Category Archives: Digital Piracy

Cashless Societies: Causes for Concern

cashless_society-infographic

 Source: CNN

The idea of a cashless society, i.e., ‘a civilization holding money, but without its most distinctive material representation – cash’, is said to have originated in the late 1960s. The transition to go cashless had been slow and steady, but it is now increasing at a rapid pace this last decade. As technology evolves, the shift from a cash reliant to a cashless society is becoming more apparent. At least in the urban society, using ‘contactless payments’ or ‘non-cash money’ is not unheard of. It has been reported that not only did the first debit card possibly hit the markets in the mid-1960s but that in 1990, debit cards were used in about 300 million transactions, showing the rise of the same in today’s society. Before welcoming this change with open arms, we must take care that we do not ignore the security and privacy concerns, some of which will be addressed in this article.

As we are transitioning from a cash-reliant society to a [quasi] cashless society, there are some fears about phones being hacked or stolen, or reliance placed on devices which require batteries or internet – what if either is not available? However, conversely, our cash or wallets could be stolen, destroyed in a matter of seconds, could be misplaced, etc. The only difference is the medium of transaction.

Fear is a factor which inhibits change, however these fears are usually not unfounded. In the year 2014, Target, the second-largest discount store retailer in the United States was hacked and up to 70 million customers were hit by a data breach. Furthermore, 2 years later, it was reported that roughly 3.2 million debit cards were compromised in India, affecting several banks such as SBI, ICICI, HDFC, etc.

Nevertheless, as earlier pointed out, just as financial details present online can be stolen, so can paper money. With each transaction taking place online, the fears of online fraud are present, however Guri Melby of Liberal (Venstre) party noted, “The opportunity for crime and fraud does not depend on what type of payment methods we have in society.” A mere shift in the means of trade will not eliminate such crimes. It is here that I must clarify that a cashless society could be in various forms and degrees, be it debit/credit cards, NFC payments, digital currencies such as bitcoin or even mobile transactions such as M-Pesa.

Bruce Schneier, cyber security expert and author of best seller, Data and Goliath, notes that the importance of privacy lies in protection from abuse of power. A hegemony of the authorities over our information – details [and means] of our every transaction – provides absolute power to the authorities and thus a much higher scope for abuse. Daniel Solove, further notes that abuse of power by the Government could lead to distortion of data; however, even if we believe the government to be benevolent, we must consider that data breaches and hack could (and do) occur.

Cash brings with it the double-edged sword of an anonymity that digital transactions do not provide. A completely cashless society might seem attractive in that each transaction can be traced and therefore possibly result in reduction of tax evasion or illicit and illegal activities; however, though that crime might cease to exist in that form, it could always evolve and manifest itself in some other form online.

One of the concerns raised in this regard is that the government could indefinitely hold or be in possession of our transaction history. This seems to be an innocent trade-off for the ease and convenience it provides. The issue that arises however, as Domagoj Sajter notes, is that every single citizen has become a potential criminal and a terrorist to the government, worthy of continuous and perpetual monitoring. The citizens become latent culprits whose guilt is implied, only waiting to be recorded and proven. The principle of innocent till proven guilty vanishes in the mind of the government.

Furthermore, a completely cashless society places power with the Government with no checks and balances of the same. Advanced technology could disable funding of mass actions, extensive protests and large-scale civil disobediences, all of which are important traits of democratic processes. It is pertinent to remember that Martin Luther King Jr. was tracked by the FBI. Providing the government with more ease in curtailing democratic processes leads to a more autocratic governance.

Consider the following: an individual finds out that the Government or one of its agencies is committing a crime against humanity, and she reports it to the public. Not only could her personal life be excavated to find faults but any support that she would receive in terms of money (in a cashless society) could possibly be blocked by the Government. Minor faults could be listed and propaganda could be spread to discredit her point or deviate the masses’ attention. By controlling the economy, they could wring the arms of the media and force them to not focus on or to ignore the issues raised by her.

Michael Snyder also raises an important point about erasure of autonomy in a cashless society, “Just imagine a world where you could not buy, sell, get a job or open a bank account without participating in ‘the system’”. It need not start with forcing people to opt-in, simply providing benefits in some form could indirectly give people no choice but to opt-in. The Supreme Court of India has noted multiple times that the Aadhar Card cannot be made compulsory (a biometric identity card). However, the Aadhar card has been made mandatory to avail EPF Pension Schemes, LPG Benefits and even for IIT JEE 2017. The Government of India is even mulling making Aadhaar number mandatory for filing of income tax (I-T) and link all bank accounts to the unique identity number by the end of this financial year. The government is concurrently working on developing a common mobile phone app that can be used by shopkeepers and merchants for receiving Aadhaar-enabled payments, bypassing credit and debit cards and further moving to cashless transactions. The Aadhaar-enabled payment system (AEPS) is a biometric way of making payments, using only the fingerprint linked to Aadhaar. These are all part of the measures taken by the Indian government to brute force the Indian economy into a cashless form.

Policing of the citizen is not a purely hypothetical scenario; it has already taken place in the past. In 2010, a blockade was imposed by Bank of America, VISA, MasterCard and PayPal on WikiLeaks. In 2014, Eden Alexander started a crowdfunding campaign hoping to cover her medical expenses, but later, the campaign was shut down and the payments were frozen; the cause being that she was a porn actress. We must also take into account the empowerment that cash provides; consider an individual saving cash from their alcoholic or abusive spouse, or the individual who stuffs spare notes under her mattress for years because it gives her a sense of autonomy. We should take care that in seeking development, we do not disempower the downtrodden, but lift them up with us.

The idea of a cashless society is no longer strange, with multiple corporations and even countries having expressed their interest in going cashless. Harvard economist and former chief economist of the IMF, Kenneth Rogoff in his Case Against Cash argues that a less-cash society [in contradistinction to a cash-less society] could possibly reduce economic crime, he suggests in the same article that this could be executed by a gradual phasing out of larger notes. A cashless or less-cash society is inevitable. In Sweden, cash transactions made up barely 2% of the value of all payments made. The question thus is not about when [it will happen] but what are the safeguards we set up to protect our rights.

For further reading:

1] Melissa Farmer: Data Security In A Cashless Society

https://www.academia.edu/12799515/Data_Security_In_A_Cashless_Society

2] David Naylor, Matthew K. Mukerjee and Peter Steenkiste: Balancing Accountability and Privacy in the Network

https://www.cs.cmu.edu/~dnaylor/APIP.pdf

3] Who would actually benefit from a Cashless Society?

https://geopolitics.co/2016/01/30/who-would-benefit-from-a-cashless-society/

4] Anne Bouverot: Banking the unbanked: The mobile money revolution

http://edition.cnn.com/2014/11/06/opinion/banking-the-unbanked-mobile-money/index.html

5] Kenneth Rogoff: Costs and benefits to phasing out paper currency

http://scholar.harvard.edu/files/rogoff/files/c13431.pdf

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TORRENTS: THE LEGAL RAMIFICATIONS

Ed. Note.: This 101, by Kaustub Bhati, is a part of the NALSAR Tech Law Forum Editorial Test 2016.

Have you ever used a torrent to download something not available freely? You must have. Ever wondered how it works and why there is so much fuss about it being illegal and people using it might face legal sanctions?

A torrent is typically a file sharing method in which large media files are shared between private computers by gathering different pieces of the file you want and downloading these pieces simultaneously from people who already have these files. This process increases the download speed manifold. An example would be if 5,000 people are downloading the same file then it doesn’t put much pressure on the main server itself but what happens is that every individual use contributes upload speed which in turn ensures that the file transfer is fast. The download, hence, doesn’t really take place from the main server but from the 4999 other users currently downloading. This is typically known as P2P or Peer-to-Peer sharing method.[1]

Now since the invention of torrents in 2001 by Bram Cohen, it is being used to share a massive no. of files everyday some of which are copyrighted materials such as video games, movies and songs which should technically be paid for but are being distributed freely. This loss of revenue for the copyright-holding companies and the subsequent law-suits brings us to the forefront of our discussion: The Legal issues.

The torrent is not wholly illegal as the general misconception is. It can be used to share files across different people legally but the line is drawn when it comes to copyrighted content because then it amounts to Intellectual property theft. Almost 97 – 98% hosting companies (the companies which provide the link rather than host the content themselves) do not allow hosting torrents, and most of them are simply afraid of the word torrent. In India too, the authorities are catching up, Sec 66 of IT Act provides for 2 years of imprisonment and fines for people who download pirated media from the internet.

The Cyber Cell Department catches this illegal downloading by paying some IP Troll companies which lets them join the hosts of people downloading torrents allowing them to see the IP addresses and hence come knocking on their door steps. This leads to another legal issue as the IP address only tells WHERE the file is being downloaded and not WHO is downloading and also what would be done if the downloader was a minor? These are some problems faced by the prosecution in the court of law.

One of the major problems that can be seen globally is the difference in copyright laws in different countries giving rise to file-sharing sites such as The Pirate Bay to swim through this crack by saying that no laws of the host country i.e. where the servers lie, are being violated and hence everything is legal. Internet sites like Pirate Bay even posts legal notices sent to them by companies like Sony, DreamWorks and Electronic Arts on their site accompanied by mocking retorts.[2]

The prominent arguments presented in favour of the sites like these are that the sites themselves are not illegally distributing copyrighted materials but are functioning just like any other search engine like google or yahoo providing relevant search results to a query after which the users themselves are responsible for the acquisition of the materials in question and they themselves should be held liable and not the intermediaries. While Sweden in its judgement against co-founders of Pirate Bay refuted this, countries like Netherlands, Ukraine, India and the privacy-conscious Switzerland have become new piracy havens due to the exact same loopholes in the law deeming the intermediaries as not guilty of what their customers do.

While countries like Japan have severely strict laws entailing a 10-year imprisonment for uploading and a 2-year imprisonment for downloading illegal content[3], Germany is also not far behind, imposing a fine of €1000 fines or more if even a single instance of a copyrighted material is downloaded through BitTorrent.

These were some of the legal ramifications regarding the use of torrents, in an era when everyone wants everything to be freely available with just a click, Peer-to-peer file sharing has become a platform for political activities against intellectual property laws and has sparked movements such as the anti-copyright movement advocating complete or partial remission of current legislations. In the end, the ball is thrown towards the general masses to catch and in turn be implicated in illegal activity or let it fall and support the rights of the creators of the content we so want to see.

[1] Carmen Carmack,” How BitTorrent Works”, http://computer.howstuffworks.com/bittorrent1.html

[2] Dennis H, A Pirates’s Life in Sweden, https://yalelawtech.org/2011/02/23/a-pirates-life-in-sweden/

[3]Japan introduces piracy penalties for illegal downloads, http://www.bbc.co.uk/news/technology-19767970

[SpicyIP Cross-post] Online Piracy – The Way Forward?

This post was first published on SpicyIP here. Image Source: https://flic.kr/p/BXwqH.

One of the greatest issues that the Old Guard of the media production realm has had with the Internet is the copyright infringement that it facilitates. As such, there have been multiple attempts at restricting the internet to protect copyright in various ways, the most notable international examples of which are the DMCA, SOPA and PIPA, MPAA’s structured siege against Google, the essentially pointless litigation against Pirate Bay, and the story of Aaron Swartz. The Indian examples include litigation on Section 81 of the Information Technology Act, and thespate of troubling orders that have been passed in the last year alone.

The Draft National IPR policy, released by the IPR Think Tank last month, continues this approach. The Policy is for the most part silent on online piracy, but when it does discuss it, it states only that that the enforcement authorities should be strengthened and enforcement methods should be stepped up to combat this phenomenon.

But this excessively protectionist approach, as this post shows, is misguided and out-dated. There has long been a strong argument that the old content distribution model and the copyright regime that protects it are past their prime, and that it needs to change drastically to accommodate the Internet. This position has gained even more support in recent years due to the consistent failures of anti-piracy laws and measures the world over. An example of this is the failure of the Spanish Sinde Law, which is quite similar to the SOPA Bill. The anti-piracy measures of the Indian government have failed as well, as evidenced by the fact that last year, India was placed on the 2014 International Piracy Watch List by the International Creativity and Theft-Prevention caucus.

The fact is, the Internet has fundamentally altered content production. The Internet and accompanying technological developments have made content easier to produce, and infinitely easier to access, leading to changes in the market demands. The law is as always lagging behind – but this time, it has the support of an entire industry behind it.

Point of Failure

Online piracy is not just a legal problem – it is an economic, service problem, entrenched in the existing copyright system which is fighting to sustain the obsolete model. For instance, the movie ‘The Interview’ was recently released on online video platforms by Sony Pictures. But this release was limited to the US only – anyone who wanted to watch the movie outside US actuallycould not watch it legally. So if they wanted to watch the movie, they had to pirate it, even if they were willing to pay for it. Even with Sony releasing the movie on online video platforms, this disconnection between the supply and demand of content along with the inconvenience of the old model is a huge part of what leads to piracy.

Another example of the above is Digital Rights Management, one more consequence of the Old Guard’s fear of piracy. Ideally, when sales are made to consumers, the title to the goods soldtransfers entirely to them. The seller no longer has any claim over the object, other than some exceptions under the ‘First Sale’ doctrine. But this changes when digital goods and DRMs are involved. With digital goods, you aren’t buying the product – you’re licensing/borrowing it. Thus, you don’t actually own the product in question at all. If you want to own them, you have no choice. You either have to buy the physical copy or break the DRM.

Notably, last year the United Kingdom took a slightly different approach to piracy through their Voluntary Copyright Alert Programme (VCAP). While not exactly a ‘decriminalisation’ of piracy, the scheme indicates a shift in their stance regarding prosecution of consumers for pirating content, at least for those ISPs who take part in the voluntary program.

Changing Markets

The old model of distribution of content is simply unsustainable in the new market created by internet, which is a major cause of the failure of the above measures – and a major part of why Netflix and Spotify succeed, because they capitalize on this very service deficiency. It thus comes as no surprise that Netflix and Spotify actually decrease piracy.

Furthermore, BitTorrent has recently taken strong steps to prove that torrents are not only a means for piracy but can actually be a viable business model. It launched a service called ‘Bundles’, which allows content owners to ‘bundle’ free content with paid content and distribute it. This system allows consumers to share legitimate files through the p2p network from the content creators/distributors, cutting down server and hosting costs for the latter. It also allows creators to market their products directly to the consumer. Last year, Thom Yorke of Radiohead released his album ‘Tomorrow’s Modern Boxes’ through ‘Bundles’ in September, making it the first paid-for-album to be sold through it. And he has made as much as $20 Million through it since then!

Furthermore, many self-published authors and amateur artists have actually found releasing their work on services like Spotify and torrents a good way to gain recognition for their work, before going commercial. Also notable here is the Flattr experiment, co-founded by Peter Sunde, one of the original team at Pirate Bay, and the Aereo and JaadoTV cases.

Conclusion

Therefore, rather than expanding protection in the manner indicated by the Draft Policy and focusing on the pointless practice of trying to curb the Hydra that is online piracy, a better option in the longer run would be to actively try and accommodate the internet herein, and to allow innovators a bit more breathing room so that they can help the industry adapt to the new technologies. This would give start-ups more room to experiment with new, alternative models, and would help the Indian technology sector to boom. It would also lead to a more robust model which can accommodate and even promote the changes that are continuously brought into the content production sector by the evolution of technology, in place of the current unsustainable system.

Digital Piracy: Adapt or Deter?

(Image Source: https://flic.kr/p/4LPBEm)

(The author would like to thank Swaraj Paul Barooah for his valuable insights.)

Let me begin by putting forward a basic question – when was the last time you actually paid to download a song? And trust me, you deserve a pat if your answer is anywhere within the last two years. In this blog post, I have looked into the contentious issue of digital piracy and the implications it holds today. My major theme is an analysis of whether this online piracy can be curbed effectively and if yes, then how. The post is divided into six sections – (i) The basics, (ii) Deterrence as a solution (iii) Curbing piracy around the world, (iv) Digital piracy in India, (v) The creative industry’s viewpoint and (vi) Conclusion.

Continue reading Digital Piracy: Adapt or Deter?