Friday, November 18, 2011

The Intellectual Property Arms Race

Among the many hot news items is this week is Congress's consideration of the Stop Online Piracy Act, a bill that would give private copyright holders sweeping enforcement powers. The details of the bill can be found in a variety of places (Wikipedia, as usual, has an excellent summary: ). Since I've written a dissertation around the argument for copyright reform in exactly the opposite direction of current trends in Intellectual Property law, I thought long and hard about exactly how to weigh in on this issue. Before providing my own opinion, let's be clear about some of the more problematic provisions of the bill.

For one, SOPA would make websites responsible for enforcing copyright infringements on user-uploaded content. In effect, social websites would then be liable for failure to enforce, so those sites that have become the backbone of the internet for many people will either have to institute draconian content-regulation or risk being shut down, having their financial services suspended, etc. Any website suspected of or found to be hosting copyrighted content or links to copyrighted content could be shut down. While the most obvious targets here are torrent sites such as the immortal Pirate Bay (long live the internet pirates!), any site linking to copyrighted content is a potential target. Given that news agencies such as the Associated Press have become fairly vigorous in enforcing copyright claims on their content, news aggregating sites, such as Reddit, are also in the crosshairs.

What does all of this mean for the internet as know it? Search engines will have to filter their results and DNS servers will have to remove these sites. The links from one site to another that make the internet so addictive, time-consuming, and powerful will become more and more broken and unreliable as infringement claims roll out. As the EFF, and other Free Culture supporters have pointed out, these powers make it possible for content-owners to “break the internet” by interfering too heavily with traffic routing. Clearly, I'm not happy about any of this, and I don't think anyone should be.

So what do we do? The Occupy movement has provided an excellent demonstration of the major hurdle: the United States government does not care about its citizens, what they need, or what they think. The major content-owners have a great deal of money, and since the Citizens United decision, they have a great deal of latitude to use that money to drown out the speech of anyone else through legal channels, not to mention the latitude they've always had to do so through illicit channels (let's just call them what they are, guys: bribes). As a result, intellectual property law shows no signs of reforming until the rest of government is reformed.

In the meantime, I honestly think the solution is skillful piracy as civil disobedience. Civil disobedience is a noble protest practice, defying the law in the name of a deeper moral right. In this case, we must also introduce the notion of skillful civil disobedience. We must be skillful because if we are ham-fisted and make the practice overly obvious to anyone, we will be shut down under the terms of this act. Instead, we have to employ the tactics used by internet pirates all along, strong encryption, TOR-style traffic routing, private torrent trackers, and hosting sites on foreign data havens.

Since the introduction of the DMCA and the Digital Rights Management it made possible, intellectual property has been marked by a kind of arms race. DRM technologies lock down content so that it can only be used as the content-owner desires. Nevertheless, it must be usable, or consumers will simply abandon digital content. As such, any DRM technology must leave a way to access the content. If the it can be protected, the protected can be broken. Every lock must have a key. The more restrictive the DRM gets, the more innovative the strategy for breaking it. Until intellectual property is reformed, this arms race will continue. Law will turn individuals sharing and discussing media into criminals, trespassers, and thieves. In turn, the community will abandon respect for law in favor of adhering to rational and fair standards. Hopefully, the government will figure this out before too long. I think it is high time for a full-scale review of our social institutions and how we can make them serve the public at large and not the advantaged few.