Wednesday, January 18, 2012

Why I support SOPA

Mostly because I am a troll and because the extreme positions taken in this debate annoy me. So I take a bit of the "avocat du diable" (devils lawyer in french) position on this one. But let me clarify.

I spent a good part of my professional life in the world of Free and Open Source Software (aka FLOSS). There as a producer of content I helped pioneer a model to make money off a free software product. We operated in the application layer of the internet and distributed our wares for free. In the FLOSS community, people are actually fairly educated when it comes to IP, licenses, trademarks, copyrights, patents etc. Lately I spend a lot of time in writing music and have got to see first hand who is impacted by the net.

The goals of SOPA
The goal is rather straightforward. Online piracy and counter-feit are rampant. Most people do not see "downloading a song, a movie, buying counter-feit products" as theft, it is perceived as innocuous. What is more technology has contributed to enabling this. P2P, social sites, torrents, powerful search have all enabled easy access to pirated content.

Respect of IP is key to our economic future
Increasingly the western world relies on IP to make a living. Since we produce less "real world" goods and more "digital world" goods we open ourselves to piracy. If we are to move to an information based economy there needs to be a limit to the infringement of IP. In music for example instead of releasing VST plugins, people prefer to tie them to hardware or the iPad to make sure they monetize their creations. I for one welcome the innovation in music instruments on the ipad and realize it is because a/ the platform lends itself to it b/ the platform helps monetize.

The implementation of SOPA
Essentially what is new in SOPA is that it supersedes "safe harbor" provisions of DMCA, the previous legislation around digital based IP. The onus is on a content provider to monitor and censor their own content. Failure to do so will result in DNS blocking. This is important and is worth a bit of explanation. Say you upload pirated content to youtube. Essentially today you will receive a notice on youtube saying "we detect that this is not your content please remove bla bla bla". If you don't do so, then it is all kosher, it just goes on. With SOPA, youtube would have to shut you down, if they don't they can be blocked. DNS is essentially what maps meaningful names like to more esoteric IP addresses like This would require that top DNS domains comply with the law.

This is a cost to content providers
Of course this is cumbersome for content providers and will add cost to their operation as well as complexity. In reality crowd sourcing of content monitoring is implementable and what is required is that providers then act on the information. This is work and in my opinion the gist of the opposition against the bill. Filtering of IP is already implemented in most corporate firewalls and used for censorship in China for example. I am not endorsing censorship just making a technical point. Google does censor when the Chinese government tells them so. The internet continues to function at a DNS level. Surely DNS modifications like the one hinted here is no "undermining the core infrastructure" of domain naming.

This is an opportunity cost to providers
Remember the Apple iPod original adds? "Rip/listen"? the truth is that most providers turn a blind eye to these activities because it constitutes traffic and they like traffic first and foremost.

Criticism: abuse of SOPA
From what I can tell, the central criticism is in the abuse of SOPA. People are fretting that this broad legislation will be abused by corporations effectively giving them censorship power. Obviously this is a hysteric generalization not helped by the fact that, according to wikipedia, some RIAA companies already have lists including their own artists and competing (but legal) sites. But truly nothing in the law says this is what will result, to see it as a risk is a valid concern, but an over-reaching one. If someone uses this to kill competition then that someone should be prosecuted. Abuse of this law should be punished, from what I can tell there are provisions in the bill to do just that.

Free Speech, censorship
A more excited fringe says this is a violation of free speech. How we got to free speech is baffling to me. There is a world of difference between theft of digital IP and free speech. If the law is used by abusing corporations to shut down dissent or competition again those corporations should be heavily punished. If the US government uses this to enforce chinese style censorship, I would be the first one buying servers in the cayman islands to put TOR on it. This is not china. The people who argue 'free speech' come across as an excited fringe to me.

It will create jobs
Another baffling argument comes from the valley, that this will essentially destroy jobs. Au contraire a strong IP approach will create jobs and it is a necessary step towards assuring a monetary economy on the net. That various chambers of commerce or the AFL-CIO support this bill speaks volumes. The US industry increasingly produces digital goods. Protect them.

Corp vs the people, government vs the people
A lot of the debate stems from a mistrust of corporations to do the right thing. I get it. But the potentials for abuse, which should be monitored and punished, do not validate piracy, which I consider outright theft. A related argument stems from a distrust of government and legislation. What do those clowns in Washington know? The fact that so many VCs threatened to stop investing, when the first question you usually get is how many patents are protecting your IP, is disingenuous. I say call their bluff, you think they will stop investing? huh, huh, the days pigs fly.

It won't stop piracy
For sure it will not stop piracy entirely, those that want to put the IP address will always do so, those that want to circumvent DNS will do so . But it will seriously curb piracy.

It will stifle innovation
This one again baffles me. How can this legislation be used to kill startups? If it is, whomever is doing it should be prosecuted.

It will place unlimited liability on new companies
This argument is usually put out by the software investors. Again I find this linked to the cost of implementing the law. But I doubt it will create an infinite liability. This is the kind of argument from my friends in silicon valley that sounds as honest as the record companies already planning to shut down their own artists.

But my music does not need that
As a nod to my musician friends, a lot of what I hear is "but you know the real way to make music is through live shows, not your music". As someone who doesn't do live shows I think the internet really has killed the music business, before you could make money with you records AND the shows. Today only shows and some licensing if you are lucky. I don't mind the majors but don't care if they live or die, I just do not consume their products by and large. I can see that things like "bandcamp", "itunes" or "beatport" allow one to make a living, today meager and insufficient in most cases. However it is obvious to me that piracy is the single most important factor in the decline of the monetization of music. Why should one be content with piracy as a "matter of fact" is baffling. You can distribute your music for free but that is your choice (certainly mine in some instances).

The internet as the last bastion of libertarianism
Look, I get it. I was once called a "bearded freak of the sandal brigade", referring to the die hard "freedom or death" ethos of the old UNIX/Internet folks. I personally sported crew cut, shave regularly and yes, I did wear smelly sandals in my PhD years. But I think that on the part of a lot of my friends and acquaintances in the software world, there is a strong emotional response to "censorship on the net". The webs is one of the last bastions of libertarianism, at least in ethos. We are far from china and protecting that freedom does mean cracking down on piracy. I view with mild cynicism the countless corporations that are anti-SOPA, mostly the content providers, who wrapped themselves in the flag of freedom when we are just balking at regulation that will cost to them and talk of Armageddon to the US industry.

This is not the way
An interesting point made by many people is that in fact the solution may be in new business models to circumvent piracy, think Itunes/bandcamp/spotify etc etc, Surely these are welcome additions and successful but it doesn't make up for piracy.

A flawed implemenation
By and large, I welcome the controversy as it puts in light a lot of the question around digital IP. I can sit here and argue why the software patent system is fundamentally broken in the US as well as argue for SOPA. I can also discuss the finer points of DNS filtering and IP fire-walling, but that to me is largely irrelevant. The truth is that technology has not been able to police the abuses of the net and it doesn't really want to either. But if the implementation of SOPA is ripe for abuse that means that anyone that abuses it should be sternly punished. Police the police, doesn't mean there is no police. There is "social contract" that is needed in the internet, one that today is not in existence for those who claim to "first do no evil". Traffic at all cost, "rip/listen".

and hope
I do think that a proper SOPA needs to see the light of day, it is worth the wait to get it right and get every corporation sensitized to what "abuse" will mean, since some RIAA people are already running wild with this. They should know better. But the fact remains, that in a strict view of property, which included digital intellectual property, what is going on in the internet today is out of control. It is worth the wait and getting it right.


Anonymous said...

hm, i see a lot of videos online where police and soldiers are getting away with horrible injustices. they are allowed.

do you trust the police system? even 1% of 1% injustice by corrupt police is enough to start shutting the system down. or never build it in the first place.

Marcf said...

police abuse has to be prosecuted and no, the police abuse does not justify no police. 0.001% abuse does not justify "not building it in the first place".

AlN said...

Tools that provide "access" to piracy are to be blocked.
Tell me how you block something like TOR, i2p, or vpn systems without DPI filtering.

Similarly, if these tools are to be blocked, or even throttled down, please explain how it does not become a free speech issue.

Also of question, have you followed the pursuits of the RIAA, MPAA, and\or their methods as it relates to stopping piracy?
Or oddly, recent arguments they've made themselves on why SOPA\PIPA could not work

On an aside, as it regards things like police:

Marcf said...

I don't claim you should stop P2P or TOR. :)

Anonymous said...

Most people will disagree with you, and I think you know that. Most, however, won't take time to bother with communicating with you to that effect. It comes down to values and values are subjective and individual.

At the end of the day, it's a gut check. Are things good as they are or do we need new legislation?

Unless you are like Rupert Murdoch and hopelessly, desperately invested in the way things are, desperate to keep things the same, you're going to oppose this legislation.

At the end of the day, this legislation will accomplish little. Culture is shifting.

AlN said...

SOPA would put an end to such tools given their ability to allow circumvention.

"against any entity that knowingly
and willfully provides or offers to provide a product or service designed or marketed by such entity or by another in concert with such entity for the circumvention or
bypassing of measures described in paragraph (2) and taken in response to a court order issued under this subsection, to enjoin such entity from interfering with the order by continuing to provide or offer to
provide such product or service."

This section and language was purposely added to the bill by Smith in order to block means of circumventing SOPA.
And as such, I must ask again, how does one orchestrate such without IP blocking and DPI filtering?

How does this NOT attack the use of darknets as a whole?

For that matter, combined with the circumvention talk, how does Section 105 of the bill not put an end to things like BitCoin and else? How does a Wikileaks (recall "blood on their hands"\"National Security Threat" arguments) not come out as endangering "health" or simply nailed by copyright arguments.
(review Scientology arguments on Wikileaks)

I would suggest looking at the bills (SOPA\PIPA), and then asking
"how does this all work out in practical fashion?"

From what I understand, regardless of how the bills were written, you seem to simply trust "they wouldn't do things like that."
But you do this without offering any sort of evidence of why they should be trusted and ignore TONS of evidence of past behavior that shows they should not.

Marcf said...

Because very simply put ALN darknets and bitcoin do not infringes IP and therefore would not encounter an order to discontinue offering the service.

Marcf said...


funny, i think I know exactly who you are just by the tone. And yeah, your gut tells you something different than mine.

AlN said...

They allow for circumvention, which I already highlighted
DIRECTLY FROM SOPA'S CURRENT WRITING how this comes to effect things like TOR, i2p, anonymous proxies, darknets etc.

I also noted section 105 of the bill in regard to how gov. may use the bill in order to basically
"BAN EVERYTHING" it does not like. (such as Wikileaks, a Cryptome, a Pastebin, ReEdit, i2p, etc.)

I repeat, this quote DIRECTLY from SOPA.
"against any entity that knowingly
and willfully provides or offers to provide a product or service designed or marketed by such entity or by another in concert with such entity for the circumvention or
bypassing of measures described in paragraph (2) and taken in response to a court order issued under this subsection, to enjoin such entity from interfering with the order by continuing to provide or offer to
provide such product or service."

In short, all you need is a couple idiots saying an encrypted decentralized darknet, such as the freenet project, can be used to anonymously post and download pirated software.
At which point Freenet becomes a "circumvention" method, and within the language of the bill, should then be banned.

The mere fact is that this can take place within any VPN however. Even corporate. And to such ends we end up with cases such as I highlighted before, where corps and govs should become subject to their own absurdities.....but we've already seen that within practice, this is not what happens.
(note previous example of the RIAA saying "we don't care that it was our own IPs caught pirating, it wasn't us and must have been a third party"
and similar with the French gov including Sarkozy residence.....
which I'll remind you stated "good for him" on pirating porn)

What this shows is a "pick and choose only WHO\WHAT WE DON'T LIKE" in real actualized practice.
And as I noted prior as well, MANY past examples go to show that "WHO\WHAT WE DON'T LIKE" doesn't even have to make any sense.
The recent Prince DMCA case would be another fine example of things heading off into nonsense land.

While I have the utmost respect for you, I question if you've actually read\looked over the bills.

These bills don't have the mere "potential" for abuse. Any practical means of making them function within the way they are written DEMANDS abuse.
Abuse both government and groups like the RIAA\MPAA have already proven on MULTIPLE counts they will not just engage in, but will often push to the most absurd of limits.

Andrei said...

"It will stifle innovation
This one again baffles me. How can this legislation be used to kill startups? If it is, whomever is doing it should be prosecuted."

I would direct you to the Yochai Benkler's work "The Wealth of Networks" where he covers the topic in great detail. In nutshell his point is not that IP and copyright law are evil. They simply the least efficient mechanisms to manage information and knowledge. Here are some quotes:

"When one cuts through
the rent-seeking politics of intellectual property lobbies like the pharmaceutical companies or Hollywood and the recording industry; when one overcomes the honestly erroneous, but nonetheless conscience-soothing beliefs of lawyers who defend the copyright and patent-dependent industries
and the judges they later become, the reality of both theory and empirics in the economics of intellectual property is that both in theory and as far as empirical evidence shows, there is remarkably little support in economics for regulating information, knowledge, and cultural production through the tools of intellectual property law"


"Once we recognize that there are diverse strategies of appropriation for information production, we come to see a new source of inefficiency caused by strong “intellectual property”-type rights. They raise the expected returns from information production, and thereby are thought to induce investment in information production and innovation. However, they also increase the costs of information inputs. If existing innovations are more likely covered by patent, then current producers will more likely have to pay for innovations or uses that in the past would have been available freely from the public domain. Whether, overall, any given regulatory change that increases the scope of exclusive rights improves or undermines new innovation therefore depends on whether, given the level of appropriability that preceded it, it increased input costs more or less than it increased the prospect of being paid for one’s outputs."

AlN said...

Of further note, I'll highlight that when I mention IP, I'd been referencing it in the context of "Internet Protocol"
"Intellectual Property"

I think that was understood, but I just want to stress that.
"Intellectual Property" I'd just call Intellectual Property.
"Internet Protocol" on the other hand I'm used to, and always have, simply referenced as IP.

Anonymous said...

problem is if the system does not punish police, which has been the general trend. challenge: find 5 cases where police were punished -- long-term, not slap on wrist -- for bad behavior.

Anonymous said...


Taran Rampersad said...

...and yet you, like so many others who play devil's advocate or not, have not shown any quantification for the 'losses' as related to 'piracy'.

The reason is because - any statistics quoted do not suffer the context of the relevant industry's success. In fact, some reads make it fly in the face of the assertion that 'piracy' is bad for business.

It's simply an argument for 'more'. And when that argument for more takes the form of money - ruled 'free speech' - by corporations that already control the industry - it begs to question who really wins. Is it the vague and mysterious 'job creators' who haven't been creating jobs?

No, no, the whole notion of SOPA and PIPA does not bear scrutiny.

Winni said...

Part 2 of my answer, since there is a 4096 characters limit:

What --I-- want is simple: For example, when The Hobbit has left post-production, I want to use my PayPal account to download a DRM-free BluRay-quality rip of that movie for a REASONABLE, FAIR price. Not 20 Euros. That's not reasonable. For a brand-new mainstream movie like this, I'd say that EUR 4,99 for DRM-free download is the maximum reasonable price. Older movies like, let's say, Clint Eastwood's Firefox should not cost more than EUR 1,99.

People will still pirate, even at that price. So in the end, maybe we should all simple pay a "culture flatrate" of 20 Euros or something per year and be allowed to download whatever content we want. There's still merchandise that artists can make money with. And there still is the James Bond movie business model where a new James Bond movie usually already is in the win-zone before it even hits the movie theaters (obviously, there is a market for product placements).

Most of us live in democracies, and there is one principle that all democracies are supposed to follow: When a majority of people does it, it is legal. And one of the laws of nature is that you either evolve or extinct. Nobody can turn back the wheel of time. The content industry is now facing the choice of extinction or evolution. They are trying to build prisons for majority of people to help their own primitive interests. But it is in the nature of man to find a way out of the prison and to revolt against their tyrants.

MJB said...

I agree that piracy is not becoming suddenly OK just because it is distributed through a TCP/IP bit torrent protocol. The Megaupload Kimdotcom was becoming rich by selling things that didn't belong to him. On the same ground I could start selling Greek Islands but to make it OK I would be using PayPal for the financial side of the transaction.
On another end, there would be much less piracy if the copyright period length was shorten to something more reasonnable. 7 Years for a song, 12 for a book and 18 for a movie for example.
Nowdays the periods are outrageously over-extended for any good reason. To compare with (I believe) a massive pharmaceutical investment that does not cover an exclusivity period of more than 20 years, including its long testing phase.

Marcf said...


Interestingly it seems rather obvious that strong IP law like patents should really have a per-industry focus. In software there are many abuses. Mention this to a lawyer and he looks at you like you are the devil.

Warren said...