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.
Huang then runs through the myriad ways in which counterfeits can be produced and why spotting them is hard.
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.
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:
Its 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.