Oh, say, can you see?

A conversation this morning on Twitter. From the mouths of babes:

@SLWorona:

Next: NSA cameras in all rooms of all homes streaming to government database that’s only accessed by warrant. Only gets the bad guys, right?

@Miz_Rosenberg:

Can I tell you, after the Newtown shootings this is exactly what my 10-yo nephew suggested?! The plan of a scared child.

@SLWorona:

Indeed, the home of the brave has become the home of the scared children.

/Steve/

Hello, 911? I’d like to report an emergency.

Fahrenheit 451 logoA variety of images flashed through my mind when I read this May 25 report from the UK:

Five Undercover Police Cars Sent To Arrest Single Alleged Movie Pirate

Police assisted by the Federation Against Copyright Theft showed up in large numbers to arrest an alleged movie pirate in the UK this week. Armed with an emergency search warrant issued out of hours by a judge, five undercover police vehicles containing detectives and FACT officers were deployed to arrest a 24-year-old said to have recorded the movie Fast and Furious 6.

Five undercover cars containing 10 police officers and officers from the Federation Against Copyright Theft arrived at a property in the West Midlands at 07:30 Thursday morning. The person they were looking for no longer lived at the address but in the space of 15 minutes three cars, four detectives and two FACT officers had made it to the correct location. Armed with an emergency search warrant issued out of hours by a judge, police and FACT officers entered the suspect’s home.

Ten police officers and five police cars? On a mission to rescue a pirated movie? Isn’t that a rip-off of Alice’s Restaurant?

I want to tell you about the town of Stockbridge, Massachusetts, where this happened here. They got three stop signs, two police officers, and one police car, but when we got to the Scene of the Crime there was five police officers and three police cars, being the biggest crime of the last fifty years, and everybody wanted to get in the newspaper story about it.

Then, again, the thought of a squad of police officers popping out of their cars, scampering around the wrong address, tipping their hats (this is Britain, after all), and scurrying off to a different house is a clear homage to the Keystone Kops.

Neither Arlo Guthrie nor Mack Sennett, though, capture what’s truly chilling about this story. You would think that an emergency after-hours order to deploy a platoon of scarce public-safety resources would be tied to a life-and-death situation: Terrorism. Hostages. Desperate criminals with explosives and assault weapons running rampant through a shopping mall or metro station. Sadly, the UK is not unfamiliar with such crises, including the brutal murder by extremists of British soldier Lee Rigby in London only one day earlier.

But no, this was a different kind of emergency. Her Majesty’s Police were dispatched not to protect the public from bombs or bullets but from an unauthorized copy of a movie.

Let that sink in. An unauthorized copy of a movie. A movie.

And so the most appropriate mental image here comes from Fahrenheit 451. In Ray Bradbury’s dystopian future, it’s illegal to possess books. When a suspected violation is reported, firemen speed off in a kerosene-spraying firetruck to destroy the house claimed to contain the books as well as any recalcitrant occupants.

In the U.S., the Copyright Police are already asking for the right to destroy suspect computers, networks, and data without the time-consuming and expensive requirement of first proving guilt. There’s no mention of arson, but perhaps they just haven’t yet read Bradbury.

/Steve/

On our wonderfully undemocratic Constitution

ben-franklin-on-liberty-and-security-05182009Since the Boston Marathon bombings, we’ve seen a succession of polls quantifying the public’s willingness to trade freedom for security. Depending on what reports you read, our neighbors would accept everything from ubiquitous government surveillance to torture if it meant avoiding the next attack.

Thanks to the foresight of the Founders, though, our civil rights don’t depend on simple majority votes. They’re embedded in the Constitution, codified with phrases like “Congress shall make no law” and “no person shall be held” and “the accused shall enjoy the right”. Escape clauses along the lines of “as long as Congress thinks it’s a good idea” or “unless a poll says the public feels otherwise” are conspicuously absent.

To the authors of our liberties, “witch hunt” was not a metaphor. They knew what fear could do to an otherwise rational community and designed what they hoped would be a terror-resistant superstructure for a free nation. Like Ulysses bound to the mast, they constrained themselves and their posterity from easily succumbing to the siren call of a risk-free life watched over by an all-powerful State.

And the sirens are out in full force. Michael Bloomberg says, “Our laws and our interpretation of the Constitution have to change.” Circuit Judge Richard Posner predicted, “The Court can and doubtless will adjust the balance between privacy and security to reflect the increase in long-run threats to the lives of Americans.” These voices provide the rationalization for the FBI as it rewrites the Fifth Amendment and soften us up for the revelation of routine government monitoring of all phone calls. We’ve lost sight of what MIT’s Jeff Schiller told Wired a full two years before the attacks of 9/11:

Police work is hard. It’s supposed to be hard. Where it’s easy we call it a police state.

Rather than Bloomberg and Posner, let us listen instead to people like security expert Bruce Schneier:

Terrorism isn’t primarily a crime against people or property. It’s a crime against our minds, using the deaths of innocents and destruction of property as accomplices. When we react from fear, when we change our laws and policies to make our country less open, the terrorists succeed, even if their attacks fail. But when we refuse to be terrorized, when we’re indomitable in the face of terror, the terrorists fail, even if their attacks succeed.

/Steve/

Trekkie Judge quotes Spock while sanctioning copyright trolls

VulcanSaluteThe decision, filed Monday, May 6, by California Federal Judge Otis D. Wright, II, begins:

“The needs of the many outweigh the needs of the few.” — Spock, Star Trek II: The Wrath of Khan (1982).

Plaintiffs have outmaneuvered the legal system. They’ve discovered the nexus of antiquated copyright laws, paralyzing social stigma, and unaffordable defense costs. And they exploit this anomaly by accusing individuals of illegally downloading a single pornographic video. Then they offer to settle — for a sum calculated to be just below the cost of a bare-bones defense. For these individuals, resistance is futile; most reluctantly pay rather than have their names associated with illegally downloading porn. So now, copyright laws originally designed to compensate starving artists, allow starving attorneys in this electronic-media era to plunder the citizenry.

Plaintiffs do have a right to assert their intellectual-property rights, so long as they do it right. But Plaintiffs’ filing of cases using the same boilerplate complaint against dozens of defendants raised the Court’s alert. It was when the Court realized Plaintiffs engaged their cloak of shell companies and fraud that the Court went to battlestations.

Who says legal writing is dull?

The judge engaged his battlestations explosively, imposing financial sanctions as well as referring the plaintiffs for investigation and action by state and federal bars, the U.S. Attorney in California, and the Criminal Investigation Division of the IRS. Judge Wright also took steps to distribute his judgment to all other courts in which the plaintiffs have pending cases.

In popular parlance, the plaintiffs phasered by Judge Wright go by “Prenda Law”, to which Google responds with 155,000 hits. Busy guys. Excellent summaries of the case — which has been going on, in one form or another, for years — are available from Mike Masnick at Techdirt and Ken White at Popehat.

I covered a similar New York case about a year ago under the headline “Judge tells copyright trolls they came to the wrong court for help with their shakedown racket”. In the current case, Judge Wright characterized the trolls in his court as a Racketeering Influenced Corrupt Organization (RICO). In last year’s New York case, the judge concluded “The plaintiffs … simply have used the Court and its subpoena powers to obtain sufficient information to shake down the John Does.” Whether shakedown on the East Coast or RICO on the West, the game is the same. Trolls are like tribbles: When you see one, you’ve seen ‘em all.

Judge Wright’s Star Trek references are energizing the Net, but he does not go where no man has gone before. Late last year, during oral arguments in the recently decided ReDigi case, Judge Richard J. Sullivan reached for a Star Trek metaphor:

I guess [ReDigi is] saying it’s not a copy, right? They’re saying that [the actual file] it’s transported from one place to another, … I’m not a Trekkie, but I kept thinking it’s the difference from Captain Kirk going from the Enterprise to the planet through that transporter thing, where he’s not duplicated, to the cloning where there’s a good and a bad Captain Kirk where they’re both running around. I think one is a copy and the other is — the other was transported and it’s only one Captain Kirk.

By his use of “that transporter thing”, judge Sullivan renders unnecessary his “not a Trekkie” disclaimer. Judge Wright, on the other hand, does seem to be a member of the tribe. He refers, for example, to a relatively unimportant member of the plaintiffs’ legal team as “just a redshirt”, which many feel may break new judicio-linguistic ground. Wright’s order is also peppered with a number of “enterprise” instances, as well as some subtly placed shields and assimilations.

We’ll give Judge Wright the last word. In making his RICO comment, he writes, “Though Plaintiffs boldly probe the outskirts of law, the only enterprise they resemble is RICO. The federal agency eleven decks up [that is, the U.S. Attorney's Office] is familiar with their prime directive and will gladly refit them for their next voyage.”

Live long and prosper, Judge Wright.

/Steve/

Piracy as cheap market research

Name Your PoisonThis BGR headline from Thursday May 2 caught my eye:

Netflix content chief says piracy drops whenever Netflix launches in new markets

Entrepreneurs take note: You could base a lot of successful businesses on those dozen words.

The content chief in the headline is Ted Sarandos, who says,

The best way to combat piracy isn’t legislatively or criminally but by giving good options.

He thus echoes Bob Iger, CEO of Walt Disney, who said,

The best way to combat piracy is to bring content to market on a well-timed, well-priced basis.

Must be a trend!

Of course, Iger made his comment over 6 years ago, so the lesson is taking a while to sink in.

Do you wonder why? I do. I wonder why it is that, in the words of Cory Doctorow, every few years the public must drag the entertainment industry, kicking and screaming, to the money tree, and shake it for them. And I have a theory.

I chalk it up to copyright law. Our baroque (not to mention ba-roken) copyright system fosters a monopoly mindset in the content cartel. When the government defines competition as “infringement”, you view your competitors as well as their customers as law-breakers. You sue them, and you spend your money lobbying the government for even stronger laws to protect your struggling business model.

But if your business is based on competition, rather than monopoly, you figure out what your customers want and you find a way to give it to them. If another company already has their business, you design your product or your price or your service to be more desirable than the alternative. Netflix appears to have a winning combination, at least when compared with BitTorrent, and Sarandos has discovered free enterprise.

Another example comes from the current controversy over Aereo. Aereo deploys thousands of tiny antennas to capture free broadcast television signals and retransmits those signals over the Internet to subscribers. The Aereo technology and business model are designed to squeeze through copyright’s byzantine intricacies, and last month a court decided they had succeeded. The broadcasters who challenged Aereo and lost vowed to keep fighting. They also threatened to get out of the broadcast-TV business if the courts continued to side with Aereo. News Corp., the parent company of the FOX network, put it this way:

We believe that Aereo is pirating our broadcast signal. We will continue to aggressively pursue our rights in the courts, as well as pursue all relevant political avenues, and we believe we will prevail. That said, we won’t just sit idle and allow our content to be actively stolen. We have no choice but to develop business solutions that ensure we continue to remain in the driver’s seat of our own destiny. One option could be converting the FOX broadcast network to a pay channel.

Rights and courts, political avenues and driver’s seats: The monopolist mind at work.

For a different approach, here’s Time Warner CEO Glenn Britt, whose business is also impacted by Aereo:

What Aereo is doing to bring broadcast signals to its customers is interesting. If it’s found legal, we could conceivably use similar technology.

The difference couldn’t be clearer, could it?

/Steve/

Guild: A medieval association

guild-logo1A few weeks ago, the Supreme Court issued a decision that’s good for garage sales and flea markets but (if Scott Turow is to be believed) will bring about “The Slow Death of the American Author“. Turow is president of the Authors Guild, an 8,000-member club that calls itself “the nation’s leading advocate for writers’ interests in effective copyright protection, fair contracts and free expression”. He’s also a practicing attorney and a best-selling (that is, rich) author of nearly a dozen books with over 25 million copies in print. Oh, and half a dozen movie adaptations. (Did I say rich?)

Turow issued his anticipatory autopsy in an April 7 New York Times OpEd piece commenting on Kirtsaeng v Wiley. The defendant in the case, Supap Kirtsaeng, made a small fortune following the mantra of free-market capitalism: Buy low, sell high. For Kirtsaeng, low was the retail price in Thailand for English-language college textbooks whose U.S. price was (no surprise to any student) high. Very high. Kirtsaeng’s family in Thailand purchased the books and shipped them to the U.S. where he sold them on eBay. The textbook publisher, John Wiley & Sons, claimed this particular example of entrepreneurship violated their copyright. The Supreme Court sided with Kirtsaeng, holding that the “First Sale” principle trumped Wiley’s claims. First Sale says that, once you’ve legally purchased a book, it’s yours to dispose of as you like: Keep it, lend it, rent it, sell it, burn it, whatever. You bought it, you own it.

Turow uses the Kirtsaeng victory as a launching pad into a universe of mortal grievances felt by his members. His OpEd is rife with errors of fact and analysis, which many articles have documented in great detail. He’s wrong about the Constitution (the Founders didn’t “instruct Congress to protect” the livelihood of authors), wrong about publishing (more books are being written and read today than ever), and wrong about economics (ask the bottled-water industry about competing against free alternatives). For in-depth rebuttals on these items and others, see (for example) Mike Masnick in Techdirt, Jeremy Greenfield in Forbes, and Barry Eisler and Joe Konrath in Joe’s Blog.

I want to focus here on what I find to be one of Turow’s most outrageous ideas, especially insidious because it’s unstated and yet pervasive. It’s the implicit presumption that, once an author has produced a book, he or she is entitled to some sort of payment from every person who comes in contact with that book for the rest of time. This can be seen as the exact inverse of the First Sale principle, and so it’s easy to understand why Turow finds the Kirtsaeng decision so troublesome.

Turow gives us three clear examples of this expansive view of authors’ rights:

  1. The used book market. Turow laments “the enormous domestic market for secondhand books” and notes that “authors won’t get royalties” from the sales of imported books now okayed by the Supreme Court. Of course, each book sold on the secondary market has already been purchased somewhere, with royalties paid at that time. Apparently that’s not enough for Turow, who implies that authors are owed a cut of the purchase price each time a book changes hands. Let’s think about applying that idea to the used-car market the next time you’re ready for a trade-in. Or if that’s too corporate an example, how about the hand-made guitar or the craft-store jewelry you bought 15 years ago and no longer use. Why don’t those artisans have a claim on all future transactions involving their creations?
  2. Libraries. Turow tells us that libraries, too, are part of what’s killing the American author. “No one calls our public library system socialistic,” Turow says (thereby calling it socialistic), “though it involves free distribution of the goods authors produce.” Now, wait just a second: The libraries purchased those goods, generating author royalties along the way. True, authors would undoubtedly be happier if everyone who wanted to read a book were forced to buy one rather than borrowing it from the library, but General Motors would probably sell more cars if there were no taxicabs or ride-share stations or rental-car agencies, not to mention buses and subway systems. Turow’s implication that it’s an unfair misappropriation of authors’ just rewards to get multiple uses from a single purchase escapes gales of laughter only because he buries it between the lines. And as to Socialism, Turow is conveying the subliminal message that libraries are un-American. Time for a history lesson: More than 50 years before the Constitution gave Congress the power to grant copyright protection to authors, Ben Franklin started the first lending library. And no one’s more American than Ben Franklin. Now, if you’re looking for something un-American, you can’t find a more profound affront to capitalism than copyright, whose sole purpose is to eliminate competition by means of a government-enforced monopoly.
  3. Google. Turow’s unhappiness with Google knows no bounds, and his complaints are thoroughly debunked in the articles cited above. Here I want to discuss Turow’s objection to Google’s basic business model, generating advertising dollars out of an unrivaled ability to find and display content from all over the Web. To Turow, what’s illegitimate is doing this “while sharing none of the revenue with the author or the publisher”. Turow has it backwards, of course. The real question is why Google provides its services at no charge to content creators, including Turow and all the other authors, vastly increasing their visibility and accessibility to the public for free. Here are two notes of irony: In writing this article, the easiest way for me to find Turow’s New York Times piece was through Google. I suspect I’m not alone, and I’d be surprised if Turow himself hasn’t once or twice directed people to his article by telling them “Google Turow OpEd”. Irony #2: The online New York Times page with Turow’s article has ads, some inserted by Google-provided technology. Nearly all of that ad revenue goes to the Times. None, I suspect, goes to Turow.

Digital communications and the Internet have required the reinvention of jobs, businesses, and business models of every kind. While the monopoly granted by copyright law has provided a temporary buffer against change for a few industries and workers, the grace period is waning. Turow may believe he can insist that the coming change be on his terms, but he is wrong. For all its errors, Turow’s slow-death analysis should remind his membership of the lesson taught by Darwin: Adapt or die.

/Steve/

Pat pirouettes on privacy (or maybe not)

[See below for Pat Leahy's response to the CNET article cited here and for the follow-up CNET article.]

Only hours after the Republican Study Committee retracted a highly praised report on Copyright reform, Vermont Senator Pat Leahy has done them one better. He has taken a bill intended to limit government surveillance of your Internet activity and morphed it into one that gives you even less online privacy than you have now.

Consider these two headlines:

The first one appeared yesterday in The St. Albans Messenger (“Vermont’s oldest evening newspaper”) and begins:

A bill to protect privacy online written by U.S. Sen. Patrick Leahy, D-Vt., will be taken up by the Senate Judiciary Committee when Congress returns from recess next week. The bill would require law enforcement to obtain a warrant, and thus show probable cause, before gaining access to a person’s email, Facebook messages or other online communications.

The second, reported today by Declan McCullagh in CNET News, provides quite a different version:

A Senate proposal touted as protecting Americans’ e-mail privacy has been quietly rewritten, giving government agencies more surveillance power than they possess under current law. CNET has learned that Patrick Leahy, the influential Democratic chairman of the Senate Judiciary committee, has dramatically reshaped his legislation in response to law enforcement concerns. A vote on his bill, which now authorizes warrantless access to Americans’ e-mail, is scheduled for next week.

McCullagh includes text of the revised bill, which grants warrantless surveillance privileges to any “independent regulatory agency” defined in federal code. Here’s that section of code:

Board of Governors of the Federal Reserve System, the Commodity Futures Trading Commission, the Consumer Product Safety Commission, the Federal Communications Commission, the Federal Deposit Insurance Corporation, the Federal Energy Regulatory Commission, the Federal Housing Finance Agency, the Federal Maritime Commission, the Federal Trade Commission, the Interstate Commerce Commission, the Mine Enforcement Safety and Health Review Commission, the National Labor Relations Board, the Nuclear Regulatory Commission, the Occupational Safety and Health Review Commission, the Postal Regulatory Commission, the Securities and Exchange Commission, the Bureau of Consumer Financial Protection, the Office of Financial Research, Office of the Comptroller of the Currency, and any other similar agency designated by statute as a Federal independent regulatory agency or commission.

The Federal Maritime Commission? Mine Enforcement Safety and Health? The Postal Regulatory Commission? OSHA?

Apparently Washington isn’t as gridlocked as we’ve heard, at least not when a sufficiently powerful force weighs in. In this case, the powerful force is Big Brother, who’s unhappy about limits on his ability to spy on the rest of the family.

Update from the ever-vigilant Mike Masnick over at Techdirt:

There’s some debate over how serious this proposal was. A new report claims that this amendment wasn’t likely to be seriously considered, even though it does exist. Declan McCullagh is standing by his story, and saying that the claim that this amendment won’t be seriously considered is in response to the public outcry about it.

And here is Pat Leahy’s response:

The rumors about warrant exceptions being added to ECPA are incorrect. Many have come forward with ideas for discussion before markup resumes on my bill to strengthen privacy protections under ECPA. As normally happens in the legislative process, these ideas are being circulated for discussion. One of them, having to do with a warrant exception, is one that I have not supported and do not support. The whole thrust of my bill is to remedy the erosion of the public’s privacy rights under the rapid advances of technology that we have seen since ECPA was first enacted thirty years ago. In particular, my proposal would require search warrants for government access to email stored by third-party service providers – something that of course was not contemplated three decades ago.

And perhaps this is the last word, from Declan McCullagh:

Leahy scuttles his warrantless e-mail surveillance bill

After public criticism of proposal that lets government agencies warrantlessly access Americans’ e-mail, Sen. Patrick Leahy says he will “not support” such an idea at next week’s vote.

The vote is still scheduled for next week. Let’s see what the bill says and who votes how.

/Steve/