February 2, 2012
Digital Piracy MadnessBy Anthony J.Ciani
How does reality become stranger than fiction? Gooders and government.
One of the greatest failings of the statist mentality is the belief that society can be easily controlled. Combine that flawed belief with the desire to correct every real and perceived wrong in the world, and you get a busybody government attempting to do exactly that. Add in some real criminals, who will adapt to everything that government does, and you get a busybody government with an ever-growing nose stuck into (and messing up) everyone's business. An entire library of rules and regulations strangling society, and all of them necessary and proper, no matter how tyrannical, intrusive, or poorly justified they really are.
Copyright laws make a good case study for this ever growing tyranny. Yes, tyranny. What else would you call it when government ineffectively flexes its muscles, but effectively hinders liberty by doing it?
On January 18, 2012, Wikipedia and several other significant internet search engines and information resources self-censored their content to protest two new pieces of legislation moving through Congress: the Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA). Both of these are just the latest in a long line of legislations, starting with the Digital Millennium Copyright Act (DMCA) aimed a stopping digital piracy, counterfeit drugs, and other thefts of intellectual property.
Most people would think, "But stealing IP should be illegal." They are correct, but neither of these bills makes stealing IP any more illegal than it already is. Instead, they move some forms of IP theft from the realm of civil law (where it has been for centuries) to criminal law and expand the power of the Department of Justice, FDA, and Customs to shut down websites and seize counterfeit goods (rather than prohibit entry of such goods and return to sender, which is current practice).
You might think that these things are OK, but they go even farther. These bills also criminalize telling people where they might find infringing materials and force a daunting and impossible task on search engines and media-sharing sites across the web.
For those less internet-savvy, here is a hometown example: the bulletin board in the entrance of your grocery store. Let us pretend that the law says that for every day an advertisement soliciting illegal activity is on the board, the store gets fined $1,000. The store manager checks the postings on the board every evening. One night, he finds an ad -- "Counterfeit movies -- Call Joe" -- and rips it down. The next day, Joe puts it back up, and back down it goes. The next night, the ad reads, "Selling movie collection, cheap -- Call Joe." It's just some guy selling his video tapes, but the next day the bulletin inspector shows up and delivers a $1,000 fine, because the movies Joe was selling were copies, or so the inspector said. The next night, there is a sign that reads, "Selling Hollywood foot shoes -- Call Boots and Legs by Fred." It is a weird sign, but it seems to be someone selling shoes, so it stays up for a week. At the end of the week, the bulletin inspector comes in and delivers a $7,000 fine for leaving up the ad for counterfeit movies, and another $7,000 fine for the counterfeit shoes.
What is the store manager to do? Simple. Rip down the bulletin board. What makes all of this necessary? As long as copyright and the printing press have existed, there has always been someone out to make money off someone else's work. Every time RIAA or the MPAA sees someone download a movie, TV show, or song, its members see the loss of a potential sale. Vaudeville claimed that the record player would end live performances, the recording industry claimed that audio tape would end album sales, the movie industry claimed that videotape would kill the movie theater, and the video industry claimed that digital downloads would end the DVD. All of that is still around, and stronger than ever. Even stranger, they are all the same industries, and these exact same industries are using that exact same reasoning to promote SOPA and PIPA, and they are no more correct today than they were then.
What about the criminals? The RIAA and MPAA have been doing perfectly fine shutting them down through civil actions, and before blaming their loss of sales on pirates, they should look internally at what it is they are selling and the models under which they are selling it, assuming they are experiencing a sales drop at all. So why should we jump through hoops for a perceived injury, when the current remedies are already overkill? Even crazier, the artistic media industry has been so terrified of copyright infringement that they have missed out on years of profits.
There is no way to stop piracy. No matter what medium, no matter what form of protection, at some point in any media meant for human consumption, it must be converted into a form which a human can consume, and at that point it can be copied. So the industry has turned to using the strong arm of government to prevent copying.
Take Macrovision as an example. It was supposed to be a method to prevent the copying of video tapes, which operated by (warning, this is a violation of the DMCA) inserting a foreign signal in the blank spaces of the video signal, which would confuse the recording electronics of some VCRs. The signal did not affect all VCRs, and it could be easily, and unintentionally, removed with signal conditioning equipment, normally sold to improve the quality of degraded video signals (end DMCA violation). Some movie studios adopted Macrovision, but when the ease of circumventing it was realized, most dropped it. Macrovision sued to force those signal conditioning devices off the market and even tried to get Congress to pass a law banning them, but the Supreme Court came to the rescue. If a device has a valid use outside violating copyright, then its manufacturer has no liability for pirated materials, and Congress cannot ban it. Macrovision was simply a weak and ineffective product.
Macrovision was created after the VCR had become commonplace and the video industry established. Fast-forward to the DVD player. Movie studios had become copy-paranoid. They accepted video tape, because there was no way to prevent copying, but analogue signals degrade with copying, so there was a theoretical limit to the amount of copying that could occur. DVDs are digital and can be copied perfectly and without limit. One of the delays in releasing DVD players was the lack of the highly desired blue laser, but the major hold-up was the lack of a foolproof copy-protection device. The engineers installed region coding, encryption, and even circuits to add Macrovision to the output video signal, and other engineers told the Hollywood execs exactly how easy it would be to circumvent all of it, so the industry turned to Congress.
The DMCA did four key things: i) mandated that VCRs be susceptible to Macrovision, ii) made it illegal to bypass copy protection devices, iii) made it illegal to tell others how to bypass copy protection devices, and iv) released websites from liability if they immediately removed pirated material upon being asked to remove the material by the copyright owner. This last provision has been abused in a wide range of manners, particularly by those who never had any claim to the material in the first place.
The DMCA danced around several issues regarding copying, speech, and copyright. First and foremost being that people are constitutionally allowed to make copies for their own personal use, and as limited parts of other works, also known as "fair use." There is essentially no difference between borrowing a book of poetry from the library and copying your favorite poems into your journal, or borrowing a DVD from the library and copying its contents to your hard drive, or just sticking up an antenna and recording a TV broadcast. There are even machines inside most libraries to facilitate this behavior specifically.
Copyright very specifically deals with the distribution of works and the author's ability to profit from them, not the private use of those works. Anyone can copy this article to his hard drive for later use, but only American Thinker can distribute it. You can have that copy on your hard drive, but as soon as you make a copy for your friend, or worse, put that file online for anyone to download, you are indisputably violating copyright. If you sell copies of it, then you might be criminally violating copyright.
The DMCA tries to define multiple aspects of "fair use," while attempting to avoid violation of the Constitution and previous court decisions. It even sets up a special committee to redefine "fair use" every year, just in case the courts strike some "fair use" rule down. The DMCA remains largely unchallenged, probably because it goes well beyond what is traditionally considered copyright, and so battles must be chosen carefully by the industry. As mentioned above, part of this article technically violates the DMCA, but what court would uphold it? For now, DVDs can still be decrypted, copied, and transcoded into other formats, and signal conditioning equipment can still remove Macrovision distortions. Meanwhile, the take-down provisions of the DMCA have been abused in various ways, and the Macrovision mandate has made one company rich through technological licenses (in every DVD player), even though few studios use its ineffective product.
Blue lasers had always been a part of the DVD standard, but once they became widely available, the movie industry essentially ignored HD-DVD. Instead, Sony created a new standard, Blu-ray, with an all-new copy protection, which the movie producers loved, and which was still easily bypassed.
Fast-forward to the broadband explosion. Media companies have been eying internet streaming and sales of their products since 2003/4. It is an ideal distribution system with low overhead and high and immediate profits, but it took almost five years for the industry to finally embrace digital streaming. The holdup? Even after Sony and Hollywood were dragged kicking and screaming into the profits of the videocassette, the media producers have still been vehemently opposed to the "time shifting" the Supreme Court established. Their ideal market model is one in which you never physically own the copyrighted material and must pay every time you view it (à la DIVX, which never caught on).
The holdup for the streaming revolution was the ability of the end user to hack the digital transport mechanisms, capture the digital content, and store it on his hard drive. The industry held its breath for years as scheme after scheme failed to prevent viewers and listeners from recording the streams. In the end, the industry realized they were asking software developers for the impossible, and so they began online streaming with the systems available. Not only is the piracy starting to vanish due to the availability of legitimate material, but profits are rolling in due to high demand created by the low cost of the legitimate material. Direct sales of videos has never been easier, and what does it matter if the viewer records them when very few viewers are redistributing them?
The only way to completely stop piracy is to produce and distribute nothing. If we take the example of Detroit, which has banned the parking of cars in certain neighborhoods to deter car thieves, then the ultimate anti-piracy act would be the banning of art. It is fine to identify and define penalties for when one person harms another, but to engage in making an ever-escalating set of laws and regulations to prevent that harm from happening is an exercise in futility and tyranny.
The idea that the 112th Congress is a "do nothing" Congress is ludicrous. The wallets and freedoms of the American people are never safe while Congress is in session.
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