Two kinds of piracy

Just a quick follow up on the discussion of SOPA; people keep asking me what kind of legislation would be more appropriate than SOPA and PIPA, and that might have a better chance of gaining the support of the technology industries, users, and Congress. I’m not in the business of writing laws, but as a start, my sense of it is that there are two kinds of infringement: first, there are underground sites and networks dedicated to trading copyrighted music, software, games, and movies; they are determined to elude regulations, they often move offshore or spread their resources across national jurisdictions to make prosecution harder, and they are technologically sophisticated enough to work just with numerical IP addresses, set up mirror sites, and move when one site gets shut down. The second kind of infringement is when some fan, who may not know or appreciate the rules of copyright, uploads a clip to YouTube.

The mistake the entertainment industry continues to make is that they want to stop both kinds of piracy, and they seem unwilling to admit that they are different and start dealing with them as separate problems, with different tools, and with a different “threat level” in their rhetoric. SOPA was problematic in so may respects, but in particular because it tried to address both kinds of piracy at once, and failed to handle either appropriately. The kinds of measures it was suggesting for “rogue, foreign websites” (let’s assume they meant the hardcore piracy networks) wouldn’t be enough: if the DoJ got a court order to remove these sites from Google’s search and the major ISPs, you or I might not be able to access these sites. But determined file traders don’t find them through Google. And SOPA got so much blowback because it also tried to include the second kind of piracy at the same time – which, in fact, is handled relatively well with the “notice-and-takedown” rules that already apply to content platforms like YouTube.

It’s not only that these two kinds of piracy are so different that they require distinctly different approaches: it’s that the entertainment industry needs to let go of trying to squelch them both in the same breath. If they could start distinguishing the two, and make clear that they don’t want to catch up YouTube and Facebook in their net in the process, I think the technology industries will be more willing to develop and uphold gentle norms and procedures for the kinds of infringement that may happen on their networks.

[Cross posted on Culture Digitally]

What’s the difference between SOPA and PIPA?

I decided to put my slightly-dormant internet policy research skillz to work to figure this out. It was surprisingly difficult. Most stop PIPA/SOPA websites conflate them– but they are different. (Note: The best resource was an article I found at Area 51 Technologies.)

#1: SOPA’s a House bill, PIPA is a Senate bill.
SOPA = House of Representatives
PIPA = Senate

The Senate tends to be older and more conservative than the House, meaning that it’s more likely to be completely clueless about the internet. That’s not good.

#2: PIPA has a greater chance of passing.

SOPA has gotten so much guff that it’s temporarily off the table. PIPA, on the other hand, has been relatively ignored and so is much farther along in the process.

#3: They are essentially the same “anti-piracy” bill, but with a few different provisions.

Both PIPA and SOPA focus on “foreign rogue websites” (e.g. the Pirate Bay, Wikileaks) that facilitate piracy. And they both establish systems for removing websites that the Department of Justice decides are “dedicated to infringing activities.”

PIPA does NOT have a provision that requires search engines to remove these “foreign infringing site[s]” from their indexes. SOPA does. And it’s been highly criticized.

PIPA does seem to require more court intervention to take down a site– that’s good, right?– but it DOESN’T have any provision that penalizes a copyright holder for making a false claim of infringement. In other words, a Big IP company can claim that a site is infringing, drag it through hella expensive litigation, be proven wrong, and the site can do nothing about its costs incurred in the process. SOPA DOES include a provision that penalizes copyright holders who do this “knowingly,” including making them liable for damages and legal costs.

#4: They both require DNS blocking.

Because this has been protested not only by civil rights groups and internet enthusiasts, but engineers and computer scientists who say that DNS blocking will damage internet infrastructure (like, say, the Domain Name System itself), the sponsors of SOPA and PIPA have agreed to strip this from both bills. They claim that this will eliminate much of the current opposition. (See related technical whitepaper. [PDF link])

The bills share many other odious traits, which are summarized by Katy Tasker from Public Knowledge in this handy chart:

Chart of the differences between PIPA and SOPA. The two bills are essentially the same.

Ultimately, PIPA and SOPA are not particularly different. They are slightly textually different versions of the same legislation– supported by the entertainment industry and, for the most part, heavily opposed by the technology industry (including us at SMC). If at this point you still haven’t called your senators or representatives, you can easily do so at americancensorship.org.

We need to talk about piracy (but we must stop SOPA first)

Much to my happiness, the internets are in a frenzy about the “Stop Online Piracy Act” (aka SOPA). Congress is currently in recess, but the House announced a hearing on the potential impact to the Domain Name Service on January 18 and everyone expects the Senate to begin discussing a similar bill “PROTECT IP Act” when they return to DC on January 24. There’s a lot to these bills – and the surrounding furor – and I’m not going to go into it, but I recommend reading the actual bill and Open Congress info, the Wikipedia article, EFF’s blog, and the various links at Stop American Censorship. Tomorrow – January 18th – a bunch of geeks are planning a SOPA Blackout Day to voice their discontent.

I abhor SOPA for the same reasons as other geeks. I’m horrified that Congress has crafted a law that will screw with the architecture of the internet in ways that will undermine free speech. I love Josh Kopstein’s post “Dear Congress, It’s No Longer OK To Not Know How The Internet Works.” And I’m glad that geeks are getting vocal, even if – as Clay Johnson has pointed out – geeks don’t quite get how Congress works. I’m stoked that the White House has asked for a civil conversation around piracy (while also opposing SOPA’s key pieces). And I find it utterly hysterical that Rupert Murdoch has come to geeks’ turf (Twitter) to convey his pro-SOPA opinions, even as Obama steps in to state that he opposes SOPA.

In talking with non-geeks, I can’t help but be fascinated that the debate has somehow been framed in the public eye as “pro-piracy” vs. “anti-piracy.” Needless to say, that’s the frame that Murdoch is advocating, even as geeks are pushing for the “pro-internet” vs. “pro-censorship” frame. What’s especially intriguing to me is that the piracy conversation is getting convoluted even among politicos, revealing the ways in which piracy gets flattened to one concept. Teasing this issue out is especially important when we’re talking about regulations that are meant to help with piracy. There are many different aspects of piracy, but for simplicity sake, I want to focus on two aspects that feed into bills like SOPA and PROTECT IP: piracy as a competitive issue vs. piracy as a cultural issue. This can often be split as software piracy vs. media piracy, but not always.

There are actually reasons to not be in favor of all forms of piracy, even if you’re an unrepentant media pirate. Imagine that you are an appliance manufacturer in the United States. You make things like toasters. You are required to abide by American laws. You must pay your employees at least a minimum wage; you must follow American safety regulations. All of this raises the overhead of your production process. In addition, you must also do things like purchase your software legally. Your designers use some CAD software, which they pay for. Your accountants use accounting software, which they pay for. Sure, you’ve cut some costs by using “free” software but, by and large, you pay a decent amount of money to software companies to use the systems that they built.

You really want to get your toasters into Wal-Mart, but time and time again, you find yourself undercut by competitors in foreign countries where the safety laws are more lax, the minimum wage laws are nonexistent, and where companies aren’t punished for stealing software. Are you grouchy? Of course you are. Needless to say, you see this as an unfair competition issue. There aren’t legal ways of bending the market to create fair competition. You can’t innovate your way out of this dilemma and so you want Congress to step in and make sure that you can compete fairly.

Combating software piracy in the supply chain is a reasonable request and part of what makes bills like PROTECT IP messy is that there’s a kernel of this issue in these bills. Bills like this are also meant to go after counterfeit products. Most folks really want to know what’s in baby formula or what’s in the medicines they purchase. Unfortunately, though, these aspects of piracy quickly gets muddled with cultural facets of piracy, particularly once the media industries have gotten involved.

Since the rise of Napster, the media industry has been in a furor over media piracy. Not only do they get pissed when people rip and distribute media content on the internet, they throw a fit whenever teenagers make their own music videos based on their favorite song. Even though every child in America is asked to engage in remix in schools for educational purposes (“Write a 5-paragraph essay as though you were dropped into Lord of the Flies”), doing so for fun and sharing your output on the internet has been deemed criminal. Media piracy is messy, because access to content is access to social status and power in a networked era. Some people are simply “stealing” but others are actually just trying to participate in culture. It’s complicated. (See: “Access to Knowledge in the Age of Intellectual Property” and “Piracy: The Intellectual Property Wars from Gutenberg to Gates” to go deeper.)

Most in the media industry refuse to talk about media piracy beyond the economic components. But the weird thing about media piracy is that Apple highlighted that the media industry could actually innovate their way around this problem. Sure, it doesn’t force everyone to pay for consuming content, but when was that ever the case? When I was in high school, I went over to friends’ houses and watched their TV and movies without paying for them. Even though the media industry is making buckets of money – and even though people have been shown to be willing to pay for content online when it’s easy – the media industry is more interested in creating burdensome regulations than in developing innovative ways for consumers to get access to content. (Yo HBO! Why the hell can’t I access your content legally online if I don’t subscribe to cable!?!?) I guess I shouldn’t be surprised… It’s cheaper to lawyer up than hire geeks these days.

Of course, it’s not like there aren’t a bazillion laws on the books to curb media piracy. What frustrates the media industry is that they don’t have jurisdiction over foreign countries and foreign web servers. Bills like SOPA aren’t really meant to curb piracy; they’re meant to limit Americans’ access to information flows in foreign countries by censoring what kinds of information can flow across American companies’ servers. Eeek. I can’t help but think back to a point that Larry Lessig makes in “Republic, Lost” where he points out that there are more laws to curb media piracy on the books than there are to curb pollution. Le sigh.

Don’t get me wrong: there are definitely piracy practices out there that I’d like to see regulators help curb. For example, I’m actually quite in favor of making sure that companies can’t engage in unfair competition. I agree with the White House that certain kinds of piracy practices undermine American jobs. But I’m not in favor of using strong arm tactics to go after individuals’ cultural practices. Nor am I interested in seeing “solutions” that focus on turning America into more of a bubble. Shame on media companies for trying to silence and censor information flows in their efforts to strong arm consumers. This isn’t good for consumers and it’s certainly not good for citizens.

As we go deeper into an information age, I think that we need to have serious conversations about what is colloquially termed piracy. We need to distinguish media piracy from software piracy because they’re not the same thing. We need to seriously interrogate fairness and equality, creative production and cultural engagement. And we need to seriously take into consideration why people do what they do. I strongly believe that when people work en masse to route around a system, the system is most likely the thing that needs the fixing, not the people.

These issues are challenging and they require people to untangle a wide variety of different conflicting and interwoven practices. Unfortunately, challenging cultural conversations are really hard to have when the government chooses to fast track faulty legislation on the behalf of one industry and to the detriment of another. SOPA has turned into a gnarly battle between old and new media, but the implications of this battle extend far beyond the corporate actors. My hope is that SOPA goes away immediately. But I also hope that we can begin the harder work of actually interrogating how different aspects of piracy are affecting society, business, and cultural practices.

In the meantime, I ask you to stand with me to oppose SOPA. Learn what’s happening and voice your opinion. Legislative issues like this affect all of us.

Random thoughts about piracy

Living in the US, I see signs of media piracy all the time. I have numerous friends who are unrepentant music/movie/TV/book pirates. And while I buy a surprising quantity of my media, I also pirate that which I cannot get due to international rights laws or due to foolish business decisions on behalf of media companies. (Dear HBO, some of us True Blood fans would actually pay for your content if you would just make it available without requiring us to own a TV/cable subscription. ktxby.) Whenever I travel to Europe, my friends complain incessantly about how they cannot get access to American media content without pirating it. Yet, whenever I hear people around me talk about their practices of media piracy, it always comes with a coating of guilt layered on the top like molasses. Even my unrepentant friends frame their practices in terms of how they refuse to feel guilty because of XYZ corrupt institution. Guilt prevails as the dominant Western discourse to respond to when engaged in acts of piracy.

Not in India. I was absolutely enthralled with how the discourse around piracy in India was radically different than anything I had seen elsewhere. In India, piracy is either 1) a point of pride; or 2) a practical response to an illogical system. There is no guilt, no shame.

I loved hearing people talk about mastering different techniques for pirating media, software, and even infrastructural needs (like water, electricity, even sewage…) There was a machismo involved in showing off the ability to pirate. To pay was to be cheated, which was decidedly un-masculine. Of course, getting caught is also part of the whole system, but the next move is not to feel guilty; it is to bribe the person who catches you. Ironically, people will often pay more to bribe inspectors than it would’ve cost them to pay for the service/item in the first place. Again, we’re back to pride/masculinity. Pirating was an honorable thing to do; not pirating is to be cheated.

Money is certainly an issue for many Indians, but a lack of resources doesn’t fully explain the practices of piracy. Another factor at work has to do with the role of conspicuous consumption in India. It’s perfectly reasonable for a well-to-do Indian to spend an obscene amount of money on an expensive car, a fancy electronic item, or brand name clothing. But that’s different, because those items are to be shown off as a symbol of status. No one shows off the fact that they bought a legal copy of software or a legal version of the latest Bollywood flick. Showing off the fact that you paid full price for something that could be obtained for free would make you look foolish, not important. Pirating is a completely naturalized practice.

The issue of piracy is certainly complex and I’m being overly simplistic in what I’m offering (see: Adrian John’s “Piracy” for a more proper treatment of piracy). But I can’t help but think about the significant cultural differences between the US and India whenever I hear Americans talk about the “problem” of piracy. Piracy means such radically different things to Americans and Indians and, more importantly, the guilt that makes many Americans comply with anti-piracy regulations is completely ineffective in India.

I really wonder how these kinds of issues are going to play out… Will corporations find new ways of forcing Indians comply? Will Americans’ attitude towards piracy become less guilt-ridden? What will all of this mean for software, media, and even infrastructural elements? One thing’s for sure… social norms will still dominate any legal or technical regulatory intervention.