Tag: sopa

Aurous has nothing to do with SOPA

The recording industry last week filed suit against a new music platform called Aurous.  With a Spotify-like interface, the app is designed to search, retrieve, and play music files, whether they’re stored on legal platforms or on BitTorrent sites around the world. And according to early reports, the primary function is the sourcing of pirated media on BitTorrent sites, leading some to refer to the app as “The Popcorn Time for Music.”  The RIAA suit charges Aurous founder Andrew Sampson and 10 unidentified collaborators with inducement to infringe as well as contributory and vicarious infringement.  “The defendant’s business model is new,” states the RIAA, “but it’s business plan is old; illegally profiting from piracy.”

Sampson himself has already made a number of smug and dismissive public statements about the case despite a general consensus—even among parties likely to be sympathetic to Aurous—that he stands on pretty shaky legal ground.  In fact, Mike Masnick on Techdirt writes, “I fully expect that Sampson will lose the lawsuit (and lose easily) if the case gets that far. However, that doesn’t mean that parts of the lawsuit aren’t concerning.”  What Masnick means by “concerning” is that several of the remedies sought by the RIAA are, he claims, remedies called for under SOPA, which we all know did not become a law.

As surprised as I am that Andrew Sampson thinks the market can actually use yet another way to source or pirate music at this point (I mean how much freer can it all get really?), it’s no surprise at all that it has become SOP to say “SOPA” among the same consortium of activists about every case in which any plaintiff seeks injunctive relief from third-party providers like search engines, ISPs, or registrars.  In fact, when the lawsuit was first announced, The Trichordist rather humorously (though not at all facetiously) announced an “office betting pool” as to how soon the Electronic Frontier Foundation would file an amicus brief on behalf of Aurous.  And while no serious IP attorney may reasonably defend Aurous against the infringement claims, that hasn’t stopped the EFF from repeating the latest mantra of Internet industry defenders:  That [insert plaintiff here] is behaving as though SOPA became law.  Although the EFF has not filed an amicus brief or anything so official on behalf of Aurous, here’s the tweet they sent out, as Ellen Seidler reports on Vox Indie:

Once again, @RIAA asks a court to order the entire world to block & filter an app they don’t like. https://t.co/Qwg138pFPB#SOPApower

While, all this SOPA chatter may be pretty good spin—and a great way to belabor the narrative that rights holders are just insidious, draconian, evildoers hating on freedom—the references to SOPA are entirely specious. I mean not even close.

Bottom Line:  Aurous is a Domestic Business 

SOPA/PIPA were exclusively written to target foreign-based piracy sites that are beyond the reach of U.S. jurisdiction for criminal proceedings, with the objective of starving these sites of both U.S. traffic and U.S. revenue. Far from the menacing, web-killing legislative sledgehammer they were made out to be, these bills were a limited variation on existing domestic law based on the reasonable notion that American Company A should not facilitate or incidentally profit from the foreign-based theft of American Company B. But regardless of all opinions about piracy itself, the remedy in which plaintiffs may seek injunctive relief from third parties was neither unique to the proposals in SOPA, nor unprecedented in U.S. law.

As explained in my post about the Equustek case in Canada, it is a well-established procedure that when a court enjoins a defendant (e.g. Aurous) from continuing to operate pending the outcome of a case, it may also enjoin third parties from aiding the defendant (even if that aid is not intentional) in the activities central to the case.  This is both common-sensical and common legal practice that has been applied—yes, even on the Internet—both in the U.S. and abroad. And this type of relief has been granted repeatedly without resulting in any of the supposed harms to civil liberty or the vital functioning of the Internet that was predicted to occur if SOPA had passed. Moreover, it’s worth noting that with regard to web entities like Google, a court order in such a case probably enjoins the service from being used in a manner already proscribed by the site’s own Terms of Service.

This was one of the ironies about the protest against SOPA—that Americans were duped into opposing legal remedies already in force in U.S. law, all using the not-broken Internet and uninhibited free speech to do it. As the language in the SOPA bill effectively says, if the foreign site in question would be subject to criminal charges or civil liabilities in the U.S., then by court order, U.S.-based third parties could be enjoined in the same manner as if the infringing site were domestically based. It’s a subtle distinction that the SOPA bell-ringers would rather not mention, but all SOPA aimed to do with regard to third parties was to apply a commonly used remedy in regard to a specific category of websites whose owners cannot be brought into a US court; but it imposed no new liabilities on the third parties than if the target websites had been domestically based. In fact—and this is what’s particularly funny about Masnick, EFF, and Sampson himself invoking SOPA here—enjoining a third party to take similar measures under SOPA would have been far more restrictive, involving more procedural protections, than civil procedure requires in a domestic case like Aurous.

One may argue the merits of enjoining third parties in these cases until doomsday, but the invocation of SOPA does not apply to Aurous for the simple reason that it is a domestic company with domestic owners and, therefore, well within the reach of U.S. courts.  Assuming the RIAA suit proceeds, the third-party injunctive relief being sought is fully consistent with the law, since long before most of the people who so vigorously protested SOPA were even born.

Of course, all legal technicalities aside, who isn’t sick of the infantile and tediously repetitive story that keeps playing out in these cases? It seems clear that not even Aurous’s natural defenders will attempt to claim it isn’t trading in pirated music.  And even though the logical contortions that “digital-rights activists” go through to defend on principle these predatory applications do beg in-kind rebuttal, they more reasonably inspire outright dismissal. It really is like arguing with a six-year-old who’s built an elaborate yet flimsy defense for not putting on a jacket or some damn thing. At a certain point, every parent reaches the limits of his tolerance for juvenile debate and explodes with ultimatum. And then there are tears. So, bring on the tears and get it over with already.  Then, we might begin to more effectively grow a more sustainable 21st century creative economy, and we can also stop the nauseating repetition of an absurd argument that defies common sense.

The Knights Who Say SOPA

At last count, the EFF has over 40 attorneys on staff* and lord only knows how many communications minions.  So, if this organization is going to maintain its loose relationship with reality, they might at least take a meeting and invent some fresh exaggerations.  But no. SOPA is just too provocative a buzzword to let go. And as part of their unrelenting strategy to keep trying to scare the hell out of people, the EFF has invoked SOPA so many times, I’ve personally run out of colorful metaphors by which to mock them for it and have had to resort to Monty Python references.

For instance, in this recent missive, EFFer Mitch Stoltz uses the acronym SOPA seven times in the first four paragraphs, which might lead the reader to think that the subject of the article has something to do with SOPA.  Of course, it has nothing to do with SOPA.  Heck, SOPA didn’t even have anything to do with SOPA, but let’s not worry about that right now.

What the knights at the EFF are saying SOPA about at the moment is the fact that as part of the major motion picture studios’ litigation against the pirate network MovieTube, they are seeking injunctive relief that would include disabling domains registered to the network and the discontinuation of services to MovieTube sites by third-party providers.  Granting such an injunction, according to the EFF, is reason to say SOPA, meaning that such a ruling by the court would inevitably lead to crippling the Internet as we know it.  Sound familiar?

But true to form for the EFF, Stoltz neither acknowledges that MovieTube is doing any tangible harm nor the fact that the relief being sought by the studios is far from unprecedented legal territory.  It is well-settled law that injunctions against a named party, which is directly harming a plaintiff, can also bind third parties that may be contributing to, or facilitating, ongoing harm.  And although this principle is nothing new in legal terms, it is a chronic sticking point for Internet companies because they are frequently facilitating harm, whether they mean to or not.  But, in another case involving injunctive relief, the British Columbia  Supreme Court demonstrated in the Equustek case that Google may be ordered to de-index on a global basis all sites (and not just pages) belonging to a business that was engaged in counterfeiting the plaintiff’s products and using its websites to hijack Equustek’s likely customers.  And still the Internet hums along.

Of course, Silicon Valley doesn’t like this sort of thing, but not because of anything to do with your freedoms so much as with their bottom line. News flash:  industries don’t like regulation.  And so, the Web industry likes to portray every prospect of this type of legal action — especially when it involves the motion picture industry — as the beginning of the end.  They say SOPA, and hope the peasants cringe. (And make no mistake, to the wealthy .01 percent of that industry, we are all peasants.) Thus, the EFF invests tremendous energy in this strategy, breathlessly warning us about the inevitable doom that will surely follow if, heaven-forbid, the rule of law might apply to trade across our precious tubes.

Stoltz’s post implies a lack of due process and a dangerous slippery slope, despite the fact that injunctions are court ordered on a case-by-case basis.  And just because an entity is granted this type of relief in one case does not mean it will then have free reign to seek random, baseless injunctions at will. (Or is the real problem that the Internet companies are acutely aware of how much global traffic is driven by piracy, that they really don’t want to go there; and they can always rely on millions of people who like free media to help evangelize their erroneous legal claims?)  If so, they should at least call it what it is and lay off the pretensions to be upholding some principle for the greater good.  Yet,  Stoltz writes:

“If the court signs this proposed order, the MPAA companies will have the power to force practically every Internet company within the reach of U.S. law to help them disappear the MovieTube websites. Regardless of whether those sites are engaged in copyright infringement or not, this is a scary amount of power to confer on the movie studios. And it looks even worse at scale: if orders like this become the norm, Internet companies large and small will have to build infrastructure resembling the Great Firewall of China in order to comply.”

Of course that makes perfect sense. Because what could filmed-entertainment companies want more than a completely dysfunctional Internet and a “wall” of censorship? Filmmakers love censorship! And they certainly don’t want their products to be seen by the paying public via the growing number of legal streaming services that are entirely dependent upon a well-functioning Internet. Naturally, the MPAA is looking for a legal wooden shoe that it can wield to the ultimate sabotage of these distribution portals for studio products.  And in a related story, the Teamsters are going to lobby to defund highway maintenance.

But to put it less sarcastically, if Internet companies truly cannot help to foster a web ecosystem that honors certain rights, including intellectual property rights, without “building a Great Firewall of China,” then maybe they just suck at what they do.  Because, in the long run, we don’t need an Internet that remains the proverbial Wild West, we need one that matures into a vital component of a functioning civilization.

Anyway, if you want a proper (and admittedly calmer) legal analysis of the relief being sought by the studios in this case, I recommend this post by Terry Hart because he actually knows, y’know, legal stuff. I’m mostly being a smart-ass because this kind of fear-mongering is at least as offensive as it is repetitive.  Above all, I resent the tone the EFF consistently takes with regard to piracy — as though it’s some adolescent prank that doesn’t hurt anybody. I and others have cited volumes of data that proves piracy is a big, black-market business that causes tangible and multi-faceted harm to real people.  I will also add that during the anti-SOPA campaign, organizations like EFF, as well as the Googles of the world, implied in their populist messaging that they cared about ending piracy, but the bills SOPA and PIPA were too flawed.  Where in the last four years, have we seen any substantive indication that anyone speaking for the Internet was remotely sincere when they made those statements?

So, if as a general rule, any of EFF’s writers framed these articles by stipulating that a site like MovieTube is — and damn-well should be — illegal and deserves to be shut down, then by all means they should play the role of the public advocate they claim to be.  Instead, the organization’s thesaurus appears to favor repeating SOPA as often as possible and using calculated, provocative language, like the way Stoltz uses the word disappear as a verb to imply that MovieTube is akin to a political dissident being silenced by an authoritarian government. (If nothing else, this kind of rhetoric is just irresponsible in a world with real dissidents and real tyrants.)  For all the attorneys on staff at the EFF, they rarely seem to produce an even-toned, nuanced analysis for public consumption regarding cases of this nature.  I guess it’s just easier to be The Knights Who Say SOPA.  Maybe if somebody brings them a nice shrubbery, they’ll knock it off.

*To be fair, and at last count, the EFF had what I counted as over 40 attorneys spread among staff, board, special counsel, and advisors, which is not exactly the same as 40 staff attorneys.  But in the spirit of this post, suffice to say, they have a buttload of lawyers to keep coming up with the same talking point over and over.

NOTE:  Within an hour or so of TorrentFreak citing this article, I received comments from anonymous trolls with handles including Adolf Hitler and Osama Bin Laden calling me “faggot.”  I think the EFF should be proud to have such erudite supporters.  I don’t know what I was thinking by criticizing their rhetoric, which has clearly elevated the debate.

SOPA So what?

Silhouettes of tourists hiking on Bromo mountainDid you hear the echo?

This past weekend, as many people know (and even more people don’t), Saturday marked the two-year anniversary of the event known as SOPA Blackout Day.  In case you don’t remember it or missed it altogether, it was January 18, 2012 when various websites, most notably Wikipedia, went dark or semi-dark for the day in order to inspire users to take action and stop the SOPA and PIPA bills from passage in Congress. Google put out an online petition that a reported seven million people forwarded to Congress, and enough citizens called the Capitol that the phone system actually crashed.  In short, the protest worked.  It worked so well that members of congress got whiplash tying to figure out what happened to a pair of bills that had strong bi-partisan and White House support just days before.

It was remarkably easy to convince a lot of people that the proposed legislation was a threat to free speech and would break the internet as we know it, but I did wonder on the day whether or not the industry could keep banging the same drum indefinitely without getting on everybody’s nerves.  After all, one of the weaknesses of social media  is that it fosters flash trends and not so much sustained interest in any particular issue.  And, despite Google’s pre-anniversary email blasts and the EFF’s sponsoring a campaign called Copyright Week, I don’t think the message got very far outside the echo of the Valley.   It’s not surprising to see the industry attempting to use the same anti-speech refrain to rally public protest against the TPP trade negotiations, but I don’t think they can get lightning to strike twice.

A couple of posts ago, I essentially accused the Electronic Frontier Foundation of fear-mongering on this subject, saying that organization is acting more like a PR firm than a public advocate.  This yielded one response on Twitter from a member of the EFF, who sent this link to one of their many articles explaining what’s wrong with the TPP.  Read the piece for yourself without any preconceived bias — I personally don’t have strong pro or con attitudes about the TPP — and decide whether it’s being informative or manipulative.  Here’s my take on a couple of choice excerpts:

Lack of transparency:  The entire process has shut out multi-stakeholder participation and is shrouded in secrecy.

In my opinion, a public advocate would explain that the TPP, while unprecedented in scale and scope, is not particularly unprecedented in its relative level of secrecy.  With any trade deal, there is always a fine line between transparency and efficiency inasmuch as one cannot hold a real-time, public referendum on trade negotiations among a dozen nations and hope to actually get anything accomplished.  On the other hand, legitimate concerns have been raised about congressional oversight of ongoing negotiations, and these concerns are not to be dismissed.  Regardless, if the EFF is providing a public service, then disinterested analysis seems the proper approach rather than purple prose like “shrouded in secrecy.”  This is especially true given the fact that members of the EFF themselves have attended TPP stakeholder events, where, in fact, “multi-stakeholders” have been invited to speak and interact with negotiators.  If the EFF felt that these events were inadequate or unfair, then they are within their rights to share those observations with the public, but given their consistent use of conspiratorial language, it seems that their mission is not to inform but rather to elicit an emotional, SOPA-like response to the TPP.   Here’s another excerpt:

The TPP Will Rewrite Global Rules on Intellectual Property Enforcement

All signatory countries will be required to conform their domestic laws and policies to the provisions of the Agreement. In the US, this is likely to further entrench controversial aspects of US copyright law (such as the Digital Millennium Copyright Act [DMCA]) and restrict the ability of Congress to engage in domestic law reform to meet the evolving IP needs of American citizens and the innovative technology sector.

This paragraph doesn’t actually provide any information to the average citizen.  I doubt anyone who doesn’t follow copyright issues consistently would even know what this paragraph means; but it sounds kinda bad, right? And since distrust of the government is at an all-time high, it’s relatively effective.  Why provide information, when you can use an atmosphere of distrust to pump out industry talking points like “copyright stifles innovation?”  What this paragraph actually conveys is we should not ratify a trade agreement that would reaffirm existing copyright law when we should in fact be reforming existing copyright law at home because we all know it’s broken. Of course, if you don’t think it’s broken — and polls indicate that most Americans still support the fundamentals of copyright — then this paragraph doesn’t say anything negative about the TPP at all.  What the statement is really doing, of course, is base-playing, rallying support among people who’ve already decided that copyright threatens speech and innovation, which means the EFF is campaigning, which is not the same as providing impartial advocacy.

For instance, what the EFF doesn’t tell you is how or why DMCA is controversial.  For creators, it is a nearly useless mechanism for requesting takedown of unauthorized use of their works; whereas to the EFF, DMCA is an insidious means for powerful interests to censor people through wrongful infringement claims.  Yet, if you actually look into the issue, you’d find that wrongful DMCA takedowns are fairly uncommon, often accidental, and are dwarfed substantially by the volume of unchecked infringement of protected works.  Just last week, Google alone reached the milestone of receiving its 100-millionth takedown request from the music industry, and Google will mostly get away with ignoring these requests because it’s very big and very rich.  So, is the DMCA controversial?  Hellz, yeah.  But the EFF isn’t necessarily going to tell you why.  Instead, it simply uses the word controversial to imply “not good” and then say that the TPP will “further entrench” what’s not good about it.  Sound vague?  Not by accident.

If you’re relatively neutral on copyright law, you might interpret that ratification of the TPP  could unreasonably expand copyright even in the U.S., and that would be false.  No treaty has yet changed domestic IP law, and even the portion of draft content leaked by Wikileaks reveals nothing inconsistent with existing domestic law. What the USTR would be seeking in this deal is to have signatory countries agree to establish and/or enforce their own IP laws that would essentially mirror laws we have in the U.S. This is neither sinister nor unusual, given that a lot of the trade we’re negotiating includes a lot of copyrighted property, like popular movies and TV shows. Moreover, it should be noted that, among countries that uphold copyright, the United States has the most liberal interpretation of fair use because we also believe in free expression, education, and social commentary.  So, the prospect of exporting our approach to copyright is not necessarily detrimental to individuals in foreign countries, although it would certainly be a pain in the butt for social media companies. Again, the EFF isn’t going to get bogged down in such gray areas because that’s not how one wins a campaign.

There are quite possibly some reasons to be concerned about the TPP, but even Timothy B. Lee, with whom I disagree on just about all things copyright, states in this article that the trade deal is being falsely hyped up as Internet censorship. Lee will say that the TPP “exports some of the worst aspects of copyright law,” but this is only true if you believe those aspects of copyright law are bad in the first place, which brings us back to the domestic debate.  And that debate is why I believe the EFF and similar organizations are expending so much energy on trying to kill the TPP — because its ratification makes domestic reform from their perspective more difficult.  If that’s the case, then again I argue the EFF isn’t providing the public service of demystifying some of these complex issues so much as they are rallying support for a very clear domestic agenda.  Among the problems with what they’re doing is that all the hype over copyright can direct attention away from what might be serious concerns related to this trade deal.

Today, of course, is a legitimate anniversary when we celebrate a man who sacrificed his life to exercise free speech more eloquently than most to address real threats to civil liberty.  People my age were in grade school just a few years after Martin Luther King was assassinated, and I was at that time in a school populated by mostly African American kids. The mood was still visceral; the immediacy of King’s legacy was part of our development into conscious beings; and King can claim credit for the many voices that followed his example.  And still we have people in this country who would shoot Dr. King all over again; so we’re not quite done chasing his dream.  By contrast, I have to say the sound of ivory-tower lawyers ringing the bell of freedom from the tyranny of copyright is just a tad decadent.