station profits under a blanket “licensing” scheme. Laws were proposed that would immunize the new radio medium from the copyright industry, but they did not pass.

In the 1930s, silent movies were phased out by movies with audio tracks. Every theater had previously employed an orchestra that played music to accompany the silent movies, and now, these were out of a job. It is quite conceivable that this is the single worst technology development for professional performers. Their unions demanded guaranteed jobs for these performers in varying propositions.

In the 1940s, the movie industry complained that the television would be the death of movies, as movie industry profits dropped from $120 million to $31 million in five years. Famous quote: “Why pay to go see a movie when you can see it at home for free?”

In 1972, the copyright industry tried to ban the photocopier. This push was from book publishers and magazine publishers alike. “The day may not be far off when no one need purchase books.”

The 1970s saw the advent of the cassette tape, which is when the copyright industry really went all-out in proclaiming their entitlement. Ads saying “Home taping is killing music!” were everywhere. The band Dead Kennedys famously responded by subtly changing the message in adding “…industry profits”, and “We left this side [of their tape] blank, so you can help.”

The 1970s also saw another significant shift, where DJs and loudspeakers started taking the place of live dance music. Unions and the copyright industry went ballistic over this, and suggested a “disco fee” that would be charged at locations playing disco (recorded) music, to be collected by private organizations under governmental mandate and redistributed to live bands. This produces hearty laughter today, but that laughter stops sharp with the realization that the disco fee was actually introduced, and still exists.

The 1980s is a special chapter with the advent of video cassette recorders. The copyright industry’s famous quote when testifying before the US Congress – where the film lobby’s highest representative said that “The VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone” — is the stuff of legend today. Still, it bears reminding that the Sony vs so-called Betamax case went all the way to the Supreme Court, and that the VCR was as near as could be from being killed by the copyright industry: The Betamax team won the case by 5-4 in votes.

Also in the late 1980s, we saw the complete flop of the Digital Audio Tape (DAT). A lot of this can be ascribed to the fact that the copyright industry had been allowed to put its politics into the design: the cassette, although technically superior to the analog Compact Cassette, was so deliberately unusable for copying music that people rejected it flat outright. This is an example of a technology that the copyright industry succeeded in killing, even though I doubt it was intentional: they just got their wishes as to how it should work to not disrupt the status quo.

In 1994, Fraunhofer Institute published a prototype implementation of its digital coding technique that would revolutionize digital audio. It allowed CD-quality audio to take one-tenth of the disk space, which was very valuable in this time, when a typical hard drive would be just a couple of gigabytes. Technically known as MPEG-1 Audio Layer III, it was quickly shortened to “MP3” in everyday speak. The copyright industry screamed again, calling it a technology that only can be used for criminal activity. The first successful MP3 player, the Diamond Rio, saw the light in 1998. It had 32 megabytes of memory. Despite good sales, the copyright industry sued its maker, Diamond Multimedia, into oblivion: while the lawsuit was struck down, the company did not recover from the burden of defending. The monopoly middlemen tried aggressively to have MP3 players banned.

The century ended with the copyright middlemen pushing through a new law in the United States called the Digital Millennium Copyright Act, which would have killed the Internet and social media by introducing intermediary liability — essentially killing social technologies in their cradle. Only with much effort did the technology industry manage to stave off disaster by introducing so-called “safe harbors” that immunizes the technical companies from liability on the condition that they throw the end-users to the wolves on request. The internet and social media survived the copyright industry’s onslaught by a very narrow escape that still left it significantly harmed and slowed.

Right after the turn of the century, the use of Digital Video Recorders was called “stealing” as it allowed for skipping of commercials (as if nobody did that before).

In 2003, the copyright industry tried to have its say in the design of HDTV with a so-called “broadcast flag” that would make it illegal to manufacture devices that could copy movies so flagged. In the USA, the FCC miraculously granted this request, but was struck down in bolts of lightning by courts who said they had way overstepped their mandate.

What we have here is a century of deceit, and a century revealing the internal culture inherent in the copyright industry. Every time something new appears, the copyright industry has learned to cry like a little baby that needs more food, and succeeds practically every time to get legislators to channel taxpayer money their way or restrict competing industries. And every time the copyright industry succeeds in doing so, this behavior is further reinforced.

It is far past due that the copyright industry is stripped of its nobility benefits, every part of its governmental weekly allowance, and gets kicked out of its comfy chair to get a damn job and learn to compete on a free and honest market.

Source: The Copyright Industry – A Century Of Deceit

The first demos of the game were well received by the gaming community and as a result many PC gamers asked Ubisoft to release a PC version as well. This is not going to happen anytime soon though.

PC gamers shouldn’t “bitch” about it, ‘I Am Alive’ creative director Stanislas Mettra said in a recent interview. In his commentary Mettra insinuates that many of the people who are asking for a PC release are in fact going to end up pirating the game.

“We’ve heard loud and clear that PC gamers are bitching about there being no version for them,” Mettra told incgamers.

“But are these people just making noise just because there’s no version or because it’s a game they actually want to play? Would they buy it if we made it?”

The creative director argues that it might not be worth the effort porting the game to PC because of widespread piracy.

“It’s hard because there’s so much piracy and so few people are paying for PC games that we have to precisely weigh it up against the cost of making it. Perhaps it will only take 12 guys three months to port the game to PC, it’s not a massive cost but it’s still a cost. If only 50,000 people buy the game then it’s not worth it,” he said.

Indeed, it’s undeniable that game piracy is an issue for developers, but the question has to be asked to what extent piracy has been a factor in the non-release of a PC version.

Talking to Digital Spy Mettra reveals that not all the blame can be put on pirates.

“This is basically the second version, especially designed for XBLA and PSN in mind, knowing that we had to design something really unique, really different type of game experience, but we knew we had to push some levels that aren’t compatible with mass market gaming experiences,” Mettra said.

In other words, for this version a PC port wasn’t ever the plan, and it’s doubtful that pirates are solely to blame for that. It is of course good to use as an excuse, especially for a game that was originally announced in 2006, has suffered several setbacks since (including development by two different studios) and one that underwent a “total re-engineering” only last year.

The piracy blame-game is an interesting choice too, particularly coming from Ubisoft. The company was previously exposed using pirated music and cracks to support their games.

Luckily, not all people in the gaming industry blame piracy for all their troubles and misfortunes. Valve co-founder and managing director Gabe Newell, whose Portal 2 sold more copies on PC than on any other format, has a refreshing take on how to approach the issue of piracy. According to him, game publishers should compete with it.

“One thing that we have learned is that piracy is not a pricing issue. It’s a service issue,” he said recently. “The easiest way to stop piracy is not by putting antipiracy technology to work. It’s by giving those people a service that’s better than what they’re receiving from the pirates.”

For now, however, Ubisoft is taking the “no service” approach to ‘I Am Alive’ and actually killing PC piracy dead in its tracks, but sadly in the most cynical way possible.

Instant update: There goes Ghost Recon: Future Soldier too

Source: Ubisoft Blames Piracy for Non-Release of PC Game

Luckily for Hollywood, many Americans choose to consume their online media through legal services such as Netflix. In fact, there are now so many that the total Internet traffic generated by Netflix has outgrown that of BitTorrent.

This made us wonder – what would happen if all movie-downloading BitTorrent users made the switch to Netflix? What if movie piracy via BitTorrent disappeared?

Before we crunch some numbers we have to say that the model we use relies on a lot of assumptions. However, we try to keep these in favor of the movie industry to maximize their potential ‘profits’. We obviously chose Netflix as a BitTorrent replacement because it comes closest to what ‘pirates’ want.

What’s the ‘value’ of BitTorrent piracy?

What we’re going to do is determine the amount of Internet traffic movie and TV related BitTorrent downloads generate in the US. Since the file-sizes of Netflix and BitTorrent downloads are about the same, we then compare this traffic to what Netflix is generating now. Assuming a linear relation between revenue and traffic we can then “guess” how much extra money would come in if all BitTorrent users switched – and paid.

Step 1: How much BitTorrent traffic is movie/tv related?

The first assumption we’re going to make is that all BitTorrent traffic is unauthorized. This is of course not the case, but we’ll leave that debate for another time.

If we then take a look at one of the more recent reports on the BitTorrent ecosystem, often cited by the MPAA, we see that 35.2% of all torrents are movie related. Another 12.7% are TV-related. For the purpose of this thought experiment we are going to forget about Hulu and other free services and add TV to the ‘pirate traffic’ mix.

The total percentage of video torrents is then 47.9%.

Since we’re comparing traffic we have to adjust for the file-size of videos compared to all other content on BitTorrent and the actual popularity of the files. This is nearly impossible to estimate precisely , but several reports show that movie and video are downloaded the most by far. So we’re going to set the total amount of infringing BitTorrent video traffic at 85%, which is probably on the high end.

Step 2: How does BitTorrent traffic compare to Netflix traffic?

The next step is to see how much of total Internet traffic 85% of all BitTorrent traffic actually is.

A recent report from the Canadian company Sandvine shows that in the US 16.5% of total Internet traffic on an average day comes from BitTorrent. Since BitTorrent traffic goes both ways (upload and download), 8.75% of this is downstream traffic. This means that a little under 7.5% (85% of 8.75) of all Internet traffic in the US is video downloads over BitTorrent.

The same Sandvine report shows that 23.3% of total Internet traffic an average day comes from Netflix. More than 95% of this traffic is downstream, so we can set Netflix downloads at approximately 22.5% of all US Internet traffic, which is three times as much as BitTorrent’s video download traffic.

Step 3: How much revenue would these pirates generate on Netflix?

Here comes the interesting part. What would it mean in terms of revenue if ALL BitTorrent traffic moved to Netflix?

If we assume that BitTorrent and Netflix users consume roughly the same amount of content (again an assumption favoring the movie studios), then this is an easy calculation. Netflix would generate a third more revenue. Based on the shareholders report of the last quarter of 2010 (where most of the torrent stats in this article are based on) this translates into $198 million additional revenue for Netflix.

Based on more recent stats contained in Netflix’s third quarter filing of this year, the increase in revenue would be $266 million for that quarter.

Step 4: How rich would Hollywood become?

It’s clear that according to our (very unrealistic) calculations Netflix would greatly benefit from the sudden disappearance of BitTorrent piracy. The next step is to see how Hollywood would be impacted. Since most licensing deals are fixed and not based on usage, one could argue that the movie studios wouldn’t benefit at all. However, that’s not much fun.

So let’s look at the licensing deals that were in place already and determine Hollywood’s added profits based on that, assuming they would be more flexible.

In the whole of 2010, Netflix paid the movie studios $181 million in licensing fees according to the shareholder reports. If we add a third to that, Hollywood would have “made” roughly $60 million extra. Salient detail, the yearly budget of the MPAA is higher than that.

In recent months the movie studios have exponentially increased Netflix’s licensing costs, but still the added profits for the movie studios will be nowhere near a billion dollars. No, getting rid of ALL BitTorrent movie and TV piracy appears to have a ‘relatively’ small effect, even if all pirating BitTorrent users signed up for a Netflix account.

What does this mean?

Nothing. It’s a simplistic attempt to put a number on BitTorrent piracy in the US.

It shows that even when you assume that 90% of all US BitTorrent traffic is dedicated to video piracy, the added revenue for Hollywood in 2010 would have been less than the amount they paid to the MPAA. That is, if all BitTorrent users switched to Netflix.

The real added revenue if BitTorrent disappeared would of course be a fraction of this, as not everyone would start paying.

We don’t want to draw too many conclusions on this simple thought experiment, but it’s something to consider, especially when ISPs are expected to dedicate millions of dollars in resources to send BitTorrent users warning letters early next year. Not to mention the negative effect of the censorship bills that have been proposed recently.

Is it really worth all that?

Source: MPAA Costs Hollywood More Than US BitTorrent Piracy

This latest bill in the United States, named SOPA (a Swedish word meaning “piece of utter garbage”, and I am not making that up), would essentially eliminate due process of law and right to defense. It would create a j’accuse!-style justice system, where anybody in the copyright industry could kill any company on the planet they don’t like.

Here’s how it is intended to work: The copyright industry gains the right to “notify” payment processors such as Visa that a company looks bad. Visa then gets the choice of cutting it off from payments, or becoming liable themselves in case the looking-bad company actually turns out to be doing something bad. This is a very sneaky, effective and outright evil method of extrajudicial justice.

Rather than risk liability, the payment processors would choose to lie flat and just drop these customers. It is not in Visa’s mission to push civil liberties at the expense of shareholder value. This is not wrong in itself; it is the legislators who shall make sure that extrajudicial punishment as proposed here is impossible, and the legislators are not doing their job at all.

You will note that everybody in the proposed system is completely rightsless. At the pointing of a finger, a business is dead.

Similarly, SOPA contains provisions for killing domains in the centralized DNS namespace, which was built on the assumption that bad guys don’t exist in the system and that everybody can be trusted. If it’s something we have learned by now, it is that the net must be resilient against bad guys on the wire.

What’s interesting here is that the copyright industry attacks chokepoints in the system — single points of failure that our civil liberties depend on. Perhaps we should be grateful that the copyright industry, in their distorted sense of entitlement to the world, are pointing out these weaknesses to us through this kind of despicable mail-order legislation.

Because, if there’s anything that entrepreneurs hate, as in thoroughly detest, loathe and despise, it is the situation where somebody else holds a master-key to your business and can take it over at an unknown point in the future when the entrepreneur has spent ten years of their life building it. That situation is fixed first, and only then is the business built. This fix has happened a few times before, when a united hive-mind-like industry has discarded a master-key liability like a bad habit and built something else to replace it.

In the early 1990s, a system of hyperlinked pages on the internet had become popular. People would browse those interconnected pages for information on everything from universities to businesses to people. Then, in 1993, the University of Minnesota announced that it reserved the right to charge for commercial use of this protocol, Gopher, at some point in the future. It was dropped by everybody like a bad habit and replaced by HTML and the Web, which did a worse job initially but quickly replaced and outgrew Gopher.

The exact same thing happened with the standard format for image files, a format called Graphics Interchange Format, first used on BBSes and then moving on to the early Net. When UNISYS claimed that they somehow “owned” this format and would start suing people who used it, it was dropped from every usage all over the net in the blink of an eye and replaced by a fresh-new format named Portable Network Graphics.

Can you imagine the net collectively just dropping the use of JPEG today, in a consensus hive mind decision? That’s how large these watershed events are. Much larger than, say, Facebook replacing MySpace.

What’s preventing this from happening, in general, is the scenario where something works “well enough”. If something does its job miserably but is entrenched through the entire ecosystem, as long as it doesn’t kill you and you can build a business on it, it tends to remain because of network effects. It is only when it threatens each and every entrepreneur that the industry acts as a hive mind and throws it out.

Because there’s no doubt that MasterCard, Visa and Paypal are terrible for business. A middleman that skims between three and five per cent of every transaction? And, on top, makes it impossible to charge fractions of cents in this day and age? There isn’t an entrepreneur on the planet who wouldn’t love to throw them into the water at night with a pair of knee-high cement shoes. But, like a cancer, they have spread to every corner of the ecosystem. They work terribly, but “well enough”.

SOPA would change that. It would no longer work well enough; it would be a threat to the future existence of every business. Therefore, all of a sudden, we have a market incentive from the most entrepreneurial people on the planet to build a decentralized, unseizable, unstoppable financial infrastructure that lets them get paid — and lets everybody else transfer money anonymously, invisibly and unstoppable. It would be a dictator’s nightmare. And the copyright industry’s.

What SOPA does is to make sure that the net and sharing can’t coexist with Visa, MasterCard and PayPal. This means that only the stronger of the two groups will survive, and the copyright industry has their perception of the strength balance entirely wrong. The net and the human characteristic of sharing culture and knowledge are immensely stronger.

SOPA will neither kill the net nor the sharing of culture and knowledge. But it would kill Visa, MasterCard and PayPal, and it would kill centralized breakable DNS.

“But could this really happen?”, I hear people ask in scepticism. “Visa, MasterCard and PayPal are everywhere! Everywhere!” Yeah. They are. So were Gopher and GIF.

Dictators, too, depend on these single points of failure in the net for repressing the people in their countries. We see it everywhere, and it is spreading to the West at a much faster pace than I would like or had anticipated.

Perhaps the copyright industry deserves some credit for pointing out the single points of failure in the infrastructure supporting our civil liberties, so we can rebuild those parts.

That would be a trait they would share with the world’s worst dictators. Don’t get me wrong, I think the copyright industry is plain evil and that these proposed laws are abominations. Nothing new under the sun, there. But odd as it may sound, I would rather have the copyright industry prod the weaknesses of the infrastructure defending our civil liberties, than a future repressive regime doing so. At such a dystopic point in the future, it would be much harder to fix those weaknesses.

After all, the copyright industry can’t yet drag us off in black bags in the night.

Source: Perhaps The Copyright Industry Deserves Some Credit For Pointing Out Our Single Points Of Failure

Over the past months, fears that SOPA will “break the Internet” have been repeated dozens, if not hundreds of times. But both the MPAA and RIAA feel that people are blowing things out of proportion, forecasting an Internet doomsday where none exists.

In his article “Predictions of Internet’s Demise Have Been Greatly Exaggerated”, the MPAA’s Paul Hortenstine points out the inconsistencies between the historical predictions concerning the consequences of 2005′s “Grokster Decision” and the actual effect the ruling had.

The next day Hortenstine was back again, this time with a post titled “Critics of Current Legislation Have Been Wrong in the Past about Content Protection Law.”

The piece begins by highlighting an article by Variety which chronicles anti-Protect IP and Stop Online Piracy Act comments made by Consumer Electronics Association CEO Gary Shapiro, noting that he was wrong not only about the predicted chilling effect of the Grokster ruling, but also that of 1998′s DMCA. The implication is that since Shapiro was “wrong” then, he must be wrong now.

But powerful people like the MPAA need outspoken opponents to bring them into line and with SOPA they certainly have them. When tech giants such as Google and Yahoo are prepared to leave the US Chamber of Commerce over its support for this proposed legislation, something is seriously amiss.

Later in his article Hortenstine goes on to call Shapiro out again, this time over his claims that passing the DMCA had been “a huge mistake,” going on to state that eventually the DMCA was recognized by Wired as the “law that saved the web.”

“So when you hear Gary Shapiro and others proclaiming that the current legislation will be the end of the internet just remember that they’ve been wrong before and they’re wrong again this time,” concludes Hortenstine.

As Wired noted in their comprehensive article, “….it was the DMCA’s notice-and-takedown provision [that] has proven even more crucial to the growth of the internet. The provision grants immunity to so-called ‘intermediaries’ — ISPs, for example.”

So when we read  via a CNET report, that the RIAA are now saying that the DMCA isn’t working, one won’t be surprised to hear what is coming next.

“I think Congress got it right, but I think the courts are getting it wrong,” RIAA lawyer Jennifer Pariser said during a panel discussion at the NY Entertainment & Technology Law Conference. “I think the courts are interpreting Congress’ statute in a manner that is entirely too restrictive of content owners’ rights and too open to [Internet] service providers.

“We might need to go to Congress at some point for a fix,” Pariser added. “Not because the statute was badly drafted but because the interpretation has been so hamstrung by court decisions.”

Essentially, since courts have ruled time and again that the burden of policing infringement is the responsibility of the content owner and not the service provider, the RIAA want that revisited, reworded or otherwise changed.

One of the court decisions that “went against” the RIAA’s interests was in the case of Viacom versus YouTube. Viacom is now asking the 2nd U.S. Circuit Court of Appeals to overturn last year’s ruling which deemed that YouTube is not liable for copyright-infringing Viacom material uploaded to the site. Viacom argued that YouTube should not have safe harbor under the DMCA.

Nevertheless, despite lacking this protection, Viacom chief Philippe P. Dauman collected a raise of nearly 149% last year, a renumeration of $84.5 million. This is not an enterprise in trouble from infringement, clearly.

But in addition to Viacom and indeed the RIAA wanting to tighten up or reinterpret the DMCA to hold the likes of YouTube more responsible, for good measure they also want PROTECT IP / SOPA.

So when “opponents of content protection legislation” (as Hortenstine describes them) make predictions that don’t immediately come catastrophically true, they aren’t necessarily guilty of getting their predictions wrong, only of not putting an accurate enough date on the impending doomsday.

The Internet may not break tomorrow or even next year, but there are people out there that really care, people that simply don’t want to risk it all for an ill-conceived attempt at stopping illicit downloads.

Because, as these “nay sayers” know and as history has shown, once one set of legislation is sent through the MPAA and RIAA only come back for yet more. And when those don’t go as planned they come back for an adjustment here, and a tweak there.

It is this environment of much-wants-more that leaves the likes of Gary Shapiro, Google, Yahoo and everyone else concerned that although the Internet isn’t broken now, there’s a real danger that in the name of copyright protection these corporations will keep fixing it until it is.

So-called “opponents of content protection legislation” can see the end game, and fighting that starts now.

Source: Internet Doomsday: Wrongs and Rights of Copyright Fortune Telling

A concrete example is that the companies who sell quit-smoking aids don’t have any incentive for tobacco use to stop altogether. If it did, they wouldn’t sell any more quit-smoking aids. There are many more subtle examples of this happening as we speak.

The Polish psychiatrist Andrzej Lobaczewski talked of macropathy, the sickness of being too large:

“…governing such a country creates its own unavoidable problems; giants suffer from what could be called permanent macropathy (giant sickness), since the principal authorities are far away from any individual or local matters. … The main symptom is the proliferation of regulations required for administration; they may appear proper in the capital but are often meaningless in outlying districts or when applied to individual matters. Officials are forced to follow regulations blindly; the scope of using their human reason and differentiating real problems becomes very narrow indeed.”

This strikes a chord in every activist’s heart. We have seen rules being applied blindly in everything from forced sterilization to torture and segregation; for a bureaucrat, the question is is it the law?, but for an activist, the question is is it the right thing to do? Is it good?

I write a lot more on this specific topic in my article Lawful Good, Lawful Evil where I elaborate on the fact that the book of laws and the act of good do not coincide, and that it is crucial to understand that there is a difference between Law and Good.

But it is bigger than that, still, that which is going on right now. We are looking at a complete questioning of the very concept of top-down authority. What I see right now is that people are finally, after centuries, starting to re-examine the legacy of the old monarchies, the assumption that governments have a right to rule over the citizens as were they monarchial subjects.

I challenge this notion. And so do hundreds of thousands of activists in this very moment.

We, the People, employ politicians as our civil servants to govern the chores of administering the details of society. In this, it is no different from hiring a housekeeper to take care of things you don’t want to do yourself. But the employed do not have a right to set the conditions of their bosses — and in particular, they do not have the right to keep secrets from their employers that relates to how they do their work.

United States President Obama is an employee of the United States citizens. So is European Commission President Barroso of the European people.

You note that this is a complete turning of tables on the view — yes, the perspective — on who gets to decide what. And it is the final shedding of the legacy of the feudality and monarchies. Monarchs could keep secrets from their subjects and rule them at their whim; you could say that we have been in a birth-century of democracy where we elected our monarchs. But this is changing. We are starting to think in terms of employing administrators who are our employees, not our monarchs.

Now, the ramifications of this shift in perspective are enormous. But the shift is already underway, well underway.

We see this in how the swarms are overtaking the old, centralized, rule bound structures. People cooperate in the tens of thousands, volunteering, helping, making and taking a stand on changing the world. Every piece of activism, every piece of action right now is a statement that the decentralized, resilient movements are winning over the old centralized, stale bureaucracies.

In the Middle East and North Africa, people have been swarming to do good, rather than accept the lawful evil on account of being “the law”. This has spread to the West, and will continue to grow in waves.

For the first time since 1968, I see that people feel empowered. And we are. Nobody is asking permission anymore to help their fellow human being, to speak their mind, or to express their art. And, truly, why should anyone?

What could be observed as a movement of bits using BitTorrent, being a decentralized, resilient reaction against a corporate stranglehold on culture, has grown to become a movement of people in all of society, rejecting the notion that centralized structures have any power to stop people who decide to do good. The insight that there are no limits but those within you is causing mental handcuffs to drop in slow motion all over the West.

And new swarms are forming daily, all while the old politicians try to create new rules to quench people’s realization that they are free to reject the imposed limits. The politicians haven’t understood that the very notion that they can make those rules, monarching the people, is being questioned.

Thanks to Bengt Jonsson for inspiration to this article.

Source: Macropathy vs. The Swarm

TakedownPiracy isn’t a “let’s sue file-sharers” company, it concentrates on taking content offline with DMCA notices. It is run by a guy called Nate Glass and make no mistake, he is one funny dude who just loves to stir up a hornets nest.

Once we even offered him a chance to come and say something entertaining to the TorrentFreak readers but he didn’t answer our email, leaving us no option but to fight back the tears and try to move on. Sadly, Nate’s deliberately controversial blog has been strangely quiet for a month, but yesterday a new post burst forth and as usual, provided some food for thought.

Nate argues that while some lawyers are protesting against the pending PROTECT IP and E-PARASITES legislation on grounds that they are unfair and unbalanced, what they really want is for online piracy to continue. Of course they do – they are getting rich from representing both copyright holders and their targets, the file-sharers.

Which got me thinking.

Just for a moment, let’s entertain the notion that several things these bills intend to achieve actually work as planned. Let’s presume that all the prominent torrent and other file-sharing sites either have their domains seized or their DNSs blocked, and no Internet service provider in the United States carries their traffic anymore.

Visitors to these sites from the United States would cease to exist, just like that. Not only would there be no visitors from the US, but no advertisers and no friendly payment processors either. To these sites the United States may as well be dead because the country would be completely useless to them.

At this point, one can’t help worrying about Nate.

With the United States having taken off the metaphorical gloves and hitting file-sharing portals with the doomsday scenario they’d been promising all these years, what do we think is going to happen when Nate sends them his list of infringing URLs? Are these sites that are already being heavily punished simply going to comply and take them down?

Even with takedown requests being given the bird, Nate’s business model could well take a bit of a battering domestically. After the hugely successful forthcoming United States DNS, ISP and domain blocks take hold, presumably 312 million fewer people will have almost no access to pirated music and movies.

This means that even when Nate does manage to find a site that still respects DMCA takedowns after it has been blocked, censored and had its US payments cut off, each deleted URL will prevent exponentially less amounts of piracy than they do today. So, taking the entertainment industries’ notion that illegal downloads represent lost sales, these links aren’t going to be worth very much anymore.

But if Nate’s plight isn’t tearing you apart, please spare a minute of your thoughts for the copyright trolls behind the United States Copyright Group and their clones. With no US Internet subscribers having access to pirated media via BitTorrent anymore, where are the settlements going to come from?

Let’s face it, for once the MPAA and IFPI are absolutely right.

Just like the lawyers pointed out by Nate earlier, there are way too many entities around today making suitcases full of money from online piracy.

So let’s thank God for PROTECT IP and E-PARASITES – the perfect mechanisms for cutting off their finances and shutting them down for good.

Source: The Death Of Anti-Piracy Companies And Copyright Trolls

Nevertheless, many reach for the antibiotics. But as more and more people are becoming aware, not only are they ineffective on a virus like the common cold, taking too many of them actually makes matters worse. Inappropriate overuse of these medications helps create resistant strains that require stronger and more powerful doses of antibiotics to treat.

And herein lies the problem. The mainstream music and movie industries are treating online piracy with the broad-spectrum antibiotics of three strikes regimes, site blocking and domain seizures. Initially, as we shall no doubt see from their reports, these digital medications will quickly reduce the levels of file-sharing bacteria on the Internet.

With these cosmetic successes will come larger and larger doses of the solutions, applied liberally wherever a problem surfaces. But underneath it’s already too late. The smart bacteria have begun to adapt and are disseminating their knowledge from cell to cell, from generation to generation.

The copyright enforcers will quickly learn that in common with the microscopic organisms present in us all, file-sharers have become resistant to even the most-powerful of anti-piracy antibiotics available today. The fightback has already begun, and the potions are being rendered useless.

Worse still, while the most aggressive anti-piracy solutions are still waiting in the wings, their recipes are already public knowledge. Sites like Newzbin2 have already adapted to the poison awaiting them, and it hasn’t even been administered yet.

And according to news just out this week, signs are that the most important pirates – the ones that provide much of the initial content – are becoming more and more difficult to find. According to Denmark’s RettighedsAlliancen, who are better known by their former name of Antipiratgruppen, adapting file-sharers are causing them huge issues.

“It is exceedingly difficult, if not impossible, to trace these people,” said Maria Fredenslund, head of RettighedsAlliancen. “It’s a huge problem.”

Fredenslund says that that “increasingly hardcore” file-sharers are using VPN connections as a matter of course, but for Danish Piratgruppen chariman Troels Møller, the reaction is to be expected.

“When anti-piracy groups worldwide move so violently forward, it is clear that people have to protect themselves,” he explains.

But while solutions like VPNs and encrypted connections to sites like Newzbin2 are the preserve of today’s tech-savvy, the aggressive anti-piracy movement will ensure that they will soon become mainstream, just like the uptake of file-sharing itself before it.

And in common with the inappropriate overuse of conventional antibiotics that also kills the helpful bacteria that we all need to function effectively, restrictive blocking and censorship will claim endless victims with its collateral damage.

So, the only effective treatment is prevention via liberal doses of media, on demand, at a fair and friendly price. After all, history has shown that when the price of that treatment is too high or too difficult to obtain, the bacteria – quite literally – go viral.

Try treating that with antibiotics.

Source: Watch Out MAFIAA, Antibiotics Don’t Work On Viral Pirates

Therefore, to begin with, a ban on DRM can be seen as a form of consumer protection.

Second, it doesn’t matter if Parliament writes laws — which is its job — if corporations can rewrite those laws at their own leisure with the help of technology. It is also Parliament’s job to make sure that writing laws remains Parliament’s job, and in particular, that it doesn’t bend over to the wishes of a special interest.

But while these two points are important, the third is the most important of all. Libertarians, in particular, have asked me why an open and honest goods declaration and a legal right to circumvent DRM isn’t enough. If people want to buy DRM-defective goods which are clearly declared to be so, and corporations want to sell them, then what is the problem?

Let me illustrate by drawing parallels — as I often do — to the shift in attitude that followed the rise of the Greens 40 years ago.

A few years ago, the European Union banned lead. As in “banned lead, period”. You can find the stamp “RoHS” on many electronics products, which is short for “Reduction of Hazardous Substances”. As the solder needed to create circuit boards in all our electronics was a mixture of molten lead and tin, every piece of electronics manufacture on the planet needed to be retooled, recalibrated, reinvented. It was a huge undertaking, as the replacement lead-free solder had different operating temperatures, which in turn put new stresses on the boards and long-term stability, and so on.

So let’s ask the same question. If a technically savvy corporation argues that it is sound engineering and profitable business to use lead in electronics (which it is), and people want to buy the electronics that contain lead, then what is the problem?

It is exactly the same problem as with DRM.

As a politician, I have other concerns than sound engineering and profitable businesses. It is my job — it is my damn responsibility — to take a larger view and look ahead, decades ahead, generations ahead. I fully support the ban on lead for this reason. And it is the same reason that I support a ban on DRM.

It is toxic. DRM is toxic. Just like lead. And needs to be banned for exactly the same reasons.

DRM poisons the free flow, analysis, remix, and usage of information. It requires a very specific set of conditions to operate, conditions that won’t exist five or ten years into the future. (Have you tried playing a five-year-old DRM-defective game?) It poisons the information ecosystem.

As the free exchange of TICKs — Tools, Ideas, Culture, and Knowledge — is essential to the industries, citizens and social life of the next generation, I fully support banning a practice that outright poisons the ecosystem where this exchange needs to thrive.

The Greens supported banning freon in their early days and banning lead recently, despite both substances being good engineering, good business, and attrative end-user products. This is the way it should be, and this is why I support banning DRM. There are other concerns that take precedence in lawmaking than short-term profits.

Source: DRM Needs To Be Banned Because It’s Toxic

But censorship is a thorny issue, especially when it is entrusted to faceless organizations who simply refuse to be held accountable.

As part of the ParentPort initiative, four leading UK ISPs – BT, Talk Talk, Virgin and Sky – have agreed to ask all new customers on sign-up whether they want explicit material viewable on their connections. Those who decline will face an “inappropriate image” blackout. This censorship, opted for by account holders and facilitated by the ISPs, will be carried out by systems already in place at the service providers.

Systems such as TalkTalk HomeSafe and Virgin Media Security Parental Control already offer subscribers the chance to block a range of sites, but the mandatory requirement to go through the process on sign-up is new. Since March 2011, BT has been offering its Family Protection filtering solution as part of its initial install process and has promised to remind its subscribers on a yearly basis that the service exists and can be activated.

But these systems don’t just censor adult content, they block a wide range of other sites including gambling and file-sharing sites, and its inevitable that some click happy parents will happily trust their ISP’s system to do a good job of blocking stuff they select.

Unfortunately, though, that faith will be completely blind. The blocklists used by the ISPs and other network operators (but not maintained by them) are unavailable for public scrutiny. We’ve asked for them on a number of occasions from numerous places and no one will hand them over. We don’t know for sure what the people behind them are so scared of, but we suspect it’s criticism.

So, considering the proprietary nature of these lists, how are we to know when mission creep sets in? How are we to know when someone, somewhere, decides that because a file-sharing search engine lists adult material, it should therefore be added not only to the file-sharing censorship list, but to the pornography list too?

Think that can’t happen? Think again.

As illustrated by our earlier article on the issue, if a customer decides to select the file-sharing category using TalkTalk’s system, they will no longer be able to access TorrentFreak, despite us being strictly a news source. The article you are reading now, which features the completely well-intended work of the ParentPort website, would be blocked, not because it carries pornography, but for a completely separate reason.

And consider this. According to the Daily Mail the ParentPort website and ISP filtering is just part of the overall initiative. Shops selling “overly-sexual clothes” such as “padded bikinis for seven-year-olds” and “billboards plastered with images of scantily-clad models” will also face restrictions

“There is growing concern about the impact on Britain’s children of adult images on the internet,” says the Mail.

Well let’s hope that future complainers to ParentPort concerned about their 8-year-olds on the Internet don’t take exception to selection of stories shown below taken from today’s Mail Online frontpage, or the faceless censors might get all click happy. Trust us, getting on these lists is easy, getting off is almost impossible.

Let’s protect our children and give them all the support in the world, but let’s do it in a transparent way that is open for discussion and improvement, devoid of the arbitrary decisions of the unaccountable. If parents are going to be encouraged to control what their kids do online, let them do it from an educated position.

When they choose to block a category of sites, show them the consequences of their decision. At least they won’t be surprised when the Daily Mail won’t load.

Or when their kids show them how to access it again.

Source: Will ISP ‘Child Protection’ Website Filtering Hit File-Sharing Sites?

With the falling value of the dollar, the cost of imported Thai coconut milk has gone up over 400%. Restaurants don’t have a large profit margin to begin with and because of this increase in cost, John was running his restaurant on a dangerously tiny profit margin.

Factor in the ailing US economy and John was barely managing to keep his business afloat. I was happy to lend him a sympathetic, if somewhat distracted, ear. Then he mentioned a female lawyer from BMI had stopped by during the previous week’s lunch hour.

When a lawyer from BMI stops by a local neighborhood business, it’s typically not to buy something. True to form, the BMI lawyer in this story wasn’t there to support a local business. She was there for a public performance license shakedown.

BMI is a collective rights organization (CRO). A CRO collects royalties and then distributes them back to copyright owners. This is conventionally thought of as the most effective way to collect royalties and it likely is – imagine if every single music label was in charge of collecting royalties for its artists!

Royalties are an enormously important source of revenue for copyright owners. Music copyright owners in particular. When an artist gets a song played on the radio, royalties are collected and paid out. But in recent years, BMI and ASCAP (another CRO) have increasingly turned to a more obscure way to collect royalties – the public performance license.

The license is exactly what it sounds like – a license that grants the right to perform the copyrighted work of another to the public. Most people would think this only applies to live music venues with lots of different bands playing each week. But BMI and ASCAP are now actively applying this license to small, local, neighborhood businesses that decide to have a little live music for the benefit of their customers.

This is completely within BMI and ASCAP’s legal rights. But just because they have the right to do it, it does not mean they should. As my friend John put it:

“At the restaurant, we wanted to support local artists and decided to start having live music on Friday nights. It was a big success. Our customers enjoyed the music and the band was happy to have a steady gig. Several months later a female lawyer came into our restaurant during lunch and demanded we buy a public performance license from BMI. She wanted $3000!”

“Even though we only played original music, she said we should buy the license anyway. Apparently, even if the band members use something as minor as a Led Zeppelin riff while they tune-up their instruments – that’s a violation.”

John’s experience illustrates exactly why BMI’s heavy-handed bullying can have a negative impact on the future of music. It wasn’t a “let’s work together” scenario. BMI didn’t offer John any alternatives – just pay up – or else. They wanted John to get a license simply because there was a slight chance of a future violation!

The purpose of copyright law is “to promote the progress of science and useful arts.” Copyright is the financial incentive that drives creative innovation. When properly administered, copyright can be a powerful tool for fostering greater creativity. However, BMI’s public performance license bullying in this situation resulted in the exact opposite – the progress of music was suffocated. John eloquently stated the result of BMI’s threat:

“I said the hell with it! We only have music on Friday nights. It’s not worth $3000. How is a neighborhood restaurant running on a razor-thin margin in this economy supposed to afford an extra $3000? So I cancelled the band. Net result? Our customers suffered, local music suffered. A complete lose-lose situation.”

The bottom line to BMI and other collective rights organizations? Your customers are not your enemies. Promoting live music is good for BMI and the artists they collect royalties for. Working together with local businesses rather than trying to bully and intimidate them will leave all parties better off.

As for John’s restaurant, it really is a shame. The coconut curry still tastes as awesome as ever. But the lively dueling banjos in the background are gone for good.

The above is a guest post by Allan Gregory. Allan is a bar-certified lawyer in the state of Florida, with a special interest in Internet Law.

Source: Music Copyright Police Ruin Artists’ Gigs (and Coconut Curry)

A “high court” for nobility, where people would be sentenced to pay a fine, issue a formal apology, or to lead armies into would-be colonies for ten years and return as rich as dragons. And a “low court” for the common folk, where people would be sentenced to branding, have their hands cut off, or sometimes just thrown in jail if it was a petty offense; like killing another commoner, which was a lesser offense than stealing from merchants.

When I grew up, school taught me that democracies in the West are proud of how everybody is equal before the law. It was not until I became a full-time politician that I realized what a joke this is.

In reality, the high courts and low courts have been reintroduced in silence. When Sony BMG broke into millions of computers worldwide in 2005, rootkitting them to disable their ability to run instructions that would violate Sony’s own interpretation of its copyright monopoly, Sony was sentenced to send out marketing material for its own products and no individual executives were charged. When LulzSec members were arrested for breaking into systems in the singular, they get the low court treatment.

When a commoner is accused of violating the copyright monopoly, in some draconian countries like France, they can be sent into social exile without even getting a trial in the low court. In contrast, the noble Voddler (a video-on-demand service) violated the GPL egregiously by using free software to build its service — but without resharing the code, thus violating the copyright monopoly that GPL builds on, and for thoroughly commercial purposes. They were never prosecuted. In contrast, they are now speaking at hearings in parliaments on how successful they are.

As a politician, I have learned that the rights of the commoners are never enforced against the noble, but that the monopolies of the noble are always enforced against commoners. This is not being equal before the law. When did this division of people happen? How did some become more equal than others?

And don’t get me started on how the copyright nobility sat at the tables of the ACTA drafting, but where the rest of us creators — who only hold just as strong monopolies in theory — were mere commoners who should not interfere with the regulations of the monopoly on truth and culture.

There are many more examples. In Sweden and several other countries, commoners have to pay a fee to the copyright nobility just to play their own music — as in their singlehandedly composed and performed music — in their own hair styling salon.

This is just a symptom. The high and low courts go well beyond the scope of the copyright monopoly.

Isn’t it about time we reconquered democracy and abolished the high and low courts? Again?

Source: Return Of The High Court And Low Court

The results claimed to support the effectiveness of a 3-strikes system for copyright infringers, but those who took a closer look saw that this was not the case.

As we pointed out, the results could also show that none of the current file-sharers would be deterred, as the question was also answered by the 78 percent of people who don’t even use file-sharing software.

The press release was nothing more that a cheap and misleading marketing stunt and it’s tricks like this that are causing the anti-piracy lobby to lose credibility at a rapid pace.

Just a few hours ago AFACT came out with another press release. This time they plug the results of a study they appear to be unrelated to, conducted by the University of Ballarat’s Internet Commerce Security Laboratory (ICSL). These are the same researchers who released some rather incompetent reports in the past, but their latest study shows signs of improvement.

As AFACT is happy to point out, the researchers conclude that 97.2 percent of the most popular files on BitTorrent are infringing (and that a lot are faked). Although this conclusion is probably not too far off, not all journalists are eager to pick it up as some are starting to see that AFACT has a habit of twisting the truth.

In a piece titled “Fooling some of the media, some of the time,” Canberra Times journalist Myles Peterson explains his concerns.

When Peterson received the three-strikes study press release last week he couldn’t help but notice that News Corp newspapers received the details before ‘regular’ journalists did. Yes indeed, that is the same News Corp organization that is a partner of anti-piracy groups such as IPAF, DEAA and AFACT.

“Last Monday, The Australian ran a full-court press in print and online dubbed ‘Piracy, the disease that’s crippling our creative industries’, comprising a number of articles from various angles, all attacking the scourge of online file sharing. Articles also appeared in News Corp tabloids The Adelaide Advertiser and The Daily Telegraph,” Peterson writes.

“That’s odd, I thought. The avalanche of coverage seemed to disproportionately reference the new study. Would a media outlet co-operate with a lobby group to generate mass coverage of a topic, I wondered.”

While following up on the study, Petersen noticed that various Australian anti-piracy outfits are conveniently sharing personnel. This, added with the recent Wikileaks revelation that the MPAA is the driving force behind these groups, lead to further doubts. They were only heightened when the obvious flaws in the ‘independent’ study were pointed out by us.

Using journalists in a propaganda war orchestrated by foreign companies wasn’t a very pleasant thought to Petersen.

“The story behind the stories, both those that appeared in News Corp media and TorrentFreak’s balancing rebuttal, stayed with me, as did a series of worrying questions. Are AFACT, the DEAA and IPAF being co-ordinated by the same group of people? Are these people being directed by the Motion Picture Association of America, as the WikiLeaks cable suggested? ” he writes.

“What stuck with me most was a similar concern to one uttered recently by Australian Greens leader Senator Bob Brown. Did a group of journalists put together a press campaign based on a biased study supplied by a lobby group that represents their own employer?”

And if that’s not bad enough, in a few days the anti-piracy outfits have a meeting at the Federal General Attorney’s office to push their agenda at the highest level. The fear is that this talk will be far from balanced, and we can only hope that the hosts will be able to see through it.

“When our federal lawyers host these lobby groups at the end of the week, I hope they cast a more critical eye over any research presented than certain media outlets did. I also hope they are able to work out which person in the room represents the ACIG, AFACT, DEAA, IPAF, MPA, MPAA or all of the above,” Petersen concludes.

The good news is that the piece in the Canberra Times shows that not all journalists are indirectly working for the MPAA. Increasingly, we see skepticism towards the continuous stream of anti-piracy propaganda and more room for a sensible discussion about the topics at stake. Perhaps the tide is turning?

Source: Press Starts to Doubt Anti-Piracy Propaganda Machine

But politics moves slowly. It’s part of what it is. Having successes on this scale two years apart is rapid succession. It takes decades for new values to gain mainstream acceptance, but only a few major successes to turn the tide.

The polls for the German Pirate Party — the Piratenpartei — vary a bit ahead of tomorrow’s election, but one thing is clear; they are well above the five-percent limit needed for parliamentary representation. Newspapers in Berlin had the news of Piratenpartei entering Parliament all over the front page yesterday.

So what does this mean? What is the Parliament in Berlin, anyway?

Germany is not so much a country, as it is a federation of countries (länder). Berlin is a country about the same size as Oregon or New Zealand, with roughly four million people. But being the capital of Germany, it has a certain clout — in particular internationally.

It is the Parliament in the state of Berlin that the Piratenpartei is about to enter (and not the German Parliament at the federal level, the Bundestag; those elections are in 2013.)

Then again, what does this mean in practice?

It will teach the copyright industry that the success of the Swedish Piratpartiet in 2009 was not an isolated phenomenon. I have frequently said that the Pirate movement is for this decade what the Greens were in the 1970s; it is a worldwide grassroots movement present and growing everywhere. The copyright monopoly and security theater pundits will definitely not like seeing this coming true, and political analysts worldwide know that Berlin tends to be an international political trendsetter.

Also, we succeed together. The Swedish success in the European elections in 2009 was a tremendous boost for the Pirate Party movement worldwide. Tomorrow will have the same effect. We fight for civil liberties together, shoulder to shoulder, and we succeed together. News outlets are already talking about the Berlin election and the Piratenpartei worldwide — Taiwan, Africa, Ireland, United States. And that’s still before the election itself.

If you had any doubt and live in Berlin, join in creating history tomorrow. Vote Pirate.

Tomorrow, the 18th of September, the German Piratenpartei enters the Berlin Parliament.

And the day after the elections, the 19th of September, is International Talk Like A Pirate Day. Isn’t that fitting. I’m sure many politicians will.

Source: Tomorrow, Pirates Write History Again

Thinking about what hurts and doesn’t hurt sales misses the point entirely. A corporation’s profits must never be at the center of policymaking, much less the center of determining what fundamental civil liberties we have as free citizens.

You remember Blackwater Security? The wet-jobs security firm that the US military hires for jobs abroad, jobs that violate the military’s own regulations to the moon and back?

When Blackwater Security was playing Grand Theft Auto among civilians in Iraq in retaliation for the 9/11 attacks, with which Iraq had nothing to do, how would you react if they had issued the following statement?

– “Our profits are being hampered by the civilians’ rights. It is not fair. In all fairness, we demand that torture should be allowed preemptively to find suspects or people that we find interesting, or because it can boost our profit. Also, we demand the right to detain civilians at will and indefinitely, because we could charge Uncle Sam for that too, boosting our profits even further.”

How would you react to that?

Let’s take another scenario from Blackwater in Iraq:

– “Our profits are being hampered by the rights of the people. It is not fair. Our profits are falling. In all fairness, we demand the introduction of wanton censorship, allowing us to discover and prevent people from talking about subjects we don’t like. Also, we demand to hold messengers responsible to some amount of punishment we determine if they carry sealed letters containing something we don’t like. That way, our profits could perhaps be restored to their former glory. After all, it’s only fair.”

Would this demand from Blackwater Security in Iraq perhaps seem reasonable? They’re asking for the dismantlement of rights on the same level as the right to not be tortured, not to be detained without due cause, and similar rights.

Well, this is exactly what the copyright industry is demanding. Exactly this.

The rational emotional reaction to this is an immediate desire to personally kick the living shit out of these pretentious bastards. After proper impulse control has been applied to this desire, the proper official poker-faced response — if any — is that the world owes them nothing, preferably coupled with sharp reductions in existing monopoly privileges.

If somebody had written a dystopic novel in the 1980s illustrating how some subjects had been forbidden, and if you would speak about them on the phone, a voice would pop in and say, “You have mentioned a forbidden subject. This has been noted. Please refrain from discussing forbidden subjects” — if somebody had written this, people would have dismissed it out of hand as being too dystopic, too unrealistic. This could never possibly happen, people would have said, shaking their heads.

Try posting a link to a torrent on The Pirate Bay on your wall on Facebook and see what happens. People in the 1980s would have been horrified, people on both sides of the Iron Curtain. All in the name of protecting profits for a cartelized industry with monopoly benefits.

The job of any entrepreneur is to construct a use case and a business case that allow them to make money, given the current constraints of society and technology. They do not get to dismantle civil liberties, even if they can’t make money otherwise. That goes for Blackwater Security as well as the copyright industry as well as every other entrepreneur on the planet.

When our parents sent a letter in the mail, nobody was allowed to open it to check if it contained a copied poem, which would infringe on the copyright monopoly. When our parents sent a letter in the mail, they and they alone determined if they identified themselves as sender on the outside of the envelope, inside the envelope, or not at all. When our parents sent a letter in the mail, the mailman was never held responsible for the contents of that letter, regardless of if the contents infringed a particular copyright monopoly or were even downright illegal.

It is entirely reasonable to demand sternly that our children have the same rights as our parents and grandparents had. A particular corporation’s profitability does not factor into it.

— — —

Rick Falkvinge is a regular columnist on TorrentFreak, sharing his thoughts every other week. He is the founder of the Swedish Pirate Party, a whisky aficionado, and a low-altitude motorcycle pilot. His blog at http://falkvinge.net focuses on information policy.

Follow Rick Falkvinge on Twitter as @Falkvinge and on Facebook as /rickfalkvinge.

Source: I Don’t Care About Your Profits, And It Enrages Me That You Think I Should

The European Strategy: Send Money to the US

Most of the time, the international politics of intellectual property law are pretty easy to follow: countries that are large exporters of intellectual property usually favor stronger international IP agreements that help exploit international markets.  Countries that are large importers of IP, in contrast, generally favor lower levels of IP protection that minimize the outflow of royalties, licensing fees, and other payments for foreign-owned products and technologies–whether computers, drugs, movies, or books.  Whatever other rhetorics are in play, from the rights of authors to the right to development, political positions usually line up with those underlying incentives.

The turn toward the use of trade agreements to set IP obligations–from the early bilateral agreements of the 1980s to the WTO’s TRIPS agreement in the early 1990s–more or less formalized this instrumental approach to IP law.  Trade agreements, at the end of the day, are about economic deals–not morality or even fairness.  For anyone clinging to a moral interpretation of these arrangements, it’s worth revisiting at the US and EU positions in the South African AIDS drug controversy from the late 1990s or more recent opposition to the proposed WIPO treaty for the visually impaired.

I raise this not to attack trade agreements, but to ask some similarly instrumental questions about the European Commission’s position on IP rights and enforcement.  Over the past two decades, the EC has been a very active proponent of higher IP standards and stronger enforcement, from the ACTA agreement, to the upcoming revision to the Enforcement Directive, to the imminent extension of copyright on recordings (see here).  Let’s ask the obvious question: why?

Follow the Money

I’ll focus on audiovisual markets and piracy, since these are driving the EC and wider EU push on enforcement.  Media piracy–not counterfeits–are why we’re talking about major changes to the emerging digital architecture of public life, including Internet surveillance, ’3-strikes’ disconnection laws, public and private censorship of websites, and a host of other measures.

So where do the EU’s economic interests lie?  Let’s look at the numbers:

*** According to the World Bank, Europe’s audiovisual imports exceed its exports by a ratio of around 4-1.  In 2008, Europe (EU 27) imported roughly $14.7 billion in audiovisual and related services (basically, licenses for movies, TV, radio, and sound recording).  In contrast, it exported about $3.9 billion, for a net trade deficit of $10.8 billion  (International Trade Statistics 2010: 156).

*** About 56% of those imports ($8.35 billion) come from the US.  The EU, in turn, exports about $1.7 billion to the US, resulting in a net negative trade balance of around $6.65 billion.  This does not include software licenses, where US companies monopolize larger parts of the European consumer and business markets.

*** The US, in contrast, is a large net exporter of audiovisual goods, with roughly $13.6 billion in exports and $1.9 billion in imports.

For countries or regions that are net importers of copyrighted goods, higher IP standards and stronger enforcement will result in increased payments to foreign rights holders.  Because the US thoroughly dominates European audiovisual markets, stronger enforcement in these areas is, in practice, enforcement on behalf of Hollywood.

Now, one can make this story more complicated.  The vast majority of European audiovisual production is for domestic or intra-European consumption.  Exports from European countries to each other significantly outweigh exports outside the EU (by about 50%).  Won’t stronger IP laws and enforcement capture more benefits for European industry?  Probably, but these should not be confused with overall benefits to the European economy.

Here’s how we put it in our Media Piracy report:

Domestic piracy may well impose losses on specific industrial sectors, but these are not losses to the larger national economy. Within a given country [or in this case, region], the piracy of domestic goods is a transfer of income, not a loss. Money saved by consumers or businesses on CDs, DVDs, or software will not disappear but rather be spent on other things—housing, food, other entertainment, other business expenses, and so on. These expenditures, in turn, will generate tax revenue, new jobs, infrastructural investments, and the range of other goods that are typically cited in the loss column of industry analyses.

To make a case for national economic harms rather than narrower sectoral ones, the potential uses of lost revenue need to be compared: the foregone investment in the affected industries needs to represent a better potential economic outcome than the consumer surplus generated by piracy (Sanchez 2008). The net impact on the economy, properly understood, is the difference between the value of the two investments. Such comparisons lead into very complicated territory as marginal investments in different industries generate different contributions to growth and productivity. There has been no serious analysis of this issue, however, because the industry studies have ignored the consumer surplus, maintaining the fiction that domestic piracy represents an undiluted national economic loss.

For our part, we take seriously the possibility that the consumer surplus from piracy might be more productive, socially valuable, and/or job creating than additional investment in the software and media sectors. We think this likelihood increases in markets for entertainment goods, which contribute to growth but add little to productivity, and still further in countries that import most of their audiovisual goods and software—in short, virtually everywhere outside the United States.

The EC clearly speaks for the European audiovisual industries on these issues, who stand, in theory, to gain from stronger IP enforcement (or maybe not!).  But who speaks for the massive and very real consumer surplus?  No one.  I’m aware of only one study that makes any effort to model it: the Dutch government funded “Ups and Downs: Economic and Cultural Effects of File Sharing on Music, Film and Games,” which estimated the annual welfare benefit from music filesharing in the Netherlands at around 100 million euros.  Multiply by 30 for a very crude extrapolation of this benefit across the EU.

Whose Piracy is It?

But to what extent does piracy actually impact European movies?  For better and for worse, the answer appears to be: very little.  Ernesto at TorrentFreak  regularly compiles lists of the top ten films downloaded via BitTorrent, which generally track recent Hollywood hits.  He generously furnished me a ranking of the 99 top downloaded movies for the first half of July (99 because the top 100 included Thor under two different titles).  Although not a rigorous sample, I’d suggest that it is  a decent proxy for the global demand for film.  Among these 99 films:

*** 74 were solely US productions
*** 3 were solely European productions
*** 3 were Indian productions
*** 17 were jointly produced by the US and one or more other countries, including 14 with European companies.
*** UK production companies were solely responsible for 2 films, and partnered in 11 more.
*** German companies co-produced 4 films.
*** Canadian companies co-produced 3 films.
*** South African and New Zealand companies were sole producers of 1 film each. Japan and Romania co-produced 1 each.

French production is an interesting case given the leading French role in promoting both strong IP protection and Europeanist cultural politics–including the well known ‘cultural exception’ for trade in audiovisual goods and services.  French companies figure in only 4 films on the list—and in no cases for movies filmed in France, in French, or prominently involving French actors or filmmakers. The No.1 film on the list, Source Code, was co-produced by Vendome Pictures–a relatively new French production company dedicated to producing, by all appearances, American movies.  Source Code stars Jake Gyllenhaal and was filmed in Chicago.

Another feature of this list is that 97 of 99 of the films are in English (the two non-English films are Indian).  The list makes a strong case that, in the absence of licensing barriers, the international market is an English language market and more particularly a Hollywood market that occasionally involves foreign production partners.

Even the long tail (down to #99 at least) isn’t European.  For the most part, it’s composed of the Hollywood movies from the last year that you’ve never heard of: the Kevin Bacon filmElephant White; the girl surfer/shark attack/Dennis Quaid movie Soul Surfer; the Russel Crowe/Elizabeth Banks film, The Next Three Days; the Topher Grace/Anna Faris flick, Take Me Home Tonight, and many others. According to the MPAA, 677 film were produced by US production companies in 2009.  That’s a lot of movies that go straight to the back catalog! And even that number is well off the peak of 2006-2007.

Is this the sign of a European cinema in decline?   Not if we look at the number of feature films produced, which should certainly factor into any account of piracy’s effects on incentives to produce.  The number of feature films produced in Europe has increased every year in the last five.  Almost 1200 were produced in 2009.

[The blue part of the chart is the percentage of a film's total audience that it receives in its home country (vs. the rest of Europe). Source]

Some of this insularism reflects linguistic and cultural differences within Europe.  And some of it reflects the fragmentation of the European market.  The burden of rights clearance across 27 countries and innumerable production companies makes it very difficult to distribute European films widely within Europe–and far more difficult, in particular, than licensing large catalogs from the six US studios.  The EC has made reducing these market barriers a high priority, but has shown less certainty about how to move forward.  As EC reports have noted:

The practice of territorial licensing has a lot to do with commercial decisions based on the structure of a European market that is characterised by linguistic and cultural differences, as well as by high transaction costs in distributing local content across borders. (p.185)

In other words, it’s not clear where the market obstacles stop and the mismatch of product with demand begins.

Here, our list of downloaded films points to the future–and to the main dilemma facing European cultural policy.  The emergence of a more unified audiovisual market suits both the political project of European unity and the culturalist project of making more European productions available to more Europeans.  Given the current constraints, lower barriers to licensing will certainly increase the range of European offerings to European consumers.

But there’s a catch: so far, the European market and–beyond that–the global market, has had little to do with expressions of cultural specificity or auteur-driven visions.  It has to do, above all, with making films in English that minimize those particularities.  It means producing a Europe built around historical epics (Ironclad), sci-fi/fantasy (Inception, Harry Potter) or, often quite literally, the perspective of the universal (American) tourist, like last year’s The Tourist (Johnny Depp in Venice) or Unknown (Liam Neeson in Berlin).

All of the above were joint US/EU productions on our July download list.  And it means a European film industry reorganized further into an investment vehicle for Hollywood movies, like Vendome Pictures, the now defunct publicly-funded Medienfonds in Germany (Battlefield Earth,Terminator 3), or Luc Besson’s massive, soon-to-be opened Cite du Cinema north of Paris.

My goal is not to make an anti-Hollywood argument here.  There are pros and cons to this system of public subsides, and greater integration into the global market might be, on balance, a good thing in business and cinematic terms. But it is important to be clear about the future that the EC is promoting with its IP policies.  It is not a defense of European heritage or–primarily–a vision of the French auteur able to bring his or her distinctive vision to a global audience. It’s a vision of European production companies  as slightly better integrated junior partners in global Hollywood.

It’s this junior partnership that should be weighed against the wider sacrifices of privacy and freedom of speech built into so many recent national and EC-level IP enforcement policies, such as the French ’3-strikes’ plan, which will cut French citizens off of the Internet for the piracy of Hollywood productions.  Strong enforcement reinforces status quo positions in the market, but at an escalating public cost as consumer behavior becomes the real focus of enforcement activities.  There is nothing in these policies will alter the balance of cultural power or change the direction of payments.  That’s why I’ve characterized the EC enforcement plan as: “send money to the US.”

Moralizing IP rhetoric is also a handicap in this context.  Continuing to defend IP as a fundamental right long after it has been made an object of trade policy is to surrender any real leverage in making deals.  A trade negotiator would be very lucky have such a partner on the other side of the table.  Where could Hollywood find such a partner?

How the European Commission Took Up the Cause of Hollywood

I know and understand that our french conception of author’s rights isn’t the same as in the United States or other countries.  I simply want to say that we hold to the universal principles proclaimed in the American constitution as much as in the Declaration of the Rights of Man in 1789: that no one should have the product of their ideas, work, imagination–their intellectual property–expropriated with impunity.

Each of you understands what I say here because each of you is also a creator, and it is in virtue of these creator’s rights that you have founded businesses that today have become empires.  The algorithms that give you your strength; this constant innovation that is your force; this technology that changes the world is your property, and nobody contests it.  Each of you, each of us, can thus understand that the writer, the director, or the performer can have the same rights. – French President Sarkozy, opening the ‘e-G8? conference that he convened this past April.

With this fulsome praise of tech and media CEOs at the e-G8, Sarkozy expressed the basic European cognitive dissonance on IP:  the embrace of universal rights as a way of pretending equality with the real powers in the room.  More cynically, it is the embrace of the foreign agenda as a way of rewarding the local junior partners.  Indigenous elites used to play this game with the French back when they had the empire.

How did Europe get here?  Tellingly, there was initially little European enthusiasm for a broad trade agreement on IP in the 1980s.  By most accounts, lobbying by US tech and pharmaceutical industries made the difference, capitalizing on a wider overestimation of–and nostalgia for–Europe’s role as a cultural superpower, when it was the primary beneficiary of stronger international IP laws.  More narrowly, the European Commission’s IP activism can be traced to the actions of a handful of American CEOs, who convinced their European counterparts of the benefits of a global IP deal in the run-up to the WTO agreement in the 1980s.   Those counterparts, in turn, applied pressure on their national governments and, through them, the EC.

This gambit has been described in several histories of the WTO negotiations, including Peter Drahos and John Braithewaite’s excellent Information Feudalism.

EC bureaucrats were less keen on trying to harmonize intellectual property standards via the trade regime. They had had some experience of the difficulties of trying to harmonize intellectual property standards in Europe. Some states, such as Germany and the UK, were keen on higher standards while others, such as Spain and Italy, were not so inclined. The view coming out of the EC at this time was to press on with the initiative on counterfeiting in the GATT (a lot of luxury European trade marks were the subject of counterfeiting) and make a general IP code a much longer-term priority….

The problem facing Pratt and Opel [Edmund Pratt, CEO of Pfizer and John Opel, Chairman of IBM] was clear enough. They had to convince business organizations in Quad countries [the US, the EU countries, Japan, and Canada] to pressure their governments to include intellectual property in the next round of trade negotiations. That meant first convincing European and Japanese business that it was in their interests for intellectual property to become a priority issue in the next trade round…..

Pratt and Opel’ s response was swift. In March 1986 they created the Intellectual Property Committee (IPC).24  The IPC was an ad hoc coalition of 13 major US corporations: Bristol-Myers, DuPont, FMC Corporation, General Electric, General Motors, Hewlett-Packard, IBM, Johnson & Johnson, Merck, Monsanto, Pfizer, Rockwell International and Warner Communications. It described itself as ‘dedicated to the negotiation of a comprehensive agreement on intellectual property in the current GATT round of multilateral trade negotiations’ (pp.117- 118) ….

Enrolling European business in the network was the essential first step for the IPC… The IPC had established a line of dialogue with the Union of Industrial and Employers’ Confederations of Europe (UNICE) in November 1986. It proved vital. In Europe’ s more hierarchically ordered world of business lobbying, UNICE was the key portal of European business influence on the EC. During 1986 and 1987 close cooperation developed between UNICE representatives and EC officials; UNICE was given the opportunity to comment on the EC’ s negotiating position and drafts. In May 1987 UNICE produced its own position paper on GATT and intellectual property arguing that the EC’ s approach was ‘deemed too narrow by European industry’ and that the ‘scope of the negotiations must be broadened’ to include other areas of intellectual property where European industry was making heavy R&D investments.  In the following months this became the position of European Community negotiators (p.128)….

Perhaps what US CEOs were able to sell to their European and Japanese counterparts was a vision of a globally secure business future. Ultimately, US corporations might do best out of the globalization of intellectual property standards. A world in which US corporations were dominant but European and Japanese corporations still remained powerful players and strategic partners was preferable to a world in which corporations from all these countries faced competition from increasingly efficient developing country manufacturers. It made sense for the most powerful corporations from the world’ s three strongest economies to collaborate on a project that would enable them to lock up the intangible assets of business in the new millennium and allow them to use those assets to set up production facilities wherever it suited them best. The international character of their production along with their need to capture new markets became the basis of the mutual interest needed for an alliance between them. (p.119) ….

Although they never quite grasped the fact, European trade negotiators had more in common on intellectual property standards with their developing country counterparts than they realized. The US initiative on intellectual property was aimed at European and Japanese markets as much as it was at the tiger economies of Asia. (p.83)

So what would a disenchanted, liberated EC do?  As an American citizen, it is perhaps presumptuous to make suggestions.  But as a French citizen, hey, it’s my EC too!

It could start by distinguishing more clearly between the broader welfare interests of EU citizens and the commercial interests of junior production partners in global Hollywood.  In an earlier era,  it was plausible to think of these commercial and public interests as substantially the same.  Movies were cheap and played a much larger role in public culture.  French or German or Swedish cinemas made stronger claims to being globally-relevant, distinctive national cultural champions.  Copyright infringement was harder, less frequent, and generally industrially organized, which made enforcement a relatively painless proposition.

Today is different.  As IP enforcement targets individual behavior and comes into conflict with other basic values (privacy, freedom of expression), commercial and public interests have begun to diverge.

The EC could also think differently about Europe’s opportunities in the larger digital media transition.  Where some parts of the EU audiovisual industries lose from piracy, the larger impact is chronically exaggerated in EC statements and mitigated (if not completely overshadowed) by the EU system of public subsidies for production.  This may be an inefficient system that produces a lot of movies that relatively few people want to see, but it’s arguably a pretty good model for managing the transition to a more fully realized digital media economy, in which piracy drives the development of cheap, legal, digital access (see Netflix, Hulu, Spotify), and public subsidies ensure that there’s a lot of relatively rich European content to distribute. That, it seems to me, is a plausible vision of a digital media economy that leverages Europe’s strengths, rather than reinforces its weaknesses through a costly war on internet users.

Creating a more unified European audio-visual market is an important goal in this context, but also an achievement that is likely be built on the homogenization of EU production.  The public subsidy model is probably the only counterweight–at a continued cost to wider commercial prospects.  Struggling to adopt the fragile economics of Hollywood blockbusters, in contrast, is a risky bet that should probably be left entirely to the commercial sector.  Leading the way in strengthening digital enforcement seems like an especially bad choice in this context since its short term effect is just to send money the US.  Europe has little to lose from a wait-and-see approach.

De-moralizing the IP debate is also an important step.  At the Americans’ insistence, it’s a trade policy debate now, and nothing should be freely conceded by the lesser partner in those trades.  What, in other words, do the French get in return for enforcing Hollywood’s copyrights?  The answer should not be limited to: the dignity of the French auteur.  Don’t bring a knife to a gun fight.

Source: Europe’s Odd Anti-Piracy Stance: Send Money to the US!

(This is why some senior citizens still refer to refrigerators as “ice boxes“.)

When households in Stockholm were electrified in the first half of the last century, these distributors of cold were made obsolete. After all, what they distributed was the ability to keep food cold, and everybody could suddenly do that themselves.

This was a fairly rapid process in the cities. With the availability of the refrigerator from circa 1920, most households had their own refrigerator by the end of the 1930s. One of the city’s largest employers — distributors of cold — had been made totally obsolete by technical development.

There were many personal tragedies in this era as the icemen lost their breadwinning capacity and needed to retrain to get new jobs in a completely new field. The iceman profession had often been tough to begin with, and seeing your industry disintegrate in real-time didn’t make it any easier.

But here are a few things that didn’t happen as the ice distribution industry became obsolete:

No refrigerator owner was sued for making their own cold and ignoring the existing corporate cold distribution chains.

No laws were proposed that would make electricity companies liable in court if the electricity they provided was used in a way that destroyed icemen’s jobs.

Nobody demanded a monthly refrigerator fee from refrigerator owners that would go to the Icemen’s Union.

No lavishly expensive expert panels were held in total consensus about how necessary icemen were for the entire economy.

Rather, the distribution monopoly became obsolete, was ignored, and the economy as a whole benefited by the resulting decentralization.

We’re now seeing a repeat of this scenario, but where the distribution industry — the copyright industry — has the audacity to stand up and demand special laws and say that the economy will collapse without their unnecessary services. But we learn from history, every time, that it is good when an industry becomes obsolete. That means we have learned something important — to do things in a more efficient way. New skills and trades always appear in its wake.

The copyright industry tells us, again and again and again, that if they can’t have their obsolete distribution monopoly enshrined into law with ever-increasing penalties for ignoring it, that no culture will be produced at all. As we have seen, equally time and again, this is hogwash.

What might be true is that the copyright industry can’t produce music to the tune of one million US dollars per track. But you can’t motivate monopoly legislation based on your costs, when others are doing the same thing for much less — practically zero. There has never been as much music available as now, just because all of us love to create. It’s not something we do because of money, it’s because of who we are. We have always created.

What about movies, then? Hundred-million productions? There are examples of garage-produced movies (and one even has beat Casablanca to become the most-seen movie of all time in its native country). But it may be true that the argument is somewhat stronger with the blockbuster-type cinema productions.

I’m going go out on a limb here and say, that even if it is true that movies can’t be made the same way with the Internet and our civil liberties both in existence, then maybe it’s just the natural progression of culture.

I spend quite a bit of time with teenagers through my work with the Pirate Party. One thing that strikes me is that they don’t watch movies, at least nowhere near the quantity I did when I was a teenager. Just like I threw out my TV set 15 years ago, maybe this is just the natural progression of culture. Nobody would be surprised if we moved from monologue-style culture to dialogue- and conversation-type culture at this point in history.

After all, we have previously had operettes, ballets, and concerts as the high points of culture in the past. Even radio theaters (and famous ones). Nobody is particularly concerned that those expressions have had their peak and that society has moved on to new expressions of culture. There is no inherent value in writing today’s forms of culture into law and preventing the changes we’ve always had.

Everywhere I look, I see that the copyright monopolies need to be cut down to allow society to move on from today’s stranglehold on culture and knowledge. Teenagers today typically don’t even see the problem — they take sharing in the connected world so totally for granted, that they discard any signals to the contrary as “old-world nonsense”.

And they certainly don’t ask for a refrigerator fee.

— — —

Rick Falkvinge is a regular columnist on TorrentFreak, sharing his thoughts every other week. He is the founder of the Swedish Pirate Party, a whisky aficionado, and a low-altitude motorcycle pilot. His blog at http://falkvinge.net focuses on information policy.

Follow Rick Falkvinge on Twitter as @Falkvinge and on Facebook as /rickfalkvinge.

Source: Nobody Asked For A Refrigerator Fee

Janko’s observation drew a rebuke from Alex Swartsel at the MPAA, who described it as the “casual promotion of the idea that stealing movies, TV shows and music is a perfectly acceptable way to save money”, and went on to equate copyright infringement to physical theft in conjunction with other common arguments.

Both TorrentFreak and Mike Masnick at Techdirt responded to the MPAA’s comments and although we had very different approaches to the issue, we were in agreement – Janko hadn’t promoted illegal behavior of any kind.

Today, Alex at the MPAA published a response which seemingly for the purposes of debate toys with the idea that that some people may well download content in an economic downturn.

But if we rewind a few years, wasn’t it former MPAA chariman Dan Glickman making the same assertion – and meaning it?

During the December 2008 forum held by the Center for Strategic and International Studies, Glickman was expressing concern, according to AFP, that piracy on the streets and online might increase in the near future. But what would drive this phenomenon?

“If you look at the situation, the current economic crisis makes this problem much more serious than before,” he told the forum. “If we don’t protect IPR (intellectual property rights), our economic losses will be far worse.”

Now, just a few years later, similar words from bloggers and journalists draw complaints from the MPAA that piracy is being “casually promoted”.

Getting back to Alex Swartsel’s second post published today, instead of admitting that a link could exist between people’s piracy habits and their financial position, Swartsel continues to argue that people should not be inclined to pirate, ever. “Movie and TV theft is inevitable,” is a statement Alex can’t subscribe to.

“Why? Because it’s easy to steal something that, in physical form, exists only as data, and easy to justify stealing it as a result? Because information wants to be free, no matter the cost it took to produce or its creators’ judgments about how best to disseminate it? Because anything is fair game once it’s on the Internet?”

Alex then goes on to pick Mike up on his point that the MPAA should “adapt and deal with reality.” In basic terms, with a couple of omissions, the “reality” can be found in the quote from Alex above.

The Internet is a great big copying machine and yes, when something exists only as data it is ridiculously easy to copy and yes, some people will do that if they can. Information does want to be free and unfortunately the costs of creating that information, for the purposes of this debate, are simply irrelevant. The cost to the downloader is virtually nil and in the majority of cases, rightly or wrongly, the financial implications study will end right there.

The MPAA obviously feel they have no choice but to try and stamp out piracy, and that is their prerogative, but they are facing a general public, as Mike Masnick points out, who feel that downloading movies and TV shows is socially acceptable.

For this reason file-sharing of one form or another – for good or for ‘evil’ – isn’t going away and will continue to be the method of choice for a large number of Internet users to consume media. This is the “reality” and, to use the word that Alex won’t accept, it is indeed almost inevitable.

However, the “reality” according to Alex is that there are “more options than ever before to get movies and TV shows online safely and legitimately – we have a list on MPAA.org here, and the creative minds in our industry are working on even more as we speak.”

Well that’s good news indeed, since after trying more than a dozen of the provided links with my non-US IP address I couldn’t find a single one which would let me watch anything . The Pirate Bay, however, has no geo-lockout. Another uncomfortable ‘reality’.

“But if what Masnick means is that we need to throw up our hands and look the other way while people who had nothing to do with making a movie or a TV show steal and profit from it, that is a reality to which we do not care to adapt, period,” Alex concludes.

But of course Mike isn’t suggesting that nothing be done, he’s suggesting that what is currently being done to compete with piracy needs much more work. The reality here is that he’s absolutely right.

The reality is that just about every movie and TV show, no matter how old or how new, is available to every internet user almost immediately and the studios don’t provide that service. Until they do piracy will continue, through this economic downturn and the next.

Source: Economic Crisis Fuels Will They, Won’t They, Piracy Debate

“A very balanced proposal,” said the copyright monopolists in an entitled tone of voice. “Shameless mail-order legislation,” said everybody else.

On arriving in parliament, the proposal was thrown unceremoniously into the wastepaper basket, sponsored by no one.

The copyright industry just wants more, more, and more, and they don’t think twice about ruining our hard-won fundamental civil liberties to prop up their crumbling monopoly and control. When one tough measure doesn’t work — and they never do — the copyright industry keeps demanding more.

A few centuries ago, the penalty for unauthorized copying was breaking on the wheel. It is a term we’re not very familiar with these days, but it was a form of prolonged torturous death penalty where the convict first had every bone in his body broken, and then was weaved into the spokes of a wagon wheel and set up on public display. The cause of death was usually thirst, a couple of days later.

The copy monopoly in those days concerned fabric patterns. It was in France, prior to the revolution. Some patterns were more popular than others, and to get some additional revenue to the crown’s tax coffers, the King sold a monopoly on these patterns to selected members of the nobility, who in turn could charge an arm and a leg for them (and did so).

But the peasants and commoners could produce these patterns themselves. They could produce pirated copies of the fabrics, outside of the nobility’s monopoly. So the nobility went to the King and demanded that the monopoly they had bought with good money should be upheld by the King’s force.

The King responded by introducing penalties for pirating these fabrics. Light punishments at first, then gradually tougher. Towards the end, the penalty was death by public torture, drawn out over several days. And it wasn’t just a few poor sods who were made into public examples: sixteen thousand people, almost entirely common folk, died by execution or in the violent clashes that surrounded the monopoly. In practice, everybody knew somebody who had been horribly executed for pirating.

Here’s the fascinating part:

Capital punishment didn’t even make a dent in the pirating of the fabrics. Despite the fact that some villages had been so ravaged that everybody knew somebody personally who had been executed by public torture, the copying continued unabated at the same level.

So the question that needs asking is this:

When will the copyright industry stop demanding harsher punishments for copying, since we learn from history that no punishment that mankind is capable of inventing has the ability to deter people from sharing and copying things they like?

— — —

Rick Falkvinge is a regular columnist on TorrentFreak, sharing his thoughts every other week. He is the founder of the Swedish Pirate Party, a whisky aficionado, and a low-altitude motorcycle pilot. His blog at http://falkvinge.net focuses on information policy.

Follow Rick Falkvinge on Twitter as @Falkvinge and on Facebook as /rickfalkvinge.

Source: And When Even The Death Penalty Doesn’t Deter Copying — What Then?

Both lawyers discuss whether someone can be held liable for the copyright infringements committed by others on their Internet connection.

The opinion below comes from Nicholas Ranallo, who is a licensed attorney in California and New York. He currently resides in Boulder Creek, California and is building a solo practice handling emerging issues in Intellectual Property, Internet law and e-commerce.

Ranallo’s opinion focuses on the question of whether people are liable for the copyright infringements of others, which may occur when they operate an open WiFi network or when they share their internet access with roommates or employees.

The other post in this series, which argues the opposite of Ranallo (but focusing on the open WiFi angle only), can be found here. We thank both Ranallo and Randazza for their contribution.

—

Liability for 3rd Party Copyright Infringement: A Lawyer’s Take on Misleading Legal Claims by Pre-Settlement Trolls

The continuing adventures of the copyright trolls have been covered widely on this blog and others, so I will limit my thoughts today to one particular aspect of the scheme: Copyright trolls’ claims regarding your responsibility for someone else’s infringement of copyrighted works.

Or in other words, are you liable for the infringements of other people when you choose to leave (parts of) your wiFi network open to friends, family or even complete strangers. In the press many of the attorneys representing copyright holders claim you are. Some even have a dedicated section on the topic included in with their settlement letters.

Lawyer John Steele for example, uses the following description, which he has ironically enough pirated from a FAQ that competitor copyrightsettlements.com hosts on its website.

“If you are unfamiliar with the copyright protected file or content, we normally find that the infringement was the result of a spouse, child, roommate, employee, or business associate uploading, downloading or otherwise sharing or displaying the copyright protected material over your Internet connection. Infringements can also result from an unsecured wireless network. In any of these scenarios the Internet Service Provider (ISP) account holder is still legally responsible for the infringement(s) and settlement(s) fees.”

This statement needs to be deconstructed and examined. There is a lot of (mis)information in there, with many startling claims about copyright liability.

As a whole, the trolls’ statement of your potential defenses reminds me a lot of the mob’s policy on similar issues in Goodfellas : Your roommate downloaded this? F__k you, pay me. Your child downloaded this? F__k you, pay me. Your ‘business associate’ or someone you’ve never met downloaded this? You get the idea.

Perhaps it’s not surprising that the flow chart at copyrightsettlements.com always ends up at “you are guilty,” however THIS IS NOT THE LAW. In fact, their claims are legally incorrect in a fun assortment of ways. I’m going to focus only on the ways that it’s incorrect under existing copyright law in this article.

Third-Party Liability for Infringement under Existing (Real) Copyright Law

It’s important to focus on the concept of third-party liability under copyright law because the copyright trolls’ entire scheme is built on one particular aspect of copyright law – statutory damages. Normally, a plaintiff’s recovery is limited to actual damages, or the monetary measure of the actual harm done. The copyright law, however, imposes statutory minimum and maximum penalties that are grossly disproportionate to the value of an actual work (i.e. one copy of a song or video), up to $150,000 for the most egregious infringements. Perhaps not surprisingly, this $150,000 figure gets cited a lot by copyright trolls as the amount to which they will be entitled if they sue you.

Courts have articulated three basic ways that a person can be held liable for infringing another’s copyright: direct liability, contributory liability, and vicarious liability. Direct liability means, quite simply, that you infringed the copyright yourself. This is first-party liability and is probably not surprising to anyone. The other two are the focus of this article, and the ultimate rebuttal to the misstatements in the FAQ.

A. Contributory Infringement

In MGM v. Grokster 545 U.S. 913, 930 (2005) the United States Supreme Court (USSC) described liability under the doctrine of contributory infringement as follows: “One infringes contributorily by intentionally inducing or encouraging direct infringement.” The USSC approvingly cites Gershwin Publishing Corp. v. Columbia Artists Mgmt., Inc., the 2nd Circuit Court of Appeals adopted the following test for contributory infringement.

“One who, with knowledge of the infringing activity, induces, causes or materially contributes to the infringing conduct of another, may also be held liable for the infringement. 443 F2d 1159, 1162 (2nd Circuit 1971).

The Gershwin test has been widely adopted by courts, including in the 9th Circuit, home to copyrightsettlements.com. As you can see, this test is far narrower than the F__k you, pay me test adopted by copyrightsettlements.com. The Gershwin test specifically requires:

1) Knowledge of the infringing activity
2) Intent
3) Inducing, causing, or materially contributing to the infringing conduct of another.

The 9th Circuit had a chance to revisit the issue of contributory infringement in the wake of the USSC ruling in Grokster, described above, and elaborated further on the requirements for contributory infringement in the digital realm in Perfect 10, Inc. v. Amazon.com, Inc., 508 F. 3d 1146(9th Circuit, 2007). Perfect 10 held that:

“a computer system operator can be held contributorily liable if it ‘has actual knowledge that specific infringing material is available using its system and can “take simple measures to prevent further damage’ to copyrighted works, yet continues to provide access to infringing works.”

Notably, the italics in this sentence were the court’s own, and emphasized ACTUAL knowledge of SPECIFIC infringing material. This is certainly not the test described by CEG.

B. Vicarious Infringement

The USSC also described vicarious infringement in MGM. The Court stated that one “infringes vicariously by profiting from direct infringement while declining to exercise a right to stop or limit it.” Grokster, 545 U.S. at 930, 125 S.Ct. 2764.

Like contributory liability, above, this definition has multiple elements, BOTH of which need to be shown to before imposing liability.

1) Profit from direct infringement
2) A right (and ability) to stop or limit the infringement

This test has two distinct elements, BOTH of which need to be shown to impose liability. I cannot think of a good faith argument that any of the parties described by the core claim actually profit from infringing activities, especially when the work that is claimed to be infringed is porn. An employer profits from an employee downloading porn? Really? You profit when someone downloads porn via your unsecured connection? Profit? This stretches all bounds of credulity.

It almost seems unnecessary to go into the second element, the right and ability to control, when the first element cannot reasonably be shown. But this prong also raises a host of issues, especially in cases involving spouses, “business associates”, or roommates. I need only recall the look of my college kitchen to conclude that we never really had sufficient right or ability to control each others’ activities in any way.

C: Inducement?

The USSC discussed a third potential avenue for third-party liability in MGM under the broader rubric of contributory liability, but this route is equally unhelpful for the core claim. In MGM the Court recognized that one could be liable if they “induced” the infringement of another. The Court held that “one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.” MGM at 936-37.

Although this could conceivably apply to an unsecured router, the court is quick to extinguish this possibility for the situations described in the core claim. The court specifically states that:

“Accordingly, just as Sony did not find intentional inducement despite the knowledge of the VCR manufacturer that its device could be used to infringe, 464 U. S., at 439, n. 19, mere knowledge of infringing potential or of actual infringing uses would not be enough here to subject a distributor to liability… The inducement rule, instead, premises liability on purposeful, culpable expression and conduct…”.

Notably, the FAQ page emphasizes repeatedly that purposeful, culpable expression and conduct is not at all necessary. It does emphasize, however, that you are still liable.

The Takeaway

The copyright troll’s core claim regarding third-party liability is extremely misleading regarding the present state of third-party liability under copyright law. As each misstatement works to the benefit of the trolls, I can only assume that this misrepresentation is intentional. One can only wonder whether they will face claims of fraud and misrepresentation from those who were misled by these statements.

^{(Disclaimer: The legal analysis and opinion expressed herein are solely those of the author. Nothing herein is to be construed as legal advice and is not meant to replace the advice of an attorney with knowledge of the specific facts of your case. No attorney-client relationship is created, and you should not send me confidential information. Please just don’t try to sue me for offering my thoughts. Thank you.)}

Source: Are You Guilty If Pirates Use Your Internet? Lawyer Says NO

Both lawyers discuss whether someone can be held liable for the copyright infringements committed by others on their Internet connection.

The opinion below comes from Marc Randazza, a lawyer who has sued thousands of BitTorrent users in recent months on behalf of copyright holders. His piece focuses mainly on the question of whether people who operate open WiFi networks are liable for the copyright infringements of others.

As much as we may disagree with his cases in this field, Randazza has always been gracious with his time when we have had questions about his and other cases.

We understand that our readers may not agree with Randazza either, but we ask that comments remain civil and respectful. He has been respectful to us, and we ask that readers treat him as our guest and take the opportunity for debate.

The other post in this series, which argues the opposite of Randazza, can be found here. We thank both Ranallo and Randazza for their contribution.

—–

Why Negligence in Torrent Cases?

I. Introduction – Is it illegal to leave your wifi open?

For a while, I have been bringing anti-torrent cases against defendants who have been illegally distributing my client’s movies. However, we recently began adding a negligence claim to the complaints – arguing that if you leave your wifi open, and someone uses it to pirate my client’s materials, you are at least partially responsible. In the wake of a recent judgment for $10,401.00 against a defendant in one of these cases, where the $10,000 was for the negligence claim, I have gotten quite a few inquiries from people asking if it is illegal to leave your wifi open.

I am pleased to report that there are no laws on the books, which affirmatively mandate that you must lock your wifi. However, there are civil claims that can make you liable for the infringements of others. That is what civil claims are for — to privatize certain legal issues. When there is a car accident, we don’t usually bring the prosecutors into it. The parties figure out who was negligent, and the negligent party pays the other party for its damages.

What it comes down to is whether the defendant had a part in the plaintiffs damages. So the question is not: “Is it illegal to have open wifi?” The correct question is: “Can you be held liable for what others do with your connection if you leave your WiFi open?” The answer to that is “yes you can.”

II. Negligence

The law of negligence has a long history, and it morphs over time. The unchanging elements of a negligence claim are:

* Duty – did the defendant have a duty?
* Breach – did the defendant breach that duty?
* Causation – was the breach the cause of the plaintiff’s damages?
* Damages – were there damages, and if so, how much?

Whether or not there is a duty is where the most debate occurs. Whether or not there is a duty is a matter of law for the court to decide, and some courts have already endorsed the theory that there may be a duty to keep your wifi secured. In an ever-evolving legal landscape, legal duties are constantly updating with technology. In law school, we are introduced to this concept by reading the case called “The T.J. Hooper.” In that case, the plaintiffs shipped two barges full of cargo, there was a storm, the barges sank and the cargo was lost.

The defendants were the owners of the tugboats that were towing the barges. The plaintiffs claimed that since the tugboats did not have working radios that could have warned them about the storm, the tugboat operators were negligent. This was 1932, and radios were not required to be on the ships by any law. Furthermore, it was not common custom for commercial ships to have them at this point, and only one company on the whole Eastern Seaboard used them.

Judge Learned Hand wrote the opinion in this case, and he stated that it did not matter that there was no law mandating their use. It did not even matter that shipping companies generally did not have radios. Hand wrote that it is the province of the courts to decide whether a duty exists, and it is not up to the affected group to make that decision. In circumstances of evolving technology, the duty may change along with technology, even if common practice does not.

III. Application: Is leaving your wifi open “negligent”?

I believe that leaving your home wifi open is, indeed, negligent. Unlike the radios in the T.J. Hooper case, closed wifi connections are actually the norm. The vast majority of Americans recognize that leaving their wifi connection open is foolhardy and likely to lead to trouble. I have heard other lawyers compare leaving your wifi open to leaving a loaded gun lying around.  I think comparing open wifi to a loaded gun is overly melodramatic and hysterical.  However, the point is well taken – you are leaving the instrumentality of an illegal act out there for anyone to use.

While unlike leaving a gun around (nobody ever died from open wifi), I’d say leaving your home wifi open is more like leaving your keys in your car in your driveway.  Someone might just steal it, in which case the only person who gets hurt is you, right?

Wrong. 

The kind of person who would steal your car is probably the kind of person who would commit other crimes (or just do something stupid).  So if you leave your keys in your car, and someone takes it and drives it into someone’s fence, you’re at least partially responsible for the damage.  If the car thief runs off, who should pay for the damage? The fence owner or you? It would seem that between those two parties, you would be more responsible than the fence owner. You wouldn’t say that the fence owner should have built a better fence, would you?

That’s what negligence is:  It is the law saying “You really should have seen that coming.”  When you do something careless, and that carelessness costs someone else money, you pay the ”carelessness tax” – Negligence. 

And the kind of person who would steal wifi is more likely to steal something else, isn’t he?  So if you invite wifi theft by leaving your home network open, you’re more likely than not also inviting more.  

While there is no law requiring you to keep your wifi secured, the absence of a law is no refuge from the consequences of being careless. The existence of the duty is heightened by the fact that it is common knowledge that cyber criminals use open wifi networks to commit nefarious acts. Everyone has heard about the cases where purveyors of child pornography used open wifi connections to transmit their materials. Then, the poor saps who left them open are greeted by police raids.  

Is your wifi open?  I would bet it is not.  Mine certainly isn’t, and the reason why is not that I mind sharing with my neighbors.  If my neighbor needs my wifi for some reason, I have a guest network that I would share with him if he asks.  But, then if I get a subpoena for something he did, at least I know who to point the finger at.  I’m not willing to take that risk for someone who might just be cruising around in a car looking for an opportunity to commit a crime. 

IV. Other Benefits of Bringing the Negligence Claim

Bringing a negligence claim in a torrent case has some added benefits. It takes care of two classes of defendants:  The “it was some other guy” case, and the “if I lie about open wifi, you can’t get me” case.  

The Some Other Guy Case: When pressing these cases, I frequently talk to the IP account owner, and he says “It was my roommate, not me.” When someone gives me the “it was some other guy” defense, I would much rather go after the other guy. When the roommate gives up the other guy, I think that pressing a negligence claim against him is a bit mean-spirited, and I recommend dropping the negligence claim against a cooperative account holder.

However, if the account owner does not want to reveal the identity of the actual guilty party, then he is shielding the defendant and I have no qualms about making him a defendant too. In cases like that, I’m required to press the negligence claim, to get to the truth, and obtain proper compensation for my client. There is very little chance that a roommate will not know what is going on, and if they are supplying a connection to someone who is using that connection to steal from my client, then my client has a legal right to be compensated for its losses. If someone is concealing the direct infringer, then I find little wrong with holding that person responsible.  

The Open Wifi Liar: The unfortunate fact is that a common meme among the “IANAL, but I play one on torrent boards,” crowd is that any torrent suit can be won if you lie and tell the plaintiff that you had an open wifi.  I’ve caught even real licensed lawyers dispensing this “advice.”  (which is unethical)  There are even those who advocate leaving your wifi open on purpose, just so that you can have plausible deniability about anything that happens on your network.  I would say that one out of two defendants that I deal with initially claim “I had open wifi.” That winds up being a lie about 95 percent of the time   If they were all telling the truth, there would be free wifi coast to coast, and the age of wifi Aquarius would be upon us.   

So how do we move forward in these kinds of cases?  

Step 1: A relatively mild investigation and questioning of the potential defendant.  Most non-sociopaths are lousy liars and are easily tripped up. This step winds up shaking out a good percentage of the liars.  Often telling the “some other dude” account holder that we will move forward with the negligence claim gives them pause and they get the roommate on the phone. This is effective most of the time, but not 100%.  So what do we do then?  Move on to the next two options:

Option A: We engage in discovery, seize all of the computers in the house, issue subpoenas to everyone the account holder knows, and start having depositions of everyone who lives in their home and neighborhood.  By the time we’re done, we not only will likely have gotten to the bottom of things, we would have flipped the defendant’s entire life upside down.  While that might get us somewhere, I prefer not to be that heavy-handed if I can avoid it. 

Option B: Recognize that the open wifi story still leaves negligence liability on the table, so work with that. This gives us an avenue of liability with which to hold people responsible without turning their neighborhood upside down.

Ultimately, the negligence claim brings a lot of benefits. The downside is that occasionally, you catch someone who was simply merely careless. When that happens, my client is usually willing to use discretion and to settle rather lightly. Sometimes, when the defendant is particularly sympathetic, and it is clear that they are not lying, we have been willing to settle for little more than them filing a police report and agreeing to lock their wifi down.

V. Conclusion

I respect the perspective of those who don’t like the negligence claim.  They have every right to say that they disagree with the law. The owners of the T.J. Hooper didn’t think it was fair that they were held to a standard, which neither law nor custom required them to live up to. But, the court understood that sometimes, when you can take a pretty easy and cheap route to preventing harm, you may very well have a duty to do so. You can keep your wifi open if you like, and if nobody ever uses it for evil purposes, then you won’t ever be held negligent. Similarly, if the T.J. Hooper had only seen calm seas, its owners would have gotten away with not having radios.

Ultimately, it comes down to “what should you have done?” And, “if you don’t do it, and someone else loses, who should bear the cost?” It may seem unfair to some, but if you consider that my client is losing money, and the open-wifi-guy (even if he wasn’t one of the liars) contributes to that loss, who should bear the cost? Between him and my client, I think it should be him.

Furthermore, this claim really helps to shake out some of the more dishonest people, who deserve to get sued.  Therefore, I stand behind bringing the negligence claims, and I think that the good outweighs the bad.  

VI. Epilogue

Let me conclude by thanking Ernesto and the TorrentFreak community for this opportunity to share the marketplace of ideas with you all. Wide open and robust debate on matters of public concern is what the First Amendment is all about. I recognize that this is not a friendly forum for my positions, but nobody ever grew or learned anything from just shouting into an echo chamber.

I respect dissenting opinions. I think there is room for healthy disagreement on most items, and I am not unaware that this negligence claim is controversial.

The fact is, I have a job to do, and I’m going to do it for my client to the utmost of my ability.  My engagement letter with my clients does say that I will withdraw from representation if they want me to take action that will cause harm to the First Amendment.  But other than that, my client is entitled to the full menu of legal theories that I can come up with. Anything less would be unethical on my part.  

Source: Are You Guilty If Pirates Use Your Internet? Lawyer Says YES