Don Marti

Fri 14 Nov 2008 12:05:34 PM PST

Applying for the Pirate Czar job

Yes, I did fill out the job application on, and have already received one @dmarti 4 pirate czar! posting on Just got my "Please complete your application" mail, and filled out that form, but there's no place to paste my cover letter. So rather than waste it, here it goes.

As Pirate Czar, I will make sure that the Peeing Calvin sticker guy and the Replica Watch spammers never see the outside of a Federal prison again. Of course, as Pirate Czar, I will not be allowed to influence particular cases, but trust me, we will put our best people on it. If you want to express the opinion that Fords and Chevys should get whizzed on, draw your own whizzer, or hire someone on Elance or any of the kajillion art sites out there. It's never been easier to find and hire someone for a Work For Hire project.

The full job title is United States Intellectual Property Enforcement Representative, and the job description is in H. R. 4279, which Congress passed this year. The USA has never had a Pirate Czar before, so you're going to need someone to set the tone for the job, rack up some early successes, and not be a pain in the ass or an embarassment. No "haha rotfl the Pirate Czar is a pirate!!1!!" postings here—you can image my whole hard drive and there is not one piece of pirated stuff on there, except possibly background music from YouTube videos. (No, I didn't go looking for pirated stuff on that site, and yes, the YouTube people and I are going to have a talk. It's on my list. I am already on top of the pirate problem, so I can hit the ground running.)

Peeing Calvin is one thing, but the replica watch situation shows that you cannot deal with Intellectual Property Law Enforcement in a bubble by itself. If you want to deter and punish infringement, you need to deal with all the little scams and security holes that go along with it and enable it. Remember this when you are interviewing potential Pirate Czars. If the person is all about "Intellectual Property, Intellectual Property, Intellectual Property" he is a chump with a target fixation and the pirates will pwn him so fast you might as well just send him home now. The Replica Watch people are in business not just because of problems on the anti-piracy side, but because we have a spammy Internet that costs us billions in scams, privacy violations, and security risks.

As Pirate Czar I will set up the badly-needed coordination channels between pirate-busters and other online security professionals. The USA has a toothless anti-spam law, but when a spammer infringes a trademark or copyright, we have an awfully big hammer to hit him with. In order to fight pirates, we need to combine the technical strengths of the Internet security and anti-spam field with the legal strengths of DoJ's existing anti-piracy powers. Anti-spammers have the data for finding pirates who spam, and want to put them out of business. The Pirate Czar needs to connect the extreme legal power of Intellectual Property Law with the extreme Internet knowledge of the anti-spam scene. As Pirate Czar I will commission a limited-edition run of kick-ass super-thin black anodized "Ninja" watches for anti-spammers who help us apprehend a pirate/spammer.

Domain tasting and domain kiting are two other problems that tie in directly to pirate sales channels, especially for infringing pharmaceuticals. But where were the conventional anti-piracy organizations and so-called experts on that issue? Completely behind the curve. For Pirate Czar, you need someone who understands new generations of stuff on the Internet, pick out which have piracy-related consequences, and smack them down on day zero.

One of the Pirate Czar's responsibilities is to work with the US Trade Representative on negotiations regarding international enforcement. In general, I strongly believe that freer and more open trade is a win-win for both countries involved. Only one factory in Portland, Oregon makes Leatherman tools, but the USA doesn't grow enough coffee. But trade's problems are in the details. Protectionists relentlessly politicize every technical field from electrical engineering to plant pathology. As Pirate Czar, I will know when to back off—when free trade is a net win for the economy, or when health and safety concerns related to trade are more important than cracking down on piracy problems with a trading partner.

Some creative professionals have slipped through the cracks, and need a fix from Congress with some leadership from the administration. If you design a cartoon character, and someone copies your character's unique appearance in a digital file drawn from scratch, it's infringement. If you design a new typeface, and someone copies the look but not the exact bits, it's not infringement. The law isn't fair to typeface designers, and the administration needs to promote legislation to grant meaningful exclusive rights in original new typefaces.

I'm sympathetic to the cause of copyright reform, but really, blaming the copyright industries for infringement is blaming the victim for a crime. The answer to the problem of a disconnect between law and norms is not to rewrite the laws wholesale to match the norms. Let's look at another area of law and norms for a minute: the problem of libel and slander. Just because the Internet gives individuals the tools to turn a back-fence slander into a global conversation does not mean that we should be adjusting the standards down. Same goes for copyright.

But we haven't given law/norms reconciliation a fair chance. Copyright-holding industries have made two mistakes: first, trying for an impossible technical solution at the urging of DRM vendors peddling "snake oil" systems, and second, carrying out a bad implmentation of a good idea: finding and bringing lawsuits against pirates. At the same time, the burden should not be on copyright holders to play Whack-a-Mole® with startups that enable infringers to violate both laws and norms. Startup founders and VCs: with me as pirate czar, if you enable infringement you don't get a year's free ride while the government figures you out. Your biggest pirate user will be making a plea deal before your company makes TechCrunch, so don't count on pirates as cheap eyeballs. Make something that people want for its own sake and treats everyone involved fairly.

But there is hope. Except for a few over-ambitious DRM vendors, everyone wants the same thing here: books, movies, and music at a fair price, creators to get paid fairly, and no random breakage because of wee-wee fights between middlemen. Here's what we need to hammer out in a conference with the technology and copyright-holding industries.

The actual content on DRM-restricted media should remain under its original copyright, but the copyright holders should insist on a short permission statement and logo to be printed on the packaging:

"Provided that you do not make an infringing copy of any copyrighted work,, copyright holder in the content of this disc (or whatever), hereby grants you permission to circumvent any "effective technological measure" applied to this disc (or whatever)."

That gets us a few things.

  1. We don't have to renegotiate the whole WIPO copyright treaty from 1996. Copyright holders themselves give a limited permission to circumvent.

  2. Copyright holders are out from under the thumb of the DRM system licensor. No more "Most Powerful Man in Music" effect. (Remember, in a DRM-based market, the only "record company" that matters is whoever controls the DRM.)

  3. Users get to put their DVDs in jukeboxes, space-shift chunks of their DRM-restricted textbooks to their smart phones, and make fun of politicians on YouTube—as long as they clean the pirated stuff off their hard drives.

Infringe something where your Fair Use rights and your personal time/space/whatever shifting rights are already protected? No excuse. We'll throw the book at you.

My number one recommendation does appear in the text of the Act at all, but back in the Constitution. Promote the progress of science and useful arts. Remember that? We have an economic crisis going on, so I'm not going to waste the taxpayers' time and money with programs that don't connect back to meaningful gains. The rights that pirates infringe are not Creator-Endowed rights, but an economic development program from Congress. You need a pirate czar who will put the nation as a whole first.