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