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

“My friends,” Schlüter said. “We must filter the Internet to win over online file sharing. But politicians don’t understand that file sharing is bad, and this is a problem for us. Therefore, we must associate file sharing with child pornography. Because that’s something the politicians understand, and something they want to filter off the Internet.”

“We are developing a child pornography filter in cooperation with the IFPI and the MPA so we can show politicians that filtering works,” he said. “Child pornography is an issue they understand.” Schlüter grinned broadly.

I couldn’t believe my ears as I heard this the first time. But the strategy has been set into motion worldwide.

Schlüter’s plan worked like clockwork. Denmark was the first country to censor AllOfMP3.com, the (fully legal) Russian music store, and is now censoring The Pirate Bay off the internet. The copyright industry is succeeding in creating a fragmented Internet.

This is why you see the copyright lobby bring up child pornography again and again and again. They are using it as a battering ram for censoring any culture outside of their own distribution channels. You can Google the term together with any copyright lobby organization and see them continuously coming back to it.

In Sweden, the copyright industry lobbyist Per Strömbäck has publicly admitted it being one of his best arguments. Try Googling for the Swedish word for child pornography on the lobby site and see if you get any hits in any articles (over 40).

The reasoning is simple and straightforward. Once you have established that someone who is in a position to censor other people’s communication has a responsibility to do so, the floodgates open and those middlemen can be politically charged with filtering anything that somebody objects to being distributed.

It is not hard to see why the copyright lobby is pursuing this avenue so ferociously.

It doesn’t really matter that filters at the DNS level are ridiculously easy to circumvent. The idea is to create a political environment where censorship of undesirable information is seen as something natural and positive. Once that principle has been established, the next step is to force a switch to more efficient censorship filters at the IP or even the content level.

News reached us this week that Internet Service Providers in the United States have now entered an agreement with the copyright lobby to police the net. This arrangement, it turns out, also stems from the copyright industry’s love of child pornography.

“We pointed out to [the governor] that there are overlaps between the child porn problem and piracy,” Mr. Sherman [The RIAA president] said, “because all kinds of files, legal and otherwise, are traded on peer-to-peer networks.”

Sound familiar? It should. It’s a page right out of the 2007 scene where the Danish Mr. Schlüter talked about the copyright lobby’s policymaking strategy of associating non-monopolistic distribution of culture with the rape of small defenseless children.

This association strategy has now worked in the United States, too.

Just when you think the copyright lobby can’t sink any lower, they surprise you again. And it gets worse. Much worse.

In Europe, the copyright lobby is now pushing Commissioner Malmström to create a similar censorship regime, despite clear setbacks from the European Court of Justice defending human rights and freedom to communicate.

But taking one step back, would censorship of child pornography be acceptable in the first place? Is the copyright industry perhaps justified in this particular pursuit, beyond their real goal of blocking non-monopolistic distribution?

There are two layers of answers to that. The first is the principal one, whether pre-trial censorship is ever correct. History tells us that it plainly isn’t, not under any circumstance.

But more emotionally, we turn to a German group named Mogis. It is a support group for adult people who were abused as children, and is the only one of its kind. They are very outspoken and adamant on the issue of censoring child pornography.

Censorship hides the problem and causes more children to be abused, they say. Don’t close your eyes, but see reality and act on it. As hard as it is to force oneself to be confronted emotionally with this statement, it is rationally understandable that a problem can’t be addressed by hiding it. One of their slogans is “Crimes should be punished and not hidden”.

This puts the copyright industry’s efforts in perspective. In this context they don’t care in the slightest about children, only about their control over distribution channels. If you ever thought you knew cynical, this takes it to a whole new level.

The conclusion is as unpleasant as it is inevitable. The copyright industry lobby is actively trying to hide egregious crimes against children, obviously not because they care about the children, but because the resulting censorship mechanism can be a benefit to their business if they manage to broaden the censorship in the next stage. All this in defense of their lucrative monopoly that starves the public of culture.

It’s hard to comprehend that there are people who are so shameless that they would actually do this. But there are. Every time you think the copyright lobby has sunk as morally low as is humanly possible, they prove you wrong.

— — —

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: The Copyright Lobby Absolutely Loves Child Pornography

As industries become threatened by new technology, they typically embrace it in public and talk passionately about its potential, but only in terms of how the new technology can support the existing industries. Under absolutely no circumstances must the new technology be allowed to come into a position to replace the existing industries.

A famous example of this is the Locomotives Act of 1865 in the United Kingdom, better known as the Red Flag Act. It was a law that limited the speed of the new so-called automobile to 2 miles per hour in urban areas, and required them to always have a crew of three: a driver, a stoker (!), and a man who would walk before the automobile waving a red flag (!!).

The car was fantastic, but only as long as it didn’t threaten the railroad or stagecoach industries.

These industries, it turned out much later, were behind the lobbying that led to the Red Flag Act. The fledgling automobile industry stood to make the older industries obsolete, or at least significantly smaller, which could not be permitted. Therefore, they went to Parliament and argued how tremendously important their industries were, and claimed that their special interest was a public interest. Just like the copyright lobby does today.

Essentially, the stagecoach and railroad industries tried to limit the permissible use of the automobile to carry people and goods the last mile to and from the stagecoach and railroad stations. That wouldn’t threaten the existing industries, and they could pretend to embrace its usefulness.

Today, the copyright industry pretends to embrace the Net, but only inasmuch as they can keep operating as they always have. Any other use needs to be outlawed.

And sure, Parliament agreed in its time that the stagecoach and railroad industries were important. But Parliament made the mistake of seeing yesterday as the present time and eternal: those industries were only important before the technology shift that the car brought, a shift which was already underway. The special laws that these industries pushed through — with emphasis on the Red Flag Act — caused the inevitable technology shift to delay in United Kingdom, and therefore, the car industry of the United Kingdom lost considerable competitive edge against its foreign competition, being ten to fifteen years late into the game.

The moral of the story is that an industry troubled by technological advances should neither be allowed special laws nor be confused with the public interest, but instead be permitted to die as swiftly as possible, so that new industries and new jobs can take its place. If you do the opposite and keep that industry alive with artificial respiration and repressive legislation, you not only hurt respect for the law, but also the future economy and competitive capability.

— — —

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: The Red Flag Act of 1865

In the United Kingdom, you can get five years in prison for not revealing a password to an encrypted data set. Even if you have forgotten it. Even if it isn’t an encrypted dataset to begin with, but recorded astronomy noise, which looks just the same. If you can’t produce the documents that law enforcement says are in there, somewhere in the noise, then off to jail you go.

In Sweden, the government has enacted laws that enable wiretapping of all your communications at any time without warrant or notice (the FRA act). In France, the government is trying to send people into social exile for sharing music. Where’s the police here, protecting our rights? We find them in the shape of activists. Governments are slowly discovering that the door to freedom swings both ways.

If net activists are applauded as they help people in corrupt and repressed regimes expose secrets of the government, then those same technologies can and will be used in every country, even the ones who consider themselves good.

Don’t all governments consider themselves good? It’s just the citizens who tend to disagree to a varying level.

This pattern, where activists are seen as lawbreakers for doing what’s right, follows the patterns of history. It happens about every 40 years. 80 years ago, activists were protecting fundamental rights against law enforcement who opened fire on people who protested in the streets instead of being at work.

The activists founded a new political movement — the labor movement, social democratic parties — that rewrote the laws and reshaped law enforcement to police our rights. 40 years ago, activists were protecting our environment against law enforcement who were protecting corporations that polluted way above what was allowed.

The activists were the ones upholding the law and our rights; law enforcement and governments tried to prevent it from happening. In the end, the activism spawned green parties in many countries that reshaped law enforcement to stand on the side of the citizens, and not on the side of polluting corporations.

And here we are today, with a global, unfettered right to communicate, share, observe, and inform. Law enforcement is cracking down on it. Activists are defying law enforcement and giving us tools that guarantee our rights. People have a duty to defy unjust laws.

And until everybody finds the courage to do so, I am grateful and indebted to the activists who police and guarantee our fundamental rights.

— — —

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: Who’s The Police And Who’s The Crook, Anyway?

You will notice here that I place taking personal responsibility at the opposite of blindly following laws, rules, or orders. That is quite intentional. Just following orders is never an excuse for not taking personal responsibility. Neither is just following the rules. Neither is just following the law.

Society at large will never take “I was just following rules and regulations” for an excuse in the large matters, when the nuclear disaster, fetal damage or war outbreak has happened. It won’t in the small matters, either — the missed sales order because of failing to bribe the right officials, or the bad grade because somebody was the only one who didn’t cheat on the exam.

A person who considers the orders, rules or laws to be wrong has a duty to defy them. Every single war criminal learned this before they were hanged. On the other hand, many resistance fighters learned the opposite before they were shot.

From this, we learn that it is unwise to follow the rules and laws created by others blindly, but just as commonly, it is equally unwise to flaunt defiance. Most things that we consider reasonable, that are banned by rules we consider silly, can be done with a little sense of discretion and proportion. In the larger scheme of things, it is everybody’s duty to do so. A society where people regard rules as general guidelines is a lot healthier for its neighbors and citizens alike than a society where laws and rules are enforced blindly and swiftly.

At the end of the day, you have only your own moral compass. You must decide whether to follow the law, and in considering this, you need to understand why the law was made in the first place.

Laws are not made because they are righteous. Laws are made because they advance somebody’s political career.

(It should be noted that these are words that don’t come from a rock-throwing masked guy, but from a professional politician in suit and tie.)

Usually, it makes sense to follow most laws, most of the time. But not all laws, all of the time. People who are standing waiting at a hung red stoplight at 2am with no human being nor car in sight are not just stupid, but downright dangerous.

The copyright monopoly is one example of such an unjust law. I can think of few things that are more plain evil than not sharing knowledge with your fellow human being, barring hurting somebody physically. Sharing culture and knowledge doesn’t even cost you anything, it just enriches other humans.

Does this mean I encourage breaking the law? No. Mostly it doesn’t mean that because doing so would be too flauntingly illegal. However, in the spirit of discretion, I encourage everybody to follow their own moral compass and to help their fellow human beings.

It is everybody’s duty to defy unjust laws.

— — —

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: It Is Everyone’s Duty To Defy Unjust Laws

“I started this campaign because of the distorted way the media prioritizes between big and small world news,” Nadia told TorrentFreak. “How can Paris Hilton make more front covers than the genocide in Darfur? So, I ‘pimped’ a victim, to see if it worked. And it did!”

‘Pimp’ in this case meant the addition of a Louis Vuitton-inspired bag to Nadia’s artwork, provocatively placed on the arm of a starving child. It was used in her painting Darfurnica and also adorned t-shirts which were sold to raise money for charity.

While the artistic point of the juxtaposition – western excesses and consumer culture versus mass-murder and starvation – would provoke some to donate money to Nadia’s campaign, Louis Vuitton’s cold business reaction was both aggressive and disappointingly predictable. They sent in the lawyers to deal out some destruction of their own, claiming that Nadia had infringed their intellectual property rights.

This decision by the ‘strategists’ at Louis Vuitton, to stop what Nadia believed was her genuine right to freedom of expression, had trouble written all over it from the start. Nevertheless, had the company kept egos in check, maintained some perspective and got Nadia on their side, it might have actually managed to enhance its image. Instead the company fanned the flames. And then poured gas on them.

So, in common with some of the misguided entertainment industry efforts to crush the Jammie Thomas-type minnows of the file-sharing world (nothing like a David v Goliath battle to drum up sympathy for the other side), the whole thing was perfectly primed to backfire through sheer pig-headedness and lack of vision.

Following an initial case which Nadia lost, in February 2011 she discovered that Louis Vuitton had managed to get an ex parte order from a court in The Hague. In plain language that meant the case had already been heard behind her back without giving her a chance to defend herself. Nadia was informed that she was now being fined 5,000 euros per day.

Nadia fought back and in March filed her own lawsuit against Louis Vuitton in an attempt to have the decision overturned. Nadia reports that at the hearing in April, the fashion house got slippery. Their lawyers claimed that they never had a problem with the painting (Darfurnica), only with the use of the bag image in Nadia’s Simple Living campaign logo, a campaign she says was “created in response to the disappearing boundaries between the editorial and advertising departments in the media.”

However, when the judge asked Louis Vuitton’s lawyer why Darfurnica was mentioned in the lawsuit and subsequently outlawed on pain of 5,000 euros per day in fines, Nadia reports that he responded: “You shouldn’t read it like that.”

But it didn’t stop there. Louis Vuitton reportedly told the media that they were willing to drop the case, but behind the scenes Nadia’s lawyers had asked them to withdraw the ex parte order and they had refused.

The judge finished up the hearing by saying he would deliver his ruling early May and this week he was true to his word. The court ruled that the fines against Nadia – which had accumulated to over 500,000 euros – were unlawful. Louis Vuitton was further ordered to pay Nadia’s legal fees.

The fact that Louis Vuitton lost this case is a very, very good thing. Not because they had a hopeless case (trademarks do need to be sensibly protected) but because they deserved defeat for being so incredibly short-sighted.

One might have a little sympathy with the company for not wanting to be associated with genocide, but no sane human being thinks that Louis Vuitton has anything to do with the mess out in Darfur. Furthermore, the company’s supposed marketing geniuses should have been well aware how this would play out, realized they were onto a loser and let the whole issue fade away. Least said, soonest mended.

But instead, in what can only be described as a genius move to generate support for the little guy and reinforce the perception that big companies employ underhand tactics, they went behind Nadia’s back to get an ex parte order. They succeeded in delivering the legal equivalent of a sucker-punch and let’s face it, no one likes a coward.

Then the company rubbed salt in the wounds by demanding 5,000 euros per day in fines against someone who could never afford it – someone raising money for charity, no less. This is not how a company should go about protecting its image.

The net effect is that given some artistic license and taking Darfur out of the equation for just one second, the bag could easily represent corporate greed, its bullying tactics, and all that is bad about they way ‘big business’ is carried out.

The child, conversely, might be representative of the little guy – the Nadia’s of this world – who have their lives turned upside down to ‘protect’ the bottom lines of the big corporations.

While a victory for Nadia is good, given the background and bad PR generated by the case, even a victory for Louis Vuitton would have been a failure for them. Just because someone has the power and means to sue, it doesn’t necessarily follow that they should. Some things are best left alone.

Source: Artist Slays Louis Vuitton in Intellectual Property Dispute

Some people, and corporations in particular, claim that the purpose of the copyright monopoly is for a certain profession to make money. That was never the case, and frankly, the idea is revolting to any democracy and functioning market. Bricklayers don’t have laws guaranteeing they make money, marketers don’t, plumbers don’t, and nobody else does, either.

However, the means of achieving the maximization of the available culture has been to give some creators a monopoly on the opportunity — not the right, but the opportunity — to make money off of a creative work. This has been the means to maximize culture for the public at large, and never the end in itself.

This also means that the only legitimate stakeholder in copyright legislation is the public. The monopoly is indeed a balance, but not the “balance” between corporate profits and human rights that the copyright industry likes to paint and pretend. In fact, the copyright industry is not part of the balance at all.

The copyright monopoly legislation is a balance between the public’s interest of having access to culture, and the same public’s interest of having new culture created.

That’s it. Those are the two values that go into determining the wording of the copyright monopoly.

The copyright industry always demands to be regarded as a stakeholder in this monopoly. But to give them that status would be to royally confuse the means of the copyright monopoly with its end.

If they were a stakeholder, they would never agree to anything that went against their interests. But the copyright industry is not a stakeholder. They are merely a beneficiary of the copyright monopoly. Just because you benefit from something, you don’t get to affect its future.

Actually, it goes even further: particularly if you benefit from something, you don’t get to affect its future.

Let’s take an analogy. Blackwater Security benefits from United States foreign policy. Does that mean that Blackwater is a stakeholder in the US foreign policy, and should get a seat at the drafting table? Of course it doesn’t. The notion would be horrifying, with quite predictable outcomes. Yet, we accept this horrendous construction in the case of the copyright monopoly, with just the outcomes predicted.

Using a similar analogy from Europe, there are many regiment towns that would disappear if the regiment was closed. That doesn’t mean that town get to influence the national defense policy. The issue that some thousands of people would be unemployed in the case of closing the regiment would have to be solved by job market policy — but not by giving the regiment town a seat when drafting the national defense policy, and for all intents and purposes, give them a veto against killing their own current jobs.

Imagine if Blackwater Security had a veto against ending a particular war. Next, imagine if the copyright industry had a veto of giving the public more access to public culture.

So in the same way, it’s totally insane to give the copyright industry the same kind of veto against reductions in legislation that benefit them.

The copyright industry is not a legitimate stakeholder in the legislation of the copyright monopoly.

— — —

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: Why The Copyright Industry Isn’t a Legitimate Stakeholder in Copyright

But even for those of us lucky enough to have reasonably steady employment, the ‘positions vacant’ column can still make interesting reading, such as providing a barometer to ensure we’re still earning the right sort of money for the work we do now. In a head-in-the-clouds, lotto winning way, they can also provide the ‘what if’ lure of an unlikely dream job’s magical appearance.

This week a reader sent in a link to a very interesting job vacancy, quite well suited to one unnamed file-sharing writer’s skill set. This position would require the monitoring of wide range of “Internet technology cases including file sharing and distribution of illicit film and TV content”. Intriguing.

“You must have a detailed and current understanding of a range of online piracy and file sharing issues and technical aspects of online copyright,” it continued.

That’s the three-bar jackpot right there. OK, so I’m not so hot on a couple of other requirements in the description, but no one got to high places dwelling on negatives.

Where do I sign?

Not so fast. Taking this position would involve doing something radical, something extreme. It would mean (deep breath) – working for an anti-piracy company. Stay with me on this, the money might be good….

“Our client is a commercial organisation within the entertainment industry. They are currently recruiting online investigators to join their highly regarded and busy team dealing with online piracy, counterfeiting and copyright theft,” the ad begins.

The employer isn’t revealed in the ad but from reading it through I’m going to take an educated guess at FACT, the MPAA-funded Federation Against Copyright Theft.

They’re the people who destroyed Dave Rock and David Overton’s TV-Links site with accusations of criminal behavior, a case which ultimately crashed and burnt in the biggest way imaginable – with a landmark E-Commerce Directive ruling in favor of the defendants.

FACT took similar action against AradiTracker too, successfully twisting a civil issue into a police-led criminal investigation.

And let’s not forget what happened to FileSoup. FACT conjured up a spectacular story there too, levelling criminal accusations at the site’s admins and forcing an aggressive police investigation. Where did that case go? Absolutely nowhere.

But back to the vacancy. My advice to anyone applying for a job has always been this; don’t go to an interview to see if the company likes you, go there to see if the potential employer is worth your time. Is the company successful and good at what they do – can you build a career and get job satisfaction with them?

If this job vacancy is for FACT, considering the above cases you’d have to say from a legal perspective they have been a complete failure. Who’d want to work for them on that basis? But this ‘failure’ means little since FACT have achieved what they set out to do – close or materially damage the sites they have targeted.

Maybe FACT are offering good money to go work for them, who knows. Maybe, superficially, I do have the right kind of skills to transfer to their line of work. But could I play God with the lives of people like Dave Rock, who is one of the nicest people I’ve had the pleasure of speaking with online? With that of FileSoup’s Geeker, who despite the mess he found himself in has remained dignified throughout?

Could I convince police to storm into people’s houses when I know it’s unwarranted?

No, not for a very large sum of money indeed. Could you?

Source: Sleeping With The Enemy: Working For The Pirate Hunters

That problem is based in the difference in perception of the courts from an entrepreneur’s perspective, and therefore, from the economy as a whole.

Let’s say we had a copyright monopoly holder who observed an activity of sharing they regarded as violating their monopoly. From a legal perspective, it might be an actual monopoly violation or one that falls outside the monopoly; nobody knows that at this point. Let’s say the holder of this copyright monopoly decides that the sharing individual owes them some amount of money for the ongoing activity, say €100 per year, and sends out a demand for this money.

Lawyers react to such letters as perfectly natural claims to sort out in court to establish the boundaries of the law.

But when I get such a nastygram as an entrepreneur, my reasoning is different. I don’t really care about sorting out details in the law, I care about money, I care about making my ends meet. When I read that nastygram, I read that I have two options: I could either pay €100 per year, or go to court and challenge the claim (let’s assume here that it has turned out to be an obviously frivolous claim).

What is the cost of the entrepreneur’s other option, going to court?

Let’s assume for the moment that the costs are ridiculously low. Let’s say going to court over this claim will just cost €5,000, and that my chances of winning have been judged to be a solid 90%. That means the cost of this option is €5,000 plus €10 yearly (10% of €100).

So as an entrepreneur, I have two options moving ahead. I select options not from a legal perspective, but from an economic one of returns on investment. In this example, the breakeven point if I choose the upfront investment of going to court is 55 years out. I am not going to see that investment recoup its cost in my lifetime. Therefore, as an entrepreneur, my choice is obvious — I select the lower running costs.

Money is all that matters when you’re running a business. Specifically, establishing case-law does not.

And so, another “license” is paid up, and copyright lawyers use it as proof to politicians that licenses are paid and the system works. It’s circular reasoning at its most insidious.

The danger here lies in the difference of perspective: lawyers and politicians regard court proceedings as having zero cost, as basically being a correspondence or a negotiation. In the reality entrepreneurs live in, however, the court cost of a monopoly lawsuit can easily hit a million euros.

The reality of this entrepreneur applies to every person running a business, and therefore, to the economy as a whole. (Possibly excepting legal firms specializing in monopoly arbitration.)

If this were not done within the legal framework, we would arrest the copyright monopoly or patent monopoly holders for extortion and throw them in jail. It was never “I think you owe me license money for your use of this, do you wish to have a court arbitrate our conflict?”, but always “Pay me a small ongoing stream of protection money, or I will ruin your business”.

So the next time the monopoly laws need revision and redrafting, the politicians go to the monopoly lawyers with demonstrated understanding of the substance matter. Politicians note that the lawyers have been correct in their predictions that license money would start to flow, and take it as proof the system works; they can’t see or know money is flowing for all the wrong reasons.

And so, the monopoly lawyers get to expand and revise those laws yet again, when it was nothing but a legalized extortion racket from the start. The cycle continues.

— — —

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: Monopoly Lawyers Shouldn’t Write Monopoly Laws

“There’s a Rock Band called One Soul Thrust. They have a debut album, which I like (bought it off iTunes). However the first I heard of the band was when there were complaints that the band had gone Platinum – because of illegal Torrent downloads!” Borean explained.

Indeed, according to a press release from the band’s manager, Cameron Tilbury, the situation is very serious.

“The Canadian Recording Industry Association (CRIA) states that, to achieve Platinum status, an album must achieve sales of 100,000 copies/downloads of an album. Sales…that’s the key. A random polling of several torrent site’s downloads—ILLEGAL downloads—has shown that 1ST, the debut cd by ONE SOUL THRUST has been downloaded over 100,000 times,” he wrote.

Now, 100,000 downloads is a lot, especially for a band like One Soul Thrust who have just 176 Twitter followers and a single short, non-musical video on their YouTube channel which at the time of writing has 79 views. Incidentally, the video is quite nice, since they have actually taken the time out to thank a radio station for playing one of their songs. However, the band are less pleased that people are apparently sampling their music using newer methods, i.e BitTorrent.

“We paid to create that album totally out of our own pockets. People think of illegal downloading not hurting anyone, but we’re real people too- with real mortgages, real family to feed and real bills to pay,” said lead-vocalist Salem Jones. “By downloading our album from pirate sites, people have stolen from us, our families, everyone involved in the production of our album, and their families.”

At this point, since we couldn’t find any torrents on any site (Borean tried everywhere too), we have to admit we were beginning to wonder if this 100K download claim was some kind of publicity stunt. Furthermore, since Wayne Borean and Tilbury were starting to publicly tear each other apart (and getting pretty personal at times) it seemed sensible to get to the bottom of this, particularly since the band’s manager claimed that the all-powerful CRIA is supporting the band’s stance.

Our initial discussions didn’t go particularly well. Despite explaining that we are a news site and what we were trying to find out, Cameron Tilbury initially refused to speak us. Instead he responded with a post on his site:

“We have been accused of lying and we have been abused for our position. We have also had requests for our evidence from torrent sites which actually support illegal downloading–and even more offensively, publish charts of the top illegally downloaded music, movies, etc [That's us, TorrentFreak, apparently]. We will not comply with people who’s only agenda is to support piracy. We feel that there is no way to win an argument with those people.”

Despite this hostility we pressed on, determined to get to the bottom of the story so we can report, since that’s what we do. In the end Tilbury provided the ‘evidence’ of the illegal downloading via some screenshots, one of which is shown below.

As many readers will now be aware, there is a huge problem. These results are completely fake and are generated from user input to draw traffic to site advertisers. You can type anything in the search boxes on some of these torrent sites (these apparently came from LimeTorrents) and anyone can appear to be pirated into oblivion, as the screenshot below shows.

We wrote back to Tilbury and explained our findings. We also asked him to comment on how he feels now that he realizes that people aren’t downloading the band’s music at all. He hasn’t responded to that question which is a real shame, because personally I think this is the most important part of the whole story.

I’m absolutely confident that there was no attempt to mislead with the band’s ‘piracy problem’ press release and that the band and their manager sincerely believed that 100K people had downloaded their album without paying for it. However, it would be intriguing to know what happened, when emotions of supposedly being ripped off by 100,000 pirates were replaced by other, perhaps more confused feelings.

In response to the initial crisis, lead-vocalist Salem Jones had said that while the piracy was unacceptable, the band were “flattered that people could love our music that much.” Does it now follow that band aren’t flattered? Dare I venture that they’re now quietly disappointed? Would it be better for 100K new fans to have sampled their music after all, rather than continuing with the relative obscurity they currently enjoy?

I’m going to end this piece with an unusual request because, to be brutally honest, I feel sorry for this band. All good musicians want to be heard and One Soul Thrust have just ‘lost’ 100K fans overnight. From what i’ve seen they seem really nice guys (and girl) and are completely innocent in all of this and although their music isn’t my scene, it sounds fairly decent to me.

At the time of writing they only have 176 Twitter followers, 324 on Facebook and their solitary video on YouTube has 79 views.

Please give the CRIA and the Balanced Copyright For Canada Facebook page something interesting to talk about by adding, following, Tweeting and re-Tweeting the band right now. Get creative and feel free to post any links where you mention them on other sites (Reddit etc) in the comments. A ten-fold increase in a day or two shouldn’t be too hard.

Update: Well, it seems whoever operates the band’s Twitter account, be it them or their manager, have responded to our calls to support One Soul Thrust around the Internet with the following message:

To say this is a huge disappointment after our efforts is an understatement. Really sad about this. Not all publicity is good publicity you know. Ask Jacqueline Howett.

Source: CRIA Watches Massive Music Piracy Crisis Devastate Unknown Band

Let’s look at what rights I have when I communicate through analog channels with somebody — using paper, a pen, an envelope and a stamp. The same rights should apply when using a digital communications channel instead, at least theoretically, since the law doesn’t differentiate between methods of communication. Unfortunately for the copyright industry, the enforcement of these our rights online would mean that the copyright monopoly becomes utterly unenforceable, so the copyright industry is now attacking these fundamental rights on every level. But that doesn’t mean our rights aren’t there.

When I write a letter to somebody, I and I alone choose whether I identify myself in the letter inside the envelope, on the outside of the envelope, both, or neither. It is my prerogative completely whether I choose to communicate anonymously or not. This is a right we have in analog communications and in law; it is perfectly reasonable to demand that the law applies online as well.

When I write a letter to somebody, nobody has the right to intercept the letter in transit, break its seal and examine its contents unless I am under formal, individual and prior suspicion of a specific crime. In that case, law enforcement (and only them) may do this. Of course, I am never under any obligation to help anybody open and interpret my letters. It is perfectly reasonable to demand that this applies online as well.

When I write a letter to somebody, no third party has the right to alter the contents of the letter in transit or deny its delivery entirely. Shouldn’t it be perfectly reasonable to demand that this applies online as well?

When I write a letter to somebody, nobody has the right to stand at the mailbox and demand that they be able to log all my communications: who I am communicating with, when, and for how long. Again, to demand that this applies online as well would only be logical.

When I write a letter to somebody, the mailman carrying that letter to its recipient is never responsible for what I choose to write about (the messenger immunity). And yes, it is perfectly reasonable to demand that this applies online as well.

All of these are under systematic attack by the copyright industry. They are suing ISPs and demanding that they install wiretapping and censoring equipment in the middle of their switching racks; they are constantly gnawing at the messenger immunity (mere conduit and common carrier principle), they are demanding the authority to identify people who communicate, they want the authority to deny us our right to exercise fundamental rights at all, and they have the balls to suggest censorship to safeguard the distribution monopoly.

All of the above stems from the fact that any digital communications channel that can be used for private correspondence, can also always be used to transfer digitizations of copyrighted works — and you can’t tell which is which without giving the copyright industry the right to break the seal of private correspondence, which is a right I’m never prepared to surrender.

These are civil liberties that our forefathers fought, bled, and died to give us. It is beyond obscene that an obsolete middleman industry is demanding that we give them up to preserve an entertainment monopoly, all while demanding more powers than we are even giving the police to catch real criminals. Then again, this is nothing new.

When photocopiers arrived in the 1960s, book publishers tried to have them banned on the grounds that they could be used to copy books which would then be sent in the mail. Everybody told the publishers tough luck: while the copyright monopoly still is valid, that gives them no right to break the seal on communications just to look for copyright infringements, so they can’t do anything about it. That still applies offline. It is perfectly reasonable to demand that it applies online as well.

The copyright industry sometimes complains that the Internet is a lawless land and that the same laws and rights that apply offline should apply online as well. In this, I could not agree more.

– — –

Rick Falkvinge is a regular columnist on TorrentFreak, sharing his thoughts every other weekend. 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: Why Is It Rocket Science That Laws Should Apply Online Too?

The white paper along with its potential impact has since been widely discussed in the media, but apparently only a select few have the capacity to properly assess the consequences of an eventual change in copyright law. Music industry expert, book author and Grammy winner Moses Avalon is one of them.

“Here’s one story you won’t see going viral on a geek blog near you: the Obama administration is going to make torrent streaming, also known as P2P sharing of music, a felony,” Avalon wrote – four days after we covered the news.

Being the music industry and copyright expert he is, Avalon carefully explains how the White House recommendations will change the Internet as we know it. Not only will unauthorized streaming of copyrighted material become a felony, new legislation will also shutter legal music services that rely on P2P technology, and news sites that dare to mention the P word in public.

Although the White House white paper isn’t really about P2P at all, but about streaming, Avalon foresees a major change in the use of P2P technology on the internet, legitimate or not. In his list of services that will have to close, Avalon mentions the licensed streaming service Grooveshark and the RIAA-approved P2P service iMesh.

Despite the fact that Grooveshark and iMesh pay the music labels, they will have to go since the mere use of P2P and online streaming will soon be against the law, Avalon claims. And then there’s TorrentFreak, a site that has never encouraged readers to commit copyright infringement, but recognizes the benefits of P2P technology while rebutting entertainment industry propaganda.

TorrentFreak will have to change too, or be gone, Avalon says.

“You’ll start seeing less and less positive spin on P2P almost immediately,” says Avalon as he muses on the aftermath of the new legislation.

“Blogs who play fast and loose with copyright ‘facts’ and assert that P2P is OK because soon the music biz will be dead anyway, are going to get strangely quiet on the subject,” he writes.

Again, the above has very little to do with the White House announcement, which said nothing about P2P. In fact, encouraging people to commit copyright infringement through P2P services is already against the law. However, Avalon takes it up a notch claiming that writing about infringement and P2P will soon be a no go.

“What will they write about next? Who knows and frankly who cares. These guys are no different in my view than racist blogs inciting gay-bashing, and Antisemitism or ‘Freedom’ blogs that are vestibules for home-grown terrorism,” he notes while pondering the future of TorrentFreak.

And we’re not the only news sites who will be forced to change our tune, according to the expert. We’re in good company. Fine outfits such as Wired.com, Techdirt, Slashdot, Silicon Ally Insider and the blog of copyright lawyer Ray Beckerman will be affected too.

Let’s take a deep breath.

We honestly believe that Avalon’s writings are too absurd to respond too, especially coming from someone who previously said that Napster was the scapegoat of the music industry. And yes, Mr. Avalon was also the one who fiercely defended Eminem for rapping about wanting to see the president dead. Freedom of speech, he said at the time, only to now argue that writing about P2P technology is a crime.

But Avalon’s words do have impact, he thinks. He features all his TV appearances on his own YouTube channel and claims that his blog is read by 100,000 people, something he takes extreme pride in. When lawyer Ray Beckerman commented on his absurd writing, Avalon told him that he should be happy to be mentioned because it would get him some traffic. When responding to other commenters he simply ignores what’s being said, and changes the topic to himself and his outstanding writings.

You don’t have to be a psychologist to see that Moses Avalon shows signs of having a narcissistic personality disorder, to say the least. Should Mr. Avalon read a bible, he might honestly believe himself to be the Moses who is so often referenced.

As for his writings with regard to TorrentFreak, the recommendations put forward by the White House do of course have no impact on sites that discuss P2P technology. And no, streaming and P2P services that distribute licensed content will not disappear either. It’s just the rambling of a pitiful person who just hit the narcissist jackpot with this article. Congrats!

Source: New Law Will Shut Down TorrentFreak, Music Industry Expert Says

This is only rhetoric from the copyright lobby in an attempt to justify the monopoly as righteous: to associate “the copyright monopoly” with a positive word such as “property”. However, when we look at the monopoly in reality, it is a limitation of property rights.

Let’s compare two pieces of property: a chair and a DVD.

When I buy a chair, I hand over money for which I get the chair and a receipt. This chair has been mass-produced from a master copy at some sort of plant. After the money has changed hands, this particular chair is mine. There are many more like it, but this one is mine. I have bought one of many identical copies and the receipt proves it.

As this copy of the chair is mine, exclusively mine, there are a number of things I can do with it. I can take it apart and use the pieces for new hobby projects, which I may choose to sell, give away, put out as exhibits or throw away. I can put it out on the porch and charge neighbors for using it. I can examine its construction, produce new chars from my deductions with some raw material that is also my property, and do whatever I like with the new chairs, particularly including selling them.

All of this is normal for property. It is mine; I may do what I like with it. Build copies, sell, display, whatever.

As a sidetrack, this assumes that there are no patents on the chair. However, assuming that the invention of the chair is older than 20 years, any filed patents on this particular invention have expired. Therefore, patents are not relevant for this discussion.

Now, let’s jump to what happens when I buy a movie.

When I buy a movie, I hand over money and I get the DVD and a receipt. This movie has been mass-produced from a master copy at some sort of plant. After the money has changed hands, this particular movie is mine. There are many more like it, but this one is mine. I have bought one of many identical copies and the receipt proves it.

Despite the fact that this copy of the movie is mine, exclusively mine, there are a number of things that I may not do with it, prohibited from doing so by the copyright monopoly held by somebody else. I may not use pieces of the movie for new hobby projects that I sell, give away, or put out as exhibits. I may not charge the neighbors for using it on the porch. I may not examine its construction and produce new copies. All of these rights would be normal for property, but the copyright monopoly is a severe limitation on my property rights for items I have legitimately bought.

It is not possible to say that I own the the DVD when viewed in one way but not when viewed in another. There is a clear definition of property, and the receipt says I own the DVD in all its interpretations and aspects. Every part of the shape making up the DVD is mine. The copyright monopoly, however, limits how I can use my own property.

This doesn’t inherently mean that the copyright monopoly is bad. It does, however, mean that the monopoly cannot be defended from the standpoint that property rights are good. If you take your stand from there, you will come to the conclusion that the copyright monopoly is bad as it is a limitation of property rights.

Defending the copyright monopoly with the justification that property rights are sacred is quite like defending the death penalty for murder with the justification that life is sacred. There may be other, valid, justifications for defending the copyright monopoly and these limitations of property rights — but that particular chain of logic just doesn’t hold.

– — –

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: The Copyright Monopoly Is a Limitation of Property Rights

Without knowing what they have been accused of or having the opportunity to defend their site, the Government has repurposed the owners’ private property.

In order to seize the domain names without notice to the owners, the Government uses a procedure that permits it to bring an action directly against a piece of property used in the commission of a crime –in this case the domain name– rather than the owner. This type of action (called an “In Rem” forfeiture) is not new. In the past, the Government has used In Rem actions for purposes such as an action against an automobile used to transport bootleg whiskey.

An In Rem action does not necessarily require the Government to wait until a court hears both sides and rules that the property has been used for illegal purposes and is subject to forfeiture. Instead, in many cases, the law is written so that all the Government has to do is to sign an affidavit that demonstrates probable cause for the forfeiture, which is signed by a magistrate judge and the Government can seize the property.

To carry out the In Our Sites program, ICE has treated these domains like any other instrument used for common theft and judges have signed off on their affidavits. The U.S. Attorney has publicly exclaimed that website operators like Brian McCarthy are hiding “behind the anonymity of the Internet to make a quick buck through what is little more than high-tech thievery.”

The Government’s view on the domain seizures seems to be overly simplistic and it ignores the fact that a domain is not the same as a gun or a boat used to transport narcotics. A domain is a unique combination of different types of property, including an address, a valuable asset, a brand and a medium for speech.

Any Government seizure of private property raises Constitutional questions. Here, I will outline the five most pressing Constitutional questions that have arisen because of the manner in which the Government has chosen to seize this unique type of property.

1. The Government Seizes The Domains Without Prior Notice And Hearing.

The Due Process clause of the Fifth Amendment guarantees that “[n]o person shall … be deprived of life, liberty, or property, without due process of law.” Traditionally, this means that individuals must receive notice and a meaningful hearing before the Government takes away their property.

This right to prior notice and hearing is not a minor legal technicality. It is an indispensible aspect of due process. It is the only way an individual can protect himself from the Government arbitrarily or mistakenly depriving him of property before it happens.

Unfortunately, it is not that simple. If due process invariably required prior notice and hearing, that would be the end of the analysis. The domain name owners received no notice or opportunity to give their side of the story before their domain names were seized. The complication comes from the fact that, over the years, the courts have carved out certain limited exceptions to the pre-deprivation notice and hearing requirement. Although the Government has proceeded as if the domain seizures fit into one of those exceptions, it is highly questionable. The Supreme Court has explicitly limited those exceptions to “extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.”

Is the In Our Sites program one of those “extraordinary situations where some valid governmental interest is at stake?” Determining whether the program should be allowed to compromise a citizen’s due process rights basically involves balancing the importance of the individual’s property interest against the Government’s interest in taking property prior to notice and a hearing.

In the past, the courts have permitted the Government to delay notice and hearing to protect important public interests such as the ability to collect taxes or protect the public from contaminated food. However, the court refused to allow the Government to delay notice and a hearing before seizing a home, in part because a home is too important a private property interest.

Domain owners cannot argue that their property interest in a domain is as important as a person’s property interest in his own home. However, whether the owners are using it for innocent or criminal purposes, a domain is critically important to its owner. The domain is how other people, computers or search engines can find a site. When a domain is seized, the content gets locked away until a new domain is created. A domain is also a critical marketing and branding tool and, in some cases, like the sex.com domain name that sold for $13 million last October, a domain can even be a lucrative asset.

On the other side of the equation, the Government cannot argue that the public interest in preventing copyright violations is as important as its interest in public safety or collecting revenue. Clearly, the Government has some interest in preventing copyright violations. The question then is whether preventing copyright violations is important enough to America to justify setting aside its citizens’ fundamental constitutional rights by seizing property before a hearing.

The Government’s justification for the pre-hearing seizure is not made clear by its affidavits. In its November 2010 affidavit, the Government was claiming that the seizures of domains that provide links to copyrighted material were necessary to prevent third parties from “acquiring the names and using them to commit additional crimes” and “continuing to access” the websites. Commentators were critical of this justification because it is so unlikely that the seizure will prevent anyone from accessing the material and even more unlikely that a third party would take over the domain name. In the most recent affidavit, the Government limited the justification for seizure to the vague claim that the websites were being used to commit or facilitate a crime.

On balance, ownership of a domain is too important a private right and preventing copyright infringement is not an important enough public goal to justify seizure without prior notice or hearing. In the last 50 years, the courts have trended toward due process protection, even for procedures that had been traditionally permitted. In light of that trend, the Government’s basis for setting aside due process requirements should be found to be insufficient. Without notice and hearing, these seizures violate the Fifth Amendment.

2. Seizures of Protected Speech Without a Hearing Violates The First Amendment.

Since the seized domain names are for websites that, at least arguably, contain speech, the seizures must also comply with the freedom of speech provisions of the First Amendment. Generally, the First Amendment does not permit prior restraint, which is when the Government censors material before it is distributed. The Supreme Court has deemed prior restraint as “the most serious and the least tolerable infringement on First Amendment rights.” Instead of prior restraint, courts typically require the Government to allow the publication of the speech and then to sanction the offending party afterward.

There is a deepening debate about whether the domain name seizures are a prior restraint that violates the First Amendment. As Techdirt points out, like with due process, the Government must provide prior notice and hearing before it restrains “potentially protected speech, with the intent to take material out of circulation.” Seizing an entire domain has the hallmarks of a prior restraint because in doing so, ICE is indiscriminately taking both infringing and non-infringing material out of circulation.

On the other hand, supporters of the constitutionality of ICE’s actions, such as Terry Hart, point out that the Supreme Court has permitted prior restraint of certain items, such as obscene materials or threats to national security. However, even these supporters recognize that these exceptions are premised on the Government ensuring a prompt judicial determination. Hart stated that “in effect, the Court recognizes the danger that too long of a temporary restraint on speech-related items can have the effect of a final restraint.” While true, this analysis does not address the differences between obscene material and links to infringing material. Additionally, it would not save ICE’s procedures because the Government has not, in fact, provided an immediate hearing on the seized domains.

Even if the types of sites that have been previously targeted, often consisting of links to other sites, were not a form of protected speech, there is still concern that endorsing these seizures would ultimately lead to the Government seizing the domains of sites expressing viewpoints it deems dangerous. ICE Director John Morton told Politico that the Government was not interested in going after bloggers or discussion boards. Morton said, “We’re not about what is being said by anybody. We’re about making sure that the intellectual property laws of the United States, which are clear, are enforced. When somebody spends hundreds of millions of dollars to develop the next movie or a billion dollars to develop the next heart medicine, the innovation and the enterprise that went into that effort is protected as the law provides. It’s that simple.”

Many commentators are not comforted by the Government’s assurance that they will not use their seizure power to attack anti-establishment viewpoints. Libertarian website, The Activist Post, declared after a round of seizures last month that “we are rapidly approaching a day where information can no longer flow freely on the Internet. We better wake up and share these stories with everyone we know, because tyranny is fast approaching.”

Although we are not there yet, this is a legitimate concern. Even if the Government does not directly go after certain types of speech, what is to stop the DHS from only going after copyright violations on sites with subversive opinions and ignoring copyright violations on pro-Government sites? The effect would be the same as any other prior restraint of speech.

3. There Is No Concern That The Accused Will Flee With Their Domains.

Certain constitutional rights sometimes take a backseat to crucial practical considerations, such as the Government’s concern that property involved in a crime will disappear if it is not immediately seized.

For example, the Supreme Court has allowed seizures without prior notice or hearing in a case involving the seizure of a yacht believed to be used to transport drugs. The Court was swayed by the fact that a yacht is the “sort [of property] that could be removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given.” However, in a later case, the Court found such a seizure against real estate “which, by its very nature, can be neither moved nor concealed,” to be unconstitutional.

A domain is not the same as real estate. Like real estate, a domain has an address and space within which the owner can build, but that space is not confined to finite borders or an address the way that real property is. Despite the differences, a domain is more like real estate than it is like a yacht. A domain can be sold, but it cannot be moved or concealed from the Government without defeating the purpose of having a domain in the first place.

4. There Is An Unacceptable Risk Of Wrongful Seizure.

ICE also unwittingly made its critics’ point last month when it mistakenly seized the domain names of 84,000 websites. The Government had falsely accused the sites of child pornography. This type of large-scale, disastrous mistake illustrates the constitutional deficiencies of the seizures.

To be clear, the Constitution does not demand that the Government always be right. For the Government to be able to effectively seek justice, falsely accused and falsely punished citizens are inevitable tragedies. However, the Constitution does require the Government to institute sufficient procedures that reasonably protect a person’s freedom and property from a wrongful taking.

In many ways, the whole point of due process is to protect citizens from wrongful Government action. The Supreme Court has explained that the right to notice and a hearing prior to a government seizure is for the purpose of enabling an individual “to protect his use and possession of property from arbitrary encroachment-to minimize substantively unfair or mistaken deprivations of property.”

Supporters of the ICE seizures will point to the fact that, despite the lack of notice and hearing, a seizure cannot occur without a judge finding that the Government’s affidavit demonstrates probable cause. However, critics get no comfort from the fact that ICE cannot kick down your virtual door without a judge’s sign off. Last week, during a House Judiciary Subcommittee on Intellectual Property, Competition, and the Internet, California Congresswoman Zoe Lofgren grilled the Obama administration’s Intellectual Property Czar Victoria Espinel about the Constitutional shortcomings of the ICE domain seizures. Espinel attempted to argue that a judge’s sign off amounted to due process. Lofgren tersely countered by saying “With all due respect, judges sign a lot of things.”

See the exchange and Lofgren’s full line of questioning in the video below:

Lofgren makes a good point. Several other commentators have pointed out that judges signed off on the affidavits despite numerous factual and technical errors. The perception that the judge’s review was inadequate was certainly not helped by the fact that Magistrate Judge Margaret Nagle literally used a rubber stamp, rather than a pen, to sign the December affidavits.

In addition to doubts about the adequacy of the factual review, critics such as Oregon Senator Ron Wyden have argued that depriving domain owners of due process is especially problematic because it is still unclear whether certain seized domains are actually violating copyright law. Wyden wrote a scolding letter to the Director of ICE and the Attorney General demanding answers and expressing concern about denying website owners a chance to defend themselves prior to seizure because “there is an active and contentious debate about when a website may be held liable for infringing activities by its users.” Wyden added that the domain seizures “could function as a means of end-running the normal legal process in order to target websites that may prevail in court.”

5. Targeted Sites Are Not Given An Immediate Opportunity To Reclaim Their Domain.

The final Constitutional problem is that not only is there no notice and hearing before the seizure, there is not an immediate and meaningful hearing after the seizure. Most exceptions to due process and freedom of speech restrictions are premised on the promise of an immediate opportunity to defend yourself after the Government has taken your property. Operation In Our Sites has included no such immediate hearing. In fact, according to reports, weeks after the November seizures, site owners were still waiting to learn what it is that their sites had been accused of.

The lack of an immediate opportunity to reclaim a domain is not the only problem. Even if a post-seizure hearing occurred within hours of the seizure, it may be too late to truly compensate a domain name owner’s loss caused by an erroneous seizure.

Commentators such as Larry Downes have correctly pointed out that the seizure of a domain name is somewhat unique because a seizure may work to shut down a website indefinitely. A domain seizure is not like when the Government seizes a car used to solicit a prostitute. If the car is later returned, it still runs as well as it did when it was taken. With a domain name seizure, if a user attempts to access a website, but instead finds himself face-to-face with the DHS/ICE seal, even if the domain is later restored, that user will probably never return to the site.

It is even worse for those 84,000 websites falsely accused of child pornography. A visitor attempting to access these websites got an additional message stating: “Advertisement, distribution, transportation, receipt, and possession of child pornography constitute federal crimes that carry penalties for first time offenders of up to 30 years in federal prison, a $250,000 fine, forfeiture and restitution.”

Even though these websites were completely innocent, will users come back to sites that the government has publicly accused of child pornography?

—

David Makarewicz is an attorney practicing internet law in defense of websites and blogs.  Visit Dave at Sites and Blogs or follow him @sitesandblogs to keep up with breaking Internet news affecting websites, bloggers and social media.

Source: 5 Reasons Why the US Domain Seizures Are Unconstitutional

“You are worse than the MAFIAA’s scare tactics,” one annoyed reader wrote to me in response. “Why all the paranoia, nothing is this bad? You make people terrified.”

Three years on and not only are the points in the article even more relevant than they were in 2008, but in hindsight should have been taken on board by more than just admins.

Earlier this month the Swedish authorities and local anti-piracy outfit Antipiratbyran revealed that a major uploader to the now-defunct Swebits tracker – one the oldest BitTorrent sites – had been arrested by the police. The 25-year-old now stands accused of uploading more than 1,000 movies and, if prosecutor Henrik Rassmusson is to be believed, catching him was a breeze.

“He had been using his personal Internet account, and he had a static IP address associated with an ISP, so it was not hard to get hold of him,” Rassmusson told Swedish Radio yesterday.

While trying to be sympathetic to this guy (who is undoubtedly in pretty serious trouble) isn’t conducting this kind of activity unencrypted or without some level of anonymity simply crazy these days? Isn’t using a VPN or proxy in a foreign land a standard requirement now? Isn’t presuming and preparing for the worst a required skill in 2011? Perhaps it should be.

In the 2008 article our friendly admin said he would never pick up his emails without hiding his IP address and again, some people said that was going too far. The recently arrested admin of ChannelSurfing.net might disagree. Google coughed up his records to the feds last month in the blink of an eye.

Going even further, the admin said he took precautions to hide his IP address not just on his own site, but when on those operated by others too. Some people laughed – the admin was clearly a paranoid fool, they argued.

But roll on to 2011 and many completely innocent fans of PS3 hacker Geohotz are about to have their IP addresses handed over to Sony by Google, YouTube and Twitter. Suddenly it’s not so amusing anymore.

When Internet users aren’t even free to watch videos on YouTube and read comments on Twitter without being exposed to the prying eyes of big corporations like Sony and their aggressive lawsuits, isn’t it time to consider some level of anonymity as a prerequisite to even going online?

No? We’ll report back in another 3 years. You will have changed your mind – guaranteed.

Source: Major BitTorrent Uploader Used No Anonymity – Bring Out The Straightjacket?

The situation that provoked the article on 1709 Blog was the news that the administrators of BitTorrent site FileSoup had walked free after their cases were dropped by the UK’s Crown Prosecution Service.

However, the 1709 Blog article “Parasites in the FileSoup” concentrated not on the main news, but on the reactions from both TorrentFreak and Telegraph readers who made their opinions known in no uncertain terms.

“Fuck you Hollywood !!!! Boycott all mafiaa material,” said Gorehound as quoted by 1709 Blog.

“‘Good,” said Quinn. “Success for the ordinary folks over the Fat Cats who are still living in the past.”

So what provokes these strong emotions? On these and other similar comments, the 1709 Blog has a theory.

“Overwhelmed by the glut of content on P2P networks, file-sharers have lost control of their lives. Impotent with rage, they bite the hand that feeds them. They have made themselves the slaves of media-consumption – and who better to blame than the parasites, the scum, the spivs, the fat cats who ‘lord it over’ their screens?”

Regular TF commenter Rob8urcakes, who was also quoted on 1709 Blog, explained his contempt for the people behind the FileSoup legal action in quite different terms.

“The greedy, over-zealous asswipes that pursued this case to Court were so blinded by their own rage they saw no sense other than to try and prosecute these 2 guys to the full extent of the law,” he wrote.

“That meant their stupidity overwhelmed them by getting police to charge Filesoup under the CRIMINAL law of conspiracy rather than the civil offence of copywrong infringement. These crazed dummies from FACT wanted to chase down a small, almost defenceless site and get the Admins jailed as criminals in order to set an example and gain a legal precedent.”

So have file-sharers really lost control when they “bite the hand that feeds them”, or are they simply reacting to overwhelming bullying behavior as shown in the FileSoup case or the mauling of Jammie Thomas or Joel Tenenbaum?

Do people in the file-sharing community have every right to be angry or are they forgetting who supplies most of this content in the first place? Does consumer unfriendly DRM give people good reason to feel like they’re being pushed around even when they’re paying, or are the entertainment industries justified in doing whatever they like with their content?

Is the rage against the so-called MAFIAA machine the inevitable backlash against years of customers being taken for granted or, as 1709 Blog puts it, does “the endless repetition of these sentiments have a pathological, even psychotic quality” about them?

As usual, the comments section is now open. We know you’ll have your say.

Source: Impotent With Rage, Psychotic File-Sharers Bite The Hand That Feeds Them

There is a blind trust in authority here that is alarming. The ever-increasing desire to know what we talk about and to whom is cause for more than concern, and that desire is displayed openly by corporations and politicians alike. To make matters worse, it is not just a matter of eavesdropping: corporations and politicians openly want – and get – the right to silence us.

The copyright industry is demanding the right to kill switches of our very communications. If we talk about matters disruptive enough, disruptive according to authorities or to the copyright industry, the line goes silent. Just twenty years ago, this would have been an absolutely horrifying prospect; today, it is reality. Don’t believe me? Try talking about a link to The Pirate Bay on MSN or on Facebook and watch as silence comes through. The copyright industry is fighting for this to become more pervasive. So are some politicians with agendas of their own.

While the copyright industry and repressive Big Brother politicians may not share the same ultimate motives, they are still pushing for exactly the same changes to society and control over our communications.

At the same time, citizens’ physical movements are tracked to street level by the minute and the history recorded.

How would you revolt with all this in place, when all you said just fell silent before reaching the ears of others, and the regime could remotely monitor who met whom and where, when they could kill all your equipment with the push of a button?

The West hardly has any high moral ground from where to criticize China or the regimes that are falling in the Arab world.

And yet, in all this darkness, there is a counter-reaction that is growing stronger by the day.

Activists are working through the night in defeating the surveillance and monitoring to ensure free speech by developing new tools in a cat-and-mouse game. These are the heroes of our generation. By ensuring free speech and free press, they are ensuring unmonitored, unblockable communications. Therefore, they are also defeating the copyright monopoly at its core, perhaps merely as a by-product.

Free and open software is at the core of the counter-reaction to Big Brother. It is open to scrutiny for any and all kill switches and wiretapping, and it can spread like wildfire when necessary. Moreover, it renounces the copyright monopoly to the point where popular development methods are actively fighting the monopoly, again making the connection between copyright enforcement and repression. Free operating systems and communications software are at the heart of all our future freedom of speech, as well as for the freedom of speech for regimetopplers right this day.

The software that is being built by these hero activists is a guarantee for our civil liberties. Software like Tor and FreeNet and I2P, like TextSecure and RedPhone. That criminals can evade wiretapping is a cheap price to pay for our rights: tomorrow, we might be considered the criminals for subversion. These are tools used by the people revolting against corrupt regimes today. We should learn something from that.

At the same time and by necessity, this free software makes the copyright monopoly unenforceable, as it creates the untappable, anonymous communication needed to guarantee our civil liberties. Mike Masnick of Techdirt recently noted that “piracy and freedom look remarkably similar”.

Perhaps Freenet’s policy expresses it the most clearly:

“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.”

The fights for basic freedoms of speech and for defeat of the copyright monopoly are one and the same.

Therefore, the revolutions will happen using tools that are not just in lack of the copyright monopoly, but actively defeat it. The revolution will not be properly licensed.

– — –

Rick Falkvinge is a regular columnist on TorrentFreak, sharing his thoughts every other Friday. 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: The Revolution Will Not Be Properly Licensed

However, in a time where nearly every MPAA press release deals with piracy concerns, box office revenues are booming worldwide. The MPAA has just announced that in 2010 yet another record was broken at the box office. In the US and Canada last year’s record of $10.6 billion was equalled, while worldwide grosses swelled to a massive $31.8 billion.

“It was a strong year at the movies in 2010. Despite a weak economy, shifting business models, and the ongoing impact of digital theft, we had another record year at the global box office driven by growth outside the U.S. and Canada,” MPAA President Bob Pisano said, commenting on the record-breaking revenues worldwide.

“The continued theft of movies online will have a sustained adverse impact on movie attendance in the coming years,” Pisano added somewhat predictably. “It’s impossible to compete with free.”

Oh really? That last statement, although catchy, makes absolutely no sense in this context.

Does the MPAA chief truly believe that a shaky camcorded version of a movie is somehow depriving movie theaters of visitors? Are there millions of people who prefer watching a low quality camcorded version of a movie over a theater visit simply because they can save a few bucks?

Pisano is comparing apples and oranges here – and he and his buddies have nearly 32 billion reasons in their back pocket to prove it.

It would be the same as saying that a fan of band X won’t go to a concert because he can download a bootleg copy on the Internet instead. Movie piracy is hardly a threat (or competition) to movie theater attendances. If anything holds people back from spending a few dollars on a movie it’s probably the insane security measures that have been implemented in recent years.

Still, the MPAA is confident that piracy is affecting box office revenues, so it will therefore continue to push for new legislation and enforcement tools.

“We will continue to work with our industry partners to fight for common sense ways, through legislative, enforcement and legal avenues, to vigilantly protect the creativity at the heart of our industry from theft,” Pisano says.

One of the focuses of the MPAA has been to reduce camcording in movie theaters, but one has to question whether the investments that are made in this area are worth it. Do movie theater employees really have to be equipped with night vision goggles? Are metal detectors, emotion recognition and advanced audio watermarks really needed to pinpoint pirates?

It is almost as if the MPAA and other anti-piracy outfits continue this “piracy theater” just to guarantee and justify their jobs and those of their comrades. Make no mistake, anti-piracy is big business. There are dozens of anti-piracy outfits, copyright protection vendors and lobby groups that each earn millions of dollars merely because of this supposed piracy threat.

Something to think about.

Source: Evil Pirates: Movie Industry Tops $30 Billion Box Office Record

Although we’ve been quite critical of such studies in the past, especially when they’re funded by the entertainment industry, we have to admit that this is one of the best reports we’ve seen to date. Those who are interested in the use of BitTorrent and how it compares to other file-sharing services should definitely have a read.

The researchers clearly know what BitTorrent is all about, and although several assumptions and methodological choices paint the outcome to a certain degree, there’s not much to complain about in the data they present. Unfortunately, however, even solid data can be easily misinterpreted in the press.

Over the last days several readers have pointed us to an article that appeared in two of the top tech news outlets, Wired and Ars Technica. The article – “Where have all the music pirates gone?” – is written by one of the best tech reporters we know, but in this case the conclusion is way off.

The article zooms in on Envisional’s breakdown of content types that are “most popular” among BitTorrent downloaders. For this analysis the Envisional researchers looked at the 10,000 most downloaded files on the PublicBitTorrent tracker in December 2010.

As it turns out, pornography and films are in the lead with 35.8 and 35.2 percent respectively. Music on the other hand can be found at the bottom of the list with a measly 2.9 percent. Sounds plausible so far, but the article failed to mention something that clearly affects the outcome.

The overview of the 10,000 “most popular” torrents is based on a snapshot of the number of leechers. In other words, the rank of the most popular torrents is based on the number of people people who were downloading a file at the time the tracker was polled, not those who already finished it (including seeders).

This obviously results in a huge bias since the average video file of BitTorrent is much larger than the average music file. Based on a sample of millions of torrents we found that the average video torrent is 1.73 GB while music torrents average at 214 MB. So, video files are 8 times the size of music files.

Larger file sizes mean longer download times, and this is one of the explanations why there are far less music files in the top 10,000. Movie torrent simply take longer to complete so there are generally more people listed as leechers. If the top 10,000 was based on actual completed downloads the percentage of music torrents would have been much higher.

We’re of course not arguing that more people download music on BitTorrent than movies, but based on the above it seems likely that the difference between the two categories in “actual” popularity (completed downloads in a given time) is being misrepresented. One thing’s certain, the music pirates have definitely not vanished from BitTorrent yet.

The original article does point out correctly that worldwide, the music industry is doing a much better job at presenting alternatives to piracy than the movie industry. Whether music piracy has gone down because of it is a different question though, and one that at least needs some comparison data in order to be answered correctly.

Source: Arrr! The Music Pirates Are Still Here

The threat of a nuclear war was present. Present in your daily life, present always. You weren’t entirely sure when you went to sleep if there would still be a world tomorrow. It’s hard to imagine if you haven’t experienced it, but let me illustrate with a song most people have heard, ‘Forever Young’ by Alphaville. A wonderful ballad which would make people dance cheek to cheek and then go home with one another. How many have taken the time to listen to what it’s really about? It’s enough to glance at the first four lines:

Let’s dance in style, let’s dance for a while,
Heaven can wait, we’re only watching the skies,
Hoping for the best but expecting the worst:
Are you gonna drop the bomb or not?

The worldwide governmental assault on civil liberties and privacy right now is motivated by the claim that the world has become a more dangerous place since the 80s. Whoever suggests that is lying through their teeth. The worst thing that can happen today is that some nutjob blows himself to pieces on a bus on the other side of the continent.

Now, while this would obviously be very bad, it doesn’t nearly play in the same league as the entire world ceasing to exist. The scare of this was present everywhere in the 80s, all the time, for some war hawk or some human mistake or misunderstanding to trigger the quite literal end of the world with just a 30-minute warning.

Can you imagine when this race is won?
Turn our golden faces into the sun…
Do you really wanna live forever?
Forever young.

Don’t try to scare me into giving up my rights by yapping “terrorism”. The world hasn’t become more dangerous at all!

The people who were young in the 80s were dancing cheek to cheek to ballads about nuclear war and total annihilation. That’s how present the scare was. It is something of a coincidence that Forever Young was published in 1984 of all years.

For in the middle of this, there was also a strong polarization. I grew up in Sweden, part of the West. And the entire identity of the West was “we are not them”. And “them”, that was the Eastern Bloc, the Soviet Union, the Red Superpower. “Them” were the ones that spied on their own citizens and denied them basic civil liberties and privacy. The ones who tapped their citizens’ phones, who steamed open their letters.

“We” were the ones who, no matter what, would stand up for people’s rights against their government. Of course, this might have been a delusion, but it was still our identity.

I’m told that the East German government had guest books in every apartment complex. Anybody visiting somebody else had to write it into the guest books, so the government could keep tabs on who had been in touch with whom. It was horrible. The government owned the guest books.

Currently, states in Europe and agencies in the United States are implementing telecommunications data retention, so that governments can keep tabs on who has been in touch with whom, when, for how long, and even from where.

Where is the difference? Where is the difference?

I’m looking at this over and over again, and chills go down my spine as I don’t see any.

This technology is being used against citizens of Egypt today. Egypt is using off-the-shelf equipment built here in the West with built-in surveillance capability. The surveillance used in Egypt has been mandated by Western governments for use against Western citizens.

We were not them. We all knew that. How did we become them? When did we become them?

Have we forgotten how horrified we were?

Have we forgotten that people could choose between the unsafe West Germany with its real terrorists and rampaging unemployment in the 80s, and the safe and watched East Germany where everybody was guaranteed a job and crime was virtually nonexistent, and how people risked their very lives to run west when the chance came? And that, unfortunately, they were too often killed trying? It was something people were even ready to die for, preferring a society with very real terrorists over a society that had eliminated them.

We were defending liberties across the world. We were the shining beacon of people’s right to privacy. We were the opposite of Big Brother. And today, we are seeing surveillance in use in Egypt that our governments have mandated for use against ourselves. What’s used against the people of Egypt can and will be used against us.

When did we become the ones we weren’t?

—

Rick Falkvinge is a regular columnist on TorrentFreak, sharing his thoughts every other Friday. 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.

Source: When Did We Become The Ones We Weren’t?