by Mike Masnick
Thu, Dec 22nd 2011 3:20pm
constitution, doj, domain seizures, due process, eric holder, fifth amendment, first amendment, free speech, ice, john morton, operation in our sites, prior restraint, ron wyden, victoria espinel
by Mike Masnick
Wed, Nov 30th 2011 9:36am
from the this-apparently-is-not-a-joke dept
Of course, the first thing McGruff the Crime Dog (and our illustrious White House officials) might want to do is learn what the actual law says and recognize that infringement and theft are two different things. It seems like in all his "biting" out of crime, McGruff forgot that lying about what the law actually is isn't a particularly good idea.
The campaign is really ridiculous, with tons of absolutely laughable statements, debunked claims and web design from a decade ago. For example, it takes the famously and thoroughly debunked (years ago!) claims that "counterfeiting and piracy costs the U.S. economy more than $250 billion in lost revenue and 750,000 jobs every year." Those numbers came from the upper end of a "stick your finger in the air" estimate from a few decades ago. And they have no bearing on reality. Even the US government in the form of the GAO has debunked these numbers. So why is the White House standing behind them? Espinel isn't stupid. She knows that these numbers are false and have been shown to be false. Why would she support a campaign based on them?
The site just gets more and more full of stupid the deeper you dig. It feels like it was put together by someone with only a passing familiarity with the actual debate on copyright infringement (and one that is about 10 years out of date) and a heavy dose of US Chamber of Commerce propaganda. It's like what you'd get if you simply hired some random clueless ad agency to create the campaign -- which it appears is exactly what was done here. Take a bow, CauseWay Agency of Westport Connecticut. You bring the debate over infringement down to new lows by repeating long debunked information and stats as if it were factual. Next time, maybe find someone who actually understands these issues.
Take this page of "facts" for example (complete with stock photo of a girl using a rather old ipod.
Piracy of intellectual property thatís protected by copyright law is a serious crime. Not only does it rob the makers of recordings, videos, movies, games, and other creative works of the money they are entitled to, but it costs tens of thousands of people their jobs each year. It also deprives governments at all levels of tax revenue. Piracy itself is a crime, and it causes an increase in other types of crime. Gangs and organized crime groups have both been linked to the piracy of creative work.Almost everything in that paragraph is either wrong or highly misleading. Most infringement is a civil offense. Some may be criminal, but most of it is not. Implying otherwise is pretty sleazy. And someone sharing some stuff with a friend is hardly "robbing" anyone. The jobs estimates have already been debunked. The "tax" claims have also been debunked years ago, based on pretending that money not spent on content never gets spent.
Worst of all? That whole thing about "linked to gangs and organized crime"? Totally and completely debunked. SSRC investigated such reports in their report that came out earlier this year and it could find no evidence to support any links to organized crime or gangs, and pointed to additional research that found "no overt references to professional organized crime groups" anywhere in relation to copyright infringement. The one key study that claimed there was such a connection was from a RAND report that involved "Decades-old stories... recycled as proof of contemporary terrorist connections, anecdotes... as evidence of wider systemic linkages, and the threshold for what counts as organized crime is set very low." In other words, there's no there there. At all.
Why would the White House support something so clearly false?
Pirated materials are everywhere. All you have to do is walk down a city street to see all the CDs and DVDs for sale by street vendors.Hello five years ago! As that same SSRC research found, CD and DVD bootlegging by street vendors has been decimated itself by competition online: "they piled out of the business in the past decade as profit margins on pirated CDs and DVDs collapsed. We see no evidence that DVD piracy is still a high margin business... Rather, our work documents that pirate prices have fallen dramatically as burners became cheap in the early 2000s and, more recently, as non-commercial internet-based file sharing began to displace DVD piracy." Someone should tell the White House to update their out of date report.
Making unauthorized copies of these creative works is against the law, and breaking it may subject the person who does it to civil and criminal liabilityóespecially if they distribute the stolen product to others. The penalties for first-time offenders include jail time of up to five years and fines of up to $250,000.Holy exaggeration McGruff! Making unauthorized copies may be against the law. They might also be fair use or allowed for the purposes of backing up legally obtained materials. Merely making a copy is also almost certainly not criminal infringement, not subject to jail time or fines up to $250,000 (yet, though we'll see what happens with various laws...).
Once a tune or movie is posted on the Internet, it lives foreveróand the artist behind the product is forever deprived of income.Really, now?
When you buy a tune on the Internet and download it, make sure you donít send a copy to a friend or someone who might sell it to othersWait, what? The White House and McGruff think that people are selling the MP3s their friends send them?
If you get a tune from someone, donít re-send it to others.What if the artist wants you to send it to others?
Donít instant message a tune.Just yesterday I sent a friend of mine a song via IM that was released under a Creative Commons license. Why shouldn't I do this? Really. Why?
Donít burn CDs or DVDs.Why not? Depending on the context, this can be absolutely legal. These days, CDs and DVDs are kinda outdated, but is the White House and McGruff now arguing that making a mixtape is a crime?
If shopping online, beware of sites that arenít familiar to youóand that are selling expensive products at prices that are way too good.Watch out, GroupOn, McGruff is ready to take a bite out of you.
About the only nod to the idea that infringement can actually be a market opportunity occurs on the trends page that more or less reprises the story we recently had about how Rovio (makers of Angry Birds) discovered that infringement in China wasn't actually a problem. This seems like perfect evidence that (as many people have been pointing out for ages), this is a business model issue, and those who are smart can take advantage of them.
One anomaly to the damage caused by piracy recently took place in China, where the small Danish company that makes the "Angry Birds" game actually found a benefit in the widespread, illegal copying of the game, which has been downloaded 50 million times in that country. The company turned the widespread knowledge of its brand in China that resulted from the piracy into a marketing advantage for its other products in the country. Moreover, since consumers couldnít tell the difference between the fake and genuine products, and sales of the game skyrocketed. In the United States, however, piracy of creative products can damage the brand of the original manufacturer when consumers canít tell the difference between a counterfeited product, which may be shoddy, and the genuine article. Cheapening of the brand can be a serious problem, especially as reputations are hard to recover when lost.First of all, McGruff may have just caused an international incident there. Rovio is a Finnish company, not a Danish one. Seriously. Don't they have anyone looking over this stuff? Second, notice that they ignore the key point of the story: Rovio didn't freak out, but embraced the market, used the infringement as market data on what to do, and then came out with a better offering for the market, not one that users "couldn't tell the difference" on. The McGruff report makes it sound like Chinese people are a bunch of idiots who buy Angry Birds products willy nilly, some legit, some not. And somehow, in the US things are different?
This honestly may be the most poorly conceived "anti-piracy" campaign ever. It makes the White House look pretty damn foolish.
Oh, and then there are the videos. How could we forget the videos. Some propaganda PSAs that again go back to bootleg DVDs, claiming that they lead to child labor and gangland murder. Amusingly, the title of the marketing campaign is "Get Real." If only the National Crime Prevention Council did "Get Real" and decided to stop repeating these debunked claims. Then there's the heartstrings-pulling video of a young woman busking in a subway station, with her guitar case open with some cash. People stop, listen, and then take her cash. It's a metaphor! For something. I'm not sure what. Because the internet is kinda the opposite. People who have set up donation and pay what you want models find that fans donate. No one takes money away.
In the end, the whole thing actually makes the White House look really, really bad. It could have been a real leader here, outlined the actual issues with infringement, how the market is changing. It could have pointed out resources showing those who are adapting, highlighting strategies and business models that work. It could have pointed out actual data (not old, debunked or made up stats) that show more content than ever before is being produced today, more people are earning money making content than ever before, and that the overall size of the content industries continues to grow. All of that would be useful. None of that is here. Just pure FUD.
For what purpose? It's not clear. McGruff is aimed at kids, but multiple studies (including the SSRC study) have looked at "education campaigns" on copyright infringement and have found that they have no impact at all. It's not an education issue. It's that people intrinsically don't see what's wrong with sharing music and movies in many cases. And the really bizarre part is I have no clue who this campaign is actually targeted at. It feels like it was perhaps targeted at people who aren't on the internet and who live in 2003 or so. What a waste of time, and what a shame that the White House would put a stamp of approval on such an amateurish mess.
by Mike Masnick
Fri, Oct 14th 2011 11:07am
Worst Kept Secret Now Confirmed: Government Was Very Involved Helping RIAA/MPAA Negotiate Six Strikes
from the well,-duh dept
The emails note that Espinel did make sure to "involve" two groups who represent consumer interests -- CDT and Public Knowledge -- but it's quite clear from the nature of the interactions that those organizations were not really involved in the negotiations, but were shown the details towards the end, to avoid them feeling "taken by surprise" when the deal was announced. None of this is particularly surprising, but it's pretty silly for everyone to pretend that this was a "voluntary agreement between private entities." It was clear from the beginning that the White House was heavily involved, and was very much backing the entertainment industry's viewpoint. In theory, the government should be representing the people, but the cozy nature of the relationship suggests it was exactly the opposite. The government was representing industry against the public interest.
by Mike Masnick
Thu, Jun 23rd 2011 9:32am
from the they-live-in-an-alternate-reality dept
Of course, Leahy apparently doesn't recognize the irony of condemning internet censorship in other countries while praising it at home when it benefits his biggest campaign contributors.
The same hearing gave ICE assistant director Erik Barnett one more chance to declare victory, though I note with some amusement that the text of Barnett's speech this time leaves out the bogus claim that no sites are challenging the seizures. Apparently he's realized that some people might call him on it when he blatantly misrepresents reality.
Either way, none of this dog and pony show is much of a surprise. You certainly wouldn't expect Senator Leahy to call one of the people who had their sites illegally seized to hear their side of the story. I mean, that might be embarrassing to actually hear that there's more than one side to this. He might have to hear about how the content creators themselves sent the content in question to these sites, and how the ICE affidavit to seize them misstated the facts of whether or not the content was infringing. He might have to hear how ICE didn't even ask the actual copyright holders, in most cases. He might have to hear how ICE doesn't seem to understand the technology, and doesn't seem to understand the difference between linking and distribution. He doesn't have to hear about how hardworking people who helped promote new artists and build their careers now live in fear of their own government. He doesn't have to hear about how these people are afraid to speak out, because the Justice Department has told them that if they do, they may face criminal charges.
No, it's easier to put on a show and pat yourself on the back for censoring those people and pretend that you've done something productive.
by Mike Masnick
Thu, Jun 9th 2011 8:13am
Copyright Czar Agrees That The Gov't Should Let Business Models Decide Winners, Rather Than Legislation
from the time-to-walk-the-walk dept
"The U.S. government doesn't need to pick winners and losers and the last thing we should think about doing is messing up the Internet with inappropriate regulation," she told the World Copyright Summit in Brussels.She also talked up the value of new services, including various "cloud" services from Amazon, Google and Apple (which is interesting, since the record labels still seem to be hinting that Amazon and Google's services may not be legal, in their minds).
So, kudos to Espinel for making such a statement.
That said, it would be nice if we could see a bit more walking the walk, beyond just talking the talk. Espinel has certainly had a role to play in the PROTECT IP Act, which many people are warning could "mess up the internet," through its messing with DNS. On top of that, Espinel was also the driving force behind the new bill we recently spoke about that could make embedding and linking to infringing material a felony by extending the coverage of criminal copyright law to include "public performances." This sort of law does lead to the government picking winners and losers, and is totally unnecessary.
The focus really should be on encouraging the embrace of new business models, rather than ramping up enforcement. The recent SSRC study highlighted clearly the fallacy of ramping up enforcement as a means of dealing with infringement, as it simply doesn't work and has massive unintended consequences. Hopefully, Espinel will begin moving away from pushing new legislation like these recent efforts, and really will focus on helping content creators and others in the industry to move towards smart new business models instead.
by Mike Masnick
Tue, Mar 15th 2011 1:50pm
from the they-don't-get-it dept
The problem, of course, is that the recommendations don't stick to these situations and start to stray pretty quickly. So let's look at a few points in the plan that raise some concerns:
Increase the Guideline range for intellectual property offenses committed by organized criminal enterprises/gangs;Of course, who's going to be against that? After all, we keep hearing about how infringement funds organized crime and terrorism. Except, we don't, really. There was basically one such report, from RAND, which conflated a few issues and has been mostly debunked (including in the recent SSRC report). But, even if we accept that there are organized crime groups involved in these sorts of things, the main fear here is how the government will define "organized crime enterprises/gangs." We've seen those terms stretched before in various contexts to include just a group of a few kids hanging out together. How long will it take until just some kids file sharing with each other are somehow labeled a "gang" for this purpose?
Increase the Guideline range for repeat intellectual property offenders.Again, something that sounds innocuous enough until you realize that pretty much everyone is a repeat intellectual property offender every single day. As such just wait and see how the government uses trumped up infringement charges against people to show that they're "repeat offenders."
Ensure that, in appropriate circumstances, infringement by streaming, or by means of other similar new technology, is a felony;Quite vague and potentially scary if it's not clarified. Streaming is a felony? Is that for the end user who does the streaming or the host? Does this mean someone who uploads to YouTube could risk felony charges? We've already seen how the government is prosecuting a guy for embedding streams. Think of how many felons this rule might create without clear guidelines. And the "similar new technology" clause seems vague too. Does the White House really want to criminalize technologies before they even have a chance to see if they can help the market? For a White House that has been banging the drum on "innovation," this makes little sense.
Authorize DHS (including its component CBP) to share pre-seizure information about, and samples of, products and devices with rightholders to help DHS to determine whether the products are infringing or the devices are circumvention devices; andYeah, because that worked so well in these earlier domain seizures in which DHS shared songs that were being offered on websites and the RIAA mistakenly claimed they were infringing, despite being sent by the copyright holders -- even claiming one song by an artist not affiliated with an RIAA label was infringing, despite having no right to speak for that song. The government already relies way too heavily on extremely biased parties in these situations. Allowing them to lean even more heavily on them rather than independent third parties seems extremely dangerous.
Give law enforcement wiretap authority for criminal copyright and trademark offenses.Considering that the government now considers linking to infringing files as a criminal offense, this seems like overkill again.
There's also a big section on dealing with counterfeit drugs. Here, again, there isn't necessarily an issue with trying to stop counterfeit drugs that are serious health risks. But, too often, the US and other countries have lumped counterfeit drugs in with perfectly safe grey market drugs imported from other countries. Not separating those things out is a problem.
Finally, there's one bit of oddity. Right at the very bottom, there's this:
Finally, we recommend creating a right of public performance for copyright owners for sound recordings transmitted by over-the-air broadcast stationsWe've debated the performance rights tax for quite some time here. It's nothing more than a bailout for the record labels by taxing radio stations for advertising music. In what world does it make sense to force someone to pay for advertising someone else's work. Anyone familiar with the history of payola would know that such a performance right is completely anti-market. When left to their own devices, the record labels have always wanted to pay radio stations to play music, knowing that it helps promote the music. But the performance right tax flips that equation over, and says that radio stations now have to pay.
But, really, the bigger question is what does this have to do with enforcement? I'm fine with Espinel going beyond just focusing on enforcement, if she's going to look for ways to actually help IP live up to its Constitutional mandate of promoting the progress. But this recommendation seems completely out of place in a document focused entirely on enforcement with this one non-enforcement issue tossed in at the end.
The thing is, every time the government ratchets up IP laws in ways that don't match with the way most people view the world, the less respected those laws become. Rather than actually increasing enforcement, these moves decrease respect for those laws.
by Mike Masnick
Fri, Mar 4th 2011 9:47am
from the example-to-the-rest-of-the-world dept
Where it gets good is when Espinel tries to claim that there was due process in the domain seizures, where Lofgren jumps back in and points out that Espinel is wrong, and that there is no due process here. Espinel pulls out the same claim we keep hearing: that a magistrate judge approved the seizures based on "probable cause," but Lofgren responds by pointing out that judges in such circumstances approve almost anything -- and highlights ICE's similar massive screwup in taking down 84,000 innocent sites -- which also happened with a magistrate judge's rubber stamped approval. Lofgren knows that that's not due process by any stretch of the imagination, and ICE and Espinel really should give up on this line of argument. What they should do is actually provide real due process. Rather than seizing domains, file a lawsuit.
Lofgren's statement in response to Espinel's "due process" claim is so good that we'll repeat it here:
With all due respect, judges sign a lot of things... For example, the FreeDNS takedown -- it wasn't a copyright enforcement, but "supposedly" a child pornography enforcement -- ICE took down 84,000 websites of small business people that have nothing to do with child pornography at all. And put up a little banner saying "this was taken down for child pornography." Really smearing them. If I were them, I'd sue the Department. These were just small businesses. They had nothing to do with anything, and yet a judge signed that. So, if that's the protection, it's no protection. I want to know, what is the Department doing to think about the affirmative defenses, to think about -- yes, there's piracy, and all of us are united that we gotta do something about piracy -- but there's also a First Amendment that you should be considering when you go and destroy a small business. Are you thinking about that?Espinel's response is that they are thinking about this -- but it's not shown in their actions at all. Once again, there's a very simple way to handle this: have real due process that involves an actual adversarial hearing where before you shut down a website with tons of perfectly legal expression, someone points out to the clueless newbies in Homeland Security that they're not breaking the law. Why is that so difficult?
Espinel goes on to talk about how important due process and the First Amendment are to Americans -- and how what we do serves as an example to other countries. That leaves us with a pretty big question: if that's the case, why did she and ICE ignore both due process and the First Amendment with these domain seizures?
by Mike Masnick
Thu, Mar 3rd 2011 9:13am
Darrell Issa Tells IP Czar That She's 'Not Trying' If She Can't Pin Liability For File Sharing On Third Parties
from the the-law-doesn't-matter-apparently dept
If he really wants the government to go after credit card companies with criminal lawsuits for the actions of some of their customers, that's simply going to lead those companies (and others) to be a lot stricter in terms of whom they work with. It could prevent plenty of perfectly legitimate companies from being able to offer transactions, because the credit card companies don't want to take the risk that one of those sites might just possibly be labeled an infringer. The chilling effects here would be massive. We have the safe harbors for third parties in the DMCA and the CDA for a damn good reason: because we should place liability on parties actually responsible, not on third parties who will then react by clamping down and denying important services to perfectly legitimate sites.
by Mike Masnick
Tue, Feb 8th 2011 9:26am
IP Czar Report Hits On All The Lobbyist Talking Points; Warns Of More Draconian Copyright Laws To Come
from the oh-great dept
Given the level of regulatory capture, it's no surprise that Espinel's first report on the "progress" of her strategy reads like a checklist of what the big IP lobbyists wanted. Not surprisingly, the US Chamber of Commerce, who misled Congress to create this role in the first place not only cheered on this new report, but also urged Espinel and the White House to go even further in passing even more draconian, legacy industry-protecting legislation.
And that appears to be coming. Within the report, there's a note that new copyright laws are on their way "in the near future."
The U.S. Government must ensure that intellectual property laws keep pace with changes in technology and the practices of infringers. As part of a process initiated by the IPEC, Federal agencies reviewed existing laws to determine if changes were needed to make intellectual property enforcement more effective. The initial review began shortly after the release of the Joint Strategic Plan and was completed within 120 days. The IPEC will include legislative proposals identified in that review in a White Paper on legislative recommendations that the IPEC expects to submit to Congress in the near future.It's not difficult to read between the lines. Considering that it was US Chamber of Commerce lobbying that created this role in the first place, and now she's discussing new laws, to then see the Chamber of Commerce immediately announce it was "ready to work with Congress and the administration" on increasing IP laws, you can bet that the laws in question have already been written mostly by such lobbyists, and we should see them soon. Protectionism, protectionism all around.
That's not how to create innovation. It's how you prop up obsolete businesses at the expense of innovation.
The rest of the report, which is embedded below, just shows the sad state of affairs of industries who won't adapt and can't compete, abusing the legal process to put up barriers to new technologies, abuse the free speech and due process rights of those who actually innovate, and celebrate stagnation as a strategy for innovation. It's a depressing document all around. It celebrates the international joke that is the Special 301 report from the USTR. It mockingly celebrates "increased transparency" from an administration that supported the massively secretive process behind ACTA (which the document also cheers on), which only now we've confirmed was always about holding back developing nations rather than increasing innovation. Not surprisingly, the report cheers on the illegal seizures of domain names, despite the likely prior restraint and due process violations those seizures entailed. It ignores the international incidents created by seizing domains of sites declared legal in their home countries. And, of course, nothing in the report discusses new business models or how decreased IP enforcement has resulted in greater creative output, more opportunities for content creators, and new innovation throughout the world.
In other words, the report is a complete joke. Reports like this are incredibly frustrating, because they simply highlight how our government has been taken over by special interests who have no desire to actually improve the country, but merely to protect a few powerful lobbyists and the corporations that support them.
What bothers me the most, frankly, is that nowhere does the report make even the slightest attempt to support any of its assertions that greater IP enforcement is actually good for the economy. There are tons of evidence that this is not true, and yet Espinel repeats the claim as if it's proven fact. This is unfortunate because she does know better, but I guess appeasing special interests is more important than actually working to promote progress and improve the economy.
by Mike Masnick
Fri, Dec 17th 2010 1:00pm
from the borderline... dept
Together, the firms hope to tackle every link in the chain that keeps unlicensed pharmacies operating by stopping them showing up in search results, taking their websites offline, delisting the domains they use and stopping payments reaching them.Think COICA without COICA -- but just with government pressure on companies. Seeing Visa, Mastercard and Paypal on the list certainly isn't surprising, after those three already did the same thing in cutting off Wikileaks. However, it's a bit surprising to see Google agree to this (Update: Google says that it's only agreed to cut off advertising that violates its policies). If there's a trial and these sites are found guilty of violating the law, then I can see cutting them off -- but once again, it appears that this is the government trying to kill off websites, without a trial.
And, yes, it's for "unlicensed web pharmacies," and everyone plays up the spam and the fake (potentially dangerous) drugs. Those are a serious problem. But they also lump in the (quite common) grey market pharmacies as well -- which often allow people to get drugs from outside the country at much more affordable rates. Shutting down fake drug sellers is fine. Shutting down the grey market drug sellers is a bit of a bigger issue.
On top of that, given the recent ICE domain seizures and the whole COICA law -- both of which Espinel has spoken out in favor of -- it's not hard to see how the mandate behind this particular program is quite likely to grow well beyond "unauthorized web pharmacies" to other sites as well. In fact, MasterCard has apparently already agreed to cut off websites deemed "pirate" sites.