With the tag line “Every image gets it credit”, the service Pic Scout seems innocuous enough. It scours the Internet searching for evidence of its clients’ photos and then reports back any usage so that the rights-holder can then determine if the use if authorized.

But why does such a service exist? Plainly spoken by Victor Perlman, the general counsel for the American Society of Media Photographers in an interview with the Copyright Clearance Center, he says that most photographers don’t even know when their photographs are being used without authorization. So this should immediately solicit the question: Who is hurt? Obviously the photographer is not hurt directly, since he didn’t even know about the usage. But the implication here is that he’s hurt INDIRECTLY. That someone on the Web using his images without consent is affecting his business.

But this erroneously assumes that there is money to be made in legal use where there is currently illegal use. That someone, say, operating a blog would be willing to pay anything at all for the use of an image of the Eiffel Tower, or a waterfall, or a small boy blowing bubbles. More likely, the site administrator would simply remove the image and find another, and perhaps this is enough for many rights-holders (especially ones that are the content creators) – that someone “respect their rights” and take down their images or – even more reasonably – simply accredit the photo to the photographer, and perhaps a link back to the photog’s Web site.

Of course, this is NOT the result of services such as Pic Scout, else they wouldn’t have very many clients. No, the result is litigation. Always more and more litigation. Instead of using technology to demand payment, removal, or accreditation (none an unreasonable result) rights-holders use such search engines to file lawsuits. These rarely make it to court no doubt, but more often result in the typical pay-up-or-else suit extorting small settlements from unauthorized users who are threatened with the costly avenue of a legal defense.

Did I just make unauthorized users the victims? I suppose I did. Well, how dissimilar is rights-holders hunting down pirate usage to police officers hawking over otherwise lawful drivers in hopes of extorting fees and fines? In both cases, the “criminals” are largely ignorant of the law, since in both traffic and copyright law there are intricacies not meant to be understood, entrapment meant only to raise revenue, and court systems happy to oblige the business. Likewise in both cases, there is not so much right and wrong as there is someone who is ignorant of and/or skirting the law, and someone who is using the law to extort funds. The vast majority of the time, the overwhelming majority of us remains on the “criminal” side. So where should my sympathy lie?

As Perlman notes, there are indeed many problems surrounding orphan works – those copyrighted works for which no rights-holder can be identified. But I whole-heartedly disagree that the fix lay in more control, more bureaucracy, and (especially) more lawyers. This will only exacerbate the problem. And while no one can blame Pic Scout for making money off a legitimate service, the benevolence of that service need bear the same scrutiny as any unauthorized use: that is, we should ask for evidence of harm and proof of loss, not simply assume that any unauthorized use implies lost profits or a detriment to culture.

If you spend money on Touch Nitro Racing – whether $2 or $8 – you should be able to play the game as free from adverts and limitations as it was the day you bought it. Alas, thanks to an “update” send via good ‘ole Apple’s App Store, a legitimately purchased game turned into one rife with limits and nagging ads in an attempt to further monetize it: trying to cull a few bucks from the array of free users but at the expense of pay users. The result: Users are unhappy, the company is hiding behind “we’re the victim” rhetoric, and Apple couldn’t care less.

Rights-holders – those that “own” intellectual property and should not be confused with content creators – have long sought ways to reach out and give any unauthorized use the proverbial smack down. Thus we’re consistently drawing closer to an environment where the most effective means of “bricking” programs or other IP is through the deceptive use of updates. This case is special in that it’s not so much about unauthorized use as it is legitimate free use. The company put the game out for free: so sorry more people didn’t want to pay for it, but that’s certainly not the problem of your paying customers.

Here’s a little historical precedent. Sony PSP owners who ran emulators (not in and of themselves illegal) faced constant “firmware updates” whose sole function seemed only to be disabling emulators. New games began to require the new firmware to run, and later still, games would upgrade the firmware without asking or gaining the consent of the unit owners (a dangerous prospect, as firmware blown installations effectively brick a device; it’s not as easy or simple as updating software).

This consistently blew up in Sony’s face, as it not only ticked off customers, but also did little to nothing to stop emulators from running, as hackers would release a new emulator days after a forced firmware upgrade.

In the same way, Nintendo forced all manner of updates for the Wii, again, with the only apparent effect of disabling the Homebrew Channel (again, not something the necessarily implies copyright violation).

Unfortunately, few rights-holders think critically about what such tactics mean so far as losing the trust and repeat business of customers. If you’re not the only game in town (and neither the PSP nor the Wii are) then forcing your customers into anything is poor practice. And it IS forcing us, because what we don’t see are either specific explanations of what updates are doing (ie – that they are meant to disable everything from homebrew to – in the case of Apple – bricking any device NOT abiding by an artificial monopoly), nor are we given any real options – say, choosing which updates to install.

Let’s take this back to Windows and the dreaded misnomer Windows Genuine Advantage – nothing but a phone-home snitch code meant to annoy copyright violations with insipid messages about how important it is to have a “genuine” copy of Windows. That Microsoft offered the ability to decline installing this insidious code meant two things: those that KNEW they were using a hot copy of Windows also knew to opt-out of WGA. Two, that those who DIDN’T know they had a hot copy also didn’t know to opt-out. Thus, just as with updates laden with Digital Rights Management (DRM) schemes, the real victim here is the uninformed user. And his greatest fulcrums of leverage are fear and ignorance. Shameful pivot points from which to conduct business or extract license fees.

It is the same tale with Touch Nitro Racing. A pirate will remain unaffected. He will simply avoid the update and continue enjoying his free version of the game, or – upon updating and bricking – will uninstall the game and reinstall an erstwhile copy or a copy some brilliant hacker has rendered unburdened by DRM. It will be the actual customers who are most effected (whether paying or not; it was – after all – the producer’s decision to make the game free during several trial periods).

And with Apple completely washing their hands of any concern, giving no refunds and simply falling back on the haunches of their legalese-laden EULA, expect cases like this to continue. The result could well be that no one feels that digital property bears the same stipulations as physical property. But is sending out an update that effectively “steals back” a game I paid money for that dissimilar from sending someone to take back a lawnmower I bought from Sears or finding that my storm windows I bought last year have been rendered single-pane by clandestine thugs who swapped them out while I was gone to work?

I’ve long detailed the differences in physical and digital property, but rights-holders cannot have it both ways. They cannot treat digital property as NOT being a buyer’s physical property, but then still charge physical prices. If you’re going to be able to undermine, manipulate, limit and even disable my digital property AND not be liable for any refunds or damages, then the recourse is simple: the price has to come down. Right now, a $60 game from GameStop is still $60 on Steam, but can’t Steam control that game far more than GameStop? Of course, so why are we paying the same price?

This, like so many things, falls back on consumers, who ultimately need to think twice before sinking any money into IP, especially digital-only IP that still bears the same price as its physical counterpart.

When porn flick producers Third Degree Films attempted to file infringement suits using no-doubt sleazy lawyers who aren’t even allowed to practice law in the states in which they’re filing, it reveals two troubling trends.

First, that people are still really ashamed of their porn proclivities, which speaks volumes about our confused culture’s inability to shake our puritanical roots. Sure, the Internet provides a semi-private platform for porn in lieu of erstwhile public platforms such as the XXX section of your local video store, or a XXX store that you wouldn’t want to be seen entering. And smarmy Third Degree Films count on pay-up-or-else lawsuits to glean five-figure settlements simply because porn pirates are too ashamed to have to fight the infringement in court.

Granted, I’m not a teacher or a preacher, and if I were, I suppose the fear of public exposure of my porn preferences would loom a terrible fate. However, this illustrates our perpetual ignorance of law in general and copyright law in particular. In that, despite what the idiot box tells you, the VAST majority of legal proceedings take place OUTSIDE the courtroom. That includes, say, filing an infringement suit, you filing for dismissal – back and forth and back and forth. This doesn’t even have to be costly, it just requires a modicum of elbow grease (in the form of legal research) on behalf of the accused.

Because the majority of infringement cases bank on collective ignorance of copyright law, and are therefore very, very flimsy. Case in point: the suits filed by Third Degree Films, which won’t get anywhere while they themselves can’t even follow due process.

Consider other cases, such as with vampiric pay-up-or-else cesspool ACS: Law, where they don’t even take the time to file suit against people, but IP addresses. And without the concern even to check to see if they are able to file suits in that state. Not that’s lazy! And thus, that’s flimsy and combatable.

Second, people are convinced that the beginning of law (the lawsuit) equals the end (judgment). There are a ridiculous number of steps in-between, and these steps are as costly for the rights-holders as they are for the defendants. More so. So when a rights-holder demands a five or even four-figure settlement, they’re not doing it to be lenient (since the max fine per infraction is $150,000). They’re doing it to avoid the expense and legality of using the court system. Suits are thrown out all the time because firms fail to follow legal protocol (as complicated as tax code, to be sure). But when citizens are threatened with anything written by *gasp* a LAWYER, they think they’d better pay up or their lives will be ruined.

Indeed, there are some horrid judgments out there: Thomas-Rasset and Tenenbaum to name a couple. But these are not only outliers, they are judgments that were subsequently reduced greatly. You just don’t read that in the news. You hear only about the huge sums they’ll have to pay, and then the journalists are on the next story to sensationalize.

So just as aforementioned slime balls Third Degree Films will have to check their pay-up scheme, people need to know that the only reason they work to begin with is that we have remained willfully ignorant of copyright law and the legal process. In the time it takes to watch a season of “Two and a Half Men”, you could learn droves about defending yourself against rights-holders’ predatory practices. If more people made copyright suits run the full legal gamut, such suits would likely wither and die.

My final rant on the troubling nature of the words used in the Stop Online Piracy Act (SOPA) also involves the line: “Dedicated to the theft of US property” in reference to which sites rights-holders would have the authority to see shut down. The final bit – “US Property” – is probably the most egregious misnomer in the lot. We’re talking about intellectual property (IP) that enjoys the protection of US copyright law. That’s it. It is not “US property”; it is – as rights-holders are so fond of saying – private property.

Claiming that the IP of individual rights-holders is US property is like saying that my car or my house is US property. Both are protected under US law: if someone steals my car or burns down my home, police will work to find out who did it, and I might even find some restitution. But that certainly does not make it US property.

This verbiage is clearly the sort of blanket statement that makes copyright law appear irrefutable, and any violation seem like an attack on America itself. Of course, in reality, when someone overseas buys a bootleg copy of a film instead of a legitimate version (and oftentimes legit versions aren’t even available), this is no sooner theft of US property than it is personal property. The connection is simply too flimsy to be made. It’s not as if crates stamped US pour into China filled with DVDs stolen directly from the state department. We’re talking about bits of data that US citizens created, and not under some state mandate or even FOR the state, but rather as a creative endeavor to make money. And they do.

Think about the absurdity of calling personal intellectual property US property. How about if an American overseas writes something down during a visit to Amsterdam? It’s HIS intellectual property, and was the moment it was fixed to a tangible medium of expression. He enjoys the same rights that George Lucas or Quintin Tarentino enjoy, since the protection isn’t based on “artistic merit”. If he leaves that writing in Amsterdam and returns home, is Amsterdam then in potentially illegal possession of US property? What pains should they have to endure to return that property unharmed and uncorrupted?

I hope these last few posts have made at least a few people think about the silliness of SOPA, it’s potential harm, and the reasons we need to remain diligent in our fight against it.

Check out part two if you haven’t read the entire SOPA series.

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.

Check out Part Three of the series on SOPA verbiage.

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 out 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.