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What Does The PRO-IP Act Mean for 21st Century Culture?

So uncritically do we accept the idea of property in ideas that we don’t even notice how monstrous it is to deny ideas to a people who are dying without them. So uncritically do we accept the idea of property in culture that we don’t even question when the control of that property removes our ability, as a people, to develop our culture democratically. Blindness becomes our common sense. And the challenge for anyone who would reclaim the right to cultivate our culture is to find a way to make this common sense open its eyes. So far, common sense sleeps. There is no revolt. Common sense does not yet see what there could be to revolt about.”

– Lawrence Lessig, Free Culture (L)

The 21st century is a time of testing the limits of Moore’s Law. Intel Co-Founder Gordon E. Moore observed in a 1965 paper that integrated circuits were doubling nearly every year — he predicted that computer hardware, and that technology itself, would double in performance every 18 months (10). Every continent in the world is connected via a set of fiber-optic and satellite backbones. An idea can be birthed in a consulting office in Wyoming on Monday morning, touched up in India Monday night, and reviewed for client submission when the workday starts on Tuesday. The ability to transfer data between virtually any two points on the globe is the result of many extremely intelligent individuals working together. For what, one might ask? Perhaps to conquer the “tyranny of geography” (1), or simply to create a means for information, ideas, and cultural expression to flow freely on a global scale.

As a simple sub-title to his complex essay, ‘The Optimistic Thought Experiment’, ex-CEO of PayPal Peter Theil wrote the following,“In the long run, there are no good bets against globalization” (2). Theil is respected as one of the most knowledgeable people in the “Web 2.0” (3) realm. This simple phrase shall serve as a basis for some of the logic presented within this text. In an analysis of open source applications, Amit Deshpande and his team that from 1993 to 2007, the development and use of ‘open-source’ applications has increased exponentially (4).

The concept behind open source applications is simple. Along with the runnable, usable version of the software, the developer would also release the source code used to produce it, under whatever creative license he saw fit. Others could modify this code to create new features, close up security holes, or use it as a foundation for another application all together. Programs then created from open-source code must also follow the licensing rules set forth by the original creator, which often means keeping the new code open as well. With the movements like open-source and ‘Free Culture’ on the rise, humans are reaching an unprecedented time where global collaboration can be accomplished from one’s living room. Lessig quotes the originator of the free-software movement (5) in stating that the term ‘Free Culture’ doesn’t refer to “free” as in “free beer” but “free” as in “free speech,” or “free trade” (L). This difference is the pivotal point in which technology can lead to a breakdown in the fundamental philosophies of cultural growth.

The passing of the PRO-IP act is the latest in a string of actions taken by the U.S. Government that result in further constricting the free exchange of ideas. On Friday, September 26th 2008, the United States Senate unanimously passed the final revision of the PRO-IP Act of 2008 (6). Two days later, on Sunday night, the House of Representatives passed the bill (6). On October 13th President Bush signed the bill into office (7). The Prioritizing Resources and Organization for Intellectual Property Act — referred to simply as the PRO-IP Act throughout this text — has received heavy criticism from organizations both involved with the protection of open communication as well as those involved with protecting the rights of the individual.

The PRO-IP Act, in it’s essence, adds penalties for those infringing on intellectual property and creates a cabinet-level position deemed the ‘IP Officer’ (IP for ‘Intellectual Property’) who reports directly to the Deputy Attorney General (8). No longer must the infringer merely delete the infringing data and pay overwhelming fines.

The following property is subject to forfeiture to the United States:

(i) Any copies or phonorecords manufactured, reproduced, distributed, sold, or otherwise used, intended for use, or possessed with intent to use in violation of   section 506(a) of title 17, any plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be made, and any electronic, mechanical, or other devices for manufacturing, reproducing, or assembling such copies or phonorecords.

– Section 202.b.1.g.1.i of Full Text, HR4279 (8)

The bill is vast in it’s listing of what kinds of devices can be ‘subject to forfeiture.’ As Sherwin Siy, staff attorney at Public Knowledge noted in a blog post “Any number of multipurpose devices even those not owned by the infringer could get caught up in the net of forfeiture penalties” (9). If Mom and Dad do their taxes on the family computer, and little Jimmy uses it to download his favorite pop song, Mom and Dad ‘forfeit’ their accountant (not to mention investment), and Jimmy’s sister cannot do her homework anymore. In addition to forfeiture of the offending material, the device that the material is stored on, as well as devices with the ability to copy said material, are now seizable by the U.S. Government under this law. The bill also includes text to seize devices owned by individuals who are ‘aiding and abetting’ those infringing on intellectual property. Would Sony have survived if customers who copied movies on VHS for their friends were considered felons and thrown into prison?

The second portion of the bill is framed to appoint an “Intellectual Property Enforcement Officer” who reports to the Deputy Attorney General. The ‘IP Officer’ is to be appointed by the Attorney General.

Duties- The IP Officer shall
(1) coordinate all efforts of the Department of Justice relating to the enforcement of intellectual property rights and to combating counterfeiting and piracy;


(2) serve as the lead representative of the Department of Justice on the advisory committee provided for in section 301(d) (2) and as the liaison of the Department of Justice with foreign governments with respect to training conducted under section 522

– Section 501.b.1&2 of Full Text, HR4279 (8)

The U.S. Department of Justice has chimed in opposing the bill, primarily for the text found in Section 502, discussing the duties of the IP Officer. This section states that the IP Officer will coordinate all efforts that the Justice Department may deal with, in relation to intellectual property and piracy. This action could take away the branch’s power to overturn unsatisfactory intellectual property law.

IPEN, or the Intellectual Property Enforcement Network is proposed in a currently benign bill titled the “Intellectual Property Rights Enforcement Act” (11). IPEN would work with the PRO-IP act in forming a network capable of enforcing intellectual property rights. Unfortunately, the rights of the fading (or at least lobbying) MPAA and RIAA would come before the vast culture of independent production flourishing on the web. IPEN membership is described below:

MEMBERSHIP- The IPEN shall consist of the following officials or their designees:

(A) The Deputy Director for Management of the Office of Management and Budget, who shall serve as the chairperson of the IPEN.
(B) The Coordinator for Intellectual Property Enforcement, described in subsection (b)(2)(A), who shall serve as vice chairperson of the IPEN.
(C) The Deputy Attorney General.
(D) The Deputy Secretary for Homeland Security.
(E) The Deputy Secretary of the Treasury.
(F) The Deputy Secretary of Commerce.
(G) The Deputy Secretary of State.
(H) A Deputy United States Trade Representative, as determined by the United States Trade Representative.
(I) Such other officials as the members of the IPEN shall consider necessary and appropriate.

– Section 4 A.2 of Full Text, S.522 (11)

Patiently waiting, this bill is ready to show up on the Senate floor. It will likely show up just after a catastrophe on the web involving copyright infringement. As with the PATRIOT act after the terrorist attacks of 9/11/2001, this bill was written prior to implementation, waiting for it’s best chance to be passed. In politics, it is common to defensively form bills, as the future is impossible to discern. It is for this reason that developers need to defend the market from such catastrophes – to prevent any form of perceived need for government intervention.

Culture is blossoming.

Take this thesis as an example — while it’s stringing together of words may be unique, it is merely a composition of ideas formed by other individuals. Walt Disney based his works on tales written before he was born. Tina Fey’s fame grew exponentially after copying the mannerisms of Sarah Palin on Saturday Night Live. Daft Punk created a number of hit songs from guitar riffs found in songs written in the 1970′s. Snoop Dogg made a hip-hop version of the song “Riders on the Storm” by The Doors for a video game. Culture spawns culture. To restrict a new idea from entering all available forms of media is to restrict the growth of culture itself.

You can’t purchase land that would block a vital traffic artery in a big city, but you can copyright an idea that would advance innovation and stop that innovation in it’s tracks. This is an idea proposed by “NoSoftwarePatents.com” under the page title “Patents as Weapons.” Intellectual Property is often compared to meat-space property when looking for precedents of rule. This idea brings forth an interesting perspective on these precedents. Should software patent and copyright applications all receive a review of their potential market constriction? Should ideas that would enhance the lives of the majority be forced into the public domain?

Artists embracing free media have been overwhelmingly well received. Radiohead’s album, ‘In Rainbows’ was released in-store and online. On the web, users could download the album, paying as much as they felt reasonable. While only a small percent of users paid, their cultural roots among web users and fans became rejuvenated. The album was very well received and their dropping of old business models had defied all predictions. Estimates say that there were 1.2 million downloads on the first day, but no official number has been announced (12). Radiohead has since gained world-wide fame and recognition, aside from an increasingly large fan base. Mozilla released version 3 of it’s open-source browser, Firefox, to an audience of 8 million unique users it’s first day available(13). This substantially boosted Mozilla’s browser market-share and set a Guinness World Record for the most unique downloads in a single day. Still vying for dominance over Microsoft’s “Internet Explorer,” Firefox has since this released continued to gain popularity and reverence among the open source and independent developer communities.

Typing this, I’m listening to an album downloaded via a controversial file-sharing technology known as BitTorrent. The BitTorrent protocol takes advantage of the concept of a ‘swarm’ of simultaneous downloaders to pass large amounts of data in small pieces across the Internet to each other in the most efficient way. This eliminates the need for a central server, as the data is stored in pieces throughout the network by other users; centralized servers serving copyrighted works are often shut down quickly. The name of the album is “Soundtrack To A Vacant Life” by “The Flashbulb.” This album is part of the net label (think “Record Label”), Alphabasic. Alphabasic’s CEO Benn Jordan includes a file with each of the torrents uploaded to promote the artist. The file is named “Please_read.html” (In full below, (14)) is included with the song files in the torrent; it begins:

Hello listener…downloader…pirate…pseudo-criminal…

If you can read this, then you’ve more than likely downloaded this album from a peer to peer network or torrent.

You probably expect the rest of this message to tell you that you’re hurting musicians and breaking just about every copyright law in the book. Well, it won’t tell you that.

– First four lines of “Please_read.html” (14)

The file then goes on to explain Alphabasic’s web-based nature. It explains how the artists with the label receive a much larger percent of the album money than a traditional label by avoiding retailer markup and label margin. A net label is comparable to record label except that it distributes it’s media only via download, as opposed to record or compact disc. Only time will tell whether net labels will impact the music industry. Businesses with older, rigid, business models shall have to adapt these models if they wish to remain atop the growing number of forms in which media can be distributed. The letter to the user ends with the following sentence:

Who knows if my little business plan here will work to fund new releases, but even failure is better than the crappy label/distributor/retailer system musicians have suffered from for over 50 years.”

– From “Please_read.html” (14)

Jordan seems to understand the risk he’s taking on as the head of a label who’s freely distributing albums. With this knowledge, he reaches out and tries creates a very human connection with end user. In my opinion, this very connection is the reason the Internet was created. The web allows everyone to have a voice. The web creates a space-less plane for innovation, creativity, collaboration, and cultural diffusion. Artists and developers must ally against government intervention by choosing appropriate models of distribution for their works. Through name recognition and tour purchases, many musical artists directly benefit from the free exposure the web can facilitate. After crafting good applications, developers often freely distribute the software on the web. This recognition and exposure often results job offerings with major software firms.

Excuse me, Market, did you make a left at the last intersection? I think Government went right.

“Copyleft” is a license used by some software developers as a play on the term “Copyright.” A Copyleft symbol (A copyright symbol flipped horizontally) denotes that the software is freely distributable, modifiable, and copyable – however it has no legal meaning. The market is moving towards total information diffusion and government is moving towards a patent-locked state of privacy invasion and electronic search and seizure. Given the current state of the economy, MPAA and RIAA lobbyists will likely push more bills such as the PRO-IP Act under the guise of protecting domestic assets and cash flow. Citizens of the United States have embraced Barack Obama as the next president, who is stately for net neutrality. Supporting net neutrality means embracing the idea that service providers must allow users to access each part and all protocols on the web equally. The telecommunications giant, Comcast, has been reprimanded for breaking net neutrality by throttling the bandwidth of users using BitTorrent protocols for sharing information. Embracing net neutrality shall be a major step towards bringing government up to speed with the market, but further steps must be taken by the market to ensure proper enforcement and accountability.

On December 2nd, Facebook rolled out it’s new site browser, “Connect.” Connect is a system to connect the site with other social networking sites Digg and the popular television show social site, Hulu (15). After the implementation of web technologies like AJAX and“Ruby On Rails,” web applications became exceptionally inter- operable and have become increasingly decentralized. Open web application programming interfaces (API’s) allow services to communicate with one another seamlessly in real time. Identities are stored in the cloud with protocols such as Open ID, so users return to trusted sites to login that then forward identity information to the receiving site over trusted encryption protocols.

Google stores massive quantities of archived mail, documents, and identities. Facebook stores massive quantities of private communications. Shurgard, a company that rents out storage space, stores massive quantities of old clothing and trinkets. From meatspace to cyberspace, property (intellectual or otherwise) is trusted to businesses. Should Shurgard look at all the items in a client’s storage space to target them with advertising? Common sense says no, but without proper surveillance of their customers (e.g. watching and analyzing each item brought in by the customer) they cannot gain the necessary information to do so. Web services are also trusted with private property, namely identification information and private messages. Due to the nature of the web, servers can easily perform surveillance on client data. This data can be used in very unobtrusive ways, generally benefiting the end user.

I am 20 years old. I weigh 150 pounds. Don’t try to sell me a weight loss pill.

Targeted advertising, if implemented correctly, can be a very beneficial service to both businesses and customers. A company that produces a weight loss pill doesn’t want to pay to show me their advertisement. I’m a wasted cause. The minute I spend watching a commercial for an erectile dysfunction pill would be much better spend watching a commercial for a new snowboard brand. The snowboard company would benefit better from it’s exposure to a potential customer (e.g. Me) than to the old man the Viagra commercial is aimed at. I would rather see an advertisement for my favorite band’s local concert than for a new tampon brand. A businesses ability to target it’s advertising specifically at potential customers will directly influence it’s ability to make profit. Spending 2 million dollars on a commercial for dancing shoes during the Super Bowl would be a wasted sum of money; the audience consists of primarily drunk alpha-males, not dancers. Software designed to extrapolate marketably-relevant information from the user must be anonymous and relatively secure, so that identity harvesting is not possible. Artists can benefit greatly from the exposure brought by targeted advertising. New technology allows for this targeting to be very transparent on the client’s machine. Developers must create applications with good intentions, and must be very thorough when inventorying security vulnerabilities. Without actively protecting the good-faith nature of the web, developers and artists cannot expect to defend it from government surveillance and intervention.

What’s the PRO-IP Act mean for 21st century culture?

It means we’re close to losing the flow of culture that the Internet so greatly facilitates. It means that politicians, not engineers and philosophers, are being pushed by corporate mammoths to determine the fate of the Internet. Never before in our history has man had such an opportunity to acquire knowledge from his bedroom. Coincidentally, as Lessig points out, “Never in our history have fewer had a legal right to control more of the development of our culture than now” (L). In the name of preventing piracy, lobbyists have backed laws granting the government the ability to label a majority of Americans as felons. Common sense — senses something wrong.

Artists and developers seeking inexpensive exposure and low market-entry costs need to forge an alliance determined to prevent government intervention and regulation of web technologies. On the macro scale, corporate producers focus much of their efforts hunting down any misuse of their works, however, the micro-scale producers and artists are giving their work away in increasing numbers. The PRO-IP Act favors the corporate giants, copyright squatters, and lobbyists, while the independent producers gain little credit for their generous contribution to human culture.

In his essay, Theil explains his idea of the two potential long-term futures. The first potential, a grim vision of humanity destroying itself through war. No matter the efforts, all is lost in this case. The latter potential, however, is more bright. In the long term, if humanity continues to connect at it’s current rate – the humans of the earth will form one global social organism. The ruling powers shall become more liberal toward arts and culture, and vast cultural expansion shall occur. Common sense prefers this vision.

Appendix

1) Mitch Kapor, Main Stage at “SL5B”, Second Life, Closing Statement; Discussing how virtual meetings overcome geographic distance as an obstacle of collaboration.

2) Peter Theil, “The Optimistic Thought Experiment” Essay http://www.hoover.org/publications/policyreview/14801241.html

3) “Web 2.0” is a term often used to signify the bubble of growth in web-applications after the programming technique called AJAX (Asynchronous Javascript and XML) was perfected and implemented successfully in the public domain through the web-application “Google Maps”.

4) “The Total Growth of Open Source” Amit Deshpande, 2008; Analysis of Open Source applications http://homepages.uc.edu/%7Edeshpaaa/oss-2008-total-growth-final.pdf

Amit Deshpande's Analysis of Open Source Applications

Amit Deshpande's Analysis of Open Source Applications

5) Richard M. Stallman, Free Software, Free Societies 57 (Joshua Gay, ed. 2002)

6) IP piracy bill passes through US Congress – New York Times http://www.nytimes.com/idg/IDG_852573C400693880002574D3004F1C93.html?scp=2&sq=pro%20ip&st=cse

7)”Bush signs controversial anti-piracy law”, Washington Post, 13 October 2008
http://www.washingtonpost.com/wp-dyn/content/article/2008/10/13/AR2008101301551.html

8) H. R. 4279 Open Congress, PRO-IP Act of 2007; Full Text
http://www.opencongress.org/bill/110-h4279/text

9) Stacking Penalties Upon Penalties (PRO-IP Passes Senate) , Sherwin Siy, 26 September 2008; http://www.publicknowledge.org/node/1767

10) Moore’s Law, Wikipedia; http://en.wikipedia.org/wiki/Moore%E2%80%99s_law

11) “Intellectual Property Rights Enforcement Act” (Bill S.522), OpenCongress;
http://www.opencongress.org/bill/110-s522/text

12) Radiohead, Wikipedia http://en.wikipedia.org/wiki/Radiohead

13) Mozilla Firefox 3, Wikipedia http://en.wikipedia.org/wiki/Mozilla_Firefox_3

14) The Flashbulb – Soundtrack To A Vacant Life torrent file “Please_read.html”:

Hello listener…downloader…pirate…pseudo-criminal…

If you can read this, then you’ve more than likely downloaded this album from a peer to peer network or torrent.

You probably expect the rest of this message to tell you that you’re hurting musicians and breaking just about every copyright law in the book. Well, it won’t tell you that.

What I would like to tell you is that my record label understands that a large portion of people pirate music because it is easier than buying it. CDs scratch easily, most pay-per-download sites have poor quality and shitty DRM protection, and vinyl is near impossible to find or ship without hassle.
In many cases I wonder why people buy CDs at all anymore. A few like the tangible artwork, some haven’t adapted to MP3s yet, but most do it because they have a profound love for music and want to support the artists making it. Kind of restores your faith in humanity for a moment eh?

So, now what?
Like the album? About to go “support the artist” on iTunes?
Well, don’t.
Alphabasic is currently in a legal battle against Apple because NONE of our material (Sublight Records included) receives a dime of royalty from the vast amount of sales iTunes has generated using our material.

Want to buy a CD just to show your support?
If you don’t particularly like CDs, don’t bother.
Retailers like Best Buy and Amazon spike the price so high that their cut is often 8 times higher than the artist’s. Besides, most CDs are made out of unrecyclable plastic and leave a nasty footprint in your environment.

If you do particularly like CDs, buy them from the label (in our case, alphabasic.com). After manufacturing costs are recuperated, our artists usually receive over 90% of the actual money coming out of your wallet.
In addition, all of our physical products are made out of 100% recycled material.

Want to show your support?
Go here (www.alphabasic.com) and browse our library of lossless, DRM-free downloads.
Already have that?
Then feel free to donate whatever you want to your favorite artist.
100% will go directly to them.
Hell, you can even donate a penny just to thank the artist.

If you really like ‘The Flashbulb – Soundtrack To A Vacant Life’ and want to show your support without it going to greedy retailers, distributors, and coked-up label reps, then click the button below.
If you send us your mailing address, Alphabasic may occasionally send you various goodies (overstocks, stickers, even rare CDs) in appreciation and encouragement for your support.

[Some “donate to the artist” links]

Thanks for reading.
Who knows if my little business plan here will work to fund new releases, but even failure is better than the crappy label/distributor/retailer system musicians have suffered from for over 50 years.
We hope you enjoy the music as much as we do releasing it.
Finally,
if you plan on sharing this release, please include this file. The only reason it is here is to show the listener where he can support his favorite artists!

Benn Jordan
CEO – Alphabasic Records

15)Facebook Rolls Out Site Browser, BBC News, 02 December 2008 http://news.bbc.co.uk/2/hi/technology/7759304.stm

L) Lawrence Lessig, Free Culture, 2004; Full Text Available Online
http://download.nowis.com/index.cfm?phile=FreeCulture.html&tipe=text/html

Creative Commons License
What Does The PRO-IP Act Mean for 21st Century Culture? by Michael Seman is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 Unported License.
Based on a work at devicesherpa.com.

11. December 2008 by Mike
Categories: Editorial | Tags: , , , , , , , , , , , , , , , , , , | 14 comments

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