Case in point: Less than 15 percent of U.S.-based online video viewers use file sharing for their movies and TV show fix, according to Ericsson’s TV & Video Consumer Trend Report 2012 (PDF). Netflix on the other hand is used by around 55 percent. Hulu, websites of TV networks, iTunes and Amazon’s VOD offering are also more popular than piracy.

Compare that to Spain, where legal services are still in their infancy: Spanish online video users primarily access their shows and movies through “other means,” which likely stands for unlicensed streaming sites. File sharing is also hugely popular, and being used by more than 30 percent of all users. Licensed services on the other hand are far less popular, with none of them attracting more than 15 percent of all users.

So what should Hollywood do to fight piracy? One easy fix would be to license more content to Netflix and its competitors, and put up fewer restrictions on accessing this type of content.

However, in the U.S., the industry is actually moving into the opposite direction: Last fall, Fox began delaying access to its TV shows on Fox.com and Hulu.com for people who can’t authenticate themselves as subscribers of affiliated pay TV providers or Hulu Plus. It’s difficult to draw conclusions about the effect of these measures from Ericsson’s numbers, but it’s notable that both Hulu’s numbers and the use of TV networks’ websites went down when compared to 2011. Piracy and “other” means to access content on the other hand grew slightly.

It’s too early to tell whether the industry’s love affair with TV Everywhere is driving viewers back to piracy – but on a global level, the message seems clear: Instead of forcing countries to adopt ever stricter copyright laws, Hollywood would be well-advised to help services like Netflix and Hulu with their international expansion.

Photo courtesy of (CC-BY-SA) Flickr user Richard Masoner / Cyclelicious.

Related research and analysis from GigaOM Pro:
Subscriber content. Sign up for a free trial.

• Q4 Wrap-up: SOPA and the future of digital content
• Connected world: the consumer technology revolution
• OTT technologies and strategies for broadcasters

This week, the Justice Department posted a regulation that will allow all copyright holders — no matter how small — to download and use the logo. According to the FBI, the initiative was spurred by groups like independent film makers and sports leagues that have been clamoring to use the image:

The new rule is remarkable in that it places few limits on who can use the logo — which is familiar to most consumers who are forced to stare at it while waiting to watch a home movie. Under modern copyright law, a work doesn’t have to be registered to receive protection — the copyright springs to life as soon the work is created. That means everything from a blockbuster movie to a doodle on a napkin is copyrighted (and now eligible for the logo).

The Justice Department and the agency acknowledge that “widespread use of the APW Seal may “dilute” the value of the image and the FBI’s message” but claim that any potential logo-fatigue will be offset by “increasing the anti-piracy message across the board.”

The new rules coincides with increasingly aggressive tactics, such as wholesale domain name seizures, by the federal government to target intellectual property theft. This approach may appeal to copyright owners who are frustrated with the failure of anti-piracy laws like SOPA, but it may also prove short-sighted in the long term.

Criminal law is a heavy stick that should not be used casually. Most copyright vi0laters are not serious criminals like those the FBI typically confronts, but are instead ordinary people hoping to watch their favorite TV show. This plan to let anyone invoke the symbol of a heavily-armed law enforcement agency could ultimately undermine the overall legitimacy of copyright law.

The plan is also notable in that the FBI has aggressively challenged Wikipedia and others over the use of its logo. Federal criminal law forbids misuse of the logo but Wikipedia has maintained the law doesn’t apply to legitimate purposes like news reporting (as we have used it above).

A final regulation will be posted in the Federal Registry on Friday, according to Politico. The plan will be implemented by Executive Order which states that copyright owners (from bloggers to doodlers) can use it provided they download it from the FBI’s website and make sure it appears in a plain box border.

Here is a copy of the draft regulation:

FBI and Copyright
(Image by John Roman Images via Shutterstock)

Related research and analysis from GigaOM Pro:
Subscriber content. Sign up for a free trial.

• After the blackout: How the IT industry can stop SOPA in the long term
• SOPA, OPEN and the fight for the Internet
• Connected consumer first-quarter 2013: Analysis and outlook

In case you missed it, the first save-the-internet declaration kicked off in Silicon Valley this week and was quickly countered by a conservative alternative. Soon after, the United Nations weighed in with a manifesto of its own.

This burst of political energy shows that the internet may be the next ground zero of revolution and that we may need a Constitution-like document to define its values.

For confused internet warriors or those who simply want to stay out of the way, here’s a quick look at the new movements:

Movement #1: The Declaration of Internet Freedoms

What it is: A statement of five principles — Expression, Access, Openness, Innovation and Privacy — intended to keep the internet safe from censors, tyrants, plutocrats and the government.

Brought to you by: Silicon Valley tech and media types; the folks who brought down the SOPA anti-piracy bill

Pros: Nice idea, backed by folks who make cool web stuff and haven’t done you any harm

Cons: Preaching to the converted; hippies; shaky legal foundation (see Elie’s Constitutional mark-up here)

Movement #2: The Technology Revolution: A Campaign for Liberty Manifesto

What it is: A libertarian proclamation to protect the internet from censorship and the “collectivist-Industrial complex — a dangerous brew of wealthy, international NGO’s, progressive do-gooders, corporate cronies,” and to ensure that telecom and big data companies aren’t burdened with regulation.

Brought to you by: Rep. Ron Paul (R-Tx) and Sen. Rand Paul (R-Ky), end-the-Fed folks, the ghost of Ayn Rand

Pros: Backed by political pros; laissez-faire outlook

Cons: Gives Microsoft, Comcast et al keys to the entire internet; possibly catastrophic for privacy and the poor

Movement #3: The Promotion, Protection and Enjoyment of Human Rights on the Internet

What it is: A UN Human Rights Council consensus resolution that affirms the Universal Declaration of Human Rights and recognizes the internet’s role in promoting a right to media and expression

Brought to you by: The foreign minister of Sweden (via the NY Times) but also the fine governments of China, Cuba, Congo, Kyrgyzgstan, Nigeria, Uganda, Russia and Saudi Arabia (full list here).

Pros: Ringing affirmation of free speech and media across borders

Cons: The new world order; rabid anti-Americanism

Who do you cast your vote for?

In a perfect world, a future “Constitution of the Internet” would represent the idealism and tech savvy of Silicon Valley, the political experience of Ron Paul and the global community of the United Nations. But is this even possible? Some people may embrace this rush to stand up against threats to the internet — while others may be more alarmed by the internet’s self-appointed protectors.

(Images by Rob Kints, fourb, patrimonio designs limited and Oleksiy Mark via Shutterstock)

Related research and analysis from GigaOM Pro:
Subscriber content. Sign up for a free trial.

• CES 2012: a recap and analysis
• 12 tech leaders’ resolutions for 2012
• After the blackout: How the IT industry can stop SOPA in the long term

MegaUpload founder Kim Dotcom may fit the larger-than-life image most people have of an internet pirate — after all, he is huge and wears black, and drives cars with license plates that say “Guilty” on them. Richard O’Dwyer is the polar opposite: he is a soft-spoken 24-year-old who started a website based in Britain called TV Shack that consisted only of links. Despite their differences, however, the U.S. government is trying to extradite O’Dwyer to the United States to face charges of criminal copyright infringement. While Dotcom hosted terabytes worth of infringing files, O’Dwyer simply linked to them — but in the eyes of the U.S. Justice Department, these two things are virtually equivalent. If the case proceeds, it could force us to change the way we think about some of the fundamental underpinnings of the web.

There are several elements that make the O’Dwyer case particularly important, factors that have led some prominent technology players to mount a protest over his potential extradition, including a petition started by Wikipedia founder Jimmy Wales (which my colleague Bobbie Johnson wrote about) that now has more than 200,000 signatures. In an opinion piece he wrote recently for The Guardian‘s comment section, Wales — who is now also an advisor to the British government — said that while he is in favor of strong copyright protection for content creators of all kinds, that commitment only goes so far. As he put it:

It does not mean that we should abandon time-honoured moral and legal principles to allow endless encroachments on our civil liberties in the interests of the moguls of Hollywood.

The U.S. wants O’Dwyer extradited for linking

By way of background, O’Dwyer started the TVShack.net website in 2007 as a resource for those who were looking for either live-streaming video versions of television shows or for downloads. A disclaimer on the site at the time it launched said: “TV Shack is a simple resource site. All content visible on this site is located at 3rd party websites. TV Shack is not responsible for any content linked to or referred from these pages.” The U.S. government disagreed, however: in 2010, officials with the U.S. Immigration and Customs Enforcement Department (ICE) seized O’Dwyer’s domain and shut the site down. O’Dwyer then moved to a different domain and that was seized as well.

The British government considered mounting a case against O’Dwyer for linking to copyright-infringing material, but decided not to — in part because an earlier case against a similar website that also linked to streams and downloads of TV shows was thrown out, after the judge decided that linking to copyright infringing videos is not a crime. There have been similar cases in other jurisdictions, including a recent ruling by the Federal Court of Canada that said linking to a photo was not considered copyright infringement for the purposes of that country’s criminal code.

The U.S. wasn’t willing to give up so easily, however: the government started an extradition case against O’Dwyer, arguing that he should be sent to the United States to face a trial that could put him in prison for up to 10 years. In March, the Home Secretary ruled that the extradition could proceed — despite the fact that extradition to the U.S. is only supposed to occur when the acts involved are considered to be a crime in both Britain and the United States. O’Dwyer is now appealing that ruling (a news story on Tuesday said the Home Office had decided to back the extradition despite the protests and petitions in his favor, but Wales said on Twitter that this isn’t true).

@MadBennett HO has not responded. I expect them to respond positively soon to meeting with me. Low-level spokesman wrong.

—
Jimmy Wales (@jimmy_wales) July 03, 2012

The O’Dwyer case has no connection to the U.S.

As Wales notes in his Guardian op-ed, the O’Dwyer case is just another example of the impulses that drove U.S. legislators to push forward both SOPA and PIPA — the anti-piracy laws that sparked a massive outcry online last year and led to both of the proposed bills ultimately being shelved. In both of those pieces of legislation, websites could be removed from the internet and subjected to prosecution if their “primary purpose” was judged to be piracy or copyright infringement. In a similar way, the U.S. is likely to argue that since O’Dwyer linked primarily to illegal copies of TV shows, he should be guilty of secondary infringement for “inducing” others to post copyrighted content.

The concept of “inducing” infringement by others is also a centerpiece of the MegaUpload case, but at least that involves files being uploaded to servers owned by Dotcom’s company — O’Dwyer simply linked to things, just as Google or any other search engine does, and he also took down links whenever a rights-holder asked him to, which is one of the tests for when a company should be entitled to “safe harbor” under U.S. copyright laws. Not only that, but the only connection to the United States is that U.S. citizens presumably accessed the website, just as anyone can access a website anywhere, regardless of where they live.

Those two factors — the nature of the website as a collecter of links, and the lack of any connection to the United States that would justify an extradition — are what make the O’Dwyer case particularly troubling. With the case, the U.S. government appears to be asserting that linking to copyright infringing files under any circumstances should not only be an offence but an extraditable offence, and that the U.S. government is fully prepared to reach into other countries and extradite their citizens when there is virtually no connection whatsoever between that person’s acts and U.S. law or jurisdiction.

As media and entertainment conglomerates continue to put pressure on the U.S. government to enact or agree to legislation like SOPA and PIPA, or their international equivalents such as ACTA, cases like O’Dwyer’s should raise some troubling questions about how far the authorities are prepared to go, and what the ultimate impact will be on the web as we know it. If you’re interested in more of my thoughts on the case, I recently spoke about these issues on a CBC Radio program in which Jimmy Wales also appeared.

Post and thumbnail images courtesy of Flickr users Mark Strozier and Keith Allison

Related research and analysis from GigaOM Pro:
Subscriber content. Sign up for a free trial.

• SOPA, OPEN and the fight for the Internet
• Pinterest reawakens Napster-style debate over copyright
• CES 2012: a recap and analysis

As general counsel for Avvo, a social media startup that offers an expert-only Q&A forum and profiles and ratings of lawyers, doctors and dentists in the U.S., I’ve seen firsthand how those with the means to do so will exploit any opening possible to try to silence speech they do not like. I’ve responded to hundreds of lawsuit threats and lawsuits against Avvo on grounds ranging from privacy to commercial misappropriation to unfair competition to copyright or trademark infringement — all for activity that is soundly protected by the First Amendment.

The takeaway is simple: any attempt to regulate speech online — whether in service of “stopping piracy” or “defending against cyberattack” — must be ruthlessly interrogated for how it will be abused. Because it will be abused. Those with censorious impulses will push the four corners of the law as far as possible to silence speech they don’t like. It is depressingly common to see the mere threat of a lawsuit cause a withering of speech online. It’s vitally important that we recognize and call out the certainty that even well-intentioned laws that impact expression will be used as a bludgeon against the open expression of information and ideas online. In addition to opposing SOPA and its ilk, here are three areas where companies can take a stand to protect free speech on the Internet.

1. Retain anonymous comments.

Are anonymous comments less credible than those attributed to a person? Of course. Does anonymous commentary increase the likelihood of “flaming” attacks and false statements? Naturally. But anonymity has its place. Anonymous authorship of the Federalist Papers allowed the founders of the republic to circulate ideas unsullied by the personality of those espousing them. Anonymity offers protection from retaliation and harassment. And in the case of today’s online forums, it allows the posting of sensitive material (think, for example, of doctor reviews by patients) free of privacy concerns. Ultimately, it should be up to readers to determine whether they trust an anonymous comment rather than censor the message altogether. The cure for speech you don’t like shouldn’t be to curtail it, but to create an environment in which more speech can flourish.

2. Support existing laws enabling online forums. 

Credit for much of the robust sharing of ideas and information online can be laid at the feet of Section 230 of the Communications Decency Act (CDA) and the Digital Millennium Copyright Act (DMCA). Although the DMCA in particular was controversial among free speech advocates when it was enacted, it created a good balance between the needs of online forums and those of rights holders. And by immunizing interactive service providers from liability for third-party comments, CDA 230 enabled the flourishing growth of user-generated content, from reviews on Yelp to videos on YouTube. These two stalwarts are the sort of laws those of us in the online community should stand behind — laws that allow breathing space on the Web without limiting free speech. Attempts to gut these laws — whether legislatively (SOPA) or judicially (Viacom’s continuing battle with YouTube) — should be actively resisted by all who care about robust and free-flowing interaction online.

3. Enact a national anti-SLAPP law.

“Strategic lawsuits against public participation” are a form of “lawfare,” a use of the courts to bully speakers into staying silent for fear of incurring the costs of defending a lawsuit. As a company that rates and profiles lawyers, Avvo has seen more than its share of threatened and actual lawsuits. Fortunately, Avvo is based in Washington, which — along with California, Texas and a number of other states — has a robust anti-SLAPP statute. Such statutes level the playing field by allowing those exercising their First Amendment rights to quickly dispose of lawsuits designed only to silence them. And as the last attorney to sue Avvo discovered, losing a SLAPP suit in Washington state also means paying our attorney fees and a $10,000 fine.

But not every state has such protections. In New York, Florida and dozens of other states, it’s still far too easy for speech to be chilled by the prospect of defending against uncertain and costly litigation. To help change this, the Public Participation Project (PPP) is spearheading the effort to enact full anti-SLAPP protections at the federal level. Such a law would end forum shopping in defamation cases and be a powerful development for free speech online. I’m on the board of the PPP, and I encourage everyone with an interest in free speech to support its good work.

As the Internet becomes more and more vital to our daily lives, it is inevitable that legislators will continue to propose laws restricting it. Many of these laws will be cast in moral tones, imploring us to “think of the children,” protect people from cyberbullying or save us from criminals. These may be laudable goals, but it’s incumbent on the Internet community to ask whether the price in free speech online is worth it. And it’s not going to be. There’s no way to restrict just the bad and preserve only the good. Limits and restrictions invariably favor one class of speaker over another, impoverish the discourse and reduce transparency. Ultimately, the answer to concerns about the messiness of communication online lies in what caused the messiness in the first place: Keep the discussion as wide open as possible.

Josh King is vice president of business development and general counsel of Avvo, a free social media platform that provides a health and legal Q&A forum and a directory of doctors and lawyers in the U.S.

Image courtesy of Flickr user Newtown grafitti.

Related research and analysis from GigaOM Pro:
Subscriber content. Sign up for a free trial.

• SOPA, OPEN and the fight for the Internet
• Google doesn’t like walled gardens — except its own
• CES 2012: a recap and analysis

The Disruptive Competition Project. DisCo (short for Disruptive Competition) debuted Monday morning with a Web page and some blog posts that help outline its mission. The site, and the concept of a think tank to discuss companies that are changing established industries, are part of the CCIA, the association for the computing industry. However, the site will feature its own staff on a variety of topics, from Web TV to privacy.

The goal is to help regulators understand the other side of the story, so when a company such as Aereo, which lets subscribers record broadcast television to a DVR, pops up, the established industry doesn’t have the only say in Washington. The benefits of DisCo might mostly accrue to startups, but even established companies could benefit. For example, Dish’s ad-skipping DVR technology is something DisCo hopes to address on its site.

Engine Advocacy. Sometimes a startup, be it in Silicon Valley or in the middle of America, needs information and an understanding about how Congressional politics will affect them. They also need a voice in the process, but few entrepreneurs have the time or inclination to call their representative or organize a lobbying effort. Engine Advocacy, created by a Democrat and Republican in San Francisco, aims to fill this niche, helping startups understand and take action early on issues relevant to them.

Engine rose to prominence by building a calling tool that was featured on several websites during the SOPA and PIPA protests. It uses the Internet to help aggregate voices and disseminate information, but it also has the technical know-how to build tools that will amplify the voices of its members and participants. In the same way that hooking up Twilio to a Web front end and a database made it easy for individuals to find and call their representatives during the SOPA protest, Engine provides both a stance and Web tools to broadcast that stance. See our video with Engine Advocacy co-founder Michael McGeary below:

TestPAC. Think tanks and a lobbying organization are all well and good, but money is a surefire way to influence candidates and get your issues on the front burner. And because the Internet is great at bringing together people with ideas and asking them for money, TestPAC, the first Internet political action committee, was born. It has a Reddit subgroup and a democratic structure, with people able to vote on the issues it wants to focus on as well as campaigns it plans to run.

Unfortunately, TestPAC didn’t get the funding it needed to buy all the advertising it wanted. Plus, its uber-democratic methods and lack of knowledge around election laws have led to some stumbles, documented in this profile of TestPAC in Mother Jones. The net result was that TestPAC’s first goal, to keep SOPA sponsor Rep. Lamar Smith (R-Texas) from getting 50 percent or more of the vote, failed in the May 29 Texas primaries.

The Internet Defense League. Taking the idea of rallying people to the next extreme is Reddit founder Alex OTK’s idea of creating a distress call for the Internet. People and companies can sign up their websites and will then be able to broadcast a code notifying visitors to that site of an action that Congress is planning to take that will affect the Web.

It’s modeled on the SOPA blackout that occurred in January, and it has Reddit, the Cheezburger network and a few other big-name sites signed up. The League says it will work with groups like the Electronic Frontier Foundation and Public Knowledge to detect threats to the Web, but I do wonder how effective this will be, given the overall nuances associated with most legislation. It’s rare to get a bill so bad that the entire (or even a significant portion) of the Internet will oppose it.

Will the Internet eat Washington or will Washington eat the Internet?

Taken together each of these efforts contain elements that other political alliances and organizations should note. Because they were born from the Internet, they are adept at using the tools of the Web to educate, disseminate information, encourage action and raise money. But because the Internet is a huge contingency and still isn’t as well-organized as other special-interest groups, it will be worth watching to see how much of an effect these groups can have on politics.

Can they change the game, or will their best tactics just get subsumed by the larger lobbying and political organizations? I don’t know, but it’s good to see the wider Web trying to get involved.

Related research and analysis from GigaOM Pro:
Subscriber content. Sign up for a free trial.

• 12 tech leaders’ resolutions for 2012
• Content monetization: News licensing and syndication still need marketplaces and infrastructure
• Q4 Wrap-up: SOPA and the future of digital content

Even as Internet-control bills like SOPA and PIPA were making their way through the Senate and House of Representatives earlier this year (only to be short-circuited by public opinion), there was another potential firestorm brewing just beneath the surface — one that is expected to erupt in a matter of months in Dubai. That’s because the International Telecommunications Union, an arm of the United Nations, wants very much to take over management of the Internet, a plan that will be debated by member nations in Dubai. On Thursday, a bipartisan group of U.S. congressional officials said they will resist this attempt with everything they have. But will it be enough?

A resolution released on Thursday by the members of the Commerce, Manufacturing and Trade Subcommittee called on the government (PDF) to implement a position on Internet governance that “clearly articulates the consistent and unequivocal policy of the United States to promote a global Internet free from government control and preserve and advance the successful multi-stakeholder model that governs the Internet today.” One member of the bipartisan committee, Rep. Fred Upton (R-Mich.), said in a statement before the hearing that:

The Internet has become this economic and social juggernaut not because governmental actors willed it to be so, but because the government took a step back and let the private sector drive its evolution. International regulatory intrusion into the Internet would have disastrous results not just for the United States, but for people around the world.

More than one observer, however, has noted the irony of Congress’ becoming so concerned about control of the Internet when that’s exactly what certain members of the House and Senate were trying to implement by promoting SOPA and PIPA — bills that would have imposed a wide range of responsibilities on Internet service providers and others in the name of copyright protection and were widely criticized for infringing on freedom of speech and the open Internet.

If it’s global, the UN says it should control it

The rationale for the move by the ITU seems to be that because the Internet is a global entity, it should be managed according to global standards. At the moment, control over the fundamental levers and gears that underlie the Internet — including the domain-name system — lies with ICANN (the Internet Corporation for Assigned Names and Numbers), which is a private, U.S.-based nonprofit organization. The secretary-general of the ITU, Hamadoun Toure, told Vanity Fair that “When an invention becomes used by billions across the world, it no longer remains the sole property of one nation, however powerful that nation might be.”

Although ICANN says it operates on a multistakeholder model that involves groups like the Internet Engineering Task Force and the World Wide Web Consortium, there has been a lot of criticism of the organization over the years, from allegations of conflicts of interest to moves such as the recent expansion of the top-level domain system — an expansion that could lead to hundreds of new domains such as .lol and .youtube. Some believe this was an unnecessary landgrab by domain registrars and could actually make the Internet more confusing rather than less.

Whatever the flaws of the current system, however, critics of the ITU’s plans — including one of the “fathers of the Internet,” TCP/IP developer Vinton Cerf, who testified before the congressional subcommittee on Thursday — say putting control of the Net under the UN body would subject the Internet to the whims of many nations whose commitment to democracy and free speech is questionable at best, including China and Russia. Cerf, who is currently the chief Internet evangelist at Google, said the move would threaten the free and open nature of the Internet:

Such a move holds profound — and I believe potentially hazardous — implications for the future of the Internet and all of its users. If all of us do not pay attention to what is going on, users worldwide will be at risk of losing the open and free Internet that has brought so much to so many.

A revenue grab and a tool for dictators?

The group could not only be forced to consider a host of issues such as blocking access to specific websites or services based on regional laws — such as Germany’s ban on Nazi references or Turkey’s ban against criticism of the country’s founder, Mustafa Kemal Ataturk — but critics have warned that the ITU could also start meddling with the system of payments that international telecommunications companies have put in place for handing off Web traffic as it moves around the globe. They are afraid ITU members will try to siphon off some of those payments to fill the pockets of their ailing state-owned phone and Internet companies.

In an op-ed in the Wall Street Journal earlier this year, Federal Communications Commission member Robert McDowell also warned that some of the countries who belong to the ITU — each of whom gets a single vote — are interested in restraining the essential freedom of the Internet because it causes problems for dictatorships and autocracies:

[L]et’s face it, strong-arm regimes are threatened by popular outcries for political freedom that are empowered by unfettered Internet connectivity. They have formed impressive coalitions, and their efforts have progressed significantly.

In addition to the resolution passed by the congressional subcommittee and statements against the ITU move by groups such as the Internet Society and the Center for Democracy and Technology, there are several petitions circulating on the Internet aimed at raising awareness about the UN’s plan. One urges the ITU to “release your preparatory documents; recognize the role of the user, and reject any proposals that might centralize control of the internet.”

Activism by concerned citizens helped derail SOPA and PIPA, but these were bills being promoted through the U.S. Senate and House of Representatives, not the United Nations. And at the UN and within the ITU, there are some very powerful states whose interests lie in controlling the Internet in a much more fundamental way than either SOPA or PIPA did. Whether criticism from the U.S. or anywhere else is enough to stop that effort is an open question, one that will be answered once and for all in December in Dubai.

Post and thumbnail images courtesy of Flickr users Jason Parks and Ryan Franklin

Related research and analysis from GigaOM Pro:
Subscriber content. Sign up for a free trial.

• CES 2012: a recap and analysis
• 12 tech leaders’ resolutions for 2012
• Q4 Wrap-up: SOPA and the future of digital content

The latest example involves Louis Vuitton. This week the luxury handbag maker asked a Florida court to take action against hundreds of websites with names like “louiszvuitton.com” and “knockofflouisvuittonhandbags.com.”

The case is significant because Louis Vuitton did not simply ask for an order restraining the websites from using its trademark. It also wants to zap them from the Internet altogether by forcing registrars like Go Daddy to unplug them and for search engines to deny their existence.

In this case, Louis Vuitton appears to be borrowing from a playback that Chanel has been successfully executing in Nevada since last fall. In that state, a federal judge has repeatedly granted injunctions that force Go Daddy and Google to participate in the enforcement actions. Here’s an example from an order handed down earlier this month (the language is technical but it’s easy enough to make out the general drift) :

The Registrars and the top-level domain (TLD) Registries for the Group VIII Subject Domain Names, upon receipt of this Preliminary Injunction shall … change or assist in changing, the Registrar of record … GoDaddy.com, Inc. shall hold and/or continue to hold access to the Group VIII Subject Domain Names in trust for the Court during .. this action. Godaddy.com shall.. modify the Domain Name System ..

Plaintiff may enter .. the Group VIII Domain Names into Google’s Webmaster Tools and cancel any redirection to the domains.

In its Florida complaint, Louis Vuitton is asking the court for similar orders.

The significance of this is that the luxury brands are taking actions similar to those proposed in the Stop Online Piracy Act, a piece of legislatin that went down in flames earlier this year. SOPA was so unpopular because it would have required tech companies to meddle with the technical integrity of the Internet.

With their injunction requests, Chanel and Louis Vuitton have discovered an end run that will let them do the same thing.

The issue here is not that these websites should be allowed to sell fake merchandise — the issue is that courts are giving brand owners private powers that may not be sanctioned by law. Meanwhile, the federal government is also using questionable tactics.

The FBI, for instance, has been seizing websites on the basis of anti-drug laws and then playing Hollywood propaganda messages on them. None of this is appears to be authorized under federal criminal law.

To learn more about the Chanel seizures, see trademark lawyer Venkat Balasubramani’s explanation on TechDirt. You can also see the hundreds of domain names in question below:

Louis Vuittion Complaint
(Image by Laschon Maximilian)

Related research and analysis from GigaOM Pro:
Subscriber content. Sign up for a free trial.

• CES 2012: a recap and analysis
• 12 tech leaders’ resolutions for 2012
• LTE-Advanced: what it is and isn’t

The Pirates saw their first major electoral success in the European elections of 2009, when voters in the movement’s birthplace of Sweden returned a Pirate to the European Parliament. The Swedes didn’t vote the Pirates into their own legislature, mind you, but now big wins are coming in Germany, the continent’s largest economy and the ideological home of the hacker movement.

Why Germany? Because that’s what the Pirates are trying to do: hack politics, in the sense of making-and-tweaking-stuff sense, rather than destroying it. The movement may have begun with a narrow focus on intellectual property, but it has developed into an attempt to make the political process transparent — and of course better suited to the digital age.

Piratical beginnings

The first Pirate Party appeared in 2006, when Swede Rick Falkvinge (‘Falconwing’, a name he came up with for himself) decided to rally advocates of copyright reform. His case was strongly aided by legal attacks on The Pirate Bay, the notorious file-sharing site, but the remit grew to take in stances on software patents (bad), DRM (bad) and transparent government (good).

Then came the 2009 European elections, which eventually led to all the Pirates’ digital policies being adopted by an alliance of left-wing parties, including the Greens, and last year, when Pirates grabbed all 15 of the Berlin state parliament seats they stood for.

Then the Pirates moved up another step, winning four state parliament seats in the western Saarland region. They’re likely to repeat the trick again in two more upcoming state elections, and current polling has them on track to come third in the national elections next year.

If the German Pirate Party was a tech startup, now would be the phase where it’s seeing a surprising number of downloads and starting to panic about scalability. Pirate politicians are only now getting their first experience of power and responsibility, and they know it — they’ve ruled out joining any coalition federal government (Germany does coalitions, almost all the time) until the 2017 elections.

Not that anyone would want to form a coalition with them yet. The Pirates have declared that they will only go into partnership with a party that agrees to livestream the coalition negotiations, so everyone can see what deals are being cut. Right now, that’s a no-go for every party bar the Pirates themselves.

Liquid Feedback

One thing that’s important to remember about the Pirate movement is that, like Silicon Valley to some extent, it brings together a spectrum of people ranging from techno-utopian left-wingers to libertarian right-wingers. This creates a broad base — but means that on a lot of essential stuff that doesn’t relate to the common ground of intellectual property reform and transparency, the Pirates actually don’t yet know what they collectively stand for.

For example, how do you get the left and the right to agree on economic policies?

It should come as no surprise that they’re turning to technology to solve this kind of problem.

For the last year and a half, the German Pirate Party has been experimenting with a piece of software called Liquid Feedback, an online system for formulating and voting on policies. Right now those policies then go to a traditional vote at party meetings, but the Pirates are considering using Liquid Feedback to finalize position papers (something that the Italian Pirate Parties are already doing).

Any Pirate Party member can use Liquid Feedback to propose a policy, or to comment on or create alternative versions of other members’ proposals. Proposals get revised and voted up or down. Each member gets one vote — but here’s where the system becomes much more than a simple decision-making forum.

Not everyone wants to sit there marking up every piece of policy. That’s what elected representatives are for. But not everybody likes having elected representatives — some people really do want to treat every minor policy like a referendum.

So Liquid Democracy lets party members delegate their votes to other people for everything, or only for certain policy areas, or not at all. It’s effectively a sliding scale between representative and direct democracy, with each voter choosing what level of responsibility and control they want to have.

If someone has been delegated votes, based on their popularity or expertise, they can then re-delegate their votes to someone else. The system could theoretically allow the creation of a dictator, but because each member can cancel their delegation and reclaim their direct vote at any time, this outcome wouldn’t last for long.

Into the future

It’s hard to say how much of an attraction Liquid Feedback is for the general public. The system itself is as ugly as sin and, while the Pirates recently produced APIs to let people create sexier front-ends for smartphones and the like, it’s almost certainly not a draw in itself.

But the ethos behind it is. Make no mistake, the biggest reason voters are flocking to the Pirates is that they’re disillusioned with the opaque deal-making and elite hierarchies of traditional politics.

The Pirate movement on the other hand is very much born of the internet, with its open nature, ever-shifting meritocracy and low barriers to entry for new ideas. The goofiness of net humour is there in force — Pirates have been known to turn up to Berlin’s parliament in fancy dress — but the message is serious, and it is taken seriously.

And while the focus has shifted somewhat from intellectual property to transparency, the long-running war between tech and copyright also continues to send new converts the Pirates’ way.

The Pirate movement is really still in its infant stages. There are a tremendous number of kinks that need to be worked out in the way the party operates and what it wants, from the mechanisms of Liquid Feedback to much deeper internal ideological clashes. There are also questions to be answered about the alleged extremist past of some high-profile members — something that can carry a lot of weight in Europe.

And if they navigate all this, it will still be a few years yet before Pirates are taking weighty political decisions. But at this rate, they will almost certainly end up in that position. Of course, that depends on the country – Germany’s political system encourages the growth of new parties, whereas the UK’s and the United States, for example, do not.

However, even if the Pirate movement as we know it turns into something else, the foundations have been laid for a long-term phenomenon: politicians who not only get technology, but who enthusiastically use it to engage in a new relationship with voters.

Related research and analysis from GigaOM Pro:
Subscriber content. Sign up for a free trial.

• After the blackout: How the IT industry can stop SOPA in the long term
• SOPA, OPEN and the fight for the Internet
• Google and the Ghost of Silicon Valley Past

In January, America’s major tech companies joined everyday internet users to break the back of a reviled law called SOPA. Months later, Washington is brewing a new law that alarms many SOPA opponents — but this time the same companies have been quiet as church mice.

On Thursday, the US House of Representatives passed the Cyber Intelligence Sharing and Protection Act, a law that will make it easier for companies to share data with the government. On its face, the law known as CISPA has a laudable purpose — to help companies and the government prevent and respond to attacks on the nation’s computers. But civil libertarians warn that the current version of the law will result in a raft of new Patriot Act like rules that will diminish our privacy rights even further.

The vote has already produced dramatic headlines like “Insanity: CISPA Just Got Way Worse..” and “CISPA is ridiculously hideous.” So the press and privacy groups have raised the alarm — but where are the tech companies whose internet muscle smashed SOPA?

We put in calls about the vote to some of our Silicon Valley sources and the response has been nothing but crickets. Silence from Google. Ditto from Facebook. Ditto from Apple (although tight-lipped Apple would probably respond with a “no comment” to news of a meteor hitting Cupertino).

So what gives? Why are these companies ducking the fight? Well, for starters, the two laws are very different: among other things, SOPA would have turned them into copyright cops, while CISPA simply gives them the option to pass on data if they choose.

Secondly, cyber-attacks are serious stuff for such companies. For just one example, read Stephen Levy’s In the Plex description of how the Chinese government broke into Google’s computers and stole not only code, but the Gmail messages of political dissidents. China is plundering US tech secrets on a regular basis and it’s understandable that the firms would welcome new tools to help them fight back.

Whether CISPA is the right tool is another question, of course.  But the point, for now, is that CISPA doesn’t harm the self-interest of Silicon Valley companies so they have little incentive to kick up dust. (Facebook offered initial support for the goals of the bill but has since gone silent).

Finally, CISPA is not going anywhere fast. It passed the House with Republican support but is unlikely to make quick headway in a Democrat-controlled Senate, especially after the Obama administration threatened to veto it. This means the tech companies may be simply keeping their powder dry, betting that no law is going to pass until after the November election. Or maybe they just don’t care.

Either way, CISPA opponents looking for their SOPA allies to ride to the escape may have a long wait.

You can learn more about CISPA from our FAQ, Mathew Ingram’s comparison of CISPA and SOPA or our “step-by-step guide to making CISPA suck less.”

Related research and analysis from GigaOM Pro:
Subscriber content. Sign up for a free trial.

• CES 2012: a recap and analysis
• 12 tech leaders’ resolutions for 2012
• LTE-Advanced: what it is and isn’t