Steal These Policies

ITIF released a report today on digital piracy, Steal These Policies: Strategies for Reducing Digital Piracy co-authored by Dan Castro, Scott Andes, and yours truly. Here’s the blurb:

It is time for the U.S. government to take global theft of U.S. intellectual property, especially digital content, much more seriously. A new ITIF report finds that the U.S. government can and should do more to support industry efforts to reduce digital piracy, a growing problem that threatens not only the robust production of digital content, but U.S. jobs. While there are no “silver bullets” to reducing digital piracy, there are a number of “lead bullets” that can and should be implemented. Specifically, ITIF calls on the federal government to not preclude those impacted by digital piracy, including copyright holders and ISPs, from taking steps, including implementing technical controls like digital fingerprinting, to reduce piracy. In addition, industry and government should consider bold steps to limit the revenue streams of those profiting from piracy by encouraging ISPs, search engines, ad networks and credit card companies to block piracy websites and refuse to do business with them. These options should be part of a broad dialogue that engages all stakeholders, including government, content owners, website operators, technology developers, and ISPs and other intermediaries, on how to improve the global response to piracy. Toward that end, this report recommends that policymakers:

And here’s the video of the launch event:

One point that comes across better from the live event than from the paper is that piracy isn’t simply something that takes place between close personal friends, it’s a business that profits from the unauthorized sale of other people’s material. Whatever your views on Internet privacy and intellectual property rights may be, I think we can all agree that the business of piracy is wrong.

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36 thoughts on “Steal These Policies”

  1. Actually, I’m doing no such thing. You can block access to piracy-enabling sites simply by making anonymous hacks to DNS, and you can cut off funding to the same by regulating the credit card companies.

    DPI has its uses, but it’s not essential to cutting off the money tap to the piracy enablers.

  2. I wasn’t referring to the block and credit-card proposals. I was referring to this one PDF page 14 (emphasis added):

    “Content identification systems recognize copyrighted content so that copyright owners can take steps to reduce digital piracy. Using these systems, copyrighted content can be detected by automated means if others try to share it on file sharing networks or websites. The technology can be deployed at various locations, including on peer computers, file-sharing networks, servers of user-generated content websites, consumer electronics, AND AT THE ISP LEVEL AS DATA PASSES THROUGH NETWORKS INTO AND OUT OF NETWORK ENDPOINTS. Various technologies can be used to identify content including digital watermarks, fingerprints, and metadata.”

    I don’t think I’m distorting it to note this is advocating complete monitoring of all communications.

    It’s very clear in PDF page 17:

    “Other opponents of ISP-level filtering may use the argument that such technology violates their personal privacy. However, Internet packets are examined by automated systems as a matter of course on the Internet today and always will be; the nature of Internet routing requires examination in order for packets to be delivered. Privacy only becomes an issue when packets are retained, analyzed, shared, or viewed by an individual. As long as these activities are performed in a responsible way in accordance with legal guidelines, there is no particular basis for worry. For example, the email service Gmail depends on the exact examination of highly personal communication in order to serve up targeted ads, but only a computer examines the packets and the email data are not shared or read by humans.”

    Again, doesn’t total surveillance bother you even a little?

  3. Seth, what is the matter with you? Surveillance is only bad if it is done by the government. It is totally cool if it’s done by our corporate friends. Likewise, government interference is only bad and free-speech squelching if it’s concerning rules that are bad for our corporate friends. In this case we totally want the government to get involved, because these copyright holders need the power to keep an eye on every bit of everyone’s net activity.

  4. In other words, Jacob and Seth assert that the Internet was designed for theft, and any interference with its central function is to be discouraged.

    If either of you doesn’t believe that, perhaps you could say what types of anti-piracy enforcement measures you would support.

  5. Oh, c’mon, Richard, that’s one of the oldest rhetorical tricks in the book – “If you do not support my proposal to implement a Police State, then YOU SUPPORT TERRORISTS!!!”

    Doesn’t at least the prospect that once this total surveillance system is implemented for big business’s purposes, then *the government * could easily “repurpose” it, seem troubling?

  6. I didn’t say anything about terrorists, I simply asked you to say what, if any, anti-piracy measures you would support. It doesn’t seem like a difficult or inflammatory question.

    As to your topic-shifting move, the horse is already out of that barn.

  7. I can’t believe what I am reading!!! A call for big government (Nanny State) to protect a special interest. Not only that, but that it is perfectly OK for a corporation to spy on you and violate due process.

    So we have corporations going to the government to declare certain activities criminal through a few generous campaign contributions. Then we use the power of the State to arrest all those found guilty of “theft” by the corporations. The corporations of course get their “evidence” by spying. So where at the rights of the citizens protected????????????

  8. corporations going to the government to declare certain activities criminal through a few generous campaign contributions…

    Patent law goes all the way back to the Constitution, way before Disney.

  9. You used a rhetorical gambit that was structurally identical. Again, I’ve been at this (civil-liberties) for twenty years, and you’re no college kid.

    While to be fair you did answer the question quite bluntly (“Yeah, I think that’s fine.”), I’m extremely surprised at such sentiments.

    And it is a difficult and inflammatory question in context, because anything other than endorsing very far-reaching measures – remember, total surveillance! – is going to be used to bash someone as weak on theft (which note, you just did).

  10. You still haven’t said what approach to piracy mitigation you do endorse, and I’d really like to know. Filtering is in many ways the least desirable method (there’s one that’s worse) simply because of the cost-benefit situation, but doing nothing isn’t a serious strategy.

  11. You don’t offer any solutions in that blog post, so let’s start at the beginning: should it be legal to sell copyrighted material without obtaining a license to do so?

    If your answer is “no,” do you have an objection to shutting down a store that engages in this practice?

  12. Well, I think a post titled “… And Nobody Knows How To Fix It” is rather a strong indicator that it’s not “… With The Exception Of Me, And Here’s How To Do It”

    So that briefly outlined my overall view. There’s real laws, and real problems which can be examined. Saying “do you have an objection to …” is just useless, because it’s postulating a simple case where the practical issue is full of complicated cases. As in, the outright infringement websites are already in violation of criminal law – obviously this isn’t considered enough by some people.

    Frankly, where I suspect you’re going is “If you believe it’s wrong, then you must support a police state against it” – and I think it’s a waste of time to play that argument game.

  13. @ Richard: Patent law may go back, but it does not justify abusive practices, especially trampling over another’s liberty at will. So what you seem to be saying is that it is perfectly OK for a corporation to trample on a person’s rights in the pursuit of profit. Additionally, it seems that you are favor of the Big Government socialistic Nanny State when it comes to protecting the poor underprivileged corporation.

    If corporations can trample on the rights of the common citizens shouldn’t they have an equal right to trample on the rights of the corporation, Fair is fair, isn’t it. Given this situation we would be living in anarchy. Are you secretly an anarchist????

  14. @Seth: you wrote that blog post five years ago. Have you had any new ideas since then?

    @Steve R: I’m actually proposing we have a general discussion about where to draw the line between permissible and impermissible anti-piracy practices. I think there is a line, and it should be drawn somewhere.

  15. Good, let’s restore copyright to what was envisioned in 1790 and dispense with the silly notions like it is infringement to copy a legally bought CD onto your computer or that you can’t use your DCD in a different region. These are all phony made-up “rights” that deprive the use of content of their rights. Yes users have property rights to the media too!

    I am sure that you realize that the concept of copyright has expanded and expanded. This does not seem to satiate the copyright maximilists who whine ever louder about piracy and the need for ever more onerous laws. Given the current trend in copyright we will all be declared criminals.

    The current law does not represent a level playing field for drawing the line. Furthermore, if you really believe in limited small government, we need to get the government out of copyright enforcement. Let’s restore sanity to copyright.

  16. Getting the government out of copyright means erasing the line between legal and illegal transactions, and I’m not in favor of that. Let’s try to be a little bit realistic about the ill-gotten gains of the piracy businesses that sell other people’s stuff.

  17. Since I wrote that blog post, I’ve in fact mostly become more cynical and nihilistic about the prospect of fixing copyright. Google amazes me, in that on the one hand it’s provided the only big money in any way opposed to copyright maximalism, but that comes out in such strange (to me) ways that I wonder if it’s “meet the new boss, same as the old boss”.

    I like the ideas being advanced by people such as Prof. William Fisher at Harvard, see “Promises to Keep -Technology, Law, and the Future of Entertainment”
    (I originally thought they were unworkable, but I’ve changed my mind on that over time)

    The decisive factor for me is that these have the advantage that they DON’T require a police state.

  18. In Fisher’s Alternative Compensation System, we read: With registration would come a unique file name, which would be used to track transmissions of digital copies of the work.

    I don’t see how tracking transmissions for the purpose of just compensation changes anything, if your fear is a police state. The government, or its agents, is snooping your Internet packets to see what you’re watching and hearing, and once the government has that information it can do lots of interesting things with it.

  19. Au contraire, there’s a BIG BIG difference between tracking downloads for the purposes of divving up a money-pool – which can be statistical/approximate, and need not be linked to real identities, versus for an avowed purpose of prosecution (possibly criminal).

    Think of it this way: There’s an vast gulf between NielsenTV ratings and 1984 telescreens

  20. Hi folks,

    if the question is “what should we do about people violating copyright,” and an answer on the table is “systematically reduce privacy,” then it seems that it’s high time to ask a new question:

    why do we have copyright laws at all?

    In the United States, the explicit answer in the Constitution is so that Congress can “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

    The means of production and distribution of intellectual output like musical performances and scores, books, and instructions have changed dramatically since the Constitution was framed. What promoted progress then is unlikely to be what promotes progress now.

    If copyright laws are justified because they promote the creation of new intellectual output, then we have to ask:

    would draconian measures enforcing existing copyright laws *improve* progress in arts and sciences, or *degrade* it?

    Yes, weakening copyright laws would cause shifts in the current labour market. The function of copyright is not, nor has it ever been, to protect any particular person’s job, though.

    Up here in Canada we are having an exciting national deliberation about what do do with our copyright laws. It’s my hope that instead of letting things like ACTA and WIPO determine whether we adopt a DMCA-like regime, we’ll instead ask reasonable questions, like:

    -given the incredible ease of publication and distribution that the Internet allows, what should the terms and length of copyright be for various formats?

    -given that the public has demonstrated that they view the ability to share content as an important good, how can copyright be formulated in such a way that does not take away this good?

    -how, in fact, has progress in the arts and sciences been impacted by tolerant regimes, allowing citizens to share as they see fit? (Canadians still seem to be writing songs and books, for example).

    Please note that the word “piracy,” which compares the desire to share ideas and their expressions to the violent seizing of property, has a chilling effect on even the possibility of this discourse taking place.

  21. If I produce something – a program, a book, a movie or a song – and give it away for free or for a price that’s greater than free that I determine, that’s “sharing.”

    If, on the other hand, I produce something and you decide to give it away for free or for a price that’s greater than free that you determine and collect, that’s “piracy.”

    See the difference, Darren?

    Reducing privacy is not the most desirable means of preventing you from doing this with my work, but it’s certainly a side-effect of several of the means under discussion. There are several other means that don’t have any effect on the privacy of consumers, such as criminal and technical interventions against unauthorized sellers; yet for some reason this debate always gets turned away from these interventions toward the privacy issue.

    Turning away from the problem of blatant unauthorized sale of copyright works to the fringe issues of fair use and privacy strikes me as disingenuous.

  22. Privacy is not a “fringe issue” if you’re proposing it should be eliminated as a necessary sacrifice in order to fight The War (on whatever – Communism, Drugs, Terrorism, or Infringers).

  23. Turning away from the problem of blatant unauthorized sale of copyright works to the fringe issues of fair use and privacy in a sphere where there never was any strikes me as disingenuous.

  24. Privacy is a social/legal concept, not a technological one. After all, telephone conversations were also unencrypted, but that didn’t mean wiretapping everyone was fine in order to fish for possible criminal activity.

    Imagine “Turning away from the problem of blatant unauthorized sale of [bootleg liquor | illegal drugs | gambling bets | Communist propaganda …] …”

  25. But Seth, you already said you were OK with snooping as long as it was only to determine who gets the money, so I have to say that harping on the privacy issue after you’re taken it off the table does have the aroma of fringing. The point of the study is that a variety of enforcement tools are available, and the best ones follow the money. I’d like for you to read the study before criticizing.

  26. That’s distorting my meaning from short blog comments – remember my statement: “There’s a vast gulf between NielsenTV ratings and 1984 telescreens”. There’s levels of examination which go into “snooping”, and conflating all them in a bid to justify the most extreme, is a deceptive argument. Again, to claim that the telephone company doesn’t keep a lot of data for various reasons would be ignorant. To argue that this means prospective wiretapping should be OK would be sophistry.

    Total surveillance is a bit much to describe as “enforcement tools” – that would be like calling waterboarding one of “a variety of interrogation techniques” (yes, I know, people do exactly that – and it’s Orwellian).

    Umm, I gave exact citations above, so I’m not working off an inaccurate news report. And I believe we are agreed that you and the study do advocate total surveillance. I keep trying to get you to think about how odd that is, that I presume you’d never favor such a proposal for something like “drug dealing” or “terrorism” (am I wrong there?)

  27. Snooping packets by automated means for specific patterns is hardly the same thing as wiretapping. You’re in favor of it and so am I.

    The study doesn’t advocate any specific technique. It was meant to correct some of the distortions about the solution space that PK and others have made in order to foster dialog about how best to proceed.

    There are situations in which it’s OK to snoop packets for identifying characteristics, and there are situations in which it’s appropriate to block DNS queries or IP address ranges. We haven’t come anywhere close to using criminal prosecutions and treaties either.

    In any case, piracy is rampant on the Internet, it’s wrong, and it’s costing America money. I’d like to see a serious response, and I don’t think abolishing copyright is the way to go.

  28. “Snooping packets by automated means for specific patterns is hardly the same thing as wiretapping.”

    So what the NSA does in terms of automated scanning is not wiretapping? Nonsense!

    “You’re in favor of it and so am I.”

    Repeat: That’s distorting my meaning from short blog comments – remember my statement: “There’s a vast gulf between NielsenTV ratings and 1984 telescreens”. There’s levels of examination which go into “snooping”, and conflating all them in a bid to justify the most extreme, is a deceptive argument.

    That fact that I can just cut-and-paste this as a reply is saying something.

    “The study doesn’t advocate any specific technique.” – no, it advocates an EXTENT. You haven’t yet explained why you favor total surveillance for the interests of copyright-owners, but presumably nobody else.

    “There are situations in which it’s OK to snoop packets for identifying characteristics, …”

    And there’s situations where the phone company will listen in on personal calls. That doesn’t justify wholesale wiretaps.

    “In any case, piracy is rampant on the Internet …”

    In any case, drug deals are destructive …

    In any case, terrorism is disruptive …

    Why are copyright owners so much more important than everything else a police state might fight?

    1. You’re in favor of snooping packets to the extent necessary to identify copyrighted content, and so am I; the only difference between our positions is what’s done with the information. If it’s OK to do this in order to send somebody a check, it must be OK to use the same information to determine whether the sender is legitimate. You wouldn’t want to send royalty checks to the Russian mafia, would you?

  29. Fourth time: “There’s a vast gulf between NielsenTV ratings and 1984 telescreens”. There’s levels of examination which go into “snooping”, and conflating all them in a bid to justify the most extreme, is a deceptive argument.

    Do you honestly not see the difference? Are Nielsen TV ratings exactly the same thing as NSA wiretapping, because both are “snooping”? Somehow, the TV industry has a pro-rated measurement system that does not require a telescreen system.

    The point is that the requirements to “send somebody a check” allow for statistical estimation based on much looser requirements than those for throwing them in jail (criminal copyright infringement). To point out the obvious, Nielsen TV ratings are based on VOLUNTARY participation. So it’s not a police state, even though a word like e.g. “monitoring” might be used in different senses.

    If your point somewhere is that attempting to commit fraud sometimes spurs criminal investigation, well, that’s not very profound. There’s a big difference between the occasional fraud investigation and treating everyone like criminals all the time.

  30. Saying there’s a gulf between two uses of the same technology isn’t the same as proving it – it’s just an assertion with no facts behind it. The real difference is how the data is used, not how it’s collected. But this is all tangential; you have a problem with copyright, and the privacy business is just a smokescreen.

  31. Do I have to repeat the above a fifth time? I gave you a specific example, in detail, and you seem to have completely ignored it.

    “you have a problem with copyright, …”

    Bah. You just want to write a rant, and not be confused with facts.

    If you don’t have a problem with proposing a police state, I have a problem with that.

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