Opinion: Combining Several Bad Ideas Won’t Stop Piracy

By Drew Wilson

Last week, a report suggested that the government agency HADOPI was gearing up to combine website blocking, three strikes laws, search engine demotion and the cutting off of forms of revenue as a means to try and put the squeeze on piracy. Drew Wilson offers his opinion on the matter.

One thing I’ve been noticing lately is the fact that a number of implementations and variations of a three strikes law have been going sideways. The US six strike policy through the Copyright Alert System become a security disaster for users, the French variation shows that after implementation of the three strikes law only saw the continued slide of music sales, and the New Zealand variation has become little more than a money losing prospect. I think that when the music industry pushed the three strikes law, they hoped that one variation or another would prove to be some sort of magic bullet to fix all the industry woes. Now that every single one of these variations are starting to go sideways, the industry is becoming desperate and are wanting to prop this policy up with something – anything – just to try and prove that this policy is worth pursuing in other countries.

That, to me, became painfully obvious earlier this month when the administrative body in France (HADOPI) announced plans to modify their anti-piracy approach to include site-blocking, freezing money streams for websites they don’t like and downgrading the same sites on search engines.

For years now, people who have knowledge in this field who weren’t tied to the hip to the industry knew that this idea of a three strikes law would never work. Regardless of research, opinion, expert analysis, and a whole host of other signs that this was a bad idea, the industry simply forged ahead anyway as if to say, “To heck with the evidence, this idea is going to work no matter what!”

I would imagine that everyone not siding with the industry can easily feel vindicated after seeing this policy come crashing down in ways more spectacular than most have predicted. So, it seems that the real question now for the industry is, “What now?”

After all, the industry has lobbied just about every governing and trade body under the sun to implement similar measures. The three strikes law is in the Trans-Pacific Partnership (TPP), probably is in the Comprehensive Economic and Trade Agreement (CETA) and will likely be in numerous other trade agreements until the industry gets what it wants in every corner of the earth. The simple truth in the matter is that the industry has got a failed policy rammed into various policy pipelines and when these policies come out the other end, it’ll be a dead on arrival policy in terms of effectiveness. The writing is on the wall and the only question is, in what way and how spectacularly will this policy continue to fail into the future?

It might be a little late at this stage to go rushing to policy makers with a plan “B” at this stage in the game, so the only thing left to do is scramble to come up with a solution. Now, it seems, we are seeing how the industry is reacting to the mess everyone half predicted they are in right now. In France, HADOPI has made a report suggesting how they want to modify their administrative policy. From the CMU:

But the latest report from Hadopi, published last week, focused on other forms of online piracy, in particular websites that directly provide unlicensed streams or downloads to users. The authority proposes web-blocking as a method to tackle these sites – an anti-piracy system prioritised over three-strikes in some other jurisdictions.

The report proposes putting statutory obligations on sites to install filters – similar to those already operated by YouTube – to help filter out copyright material uploading without permission by users, with the threat of demoting such sites on search engines or getting court ordered web-blocks against services that fail to meet those requirements.

The agency would also like the power to target the finances of sites that persistently infringe copyright, ultimately utilising court orders to stop infringing sites from taking funds via PayPal or credit card, or from benefiting from ad networks. This is an area where the music industry has already been proactive, working with credit card giants to cut off the income streams of those piracy operations that rely on subscriptions or donations from users.

French ministers will now consider the Hadopi report before making any decisions on future priorities regards its anti-piracy initiatives, at the same time as reviewing the ongoing three-strikes system. All the measures on the table are, of course, controversial in some quarters, with some arguing that three-strikes and web-blocking are overly severe and, anyway, don’t work. Others, meanwhile, say that the content industries should be more focused on launching more compelling legit services than on instigating ever more drastic anti-piracy measures.

So, in other words, they are throwing just about every idea they’ve come up with in the past at the problem and hope some combination of bad ideas will somehow stick and make the perceived problem of piracy go away.

The problem here is that none of these ideas will (and have ever) worked. For instance, the financial blockades was tried by the US government in a failed effort to silence Wikileaks in the midst of the Cablegate issue that exploded in the media back in 2010 and 2011. Blocking all forms of payment only served to temporarily slow financing to the website before the revenue streams restarted later on. On top of that, the Internet has been equipped to handle such efforts thanks to the efforts of BitCoin that was started back in 2009. To put it bluntly, this policy of financial blockades to opponents will only serve to be mildly irritating to a few operators at best. As BitCoin and other ideas mature, financial blockades will become increasingly obsolete methods to stifle others.

Another policy is to downgrade search results of unauthorized sources in mainstream search engines. first of all, this should have been something that legitimate businesses should have solved years ago with better Search Engine Optimization (SEO) policies. Better practices should have downgraded the ranks of the unauthorized sources in the first place – something that obviously never happened. Second of all, those that look for unauthorized sources will always find a way to get them. All someone really has to do is index these unauthorized sources which isn’t very hard in the slightest. Indexing the home pages to these sites, to this day and to my knowledge, isn’t really illegal. So, even if unauthorized sources were to “disappear” from search engines, it will hardly solve anything as other sources will simply fill any void left behind by Google.

A third policy mentioned is site blocking. This policy idea is something that experts, for years now, have warned that will not only not work, but could destabilize the Internet as users switch to more aggressive tactics to keep the Internet as untampered with as possible. A direct example of this is switching DNS servers. Another example is proxy services, VPNs and TOR. If you can’t directly access certain sites, you can ask someone from another country to effectively do it for you.

Everything HADOPI has proposed has never worked and combining all of them will only create an even larger mess (which is hard to believe at this stage, but if they get what they want, that’ll be precisely what will happen) for themselves and they’ll be no closer to solving any of their problems in the first place.

Of course, pushing a bad idea, having that policy be implemented and watching it fail is, by far, nothing new to this industry. They’ve tried banning technology (Re: Betamax and VHS), shutting down major commercial developers of file-sharing (Re: Morpheus and Grokster), shutting down open source variations of that technology (Limewire), shutting down servers that helped run some of these file-sharing networks (Razorback), mass file-sharing lawsuits (which proved to never be a deterrent), shutting down link sites (thereal-world and fucktheintern.net), shutting down open torrent trackers when BitTorrent first took off (SuprNova, TorrentSpy), shutting down private sites (OiNK), targeting big players in the scene (DrinkOrDie, MaVen, Hoodlum, IMAGINE), implementing notice-and-takedown schemes (DMCA, attempted Canadian DMCA’s, etc.), DRM (everything popular was cracked sooner or later), anti-circumvention laws (did that ever really stop much in the first place?), file pollution (In the FastTrack network, only resulted in stronger hashing methods), fake files (file comments and link sites solved that), shutting down topsites (Diamond, but servers simply moved to other countries), dragging users to court (Jammie Thomas and Joel Tennenbaum), taking down crackers (DVDJon), tried implementing the broadcast flag for TV (at WIPO years ago), using copyright as censorship (too many cases to count, only resulted in bad publicity), protocol throttling (solved by protocol encryption and obfuscation), deep packet inspection (solved by stronger encryption, quickly proved to be nothing but an encryption arms race in the end and was abandoned), and a whole host of other tactics. All of these have been tried in the past. Is the industry any further ahead than it was clear back when file-sharing first became a mainstream activity? No. The most that can be said for years of attempting to stem file-sharing is that BitTorrent and cloud sites aren’t really hosted in the US anymore. Once these sites went offshore, that is where any hint of policy success ended.

More than a decade after this whole fiasco started, the industry is still stuck with the demands that they need to modernize their business models. They have just about done everything to not do so. iTunes came along and helped sell MP3’s for the industry, but that was only a start. Pandora also tried to help modernize the industry, but the industry responded by forcing the company to block access to anyone outside of the US, stifling a promising model of introducing music to new fans. Kaleidoscope tried to innovate use of the DVD, but the industry responded by blocking that device from reaching the mainstream market. Real, with their RealDVD tried to legalize what had become the norm for years (ripping DVD’s for personal use), but the movie industry got a court to issue an injunction against it so that the product never came to market. The correct step for the industry would be to try and adapt their business model for the 21st century and they fought any hint of modernization every step of the way. Meanwhile, consumers moved ahead without them and have unauthorized sources to fill the void the industry has left in the marketplace.

The industry has proven that after over a decade of evidence and repeated failed policy, they have not learned nor have they even bothered to progress much. These latest efforts of a three strikes laws, website blocking and financial blockades proves that very little has changed with the industry. The industry is still pushing to implement failed policies and that the industry is trying to come up with any idea they can think of to not move with the times.

A music and movie industry that is moving with the times would be flooding the market with music and movies for cell-phones, tablets, televisions and computers. They would be coming up with ways to directly link sound systems to music stores. They would be promoting themselves on YouTube, FaceBook, Reddit and just about every site under the sun. Then, when people ask them what their thoughts are of unauthorized sources, they would shrug and, at most, say it’s the cost of doing business and the conversation would end. They wouldn’t be hiring legions of lawyers, they would be hiring legions of promoters. They wouldn’t be acting like litigation is the strongest pillar of their model, they would be acting like creating music for a wide variety of tastes the strongest pillar of the industry. They wouldn’t be shutting down any sign of innovation, they would be ahead of the curve and creating innovative and new ideas to put their products forward to a connected audience. They wouldn’t be alienating their audience, they would be connecting with them. If they saw falling sales, they wouldn’t be blaming everyone else, they would accept responsibility for any past failings and vowing that they need to do better to push what they are selling.

Until they understand this, they’ll continue to repeat the same mistakes they have already made repeatedly in the past ten plus years. At this point in time, it seems like they’ll never really “get it”.

Drew Wilson on Twitter: @icecube85

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