WHACK THE GOPHER III: The Return of the Mutant Grandson

While the economics of posting copyrighted work for free on the internet should determine the effort to respond to it, that is not the thing that ultimately determines an effective response.

That is possibility. In other words, can you shut the posters down at any price, not just an economically justifiable one?

The short answer is no.

It doesn't matter whether the free posting of copyrighted work is legal - which it assuredly is not. It doesn't matter if it is moral - which it arguably is not. It doesn't even matter if it causes economic loss to the authors - which is apparently does not. What does matter is whether it can be stopped.

And it can't be. It's as simple as that. And this is point where SFWA vice-president Andrew Burt and his ilk are utterly, completely clueless.

(Burt, of course, is the one who guided the SFWA into filing a massive takedown request under the DMCA against a site in an effort to get them to remove copies of works by Robert Silverberg and Isaac Asimov. The thing turned into a farce when it become obvious that many of the works on the list were not by Silverberg or Asimov and at least one of them had been made freely available under the Creative Commons license.)

Given the structure of the internet there is simply no way to stop the free (in both senses) exchange of copyrighted works, be they music, games or the science fiction stories. There simply are far too many people posting them from far too many places all over the world.

This should be obvious, especially in the light of the Recording Industry of America Association's (RIAA) campaign and its results. RIAA has shut down dozens of web sites displaying pirated music, destroyed a couple of companies (notably Napster) which encouraged the practice and gotten judgments and big fines against dozens of people allegedly exchanging music. All of this, please note, at a cost of millions of dollars.

And the effect on the copying and exchange of recordings? Just about none whatsoever. For every site shut down, for every pirate sued, another, or two or ten spring up to take its place. After years of effort the RIAA is even further from its stated goal of stopping free exchange of copyrighted work than it was when it started. (The RIAA's claims to the contrary won't stand examination. They claim that they've slowed the growth of file sharing, not stopped it or reversed it. Even that claim is highly suspect considering how explosively file sharing grew in the years before the RIAA launched its terror campaign. For one things, explosive growth tends to slow naturally after a few years.)

Well, there has been one effect. In four years, the RIAA has gone from being a relatively unknown mouthpiece for record companies to one of the most hated outfits in America. This is due to a combination of idiotic arguments and fascist legal tactics which have turned even people who've never downloaded a song against the RIAA. Granted that's an accomplishment, but I don't think it's a positive either for the organization or the record companies it represents.

All this is so blatant that even the RIAA now admits the program can't stop piracy.

(The place where the RIAA has been most successful is shutting down paid services that encouraged the practice. That's significant for the real solution to the problem - and the subject for Part IV of this series.)

Half bright ideas

Now as I said before, Burt is misguided but he's not an idiot. He's also computer savvy enough to come up with his own approach to the problem. Burt proposed a half-bright scheme called Shades of Gray involving widely distributing damaged copies of works to swamp the (irony) 'legitimately pirated' (/irony) ones. His theory is that online readers won't be able to trust the copies they find online so they'll buy the books.

The scheme is half-bright because Burt apparently didn't consider what the people who wanted to post these works would do in response to this kind of sanctioned electronic vandalism. The first thing that will happen, of course, is that the pirate community will develop filters to detect the grayed copies. The response will be to develop more sophisticated graying methods - at considerable expense, and the pirates will respond with more sophisticated filters. The result is an arms race and to date such races have typically gone to the pirates.

Again the music and movie industry's example is instructive. They have poured huge amounts into developing copy protection schemes for DVDs and those are being broken almost as fast as they're put into use.

The failure of the DMCA

Even the DMCA, which started this particular thread of nonsense, is pretty much ineffective. As we saw with the SFWA idiocy, a DMCA notice will make a site take down a work, whether it is actually by the person who claims to have written it or not. But the DMCA can't prevent someone from re-posting the same work, especially if they do a little massaging first.

Let's take my story from Analog a few years back "And He Did Ride" about a rather bewildered young man who is sent onto a nasty planet on a rescue mission with an extremely unusual mount. Assume someone OCRs it and posts the file on a site. Then let's further assume that I, the author, in a fit of high dudgeon (and low madness) issue a DMCA demand that the story be removed. The site complies.

End of story? Not hardly.

A poster simply changes the title to "Through The Great Gruesome Swamp By Mechanical Frog", reformats it to fool the filters, says it's by "Fudrucker Q. Hudsucker" and posts it. Since these things are at best quickly scanned before they're posted, it's going to take a long time for someone who isn't in on the gag to find out. Meanwhile there are people out there on the internet spreading the word that Fudrucker Q. Hudsucker's latest opus is really that Rick Cook story about the giant mechanical frog.

Better filters, you say? What happens if I convert the story to a series of image files, one image per page, and give it a pretty, but non-distracting background? The result is much larger, but coming up with a filter to catch it is going to be damn near impossible.

And note the person doing the posting doesn't have to be a computer expert. The pattern for tools against copyright is that the experts write the software and distribute it. Ordinary, if dishonest, schmoes download it and use the easy GUI interface to process the stuff they want to post.

This is not, please note, theoretical. This kind of re-posting goes on every day on YouTube and a lot of other less-well-known sites. We saw an extreme example of this was model Daniela Cicarelli's attempt to block a YouTube video showing her and her boyfriend having sex on a beach in Cadiz Spain. A court ruled the couple's privacy had been violated and ordered YouTube to remove the video. YouTube responded that it had removed the video - repeatedly. People kept reposting it and the result was another round of whack the gopher. The Brazilian court then ordered the video blocked from appearing in Brazil and YouTube and communications companies responded by cutting off YouTube to most of Brazil because there was no other way to keep the video out. Finally some sanity prevailed and another judge overturned the ruling.

Now further note Ms. Cicarelli's net worth undoubtedly exceeds the net worth of SFWA. I don't know how much she and her banker boyfriend spent fighting this thing, but it was probably much more than SFWA could afford to spend on a similar exercise.

And the net result was nothing. The video is still out there and would have been out there even if there was some way to keep it off YouTube.

I don't feel too sorry for Ms. Cicarelli. Granted, her privacy was violated, but anybody having sex in public has to expect that someone will notice. But again, there's simply no way to prevent stuff like this.

The real answer to online posting of copyrighted works is to use common sense. Common sense in the first instance about what can possibly be prevented. And then common sense on what can be economically prevented.

Only after something has passed through those filters can we usefully discuss the moral and legal aspects of the situation.

Does that mean copyright is useless? No. It means you can't stop people from posting for free. Which leads to the next, and I hope, final installment of this thing.