Sunday, 6 May 2012

Is A Free Internet Compatible With Security And Profitability?

I've been writing a lot about how unfair and ridiculous it is to either cave in to the ridiculous demands of the legacy content industries and their law enforcement lackeys and how their insidious influence is giving our elected officials excuses to clamp down on us in their name, the better to control us for their own benefit. What a cozy arrangement they have! All the control they could ever want, our rights and freedoms trampled underfoot and pesky ol' human rights ignored in the name of protecting starving artists or something. What I haven't really done, though, is look at it from the other side. Tonight, I'll rectify that oversight.


Most of the fuel for this particular fire comes from the fights I've had with trolls and IP shills on Google Plus, but since the real issues of security, income streams, control, being properly rewarded for your intellectual endeavours and being protected from plagiarism aren't going to go away, it's only reasonable to actually engage with them. In my last post I made a case for IP (intellectual property law) reform from the Pirate Party's point of view but I can't ignore the concerns of the artists, authors, and innovators who feel increasingly left out of the digital revolution. I posted some links to resources for them to use to find ways of earning online, even from file sharing, but that's only one side of a multifaceted coin. We need to look at the other issues.

Intellectual property rights


There are two arguments for the notion of property of any kind:

The scarcity argument focuses on the efficient use of existing resources. In contrast, the reward argument focuses on the creation of new resources. It says that people will under-produce valuable resources if they aren't allowed to keep what they produce. For example, a farmer is far less likely to plant crops in the spring if he won't be able to prevent others from harvesting them in the fall.

Both of these arguments are good reasons for property rights in physical objects. But only the reward argument seems to apply to copyright. - Tim Cook, Ars Technica

It's the reward aspect that the IP maximalists use to advance their arguments, but instead of pulling it apart, this time I'm going to argue the case from their point of view. There's not an artist in existence that I've ever heard of refusing to take money for their performed work. They've got bills to pay. Why should the work they've put into writing, refining and performing a song go unrewarded? Being able to control the publication and distribution of copies of their work gives them a guaranteed income; at the very least, it guarantees that they gain an income from every copy sold. However, the advent of the internet has thrown this into disarray. Or has it?

Copyright


Actually, unauthorised copying and distribution via performance of cover versions of popular songs, home taping, and photocopying sheet music has been going on since the invention of the musical instrument and the printing press. In fact, prior to the printing press, copying was done by hand and in theory, if you could write and get hold of a material to write on, you could copy a book in full and get away scot free as long as you didn't make it too obvious. Even today, unauthorised copying via non-digital means is rife. It's only when people are caught and held to account that we get to hear about it. It's always been in disarray, is what I'm saying. It's just that the internet has magnified this and the legacy industries, cushioned by their monopoly status, has failed to adapt to this.

What I'm saying is, while it's actually quite reasonable for a creative to expected to receive a financial reward for every copy made of their work, and to desire to control the publication and distribution of their work to their maximum advantage, it's not, and never has been, fully possible to do this. What we need to do, then, is find a way to balance the reasonable expectation of the creative to receive recompense for their work without having to hunt people down like dogs and punish them harshly for every infraction, real or imagined. This means engaging with the internet and its denizens effectively as partners rather than potential criminals, who then, out of resentment and a desire to "stick it to the man" infringe in cases where they usually wouldn't just to prove a point.

I would also argue that the monopoly systems and their enforcement actually cause more problems for the creatives than it solves. As I've stated many times in here and in arguments on G+, the content industries are often the rightsholders, not the creatives that they claim to represent. It's the same with patents. In any case, the value of either is not really counted in terms of the value of the item in question, but the will to enforce it. And whether or not you're in the wrong, if you can leverage a powerful government agency as muscle, you're more likely than not to win. Now here's the thing: as a creative not affiliated with the content industries' collection agencies, how can you enforce your assertion to copyright? Litigation isn't free and DMCA will allow you to report links, but you have to hunt them all down and if your work is popular, you've got a whole new career trawling the internet for illicit links. Now see how that worked out for the Catsouras family. It's not an IP issue, but it's relevant because it's about distribution and sharing. Did you click it? Do you get my point?

"Education" of the public, i.e. attempting to persuade them to accept an artificial shortage of the thing they want in order to support a monopoly has failed. Litigation fails when it relies on the use of ISP addresses to find infringers, and even if they do succeed in identifying the actual home and computer of an infringer, how can they prove the identity of the infringer? The only real way to prevent or contain infringement is to either shut down the internet or police it to the extent that there can't be any expectation of privacy online any more. Now given the cost to the public purse via increased taxation and/or ISP costs that even the creatives would have to pay, is that a reasonable trade-off? Now here's the thing; suppose all creatives got behind the idea of a fully policed internet with nowhere for infringers to hide, what happens when they want to share files in order to collaborate and forget about any and all licensing agreements to do so? If you don't own your creative output, who's going to get their collar felt by Plod?

The point I'm making here is that the case is usually that artists don't own their creative output if they're signed to a major label, it's part of the deal, so this limits what they can or can't do with the work they create. My usual sparring partner has yet to identify himself as a musician, but what I'm saying is that his arguments fall flat when you acknowledge the inconsistencies between the intent of copyright enforcement and the realities. And I haven't even got to works for hire yet! The point is, I have serious doubts about whether musicians and other creatives actually benefit from the system that is currently in place. The arguments they advance for surveillance and tighter enforcement are usually parroted from the IP maximalists who are notionally on their side. For artists not signed up to the big companies, it's usually a different story.

Patents


Patent law, by contrast with the above, is locked at twenty years, but here's where the trouble starts: they're often vaguely-worded rights to an idea that can be owned and asserted by anyone. There's a war on in Silicon Valley between the tech and internet giants, with no sign of the madness abating. The idea is not to ensure innovation or to pay the inventors, it's to stifle innovation. The Google v Oracle and Yahoo v Facebook cases could seriously impinge on open source as well as pushing up costs for the products themselves. If the inventors are to be rewarded for their efforts, it can't be via a corrupt and broken system. Licensing provides an effective income stream for those who can enforce them, but given the costs, is it even worth filing a patent if you have an idea? 'Nuff companies get sued out of existence on the most specious of claims unless they're willing to submit to what is essentially a protection racket where you settle instead of going through the lawsuit. So the question is, can there be any benefit in continuing it unless you're a troll and make money by asserting rights over ideas?

Security


You can't have a meaningful debate about intellectual property law without mentioning security. There are two main aspects of enforcement to consider: economic and technical, in the wider context of legislation and the way it is perceived by all the actors in the play.

Economic


The impact of monopolies as a strategy to stifle innovation and limit experience is more of a crushing weight than a liberating force. The US government, up to its eyeballs in trillions of debt, is on an imperialistic worldwide rampage in the name of intellectual property enforcement. Other countries are starting to wake up to this, but for those who are locked into bilateral agreements, it's too late. This is why ACTA and TPP have got to be stopped: they're a one-way street. This is how the US government justifies its rapacious behaviour:


IPR violations which include theft of trade secrets, digital piracy, and the trafficking of counterfeit goods, result in billions of dollars in lost profits annually. Failure to protect IPR undermines confidence in the economy, removes opportunities for growth, erodes the U.S.’s technological advantage, and disrupts fairness and competitiveness in the marketplace. In short, a robust system for protecting IPR is critical to economic prosperity.


Read between the lines of the FUD (fear, uncertainty, and doubt) and you'll see what the real problem is; they can't compete on equal terms with other countries so they have to stop them innovating and limit their ability to compete by taking existing items and innovating on them. Put it this way: if you have to stifle other people's ability to innovate in order to protect your technological advantage, you're going the way of the dodo and only a fool would agree to sign treaties that put them at such a massive disadvantage. The trick, then, is to apply those threats to the countries they're trying to persuade to sign.

The ACTA treaty sends an important message to third countries and to Europe’s workforce that our rights must be protected in practice, and that Europe will not fall behind other countries in this regard. This is a crucial moment for Europe’s governments and institutions in their effort to safeguard Europe’s jobs and economic future. Failure to do so will irrevocably affect Europe’s credibility as a trusted global trade partner. - INTA letter to MPs (PDF)


Can you believe what you just read there? "Agree with is or you'll fall behind other countries," "You'll lose credibility," and "We won't trust you any more." You've got to love the thinly-veiled threats. Now remember what you read above. Whatever makes you think it applies in the USA? It doesn't.

ACTA is binding on the US under international law... but not under US law. Of course, international law trumps US law here, so that's kind of meaningless. - Techdirt

At the time of writing, ACTA is stalled and there's talk of killing it in the European parliament. Opposition to TPP is growing, but the Pacific nations aren't really standing up to it so it looks likely to go through. Since no one among them is engaging with this issue from an honest point of view, we can expect more of this until something gives and the whole lot falls apart. In any case, China and Russia haven't signed it and they are the biggest infringers so this is basically an exercise in international IP trolling. No innovators can possibly benefit from such treaties; they're intended to stifle innovation and unauthorized distribution, after all.

The best possible solution to the economic conundrum would be a complete reform of patent law in order to stimulate innovation and remove the threat of litigation but the way people think about ideas and how they are put into practice is preventing any meaningful debate on the subject by those best placed to implement changes.

Technical


The terror-stricken tone of the drama-llamas racing around crying "Doom is upon us!" at every turn is increasingly being viewed with indulgent amusement on one hand and deep concern on another. To deny the existence of a threat to the online security of governmental and corporate systems is to disregard incidents such as the recent shutdown of the SOCA website by a DDoS attack. Computer systems can and do get hacked. Industrial secrets can and do get leaked. The thing is, the government is going about things in the entirely wrong (and occasionally funny) way. Most of this is to do with a failure to adapt. The problem with their approach is twofold:

  1. an overly-broad definition of what contitutes a cyber-attack, and
  2. attempting to bring in large-scale surveillance of the internet

This is what happens when the government stops seeing its own people as part of the democratic process. I joked about calling the waaa-mbulance for the poor, oppressed politicians and completely missed the point: they see us as the enemy, as a problem that needs to be solved; contained. The idea of actually engaging with us in order to represent us properly never seems to cross their minds. So basically, opposition via the social media is a cyber-threat now. That makes CISPA even more of a threat than we realised. Let's give that a chance to sink in, shall we?

If you disagree with government policy online and campaign against it, your activities constitute a cyber threat.


Scary, isn't it? And the USA is not alone in this. There's talk of introducing similar laws over here in the name of safety without thought for the citizens who are ultimately supposed to benefit. And it's hard to put our faith in the hands of people who admit they know little or nothing about the internet yet seek to curtail our rights and freedom of expression because, let's face it, they're afraid. Now thankfully, the UK government is willing to be sensible about this and issues consultation papers online in order to get the views of its citizens. For this reason I'm actually quite hopeful and expect a gradual realisation to dawn on them that the US is not all-powerful and we don't have to follow their lead. I'll feel better about it when they've got rid of the Digital Economy Act.

Okay, but what about security? What can we do to keep hackers, etc., out?


First of all, putting the internet and its users under surveillance is the wrong way to go about it. There are billions of people online. To make life easier, governments are asking our ISPs to retain our data and hand it over on request. I won't go into detail about how problematic that is (very!), but suffice it to say that even if it was a straightforward matter, that's an awful lot of data to work through. Worry not, there's a massive spy centre under construction in Utah as I write. They ought to be able to handle it. They've even got the helpful Australians to agree to hand over its citizens' data in a one-sided agreement. If this was about catching hackers I could understand it but it's not. It's about catching file-sharers.

So... what about removing sensitive systems from the internet? It's a no-brainer. If files containing sensitive information can't be accessed from the internet, hackers can't get at them via the internet. Improving technical security and anti-spyware would also help. Early adoption of new systems and investing in security training is essential so that the next time a hacker tries his luck, he gets caught and arrested. It really is that simple.

I believe I've covered every area here in the course of my arguments. Let me know in the comments if I've missed anything.

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