April 20, 2014

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Grokster: The Case is Submitted

Greetings Freedom to Tinker readers! I’m Alex Halderman, one of Ed Felten’s grad students at Princeton. I’d like to thank Ed for the opportunity to be a regular contributor to this site.

On Tuesday I had the privilege of attending the MGM v. Grokster oral arguments along with several students from Ed’s Information Technology and the Law seminar. The class spent weeks discussing the Grokster case, and our field trip to Washington afforded a rare opportunity to witness the legal process in person instead of just on paper. We camped overnight outside the court to secure seats for what proved to be a fascinating argument. Some of the students have posted commentaries [1, 2, 3] and photographs [1,2,3,4], of which this is my favorite.

It was difficult to tell what the Justices were thinking, since their questions deeply probed the arguments from both sides of the case, but I was left with the impression that they are leaning towards a revision or reinterpretation of secondary liability law. None of their questions directly addressed Grokster’s argument that the matter should be deferred to Congress, and Justice Scalia emphasized that the case certainly wouldn’t hinge on stare decisis. In contrast, what a new liability test might look like was a recurring theme.

MGM argued that businesses centered on infringement should not be seen as engaged in “substantially unrelated areas of commerce” as required by the Betamax test. Several Justices questioned whether this reading would make it too easy for copyright holders to intimidate creators of new technologies. Justice Breyer wondered whether the creators of the iPod, the VCR, or the Guttenberg press would have feared liability under such a test, Justice Scalia asked whether new technologies would need to be given a decade or more to prove their non-infringing uses before such a standard could be applied, and Justice Souter worried about the fate of lone innovators without access to expensive legal guidance (the “guy in his garage”). Clearly, Grokster’s council and amici have done a commendable job explaining these issues to the Court, and I’m relived to say that the worst-case outcomes, such as a complete replacement of the bright line protections for innovation afforded by the Betamax test, no longer seem likely.

On the other hand, some of the Justices were no more receptive to Grokster’s interpretation of the Betamax defense, under which products “merely capable of substantial non-infringing use” would not be subject to liability. Justice Ginsberg called this an overly simplistic reading of Sony and pointed out that the decision continues for 13 pages of nuanced discussion after the phrase cited by Grokster. She also emphasized differences between Grokster’s product and the Betamax: the primary use of the Betamax was found to be non-infringing, but the district court in the present case established that at least 90% of Grokster’s traffic infringed.

What most surprised me was that several Justices repeatedly asked about a standard barely mentioned in the main briefs from either side: a so-called “active inducement” test. Inducement is a concept borrowed from patent law under which parties can be held liable for encouraging others to misappropriate protected intellectual property. Tests based on active inducement were discussed in the U.S. Government’s amicus brief (filed in support of MGM) and in the IEEE’s amicus brief (filed in support of neither party). The Induce Act, debated in Congress last summer, would have created a test based on an inducement theory, but it was widely criticized for giving copyright holders too much control over new technologies and making it too easy for them to bring frivolous lawsuits. IEEE, which opposed the Induce Act, says its model of an inducement test would require a much higher standard of proof involving evidence that parites committed overt acts of encouragement, not merely that they failed to do all they could to prevent illegal copying.

Several questions about inducement came from Justice O’Connor, who cast the deciding vote in the Betamax case. She asked MGM’s lawyer whether inducement was a way to resolve the case. Along with Justice Scalia, she seemed skeptical of Grokster’s attempt to separate out its past actions that could be seen as inducing infringement. Those acts do apply to the current case, Scalia insisted, because they were what developed Grokster’s current clientele. Scalia also wondered whether an active inducement standard would go far enough. Couldn’t a successor build a product identical to Grokster, he asked, but escape liability by being careful not to induce? Both MGM’s counsel, Donald Verrilli, and Paul Clement, speaking for the Government, responded that inducement would not be a sufficient remedy. Creators of future file sharing products would be careful not to leave a paper trail documenting their inducement, Verrilli warned.

Despite these objections, I think it is plausible that the Court will craft a narrow active inducement test resembling the IEEE proposal. This is likely for several reasons. Such a test would be neutral with respect to technology, thus creating a precedent applicable to much more than peer-to-peer file sharing. It would be responsive to the worries of technologists by clearly defining how innovators would need to act to avoid liability, yet it would also allow the courts to hold Grokster accountable because of its past encouragement of infringement. Inducement would function as a parallel category of liability complementing Sony, so the Court could leave the celebrated Betamax test intact. With both rules in place, defendants would need to demonstrate substantial non-infringing uses of their products and refrain from overtly encouraging infringement. Perhaps the most attractive feature of an inducement test is that both the Government, which sided with the content industry, and the pro-technology IEEE support it in some form. This is the closest thing to a compromise that we have seen in the case. Neither Grokster nor MGM would be wholly satisfied with a narrow inducement test, but it could potentially cure the most imminent harms cited by the copyright owners while causing minimal collateral damage to innovation.

Now the waiting begins. We’ll find out what the Justices were really thinking in a few months when the Court issues its decision.

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Sony Plans to Emulate Apple, in a Non-Apple-Like Way

Sony says it wants to create a system that does for movies what Apple’s iTunes does for music, according to a CNET story by Stefanie Olsen.

Unfortunately Sony doesn’t seem to understand what Apple did:

“We want to set business models, pricing models, distribution models like (Apple Computer CEO Steve) Jobs did for music, but for the film industry,” Michael Arrieta, senior vice president of Sony Pictures, said at the Digital Hollywood conference here.

What Apple actually did was to think about what customers wanted and then strive to provide it. Customers wanted one-click buying, ownership of songs rather than rental, tranferrability to different devices, and an attractive price. Apple couldn’t provide customers’ dream service, but they got pretty close. Apple realized that it didn’t have carte blanche to choose the business model, pricing model, and distribution model that Apple would like best. This is what is supposed to happen in competitive markets – market pressure forcing companies to give customers what they want.

Compare to Sony’s own digital music strategy, which looked like an attempt to construct Sony’s dream world. Customers didn’t want to live in that world, so they didn’t buy into Sony’s system. If Sony wants a different result this time, it’ll have to change its strategy.

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Welcome to Alex Halderman

I’m pleased to announce that Alex Halderman, a second-year graduate student who works with me, now has a byline here on Freedom to Tinker. Alex works on computer security and infotech policy, and has done interesting research on topics such as compact disc copy protection and privacy-enhancing technology. He plans to attend the Grokster oral arguments tomorrow; I hope he will be able to give us a firsthand account of the arguments and the early-morning linewaiting/campout experience. I have also invited him to post on other topics as he sees fit.

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A (True) Story for Grokster Eve

Recently I met a promising young computer scientist, whose name I will withhold for reasons that will soon be evident. He has developed a very interesting network software system that would be useful for a great many legitimate applications. I was impressed by his system and wondered why I hadn’t heard of it before.

The reason, it turns out, is that he isn’t sure he wants the public to find out about his research. He says this, even though his work would probably be of interest to many people, and could be useful to far more. The problem, he told me, is that if too many people find out what he has done and realize its value, some of them may start using it for illegal purposes. He doesn’t want that kind of trouble, so he is avoiding bringing his work to the attention of the broader public, publishing it in research venues where a small community of experts will see it, but avoiding any further disclosure.

It’s hard to blame him, given the unsettled state of secondary liability law. If some people start using his system illegally, will he be liable? Will he have to redesign his system to try (probably fruitlessly) to make illegal uses impossible? How many redesigns will be necessary? Will he have to face the same uncertainty that Bram Cohen, creator of BitTorrent, faces? He doesn’t want any of that

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Coming: Mobile Phone Viruses

Clive Thompson at Slate has a scary-sounding new piece about cellphone viruses. As phones get smart – as they start running general-purpose operating systems and having complex software interfaces – they will tend to develop the kinds of software bugs that viruses can exploit. And as phones become more capable, virus-infected phones will be able to do more harm.

What will the viruses do after they break in? Thompson predicts that they’ll make expensive calls to overseas pay-services, running up the victim’s phone bill and transferring money to the pay-service owners, who presumably will be in cahoots with the virus authors. That might happen, but I don’t think it’s the most likely scenario.

The best bet, I think, is that cellphone viruses will look like PC viruses. In the PC world, many viruses are written for kicks, with no specific intent to cause harm (though harm often results when the virus spreads out of control). I would expect to see such mostly-harmless viruses in the cellphone world; and indeed that is what we apparently see with the CommWarrior virus described in the article. Other PC viruses aim to spy on the user, or to install a bot on the computer so that it can be commandeered later to send spam or launch denial of service attacks. All of this is likely in the cellphone world.

Will cellphones be able to resist viruses more effectively than PCs do? Thompson suspects they will:

Phone executives like to say that it’s easy for them to contain worms because their networks are gated communities. Verizon and Sprint can install antivirus software on their servers to automatically delete infected multimedia messages before they reach their victims.

The mobile-phone industry could solve the viral problem by developing an open-source, Linux-style cellular operating system. But that’s about as likely as Motorola and Nokia announcing that all your cell phone calls are going to be free.

I’m not as hopeful. Phone execs like to think of their networks as gated communities; but in the smartphone world all of the action is on the smartphone devices, not in the networks themselves, and the providers have less control over smartphone software than they think. Their communities may be gated, but the gates will have well-known holes (that’s how viruses will get in), and there will be plenty of third-party application software coming in and out. A smart device is only useful if it is configurable, and configurability is the enemy of the sort of regimented configuration control that they are invoking. Third-party services and applications provide tremendous value to users, but as users switch to such services the network providers lose control over users’ data.

The open-source argument is pretty weak too. An open-source operating system may have fewer security flaws (and even that is subject to debate) but the claim that it will have no known flaws, or nearly none, isn’t credible.

The more useful smartphones get, the more they will adopt a software structure like that of PCs, with all of the benefits and problems that come with such a structure – including viruses.

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Apple Closes iTunes Store "Security Hole"

Last week, DVD-Jon and two colleagues released PyMusique, a tool for buying songs from Apple’s iTunes Music Store (iTMS) site. This got some people upset, because songs bought with PyMusique were not encumbered by any copy protection. Now Apple, predictably, has updated iTMS to make it incompatible with PyMusique.

The standard narrative about this goes as follows: (1) DVD-Jon and friends discover a security hole in iTMS. (2) The write PyMusique, which exploits the hole to get unprotected music. (3) Apple fixes the hole and iTMS is secure once again. The standard narrative misses the point entirely.

For starters, the security mechanisms of iTMS were, and are, well designed. A system that does what iTMS does will necessarily be unable to prevent unauthorized copying of music. That’s just a fact. Apple, to its credit, didn’t overinvest in fancy anti-copying technology that would be defeated anyway. Instead, Apple built a more modest and – here’s the key point – user-friendly system that gave users freedom to make legal use of music and provided speed bumps to steer consumer behavior, but didn’t pretend to stop determined infringers. There was no point in trying to stop determined infringers, because (a) there was nothing Apple could do to stop them from ripping iTMS content, and (b) all of the songs that might be ripped from iTMS were already available on the darknet anyway.

iTMS security is a bit like the lock on your screen door: it’s not very strong, but it doesn’t have to be, because the screen door around it is inherently vulnerable anyway. Putting an expensive lock on your screen door is a waste of money because it doesn’t make you any safer. Similarly with iTMS: spending more on copy protection would have been a waste, because it wouldn’t have reduced infringement.

Rather than owning up to its savvy engineering decision not to overinvest in fruitless copy protection, Apple apparently feels compelled to pretend publicly that iTMS is “secure” in the sense that heroic effort is required to illegally redistribute content bought from iTMS. That’s obviously untrue, but Apple is unwilling to admit that in public. (The famous reality distortion field plays a role here.)

So DVD-Jon and friends came along and released software that let people buy music that wasn’t wrapped in the usual weak iTMS copy-protection mechanisms. It was always possible to get such music, by buying it via the normal methods and then stripping off the copy-protection in one of several well-known ways. So PyMusique didn’t prove anything that we didn’t already know; but it didn’t really harm Apple or anybody else either.

Still, Apple apparently wanted to maintain the pretext of iTMS security, so it updated iTMS to make it incompatible with PyMusique. It’s still possible to make a new version of PyMusique that lets people buy music from iTMS and end up with that music in uncopyprotected form; but at least Apple can give the impression of policing its security perimeter.

We haven’t seen the end of this charade. Expect more iTMS “bugs” and more “fixes” from Apple.

UPDATE (7:50 PM): As predicted, DVD-Jon has reverse-engineered Apple’s fix and says he can now reenable PyMusique. That was quick!

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Cornell Researchers on P2P Quality Control

Kevin Walsh and Emin Gün Sirer, of Cornell University, have a new paper on Credence, a system for detecting unwanted files in P2P networks. It’s a kind of reputation system for files, designed to detect in advance that certain files are not what they claim to be. One use of this technology is to detect spoofed files inserted into P2P nets by copyright owners.

Credence is really a reputation system for files. Users cast votes, which are simple thumbs-up or thumbs-down verdicts on particular files, saying whether a file is what it claims to be. Every vote is digitally signed by the user who cast it, so that recipients can verify the authenticity of votes they are given. If you’re not sure whether a file is genuine, you can ask people to send you votes, and then you can combine the votes in a special way to yield a quality score for the file.

P2P systems are open, and they generally don’t register their users (or at least they don’t prevent fraudulent or repeated registrations) so users cannot reliably be identified by their real names. Instead, users make up pseudonyms for themselves. Suppose Alice wants to join the system. She makes a pseudonym for herself, by generating a cryptographic key-pair, consisting of a private key and a public key. Alice keeps the private key secret, and uses it to put digital signatures on the votes she casts. Along with each vote, she distributes a copy of the public key, which anybody can use to verify the digital signature. The public key also serves as a “name” for Alice’s pseudonym. The key attribute of this system is that if Bob wants to forge a vote, that is, to create a vote that appears to have come from Alice’s pseudonym, he must somehow determine Alice’s private key, which is essentially impossible if Alice does her cryptography correctly. In short, the cryptography ensures that anybody can make a pseudonym, but only the creator of a pseudonym can cast votes on its behalf.

This only solves half of the problem, because an adversary can create as many pseudonyms as he likes, and have them cast false votes (i.e, votes in favor of the validity of files that are actually invalid, or against the validity of files that are actually valid). So you can’t just add up all of the votes you receive; you need some way to tell whose votes to trust and whose to ignore. Here Credence uses a simple rule – trust people who tend to vote the same way that you do. Suppose Alice knows that files A, B, and C are valid, and that files X, Y, and Z are not valid. If some pseudonym “Bob” has votes in favor of A, B, and C, and against X, Y, and Z, then Alice concludes that “Bob” tends to vote accurately. If another pseudonym “Charlie” votes the opposite way on those six files, then Alice concludes that votes from “Charlie” tend to be the opposite of the truth. So if she sees some new file that “Bob” says is valid and “Charlie” says is invalid, Alice will conclude that the file is valid. Each party’s vote on the new file gets a weight, equal to the correlation between that party’s votes and Alice’s votes on other files. (The paper hints at further mechanisms that assign trust to people whose votes correlate with those of other people Alice trusts.)

This scheme presents would-be adversaries with a dilemma. If Alice’s votes are truthful, then if you want to mislead Alice about one file, you have to earn her trust by telling her the truth about other files. You can tell occasional lies, but on the whole you have to be a truth-teller. (You can achieve the same effect by lying about almost everything, and telling the truth about just one file. Then Alice will conclude that you are a habitual liar, and will count your votes with negative weight, giving credence to the opposite of what you say. Again, you have to provide Alice with many useful-to-her votes in order to trick her once.)

It looks like this method will work, if it can be implemented efficiently in a real network. The real question, I think, is whether it will scale up to enormous P2P networks containing huge numbers of files. Here I have serious doubts. The paper’s authors don’t claim that users have to know about all of the votes cast in the system. But they’re not entirely clear on how individual users can efficiently get the votes they need to make good decisions, if the network is very large. In the long run, I don’t think this scaling problem is insurmountable; but more research is required to solve it.

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Godwin's Law, Updated

One of the most famous observations about online discussions is Godwin’s Law:

As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one.

When it comes to copyright policy, a related law seems to hold:

As a copyright policy discussion grows longer, the probability of pornography being invoked approaches one.

What’s really interesting is the corollary:

When the topic of a copyright policy discussion switches to pornography, each side suddenly adopts the other side’s arguments.

For example, Hollywood argues that filesharing will lead to a shortage of movies, because nobody will make movies they can’t sell. But when the topic switches to pornographic movies, suddenly they start arguing that filesharing increases the creation and availability of content.

Similarly, some P2P vendors who say they can’t possibly filter or block copyrighted content, suddenly decide, when the topic switches to porn, that they can provide effective blocking. See, for example, a recent letter from the Distributed Computing Industry Association (a group of mostly P2P companies) to the Senate:

It is a fact that no industry – including the entertainment industry that cynically hatched the strategy of wrongly equating P2P with risks to children – has been more responsive than ours to concerns about the exposure of young people to inappropriate material. For example, by simply using the password-protected family filter included at no charge with leading P2P software programs, a parent can ensure that NO pornographic images or videos will be returned in response to any searches, including those of known child-pornography keywords.

The assertion that “NO pornographic images or videos will be returned in response to any searches”, can’t possibly be true. Content-based porn filtering will do just as poorly on content received via P2P as it does on content received via the web. These filters will be just as leaky as everybody else’s, and of course they’ll only operate for users who choose to turn them on.

I guess porn really does turn your brain to mush.

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Pharm Policy

I wrote Monday about pharming attacks, in which a villain corrupts the DNS system, which translates textual names (like “www.freedom-to-tinker.com”) into the IP addresses (like “216.157.129.231″) that are used to route traffic on the Internet. By doing this, the villain can impersonate an Internet site convincingly. Today I want to talk about how to address this problem.

The best approach would be to secure the DNS system. We know how to do this. Solutions involve having authoritative DNS servers put some kind of digital signature on the information they give out, so that a computer receiving DNS translation information can verify that the information is endorsed by an authoritative server. Such a system, if universally deployed, would put the pharmers out of business. Unfortunately, secure DNS is not widely deployed.

A partial solution, for web access at least, is to access websites via secure (HTTPS) connections. The user, on seeing a valid site, would notice the lock icon on his browser, and would know that his machine was connected to the legitimate owner of the URL that his browser was displaying. A pharmer could make accesses to “www.citibank.com” go to his evil site, but he couldn’t fool the secure-connection mechanism, so he could not make the lock icon on the user’s browser light up.

This approach works fine, as long as users notice the lock icon and refuse to deal with sites that don’t use secure connections. Will users be so vigilant? Probably not. In practice, many sites fail to use secure connections, and browsers give subtle indications of whether a connection is secure but don’t scream about insecure connections. (How could they, when insecure connections are so common?)

One drawback of relying on secure web connections is that it doesn’t protect other communication services, such as email and instant messaging. Pharmers might try to attract a user’s email or IM connections to hostile servers. We know how to secure email, by assigning encryption keys to individuals and having them encrypt and digitally sign their email. Standard email programs even know how to handle encryption and signing. But, again, few people use these facilities.

You may have noticed a common pattern here: each of these mechanisms would be effective if widely adopted, but aren’t used much in practice. In each case, we have a collective action problem. If nearly everybody adopted one of these technologies, then the holdouts would have an incentive to adopt it too; but until a critical mass of adoption is reached, there is little incentive for others to join.

Consider secure web connections. If nearly every website used secure connections, then insecure connections would be rare enough that browsers could issue prominent warnings whenever they saw an insecure connection. This would give legitimate websites a strong incentive to use secure connections, in order to avoid scaring users away. Today, insecure connections are so common that they don’t attract any suspicion. (An online banking site that used insecure connections would be odd, and might arouse suspicion from alert users; but we’re far from the point when browsers expect secure connections from everybody.)

A similar problem holds for secure email. I could digitally sign my outgoing email, but this wouldn’t do much to prevent forged messages in practice. A forged message would of course be unsigned, but unless unsigned messages were rare, nobody would be taken aback on seeing one. But if almost all messages were digitally signed, than an unsigned message would be rare enough to arouse suspicion, and might trigger a prominent warning from the user’s email program.

In all of these cases, there is a tipping point, where the authentication technology is used so widely that failing to use it attracts suspicion. Once the tipping point is reached, the remaining holdouts will switch to using the technology. Assuming we agree that it would be good to adopt one of these technologies, how can we get to the tipping point?

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Unwanted Calls and Spam on VoIP

Fred Cohen is predicting that VoIP will bring with it a flood of unsolicited commercial phone calls. (VoIP, or “Voice over Internet Protocol,” systems deliver telephone-like service, making connections via the Internet rather than using the wires of the plain old telephone system.) Cohen argues that VoIP will drive down the cost of international calling to nearly zero, thereby making international telemarketing calls very cheap. He also argues that small overseas call centers will violate the U.S. Do Not Call List with impunity.

This comes on top of concerns about SPIT, or Spam over Internet Telephony. SPIT sends machine-generated voice calls to the phones or voicemail boxes of VoIP users; Cohen worries about VoIP-mediated calls from live people. In a previous article about SPIT, VoIP vendors argue, unconvincingly, that they can handle the SPIT problem.

The root cause of this problem is the same as for email spam. Whenever a communication technology (1) allows anybody to communicate with anybody else, (2) at very low cost, unsolicited and unwanted communication will be a problem. We saw it with spam, and now we’ll see it with SPIT and VoIP telemarketing.

End-users can try to protect themselves from VoIP annoyances by using some of the same methods used against email spam. Whitelists (lists of trusted people), blacklists (lists of suspected spammers), challenge-response, and ultimately even automatic classification and filtering of voice messages, all seem likely to be tried at some point in the future. But as with email spam, don’t expect them to solve the problem, but only to reduce the annoyance level somewhat.

An even more interesting question is whether service providers can address the problem, perhaps by ejecting bad actors from their networks. This depends on how a particular network is structured. Some networks are closely controlled; these will have some chance of ejecting villains. Some networks rely on open protocols, so that nobody is in a position of control – the villains will just connect to the network as they please, and perhaps reconnect periodically under new names. Things get more challenging when different networks connect to each other, so that their legitimate clients can talk to each other. If a closed network connects to an open one, villains on the open network may be able to reach customers of the closed network, despite the best efforts of the closed network’s administrator.

Can’t we just use closed networks instead of open ones? If only it were so simple. Open networks have important advantages over closed ones; and many people will choose open networks because of these advantages, and in spite of the possibly heavier spam load on open networks. They may well be right to make that choice.

Because all of this calling will be done on the Internet, an open and tremendously flexible network, there are many creative attacks on these problems. For example, an open authentication infrastructure might provide a kind of CallerID service for VoIP, or even a certification of non-spammerness. Expect the technological battle to go on for years.