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EXAMINING POLICY AND TECHNOLOGY IMPACTS ON INTELLECTUAL PROPERTY PROTECTION AND ITS EFFECTS ON THE INTERNET
PATRICK LYNN VOGT PURDUE UNIVERSITY 16 DEC 2011
POLICY, TECHNOLOGY, AND IP PROTECTION INTRODUCTION The Internet is a truly remarkable invention. It is among the fastest growing mediums of communication, and it allows anyone to have access to the largest audience in the world. The Internet has been responsible for global collaboration that
has enabled new discoveries to be realized. It has played a pivotal role in the overthrow of dictatorial and tyrannical regimes in the Middle East through its ease of use and decentralized nature. Moreover, it has allowed anyone to obtain any information that could be conceived, so long as those people know where to look. This unfettered access to the world‟s information has allowed people to find answers to their many questions in an efficient manner that would have taken weeks to satisfy using our prior, centralized system of libraries and universities. While the libraries and universities of today have their purpose, the Internet has made possible the access of information to people who otherwise may not have had access. This information can provoke new thoughts and ideas that lead to innovation that spawn new businesses, medical discoveries, and ways of accomplishing tasks, to name a few. In short, the Internet serves as a catalyst that sets to work the intellectual capital that exists in all of us. An informal survey of people will reveal that overall, the Internet is a great force for good that has enabled them to do things that they never imagined. Sending a message to someone around the world – instantly, without additional cost or concern that the message would get lost in delivery, or accessing warehouses of merchandise from different vendors, while being able to compare prices and read what other customers thought of that very item, without leaving the comfort of their home. These
POLICY, TECHNOLOGY, AND IP PROTECTION are just a few anecdotes that ordinary people would render about the Internet – when used correctly, it can be a force for good for both themselves and other people. There are two sides to every coin, however, and the Internet is no exception.
One of the many proverbial elephants in the room concerning the Internet is the ease of downloading copyrighted content without providing fair compensation to the rights holders. However, as I examine other technologies that were once considered new, the use of technology to infringe copyright is one of the many costs that we pay in order for technological progress. This paper will address the complicated ethical and legal issues that arise when content producers use legislative and technical remedies to protect their work. First, the history and purpose of copyright and intellectual property law will be examined and critiqued, as this is the foundation which content providers stand upon to make their arguments. Next, this paper will look at recent technologies that revolutionized entertainment and compare them with the legislative activity levied by lobbying organizations such as the RIAA and MPAA in order to give an historical context of the litigious nature of these organizations. This paper will then investigate the current methods that content producers use to protect their work, and wrap up by examining proposed legislation that is working its way through the US House and Senate with a discussion of how it could affect the architecture of the present-day Internet.
POLICY, TECHNOLOGY, AND IP PROTECTION HISTORY AND PURPOSE OF COPYRIGHT LAW
In order to understand the present state of copyright and intellectual property law, one must examine its history to establish a foundation that will allow for discussion. Because this paper will examine the United States copyright law system, it will need to establish where the foundation for United States law originated. In order to understand the foundation that copyright law was built on in the United States, one must turn to Great Britain to explore the beginnings of their copyright law system and how it came to be. Prior to the invention of the printing press, information in the form of printed material was only afforded to the very wealthy, as each copy of a book or manuscript had to be physically copied by a scribe. Because the technological environment did not easily allow copies of written material to be made, there is very little in the way of formal copyright law to speak of. When the printing press became mainstream, the monopoly of information enjoyed by a few was threatened. The printing press meant that there could be a “much more rapid and widespread circulation of ideas and information. While the state and church thought this was to be encouraged in many aspects…it also meant that undesirable content could…circulate too quickly for comfort.” (MacQueen, 34.) According to the same authors, as a result, many European countries, including Great Britain, began to require a valid license to print works. In England, all of the printers, collectively known as the Stationer‟s Company, were able to require that only certain works were allowed to be printed by certain printers by maintaining a centralized register. In fact, if any books or printed works were found that were not in the centralized register, they could be lawfully confiscated and the printer who printed these
POLICY, TECHNOLOGY, AND IP PROTECTION rogue works could lose the right to print anything at all. In effect, this early form of copyright kept a tight leash on what could be disseminated and had a chilling effect on the technology that could have spread knowledge to the masses. Because the means of production of printing were tightly controlled by a well organized group (known as stationers), authors of content were in a very unfortunate situation. Here was a technology (the printing press) that could allow their works to be inexpensively and widely distributed to those parties who wanted it. However, unless the author could get their work entered into the centralized register maintained by the printers, their work would be unpublished. If an author wanted his or her work to be published, they would have to give publishing rights to the Stationer‟s Company, and would receive a one-time payment for those rights. The printers would then be able to publish the book in perpetuity under their monopoly, enjoying all of the profits while excluding the original author from any royalties. This practice continued until the implementation of the Statute of Anne, the informal name of the longer title “An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned.” This act transferred the right of publication from the printers back to the authors, for a time of 14 years plus an additional 14 years if the author chose to renew the work and was still alive. Compared to today‟s copyright laws, this statute was straightforward and simple – it could fit on a couple of printed pages. Today‟s copyright law spans hundreds of pages and contains a vast array of caveats that leave rights holders and users alike very confused.
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The Statute of Anne closely resembles the original protection provided by the US Constitution to authors of creative works. According to Article 1, Section 8 of the US Constitution, the congress shall “promote the progress of science and useful arts, by securing for limited times, to authors and inventors the exclusive right to their respective writings or discoveries.” When one reads this section of the constitution, it is important to consider that the purpose of providing for such protection is for the benefit of the public – benefactors of the progress of science and useful arts. The founders saw that there needed to be some protection given to authors to encourage them to benefit the public by creating works, but also recognized that that protection needed to be limited. Consider the following situation: suppose a medical researcher discovers a new method for the treatment of a common ailment. Also, consider that copyright law or patent law protects this discovery in perpetuity and the discoverer is able to halt further investigation of other discoveries as his needs have been satisfied. Discoveries that could have been made that benefited the public are left unknown, because there is less of an incentive to make new discoveries. Now consider that copyright law or patent law does not protect the work in perpetuity. The discoverer‟s needs will still be met because he enjoys a limited monopoly, but there is an incentive to embark on new discoveries because each discovery has a limited monopoly. This limited monopoly serves the greater good by balancing the rights of a discoverer against the well-being of the public. The foundation that this paper rests on is that the intent of copyright law and patent law is to balance the rights of creators with the promotion of science and art for the benefit of the public. When that balance is upset, as history shows us, the well-being of all parties suffers. From the moment of our country‟s creation, intellectual property
POLICY, TECHNOLOGY, AND IP PROTECTION authors have enjoyed protection of their work through a limited monopoly right.
According to Tom Bell, author of the paper Escape from Copyright: Market Success vs. Statutory Failure in the Protection of Expressive Works, copyright law in the United States has become so complex and imbalanced that anyone can infringe on copyright without intending to do so. The Supreme Court is hearing a case that illustrates the absurd imbalance that exists in present copyright law legislation in the United States: a musical director was once allowed to publicly perform symphonies from the likes of Stravinsky and Shostakovich because these works were in the public domain. All the music director needed to do was acquire the music and distribute the parts to the musicians. However, congress in their infinite wisdom passed a law that took many works that had been in the public domain for years and put them “back behind the firewall of copyright protection.” (Parry, 2011). Marc Parry interviewed the figurehead of the Supreme Court complaint, Lawrence Golan about his feelings on the matter and his frustration is accurately captured: “It was a shocking change. You used to be able to buy [the scores to] Prokofiev, Shostakovich, Stravinsky [and publicly perform them]. All of the sudden, on one day, you couldn‟t.” Prokofiev and Stravinsky both died in 1953 and 1971 respectively. Like in the olden days of British copyright protection before the statute of Anne, people like Mr. Golan must pay exorbitant fees to monolithic conglomerates while the original creators of these works receive no compensation (because they are dead.) Tom Bell‟s paper does a very good job of graphically showing the „limited time‟ that copyright holders have enjoyed with each new iteration of legislation in the United States.
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Figure 1-1 “Trend of US General Copyright Term” obtained from http://www.tomwbell.com/ writings/(C)Esc.html on 30 NOV 2011
As can be seen in the above diagram, the duration of monopoly enjoyed by content creators has grown from a maximum of 28 years to a staggering “life of the author plus 70 years” (Sonny Bono Act), except in the case of works for hire, which can “only” enjoy duration of monopoly for 105 years. The reasoning behind this comes from the legal definition of “author” under copyright law. Corporations are considered as authors under copyright law if the work is done for hire, and corporations are considered people under a Supreme Court ruling. Therefore, theoretically, if the author of a copyrighted work was a corporation the duration of the monopoly could be enjoyed in perpetuity). Bell‟s paper also compares what was protected under original copyright legislation in the United States versus what is protected under present copyright legislation. The 1790 copyright protected “the reproduction and distribution of protected works. The present statute gives copyright owners exclusive rights to the reproduction,
POLICY, TECHNOLOGY, AND IP PROTECTION distribution, preparation of derivative works, public performance, and public display of protected works.” (Bell, 2001). Who are these laws protecting? Has the legislation
breached the spirit of securing copyright for “limited times” to authors of creative works? How is this an information assurance problem and how does it relate to ethics? PURPOSE OF THIS PAPER This paper will examine the ethical and information assurance consequences that the passage of pending legislation would bring, and will primarily adhere to a technology policy interface exploration through a utilitarian and deontological lens. The argument that the author is making is that existing copyright law and intellectual property legislation is so complicated that almost anyone could infringe on someone else‟s copyright. The corporations and monolithic lobbying organizations that represent current holders of intellectual property have been all too happy to petition congress to pass new laws to limit the public‟s use of new technology under the guise of protecting the sacred rights of content creators. As previously discussed, the RIAAs and MPAAs of today, much like the Stationer‟s Company of the time of the printing presses in Great Britain, have been chomping at the bit to suppress the free flow of information and ideas through further and further oppressive legislation. An online article by Mike Masnick does a fabulous job of illustrating the seemingly insatiable appetite that lobbying organizations have to limit the public‟s use of a new technology. John Philip Souza did not like player pianos in 1906. The MPAA fought tooth and nail to make the Betamax player illegal and did not much care for the VCR either: “We are faced with a new and troubling assault on our fiscal security, on our very economic life, and we are facing it from a thing called the Video Cassette
POLICY, TECHNOLOGY, AND IP PROTECTION Recorder.” (Valenti, 1982). The American Society of Composers and Producers (ASCAP), the organization that represents musical composers, had adverse feelings about consumers having the ability to record music on cassettes. “When the
manufacturers hand the public a license to record at home…not only will the songwriter tie a noose around his neck, not only will there be no more records to tape, but the innocent public will be made accessory to the destruction of four industries.” (ASCAP, 1982). Turner Broadcasting CEO Jaime Kellner did not like the Digital Video Recorder when it was first introduced. This device allows you to record TV shows that use software to teleport viewers through commercials. Cue the hyperbole: “it‟s theft – any time you skip a commercial or watch the button you‟re actually stealing the programming.” (Kellner, 2002). These quotations are just one of many that illustrate the raw fear that these organizations have that new technologies will destroy their business model. They certainly have the acting skills and bastion of hyperbole to get people to listen. Except this time, it is different – they are coming after the Internet. Through lobbying, the house and senate of the United States are considering implementing legislation that allows institutions such as the Department of Homeland Security, Immigration and Customs Enforcement, and the Intellectual Property Protection Task Force, to obtain court orders to shut down websites by seizing domain names and modifying the Internet‟s centralized DNS servers. These legislative endeavors are known as SOPA (Stop Online Piracy Act) and PROTECT-IP act (Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act of 2011). Thus far, this paper has explored the evolution of copyright and intellectual property law and the original purpose. Large lobbying organizations have
POLICY, TECHNOLOGY, AND IP PROTECTION manipulated copyright and intellectual property legislation to the point where the laws and statutes are so vague that anyone could infringe someone‟s copyright by doing almost anything – such as publicly performing the work of a dead musical composer. Now they wish for the House and Senate to enact legislation that would drastically change the architecture of the Internet. EXAMINING PENDING LEGISLATION
Two pieces of legislation are working their way through the United States House and Senate. These two pieces of legislation are titled “SOPA – Stop Online Piracy Act” and “PROTECT-IP – Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property.” While both pieces of legislation have some differing components, there is a tremendous amount of overlap in terms of what action the legislation calls for site owners, top level domain registrars, domain name system operators, and internet service providers to act on in the event of an infraction. This paper will examine the similarities between the two laws that would have the most impact on information assurance and security ethics. According to an informational video published by Fight for the Future, a lobbying group whose primary interest is maintaining the architecture of the Internet, the PROTECT-IP and SOPA acts seek to bring changes to the Internet under the banner of protecting the intellectual property rights of others. While there are many laws in the United States that protect content owners from infringement, such as comprehensive copyright laws that give content creators the tools they need to control nearly every aspect regarding the use of a work, proponents believe that these laws do not provide content owners the tools they need to fight piracy outside of America‟s borders.
POLICY, TECHNOLOGY, AND IP PROTECTION Because the Internet is a global interconnected network, it is possible for there to be copyrighted content being hosted and streamed from a server that does not reside in the United States. Presently, it is very easy for a copyright holder to issue a takedown notice for an unauthorized copy of a movie being hosted on YouTube through the
provisions of the Digital Millennium Copyright Act. However, it is much more difficult for the same effect to occur on a website hosted outside of the United States, such as YouKu or TouDou (Chinese versions of YouTube and Google Video.) What the PROTECT IP act and SOPA seek to do is bypass site owners if copyright holders do not like what is hosted there. The law gives the Justice Department the power to do the following: Modify the Domain Name System so that requests to “www.example.com” fail to load or are redirected to a site under the control of the government. Seize the domain name “www.example.com” by working with top level domain registrars (such as GoDaddy and others) to scrub information from the WHOIS database. This prevents people from finding the true IP address of the server where the content they seek is housed. Requests to the domain name fail to load or are redirected to a site under control of the government. Compel major payment processors such as Visa, Mastercard, Amex, Paypal, and others, to stop payment processing, effectively halting capital and ruining any possibility for the site to conduct business. This paper will now analyze the top two methods that the legislation seeks to enable (due to their close relatedness to the architecture of the global network and to the scope of this paper), discuss the implications of these directives on the global
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network, and explore the information assurance and security concerns that could arise should this legislation be implemented. DNS – THE ADDRESS BOOK OF THE INTERNET According to a whitepaper published by Crocker, et al in 2011, DNS is the system that makes the internet accessible to humans. “When computers on the Internet communicate with each other, they use a series of numbers called IP addresses…to direct their messages to the correct recipient. These numbers are hard to remember, so the DNS system allows humans to use easier to remember words to access websites or send e-mail.” (Crocker, 3). The DNS system as it stands is a foundational piece of the architecture of the Internet. There is no one central DNS server. Instead, there are millions of DNS servers throughout the world. This distributes the load of requests that come from Internet users all over the world. Many ISPs have their own DNS servers that customers can use as part of their Internet service. These DNS servers resolve the requests of Internet subscribers and get their information from authoritative DNS servers. A majority of Internet connected computers have their own local DNS server that resolves IP addresses without consulting the ISP‟s DNS server through DNS caching. This makes the resolution of domain names quicker. However, this can cause a security problem if a computer virus infects the DNS cache of a computer user. For example, using a HOSTS file, viruses can disable the update features of already installed anti-virus software by placing a line in the HOSTS file: “127.0.0.1 update.mcafee.com.” Because the McAfee virus scanning software uses the above named domain to obtain updates, and because 127.0.0.1 is the address of the local computer, requests to that domain will simply
POLICY, TECHNOLOGY, AND IP PROTECTION resolve to the local computer. Because the updates are not housed on the local computer, the anti-virus software will not update. A more nefarious method that virus creators use and exploit the vulnerability of the DNS cache on a local computer is to redirect a seemingly legitimate request, such as “www.microsoft.com” to redirect to a replica site that collects personal information such as credit card numbers. PROTECT IP / SOPA AT ODDS WITH DNSSEC It is for this reason that, according to the Crocker et al paper, DNS is a crucial part to the security infrastructure of the Internet. The architecture of the Internet relies on “universal naming” (Crocker et al, pg 3) to resolve requests. Numerous websites, databases, and networked applications depend on the DNS to work as designed –
when a user types a domain name “www.example.com” in the USA, it should return the same content as if a user requested “www.example.com” in China. This is the basic conceptualization of universal naming. The authors of the Crocker whitepaper are concerned that “mandated DNS filtering by name servers threatens universal naming by requiring some name servers to return different results than others for certain domains.” (Crocker et al, pg. 4.) PROTECT IP and SOPA, as part of their effort to crack down on international copyright infringement, seek to apply the same DNS filtering techniques that oppressive governments like those found in the middle east and China use. Users of this different type of Internet expressed their frustration in the TECH 621 course at Purdue University. Paraphrasing Mengjun Liao from a discussion of differences in the Internet between the US and China, she expressed frustration that it was not uncommon for
POLICY, TECHNOLOGY, AND IP PROTECTION requests to access a website come back denied, or for e-mails to fail to send/receive due to messages being routed to the incorrect server. Crocker, et al. express deep concern with the dissonance between what this
legislation seeks to do and years of security updates on the DNS system. “Redirecting users to a resource that does not match what they requested is incompatible with end to end implementations of DNS Security Extensions (DNSSEC)…any filtering by name servers, even without redirection, will pose security challenges, as there will be no mechanism to distinguish court-ordered lookup failure from temporary system failure.” (pg. 5). Security researchers and various administrations of the United States Government including the Bush and Obama administration have applauded DNSSEC. The DNSSEC security update standardizes end-to-end request fulfillment and makes it extremely difficult for man-in-the-middle attacks to occur between authoritative and recursive DNS servers. DNSSEC has the great potential to make the Internet activities that users complete to be more secure than ever, as more applications have yet to implement the standard. The authors express concern that developers of secure applications and the organizations that implement them will have a high risk of breaking because when a DNS request is redirected to a resource that was not requested, DNSSEC standards set into motion behaviors that could hypothetically prevent the application from carrying out its instructions. The reason that this would occur is “a resolution failure from a name server subject to a court order and from a hacked name server would be indistinguishable.” (pg. 5.) Consequences could include inaccessibility to online banking applications, stock trading, etc.
POLICY, TECHNOLOGY, AND IP PROTECTION DNS FILTERING EASILY BYPASSED It is possible to use the Internet without relying on a DNS server, however
inconvenient it might be. An easy way that DNS filtering could be completely bypassed by ordinary users is to bookmark the IP addresses of their favorite infringing sites as opposed to the domain name. More advanced users can update their HOSTS file to bypass the DNS entirely and resolve the IP address on the local machine. Determined web site operators can operate their own DNS servers with ease. It would be incredibly easy to create a solution to completely bypass DNS filtering. For example, Internet users could install special programs on their computers that identify when a domain lookup fails. For example, one could create a program that monitors the traffic of your Internet connection. When a domain name is typed and the request comes back unfulfilled (such as a 404 not found or a timeout) the program could step in and try to resolve the IP address on tens if not hundreds of DNS servers and compare the resolution results… in under a second. The program could then route the person to the requested resource. This method would be resilient because it would not depend on whitelists to be pushed to a browser plugin (which will be discussed later), so it would be conceivable to access a blocked resource before a human intervenes and pushes an update. Another method to bypass the DNS system is to install a browser plugin that retrieves whitelists from a trusted location and redirects users to the correct IP address when a DNS lookup is known to fail. An example of such a browser plugin is known as MAFIAA Fire and is free to download and install on any Mozilla browser such as Firefox.
POLICY, TECHNOLOGY, AND IP PROTECTION This method is not as resilient as the previous method, because it depends on a whitelist for the logic that supplies the redirect. INFORMATION ASSURANCE AND SECURITY RISKS OF DNS CIRCUMVENTION
If legislation prevents the Internet from working as users expect, users will resort to the above named as well as other behaviors to restore functionality. The work of Crocker, et al highlights three major security and performance concerns that relate to Information Assurance and Security: “increased cyber security risks, ISPs losing visibility into network security threats, and CDNs would likely face degraded performance.” (pg. 12) As mentioned earlier, the DNS system as it stands universally resolves requests to the intended resource. New protocols such as DNSSEC encrypt the requests and ensure that the responses are legitimate. If they are not, the protocol initiates action such as preventing the page from loading to protect the end user. Users will change their DNS settings or bypass the DNS system altogether if universal naming and DNSSEC are modified through mandatory DNS filtering. While most major ISPs and DNS servers in the US use the DNSSEC protocol, offshore DNS servers largely do not, according to Crocker et al. When users utilize DNS servers that do not utilize DNSSEC, they are exposed to a wide variety of vulnerabilities such as impersonation, phishing, and hijacking. Crocker et al puts it best: “Although some pirate operators may decide to run “honest” DNS servers in an effort to gain the trust of users, at least some of the overseas DNS servers are likely to act on their economic incentive to exploit their access to the sensitive communications of some Americans.” (pg. 11).
POLICY, TECHNOLOGY, AND IP PROTECTION Some performance issues that arise from DNS filtering include the negative impact on the performance of content distribution networks and the impact that DNS
filtering could have on subdomains. When a user is using a DNS server abroad, content distribution networks (which store copies of websites and content to ensure faster performance) will assume that the user is making the request from abroad. As a result, the content distribution network will serve content from non-local servers resulting in a delay of content reaching the requestor. Another issue of DNS filtering is the impact that such filtering would have on subdomains. As an example, suppose there is a cybercriminal operating on Microsoft‟s cloud service, which has a domain of onmicrosoft.com. The Department of Justice could issue a court order mandating that authoritative DNS servers modify their tables to cause requests to onmicrosoft.com to fail and redirect to the DOJ‟s homepage for example. The problem is, while it will prevent the behavior of the cyber-criminal (whose domain is internetbadguy.onmicrosoft.com) to fail, the legitimate behaviors of millions of users who depend on the service will fail also, because the entire domain was blocked. An event like the one just described occurred for a very popular sheet music repository (imslp.org) because the site allegedly linked to a copyrighted work whose rights were controlled by the Music Publishers Association of Great Britain. This resulted in a different form of Internet domain disablement to occur in the form of a DMCA takedown notice issued to Go-Daddy (the Top Level Domain Registrar of the imslp.org domain). This resulted in Go-Daddy scrubbing the actual IP address of the IMSLP server from the WHOIS database. The authoritative DNS servers picked up the WHOIS information and propagated it to the recursive DNS servers. This ultimately led
POLICY, TECHNOLOGY, AND IP PROTECTION to the entire IMSLP.org domain to be inaccessible for a number of weeks. The takedown also had the effect of disabling e-mail communications, so the Music Publishers Association of Great Britain was confounded when their e-mails were
bouncing back as unreachable. Undoubtedly, this (erroneous) takedown affected other critical operations of the IMSLP organization that have not been disclosed. This paper will address the potential information assurance and security concerns that can occur when top-level domain registrars operate at the whim of scary court orders issued by corporate entities. The purpose of this case was to illustrate that the courts are not infallible and that instituting such drastic architectural changes such as DNS filtering can cause more harm than good. UTILITARIAN ANALYSIS OF DNS FILTERING When examining the good that filtering domains accomplishes and compare it with the good that is accomplished from a secure global DNS system, it is apparent that filtering domain names is a poor solution. A secure DNS system allows Internet users to be assured that the content they are served because of a request is legitimate as verified by DNSSEC. Holding universal naming in high regard ensures that the requests you make in Indiana will resolve the same way as if you made the request in California. The bottom line is that a secure and universal DNS system instills confidence in Internet users. This confidence spawns innovations such as online banking, e-commerce, and cloud computing as examples. DNS filtering rolls back the foundation of confidence that users place in the Internet. It makes application developers and entrepreneurs uncertain of what the Internet infrastructure will look like six months or one year from now.
POLICY, TECHNOLOGY, AND IP PROTECTION Businesses do not like uncertainty – investors will be less keen to support start-ups if they are unsure that the application they develop will break because of misguided legislation.
The only thing that DNS filtering can do for copyright owners is foil the efforts of casual users who get content from “www.example.com.” DNS filtering, however, does not stop someone from entering “184.108.40.206” and obtaining the exact same content. From a purely utilitarian viewpoint, DNS filtering in the name of protecting copyright holders of infringement fails miserably. This opinion is backed up by the Crocker et al paper: “DNS filtering will be evaded through trivial and often automated changes through easily accessible and installed software plugins. Given this strong potential for evasion, the long-term benefits of using mandated DNS filtering to combat infringement seem modest at best.” (pg. 9-10). ICANN: PROVIDING TRUST TO DOMAIN NAME REGISTRARS The other method that PROTECT IP and SOPA use to shut down alleged international copyright infringing websites is to work with domain registrars such as GoDaddy to scrub the information of the original domain owner to information mandate by a court order. Domain registrars are a critical part in ensuring that each domain on the Internet is unique, and thereby reliable. If domain registrars and their processes did not exist, there could be multiple owners of the same domain. In effect, this could fragment the Internet so that there would appear to be multiple versions. The organization that ensures that all domain name registrars play by the rules is the Internet Corporation for Assigned Names and Numbers (ICANN). ICANN operates as an administrative and accrediting organization that give registrants confidence in the
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domain registrar that they choose to deal with. While there are many domain registrars around the world, there is only one accrediting organization, which is ICANN. ICANN operates under contract to the United States Department of Commerce. When a registrant registers a domain name with a registrar, he will usually check to ensure that the registrar is an accredited one. The reasoning behind seeking an accredited registrar is simple: in order to become accredited, a registrar must take steps to ensure that a domain name is unique and ensure reliability. A registrant desires these things in a domain name registrar. While unaccredited registrars exist, ICANN itself advises registrants to only do business with accredited registrars. While it is very difficult to gain ICANN accreditation, it is easy to lose it. Losing ICANN accreditation would mean that new customers would be less likely to do business with them and go to accredited registrars. Because ICANN is the only accrediting agency for domain registrars, getting on its bad side would be disastrous. Since ICANN depends on the US Department of Commerce for funding, it has an implicit desire to placate the government. This chain of accountability coupled with an absence of competition gives court orders submitted to domain registrars high weight – even if that domain registrar is accredited overseas and not legally bound by US law. Suppose a German Domain Registrar (such as EPAG GmbH) receives a nice note from Universal Pictures that a website (call it www.getfreemovies.de) is hosting an infringing work and that attempts to contact the owner of getfreemovies.de has failed. Universal Pictures politely explains that it would be in their best interest to comply with turning over the domain name to them because the site is dealing in intellectual property theft, contrary to US law. EPAG now has a choice: they can comply with the request or tell
POLICY, TECHNOLOGY, AND IP PROTECTION Universal to go away, as they have no jurisdiction. EPAG would be within their legal
rights to refuse to comply with Universal. However, because the accreditor (ICANN) of EPAG is under contract with the US Department of Commerce, pressure could be put on EPAG by ICANN to comply. If EPAG still did not comply, ICANN could strip EPAG of their accreditation. Current holders of domains might move to competitors, and new registrants would be less likely to do business with them. Funding dries up for EPAG and they go out of business. Let us examine ICANN‟s incentives to put pressure on EPAG. The US Department of Commerce is a primary funder of ICANN, despite ICANN being a private entity. ICANN‟s contract undergoes periodic review from the US Department of Commerce, and it would be highly likely that when it came time to review the contract, entertainment companies such as Universal could lobby the government to yank funding due to ICANN‟s apparent lackadaisical attitude related to protecting the intellectual property of US citizens and corporations. INFORMATION ASSURANCE CONSEQUENCES If ICANN becomes more intertwined with the US Government than it already is, and they start acting in such a way that make registrants unsure if their registrar will be accredited next month, the market will demand and create other accrediting organizations. Instead of one Internet that works well, new protocols will emerge such as mesh networking, that cause information to be accessible on one network and not another. The market could demand and create ICANN like organizations in several countries. In the long term, this would improve the resiliency of the Internet and make it less easily controlled by a single entity (as has been illustrated with ICANN). However,
POLICY, TECHNOLOGY, AND IP PROTECTION there would be short-term consequences that could stunt the growth of the Internet, causing economic and usability consequences to end users.
One example of a usability consequence is the method by which domain names are assigned. When a registrant registers his domain name with a registrar, it is checked against a database (WHOIS) that ensures that the domain name is unique. If it is, the domain can be sold to the registrant. This cost covers the operations of modifying and maintaining the database that authoritative DNS servers consult to direct requestors to content. The system is currently set up such that it takes only a couple of hours for a newly registered domain name to come online worldwide. In a more decentralized system, there would need to be more checks and balances to ensure that the authoritative DNS servers are picking up the correct information. The increased checking and data redundancy could cause processing times to increase. The domain registration process works so well because systems that are located all over the world talk to each other. If the market were to create multiple versions of ICANN like organizations around the world due to the present ICANN becoming irrelevant because domain registrars do not trust their accreditation granting behavior, there are more opportunities for there to be miscommunication between systems. This miscommunication could cause fragmentation of the Internet. If, for example, the EU WHOIS database maintained by the EU ICANN did not want to talk to the US WHOIS database maintained by the US ICANN, a registrant who wanted to access the EU market could not. The technical cause would be because the authoritative DNS servers that the EU ISPs use would not pick up the information that the authoritative DNS
POLICY, TECHNOLOGY, AND IP PROTECTION servers that US ISPs use, because they use different WHOIS databases to obtain the information that updates their respective authoritative DNS servers. DEONTOLOGICAL ANALYSIS OF PROTECT IP / SOPA PROTECT IP / SOPA would very much like to see entities concerned with
making sure the Internet works as it is supposed to responsible for operating as an arm of the Department of Justice. The record of accomplishment for the Internet operating as it is supposed to is quite good. According to Alan Cane of the United Nations Public Administration Network, the Internet has never completely failed. Granted, particular areas have become unavailable, but the entire system has always worked. Even when a critical undersea cable was damaged and the main link to India, Pakistan, and Sri Lanka was cut off, traffic continued to be routed through other pipelines. Service was “erratic, but it never stopped.” (Cane, 2009). On the other hand, the record of accomplishment of the United States Department of Justice operating as it is supposed to is lackluster. One only needs to turn on the news to hear about the failed operation of “Fast and Furious” which supplied guns to cartels so that the Justice Department could determine where the bosses were. Unfortunately, the DOJ lost track of the weaponry and it was eventually used against US interests that culminated at the death of a US Border Patrol agent. For a deontological analysis, one must ask, “whose duty is it to protect intellectual property?” The following paragraphs seek to establish that it should not be the responsibility of the stewards managing the Internet architecture. DNS administrators, Domain Registrars, and ICANN should not be required to operate at the whim of the US Justice Department. Should we hold gun manufacturers liable for the
POLICY, TECHNOLOGY, AND IP PROTECTION actions of the people who use them, or car manufacturers liable for how people drive them? Just because a person can do something with a tool does not mean that they should. It should be apparent that the duty to protect intellectual property does not lie
with network operators – there is nothing they can do about intellectual property theft (if there is such a thing.) They can take steps to make it more difficult to access unauthorized copies of intellectual property, but the proposed policy has a damaging effect on the global network that our society has come to rely on. Network operators are not the people making unauthorized content available – it is users. The duty to protect intellectual property should lie with the people who benefit from its creation – both content creators and consumers. CONCLUSION Content creators must recognize that the Internet is a form of competition. Creating legislation that tries to hamper that competition is destined to fail. Instead, content creators should embrace the new distribution medium and make it less desirable to procure content from a location that is outside of their control. Operations like Spotify and Hulu make it easy for consumers to gain instant access to content at a low price of either their money (monthly fee) or their time (advertising). People need to be aware of the effort that content creators put into their work and the consequences of not providing compensation do to them. It is the consumer‟s duty to be conscious of where their money and support is going. The Internet enables consumers to benefit content creators more directly. A prime example of this is content creators making their works directly available on the Internet. Instead of only gaining a
POLICY, TECHNOLOGY, AND IP PROTECTION few cents per track (as is the arrangement with record labels,) content creators can
directly interact with consumers and gain more monetary compensation because there is less overhead and more revenue potential. Not only can content creators gain money from consumers, but also from advertising. If for example your content attracts a certain demographic, advertisers catering to that demographic would be eager to offer monetary compensation for displaying their advertisement on your store‟s site. It is outside of the scope of this paper to analyze the attitudes that people have regarding intellectual property. However, it is apparent to this author that there has been a growing imbalance of rights between content creators and consumers. It is ultimately up to content producers to shape consumer behavior through increased education and trust that the consumer will do the right thing when presented with reasonable choices.
Bibliography Bell, T. W. (2001). Escape from copyright: Market success vs. statutory failure in the protection of expressive works. Retrieved from http://www.tomwbell.com/writings/ (c)Esc.html Cane, A. (2009, September 7). Internet crash - could it really happen?. Retrieved from http://www.unpan.org/Regions/Global/PublicAdministrationNews/tabid/102/mctl/A rticleView/ModuleId/1461/articleId/20089/Internet-crash--could-it-reallyhappen.aspx Crocker, S., Dagon, D., Kaminski, D., McPherson, D., & Vixie, P. (2011, May). Security and other technical concerns raised by the dns filtering requirements in the protect-ip bill. Retrieved from http://www.circleid.com/pdf/PROTECT-IPTechnical-Whitepaper-Final.pdf Fight for the Future. (Producer) (2011). Protect ip, sopa break the internet [Web]. Retrieved from http://www.vimeo.com/31100268 Liao, M. (2011, November). In M Dark (Chair). Comparing internet differences of united states and china. Presentation delivered at Purdue University, West Lafayette, IN. MacQueen, H., Waelde, C., & Laurie, G. (2007). Contemporary intellectual property: Law and policy. (p. 34). Oxford: Oxford University Press Masnick, M. (2011, November 22). The definitive post on why SOPA and PROTECT-IP are bad, bad ideas. Retrieved from http://www.warpspeed.com/ wordpress/?p=7868
Parry, M. (2011, May 29). Supreme Court takes up scholars’ rights. Retrieved from http://www.chronicle.com/article/A-Proessors-Fight_over/127700/ United Kingdom. (1790). Copyright act 1709 (8 Anne c.19). London, England. U.S. Const. art. I, § 8
Works Consulted Doctorow, C. (31, July 2006). Drm: Bad for customers, business any which way. Information Week, 72. Ginsburg, J. (2007, February 1). The pros and cons of strengthening intellectual property protection: Technological protection measures and section 1201 of the us copyright act. Retrieved from http://ssrn.com/abstract=960724 Grey, C. (Producer) (2011). Copyright: Forever less one day [Web]. Retrieved from http://www.youtube.com/watch?v=tk862BbjWx4 ICANN. (n.d.). Retrieved from http://www.icann.org/en/about/ McLeod, K. (2005). Freedom of expression: Overzealous copyright bozos and other enemies of creativity. New York: Doubleday. University of Texas. (2010, October 27). Retrieved from http://www.utexas.edu/its/help/domain-name-hosting-and/848 Von Lohmann, F. (2010). Unintended consequences: Twelve years under the dmca. Wilson, I. (2011, April 21). Imslp takedown: Here we go again. Retrieved from http://johnsonsrambler.wordpress.com/2011/04/21/imslp-takedown-here-we-goagain/
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