Copyright enforcement and the Internet: we just haven't tried hard enough?(arstechnica.com)
arstechnica.com
Copyright enforcement and the Internet: we just haven't tried hard enough?
http://arstechnica.com/tech-policy/news/2012/02/copyright-enforcement-and-the-internet-we-just-havent-tried-hard-enough.ars
7 comments
Redefinition of "property" is extremely important. Start with the fact that pirates don't steal - they infringe copyright.
I can't agree enough. The biggest victory of the intellectual property movement is the term "intellectual property".
[Edit/rewording] The information covered by copyright and patents is not property. It literally cannot be owned. All that copyright law does is grant temporary control over distribution of information; all patent law does is grant temporary control over use of information to produce products.
If you're serious about this issue, don't use the terms theft, steal, or so-called "intellectual property", and don't tolerate it when others do -- call them out.
Alexqgb's post, while very insightful and interesting, is fundamentally flawed because it accepts as a premise a lie and a falsehood -- that it is even possible to "own" information as "property". This literally cannot be done. It is a broken metaphor designed to distort the issue.
[Edit/rewording] The information covered by copyright and patents is not property. It literally cannot be owned. All that copyright law does is grant temporary control over distribution of information; all patent law does is grant temporary control over use of information to produce products.
If you're serious about this issue, don't use the terms theft, steal, or so-called "intellectual property", and don't tolerate it when others do -- call them out.
Alexqgb's post, while very insightful and interesting, is fundamentally flawed because it accepts as a premise a lie and a falsehood -- that it is even possible to "own" information as "property". This literally cannot be done. It is a broken metaphor designed to distort the issue.
Copyright and patents are not property. They literally cannot be owned.
It may be a broken metaphor but the law says you can own intangible rights without question - or at least gives you rights that equate to pretty much everything that an owner of tangible property has (the right to exclusive control, the right to sell/buy/assign/lease/license/bequeath to heirs, etc., and the right to sue to enforce these rights in a court of law - see http://news.ycombinator.com/item?id=3463640 for elaboration). This is the bundle of rights that the law calls "ownership" and, in this sense, you certainly can "own" copyrights and patents.
You are arguing, in effect, that the law should be otherwise and that is fine. I also agree that the term "theft" is a loaded term that distorts the discussion on infringement. But it is not right (in terms of law) to "call out" those who use the term "property" for using a label that accurately describes exactly how the law treats the intangible rights (copyright, patent) with which you take issue. You may disagree with this but this is what the law currently holds. It is also, in practice, exactly how every startup I have ever worked with (many thousands) regards the IP rights that it develops (i.e., something "owned" by the company).
Trade secret rights, by the way, are also treated by the law as property. Such rights extend only to information that is confidential and proprietary - "proprietary" literally comes from a Latin root that means "one's own" and refers to information (whether formulas, customer lists, confidential pricing information, or whatever) that is owned by a particular company (as opposed to being public information). This too is another example of the law treating information as something capable of being "owned." Indeed, that is the essence of most intangible rights that the law protects, including contract rights. It protects them by giving them the attributes of ownership. This may be question-begging ("they are only property because an illegitimate law calls them "property") but it is reality and is very deeply ingrained in current law. It would take nothing less than a revolutionary way of looking at the concept of property to change it.
It may be a broken metaphor but the law says you can own intangible rights without question - or at least gives you rights that equate to pretty much everything that an owner of tangible property has (the right to exclusive control, the right to sell/buy/assign/lease/license/bequeath to heirs, etc., and the right to sue to enforce these rights in a court of law - see http://news.ycombinator.com/item?id=3463640 for elaboration). This is the bundle of rights that the law calls "ownership" and, in this sense, you certainly can "own" copyrights and patents.
You are arguing, in effect, that the law should be otherwise and that is fine. I also agree that the term "theft" is a loaded term that distorts the discussion on infringement. But it is not right (in terms of law) to "call out" those who use the term "property" for using a label that accurately describes exactly how the law treats the intangible rights (copyright, patent) with which you take issue. You may disagree with this but this is what the law currently holds. It is also, in practice, exactly how every startup I have ever worked with (many thousands) regards the IP rights that it develops (i.e., something "owned" by the company).
Trade secret rights, by the way, are also treated by the law as property. Such rights extend only to information that is confidential and proprietary - "proprietary" literally comes from a Latin root that means "one's own" and refers to information (whether formulas, customer lists, confidential pricing information, or whatever) that is owned by a particular company (as opposed to being public information). This too is another example of the law treating information as something capable of being "owned." Indeed, that is the essence of most intangible rights that the law protects, including contract rights. It protects them by giving them the attributes of ownership. This may be question-begging ("they are only property because an illegitimate law calls them "property") but it is reality and is very deeply ingrained in current law. It would take nothing less than a revolutionary way of looking at the concept of property to change it.
As always you make enlightening points.
Yet, even under the law, there are some significant difference in the purpose and implementation between traditional property and intellectual property. IP rights are for instance limited in time. In fact, historically the original purpose of patents was to encourage inventors to disclose their information so that eventually it could be used by society at law. Patents are inherently, and meant to be, self limiting.
Also, traditional property is normal inherently exclusive. If I am using my hammer, you are not. We may manage to come to a time-sharing arrangement or something similar, but only one of us is using it at a time. On the other hand, my building a product based on a patent you hold is prevented only by the law, rather than by the mere fact of you holding it. To quote Jefferson "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. "
In a legal sense, IP is most certainly property, but it has significant differences from more traditional property and is not property in the same sense that a hammer is.
Yet, even under the law, there are some significant difference in the purpose and implementation between traditional property and intellectual property. IP rights are for instance limited in time. In fact, historically the original purpose of patents was to encourage inventors to disclose their information so that eventually it could be used by society at law. Patents are inherently, and meant to be, self limiting.
Also, traditional property is normal inherently exclusive. If I am using my hammer, you are not. We may manage to come to a time-sharing arrangement or something similar, but only one of us is using it at a time. On the other hand, my building a product based on a patent you hold is prevented only by the law, rather than by the mere fact of you holding it. To quote Jefferson "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. "
In a legal sense, IP is most certainly property, but it has significant differences from more traditional property and is not property in the same sense that a hammer is.
> the law says you can own intangible rights
Sorry if my wording was unclear. You can be granted rights (or more accurately powers), but you cannot own information. It is physically impossible by definition.
Sorry if my wording was unclear. You can be granted rights (or more accurately powers), but you cannot own information. It is physically impossible by definition.
I think that's barking up a pointless, semantic tree. You don't need property for there to be "theft", you just need to deprive someone of something.
It's not semantics. If that were the case theft laws would apply and they don't.
Whether or not copyright infringement deprives copyright holders of a sale is very difficult to substantiate. Which is why courts decide it.
Compare that to actual theft. If someone steals my phone, I can't use it anymore.
Whether or not copyright infringement deprives copyright holders of a sale is very difficult to substantiate. Which is why courts decide it.
Compare that to actual theft. If someone steals my phone, I can't use it anymore.
I couldn't reply to repsilat for some reason.
I agree mostly with your statement except that we are speaking about legal terms. It's important to make the distinction between theft and copyright infringement laws. They were made for very different purposes.
I agree mostly with your statement except that we are speaking about legal terms. It's important to make the distinction between theft and copyright infringement laws. They were made for very different purposes.
The legal definitions of words like "theft" and "ownership" and "property" are not the only definitions. There's obviously a widely held definition of "theft" that does include copyright infringement, whether it constitutes theft in a legal sense or not. (You can tell it's widespread because the argument that "infringement is not theft" keeps being made against all kinds of people.)
You can argue that the usage of that term might be prejudicial, but calling it incorrect is at odds with the enlightened linguistic descriptivism we're all so enamoured of. :)
You can argue that the usage of that term might be prejudicial, but calling it incorrect is at odds with the enlightened linguistic descriptivism we're all so enamoured of. :)
You can argue that the usage of that term might be prejudicial, but calling it incorrect is at odds with the enlightened linguistic descriptivism we're all so enamoured of. :)
I get what you are saying, but this is a bit hypocritical. The very act of arguing and pushing for new terms, and trying to clarify language is in fact OK and even encouraged, even if one is a descriptivist. Even the most passionate "let language do what it will" person will agree that at some point you can't have every word collapsing into every idea.
I get what you are saying, but this is a bit hypocritical. The very act of arguing and pushing for new terms, and trying to clarify language is in fact OK and even encouraged, even if one is a descriptivist. Even the most passionate "let language do what it will" person will agree that at some point you can't have every word collapsing into every idea.
I think I agree, for the most part. I have no problem with people arguing that copyright shouldn't be called theft, but I do have a problem with people arguing that copyright can't be called theft.
Perhaps the distinction is finer than the subject deserves. If I'm honest I think I prefer the "should not" argument to the "may not" one because the latter begs for shallow, deductive arguments from definitions instead of admitting a more thoughtful discussion.
Perhaps the distinction is finer than the subject deserves. If I'm honest I think I prefer the "should not" argument to the "may not" one because the latter begs for shallow, deductive arguments from definitions instead of admitting a more thoughtful discussion.
If someone wants to sue me for theft, they'd better do it according to the legal definition of theft. If not, that's defamation.
> You don't need property for there to be "theft", you just need to deprive someone of something.
Deprive who of what? Information can only be copied, not taken. You can't deprive anyone of information unless you hack their computer.
Copyright law says nothing about deprivation. All it says is who has the legal right to make copies, and who doesn't. If you make copies without permission, you've violated copyright law. "Theft" doesn't enter into it.
Deprive who of what? Information can only be copied, not taken. You can't deprive anyone of information unless you hack their computer.
Copyright law says nothing about deprivation. All it says is who has the legal right to make copies, and who doesn't. If you make copies without permission, you've violated copyright law. "Theft" doesn't enter into it.
This is the best article I have read on the subject is "What color are your bits"[1]. My feeling is that people arguing for stricter copyright enforcement online are trying to unring a bell. They just don't understand that yet.
It's going to take a new generation who have grown up with the internet to wipe this slate clean.
[1] http://ansuz.sooke.bc.ca/lawpoli/colour/2004061001.php
It's going to take a new generation who have grown up with the internet to wipe this slate clean.
[1] http://ansuz.sooke.bc.ca/lawpoli/colour/2004061001.php
There's an important comment in that article. Tanner Swett says:
[T]here's already a word for the concept of Colour: "provenance"
Perhaps a short educational film is needed to communicate this more widely. I'm thinking something with a sinister-looking Gestapo-knock-off 'media agent' coming into a home asking to see their blue-rays' and computers' papers, and those papers' papers.
Interesting - that article is one of my favourites, but I always thought the conclusion was a little more balanced. In addition to the idea that legislators and content creators don't understand bits, I think that the author also wanted to say that programmers and netizens don't understand "colour".
yes, it was definitely more balanced.
I missed a newline before the sentence beginning with 'my opinion is'.
Although, in his last example around one time pads, he points out that even in an area where the colour of bits really matters to programmers/cryptographers (whether or randomly generated numbers are in fact random), it is not actually possible for us to do determine wether they are random just by looking at them.
In the second to last paragraph he says the following:
"I think it's time for computer people to take Colour more seriously - if only so that we can better explain to the lawyers why they must give up their dream of enforcing Colour inside Friend Computer, where Colour does not and cannot exist."
I missed a newline before the sentence beginning with 'my opinion is'.
Although, in his last example around one time pads, he points out that even in an area where the colour of bits really matters to programmers/cryptographers (whether or randomly generated numbers are in fact random), it is not actually possible for us to do determine wether they are random just by looking at them.
In the second to last paragraph he says the following:
"I think it's time for computer people to take Colour more seriously - if only so that we can better explain to the lawyers why they must give up their dream of enforcing Colour inside Friend Computer, where Colour does not and cannot exist."
Wow, this is a real eye opener. Only having heard of Napster, I didn't realize there were other services similar to Google Music back in the late 90s. Here's solid proof that in claiming to promote innovation they are quite literally stifling it and delaying it by decades. I'm also continually amazed at how long copyright terms are in the US and how much lobbying goes into it to extend terms right when they're about to expire. (http://en.wikipedia.org/wiki/Copyright_Term_Extension_Act)
If people think there are technological solutions, they should go ahead and propose them.
But I have difficulty seeing a legitimate proposal that prevents the copying of certain sequences of bits according to the terms of their copyright license, while allowing free copying of other sequences of bits. Doesn't sound ideologically or technically feasible to me, because you're fighting an uphill battle against the nature of information.
Personal ethics has nothing to do with it.
But I have difficulty seeing a legitimate proposal that prevents the copying of certain sequences of bits according to the terms of their copyright license, while allowing free copying of other sequences of bits. Doesn't sound ideologically or technically feasible to me, because you're fighting an uphill battle against the nature of information.
Personal ethics has nothing to do with it.
There are NO technological solutions. It is mathematically impossible to restrict communication of certain kinds of information, while still allowing information exchanges to take place.
This is why there are no legal, political, or economic solutions to the general problem of copyright, either. The only solutions that are even theoretically possible rely almost entirely on ideology backed up by a massive coercive force.
This is why there are no legal, political, or economic solutions to the general problem of copyright, either. The only solutions that are even theoretically possible rely almost entirely on ideology backed up by a massive coercive force.
Too true. Everything on a computer can be represented as a number. So if you try to say that someone owns a number, let's say 5, how do you enforce that technologically? If they're not allowed to transmit 5, they can transmit 2+3 or 4+1. And it shouldn't take much imagination to see that to ban people from transmitting one number requires banning them from transmitting any numbers, because you can use any other number to make 5.
But mere impossibility isn't enough to make people give up. They'll keep trying and trying and just think that they didn't try hard enough, never wondering why people always seem to be able to find countermeasures. Maybe they can just ban the + program, any other use of it be damned? Oh, but we have - too. Well, there aren't that many functions on a pocket calculator, are there? Maybe you can ban them all? Maybe we could get that Godel guy to help us figure this out....
But mere impossibility isn't enough to make people give up. They'll keep trying and trying and just think that they didn't try hard enough, never wondering why people always seem to be able to find countermeasures. Maybe they can just ban the + program, any other use of it be damned? Oh, but we have - too. Well, there aren't that many functions on a pocket calculator, are there? Maybe you can ban them all? Maybe we could get that Godel guy to help us figure this out....
Hence Cory Doctorow's recent talk, "The Coming War on General Purpose Computation":
http://boingboing.net/2011/12/27/the-coming-war-on-general-p...
http://boingboing.net/2011/12/27/the-coming-war-on-general-p...
War on General Purpose Computation == War on Consciousness. Why not just go straight to the root of the problem and outlaw certain kinds of cognitive patterns? Since "intellectual property" begins in the mind, so does "copyright infringement". Thought would be a whole lot easier to police, anyway.
Memory is theft. That's why I choose to stay ignorant - stupidity will never be outlawed.
Memory is theft. That's why I choose to stay ignorant - stupidity will never be outlawed.
Great post/point.
I would love to see a lawyer in a courtroom ask the jury if people should be allowed to copyright or patent a number. Then show them a written numerical representation of the work in question (preferably compressed).
I would love to see a lawyer in a courtroom ask the jury if people should be allowed to copyright or patent a number. Then show them a written numerical representation of the work in question (preferably compressed).
Technology can change things.
If digital printers and scanners get good enough we may need to switch from current physical currency, back to gold, silver and copper. Trying to legislate around the technology to protect the current model may simply not work. I am not trying to get into the controversy about fiat currency, I am just talking about the stuff you carry about, you can still have lots of fiat electronic promises.
If digital printers and scanners get good enough we may need to switch from current physical currency, back to gold, silver and copper. Trying to legislate around the technology to protect the current model may simply not work. I am not trying to get into the controversy about fiat currency, I am just talking about the stuff you carry about, you can still have lots of fiat electronic promises.
When I saw the title of this piece, I immediately thought it referred to the companies' lackluster ability to patrol torrent sites.
I haven't torrented in many years (no, really...I didn't see the need for it after I got a real job and after the advent of usable streaming services) but isn't it still the case that the majority of users expose their IPs when downloading/uploading? That is, most people aren't using some kind of Tor solution?
I may not have a very tech-savvy group of friends...but the few people who have said they torrent are almost always unaware of how public their downloading is (and yes, these would be the same people who would be vulnerable to Firesheeping and other such hacks) and are shocked when I tell them of the risk they're at.
But in reality, it seems like a very small minority of easily-findable torrenters face any kind of action. And yes, I'm accounting for the infamous RIAA/MPAA lawsuits in which hundreds or thousands of people are named. That's still -- AFAIK -- a very small percentage of domestic torrenters.
Which leads me to believe that the RIAA/MPAA's enforcement capabilities involve an intern using some craptastic proprietary program to copy-and-paste IP numbers and hand-enter them into a database, which is then used to hand-send out cease-and-desist letters, and all of this happens very sporadically (and with little effort/ability to verify accuracy, apparently).
I haven't torrented in many years (no, really...I didn't see the need for it after I got a real job and after the advent of usable streaming services) but isn't it still the case that the majority of users expose their IPs when downloading/uploading? That is, most people aren't using some kind of Tor solution?
I may not have a very tech-savvy group of friends...but the few people who have said they torrent are almost always unaware of how public their downloading is (and yes, these would be the same people who would be vulnerable to Firesheeping and other such hacks) and are shocked when I tell them of the risk they're at.
But in reality, it seems like a very small minority of easily-findable torrenters face any kind of action. And yes, I'm accounting for the infamous RIAA/MPAA lawsuits in which hundreds or thousands of people are named. That's still -- AFAIK -- a very small percentage of domestic torrenters.
Which leads me to believe that the RIAA/MPAA's enforcement capabilities involve an intern using some craptastic proprietary program to copy-and-paste IP numbers and hand-enter them into a database, which is then used to hand-send out cease-and-desist letters, and all of this happens very sporadically (and with little effort/ability to verify accuracy, apparently).
Any system that is applied consistently would be much easier for torrent sites to dodge.
And protecting is the key word, since the rights themselves are abstractions. What gives them concrete value is the institutionalized mechanisms of enforcement, from well-grounded law, to courts, to sherifs with badges and guns. It's a formidable apparatus. And what constitutes "property" is anything that society is willing and able to place within the jurisdiction of this contracting and enforcement system.
Throughout the 20th century, when the only parties in a position to seriously violate the intellectual property rights of others were major companies, the law was limited to the rules of engagement for big publishers dealing with each other, as well as their suppliers. Not having unfettered access to movie studios, broadcast networks, or commercial printing presses, the general public had no way to duplicate and distribute media on an appreciable scale. Though the scope of media has expanded enormously in the past 300 years, this fundamental assumption about limited access to its mechanisms remained valid.
The suddenly, it didn't - a change that is now irreversible fact. To say that the law is now unfit for present reality is an understatement. And to reflexively apply its terrible machinery in a heavily populated arena where is is absolutely, totally, 100% inappropriate is a recipe for catastrophe.
So we need to stop skirting the issue by talking about "outdated business models" and telling businesses that "they just need to adapt." Instead, we need to let them deal with their own problems, or retire gracefully. Our real problem is clearly and forcefully asserting that once-viable copyright law now constitutes an intolerable extension of property rights; one that is fundamentally incompatible with human autonomy in a networked civilization. While copyright laws remains a reliable tool for governing the conduct of incorporated entities (and are worth maintaining for this reason alone), they must be rolled back dramatically now that their fundamental assumptions have been falsified by the normal progress of humanity.
This is not an unprecedented development. Indeed, for most of human history the concept of "property" used to be so expansive that it even included other people. When abolishing slavery, what we were really doing is redefining the ancient scope of "property". And while we make a polite ritual of men asking fathers for their daughters hands in marriage, this tradition dates back to a time when taking a bride was an actual property transaction. When child labor laws were imposed, much of the resistance came in the form of people saying that these regulations interfered with the "property rights" they had in their own children. While that arrangement may have been uncontested at one point, society developed to a point where this idea was both fought and defeated. If anything, these episodes demonstrate that the flexibility - not the rigidity - of property's scope is what gives the institution its lasting value.
Today, we've reached a point where it's neither ethical nor practical to extend enforceable property rights into the contents of people's hard drives. Indeed, when you consider the totality of the police surveillance that an even marginally-effective system would require, the very thought is horrifying. There is no conceivable benefit offered by the current beneficiaries of expansive copyright protection that outweighs the extraordinary danger and inevitable abuse that will attend viable, non-arbitrary enforcement.
This is the point that Kevin Drum gets exactly wrong. Building an all-seeing, all-controlling IP enforcement apparatus isn't something we even want to consider, let alone try. History has demonstrated that once a society is infested with this kind of malware, it's virtually impossible to get rid of without suffering the collapse of the state itself.
No, what We the People need to focus on what we consider to be an appropriate limit to intellectual property rights in general, and persuade our legislators to act accordingly. Private companies should be free to operate within those bounds, or die trying. But they cannot displace the sovereignty of people working through elected representatives to define law appropriate to the time and place we're actually living in. As this fight plays out, the legal redefinition of "property" should be priority #1.