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.


GOP gaffe on copyright reform corrected in record time

As Michael Kinsley tells us, a “gaffe” is what we call it when a politician tells the truth. A couple of days ago, the Republican Study Committee committed some truth in a widely praised position paper called Three Myths about Copyright Law and Where to Start to Fix It. In that paper, author Derek S. Khanna argues for such level-headed changes as:

  • Statutory damages reform
  • Expand fair use
  • Punish false copyright claims
  • Heavily limit the terms for copyright, and create disincentives for renewal

Well, as we also know, no good deed goes unpunished. In less time than it takes to say “Boston Strangler”, the RIAA and MPAA check-writers convinced the Republican Study Committee that the paper escaped “without adequate review” (that is, without review by the RIAA and MPAA). The RSC link to the paper now connects to a blank page, but you can find the original report here and here. For excellent summaries of the report, see Mike Masnick’s original Techdirt article and Peter Brantley’s blog for Publishers Weekly.


Why is the RIAA like a drunk under a lamppost?

You know the joke, right? A man sees his friend, obviously drunk, on hands and knees under a lamppost and asks what he’s doing. “I lost my car keys,” answers the souse. The man looks around and says, “Isn’t that your car down the block? Why aren’t you looking there?” And the drunk replies, “Because the light is better here.”

For years, the RIAA has been telling us that the Internet is destroying the music business. For a long time it was P2P file sharing. More recently the menace is the cloud and bit lockers. To combat the online enemy, they’ve sued deceased grandmothers, distributed spyware-laced CDs, arm-twisted Congress for ill-conceived legislation, and enlisted ISPs in a massive program of extra-legal coercion. Like a moth to the flame, the RIAA has been besotted by the Internet lamppost, and yet their own statistics point in a totally different direction.

A few days ago, TorrentFreak wrote about a leaked internal RIAA confidential report from NPD that contained this analysis of music acquisition:

You have to be pretty drunk to miss the sobering implications:

  • In just one year, the P2P problem decreased from 21% to 15%, which is a reduction of more than one-fourth. Someone should be firing off skyrockets and celebrating success.
  • While unpaid distribution through bit lockers increased from 2010 to 2011, the total unpaid Internet-based percentage still declined from 24% to 19%. Again, if the goal is to defeat the Internet, someone’s doing something right.
  • But the elephant in the room — apparently not pink, or the RIAA might see it — is that unpaid music acquisition has relatively little to do with the Internet. The categories of unpaid distribution based on in-person exchanges dwarfs online activity by more than a factor of two, and the disparity is increasing (44% vs 24% in 2010 and 46% vs 19% in 2011).

As ITworld said, “If you want to blame someone outside the music industry for its demise, you might as well blame mix tapes.” And this is hardly a new development: In 2007, the New York Times reported another NPD study attributing 37% of all music consumption to social ripping and burning among friends. The technology disrupting the legacy music business isn’t broadband, it’s flashdrives.

Of course, the real answer to the music industry’s woes is a new business model, one based not on monopoly and artificial scarcity, but on the public’s love of music and their willingness to pay reasonable prices for quality content conveniently delivered. There’s no shortage of articles and studies supporting this idea and explaining how it’s already happening. My favorite is The Sky Is Rising!, by Michael Masnick and Michael Ho.

Unfortunately, the RIAA shows no interest in sobriety, refusing all advice and all offers of treatment. Look for them under a lamppost near you.


Judge tells copyright trolls they came to the wrong court for help with their shakedown racket

There’s an excellent item over at Ars Technica about New York Federal Judge Gary R. Brown, who’s refusing to assist copyright trolls with their shakedown racket. The story is also covered by TorrentFreak, where you’ll find a handy copy of the judge’s full decision.

The trolls’ scam is a simple 3-step process:

  1. Obtain the IP addresses (typically from a BitTorrent swarm) associated with one or more video downloads.
  2. File a “John Doe” court action to obtain the identities of the subscribers associated with those IPs.
  3. Send e-mails threatening to sue but offering to settle for a few thousand dollars. Mention in passing that violating U.S. copyright law carries a penalty of up to $150,000 per infringement. Provide a link to a convenient Web site that accepts all major credit cards.

Then sit back and let the “settlements” roll in. Even Tony Soprano might be embarrassed to run such a brazenly lazy operation, but intellectual property brings out the worst in human nature. If this all sounds familiar, you’re right: The RIAA pioneered the concept years ago with its “early settlement letters” to colleges and universities, but apparently failed to patent the idea. (Perhaps they were concerned about a prior-art claim from the Mafia.)

Like spam e-mail from the Nigerian embassy or your friend stranded in Nicaragua, the scheme works by aiming at a large number of targets with an extremely low unit cost and a relatively high per-hit payoff. Even if only a tiny percentage of shots score, the return-on-investment is enormous.

The extra wrinkle here is that the infringements involve downloads of pornographic videos with names like Gang Bang Virgins and My Little Panties #2. As Judge Brown observed, this “gives rise to the potential for coercing unjust settlements from innocent defendants such as individuals who want to avoid the embarrassment of having their names publicly associated” with such titles. Again, this may sound familiar: The idea had its origins in an Internet urban legend that goes back 15 years or more. As summarized by Snopes:

A company takes out a newspaper advertisement claiming to be able to supply imported hard core pornographic videos. As their prices seem reasonable, people place orders and make payments via cheque.

After several weeks, the company writes back explaining that under the present law they are unable to supply the materials and do not wish to be prosecuted. So they return their customers’ money in the form of a company cheque. However, due to the name of the company, few people ever bother to present these to their banks.

The name of the company is: ‘The Anal Sex and Fetish Perversion Company”.

As Snopes points out, you might also have heard the idea discussed in the 1998 movie Lock, Stock & Two Smoking Barrels. (We couldn’t leave the MPAA out of the story, could we?)

Judge Brown enters the picture at Step 2 above, where the trolls ask the court to order the relevant ISPs to reveal the identity of their subscribers. After exhaustive hearings, Brown instead finds and describes “abusive litigation tactics” on the part of the plaintiffs. The abuses go beyond coercion arising from the salacious video titles. For example, by bringing a small number of cases each asking for the identities of dozens of John Does, the plaintiffs inappropriately avoided tens of thousands of dollars in filing fees, with national implications:

In the four cases before this Court, plaintiffs have improperly avoided more than $25,000 in filing fees by employing its swarm joinder theory. Considering all the cases filed by just these three plaintiffs in this district, more than $100,000 in filing fees have been evaded. If the reported estimates that hundreds of thousands of such defendants have been sued nationwide, plaintiffs in similar actions may be evading millions of dollars in filing fees annually. Nationwide, these plaintiffs have availed themselves of the resources of the court system on a scale rarely seen. It seems improper that they should profit without paying statutorily required fees.

More to the point, based on a variety of details in this and other cases involving the same plaintiffs, Judge Brown expressed skepticism that the trolls had any interest in actual litigation against the defendants, casting the entire enterprise in a different light:

This course of conduct indicates that the plaintiffs have used the offices of the Court as an inexpensive means to gain the Doe defendants’ personal information and coerce payment from them. The plaintiffs seemingly have no interest in actually litigating the cases, but rather simply have used the Court and its subpoena powers to obtain sufficient information to shake down the John Does.

Judicial decorum probably kept the judge from referring to the plaintiffs as trolls, but “shakedown” makes the point nicely.

The best part of Judge Brown’s decision is his analysis of the relationship between an IP address, the subscriber associated with that IP address, and the person who may or may not have committed copyright infringement. The trolls assert that the subscriber is the downloader, but Judge Brown cites an estimate that “30% of the names turned over by ISPs are not those of individuals who actually downloaded or shared copyrighted material”. Looking at the defendants in the current case, he details example after example where the subscriber was almost certainly not the downloader. My favorite:

John Doe #29’s counsel represents that his client is an octogenarian with neither the wherewithal nor the interest in using BitTorrent to download Gang Bang Virgins.

And here’s Judge Brown’s money quote:

It is no more likely that the subscriber to an IP address carried out a particular computer function than to say an individual who pays the telephone bill made a specific telephone call.

Well said, Your Honor.


In the world of copyright math, 1+1=1

For years, the RIAA and MPAA have been telling us that Internet “piracy” is destroying their industries. Instead of innovating, instead of developing new business models based on clear customer preferences, the content cartel turns the volume up to 11, screams “You can’t compete with free!”, and demands ever more repressive government control of the Internet.

Nowhere have their efforts been more successful than in France, which in 2009 adopted the HADOPI law, creating a “graduated response” or “3-strikes” system to deal with repeat infringement claims. IPSs are required to suspend service to non-compliant subscribers, and a blacklist prevents such subscribers from obtaining Internet service elsewhere. We now have a report announcing that, after only 17 months of operation, HADOPI has reduced Internet piracy in France by 50%.

Zut alors!

By logic and arithmetic, we should now expect the French music and movie companies to be flush with euros and celebrating the massive return of their lost customers. But, in fact, revenues for the French movie industry were down 2.7% in 2011, and the music business declined even more, by 3.9%.

No one who doesn’t work for Hollywood or the record labels should be surprised. Even members of Congress should be able to understand the implications. As we learned from Rob Reid’s brilliant 5-minute TED Talk “Copyright Math: The $8 billion iPod”, numbers don’t add up in Copyright-Land the way they do here in the real world.

5 years ago, Bog Iger, the CEO of Walt Disney, said, “The best way to combat piracy is to bring content to market on a well-timed, well-priced basis.” The report from France provides further proof that he was right. Or, to put it another way, if people don’t think your product is worth the price you’re charging, they won’t buy it.


Can’t we just get along? Czech file-sharing site reaches out to music industry

News comes from the Czech Republic about a remarkably civil discussion between the operator of a file-sharing Web site and a representative of the music industry.

Ulož.to is the Web site, operated by Jan Karabina. They’ve been threatened with legal action by the Czech branch of IFPI, the International Federation of the Phonographic Industry, for “abetting illegal downloading”. While the Web site doesn’t proactively check whether their users are engaging in copyright infringement, they do comply with the Czech version of the DMCA, which requires removal of material on request of the copyright holder.

The online music market hasn’t yet taken off in the Czech Republic, but the industry realizes it needs to. More important, they seem willing to drop their “piracy” fixation:

Digital music accounted for only 12 percent of all music sales last year, but the rapid growth has been noticed by large distribution companies and independent artists alike, and both are increasingly willing to forego pressed CDs for digital-only sales, and are gradually less apprehensive about piracy.

And so a few days ago, Ulož.to approached IFPI to discuss selling music on the site. In a concession to reality that’s unusual on this side of the Atlantic, Czech IFPI Director Petra Žikovská says she welcomes such discussions:

“Digital music is the future of the music industry — if it has a future at all.”

Artists also recognize the net-plus value of digital. Nironic, an American performer who lives in the Czech Republic and whose songs have been “illegally downloaded thousands of times”, says:

“With the power of digital music, you can reach a much broader base of fans than you can with a pressed CD. When you go digital, you can compete at the bare market value because you can price your music in a way that is very competitive but still beneficial for you as an artist.”

On the other side, site operator Karabina knows the secret of competing with free:

“If an adequate supply of legal content is available, people will have no reason not to buy it. The future lies in systemic change, but the question is how long we will have to wait for it.”

That strangely familiar music you’re hearing? It’s Kumbaya.


Content industry promotes conservation by recycling old news stories about ISPs acting as copyright cops

Today’s news brings this item via CNet:

RIAA chief: ISPs to start policing copyright by July 12

The country’s largest Internet service providers haven’t given up on the idea of becoming copyright cops.

Last July, Comcast, Cablevision, Verizon, and Time Warner Cable and other bandwidth providers announced that they had agreed to adopt policies designed to discourage customers from pirating music, movies and software over the Web. Since then, the ISPs have been very quiet about their antipiracy measures.

But during a panel discussion here at a gathering of U.S. publishers, Cary Sherman, CEO of the Recording Industry Association of America, said most of the participating ISPs are on track to begin implementing the program by July 12.

The reference to “last July” harks back to the previous announcement about a deal between ISPs and the content industry:

Top ISPs agree to become copyright cops

Some of the top ISPs, including Comcast, Cablevision, Verizon, and Time Warner Cable, have officially agreed to step up efforts to protect the rights of copyright owners, a move first reported last month by CNET.

Leaders from the movie, television, music and Internet service provider communities today announced a landmark agreement on a common framework for “Copyright Alerts”. Copyright Alerts “will educate and notify Internet subscribers when their Internet service accounts possibly are being misused for online content theft. This voluntary landmark collaboration will educate subscribers about content theft on their Internet accounts, benefiting consumers and copyright holders alike.”

The Recording Industry Association of America (RIAA) and Motion Picture Association of America (MPAA), the respective trade groups for the four major record companies and six top Hollywood film studios, have labored for years to persuade ISPs to take a tougher antipiracy position. The RIAA, led by CEO Mitch Bainwol, said in December 2008 that the group would cease filing lawsuits against individual file sharers and would instead enlist the help of the large bandwidth providers. These companies are recognized as some of the Web’s most powerful gatekeepers. It took nearly three years to convince the ISPs to agree.

See the comment about 2008? Here’s that news item:

Music Industry to Abandon Mass Suits

After years of suing thousands of people for allegedly stealing music via the Internet, the recording industry is set to drop its legal assault as it searches for more effective ways to combat online music piracy.

Instead, the Recording Industry Association of America said it plans to try an approach that relies on the cooperation of Internet-service providers. The trade group said it has hashed out preliminary agreements with major ISPs under which it will send an email to the provider when it finds a provider’s customers making music available online for others to take.

Depending on the agreement, the ISP will either forward the note to customers, or alert customers that they appear to be uploading music illegally, and ask them to stop. If the customers continue the file-sharing, they will get one or two more emails, perhaps accompanied by slower service from the provider. Finally, the ISP may cut off their access altogether.

Let’s take one more stop in our journey down memory lane, this time to January, 2004:

ISPs Ignore RIAA’s New P2P Ploy

After an appeals court ruled that Internet service providers (ISPs) do not have to hand over names of suspected music pirates to the Recording Industry Association of America (RIAA), ISPs are showing no interest in the RIAA’s latest effort to enlist them in its fight against music piracy.

The RIAA now wants ISPs to notify its customers that are suspected of illegal downloading but not yet targeted for a lawsuit by the music industry.

“We would like to work with you to supplement our efforts by arranging for ISPs to notify their subscribers who are engaged in infringing activity that this conduct is illegal,” the RIAA wrote to most of the nation’s 50 largest ISPs in a Dec. 16 letter. “We are asking you to do this without providing us any identifying information about the subscriber.”

Under the proposal, the RIAA would supply an identifying IP address of a suspected infringer to its ISP, which would then send a notice of infringement to the subscriber.

According to industry officials contacted by internetnews.com, not one ISP has agreed to cooperate with the music industry.

A sample of some other headlines that have appeared along the way:

So the content industry and Internet providers are not exactly natural allies. When the RIAA announced its new strategy in 2008, I noted:

After 5 years and 35,000 lawsuits, the music industry has apparently figured out that it’s neither cost-effective nor good business to pick fights with your customers. Instead, the RIAA wants ISPs to pick fights with their customers.

In that same article I described a variety of legal and technical problems ISPs will encounter if they do start processing DMCA notices, problems that will cost them money, customers, and some difficult court cases. And yet we have Cary Sherman telling us everything is going to change in a few months. I guess we’ll see.

Oh, and about that July 12 date, consider:

  • “Most of the participating ISPs are on track to begin implementing the program by July 12.” (CNet)
  • “The music industry’s Copyright Alert program, will begin operation in the second quarter of the year, by July at the earliest.” (paidContent)
  • “Some ISPs could have these measures in place as early as July.” (The Stream Report)

My calendar is marked.