

A Real Alternative to SOPA, or Fixing the DMCA - earbitscom
http://blog.earbits.com/online_radio/a-real-alternative-to-sopa-or-fixing-the-dmca/

======
vectorpush
_If you also believe that we should not block or censor sites that primarily
share copyrighted material and serve next to no other purpose, you should
probably stop reading as well._

I decided to read on anyway. It's clear that the author has put a lot of care
into this post and is doing his best to come up with an idea that can bridge
the gap to his detractors. Unfortunately, I fear he is still missing the
point.

Banning websites will _not_ stop piracy. Just as CD protection, hardware
dongles, remote authentication, signed binaries and every other technique
under the sun only serves to frustrate legitimate users, so shall the specter
of the SOPA DNS censor be memorialized upon the ash heap of history.

The author and those who think website bans are a solution need to realize
that bits are the cheapest commodity on the planet. This is a fact of life.
There is no getting around it. I said this in the last thread and I'll say it
again: if the full value of your work can be represented in totality as a
string of ones and zeores, you must accept the reality that computers, the
most ubiquitous machines on the planet, are _all_ designed to push around ones
and zeores. Any solution to copyright woes that involves attempting to stop
the copying of bits _will fail_ , it's like trying to insulate current by
attempting to dry water. Every effort in the field of computers over the last
half century has been aimed at making it _easier_ to share information, there
is no effective censorship solution in a world where information flows freely.

By the time the author's proposed bureaucracy can be established and come into
effect, the tech world will have moved on to the next data sharing revolution
which will simply render the DNS ban irrelevant _for pirates_. Those who shall
suffer a loss of free speech under the inevitable abuse of DNS bans will
simply be fucked (since they follow the law).

Find a way to create value that isn't inherently rooted in the order of your
bits.

~~~
jerf
There is a _world_ of difference between SOPA's "somebody in the stands called
strike and you're out" nature (makes "three strikes" laws seem positively
lenient), and the proposal here of taking a website down after repeated
egregious violations with warning. DNS banning is still relatively light at
that point. I suspect any real law would contain criminal penalties. If
nothing else it resembles contempt of court.

~~~
vectorpush
_There is a world of difference_

That doesn't matter. Even if abuse wasn't an assured inevitability, DNS bans
would not stop piracy, so to what end do we confer such authority?

 _I suspect any real law would contain criminal penalties_

How will they penalize those that exist outside the legal jurisdiction of the
USA? Even then, will criminal penalties stop the crime of piracy? Suing
college kids into crushing debt has yielded only hatred for four letter media
interests as piracy continues to thrive. The co-founder of the pirate bay was
brought to trial and even _convicted_ , but his website still stands as a
testament to the futility of trying to stop people from sending files over the
internet.

~~~
int3rnaut
I think one way to look at the issue of piracy is to think of it like smoking
in that it affects the utility of society--it's a cultural issue that has to
be handled by the law but more importantly the newer generations. You can't
just "stop it", it has to be grandfathered out because just like smoking was
(or even is), the problem is systemic.

People started weighing the utility of smoking--and most rational people came
to the conclusion that collectively it probably wasn't something we should be
doing so they started picking away at the issue one cig at a time through
legislation, programming, education, and taxation. And there was huge
opposition too, especially by the people puffing away. It's taken years, and
generations, but smoking is in a definite decline--hell, teenagers in my
country (Canada) have stopped smoking twofold in the past 10 years as we're
down from 24% to 12%--that's a big leap, but again it's a slow process. It's
gotten to the point where smoking isn't cool.

What I'm trying to get at here is that the goal shouldn't be to stop piracy
right this instant, that's an impossible task because it is so ingrained into
our culture (especially young people like me, and yes, "shifty eyes" I said
like me) it should be to systemically weed out the issue over time--and what
the OP is doing, challenging the status-quo, and offering suggestions on how
to help fix the problem is a step in the right direction (there are flaws, but
he noted that); one cig at a time. You might think that piracy doesn't affect
the greater utility of the world like say smoking does--there aren't health
risks, but there are risks of losing our liberties (look at this madness!),
risks of penalty and persecution, risk of moral degredation--not to mention
the risks we don't even know about. And when I think of what the internet
could potentially be because of SOPA I wonder if it's worth the few songs, or
movies, or whatever each of us takes from the pile. I am sure there was a time
when parents sitting in a crowded restaurant with young kids all around, smoke
just filled in the air, wondered if that tiny bit of enjoyment they got from
that lit object was worth it at that time too. And just like those parents
then, I don't want newer generations to have to deal with long term
consequences of my bits of joy.

Anyways Mr. Flores thanks for posting this, I like it when people try to
honestly work towards a better future. Your idea probably won't get traction,
but think about it as continuing that slow and daunting process of removing
one bit at a time.

-signed a dumb kid who's never smoked

~~~
vectorpush
Cigarette smoking is in decline because science has demonstrated that
cigarettes are decidedly harmful to one's health (though still legal). As far
as smoking, piracy is more akin to using marijuana, an illegal activity that
is on the rise despite the government's multibillion dollar crusade to make
everyone JUST SAY NO. The fact is, similar to piracy, people don't feel bad
about smoking pot because nobody is actually harmed in the process. So what
happens when the government criminalizes harmless behavior that people enjoy?
Many citizens go to jail, and the black market for illegal goods continues to
boom. The status of pot in America (ubiquity) is the result of a failed
attempt to regulate a risky tangible contraband that has to be carefully
cultivated for months in the real world. Now imagine pot with 50x the demand,
infinite supply, negligible distribution overhead and you've got yourself a
completely ridiculous regulatory agenda.

All the threats you describe come from those who would seek to reverse
progress so that they can delay adapting to a world with a computer in every
pocket. The culture that needs to change is the one that purports we outlaw
the transmission of certain binary sequences because someone else sequenced
them "first" (although I'm permitted to transmit an arbitrary sequence of
copyrighted bits as long as my work is considered derivative).

------
nextparadigms
I still think the Internet should be allowed to continue to thrive in a
copyright-free world. If copyright was enforced heavily, we wouldn't have had
sites like Youtube or Reddit or Tumblr.

I think many people have forgotten the purpose of copyright. Ultimately the
people decide what is lawful and what is not in a country, by electing their
representatives (at least in theory). So the point of copyright was that "we
the people" would make it so the creators get some protection for their works,
so we can encourage more creation in the world. But I think we forget that
protecting the works is a means to an end - not the ultimate goal itself.

There are a lot of "creations" out there that are based on other people's
previous work, just like there are a lot of technological inventions that are
based on other people's works, too. This is how the world actually works. We
build upon each other's works. Yes there should be some sort of protection.
No, there shouldn't be supreme protection to protect the works at all cost and
for decades at a time. Otherwise the society itself loses, and it defeats the
purpose of why the copyright (and patent) laws were created in the first
place.

We should stop taking whatever MPAA and RIAA say at face value. They aren't
really looking to save the society's culture and creations. They want maximum
protection for the works they control, because they want to increase their own
revenues as companies. And they want to keep their current business model.

In the end the Internet is a disruption to them, just like it is for many
other businesses. We should let that disruption happen without getting the
Government involved to stop it from happening. Plus, there have been studies
that have shown piracy is a service problem.

Think of the Hulu example. Would the networks really want to switch to the
Hulu model, and lose their traditional business? No of course not. But that
doesn't mean Hulu-like services are not the future. So the networks can either
get fully behind Hulu, or their viewers will eventually move completely to
other services online.

The piracy "problem" for music and movies is a lot like that, too. Either the
labels move fully behind new types of services like Spotify and so on, and
allow them to profitable, too, or they can continue to be greedy, and charge
the maximum revenue they can from them, and also stop any new such initiatives
that they think would lower their revenue even further.

Even if they somehow manage to "stop online piracy sites". That doesn't mean
they will actually stop piracy. First, because like others have said, people
will develop new tools to circumvent their restrictions, and second because
people will just rip DVD's and so on in the real world, and pass them along to
friends. So blocking some sites online still won't stop the fundamental
problem, that piracy happens because people no longer want to pay $1 for every
song they want to listen to.

~~~
earbitscom
People don't want to pay period. That doesn't mean we should accept this fact
and just let the whole world take, take, take with impunity. At some point you
have to make sure people who create things can benefit from it. It doesn't
mean they're entitled to a living, but certainly nobody is entitled to their
creations for free, and trying to educate, prevent and enforce copyright is
important to artists, while protecting the rights of people to take products
that they have not paid for is not important at all.

------
jerf
I think I was the one calling for a concrete proposal. I freely concede this
isn't anywhere near what I was expecting, far more on the DMCA side than the
SOPA side.

I don't think as written it would work well, because of an incentive
misalignment. Nobody wants to run this centralized website, not even the
government. Nobody will want to staff it, or enforce it, or deal with the
huge, huge, huge pile of false positives it's going to generate, both
generated by technology and generated by hostile people gaming the system.
(Yes, I know you address that topic and I acknowledge that, but somebody still
has to _do_ the things you mention.) Half the decisions this site would make
would end up in court anyhow, and then we're right back where we are now, only
with an extraneous step in the middle.

It's also now a centralized control point which will experience regulatory
capture for any number of things you never intended but are far worse than
mere infringement. Actually, as a CEO of a small company in the space, this
system would sign your death warrant far more effectively than _any_ amount of
piracy... regulatory capture does not favor the _small_ companies!

Also, nothing you've discussed covers torrent sites. They don't have the
content to be fingerprinted in the first place.

I also find it unlikely that anything like this idea could possibly pass 1st
Amendment muster. It's still a government web site which every expression of
speech is being routed through and approved yea or nea. I'd rather see the
entire industry go flat out of business than lose free speech. It isn't the
choice we face, but if it were, the choice is clear.

~~~
earbitscom
>* Nobody wants to run this centralized website, not even the government.*

That's not true, actually. Media companies will want to run this organization
to protect their interests, and tech companies will want to ensure it's run
fairly to protect theirs, while free speech groups will want to make sure that
society doesn't suffer as a result of both parties just working to earn a
profit.

You've done a fine job to point out a few potential problems. It would be more
interesting to hear ideas about solutions.

------
spauka
First off, I applaud the author, and all previous comments for what has been a
constructive and meaningful debate.

However, there is an issue which I believe is being overlooked here, and that
is that the internet is an INTERNATIONAL resource. Content on the internet
comes from all corners or the globe, and overseas the issue that most people
have with SOPA is that it allows the US government to play enforcer on a
global platform!

When one considers international law, whether material infringes on copyright
becomes much less clear. The definition of 'fair use' is really only codified
in the American legal system, with infringements determined on a case by case
basis in most EU countries. What about content created internationally? In the
current US system certain protections kick in to any created work, meaning
that a work distributed freely overseas may become infringing if distributed
in the US. Should content be censored in this case? This is without even
considering the myriad of different cultural issues which come into play.
Should Lese-Majesty cases be considered here? Should libel and slander be
considered here?

To allow the body to be internationally representative, then it must be
powerless, as no system could possibly encapsulate the laws of all sovereign
nations. If it is to be effective, it must choose the laws of one nation over
another, in this case, probably the US.

I end with this final plea, to both the implementers of the SOPA legislation,
and to the author: If you must implement legislation like this, keep it TO
YOURSELVES. The US does not represent all countries using the internet, and
certainly does not represent the laws of all countries on the internet.

~~~
semanticist
Exactly: I was disturbed by this idea that a US organisation should keep a
list of all websites 'both foreign and domestic' that they will choose to
enforce American law on.

The reason The Pirate Bay et al have kept going is that they're not subject to
DMCA take-down notices as they are not American.

Look at the number of form-letter DMCA take-down notices TPB have posted up
here: <http://thepiratebay.org/legal> \- it's as if they didn't even consider
the possibility that there's a world where American law does not apply!

------
Natsu
> Primary funding for the website will be provided by website owners and
> copyright holders,

So there's now a tax to run a website. And we centralize control over the
whole internet via DMCA.org? We're climbing a steep hill here and we've barely
started. Also, you realize that sites can be served via compromised
computers... right? Who answers for those? Not a big problem, you say? Well,
aside from the botnets and such already out there that you apparently don't
know about. And we're creating new incentives to create such things, too....

> Each website has a DMCA score based on complaints, response times and repeat
> violations, and websites with "mass infringement" status may be blocked

I assume you have the Pirate Bay in mind, but pretty much any popular user-
generated site drowns in complaints already. And many of them already have
tools that big rightsholders can use. So do we shut down YouTube? Viacom tried
to.

Finally, there's all this stuff about "blocking." You're assuming that you
_can_ make a block that works. Problem is, you _can't_. If there's one source
in all the world, it's enough for everyone. You can't block 99% of the world,
because that last 1% will share copies with the rest. There are no filters on
sneakernet. You vastly underestimate the bandwidth of a truck full of DVDs.
The government couldn't stop the spread of thousands of classified cables with
the military at their disposal. China can't stop dissidents from getting
through the Great Firewall. I've watched, for basically my entire life, as
people came up with the same ideas, then hit the same failures. For every wall
you put up, someone will create a ladder or a tunnel. Even Sisyphus didn't
have it that bad.

You can't really make piracy significantly harder, but you can make buying
things easier. Look at iTunes: I doubt there's a single thing on there that
can't be found somewhere online for free. Yet they're a huge success because
it's fast, easy & convenient. Make it easy to buy, easy to use, fun to
experience. The pirates can't copy _you_ , and successful performers make use
of that, too.

But get your fans caught in the crossfire when you're trying to make things
harder to pirate and they'll abandon you for an artist who treats them well.
They're not pirates: they can, will and have bought from people who treated
them well. But if you screw them when going after pirates, well, there's a
_lot_ of other music out there to buy and they don't need yours. Reminding
potential customers that they don't need to listen to your music is not great
for conversion, incidentally. But don't take my word for it, run an A/B test
and see.

That said, you're absolutely right that things need fixing. But a far more
realistic approach would be to fix copyright itself. William Patry (a famous
lawyer & scholar of all things copyright) has a new book with some interesting
thoughts on that:

[http://books.google.com/books/about/How_to_Fix_Copyright.htm...](http://books.google.com/books/about/How_to_Fix_Copyright.html?id=8-4catWPy84C)

Like he says, "the proxy battle for control of technology and markets through
copyright laws must stop."

------
buff-a
_That all men are by nature equally free and independent, and have certain
inherent rights, of which, when they enter into a state of society, they
cannot, by any compact, deprive or divest their posterity; namely, the
enjoyment of life and liberty, with the means of acquiring and possessing
property, and pursuing and obtaining happiness and safety._

Note the absence of "copy" rights.

Joey,

I find your ideas completely at odds with the First and the Fourth Amendments.

In particular, the Fourth Amendment was adopted because under British rule,
when the authorities were given the power to seize property and documents
without first having to prove probably cause, those authorities abused the
system. As predicted 200 years ago, we give UMG the authority to interfere
with our business without a warrant, and this is exactly what happens:
<https://news.ycombinator.com/item?id=3364808>

It is a _foundation of our nation_ that only the government can order your
property and documents seized and only on sworn testimony or affidavit.

I would prefer to find a way that copyright holders can make money doing what
they do, since I am one. But if I have to lose copy "rights" because they
cannot be protected without shitting on the Declaration of Independence, or
the First and Fourth Amendments, then I'll chose to let it go.

So if you would like to name your organization "The FBI" and require that all
actions first acquire sworn testimony before a judge or an affidavit, and that
false testimony will result in jail time for perjury, then we might have
something to talk about.

~~~
earbitscom
I understand all of that and if we want to change what I've suggested from an
independent board to an accelerated prosecution by the government of companies
with high scores, that's fine. I'm inclined to trust the right board of
directors more than our courts, but that's just me. I have a feeling
Wikileaks's fate is better off being determined by our citizens than by our
government. That's why I proposed keeping the organization independent. But
really, my only goal is to have a transparent method of keeping tabs on the
infractions of companies, so that each violation perpetrated on small rights
holders without the resources to sue can add up and have consequences. The
current problem is that all a company needs to do is make deals with the
companies large enough to sue, and then abuse those too small to do so, and
they can avoid the penalty of the current laws. What I've proposed allows for
the overall behavior of a company to be transparent and acted upon. If it
needs to be acted upon by our government, then that's okay, but I suspect that
puts real free speech havens at risk.

------
jaylevitt
I applaud the effort to open a dialog, but you're missing the technology
point. Any system that contains the _ability_ for a board of directors, no
matter how representative and multipartisan, to block a site's DNS - that
system breaks the Internet.

~~~
Natsu
> that system breaks the Internet.

Only for normal people. Pirates will _still_ manage to pirate. And then
they'll share copies with that mythical 99% for whom pirating is supposed to
be too hard. If all else fails, there's sneakernet, after all.

------
redthrowaway
>If a website’s score exceeds a certain point they run the risk of being
blocked at the DNS level.

I would suggest the author do more research on the issue before proposing DNS
blocking. The myriad problems with it have been expounded upon by others who
are highly qualified to do so, so I won't reiterate them.

I applaud the author for giving it an honest shot and rising to the challenge
of proposing their own solution, but there's nothing here that's much better
than SOPA.

If we, as the tech community, are to propose fixes for piracy, they will be in
the form of new technologies and business models, not regulation. This is, in
fact, what we've been doing. That the copyright industry is generally a
reluctant participant in this process is the only real source of hindrance to
wider acceptance.

------
OoTheNigerian
First of all, i'd like to commend Joey for making a constructive proposition
on what he feels so strongly about.

However, I think there are some fundermental issues he may not put into
consideration.

1\. Sites that enable piracy are really not the cause of piracy. They just
solve a problem millions of people prove they have' _the need to share music_.
Computers/the internet just made what we have been doing much easier. You are
trying to change human nature. When I met cassette tapes, music was shared.
When we start moving bits from one human brain to another, music _will_ still
be shared that way.

I am launching my music startup in a few weeks and I will post about our way
of working aroud this issue in a way copyright holders and creators can
benefit from their works.

I personally think it is futile to stop what is inherent about music and
humans. Sharing.

------
Helianthus
Alright, I'll bite and provide the party line for the idealistic internet at
large:

Moderate: No one cares about fixing the DMCA. Most of us want to kill
copyright.

Radical: Many of us realize that copyright is already dead and we just haven't
had the funeral yet.

Extreme: ideas cannot really properly be owned. We have made do with an
imperfect system in order to try to reward intellectual creation. That system
is failing, hard, and we're going to get rid of it: patents, copyright, the
whole shebang.

Ok, party line recitation ended, carry on.

