Remember how we were just talking about Senator Chris Coons, and the fact that maybe (just maybe) he was realizing that pushing for ridiculously over-aggressive "anti-piracy" laws without understanding the details was a bad idea? Yeah, apparently that lesson didn't sink in very well. On Wednesday, Coons appeared at an event put on by the US Chamber of Commerce (the main lobbyists pushing for PIPA and SOPA), in which he called for new SOPA/PIPA-like laws and cheered on some ridiculously bogus "new research" from the US CoC claiming that "IP Creates Jobs for America."

The "research" uses the same bogus and debunked methodology that the US Chamber's "Global IP Center" has been championing for a while. First, you define what industries are considered "IP-intensive." You make this as broad as possible, so you include (for example) the tech industry (they get patents!), even though they're among the ones fighting to stop SOPA/PIPA-like laws, and also fighting to reform patent laws that have restricted innovation. Great. Then you list out all the jobs in those industries. And then you falsely claim that those are jobs that were "created by IP laws."

Except almost none of that is accurate. But it is a neat (though shameless) political scam to count those who are opposed to these kinds of laws and pretend they're in favor of them. Shame on Coons for falling for such blatant propaganda. Perhaps he should talk to his son, who explained to him why the bills he supported earlier this year would cause significant problems for the internet.

Meanwhile, as a part of this program, it appears that they're releasing totally misleading and laughable state-by-state profiles of how many "jobs" were "created" by IP. Here's California's (warning: pdf). It claims that IP supports 55% of the jobs in California's private sector -- and certainly suggests that those jobs wouldn't exist if we didn't have stronger IP laws (what with the big banner right above it declaring "IP Creates Jobs for California."

Yet the data shows no such thing. At no point do they even try to show a causal relationship between more draconian IP laws and more jobs. Because they know they can't. Instead, they use this bogus lumping together of any job that sorta kinda touches on IP laws and the massively ludicrous suggestion that those jobs only exist because of IP. I can understand why the Chamber of Commerce is promoting such a laughable study -- but it's a shame that a politician who claims to know better would fall for it.

The International Institute of Communications is hosting a particularly one-sided "roundtable seminar" in Hong Kong this week about "content piracy." Just from that phrase, you should know the deck has been stacked against a reasoned analysis of the nature of internet communications. So, it shouldn't be a surprise that the RSVP email is actually from News Corp., or that the "agenda" of the session is entirely one-sided, and suggests a pretty impressive tone-deafness to the worldwide protests against SOPA/PIPA and ACTA. For example, the final question is particularly amusing:

Are there arguments against actions aimed to reduce the impact of these overseas rogue websites?

Apparently, all the concerns about collateral damage, free speech, due process, internet security and the like fell on deaf ears at News Corp. Instead, they seem to be wondering how anyone could possibly have an argument against the next SOPA. An intellectually honest discussion would at least admit that there are arguments being made both for and against these kinds of actions, and actually explore the reality. As we've noted plenty of times in the past, it's no secret that online infringement represents a challenge for established players, but that doesn't mean the immediate reaction should be to go on the attack in a way that creates many more problems, and is unlikely to solve the problem they think they're attacking. So, the argument "against" going after such websites is that it won't work, it's a waste of time and money, it will have tons of collateral damage... and you can better deal with the "problem" by providing more quality legitimate services without restrictions and at better prices. See? Not that hard.

The Washington Post is running a rather bizarre op-ed piece from a guy who runs an "internet marketing"/SEO business in which he argues that we need SOPA and CISPA because someone once set up a parody page mocking his business -- something that this guy, Kenneth Wisnefski claims is "an attack":

But after enduring two online attacks to my companies' reputation and databases, I've come to the conclusion that the protection businesses would get from the legislation is worth sacrificing privacy.

About a year ago, my company WebiMax was attacked by a person who stole our logo, created a mock Web site and misappropriated our tagline — Experience, Integrity, Results. He changed it to: "No experience, lack of integrity, no results." He posted commentary about WebiMax that was false and painted a negative image of us.

We got a preliminary injunction and the hosting company pulled it down. Three months later it popped back up on a hosting company in Ireland that works beyond the boundaries of the law. We believe we would not be going through this if the SOPA measure were in effect.

First of all, a parody page is not "an attack." Second, setting up a parody page is not "stealing" your logo. It's just making a copy of it. Most importantly, it's hard to see how there's a trademark issue here, because no one would see that page and get confused. Many, many such "sucks sites" have been deemed perfectly legal when it comes to trademark infringement. Now, there may possibly have been a defamation issue -- depending on what was stated on the website -- but neither SOPA nor CISPA deal with defamation. So, no, the laws would not have helped at all.

From there, he goes on to talk about how in a different company, someone hacked into the company's database and retrieved credit card info. Because of that, he thinks CISPA makes perfect sense, even if it means that the government might get to read his email:

Opponents of the measures raise the privacy concerns stemming from the government’s proposed authority to monitor online activity and shut down Web sites that violate copyright laws.

I agree with that sentiment. I’d hate to have someone from the government reading my e-mails, too. But the reality is the protection the measures could offer businesses are worth the sacrifice in privacy to prevent another worst-case scenario.

Except... having credit card info your company stored exposed has little to do with CISPA. At the very least, it sounds like someone should have followed much better payment database security techniques... such as encrypting the information. That kind of info is widely available to anyone and has absolutely nothing to do with CISPA. If CISPA was in effect when he had that same database setup, it would have done nothing to have prevented the hacking or to help anyone track down who did it.

I fail to see how "the protection measures" are "worth the sacrifice to privacy" when they wouldn't have actually helped in either of the cases he mentioned. And, of course, anyone who thinks privacy and security are "trade-offs" doesn't seem to know enough about either thing. As the slight paraphrase to the old Ben Franklin quote says, "those who sacrifice liberty for security deserve neither."

See update at the bottom.

A few folks have been sending over a recent article from Hillicon Valley, in which Senator Chris Coons, a co-sponsor of PIPA admits that SOPA "really did pose some risk to the internet."

Coons said it was "truly memorable" when one of his sons shook him awake and asked "why I wanted to break the Internet and why Justin Bieber thought I should go to jail."

The pop star had suggested that supporters of the Protect IP Act should be arrested after a campaign against the bill had claimed it could result in Bieber going to jail for singing songs that belonged to other artists.

"That was my first warning that we were not communicating effectively," Coons said. He added that he believes some elements of SOPA "overreached" and "really did pose some risk to the Internet."

Of course, I think that some folks are a little confused by this. The issue with Bieber wasn't actually about PIPA at all. Instead, Coons had directly sponsored (along with Senator Amy Klobuchar) a different bill, S.978, which would have made a felony out of certain forms of online streaming. This was at the center of the FreeBieber campaign, which was actually separate from PIPA (which was S.968). While the House version of SOPA pulled in similar language, PIPA was always separate from S.978. Coons, though, was a co-sponsor of PIPA as well. It's a little unclear from the context if Coons was really talking about S.968 or S.978 in what was quoted above.

Either way, it seems worth pointing out that, if it takes your kid to clue you in to the fact that you were pushing for legislation that "really did pose some risk to the internet," perhaps you shouldn't be putting forth that legislation in the first place. It certainly makes it clear that he didn't understand what he was supporting.

One hopes that Coons (and, really, all our elected officials) will use this as an opportunity to realize that jumping into regulating the internet without realizing what the hell they're doing is a mistake that should not be repeated. In the meantime, it looks like Coons may be trying to make amends to the tech community, and is now co-sponsoring the new Startup Act, which would provide a significant boost to entrepreneurs and startups by easing immigration laws for both entrepreneurs and highly skilled engineering students, allowing them to stay in the US where they can build companies that create jobs, rather than going back to their home countries to compete against Americans.

Update: Posted a slight clarification, as some insist that he was only speaking about SOPA -- the House bill, rather than PIPA, the Senate bill he co-sponsored. While the two bills were distinct, there were significant similarities -- especially on the key points that would have "posed some risk to the internet." If Senator Coons is making a material distinction between the two bills, that suggests he still doesn't understand the two bills he supported in the Senate and how they, too, had significant problems.

Summary of Parts One and Two: The essential balance of copyright between incentives for creators and the feeding of a rich and unlicensed public domain has been undone by a long series of misguided efforts to save copyright by making its rules both stronger and less enforceable at the same time. The industry’s tactics have backfired, eroding what was left of any moral authority for obeying the law. And that was the chief (and most efficient) mechanism for enforcement all along.

The repeated and retroactive extension of copyright terms, largely at the behest of the Disney Corporation, has had the unintended consequence of creating a nation of felons, both technically and in spirit. According to one provocative study by John Tehranian, we all violate copyright unintentionally many times a day. And to the extent we realize it, we don't care.

To return to the parking analogy, the result of these legal changes has been to paint every curb a red zone—it's now illegal to park anywhere. The result is not perfect enforcement of copyright but its opposite. No one obeys the law or thinks they ought to. Getting caught is more or less a random event, and rational consumers won't change their behavior to avoid it.

The center will not hold. Large media holding companies are becoming desperate, expending their resources not to find new ways of making money but to secure passage of increasingly draconian laws (SOPA) and treaties (ACTA) that give them more, largely unusable new powers. Even if passed, these legal tools will do little to improve legal enforcement. But they are certain to cause dangerous and unintended new harms.

At the same time, the marketing machines of these same companies have convinced us that our right to enjoy content is inherent—the American Way. Once offered, we imagine free content should always be free, even if the rightsholder changes its mind or intended all along to attach conditions to consumption based on time or place or the ability to associate mechanisms, such as advertising, that allowed for indirect revenue generation.

Americans don't understand that subtlety, and rightsholders have given them no reason to try. Public education efforts have been pathetic. Instead of teaching consumers the costs and dangers to the delicately-balanced system from copyright infringement, they emphasize moral and legal prohibitions that are rightly perceived by consumers as petulant, cynical, and amusingly out-of-touch.

These campaigns, for starters, say nothing about the economics of content production and distribution. They are morality tales, narrated by fabulists who pride themselves, in their day jobs, on their mastery of manipulation and misdirection. It's as if Darth Vader sat down with preschoolers to talk about why they shouldn't throw stones at the Death Star because of the potential for property damage.

Consider just a few examples below: YouTube's mandatory copyright "school" for violators and the classic 1992 "Don't Copy that Floppy:"


Clearly, not much has changed over the last twenty years in efforts to change public perceptions and behaviors. The Hollywood that can produce blockbuster movies somehow can't make a PSA that isn't a self-parody.

I think the public can be educated, and should be. Here's where I part company with those who reject copyright altogether. The theory of copyright—limited monopoly in exchange for a rich public domain—is still a good one, and the system created by the English, adapted by early Congresses, had the virtue of being largely self-enforcing and therefore efficient.

It is the 20th and 21st century imbalance in copyright, and not copyright itself, that must be fixed. And it can be fixed. There is a way out of this dangerous and increasingly tense cold war between content industries and their customers. Here's a simple three-step solution:

1. If rightsholders want consumers to obey the law and support their preferred business model, they first need to stop making it impossible for consumers to follow the rules. Copyright needs to be weakened, not strengthened.
2. Content industries need to end the stalling and excuses—perhaps understandable in 1998, when I first wrote about digital distribution in "Unleashing the Killer App," but not now, nearly fifteen years later. They need to embrace digital media and new channels fully, even if doing so means tolerating a considerable amount of unauthorized distribution and reuse as working models for profit-generation rapidly evolve.
3. Public education needs to focus not on self-righteous indignation but on collaborating with consumers on finding ways to compensate creators for the value of their work. If consumers understood the economics of content creation and distribution, and given an easy way to cooperate, they'd do it.

Ironically, there's every reason to believe that embracing a relaxed copyright regime and encouraging creative reuse would actually generate more revenue for creators. That, in any case, has been the lesson of every form of new media to be invented in the last hundred years or more.

Each of them was initially resisted and branded as illegal and immoral. Each of them—from the player piano to the photocopier to the VCR to the Internet—has instead offered salvation and riches to those who figure out the new rules for working with them and not against them. (Hint: network effects rule.) Rightsholders consistently confuse each fading media technology with the true value of the content they control. The medium is not the message.

For now, industry apologists—the MPAA, the RIAA, the U.S. Chamber of Commerce and others—are caught in a dangerous cycle of denial and anger. A growing number of consumers refuse to follow the current rules. So they lobby to make the rules stronger and the penalties more severe, amping up the moral rhetoric along the way.

But this only serves to starve the public domain more, undermining the basic principles of copyright. With the system increasingly out of balance, self-enforcement becomes even less likely. The law is impossible to obey, and rarely enforced. So consumers make up their own rules, for better or worse, with expensive and unnecessary casualties piling up on both sides.

Eventually, consumers and creators find the right balance and the most effective forms of compensation, regardless of the industry's efforts to cut off their nose to spite their face.

Then along comes another disruptive technology and a new round of customer innovation, and the cycle starts all over.

Rights holders remain stubbornly parked in the same old spots, afraid that if they move their vehicles at all they'll be doomed to circling the block forever, unable to stop until they permanently run out of gas.

The rest of us, meanwhile, are happily enjoying our flying cars.

The more you dig into Google's new copyright transparency reports the more eye-catching info you find. Julian Sanchez, for example, has noticed the rather interesting timing of massive explosions in Hollywood studios using Google's DMCA takedown system for search... in correlation with key elements of the fight to get SOPA passed. For example, there's a really big spike in DMCA takedowns for search the week of November 14th.

Hmmm... what happened that week? Oh, that's right: the House Judiciary Committee hearings about SOPA, where part of the "evidence" for why SOPA was needed was the MPAA's anti-piracy boss Michael O'Leary insisting that doing Google searches on certain movies led you to links to pages where you could download unauthorized copies. He was wrong, actually -- as our own tests showed, they took you to legal versions. But isn't it interesting to see that, for example, the very first search takedown that Lionsgate sent to Google happened on November 15th? Similarly, it's interesting to see that right after the SOPA blackouts made it clear that SOPA was going to die... there's another new "burst" of takedown filings. Twentieth Century Fox appears not to have used the system at all until January 30th of this year -- or a week or so after SOPA was officially declared dead. How about Paramount Pictures, one of the more vocal supporters of SOPA? It filed just one search takedown prior to the whole SOPA debate. But about a month after SOPA was declared dead, suddenly Paramount started using the tool. NBC Universal certainly had been a regular user of the system all along -- but right after SOPA died, its usage clearly trended upwards -- whereas prior to that, its usage looked pretty flat.

In other words, you could certainly make a reasonable case that the studios went to Congress to complain about how they couldn't get rid of search results they don't like from Google... when they hadn't even tried to use the tools available which appear to do the job they wanted.

There certainly may be other factors, but it's possible that the studios had been holding back on using the tools as a way of providing extra "evidence" of a problem that had to be addressed by law. Again, as Sanchez points out:

How about before you break the Internet, you try USING THE F***ING TOOLS YOU ALREADY HAVE?

A reasonable question, but don't expect a reasonable answer.

In a short article about a panel of Congressional staffers at the NCTA show, they basically admitted that any new "anti-piracy" legislation may be tough to pass -- with one staffer saying that the SOPA protests "poisoned the well." However, perhaps more interesting were the comments from Stephanie Moore, the "Democrat's chief counsel on the House Judiciary Committee" who apparently still refuses to believe that the public actually spoke out against the bill of their own free will:

“What happened was a misinformation campaign,” said Moore. “People were basically misled into contacting Congressmen with claims that were extraordinary. There was some genuine concern, but as for it being a genuine home grown grassroots up-from-the-streets opposition, I beg to differ on that.”

I always find this line of reasoning quite extraordinary. If you look at the history of copyright law -- especially over the past 40 years or so, it's been one "misinformation campaign" after another by RIAA and MPAA lobbyists. As we've discussed, Congress has bent over backwards to pass 15 anti-piracy laws in the last 30 years -- each one pushed by industry lobbying about how they would collapse and die without the laws being passed, and how no one will create content without such laws. They've been wrong every single time. So even if it was a misinformation campaign on the other side, at best all it would do is even out the playing field. Besides, looking at the arguments in favor of SOPA and PIPA, they were so full of blatant misinformation that I don't think any amount of misinformation against the bills would have even out the score.

But, to be clear, since I was pretty closely involved in the effort to stop these dangerous bills, I can say first hand that the claim that this was a "misinformation campaign" and that it wasn't about an "up-from-the-streets opposition" are hogwash by a person speaking from ignorance, anger or jealousy over having their own pet bill blocked. The folks working against the bill worked pretty damn hard to paint a clear and accurate picture of the bill. While there were various people who helped shepherd the process along, the protests didn't take on any life until various communities of people took them over and ran with them -- starting with the users on Tumblr and Reddit (followed closely by those on Wikipedia).

Of course, when you have any large group of internet users, not all of them are going to understand the nuances or the details. So, certainly some misinformation got into the discussion. To be fair, though, the largest bit of "misinformation" I saw on the anti-SOPA side was from people who didn't realize that (under serious public pressure), Lamar Smith issued a manager's amendment to take out the worst of the worst of SOPA (still leaving in plenty of bad). Some people mistakenly referred to the impact of the original bill in protesting later versions. This was, indeed, a mistake, but hardly a result of "misinformation." After all, those issues were in the original bill and were clearly part of what the House Judiciary Committee's staff was going for when it scribbled down the bill as the MPAA dictated it crafted the bill.

What I do know is that when misleading suggestions were made on the anti-SOPA email list, knowledgeable people quickly pushed back against those claims, noting that they were not true and should not be used. I did not see that on the other side. When the bogus claims of the entertainment industry were widely debunked, the supporters of SOPA kept on quoting them (and still do, to this day).

So, I'm sorry, but the idea that the defeat of SOPA was a misinformation campaign and not a grassroots effort is pure bunk. And if Moore wants to avoid a repeat, rather than lashing out mistakenly, and misunderstanding what happened, she should perhaps spend some time actually learning about why people were so upset by SOPA. But, of course, we know that won't happen.

As many of you remember from the SOPA debates in Congress, one of the loudest voices speaking out against the bill was Rep. Jason Chaffetz. His repeated admonition in the House Judiciary Committee concerning how ridiculous it was to proceed without hearing from actual technical experts -- i.e., "the nerds" -- got plenty of well-deserved attention (including from Jon Stewart, who wryly noted that the nerds in this case meant "experts"). Rep. Chaffetz will be coming to Silicon Valley on Thursday, May 24th, for a roundtable lunch discussion, put on by the Congressional Internet Caucus, as a part of their excellent 2012 State of the Net West Townhall Series. These free events have been a great way to interact with policy makers, so if you're in Silicon Valley, I highly recommend signing up and stopping by. I'll be there, and as with all of the Congressional Internet Caucus events, I expect plenty of other interesting attendees, and expect a useful and lively discussion with Rep. Chaffetz about how we prevent another SOPA situation, as well as various other issues impacting innovation and technology.

For the 9th year in a row, the Business Software Alliance (BSA), an organization that mainly represents Microsoft's interest, has put out its ridiculous "Global Software Piracy Study", which argues that tons and tons of software is being pirated, and if only people paid for it, there would be $63.4 billion more going to software companies. We've been criticizing the ridiculously laughable methodology of the report since it began, and even have seen the company that does the research, IDC, admit that the BSA exaggerates what the report actually says. We've done multiple detailed analyses of how the BSA's stats are misleading (or just flat out bogus). And yet, because there are magical numbers involved, the press just loves to parrot the claims without any skepticism.

This year's report is no different. It's more of the same ridiculousness, with a clueless press reporting (totally inaccurately) that the study says that software piracy "costs" the economy $63.4 billion. That's simply not true. What the report did find was not actually surprising or even very interesting. It's that people in developing countries tend to infringe more often. You probably knew that already, but if you wanted evidence for that, you shouldn't look to the BSA and its bogus stats, but a thorough, comprehensive and independent review of the market, such as the one done by Joe Karaganis and SSRC last year. That report found the reason that there was increased piracy in developing markets was because clueless companies don't realize that people aren't going to pay a month's salary for a single digital good.

Of course, rather than recognize it's their own business model failings at issue, the BSA is once again using this report to call for "tougher penalties" for infringement. This despite the fact that no study has ever shown that such penalties actually drive more people to buy.

Thankfully, at least some people are calling the BSA out on its bogus report, such as by noting that it's political propaganda designed to get legislation like SOPA and PIPA passed. The reality, of course, is that it shows how out of touch the BSA is with the innovation economy today, instead working to lock up and protect the interests of its major funders: Microsoft, Symantec and Intuit. Those companies are threatened by upstarts with better business models, and the best they can do is to support legislation that will lock down the internet, causing more harm than good for true innovation.

The "Bogus Stats Again" report from the BSA isn't about dealing with piracy. It's a way of white washing an agenda of protectionism for some large software companies who don't want to compete or to adapt.

Back in November, we wrote about one of a series of cases we had seen where trademark holders were going to court with a list of domain names that they insisted were selling counterfeit goods and getting the courts to issue injunctions that appeared to be quite similar to what SOPA would have allowed had it passed. That is, basically upon request, a trademark holder was able to get domain registrars to kill domain names, while forcing search engines and social networks to put in place blockades barring such sites from being listed. It appears that more trademark holders are taking notice. Jeff Roberts has the story of (regular IP extremist) Louis Vuitton trying the same thing.

Basically, it lists out a bunch of websites that may or may not be involved in the sale of infringing works. Most, if not all of them, are foreign run. However, it is seeking a full injunction against those sites, not just to get them to stop selling any counterfeit goods, but to get the domains themselves turned off, and to block search engines from being able to find them:

Entry of an order requiring the Subject Domain Names, and any other domain names being used by Defendants to engage in the business of marketing, offering to sell and/or selling goods bearing counterfeits and infringements of the Louis Vuitton Marks to be disabled and/or immediately transferred by Defendants, their Registrars and/or the Registries to Louis Vuitton’s control so they may no longer be used for illegal purposes.

Entry of an Order that, upon Louis Vuitton’s request, the top level domain (TLD) Registries for the Subject Domain Names and their administrators place the Subject Domain Names on Registry Hold status, thus removing them from the TLD zone files maintained by the Registries which link the Subject Domain Names to the IP addresses where the associated websites are hosted.

Entry of an Order that, upon Louis Vuitton’s request, those in privity with Defendants and those with notice of the injunction, including any Internet search engines, Web hosts, domain-name registrars and domain-name registries or their administrators that are provided with notice of the injunction, cease facilitating access to any or all domain names and websites through which Defendants engage in the sale of counterfeit and infringing goods using the Louis Vuitton Marks.

Entry of an order that, upon Louis Vuitton’s request, the Internet Corporation for Assigned Names and Numbers (“ICANN”) shall take all actions necessary to ensure that the Registrars and the top level domain Registries or their administrators responsible for the Subject Domain Names transfer, change the Registrar of Record, and/or disable the Subject Domain Names as directed by the Court.

As we noted back in the fall, there are all sorts of problems with these kinds of rulings (assuming that the South Florida court in this case follows the lead of previous courts). First of all, it's not clear under what authority the courts can issue such broad injunctions. Second, there are serious jurisdictional questions. But the biggest issue of all is that the court seems to be requiring non-parties to the litigation to take pretty drastic action: requiring search engines and domain registrars to effectively kill sites with little in the way of review or recourse. Now, it's likely that most -- or perhaps all -- of the sites in question are selling counterfeit goods. But how long do you think it will be until others use these cases as precedent for taking down all sorts of sites -- even those that are perfectly legitimate?