Failure of DMCA and TPP is going to be worse

It should come as no surprise to many of my readers that I’m not really a big fan of DMCA. I believe that this law hinders innovation in the arts and sciences. I you are interested in a very nuanced and well articulated argument against Copyright, I suggest you download Lawrence Lessig‘s book Code 2.0 – it’s a law book, but it’s free and interesting. However, I have written about this topic before if you’re like a bit of a synopsis.

The DMCA is a law that requires companies to help copyright holders manage and protect their copyrighted material. This results in something called a Take Down Notice, where the company that receives the take down notice must remove the offending material. In many cases the copyright holders are requiring companies like Google to create tools to allow them to automatically search for offending material.

Growing number of Take Down requests

Growing number of Take Down requests accessed 1/5/2014

For a growing company like Twitch.TV which streams live video game broadcasts and services several hundred thousand viewers at once, may cripple them in the future. According to a recent George Mason University study, the DMCA take down notice process has been a complete failure. The law was never intended to function in the manner that it has been.

The take down notice was designed as a stop gap measure and compromise between copyright holders and the new technologists on the web. The DMCA was passed in 1998, most of the internet that we know and love didn’t exist then. It was likely that only a few people had even started using Google when the law was passed, YouTube was nothing more than a pipe dream, Napster and sites like it were the major driving force for this law.

Over the past few years we’ve had several attempts to expand on the DMCA and make matters significantly more restrictive on the Internet. For example we had the SOPA/PIPA, CISPA laws that the internet killed with a blackout. The blackout is an example of what Rebecca MacKinnon argued in her book “Consent of the Networked” where law makers need to look at the interconnectedness of the world and how these laws reach beyond our boarders and impact the broader world.

Unfortunately, these types of laws aren’t dead and DMCA isn’t going away despite what GMU recommends. Currently TPP is working it’s way through the “Fast Track Process” (fast track essentially allows the President to enter into trade agreements powers not authorized by the Constitution) and if it is successful there are copyright provisions that are very damaging for both Copyright Law and Patents. The copyright provisions are stronger than DMCA, similar to SOPA, and would force all signers to follow the rule of the trade agreement over their own established laws, including the US. If you are interested in reading TPP here’s the full agreement for download at Wikileaks.

What can we do to prevent TPP from making our copyright lives worse? Well, it appears there’s limited things we can do. Of course you can contact your representatives, however, Darrel Issa was already refused to see the agreement. However, more interest from the general population can only be a good thing. We’re going to have elections this year in the US, so it’s a good idea to get people thinking about this trade agreement now and stop it before it’s ratified.

The Government Strikes Back

The internet had thought it won a great victory with the black out of some seriously major websites, however it was a short lived victory as the Fed and its allies the vicious RIAA and MPAA have regrouped and launched a stunning counter attack destroying a rebel outpost on Hoth… errr Actually, The US government has shut down MegaUpload.com and arrested several employees for copyright infringement. You may remember MegaUpload for recently being involved in a dispute with Universal over a YouTube video. Where Universal issued false DMCA take down notices which required YouTube to take down the video. However, this video wasn’t infringing and MegaUpload sued Universal for the false claims. The interesting thing about this video is that it’s about all the legal ways you can use MegaUpload. The video is essentially an attempt by the company to show that there are legitimate uses for their services which, I’m assuming, was an attempt to get them into the safe harbor provisions of the DMCA.

To me, this action really shows that the US government doesn’t need SOPA to pass for it to censor the internet. It already has the ability to do so. SOPA would just put a rubber stamp approval on the actions that the government is already taking. This should be a wake up call. Yes, we had one with the joke of hearings for SOPA previously, however this is a slap in the face of the internet. It’s basically saying, sure we heard you, but you know what? you don’t matter.

Sure it might not be as easy as it would have been with SOPA passing and it’s not breaking the internet the way that SOPA would, but it’s still happening. As much as I hate Maddox, he’s right in his post about SOPA. We really have been pretty complacent, myself included. Yes, I’ve written a bunch, signed petitions and emailed my senators and congressmen multiple times, but big deal. Right now this is a hot button topic, but this isn’t going to go away. No one spoke up about the NDAA because it didn’t impact your ability to read Reddit or surf wikipedia. That law is as bad or worse than SOPA depending on what you think of freedom and civil liberties.

When I got home last night and saw that MegaUpload had been shut down, I was miserable. It made me feel completely impotent. That I was unable to impact the way the US government acts in any meaningful way. At this point, I’m not really sure what to do about this. If any other government would be doing this the US would be up in arms (perhaps literally) and would put a stop to it. Our government is doing this in our name and it’s horribly depressing that I can’t do anything to stop it.

Maddox is right. SOPA only failed because we were paying attention and we were able to get the tech giants behind us on it. SOPA will rear its ugly head again and we might be sleeping. The empire has struck back and we need to decide what we are going to do about it. Are we going to get some ewoks and take it down or are we going to keep signing petitions?

Anonymous has decided to fight back and has launched a large number of attacks on internet websites. As citizens that are deeply concerned with the MegaUpload action we need to ask ourselves, is this an appropriate response? Is this a way of protesting and assembling in an online space? Should anonymous be locked up for doing this? I think that this is a type of protest. Anonymous is as frustrated as I am and have decided to do something in response. It’s obvious that they felt like this is a direct attack on the internet in response to the SOPA protests and the “abuse of power” the internet displayed in taking down websites to protest SOPA.

It also begs the question, what will these website attacks actually accomplish?

What are some of your thoughts on this?

Update 1: I just saw that some 9,000 Hackers have joined Anonymous

Update 2: Apparently Anonymous is using a link that directs users to a Low Orbit Ion Canon DDoS tool that uses the users computer to attack a website. This is an interesting tactic as it will make it very difficult for agents to determine who was malicious and those that were  ignorant of what they were doing. Thus making the tool a more effective protest tool. It will be interesting to see what the ramifications of this new tactic are. I think it will be used again in the future and will make it as “easy” as signing a petition to join a DDoS without having to do the hard work of setting up the LOIC on your computer. Interesting.

If I made video games, this is how I’d deal with Piracy

Piracy is something of a real issue. It can impact the livelihoods of artists as well as the big companies. However, the methods that companies go to when fighting piracy are extreme and infuriate end users. The people that listen to music or play games for the love of music or video games.

My friends over at KMBOD have written in the past about how horrible some of the Digital Rights Management (DRM) systems are on video games. These systems require continual verification that the game has actually been purchased. In some cases it makes the game unplayable or extremely difficult to play. In some cases the user must be online the entire time regardless of the type of game the user is playing. It makes sense for the game to be online if you’re playing multiplayer games, but if you’re playing a single version of the game why would you need to be online? Why should the game suddenly crash if you get disconnected from the internet? These types of things anger the gaming community and drive them away from specific titles and potentially entire publishing companies. Some publishing companies are Electronic Arts and Valve.

I don’t think that DRM is the right system to use. For one it’s easy to get around if you really want to and many players kind of look at DRM as a challenge something they should get around and publish online as a community service. It’s not just video games that do this, but also DVDs, Blu Ray and CD’s. In fact in the US it’s illegal under the DMCA to circumvent DRM.

So what would I do instead? Since there are a fair number of pretty easy distribution channels for video games now. There’s Steam, EA’s origin and a few other ones that I’m not really aware of. There’s also buying it from Amazon, Best Buy, Game Stop and a bunch of other stores. So access to the game is pretty easy. Price might be an issue, but for good games people are willing to pay a premium, just look at the sales of Skyrim and Modern Warfare 3. Huge blockbuster games. These changes are mostly for First Person Shooters, but similar type changes could apply for other types of video games, such as RPGs or strategy games.

Despite the ease of access people still pirate because they want to try before they drop $60 on a game. So what I’d do is make it as easy as possible to access both legally and illegally. I fully believe in the try before you buy model. However, for copies that weren’t installed from a CD or downloaded from an online distributor like Steam the game quality would be diminished. For instance many gamers complain about the number of frames per second for a game. Video is shot at 60 fps and the human eye can’t see much faster than that, but we can tell the difference if it’s much slower than that amount. In the illegal versions I would make the game run at 30 fps, but it would initially start at the 60 fps and over the course of a minute or two and have a little note flash that if you buy the game you can get the full 60 fps.

Another feature that gamers complain about is the perspective within the game (field of view FOV). They describe it as feeling like your playing with your head in the monitor. basically it’s restriction on peripheral vision. Again I would start the game out with full vision and then slowly move the POV into the “monitor” restricting the view and giving the paying customers an advantage over the pirate customers.

I would also make the user do less damage than their paying counter parts. This would reduce the number of kills and make the player less effective on the playing field and more likely to die and less likely to kill. Finally, the last thing I would do is to have a little pirate flag next to any player that didn’t legally purchase the game so all of the other players would know when some one hadn’t bought the game. In games where kill counts matter this could cause users to be banned from servers and reduce the ease access for playing.

None of these things would ruin the game to the point that some one wouldn’t want to play it. What it would do though is push people towards paying to be able to compete at the same level as everyone else.

SOPA hearing today

For all of those interested in protecting the Internet today is the last day to try to prevent congress from passing SOPA. This law, would censor the internet. There have been a lot of people talking about this law on both sides of the argument. Chris Dodd president of the RIAA is pushing heavily for this law. He argues that if China has the same ability to control content in China, then the US should have the exact same authority. In a previous blog I argue that this is the biggest killer to internet innovation. Effectively this would create a Great FireWall of the US.

Opponents of the law have started a censorship the internet campaign. I tweeted one of these yesterday. Effectively it blocked out parts of your writing in simulation of the final impact of the law. In addition to these campaigns a few other big hitters have come out against the law, including the Writers’ Guild of America. This group understands that copyright laws shouldn’t dictate the future of the internet and it’s openness. In addition yesterday the EFF posted an open letter from internet leaders arguing that SOPA would crush innovation. I strongly suggest reading this letter. It’s written by the people that created things like IPv6. These people know what they are talking about.

We users have had a blessing in disguise with the MegaUpload and Universal Music Company DMCA Take down issue. Effectively, they took down legal songs using a copyright provisions in addition to taking down videos ABOUT the discussion.

So what are some of the key problems with this bill? It requires DNS level blocking. Which could potentially break the internet. It takes down entire domains if there is a single alleged copyrighted material online. It can block payment to sites through requiring Master Card and Visa to shut down payment for the site. All of these have to happen within Five DAYS. Nothing gets done in five days in any business.

There are additional problems with these laws and our foreign policy. Recently Hilary Clinton gave an extensive speech on net freedom and how repressive regimes are censoring the internet and killing free speech. So, our international rhetoric is completely out of line with what we’re doing internally. Furthermore, this is going to create problems with the Organization for Economic Cooperation and Development (OECD) has decided to institute a policy framework which is effectively the opposite that everything SOPA stands for. Finally, this has a negative impact with the #NoDisconnect policy that the EU has recently pushed for.

If you want to keep up to date with the comments being discussed in the hearing today. Follow @EFFLive as they are tweeting comments from congressional leaders about the problems with this law. Additionally, please contact your congressional leaders today (scroll down to the bottom) about this issue.

Watch Live Stream Here: http://www.keepthewebopen.com/sopa

Additional Reading:
Internet Blacklist vs. Constitution – EFF
SOPA and Educators – EFF
Recent SOPA amendments – TechDirt
DC Decided to Regulate Hollywood to prevent innovation – TechDirt

MegaUpload and the DMCA

We’ve recently had a perfect example of the dangers of giving copyright holder more powerful weapons in their war on “piracy.” Megaupload works as a service where a user can upload content and allow other people to download it or share it at a later point in time. A good amount of the material is, in fact, copyrighted. There are versions of Game of Thrones and plenty of other videos. This services has totally legitimate uses though. There are competing services that you can use, something like DropBox or GoogleDocs which works in a slightly different manner. The users is required actively share the files. In Megaupload the uploader doesn’t have to actively share the file it can be accessed by many people.

MegaUpload would be a sure fire target if SOPA or Protect IP gets passed. What would happen is that MegaUpload would effectively be blacklisted from the Internet and cease to exist if they can’t fix the problem within five days. Additionally, any payments they would receive can also be blocked. This of course isn’t anything new, but recently Universal Music decided to use a DMCA take down notice to remove a MegaUpload video from YouTube.

This happens on a regular basis. These companies have programs that look for copyrighted material and then any offending material is issued a take down notice, which YouTube is required by federal law to comply with. There’s just one problem in this case. MegaUpload claims to own all of the copyrights to this song and video. Universal was issuing a false take down notice. As a result MegaUpload is now suing Universal.

What can we take from this? Well, that giving the authority of content control to companies that have an incentive to silence material that is harmful to their business is a bad thing. In this case, we have a company abusing state authorized power to censor a music video about another company. We should expect this type of behavior to continue if these copyright holders are given additional authority to censor the internet.

It appears that not only are record labels abusing their authority, but the DHS had seized a website, Dajaz1.com, for over a year without any sort of recourse. Particularly troubling in this case is that the blog did contain copyrighted material, but it was given to the blogger by the record labels and artists.

As users of the internet we all should be extremely concerned about what is happening on the internet in the name of Copyright. Freedom of culture is something we all enjoy and relish, however actions by Universal and the DHS severely threaten our cultural freedom and ability to have public discourse on the usage of technology. MegaUpload was using famous pop stars to stake a claim that they are a legitimate company. Using a law in an illegal manner was trying to silence that conversation.

The ACTA has been signed

For those of you who aren’t aware the US and many other countries have signed the Anti-Counterfeiting Trade Agreement or ACTA. This law provides a legal framework for nations across the world to enact something similar to the US Digital Millennium Copyright Act (DMCA). This framework gives additional control to law enforcement and copyright holders. Something also abnormal about this trade agreement is that the US claims that it doesn’t need congressional approval. I find this extremely odd, as it’s part of the charter of the legislative branch to approve trade agreements. Additionally, as I’m not a lawyer, I don’t understand what’s inherently different in the ACTA from the South Korean Free Trade Agreement, which has been stalled since Bush II.

At this point the EU hasn’t signed the agreement yet. France and Germany have both enacted some already strict laws in regard to the number of strikes an infringer can have before they lose internet connections.Of course there are some serious issues with the approaches that are used to accuse copyright infringers. most of them deal with how to identify a suspected infringer. At this time France’s first three strike infringer doesn’t know how to do that. Additionally, in Germany, where a legislator wants a 2 strike law, the same legislator has already violated this before the law has gone into affect.

I believe that these cases really indicate that legislator really don’t understand how the internet and copyright works. It’s clear from the DMCA that they don’t and neither do judges. However, I think that Judges are starting to seriously figure out what’s going on with copyright and the controls that are being put into place. Recently in several districts judges have severed joint cases of copyright cases, because most of the IP addresses, which are typically associated to a region or city, were outside the jurisdiction of the court they are being tried in. Additionally, some judges are noting that IP addresses aren’t people and other people could be using the IP address. Even more recently a judge writes that in the DMCA suggest if you own a DVD it’s ok to rip it.Which is something that the DMCA is trying to prevent. DMCA was design to prevent circumventing the copy blocking technologies. It made it illegal.

Overall, the ACTA is a huge blow for advocates of reducing or eliminating copyright. I seriously hope that if this trade agreement does have to go through the US congress that it will be rejected. It’s a law that doesn’t take into account the current technologies and what culture really means.

Fortunately, not all governments support the ACTA. In fact Brazil has created an interesting framework that is the antithesis of ACTA. It is designed to support privacy, encourage usage of Creative Commons copyright(left) protection and have true net neutrality.