Cyber-bullying by the copyright Gestapo

And though they’ll hunt you like a dog
Well they won’t take you alive
Because you make them piles of money
Stacked up twenty stories high
And the boys in every bar
Will not miss you when you gone
From A Heady Tale by The Fratellis

Whenever I write about copyright issues I like to set the record straight right off the bat. Having been a software developer for my entire career and a musician who records and produces music, I am not in any way opposed to the concept of copyright or copyright law. I’m certainly do not espouse the idea that all software wants to be free nor, much as I dislike the entertainment industry,  do I advocate torrenting music or movies to avoid paying. So having gotten that out of the way, I’m here to tell you that copyright enforcement is a whole other deal. Here in the US we must contend with the Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) who have apparently decided that it’s far easier to blame any decline in revenue on “piracy” and sue potential customers, or threaten to and hope to settle out of court, than it is to come up with a viable distribution model for the digital age. But this week our European friends get to share the pain and witness the quasi-legal shenanigans that Americans have come to know and loathe. In this story by Nick Farrell in the Inquirer we hear about an episode of what I think can best be described as cyber-bullying by a law firm in the name of copyright enforcement.

So far at least 150 innocent people have been wrongly targeted in a crackdown on illegal file-sharing that’s being conducted by the rogue law firm run amok, ACS:Law.

The outfit has sent out letters to thousands of Brits accusing them of ‘piracy’ – that’s copyright infringement to anyone not trying to whip up public sentiment for their own monetary gain – and offering them a chance to settle by paying about £500.

However, loads of people are being accused with what must be inaccurate information. One was a 78 year-old accused of downloading pornography and others are unaware of having done any downloading at all.

“My 78 year-old father yesterday received a letter from ACS Law demanding £500 for a porn file he is alleged to have downloaded. Apparently the poor bloke does not know what file sharing is and has never even heard of BitTorrent. Nor has he given anyone else permission to use his computer.”

Which? Computing estimates that up to 50,000 letters have been sent out and is outraged that too many innocent people are being wrongly accused. Matt Bath, technology editor of Which? told the BBC that innocent consumers are being threatened with legal action for copyright infringements they not only haven’t committed, but wouldn’t know how to commit. But many “will be frightened into paying up rather than facing the stress of a court battle.”

Andrew Crossley of ACS:Law admitted that some cases had been dropped although he declined to give numbers. He told the Beeb [BBC to us yanks] that the method used to detect the IP address used for illegal downloads was foolproof, although that really does not explain why some cases needed to be dropped.

But behold, there is a glimmer of hope in this story. I mean other than the wicked sick ego and reputation boost for the 78-year-old guy accused of torrenting porn – You go, grandpa! No, I mean that you really can’t get too worried about litigation originating from a group whose spokes-weasel actually says “the method used to detect the IP address used for illegal downloads was foolproof” out loud. In public. To the press. I mean seriously, I can only assume that ACS:Law lawyers are the same class of moron as Mr. Crossley. [Andy, dude! – one word: TOR].

But sadly I don’t believe that Mr. Crossley and the gang at ACS:Law are stupid. They know very well that such a statement is ludicrous on it’s face and that no one with any kind of technical expertise will believe it. You know, the kind of technical expertise it takes to illegally torrent copyrighted material. So ACS:Law knows very well that the only folks naive enough to fall for their threats are not capable of doing what they are accusing them of. And that, my friends, smells a whole lot like cyber-bullying to me.

Meanwhile we have this dubious report by the International Federation of the Phonographic Industry (IFPI) [Note: Web of Trust (WoT) rates this site BAD in vendor reliability and privacy so be careful if you follow this link] that claims to provide a basis for such egregious behavior by the copyright gestapo. This article in Sonic State reports it like so.

The IFPI report that 95% of all music downloads are illegal – and they say that “cooperation from Internet Service Providers holds the key to this problem.”

The IFPI made the announcement as part of their Digital Music Report 2009:

Piracy is the major barrier to growth of the legitimate digital music sector and is causing severe damage to local music industries around the world.

Three of the world’s biggest music markets, all heavily dependent on local repertoire – France, Spain and Brazil – have seen a sharp slump in the fortunes of their local music industries:

• In Spain, which has one of the highest rates of illegal file-sharing in Europe, sales by local artists in the top 50 have fallen by an estimated 65% between 2004 and 2009;
• France, where a quarter of the internet population downloads illegally, has seen local artist album releases fall by 60% between 2003 and 2009;
• In Brazil, full priced major label local album releases from the five largest music companies in 2008 were down 80% from their 2005 level.

The report shows that, while the music industry has increased its digital revenues by 940% since 2004, piracy has been the major factor behind the overall global market decline of around 30% in the same period.

Okay… So let me get this straight. All of the music purchased and downloaded from iTunes, Amazon, eMusic, Walmart, Napster and Rhapsody plus all of the smaller independent music label sites like Matador Records and individual artist sites together make up only 5% of music downloads? And that 25% of the internet population of France downloads illegally? And this is what is responsible for the 80% drop in full priced major label local album releases in Brazil? I don’t know what those IFPI guys have been smoking but they’d sure have a better chance of convincing me if I had some too. I mean seriously how would you find out that a quarter of the internet population downloads illegally in France and how can you correlate that to local artist album releases fall by 60% between 2003 and 2009. Hello! This is the internet. It’s everywhere. Like lint. And the copyright gestapo. What’s worse is that these bozos (or is that beau zauxs) are trying to convince ISPs that they should collude with the copyright gestapo. And the really sad thing is that some ISPs are going to buy into this nonsense. Let’s be clear here. I sympathize with the musicians who have seen sales of their albums decline. And I also sympathize with their unemployed fans who can no longer afford to buy music. What I don’t sympathize with is the copyright gestapo and their cyber-bullying.

Doing the copyright limbo

Just when you think that the self-appointed copyright Gestapo can’t sink any lower they kick the old limbo stick down another notch. Now before you jump to the conclusion that I’m one of those “content wants to be free” activists, rest assured that I am not. All of my career has been spent as a code monkey writing software for somebody else (as a “work made for hire” in copyright lingo). And trust me, I’m all about getting paid. Which doesn’t happen if my employer goes broke because their products were pirated. I’m also a musician who composes and records original material. Now my attitude towards copyright protection is quite a bit different with my music because, as Cory Doctorow says in the forward material to his latest book Makers [you can download the e-book  here for free] my problem isn’t piracy, it’s obscurity. But what about that piracy notion? I just said that I won’t get paid if my employer goes broke because their products were pirated. Well guess what? That has never happened. Not to me. Not to anyone. In short, I’m not opposed to copyright or copyright enforcement.

What I am opposed to, and baffled by, is a business model that comes down to “we aren’t selling as much of our stuff as we want, so we will go after people who are pirating it.” The most recent episode in this ridiculous jihad against customers is reported by Cory Doctorow in boingboing.

The MPAA has successfully shut down an entire town’s municipal WiFi because a single user was found to be downloading a copyrighted movie. Rather than being embarrassed by this gross example of collective punishment (a practice outlawed in the Geneva conventions) against Coshocton, OH, the MPAA’s spokeslizard took the opportunity to cry poor (even though the studios are bringing in record box-office and aftermarket receipts).

That’s right, the entire public WiFi net of Coshocton, OH. The same net that is used by Coshocton County Sheriff’s deputies to complete a traffic or incident report without leaving their vehicle. The same net that out-of-town business people can park and use their laptops to make connections. The very same net that during festival times, vendors use to check the status of credit cards being used to make purchases. And the same net that has a single address used by many people, so it’s difficult to tell who made the illegal download (although the county plans to investigate the matter).

Great job MPAA! Way to look out for your own financial interests in blatant disregard for the interests of everyone else. So what exactly have the MPAA clowns (I love Cory’s reference to the MPAA’s spokeslizard) accomplished here. Several things come to mind:

1. Users of Coshocton public WiFi will likely never download another pirated movie again… without going through TOR.
2. Users of Coshocton public WiFi will likely never purchase any movie ever again.

As I said before, I’m not a fan of pirating movies. Quite frankly there is so much stuff legitimately available for free or incredibly cheap that I can’t begin to consume everything I might be interested in. But in addition, I can’t for the life of me see how alienating your customers because somebody downloaded a movie and allegedly deprived you of $10 or less (assuming of course that the perp would have actually paid for it anyway) makes any sense at all. What I can say is that cheesy stunts like this almost make me want to fire up bit torrent and snag some episodes of Desperate Housewives. Just on principle. That and I’ve never seen Desperate Housewives. But I can get it from Netflix way easier. And I don’t have to use TOR. But believe me, I’m not going to purchase any movie or TV show. Not now. Not ever.

Is suing your customers for fun and profit unconstitutional?

The entertainment industry has always baffled me. That’s probably why I never became a pop star. Well that and lack of talent. Actually, I understand the entertainment part of the industry, it’s the copyright policing groups like the Recording Industry Association of America (RIAA) that confuse me. This group is infamous for their Gestapo-esque tactics including lawsuits against file-sharing teens who pirate copyrighted content. The rationale goes something like this. Actually, exactly like this. I quote the RIAA:

It’s commonly known as piracy, but it’s a too benign term that doesn’t even begin to adequately describe the toll that music theft takes on the many artists, songwriters, musicians, record label employees and others whose hard work and great talent make music possible.

Music theft can take various forms: individuals who illegally upload or download music online, online companies who build businesses based on theft and encourage users to break the law, or criminals manufacturing mass numbers of counterfeit CDs for sale on street corners, in flea markets or at retail stores. Across the board, this theft has hurt the music community, with thousands of layoffs, songwriters out of work and new artists having a harder time getting signed and breaking into the business.

One credible analysis by the Institute for Policy Innovation concludes that global music piracy causes $12.5 billion of economic losses every year, 71,060 U.S. jobs lost, a loss of $2.7 billion in workers’ earnings, and a loss of $422 million in tax revenues, $291 million in personal income tax and $131 million in lost corporate income and production taxes.  For copies of the report, please visit www.ipi.org.

And so the gallant RIAA ventures forth to sue those scoundrels into submission. Thereby, no doubt, recouping some of the $12 billion pilfered. In what universe does this make any sense? Our customers aren’t buying our products because our business model sucks, so we sue them. You bet.

Yeah, but if you were one of those poor starving musicians who are championed by the RIAA you might have a different opinion. Might I? Let me tell you pilgrim, I am one of those poor starving musicians (well a poor musician at any rate) and like many of my more talented and famous peers, such as David Draiman and Janis Ian, I get nothing from the RIAA. Except severe gluteous maximus irritation. I think David Draiman summed it up pretty well in an interview with the San Francisco Chronicle.

“This is not rocket science–instead of spending all this money litigating against kids who are the people they’re trying to sell things to in the first place, they have to learn how to effectively use the Internet.” Draiman asserts that the actions taken by the Recording Industry Association of America (RIAA) are protecting corporate profits, not artists: “For the artists, my ass…I didn’t ask them to protect me, and I don’t want their protection.”

So is this going to be another interminable, pointless rant about the RIAA? Fortunately, no. It’s not.

Finally a breath of fresh sanity stands against the RIAA legal juggernaut.  A Harvard law professor, Charles Nesson, along with two third year law students have hit back hard on the RIAA’s efforts in a court filing, where it’s noted that the very basis for many of the RIAA’s lawsuits is very likely unconstitutional.

Imagine a statute which, in the name of deterrence, provides for a $750 fine for each mile-per-hour that a driver exceeds the speed limit, with the fine escalating to $150,000 per mile over the limit if the driver knew he or she was speeding. Imagine that the fines are not publicized, and most drivers do not know they exist. Imagine that enforcement of the fines is put in the hands of a private, self-interested police force, that has no political accountability, that can pursue any defendant it chooses at its own whim, that can accept or reject payoffs in exchange for not prosecuting the tickets, and that pockets for itself all payoffs and fines. Imagine that a significant percentage of these fines were never contested, regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of whether they can prevail in front of an objective judicial body.

The RIAA intimidates and steamrolls accused infringers into settling before they have their day in court and before the courts can weigh the merits of their defenses. The inherent dangers in allowing a single interest group, desperate in the face of technological change, led by a voracious, cohesive, extraordinarily well-funded and deeply experienced legal team doing battle with pro se defendants, armed with a statute written by them and lobbied and quietly passed through a compliant congress, to march defendants through the federal courts to make examples out of them should lead this Court to say “stop.”

What can you add to that? Except So long, and thanks for all the fish. And you go Charles!

I am dizzy now

Increasing Piracy to Cause Rise in Cyber Crime article on DarkReading prompts me to grant the Security For All “Merry-Go-Round” award to Metaforic‘s CEO Andrew McLennan for most ergregious and creative spin to promote a product or service.

“Piracy is a persistent problem which continues to cost software vendors worldwide billions of pounds in lost revenue, as well as harming local resellers and putting a strain on research and development in the technology industry,” comments Metaforic’s CEO Andrew McLennan. “More worryingly, hackers are becoming increasingly sophisticated in their methods of attack. The issue of hacked software and compromised websites goes far beyond that of piracy and standard copyright infringements. It can – and has – led to an explosion in the number of cyber crimes, including the exploitation of personal data, delivering malicious payloads to user machines, the installation of spyware and even taking over a PC as part of a botnet for hosting illegal content, often unbeknown to the owner.”

Hold on! Stop the software presses! You mean that all we have to do is implement one of those annoying little soft key dongles on our software products and we can help prevent our PCs from becoming zombies in botnets? Not only that, but it would be a boon to the folks who manufacture USB hubs since we would need to plug those dongles in somewhere. I’m getting dizzy just thinking about it.

Seriously, I doubt that Mr. McLennan is suggesting that software publishers not implementing “Anti-tamper” technology is a main contributor to cyber-crime, or that all software should be using it (although he might fervently wish for it). But to suggest that software piracy and copyright infringement leads to any cyber-crime (other than software piracy itself being a cyber-crime) – much less an “explosion in the number of cyber crimes” is, well, just spin. Really wicked spin, but balderdash. Hogwash. Crapola.

I mean, I can definitely see where inferior knockoff, “pirated” hardware like fake Cisco equipment poses a real threat, but pirated software? Certainly large software manufacturers lose money due to piracy of their products, but “billions of pounds”? This sounds like the same kind of whining and creative valuation that the RIAA does for pirated music. The consumer (not the professional pirate organizations in China) who pirates copyright protected content would not have purchased it if they had to pay for it. So how can that be revenue lost? Charge these guys penalties for copyright violation when they get caught – sure. Or when they post copyrighted content to a torrent site – absolutely.  But how, exactly does “Anti-tamper” technology prevent any of this – much less mitigate any cyber-crime threat? I could go on to actually question the value of “Anti-tamper” technology period. But I won’t. I’ve been plenty snarky already.

Beside I’m just too dizzy.