Back to SOPA’s verbiage, where it describes those sites which rights-holders could have shut down as sites: “Dedicated to the theft of US property”.

I’ve already written about the problem of what it means to be “dedicated to”, since the subsequent verbiage clearly also targets any sites linking to sites that have this “dedication” to piracy.

Secondly, though, is the problematic word “theft”. This pithy sentence does not – in any way – illustrate the tremendous semantic struggle involved in the tug-of-war between rights-holder claiming that violating copyright equals “theft” and those who assert that you cannot “steal” something which can be replicated ad infinitum.

I’m not surprised to see SOPA reverting back to the same verbiage industry propaganda machines use: “piracy is theft, and theft is against the law” etc, etc. It’s simply saddening that any legislator would show no opposition to such a blanket, moronic assertion.

Let’s take an example. If copyright infringement were the same as theft; if indeed the term was wholly fungible with theft, then the title of “thief” become diluted to the point of irrelevance. Everyone who ever sang “Happy Birthday” at a ballpark or restaurant is a thief. Anyone who ever made a mix tape. Who ever used music or images in a PowerPoint (since the idea that someone would get permission for an internal PowerPoint presentation is absurd).

So if anything, such verbiage waters down what it means to be a thief, since we all – in some way – violate copyright. Of course, saying “theft” is supposed to hold more power and allow far less wiggle room than, say, indicting any sites “who in some way violate copyright”. There’s no teeth there. No drama. No immediacy. It’s too ambiguous.

And yet this is a far more accurate statement than SOPA’s verbiage.

Check back for part three of pulling back the curtain on SOPA’s verbiage, or read the last post, and hopefully even the few who indulge me by reading this will have a greater appreciation of how clearly one-sided this horrid bill is, and what that means for its future.

Even I’m tiring of hearing about the Stop Online Piracy Act (SOPA), though it is supremely important to shoot down. However, I think it’s important for people to take a look at and consider just the first line of the actual verbiage.

It gives rights-holders the ability to “request” the take-down of sites: “Dedicated to the theft of US property”.

There is so much wrong about that single line that it singularly makes it clear to me that no one willing to give this the go-ahead has any real understanding of copyright. So I’ve decided to break this down a bit for my readers in a series of three blogs over the next few days.

First, for a site to be “dedicated to” anything implies that it’s primary and perhaps sole purpose is that object. The Google search engine could be understand as “dedicated” to searching the Web. eBay is “dedicated” to conducting online auctions. Sure, both do much more, but I would agree that those sites are indeed “dedicated” to the aforementioned deeds.

So what? Well, according to SOPA (and Khan’s Academy explains this beautifully), a site needn’t be dedicated to “the theft of US property” to be taken down. Right in the verbiage of the proposed act is the indication that this would extend to any sites that “enables or facilities” such pirate sites. So a link to a site “dedicated” to selling hot copies of Rosetta Stone and other apps is de facto guilty as well, despite the linking site not being “dedicated” to copyright violation. It only takes a moment’s consideration to see how far this would extend beyond sites whats sole purpose is to profit from piracy.

Think this is splitting hairs too much? Alas, that’s what’s necessary when dealing with blanket legislation, such as the Digital Millennium Copyright Act (DMCA). This was so heavy-handed that it effectively destroyed fair use for bypassing Technical Protection Measures (TPMs). A later amendment allowed for bypassing such measures so long as copyright violation was not the software’s primary purpose; (ie – just so the software was not “dedicated” to piracy). Wonder why we can now use apps to backup our DVDs – thank this amendment (and those who fought for it).

Check back soon for some more much-needed semantic hair-splitting, and more evidence of SOPA’s true negative potential.

Despite the long delay since the last post, exposing some of the horrid implications of the House’s Stop Online Piracy Act (SOPA) and the Senate’s Protect IP Act (PIPA) are simply too important to remain mute on. Not that I am pretty much every breathing person concerned for the future of information and absence of censorship online have not gone through the obligatory hoops: writing congressmen and the president, blah, blah, blah.

My hat’s off to those in New York who have gone a great leap beyond and protested in the streets (thousands of them).

That is not to say that the overwhelmingly and near-universally negative response to SOPA/PIPA has made any legislator formerly backing it suddenly realize that they are acting in complete contradiction to their constituency, alas. There are simply too many corporate interests at work here for any avaricious congressman to bow out, or – God forbid – vote in alignment with the people of this country.

The mollified gist is that SOPA/PIPA would allow rights-holders to request a take-down of any Web site infringing on IP protected by US copyright. The default example that all proponents are using – including my own Rep Bob used-to-get-my-vote Goodlatte (R-Roanoke County) offers is that this act would help stop pirate pills from being sold online. Nobody likes pirate pharmaceuticals (though they are very largely opt-in, especially on the Net), so it’s an easy red herring in this case.

Alas, the wording of SOPA/PIPA makes it clear that – on top of stopping all those Russian sites selling fake Viagra and Cialis – there would remain the possibility for rights-holders to take down any site working “to facilitate” such sites. Y’know, like Google. Or Wikipedia. Or any site onto which links to such sites are posted.

Anyone who’s ever operated a blog knows that fake comments abound with hyperlinks to all manner of pills (the majority of which I’m sure are about as pukka as they are licensed). While the mighty and benevolent Askemet excises most of these, the ones that get through could place any such blog on the list of sites “facilitating” the “theft of US property” and could therefore be shut down.

Oh, and – as usual – it’s shoot first and ask questions later, much like how Draconian code boots suspected infringement on sites such as YouTube or auctions on eBay. No verification or investigation required: we’ll just take the rights-holders’ words for law and yank information of the Net. Y’know – that platform that feeds off user-generated content, freedom of speech, and openness.

Have no doubt, this is merely one more step on the road to turning the Net into nothing more than a digital shopping mall.

Remember citizens: don’t contribute, consume.

Continuing to lead the world in moronic IP law suits, it’s little wonder that in-theaters The Hangover 2 was nearly stalled because of a copyright claim. Did someone already make a sequel? Was the film based on a script lifted from an online forum for starving writers? No, this multi-million dollar project almost didn’t hit theaters because of tattoo artist S. Victor Whitmill, who claimed copyright on the infamous face tattoo gracing the beaten mug of former boxing champ Mike Tyson.

Let’s forget for a moment that Whitmill was paid for his work. That Tyson didn’t demand the tat and say: “As payment, you’ll just own the copyright, and maybe you can sue someone eventually,” knowing he’d make the tribal face ink a household image.

The beautiful irony is that Warner Bros is behind The Hangover franchise. So here’s a company known for heavy-handed interpretation and enforcement of copyright law now being stalled by someone making similar claims. That door apparently swings both ways. It seems that even though Whitmill and his lawyers weren’t able to get an injunction against The Hangover‘s theatrical release, they may well be able to stall the DVD release or any subsequent release of the film until the “proper” settlements change hands.

Sure, Warner Bros is large enough to dominate in court, but then they have an image to worry about: one that lauds the strict and draconian enforcement of copyright law. Indeed, this hasn’t stopped companies such as Disney from acting pirate while claiming priest.

The only saving grace with such a joke of a case is that it’s likely to be settled out of court for some ridiculous sum and won’t lay down any legal precedent. The die has still been cast, to some degree, however, if any dollars change hands. We can count on more frivolous suits in likewise ludicrous claims of infringement. After all, the tattoo is really no more original than any of a million other tribals. Taken out of context (that is, not on a famously furious boxer’s mug) it’s unlikely anyone would be able to identify the design amid other tribals. It’s not exactly like wrestler Sting’s obvious hack job of The Crow make-up.

Of course, this will not represent some watershed case either way, as our courts are full of likened IP cases of similar silliness, of which we can only expect more and more.

Rick Falkvinge writes an excellent and poignant column for Torrent Freak on what role corporate copyright should have as stakeholders in copyright culture (spoiler: not much). While wholly worth the read, the gist is that just because big media benefits from the current copyright culture doesn’t mean they have the right to control where it goes.

Falkvinge also writes: “The copyright monopoly legislation is a balance between the public’s interest of having access to culture, and the same public’s interest of having new culture created.”

Consider this taken a step further. Copyright should incentivize creation, granted, but most people believe that the only way to do this is to afford the creator (or – as is much more often the case – the rightsholder) a state-enforced monopoly, ie – a greater chance of making money, or to prevent others from making money. But what we’re seeing now is creative efforts that have nothing to do with money, where there is not other incentive but sharing what’s created, and the intrinsic motives of achieving that creation.

So where does that leave our current copyright culture? What happens when money is no longer the motivating factor, but when content creators are able to produce high quality, popular media with no budget and nothing to drive them but their own self-motivation? Shouldn’t copyright laws be re-evaluated to consider what it is that really motivates creators? Otherwise – and in this case, otherwise means our current reality – we have to admit that copyright is not a tool of incentivizing future creation, but rather one of ensuring profits for a small minority of rightsholders.

Alas, I don’t believe this real purpose differs much from what most citizens would consider copyright’s purpose. In other words, since copyright’s inception it has moved clearly to longer and broader terms and protecting rightsholders, whether they create or not, and most people would accept this as the legitimate and self-evident purpose of copyright law, despite beginnings that are far more well-intended.

Ask people why you can’t copy a Disney movie, and they’re far more prone to answer “because they’ll punish you” rather than “because Disney needs an incentive to create more movies”. Blending this with Falkvinge’s argument, I agree that big media should have little to say about where copyright goes, but when most people already believe that copyright is in place to protect corporate rightsholders, big media already has several seats at the table.

So it seems that lawyers aren’t the only ones using copyright to extort money. Now, scammers have figured out a telling and disturbing fact: that when faced with the law, most people cower and willingly surrender money to avoid what they believe are far worse consequences.

Scammers have been sending out letters to people claiming to represent trade organizations such as the RIAA and the MPAA and demanding a settlement to avoid a lawsuit. Most people remember the multi-million dollar outlier cases of copyright infringement, such as with Tenenbaum and Thomas-Rasset. And most people – whether they’ve pirated content or not – know so little about copyright law as to submit without question whatever sum is demanded. They assume their own guilt.

This reveals two important things. First, it echoes what I have long noted and what has been shown time and again: that we are all copyright criminals when the letter of the law is applied. Hence why so many were willing to fork over hard-earned cash ($283,000 worth) to completely unknown, unseen, unverified entities just to avoid any assumed entanglement with the law.

At this point, the law is simply not working for people. It’s not working for content creators. It’s not even working for rightsholders, really. It’s only working for lawyers and other people willing to leverage the cryptic web that copyright law has become. Here lawyers are clearly conflated with scammers, and while they are certainly not the same, they perform the same action when the “crime” in question is systemic.

That means that when someone can safely assume that a high enough percentage of citizens will do nothing to fight an indictment, but simply assume that they have done something to warrant paying a hefty (albeit affordable) fine, then there’s something wrong with the law. At that point, breaking the law is so systemic that it simply is society and culture. Copyright infringement is so woven into so many citizen’s lives that any attempt to extract it via more laws, more enforcement, more litigation will only frustrate and confuse people while feeding a few law firms and trade organizations.

Oh, and attract con artists. Can’t forget that one.

Techdirt asks the other important question here: what can we expect people informed of this scam to do with real pay-up-or-else letters? God knows I’ve received letters in the mail telling me that I owed $50 to some company or bank I’ve never heard of, and that – after fees and interests – the debt is now thousands of dollars. That this collection company is willing to settle for just a few hundred dollars. This is clearly a scam, but such scams meet loads of success when we are a nation in debt to our gills. It seems logical. It seems believable. I’m sure I did forgot to pay somebody along the way. I’d better pay up or they’ll take my house or car or kids.

This is precisely how over-litigation and preemptive extortion for copyright infringement is now operating. We’ve all copied a CD for a friend. Watched a show on some shady streaming site, uploaded photos without permission, or maybe even downloaded a few tunes or a movie. That it’s assumed that we’ve all committed copyright infringement becomes self-evident when such scams work. And it’s not the dyed-in-the-wool pirate affected here. They know better than to simply kowtow to an empty threat written in ambiguous legalese. No, it’s the average citizen, with little knowledge of piracy or copyright law. The same type of person who would fall for a debt-collection scam instead of someone who’s actually skipped out on debt.

The fact is, when our methods of “law enforcement” bear no logistical difference from a scam, what is the difference?

It’s no surprise that file-hosting site Hotfile dumped the premium accounts of many of its customers because of allegations of illegal file-sharing. It’s not shocking that Hotfile dumped all of these users’ files, offered no notice, and no explanation outside of the promise of an explanation via email.

What stood out to me is that Hotfile seems to have conveniently forgotten the money they owed some of these members from rewards programs, acting as if alleged copyright infringement somehow releases them from their financial obligations. This is akin to tenants assuming they no longer owe money because the landlord was accused of tax evasion. In short: while Hotfile and other file-hosting sites have to kowtow to rightsholders to some extent, there remains an ethical, upright way to address file-sharing. Dumping customer data, and skirting debts under the guise of abiding by copyright is not the way.

The jury remains out on whether any of the accused will still receive their rewards program funds (some earned more than $1,000 still uncollected), but I would hazard to guess the Hotfile will claim that a violation of their license agreement equates to forfeiture of rewards money.

This highlights a fundamental problem in an age where everyone is a copyright criminal. People end up losing rights that have nothing to do with copyright, such as being paid money they’ve earned, when the inevitable and sporadic letter of the law is applied. Imagine an establishment hiring a band under the mutual assumption that the band cleared all performance rights (usually the responsibility of the venue, but…). Then an ASCAP snitch comes looking for the venue’s license, ordering them to cease and desist performances unless they buy the proper licenses. The establishment owner could easily fire the band and refuse payment for breech of contract, despite taking no action to ensure they had settled the matter beforehand. Why? Because copyright law is too heavy-handed to prevent all violation. When breaking the law becomes a consequence of any creative act, any act of sharing, or even forwarding an email, no one remains free from copyright criminal status.

Alas, Hotfile acted as so many other companies, only caring about copyright the moment they receive threats. That they used this to avoid paying their debts (along with showing complete disregard for their customers’ data or right to know what happened), foreshadows a shady, bleak reaction to copyright enforcement. One that other companies conspicuously abiding by the law may use in a similar fashion.

Again, the only ones who suffer are consumers. Any file-hosting site knows full well what happens on their servers. But consumers accused of infringement still deserve the money they earned, and some forewarning that their host plans on dumping their data, suspending their accounts, and generally screwing them over for charges that never even made it to court.

It should come as no surprise that former Senator Chris Dodd has decided to renege on his decision to avoid congressional lobbying. While making some rational decisions on net neutrality during his congressional stint, we can expect a complete 180 when he’s heading the Motion Picture Association of America (MPAA) at a cool $1.2 million annual salary.

But this is nothing new. For years heads of the FDA made spotty decisions, only to then take high-dollar posts at the food firms that benefited from those decisions. But this does surface a rather sad trend in IP law. That it cannot be coincidence that so many lawyers, politicians, and lobbyists harbor a supposedly organic but near fanatical loyalty to thick copyright. After all, the money currently resides with those in favor of heavy-handed, neigh-indefinite, broad copyrights, so of course those making a living through maneuvering the law would lean toward the corporate rights-holders – they have all the cash.

This only slightly invalidates thick copyright arguments, but at the least it should make people take pause before buying into legal rhetoric in favor of thick copyright. I’m not talking about industry propaganda. I mean purportedly objective views on IP law. When big media likes copyright, and waves the most bills in front of otherwise non-bias faces, it becomes hard not to view anti-piracy rhetoric as industry brown-nosing. Funded sophistry.

Sure, Dodd didn’t seem to be a film industry brown-noser, but now his opinions will magically align with the MPAA’s historically uber-conservative views against fair use and radical evils like the VCR or the cable companies.

But when any authority on IP favors the industry stance while the industry has the money to hire the most lawyers, buy-off the most politicians, and produce and spread the most effective propaganda, where is the surprise? This is like the military contractor who favors a large defense budget, or the American auto worker who favors higher import taxes on foreign cars. What proves far more surprising, and thus, convincing, is when people act counter to their economic incentives.

An IP lawyer working independent of the industry can certainly hold a thick copyright stance without bearing a black mark simply because he favors tighter controls. It would just hold more weight, regardless of argument, if he scrutinized thick copyright despite their fat wallets. Alas, it looks like Dodd was unable to resist, and now his ostensibly respected, informed, and professional opinion will just happen to mimic his new employer’s stance entirely. Funny thing that.

Check out the Tech Dirt story on Dodd’s pending appointment here.

At a writer’s conference in Phoenix, a man asked the room what would happen if a writer posted his entire book online to promote the paper copy. Everyone said: “You wouldn’t sell any copies, of course”. The man replied: “No, I actually sold more than my last book.”

It’s this insight that the author has in common with famed writer/storyteller Neil Gaiman (Sandman, Coraline). Gaiman – on his site for young readers, Mr. Bobo’s Remarkable Mouse Circus – has posted videos of himself reading his recent novel The Graveyard Book in its entirety. Gaiman has performed his books before, such as the audio version of Stardust, and is a fantastic reader.

But what makes him rare among writers, however, is the insight that heavy-handed enforcement of copyright law is not the way to glean either riches or respect nowadays. I already own a copy of The Graveyard Book, but if I didn’t I’d be far more inclined to purchase it after listening to a chapter or two on his site than otherwise.

Sure, it’s not really those of Gaiman’s ilk that are making a row about people “stealing from them” in the form of ebooks or audio books from p2p sites. It’s mostly the old-fashioned writers such as Mark Helprin, author of the notoriously Luddite and solipsistic work Digital Barbarism. But railing against modern readers – no matter what you perceive they are doing to your work – is no way to cull favor or gain a readership.

The simultaneous release of an ebook is old hat to Cory Doctorow or writers such as James Boyle of Duke’s Center for the Study of the Public Domain, but it’s great to see a writer not intricately involved in the copyfight still embracing new, forward-thinking models of promotion instead of clinging to ancient keys of thick copyright.

(This is re-posted from my movie review blog theautomaton.com, but I thought it germane enough to post here as well).

It is rare that matters involving copyright or other intellectual property issues make it into the mainstream unless they are industry-sponsored propaganda, so I felt elated to find that one-hour documentary Copyright Criminals aired on PBS. Often, such works are confined to little-visited corners of the Net, because of the subject matter. The film focus on remixing copyrighted works by…well, remixing copyrighted works. It’s clearly a case of fair use when used in documentary film, but fair use and a couple of bucks will get you a cup of coffee…sometimes.

The makers of Criminals must have been uber-careful about how to properly “sample” the copyrighted material that inexorably appears in the film, evidenced by an article on legally sampling for documentary purposes, published in The Atlantic. Alas, I don’t know whether it was that the film is entirely legal or that it appeared on PBS, but it felt like a watered down version of far superior docs on the subject.

Criminals tends to go too much for what’s called “talking heads” which is just a doc filled with mostly interviews, often to a fault. While having authorities on the subject matter talk about the issue is valuable, it should not overshadow visual evidence. It’s the old creative maxim “show, don’t tell”. Talking heads do little more than tell. And while I really liked many of the interviewees, there was also little to set them up as authorities. While a far cry from looking to celebrities to spoon feed the masses what they should think about healthcare or nuclear power, no amount of talking heads can go the full distance of painting a picture, especially for the uninitiated, as most people are when dealing with copyright.

There is also the small matter of Criminals‘ price tag. At $25  for the DVD, it’s not unfair by any means, but somewhat cost-prohibitive considering the length. They do have a download option for $12, which is nice, though I would like to have seen a “pay what you want” model for the download. Otherwise, you may get those who are interested in the material trying to find it online through *ahem* less-then-retail routes.

Honestly, RIP: A Remix Manifesto remains a superior doc regarding copyright. It sports a pay-what-you-want model, and after I paid my very reasonable five bucks for it, I was able to download it in multiple qualities, as well as slews of extra footage, such as extended interviews. RIP relies much less on talking heads, and has some excellent graphics and animation to convey the point that music is no longer (and maybe never has been) an art meant only for consumption.

Another excellent doc that – in my mind – trumps Criminals is Good Copy, Bad Copy, which is free to watch streaming, and is donation only for download. This one is rife with visual evidence of how music piracy begets not only rampant creativity, but even economic livelihood for those in the Techno Brega movement in Brazil, for example.

Copyright Criminals is worth watching if it re-airs on PBS or possibly the $12 for download, if you find RIP and Good Copy, Bad Copy to your liking. Alas, a shortage of good source footage, or even decent b-roll or animation make it fall short of its much richer predecessors.