Tuesday, January 10, 2012

SOPA, Bought and Paid For

SOPA, H.R.3261, The Stop Online Piracy Act, is a long and complicated act. While I am not a lawyer, I flatter myself that I am literate. However, I do not pretend to fully appreciate this law.

A cursory reading suggests that it pretends to be aimed at "foreign (DMCA) infringing (internet) sites." It burdens and punishes US enterprises directly with the intent of indirectly punishing the so-called "foreign infringing sites. Since most of the sales of these foreign sites are to parties outside the US, they are not likely to be punished very much.

The television advertising that urges support of this law, suggests that it is about resisting "international piracy." It even suggests that on-line piracy is the moral equivalent of piracy on the high seas. One is led to conclude that this is a national, or at least cyber, security issue, justifying a dramatic increase in the police powers of the state.

If you are an Internet service provider (ISP), an Internet search engine provider, a payment network service, or an internet advertising service, the law requires you to identify agents to accept legal orders on your behalf and to provide both controls and operators to filter access or revenue to "foreign infringing sites." As users of all of these services, American citizens will be forced to bear the cost. If you use a foreign site, so censured, for any purpose, you may be unable to access it.

Surprise! This law is sponsored, written, and supported by the publishing industry, the RIAA and the MPAA, Sony, and Nintendo, in a last ditch effort, a futile attempt, to shore up their broken business model.

Throughout history, every time there was an advance in technology that reduced the cost of copying, the authorities have used it to reduce their own cost while attempting to maintain their prices and control. When the end-users of their content have used the same technology to force a change in prices, the authorities have cried foul. They have "screamed like stuck pigs," which is, I suggest, an apt metaphor.

Of course, that has happened many times throughout history and multiple times in the last century. It happened with movable type, the linotype, and the photo-offset press. It happened with magnetic tape recording. It happened with the plain-paper dry-process photo copiers and scanners. It happened with the general purpose digital computer. Let's not forget VHS and MP3 players. The publishers have tried to outlaw all of these. Each time, the publishers have exploited the technology but tried to use the law to resist its use by others.

Every time, their strategy has failed. Every time the price of their product has fallen to the point where it approximates the marginal cost of using the technology to exploit them. That is why one no longer pays $20- for an album but $0.99 for the tracks that one wants. The irony is that the value of their rights actually increase because their sales increase and the illegal copying decreases.

Said another way, Piracy is a service and pricing problem. For example, I stopped looking for free down-loads the day I got iTunes. I use bitTorrent and FrostWire because they are fast, as much as 30 times as fast as ftp, not to access illegal content. Quite candidly, I think that it is a tragedy that collaborative networking has been so tainted by its abuse and misuse that we do not use it for legitimate purposes.

To the extent that this law and these controls, are used to enforce court orders and injunctions they would be limited in their potential for abuse. However, the Department of Justice, the Attorney General. is authorized to use them as part of his police powers.

Of course, it is appropriate that this expansion of power is really to the publishers under the DMCA. After all, they wrote the law, and they have paid for it. As citizens, we should be very suspicious when the interest of the money coincides with those of the politicians, the "control freak" politicians, those who believe that legislation can ensure that hammers hit only nails.

Is it reasonable to believe that this increase in power will not be abused by those who have already abused the power that they have? Not only have the publishers used their power to punish arbitrarily and capriciously, but they have used their power to "take down" pages that they have no rights over but whose content offended them. Noting that they have abused their power to take down pages, do we really want to empower them to take down entire domains.

Note that the role of domain registrars is merely to create the bind between a name and an address, a role similar to that of the Post Office or the publisher of the phone directory. Why not pass a law that the Post Office cannot accept mail that contains DMCA contraband.

The proposed law transfers the burden of proof from the state to the citizen. Penalize first, decide, if at all, later. The law provides no defenses from and remedies for such abuses by either the state or the copyright holder. According to the MPAA and the RIAA, there is no such right as "fair use" merely a defense of fair use.

To the extent that the cost and burdens of this law was to be borne by the publishers and their customers, it might be defensible. However, the law places the cost and burdens on the providers of unrelated services and their customers.

Like the USA Patriot Act, this law, the intended purposes of this law are likely to be dwarfed by the unintended consequences. Law is a blunt instrument, one that we should resort to only when all else fails. Moreover, this specific law is particularly blunt. Without due process, it permits entire sites to be taken down because of any infringing use.

The House Committee with jurisdiction has published a list of tens of industry supporters of the Bill. While roughly half are publishers, there are some that would be subjects of the law. There is also a great deal of popular opposition. I went to YouTube to find the ad promoting the bill but found only videos opposing it. However, while the race is not always to the swift and the legislation is not always to the RIAA and the MPAA, that is how the smart money bets.

I have tried to be measured in my response to this proposed law, I have tried not to "view with alarm." That said, I am much less sanguine now then when I began my research. If you think that I have failed, I invite you to visit YouTube where the proposal is covered with vitriol. I particularly commend to you the speech by Cory Doctorow at the Chaos Computer Conference.

As a citizen, I find this law obnoxious and its sponsors greedy and corrupting. As an information security professional, I expect some, not to say much of its burden to fall on us. But, of course, that is why we are called professionals and are paid the big bucks.

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