examining policy and technology impacts on intellectual property protection and its effects on the...

8/3/2019 Examining Policy and Technology Impacts on Intellectual Property Protection and its Effects on the Internet

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RUNNING HEAD: POLICY, TECHNOLOGY, AND IP PROTECTION

EXAMINING POLICY AND TECHNOLOGY IMPACTS ON INTELLECTUAL

PROPERTY PROTECTION AND ITS EFFECTS ON THE INTERNET

PATRICK LYNN VOGT

PURDUE UNIVERSITY

16 DEC 2011


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POLICY, TECHNOLOGY, AND IP PROTECTION 1

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 worlds 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


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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.


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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 aspectsit also meant

that undesirable content couldcirculate 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 Stationers 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


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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 Stationers 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 todays copyright laws, this

statute was straightforward and simple it could fit on a couple of printed pages.

Todays 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 discoverers 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 countrys creation, intellectual property


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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 couldnt. 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 Bells 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 fromhttp://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).

Bells paper also compares whatwas 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,
http://www.tomwbell.com/writings/(C)Esc.htmlhttp://www.tomwbell.com/writings/(C)Esc.htmlhttp://www.tomwbell.com/writings/(C)Esc.htmlhttp://www.tomwbell.com/writings/(C)Esc.htmlhttp://www.tomwbell.com/writings/(C)Esc.html


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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 elses 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 publics 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 Stationers 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 publics 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


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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 homenot 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: its theft any

time you skip a commercial or watch the button youre 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 Internets 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


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manipulated copyright and intellectual property legislation to the point where the laws

and statutes are so vague that anyone could infringe someones 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 Americas borders.


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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 addressesto

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 ISPs 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


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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


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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.


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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.


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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).


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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 cyber-

criminal operating on Microsofts 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 DOJs 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


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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.


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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 65.128.84.1 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 willbe 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 Go-

Daddy 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


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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 ICANNs incentives to put pressure on EPAG. The US

Department of Commerce is a primary funder of ICANN, despite ICANN being a private

entity. ICANNs 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 ICANNs 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,


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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


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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 notbe

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


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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 consumers 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


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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 stores 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.


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