November 27th, 2011 by Lincoln Baxter III

Intellectual property is dying, and there’s nothing you can do about it.

Piracy Helps Stop Global Warming

When my family comes together for special occasions, it is official tradition to begin, fill, and end any given evening with a debate on social justice, politics, science, religion, or a combination of the above. This year was no different, with our post-feast discussion ranging from human rights to geological timelines of carbon fuel consumption rates. The topic that interested me the most, however, was HR 3261 – new “Anti-piracy” legislation from the MPAA and RIAA, currently making its rounds through congress.

The MPAA and RIAA are trying blacklist websites, block IP addresses, and change fundamental assumptions about the market we operate in – all under a new law that will tie the hands of the internet…

For those of you who are unfamiliar, this is a bill, quote, “To promote prosperity, creativity, entrepreneurship, and innovation by combating the theft of U.S. property, and for other purposes,” perhaps better known by its short name, the ” Stop Online Piracy Act.” It is an interesting piece of potential law, and in brief summary, increases the responsibility of internet companies to prevent copyright theft on their domains. It also stands to reason that because this bill was sponsored by representatives working with the MPAA and RIAA, that’s who’s going to use it, though I’m sure new powers and interested parties will line up to take advantage of the bill as soon as they find out how. But I’ve got news for you: Intellectual property is dying, and there’s nothing you can do about it.

This bill is very specifically worded to allow large recording corporations (or anyone else with the resources to bring legal action,) to point a finger at a website, perhaps of a competitor, perhaps of an unwelcome critic, and force everyone else on the internet to deny services. These services, by the way, reach all the way to the lower technical depths of the internet – to the DNS servers and routers themselves – meaning that websites may effectively be blacklisted by the government, at the whim of anyone with enough clout.

There are a few other countries in the world who employ such laws to restrict access to information and websites. China comes to mind.

Denial of Services

In short, websites like Google, Facebook, your company website, and your personal website continue to be required by law to remove (to the best of your ability) illegally distributed copyrighted material from your pages; however, this new bill also makes internet companies such as Google, Yahoo, PayPal, or even eBay, liable for providing their services to websites which infringe upon U.S. copyrights. The bill explicitly states that internet companies must also cease to provide services (specifically advertising, payment gateways, hosting, domain name services, or any other type of service) within five days of receiving notice of the alleged violation. These services include but are not limited to search engines “…serving the site as a direct hypertext link,” [p15-L11] payment network providers, “…completing payment transactions involving customers located within the United States or subject to the jurisdiction of the United States,” [P15-L21] internet advertising services, “…providing advertisements to or relating to the foreign infringing site,” “…making available advertisements for the foreign infringing site,” “…providing or receiving any compensation for advertising or related services to, from, or in connection with such foreign infringing site.” [P16-L23]

Before we move on, let’s just revisit one line of this last section: “… serving the the site as a direct hypertext link.” Who wants to make the deduction here and say, “what the hell?” This could be interpreted to mean that you may not publish any link on your website (broken or not,) to an infringing website or its IP address. Sounds great! now go make sure you’ve checked every page and piece of content you’ve ever published. Missed one? Let’s see what happens next.

Failure to Act

What happens when such service providers or internet companies fail to meet these requirements is equally draconian and, “to ensure compliance with orders issued pursuant to this section, the Attorney General may bring an action for injunctive relief,” [P18-L16] meaning that they can require any action other than the transfer of money, “against any entity,” meaning individual or company/corporation, that fails to meet the requirements set forth in the first section of the bill. This could be used to shut down the service provider entirely if they fail to meet these requirements, and cannot give an acceptable technical reason why they were unable to do so. The bill is very general in this area, and in my opinion, allows a reach that would be far more damaging and corrupt than the alleged crime itself.

But that’s not all. Action will also be taken against any entity, “that knowingly and willfully provides or offers to provide a product or service designed or marketed for the circumvention,” [P18-L1] of the denial of services set forth in the first section of the bill. This means that no technology may be produced that could possibly be used for circumventing this “blacklist bill” or any of the denied services set forth within. In general interpretation (of which this bill makes easy,) this could be taken to mean that you cannot provide any technology that could be used to redirect a DNS or IP resolution. I’ll leave that up to you to connect the dots here, and simply suggest you go read any book or article that explains how the internet works at a fundamental level. I’m sure you’ll see the problem.

Recovering from being Blacklisted

It would be convenient for the powers at large if it were not actually possible to restore services after making such an allegation, but in our fair and equitable justice system, it just wouldn’t stand to have unproven allegations used to deny services any longer than necessary – which, by the way, is exactly what this bill enables. Little substantiated evidence is required for an allegation (unproven accusation,) and once that allegation is made, the entity charged with infringing intellectual property rights must subsequently, “file a motion to vacate the order [of injunction],” [P22-L10] in order to have services restored. In a sense, guilty until proven innocent. Your site can be taken down with an allegation, and must be restored by proving your innocence; this seems very constitutional to me. Who’s rights are we protecting again?

A history of property, intellectual and art

Mona Lisa

So without diving into further gory details of who and what constitutes intellectual property theft [P25-L1] maybe we should take a few minutes to review what intellectual property actually is, what that property has meant in the past, what it means in today’s society, and what it might mean in the not too distant future. In the name of simplicity, let’s assume that art and intellectual property are the one and the same. I would not claim that this trend currently holds true for all forms of intellectual property and art, but it certainly is more grey in the area of music and movies; digital art.

For centuries, we have associated art with a tangible value, and when that art was physically stolen, or copied, we took action against the perpetrators both legal and corporal. This is no different today, specifically we still associate value and ownership with art, and we also attempt to take action (most notably in this case by the RIAA & MPAA in the case of recording and motion picture art, or also patents in the case of technological art.) We administer monetary fines, and even send so called criminals to prison for stealing and reselling or distributing art illegally. For centuries, artists have created their works, and distributed physical copies of their work which represented hours, days, months, or even years of hard work, creative effort, and cost.

Consumers valued this art with the knowledge both of its rarity, and also its direct link to the artists themselves; value was attached to the fact that the artist had physically created that single piece of work, and that piece had been touched and created by the individual personally. Value was a combined product of quality and rarity/uniqueness, and price was set by the market in which the art was distributed or sold. Artists sold paintings, and musicians sold their scores (made possible by the printing press,) but for the most part, distribution was first-hand and word of mouth. This historical concept of value is what companies like the RIAA and MPAA are attempting to maintain today.

What they haven’t accounted for, however, in attempting to pass new legislation to criminalize the “provision of services” for websites labeled as “thieves,” is that our culture is fundamentally changing because of the ubiquitous technology of the internet; not only is distribution of media even easier, but so is forgery. It is impossible to distinguish two copies of the same MP3 that reside on two different computers. It is also impossible to know (without some tricky fiddling from the authors) where those copies came from originally. Instead of spending months to forge a copy of the Mona Lisa– painted by da Vinci himself, we can now spend a few milliseconds to copy-and-paste our way to Party in the USA, and we know that Miley Cyrus never came close to that place on my hard drive where the song is stored.

The real issue, however, is that our society’s definition of value is changing. It used to mean that when you bought a piece of artwork (artifact,) you knew the artist had put their blood, sweat, and tears into that single artifact, and that was the reason why it was valued at the price paid, (not to mention that it was the only copy, or one of only a few copies that the artist had ever produced.) But today, we can distribute and sell digital prints or recordings of artwork for a fraction of the cost of production. In fact, there is nearly zero difference in cost to produce one digital copy, two digital copies, or one hundred digital copies. So what is the value we are getting?

People have started to realize that the sale of a digital CD for the same price as a physical CD is actually abusive. It’s not that the artist’s work is any less relevant, or less enjoyable, or less meaningful, but the value of that artwork has changed from a physical tangible artifact, into something much less personal, and much less valuable. While we were once purchasing the ability to feel a connection to the artist, we are now purchasing only the art itself, which in my opinion, is in much less demand. Art is now a mass-produced commodity, and the companies that mass-produce it are still trying to make us believe that we are getting something of value.

Where has the value gone?

Well, the value hasn’t really gone anywhere. It’s still where it’s always been – with the artists themselves. An unmanipulated market always sets the price of its goods based on the demand, and what we’ve done is effectively reduce the demand for the art itself, while increasing the demand for the artist. More people than ever are able to selectively listen to music or watch movies than even 20 years ago, and those people have decided as a culture that the price being asked is too high – so much so, in fact, that they steal music and never think twice. But what do we expect? We’ve essentially devaluated the artwork on such a scale that it has no value itself. I guarantee you; though, that more people are willing to go to concerts than ever were, if the music is good; if you were to auction John Lennon’s guitar, I’m sure it would sell for a pretty penny.

In fact, Jim Lovell is auctioning his notebook from the Apollo 13 space flight – a simple book with some scribbled calculations, yet we assign enough value to this paper that it can stand as the centerpiece in this auction. While this isn’t art, this is a perfect example of how we attach value to the artifacts, or personal connection to the artists themselves, not to the art of which we seem to bore quickly and look for what’s next. Truly a commodity.

Stop manipulating the market

“Institutions will try to preserve the problem to which they are the solution.” — Clay Shirky
Clouds

It comes down to this, quite simple, straight forward, and true. As I said before, the market will decide what value to set on any product, and what the MPAA and RIAA are attempting to do with this new bill, is force the market into a position of captivity, and remove the ability to set their price. The wealthy and powerful continue to use their power and wealth to maintain a position of control, and under the guise of protecting the rights of artists. Well, I’ve got news for you. Intellectual property is dying, and there’s nothing you can do about it. If you want to make money in this new market, you better adapt to the fact that half of our society has assigned a value of 99 cents per song, and adapt further still to the fact that 99 cents is still too expensive for the other half. If it weren’t, people wouldn’t be stealing your music. In a sense, piracy is not morally wrong, because morals are decided by the common beliefs of the society we live in.

For example, you can go read bill HR 3261 and do it for free, or you can download it conveniently from me for a only a small convenience & bandwidth fee. What’s it worth to you?

There are other ways to make money in a market where artistic intellectual property is becoming less and less valuable. And if you can’t keep up, then step aside and stop trying to steal our freedom in order to preserve your out-dated and historically inconsistent business model. The open-source software model is a perfect example of adapting to our new morals, so if you claim it can’t be done, then take a look at the links on the top of this website (our URL-rewriting, and agile project management initiatives) and get ready to eat your words on the way out the door. Peace.

That being said. Open source software may be free and free to modify, but there are still restrictions on its use. We need to guarantee that the licenses are being upheld, that nobody is taking the code private illegally, so it is certainly true that we do need to ensure that some rights are upheld for artists and intellectual property holders. The question is which rights, who holds those rights, for which intellectual property will those rights apply, and for which types of property should they apply. Time will tell, but blacklisting the internet does not seem like the answer. Want to fight this bill? Sign the petition.

Whatever legislation is passed to enforce these rights must be carefully worded, and due diligence must be done to ensure that this law cannot be abused, that it does not reach too far, and that it does not cost us our freedom.


Lincoln Baxter, III

About the author:

Lincoln Baxter, III is the Chief Editor of Red Hat Developers, and has worked extensively on JBoss open-source projects; most notably as creator & project lead of JBoss Forge, author of Errai UI, and Project Lead of JBoss Windup. This content represents his personal opinions, not those of his employer.

He is a founder of OCPsoft, the author of PrettyFaces and Rewrite, the leading URL-rewriting extensions for Servlet, Java EE, and Java web frameworks; he is also the author of PrettyTime, social-style date and timestamp formatting for Java. When he is not swimming, running, or playing competitive Magic: The Gathering, Lincoln is focused on promoting open-source software and making technology more accessible for everyone.

Posted in OpenSource

7 Comments

  1. Craig Schwarzwald says:

    Incredibly well written article, and I could not agree more. I’d like to go a step further and divide the two biggest players into different groups if I may.

    For the RIAA and record industry in general, I have this message: Your industry is changing, get used to it, get over it, and adapt (if it’s not already too late). Bands and musical artists needed (past tense) huge recording labels for production and distribution, and so have historically signed away much of their rights to the major labels (as well as profits) to get their music out there to their fans. The ability to record and produce a vinyl record, let alone mass produce thousands or millions of records just wasn’t feasible for individuals in the past. However, like Lincoln mentions above, mass production of digital media costs today are practically nothing. As for distribution, word of mouth travels around the internet pretty fast these days, and with digital files and recording equipment getting both cheaper AND better all the time (like all technology), the need for a big label just isn’t there anymore. A good manager and website is more than sufficient to “get yourself out there”. Also, most musicians I know (at least claim) to do it for the love of their music, not to “strike it rich”. So money and profit from the musical arts are still an issue, however, if more of it went to the artists themselves creating the works, and less to the labels trying to act as a now un-needed middle man, I feel like most, if not all musicians would be satisfied. And to the no longer needed big label companies that might complain, we live in a capitalistic society of natural selection… adapt or perish.

    Movies are a different story. The problem here is society still values Hollywood coming out with great movies, as evident of our movie ticket prices approaching (or I’m sure in some places already surpassing) $20/ticket and us still paying those outrageous prices. But the fact is, this industry is changing as well, and people are becoming less and less willing to spend that $20/disc on a DVD, or Blue-Ray, or Ultra-Violet, or whatever technology Hollywood tries to throw at us next for repeat views. People are starting to realize that once they’ve seen a movie, they’re not likely to watch it ever again. Not only that, but with the newest internet connected gadgets coming out, they want access to ANY and ALL content 24/7 wherever they are, on whatever device they have. Yes, Hollywood is trying to sell this concept with Ultra-Violet, but I believe the end product is just not going to live up to customer expectations or demands. And again, people aren’t going out there to spend $20+/movie no matter how many devices they can access it on. While I don’t have the answers to “fix” the movie industry, I’ll just leave with the fact that big movies today rake in orders of magnitude higher profits than big movies of even 10-15 years ago in the box office. Perhaps Hollywood will just have to “settle” for those hundreds (plural) of millions of dollars per movie they rake in at the box office, and the huge (and ever growing) Netflix (and other streaming) contracts, because again as mentioned above, society as a whole has simply ruled they’re not willing to pay those kinds of prices Hollywood had gotten used to seeing in the past.

    As for the rights of the art, as well as rights of software Lincoln ends his article with I feel like the sheer logistics of the internet age gives us only 1 police-able option. That property owners have the right to be the only ones to profit off that property, but for better or worse, little more than that. Digital copies of music, movies, and software alike are going to exist, and even a “blacklist on the internet” isn’t going to stop that. Policing piracy is proving more costly than it’s worth (thus this bill, HR 3261, to have every site police themselves, even from links they put on to other’s sites, as well as user comments, etc. which is also going to prove just as impossible). It would however be totally wrong (as well as thankfully far easier to catch and prove) if someone tried to take that property and re-sell it as their own. That’s what lawsuits in US court system are for. Again as mentioned, intellectual property (at least as we’ve none it) is going away, and there’s really isn’t anything you can do about it.

  2. Mike says:

    Good article.

    Intellectual property is more broadly, a concept that is incompatible with free market capitalism to begin with. The main reason for the rise of IP in the West however, is based on a notion of a post-industrial knowledge economy. It is a false notion. And we have massive trade deficits and debts to show for it.

    Barring the ability to produce capital, Western governments have sought to turn knowledge and expertise itself into a form of capital to protect its wealth.

    These things are part of human capital, but not real capital unto themselves. They have zero marginal cost. Since things like software, which have zero marginal cost — that is to say, the cost of someone downloading 1 copy vs thousands of people downloading thousands is zero
    Markets always tend towards their marginal cost (marginal utility.)

    Thus, as you have said, IP is basically a market distortion. But more fundamentally it is a restriction on people’s ability to leverage what is in their own mind. Like the case of independent discovery. The first person to file the papers “owns” it. The other person’s independently arrived at thoughts are owned by someone else. The owner has a lien on that persons mind.

    This is fundamentally incompatible with liberty.

  3. sumit bisht says:

    Well written!
    I fully support this idea of sharing and de-regulation of virtual commodity.
    The more the corporations try to enforce stringent policies, the more ways people would go into illegitimate purchase. Purchase of IP online might be prevalent in west(due to excess of wealth and efforts of the sellers), but is just a hindrance in other parts of worlds, and causes piracy.
    Open source philosophy should be adopted as it has a harmonious solution to this problem.

  4. Fadi El-Eter says:

    I wonder how the (slow) death of intellectual property will affect the stocks of major companies, such as Disney (whose main job these days is lobbying the congress to extend the copyright timeframe).

  5. Steve says:

    Great article. But I will say morals can be determined more than on a mass community.

    Sometimes people can be shown the impacts as in your article to help them realize they do value a standard and are in fact accountable (rather than getting bored with a value and compromising). I think such efforts can be used to help people find value in what they have created. And in the long run that they own their art, instead of some massive company where you’re just a little peon.

  6. Ted says:

    We should put a button that submits this to each reader’s elected officials on the page – like Google did for SOPA. Could be useful the next time that ugly piece of legislation rears it’s head.

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