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Spotting Counterfeit Chips Is Hard; Spotting Digital Piracy Is Even Harder

from the harder-than-it-looks dept

One of the favorite techniques of those pushing for ever-more severe penalties for copyright infringement is to blur the distinction between analog counterfeits and digital copies. The argument then becomes: "counterfeit drugs can kill people, therefore we must come down hard on online filesharing." This trick can be seen most clearly in ACTA, which stands for "Anti-Counterfeiting Trade Agreement", but where the most problematic sections concern digital piracy, not counterfeits.

That false equivalence between counterfeits and digital copies is also employed to give the impression that since cheap knock-offs are pretty obvious, it's easy to tell the difference between a legal digital file, and one that is unauthorised. However, unauthorised digital files are generally exact copies of authorised ones, making it impossible to tell them apart. What counts is whether the distribution is authorized, and there are all kinds of legal considerations like fair use or Creative Commons licensing that can make it very hard to tell without detailed legal scrutiny in a court.

Even the assumption that physical copies are relatively easy to spot is dubious, as this fascinating essay from Andrew 'bunnie' Huang about counterfeit chips in military hardware explains. Here's the background:

Amendment 1092 to the Defense Authorization Act of 2012 is a well-intentioned but misguided provision outlining measures designed to reduce the prevalance of counterfeit chips in the US military supply chain.

< ...>

Under the proposed anti-counterfeit amendment, first-time offenders can receive a $5 million fine and 20 years prison for individuals, or $15 million for corporations; a penalty comparable to that of trafficking cocaine.
Huang then runs through the myriad ways in which counterfeits can be produced – and why spotting them is hard.

Alongside "trivial external mimicry" – authentic-looking but empty packages – he mentions the following: refurbished parts (authentic parts recovered from e-waste); rebinned parts (authentic but with markings changed to a higher specification); ghost-shift parts (produced in the official factory by employees, but unofficially); factory scrap (rejects and pilot runs recovered from the scrap heap); and second-sourcing gone bad (pin-compatible replacements produced by competitors remarked as superior brands.)

As Huang points out:

It’s one thing to inspect fruits and vegetables as they enter the country for pests and other problems; but it is misguided to require Customs officers to become experts in detecting fakes, and/or to burden vendors with the onus of determining whether parts are authentic, particularly with such high penalties involved and the relative ease that forgers can create high-quality counterfeit parts.
Indeed; and much the same could be said about asking local enforcement authorities or ISPs to detect whether digital copies are legal or not. It's yet another reason why ACTA is likely to have a chilling effect on the legitimate use of copyright materials online, and to throttle the next generation of digital innovation as a result.

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Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    LyleD, Dec 9th, 2011 @ 12:40am

    Indeed!

    Counterfeiting is NOT equal to Filesharing...

    Kudos to you Glen.. I've been wondering when I'd finally see that expressed somewhere..

    Imo the fact that governments and corporations keep bundling them together is proof it's not actually about either, but wanting control of the internet...

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    ScytheNoire, Dec 9th, 2011 @ 12:41am

    Stop talking about piracy

    This isn't about piracy. This has never been about piracy.

    It's about control, censorship, and monopolies. That is it. So let's stop with this piracy nonsense and focus on the truth of what is really at hand.

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    BearGriz72 (profile), Dec 9th, 2011 @ 1:20am

    Re: Indeed!

    "Counterfeiting is NOT equal to Filesharing..."

    Kudos to you Glen.. I've been wondering when I'd finally see that expressed somewhere..
    It has actually been expressed may times here at Techdirt, I am not sure if those exact words have been used before, but the overall concept
    [(File)sharing of Unauthorized content ≠ Counterfeiting ≠ Infringement ≠ Theft] is a common one.

    [FUC-IT] :)

     

    reply to this | link to this | view in thread ]

  4.  
    icon
    BearGriz72 (profile), Dec 9th, 2011 @ 1:23am

    Re: Re: Indeed!

    /Facepalm
    ...expressed many times...

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    The eejit (profile), Dec 9th, 2011 @ 1:30am

    Re: Stop talking about piracy

    It's not even that - it's about criminalising the majority so that if you criticise the government, guess where you'll spend a long time?

     

    reply to this | link to this | view in thread ]

  6.  
    identicon
    Anonymous Coward, Dec 9th, 2011 @ 3:03am

    SOPA pundit: We will go only against rogue sites!"

    Public: How will you detect rogue sites?

    SOPA pundit: Well hmmm...We are going only after rogue sites that is all.

    Public: So you don't know how to detect rogue sites?

    SOPA pundit: You are pirate that is why you are questioning the glorious law.

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Coward, Dec 9th, 2011 @ 4:14am

    http://www.blendswap.com/3D-models/scenes/lego-space-marines-2-0/

    Send in the Lego Space Marines!

    ps: Since Lego patents expired now everyone can make their own legos and make money out of it, is that not beautiful?

    Why do we need copyrights again?
    So that only one guy can claim ownership of the entire market?

     

    reply to this | link to this | view in thread ]

  8.  
    icon
    Mike42 (profile), Dec 9th, 2011 @ 4:55am

    Counterfeits in military electronics

    Has anyone wondered how fake chips get into military equipment? Well, where does the military get it's equipment?
    Answer: Subcontractors.
    Who repairs/upgrades military equipment?
    Answer: Subcontractors.
    How old is the equipment being upgraded/repaired?
    Answer: 10 to 20 years.
    How do you get ahold of 10 to 20 year old chips?
    Answer: ...ebay?...
    The problem here is NOT counterfeiting. It is simple economics. The supplies are out, so the subcontractors use whatever they can get. This is a total red herring.

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    abc gum, Dec 9th, 2011 @ 5:11am

    Re: Counterfeits in military electronics

    ... and who gets the contract?
    - lowest bidder

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, Dec 9th, 2011 @ 6:10am

    "However, unauthorised digital files are generally exact copies of authorised ones, making it impossible to tell them apart."

    It's incredibly easy to spot legal digital files - you obtain them from the source, not some third party.

    The problem solves itself when you stop dealing with shady middlemen.

     

    reply to this | link to this | view in thread ]

  11.  
    icon
    The eejit (profile), Dec 9th, 2011 @ 6:13am

    Re:

    Lego is trademarked, but the fact that what's essentially a PD technology is making tons of money for franchises is hysterical comedy.

     

    reply to this | link to this | view in thread ]

  12.  
    icon
    The eejit (profile), Dec 9th, 2011 @ 6:15am

    Re: Re: Counterfeits in military electronics

    Correction: it's the highest donator to the Government5 coffers, in return for ridiculously low bids for government contracts.

     

    reply to this | link to this | view in thread ]

  13.  
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    MAJikMARCer (profile), Dec 9th, 2011 @ 6:22am

    Re:

    The point is if you had Billy Idol's White Wedding, and downloaded it legally. Then mixed it up with a 100 other copies of the same song obtained by other means, you would be hard pressed, just looking at the bits, to know which was the legally obtained copy.

    That's the point of digital copies, they are perfect replicas, or the copy process would be flawed. I know I wouldn't want to copy a Word document only to open it and find half the words changed.

     

    reply to this | link to this | view in thread ]

  14.  
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    Chris Rhodes (profile), Dec 9th, 2011 @ 6:25am

    Re:

    Indeed. I wish Glen had made the exact same point by writing something like "What counts is whether the distribution is authorized" as the very next sentence.

     

    reply to this | link to this | view in thread ]

  15.  
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    Berenerd (profile), Dec 9th, 2011 @ 7:30am

    Re:

    So Itunes is a shady middleman? got it.

     

    reply to this | link to this | view in thread ]

  16.  
    icon
    Berenerd (profile), Dec 9th, 2011 @ 7:32am

    Re:

    That would also mean that, technically, the big media is also a shady middleman because, the artists are the actual source...

    I am all for this vision...Lets cut Big Media out of the picture!

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, Dec 9th, 2011 @ 7:35am

    Glynn,

    Is this point of this post your opposition to ACTA? If so, you should target details in the bill, not highlight the fact that it is hard to differentiate authorized distribution of digital copies from infringing distribution. By saying that the distinction is difficult to make you are providing another reason to for companies to avoid releasing their works in the digital format.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, Dec 9th, 2011 @ 7:52am

    Re:

    Is this secretly a wish for identification DRM?

     

    reply to this | link to this | view in thread ]


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