

Copyright enforcement and the Internet: we just haven't tried hard enough? - timwiseman
http://arstechnica.com/tech-policy/news/2012/02/copyright-enforcement-and-the-internet-we-just-havent-tried-hard-enough.ars

======
alexqgb
What's really helpful is considering property rights independently of whatever
they're actually protecting.

And protecting is the key word, since the rights themselves are abstractions.
What gives them concrete value is the institutionalized mechanisms of
enforcement, from well-grounded law, to courts, to sherifs with badges and
guns. It's a formidable apparatus. And what constitutes "property" is anything
that society is willing and able to place within the jurisdiction of this
contracting and enforcement system.

Throughout the 20th century, when the only parties in a position to seriously
violate the intellectual property rights of others were major companies, the
law was limited to the rules of engagement for big publishers dealing with
each other, as well as their suppliers. Not having unfettered access to movie
studios, broadcast networks, or commercial printing presses, the general
public had no way to duplicate and distribute media on an appreciable scale.
Though the scope of media has expanded enormously in the past 300 years, this
fundamental assumption about limited access to its mechanisms remained valid.

The suddenly, it didn't - a change that is now irreversible fact. To say that
the law is now unfit for present reality is an understatement. And to
reflexively apply its terrible machinery in a heavily populated arena where is
is absolutely, totally, 100% inappropriate is a recipe for catastrophe.

So we need to stop skirting the issue by talking about "outdated business
models" and telling businesses that "they just need to adapt." Instead, we
need to let them deal with their own problems, or retire gracefully. Our real
problem is clearly and forcefully asserting that once-viable copyright law now
constitutes an intolerable extension of property rights; one that is
fundamentally incompatible with human autonomy in a networked civilization.
While copyright laws remains a reliable tool for governing the conduct of
incorporated entities (and are worth maintaining for this reason alone), they
must be rolled back dramatically now that their fundamental assumptions have
been falsified by the normal progress of humanity.

This is not an unprecedented development. Indeed, for most of human history
the concept of "property" used to be so expansive that it even included other
people. When abolishing slavery, what we were really doing is redefining the
ancient scope of "property". And while we make a polite ritual of men asking
fathers for their daughters hands in marriage, this tradition dates back to a
time when taking a bride was an actual property transaction. When child labor
laws were imposed, much of the resistance came in the form of people saying
that these regulations interfered with the "property rights" they had in their
own children. While that arrangement may have been uncontested at one point,
society developed to a point where this idea was both fought and defeated. If
anything, these episodes demonstrate that the flexibility - not the rigidity -
of property's scope is what gives the institution its lasting value.

Today, we've reached a point where it's neither ethical nor practical to
extend enforceable property rights into the contents of people's hard drives.
Indeed, when you consider the totality of the police surveillance that an even
marginally-effective system would require, the very thought is horrifying.
There is no conceivable benefit offered by the current beneficiaries of
expansive copyright protection that outweighs the extraordinary danger and
inevitable abuse that will attend viable, non-arbitrary enforcement.

This is the point that Kevin Drum gets exactly wrong. Building an all-seeing,
all-controlling IP enforcement apparatus isn't something we even want to
consider, let alone try. History has demonstrated that once a society is
infested with this kind of malware, it's virtually impossible to get rid of
without suffering the collapse of the state itself.

No, what We the People need to focus on what we consider to be an appropriate
limit to intellectual property rights in general, and persuade our legislators
to act accordingly. Private companies should be free to operate within those
bounds, or die trying. But they cannot displace the sovereignty of people
working through elected representatives to define law appropriate to the time
and place we're actually living in. As this fight plays out, the legal
redefinition of "property" should be priority #1.

~~~
DrHankPym
Redefinition of "property" is extremely important. Start with the fact that
pirates don't steal - they infringe copyright.

~~~
bo1024
I can't agree enough. The biggest victory of the intellectual property
movement is the term "intellectual property".

[Edit/rewording] The information covered by copyright and patents is _not_
property. It literally _cannot be owned_. All that copyright law does is grant
temporary control over distribution of information; all patent law does is
grant temporary control over use of information to produce products.

If you're serious about this issue, don't use the terms theft, steal, or so-
called "intellectual property", and don't tolerate it when others do -- call
them out.

Alexqgb's post, while very insightful and interesting, is fundamentally flawed
because it accepts as a premise a lie and a falsehood -- that it is even
possible to "own" information as "property". This literally cannot be done. It
is a broken metaphor designed to distort the issue.

~~~
grellas
_Copyright and patents are not property. They literally cannot be owned._

It may be a broken metaphor but the law says you _can_ own intangible rights
without question - or at least gives you rights that equate to pretty much
everything that an owner of tangible property has (the right to exclusive
control, the right to sell/buy/assign/lease/license/bequeath to heirs, etc.,
and the right to sue to enforce these rights in a court of law - see
<http://news.ycombinator.com/item?id=3463640> for elaboration). This is the
bundle of rights that the law calls "ownership" and, in this sense, you
certainly can "own" copyrights and patents.

You are arguing, in effect, that the law _should_ be otherwise and that is
fine. I also agree that the term "theft" is a loaded term that distorts the
discussion on infringement. But it is not right (in terms of law) to "call
out" those who use the term "property" for using a label that accurately
describes exactly how the law treats the intangible rights (copyright, patent)
with which you take issue. You may disagree with this but this is what the law
currently holds. It is also, in practice, exactly how every startup I have
ever worked with (many thousands) regards the IP rights that it develops
(i.e., something "owned" by the company).

Trade secret rights, by the way, are also treated by the law as property. Such
rights extend only to information that is confidential and _proprietary_ \-
"proprietary" literally comes from a Latin root that means "one's own" and
refers to information (whether formulas, customer lists, confidential pricing
information, or whatever) that is _owned_ by a particular company (as opposed
to being public information). This too is another example of the law treating
information as something capable of being "owned." Indeed, that is the essence
of most intangible rights that the law protects, including contract rights. It
protects them by giving them the attributes of ownership. This may be
question-begging ("they are only property because an illegitimate law calls
them "property") but it is reality and is very deeply ingrained in current
law. It would take nothing less than a revolutionary way of looking at the
concept of property to change it.

~~~
timwiseman
As always you make enlightening points.

Yet, even under the law, there are some significant difference in the purpose
and implementation between traditional property and intellectual property. IP
rights are for instance limited in time. In fact, historically the original
purpose of patents was to encourage inventors to disclose their information so
that eventually it could be used by society at law. Patents are inherently,
and meant to be, self limiting.

Also, traditional property is normal inherently exclusive. If I am using my
hammer, you are not. We may manage to come to a time-sharing arrangement or
something similar, but only one of us is using it at a time. On the other
hand, my building a product based on a patent you hold is prevented only by
the law, rather than by the mere fact of you holding it. To quote Jefferson
"He who receives an idea from me, receives instruction himself without
lessening mine; as he who lights his taper at mine, receives light without
darkening me. "

In a legal sense, IP is most certainly property, but it has significant
differences from more traditional property and is not property in the same
sense that a hammer is.

------
AdrianRossouw
This is the best article I have read on the subject is "What color are your
bits"[1]. My feeling is that people arguing for stricter copyright enforcement
online are trying to unring a bell. They just don't understand that yet.

It's going to take a new generation who have grown up with the internet to
wipe this slate clean.

[1] <http://ansuz.sooke.bc.ca/lawpoli/colour/2004061001.php>

~~~
thyrsus
There's an important comment in that article. Tanner Swett says:

    
    
        [T]here's already a word for the concept of Colour: "provenance"
    

So, to enforce copyright, it would be necessary to produce the "provenance" of
any artifact (e.g. USB key) in our posession at any time. And, of course, that
doesn't mean having the sales receipt from the grocery store where you bought
it, it means being able to produce a record of every data transfer it ever
made, and then records of every data transfer those devices ever made, ad
infinitum, ad absurdum.

~~~
nooneelse
Perhaps a short educational film is needed to communicate this more widely.
I'm thinking something with a sinister-looking Gestapo-knock-off 'media agent'
coming into a home asking to see their blue-rays' and computers' papers, and
those papers' papers.

~~~
Fargren
So, Terry Gilliam's Brazil?

~~~
nooneelse
Well, it is no good mandating citizens only have computers which respect the
grand unified provenance management system and then allowing the gaping
loophole of unauthorized computer repair. So yeah, not too far from that.

------
bdhe
Wow, this is a real eye opener. Only having heard of Napster, I didn't realize
there were other services similar to Google Music back in the late 90s. Here's
solid proof that in claiming to promote innovation they are quite literally
stifling it and delaying it by decades. I'm also continually amazed at how
long copyright terms are in the US and how much lobbying goes into it to
extend terms right when they're about to expire.
(<http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act>)

------
bo1024
If people think there are technological solutions, they should go ahead and
propose them.

But I have difficulty seeing a legitimate proposal that prevents the copying
of certain sequences of bits according to the terms of their copyright
license, while allowing free copying of other sequences of bits. Doesn't sound
ideologically or technically feasible to me, because you're fighting an uphill
battle against the nature of information.

Personal ethics has nothing to do with it.

~~~
tweak2live
There are NO technological solutions. It is mathematically impossible to
restrict communication of certain kinds of information, while still allowing
information exchanges to take place.

This is why there are no legal, political, or economic solutions to the
general problem of copyright, either. The only solutions that are even
theoretically possible rely almost entirely on ideology backed up by a massive
coercive force.

~~~
Natsu
Too true. Everything on a computer can be represented as a number. So if you
try to say that someone owns a number, let's say 5, how do you enforce that
technologically? If they're not allowed to transmit 5, they can transmit 2+3
or 4+1. And it shouldn't take much imagination to see that to ban people from
transmitting one number requires banning them from transmitting _any_ numbers,
because you can use any other number to make 5.

But mere impossibility isn't enough to make people give up. They'll keep
trying and trying and just think that they didn't try hard enough, never
wondering why people _always_ seem to be able to find countermeasures. Maybe
they can just ban the + program, any other use of it be damned? Oh, but we
have - too. Well, there aren't that many functions on a pocket calculator, are
there? Maybe you can ban them all? Maybe we could get that Godel guy to help
us figure this out....

~~~
arto
Hence Cory Doctorow's recent talk, "The Coming War on General Purpose
Computation":

[http://boingboing.net/2011/12/27/the-coming-war-on-
general-p...](http://boingboing.net/2011/12/27/the-coming-war-on-general-
purp.html)

~~~
tweak2live
War on General Purpose Computation == War on Consciousness. Why not just go
straight to the root of the problem and outlaw certain kinds of cognitive
patterns? Since "intellectual property" begins in the mind, so does "copyright
infringement". Thought would be a whole lot easier to police, anyway.

Memory is theft. That's why I choose to stay ignorant - stupidity will never
be outlawed.

------
artsrc
Technology can change things.

If digital printers and scanners get good enough we may need to switch from
current physical currency, back to gold, silver and copper. Trying to
legislate around the technology to protect the current model may simply not
work. I am not trying to get into the controversy about fiat currency, I am
just talking about the stuff you carry about, you can still have lots of fiat
electronic promises.

------
danso
When I saw the title of this piece, I immediately thought it referred to the
companies' lackluster ability to patrol torrent sites.

I haven't torrented in many years (no, really...I didn't see the need for it
after I got a real job and after the advent of usable streaming services) but
isn't it still the case that the majority of users expose their IPs when
downloading/uploading? That is, most people aren't using some kind of Tor
solution?

I may not have a very tech-savvy group of friends...but the few people who
have said they torrent are almost always unaware of how public their
downloading is (and yes, these would be the same people who would be
vulnerable to Firesheeping and other such hacks) and are shocked when I tell
them of the risk they're at.

But in reality, it seems like a very small minority of easily-findable
torrenters face any kind of action. And yes, I'm accounting for the infamous
RIAA/MPAA lawsuits in which hundreds or thousands of people are named. That's
still -- AFAIK -- a very small percentage of domestic torrenters.

Which leads me to believe that the RIAA/MPAA's enforcement capabilities
involve an intern using some craptastic proprietary program to copy-and-paste
IP numbers and hand-enter them into a database, which is then used to hand-
send out cease-and-desist letters, and all of this happens very sporadically
(and with little effort/ability to verify accuracy, apparently).

~~~
nitrogen
Any system that is applied consistently would be much easier for torrent sites
to dodge.

