Is Speech Preserved by More Speech Alone?  Part II

Cat Sanding

Many years ago, I volunteered a few hours after work to help the wood shop teacher at my son’s school.  The children had carved various hardwood animals that all needed edges honed with a belt sander the kids were too young to use.  I was just supposed to smooth out the marks left by the gouges and create clean lines, but in a few instances, particularly with the smaller figures, I became a bit zealous and over-sanded some of the forms into rather vague, wooden blobs.  One moment the object in my hand was very clearly a cat, and the next moment, it was more like a Brancusi abstract.  At that time in my life, I was writing a new series of magazine articles and had shared a few drafts with my best friend, who referred to my ardent cat sanding as an apt metaphor for what I had done to one particular revision.  I had over-thought and over-edited the edges clean off the original, resulting in a less interesting experience for the reader. Fortunately, one can un-edit written work in a way that one cannot un-sand a wooden cat.

One of the essential, if not most essential, social habits required to preserve the right of free speech, at least as it is presently applied in the U.S., is a universal tolerance of all the uncomfortable, imperfect, even offensive edges that speech can produce. Not only does the right of speech depend on a culture that upholds this principle, but so does diversity of speech from a creative or intellectual perspective. And if we agree that this condition is ideal, then any form of collective intolerance of those edges will presumably have the opposite effect. For instance, we see some evidence of intellectual cat sanding in contemporary academia with efforts to improve upon tradition by, say, de-racializing the works of Mark Twain or demanding that college faculty provide some form of warning label prior to covering material that might “trigger” unpleasant emotions or thoughts among students.

In Part I of this topic, I used the term orthodoxy of tolerance, and it is these phenomena I had in mind. Because when this kind of intellectual cat sanding becomes collective, ideological, and militant enough, it produces a new orthodoxy that oddly enough claims tolerance as its foundation. In turn, this orthodoxy then demands policy that trims the barbs and smoothes the jagged edges from various forms of expression, and apparently this has happened in some institutions. Meanwhile, it is fascinating that these mewling sensitivities in academia have manifest coincident with evidence of “free speech fanaticism,” to quote Doonesbury cartoonist Gary Trudeau from his article The Abuse of Satire for The Atlantic.  In this Op-Ed largely focusing on Charlie Hebdo, Trudeau offers his own perspective on the difference between satire and rank provocativeness; and he criticizes the speech absolutist who is blind to such distinctions. “Indeed, one of the nicer things about youthful cluelessness is that it’s so frequently confused with courage,” writes Trudeau.

That’s an interesting way to put it. And for the sake of conversation, we could say we’re seeing the rise of the speech Wimps concurrent with the rise of the speech Bullies, neither of which has anything to do with speech courage.  The Wimps don’t want any unpleasantness, regardless of context, while the Bullies are such zealots about speech, that they act as though unpleasantness is the only thing keeping speech alive. “At some point free expression absolutism becomes childish and unserious. It becomes its own kind of fanaticism,” Trudeau writes, summing up, for me anyway, both the Wimp and the Bully in one sentence.

But does any of this answer even part of the thesis question, which is whether or not speech itself is best preserved by more speech alone?  When I began these essays, the hypothesis was that the mechanisms that either preserve or threaten free speech function entirely independent of the Internet as a mechanism for more speech. For instance, if a young person is never taught to think about the emotional paradox of embracing uncomfortable speech, it won’t necessarily matter if he and 100 million of his friends all have networked devices or, for that matter, never have them. But it is admittedly difficult to stick to that inquiry alone without considering the effect of the network itself. For instance, if the aforementioned Wimp perspective and Bully perspective become dominant points of view, and social media then provides the platform for each to attain mass and advance an orthodoxy, what happens to tolerance of all the great forms of expression that exist between a sanitized Huckleberry Finn and the mean-spiritedness of bad satire that “punches down?”

Do we fail to produce the next Doonesbury because it’s too edgy for the Wimps and too tame for the Bullies?  Not necessarily.  But I find these cultural shifts interesting because I suspect the increase in the raw tonnage of speech via social media has had something to do with fostering these views, which do not inherently promote a greater diversity of speech. As suggested in Part I, it is probably more valuable to pay attention to how speech might be changing in the digital age than it is to simply buy the premise that speech is “freer than ever” thanks to networked devices.

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Periscope Piracy and the Tao of Tech Writers

Last December, a few glasses of Rioja and I wrote a pretty grumpy rebuttal to Washington Post tech writer Caitlin Dewey, accusing her of cheerleading for media piracy.  A few respondents, including Dewey herself, said that I was unfair, that her article about The Pirate Bay was merely reporting facts without editorial.  Of course, with certain styles of communication, it can be very difficult to tell the difference between dishonesty in intention and ignorance of how one sounds.  Is the author choosing her words carefully in order to engage in a zen-like OpEd, in which she advocates an agenda without clearly declaring so?  Or is the author unaware that her words have connotation and tone that imply a point of view she doesn’t really have?

Here’s the sound of straight reportage by Rhiannon Williams for The Telegaph:

“Game of Thrones is the most illegally-downloaded TV programme internationally, accounting for a quarter of all pirated downloads from 100 torrent sites. The programme was downloaded over 1.4 million times between January and February this year – nearly 50 per cent more than its nearest rival The Walking Dead.”

And here’s a work of unequivocal editorial by Grace Dent for The Independent.

“Fans wanted to see all-new Game of Thrones right then, right now. The fact that this was plain theft, or that it might offend lots of their beloved actors, producers and TV bigwigs made no difference. Morals? Ethics? Who are you, the Dalai Llama? It was the weekend, time for some “me time”, and Game of Thrones fans – with Britain topping the list for thievery – wanted to shove all four episodes instantly into their greedy snaffling eye-holes.”

And here’s Caitlin Dewey writing about the new phenomenon of using Periscope to live stream an episode of GoT:

“…tens of thousands of people pirate that show every day — but the mere possibility of more people live-streaming has HBO running scared. The company promptly declared Periscoping “mass copyright infringement,” despite the utter lack of any audience approaching “mass.” And yesterday, the company sent a series of takedown notices to Periscope over GoT. Which is extra-peculiar, since HBO usually takes a pretty chill stance toward “Game of Thrones” piracy.

This, however, is piracy of a totally different breed. There are no torrents, there are no files, there are no thumbdrives or DVDs. That makes Periscope a bit of a challenge — not terribly dissimilar from the era when VCRs threatened TV.”

It is admittedly a little hard to tell if Dewey is only reporting or also commenting here.  Is she aware of her provocative choice of words, or is she just being careless?  For instance, HBO does not have a “chill stance” toward GoT piracy; the company, like any other rights holder, has a strategic stance, which wise or not, is entirely at their discretion.  Thus, there is nothing peculiar, from either a strategic or legal perspective, about making distinctions between one form of piracy and another. So, by suggesting that all piracy of GoT ought to be viewed equally in HBO’s eyes, Dewey is expressing an opinion, and a very unconsidered one to boot.

In fact, the lack of recording media to which Dewey alludes is just one reason why Periscope is very much dissimilar to the Betamax case, which is what she means when she refers (and is also editorializing) to “the era when VCRs threatened TV.”  She’s correct that a DMCA takedown request is meaningless in a situation where no data is stored that can be “taken down,” but her general thesis (if there is one at all) appears to be that Periscope represents a potential form of mass piracy that lurks in muddy legal waters with regard to copyright.  And I doubt this is the case because the use of Periscope in this manner rather clearly infringes on the right of public performance — an illegal broadcast — which is territory fairly well covered by copyright law.

For readers who haven’t heard, Periscope is a live streaming app owned by Twitter that enables just about anyone with a smart phone to live stream whatever is in front of the lens.  So, what happened with Game of Thrones was that some users pointed their cameras at their TV’s  during the broadcast of a recent episode, and a whole bunch of people watched the show via the app on their handheld screens.  Yes, it’s a pretty lame way to view a multi-million-dollar, high-production-value TV show, and Dewey says as much at the end of her article.  But neither she nor I are copyright attorneys, so we’re the kind of writers who should try to be careful about making mashups of caselaw, particularly those that are entirely unrelated to the story at hand.

For instance, Dewey’s two comparisons to the VCR are meaningless distractions in an article about  a technology like Periscope. The right to time-shift by recording broadcasts for later viewing (i.e. the decision in the Betamax case) involves privately stored media that has both legal and functional limits — limits that stop the program recorder from infringing on the right of public performance.  For instance, you may record Game of Thrones on your VCR, DVR, or even some other medium for viewing alone or with friends and family later, but you may not exhibit that recording in, for example, a public theater or coffee house, either for free or for money, and you certainly may not broadcast it.

The right to record for the purpose of time-shifting bears no resemblance to a technology that enables live broadcast to hundreds or thousands or potentially millions of viewers.  The functional differences are observable by common sense and don’t require any knowledge of copyright law.  That said, my colleague Terry Hart, who does know something about copyright law, explains, “The drafters of the 1976 Copyright Act clearly anticipated that new communications technologies would allow the exploitation of works without any copies changing hands. They created a new right of public display to apply to static works like books and images. And they drafted the right of public performance to include transmission and communication ‘by means of any device or process.'” Citing the 1965 Supplementary Register’s Report on the General Revision of U.S. Copyright Law, Hart also shares this:  “… in certain areas at least, ‘exhibition’ may take over from ‘reproduction’ of ‘copies’ as the means of presenting authors’ works to the public, and we are now convinced that a basic right of public exhibition [later replaced with the word display] should be expressly recognized in the statute.”  So, not only is copyright likely well-armed for a technology like Periscope, but it’s been anticipating the need for at least half a century.

Dewey also grazes the subject of transformativeness with regard to using Periscope; and this might raise some interesting questions. If I live stream a TV show, or even a live performance, while making commentary along the way, or if I turn the whole thing into a new work of performance art, would the use be transformative?  Probably. But that does not mean every use in this manner would be a fair use when judged according to the four factors applicable in such cases.  Every use would have to be judged individually; so, just streaming a football game with your own commentary, for instance, would probably fail with regard to assessing the amount of original work used and the potential economic harm to the original.

More broadly with regard to Dewey’s style of commenting on these matters is that she sounds to me like someone sponsoring a general point of view predicated on the idea that when technology makes a particular process or behavior possible, the relevant legal framework must be dismantled in order to “make way for progress.”  Maybe that’s not her view, but I do think articles written in her style, and bearing an imprimatur like The Washington Post, feed this general attitude among readers.  And whether we’re talking about Periscope or any other innovation, this perspective forgets the purpose of legal frameworks in the first place. After all,  “Progress” has been the generic excuse of every vested interest that ever wanted to get away with doing harm in the pursuit of personal fortune. “Progress” has been the argument for pollution and poor working conditions, too; and that’s why we create legal frameworks that say, “Bullshit, you’ll have to figure out a way to make money without dumping sludge in the river.”  At least we try to do this.

So, if Caitlin Dewey’s point is that copyright law is indeed unclear with regard to an application like Periscope, then is she presenting her story by way of identifying a legal loophole in need of closing?  I doubt it.  As with her article about The Pirate Bay “creating the Internet,” as we know it, I’m at least confused as to what point she’s making at all about copyright, piracy, or technology.  Because in the absence of a clearly stated opinion, one looks to reporters for straight facts, and that doesn’t quite seem to be her bag either.   After all, the article is titled,  The future of online piracy is easy, free and already in your pocket.  In my experience, that headline is what we call advertising.

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Pirate Movement is Dead, Long Live the Cause?

So, I stumbled across this TorrentFreak post by The Pirate Bay founder Peter Sunde, in which he not only concedes that the “pirate movement” is dead but also exhorts the faithful to get over it and find new ways to further the “cause.”  Writes Sunde:

You’ve all heard it. The “pirate movement” is dead, diminishing and what not. But ignore that. What are the causes that we talk about here? Freedom of information, freedom of speech, surveillance, state corruption, corporate overlords, control of our infrastructure, the right to access education and culture, plenty. Are these discussions dead? No. But are we moving anywhere with them? I’m afraid not.

I’ll stop short of saying The Pirate Bay is to any of these causes as the Weather Underground was to the anti-war movement, but only because the Swedish trio didn’t set off any bombs.   My colleagues and I talk a lot about the casualties of piracy — the authors and artists, the labor force that supports creative works, the macro-economic losses, and the folly of rationalization posing as reason — but Sunde raises an interesting point that is usually a parenthetical note in these conversations.  And that’s the belittling of otherwise perfectly good causes worthy of real energy and attention.

Of course, each of the issues to which Sunde refers must be defined in order to give any movement direction other than centripetal griping; but that delta notwithstanding, if Sunde and his fans are indeed committed to any of his stated concerns, perhaps the post-mortem assessment on the “movement” ought to begin with the premise that the “service” provided by The Pirate Bay and similar sites is not anything like a foundation for social change. Forget that digital theft of popular media is illegal, immoral, and rude; it’s also far too pedestrian to serve as a catalyst for political action that would effectively contend with a thorny problem like surveillance or ascend such lofty heights as universal education.

In the past, I’ve made snarky statements like this:  some American teenager illegally downloading a Thor movie is not how one speaks truth to power.  But there’s a second part to this, which is the potential damage to political will and intelligence that would occur if millions of young people actually think otherwise.  What a fabulous way to breed a namby-pamby generation of whiners that no corporate or government power would ever have to take seriously.  Fortunately, I don’t really think the millions of committed users of pirate sites around the world ascribe that kind of significance to act. Yes, Sunde paid lip service to this idealism in defense of TPB; and the bizarrely convoluted Rick Falkvinge founded a whole pirate party; and a smattering of followers buzzed about for a bit. But then, people can make a religion out of an old gym sock and a kazoo given the right conditions. In what way could the “movement” aspect of piracy not be DOA?  Writes Sunde:

“So fuck the ‘pirate movement’. Rename it, re-brand it, do whatever you want. Just fucking don’t be a pirate. Be something more awesome. Be a world citizen that cares about the same topics. Join other parties and make them understand the topics at hand. Infiltrate them. Cooperate and have people join all the parties in your nation, make sure they all agree. Be a fucking undercover ninja for all I care. Just don’t sing songs about pirate booty, looting and shit.”

I don’t know, Peter, maybe media piracy is just about ripping people off, and political action on complex issues is something else? As such, I wonder who he is addressing in this post.  I’d love to read the mission statement for No-Longer-the-Pirate Movement 2.0, but it’s naive to think that millions of people who just want free stuff on their computers have ever been a political base.

Avanti popolo!

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Is Speech Preserved by More Speech Alone? – Part I

“The more speech the merrier,” was the central argument made by Justice Scalia in writing the majority opinion on Citizens United, but that case suggests, at least to many of us, that the mechanism of the speech matters a great deal. Yes, in many ways, money can be speech; but at the same time, I think Scalia conjured an illusion of more, which obscures the practical reality that the SCOTUS ruling ultimately provides a bigger voice for a privileged minority.  So, what about speech delivered via the mechanisms of social media and other networked communications? Nobody can argue that there is more of it. But does placing too much emphasis on volume alone risk overlooking the complex, even occasionally painful, ways in which speech, as we define it in the U.S., is preserved?

“The value of intellectual freedom is far from self-evident,” writes George Packer in his New Yorker editorial Speech Crisis.  “It’s hardly natural to defend the rights of one person over the feelings of a group; to put up with all the trouble that comes with free minds and free expression; to stand beside the very people who repel you.” Even among free nations, the United States is unique in policy and in its sustained public support for the absoluteness of speech.  But as networked communications alter our relationship to speech, new social dynamics emerge that can produce as many new forms of censorship as new forms of expression.  Quoting Packer again, he cites Joel Simon thus:

“Joel Simon, the executive director of the Committee to Protect Journalists, argues in his book ‘The New Censorship’ that the explosion of data in digital media keeps us from seeing how extensively information is controlled. ‘Repression and violence against journalists is at record levels,’ he writes, ‘and press freedom is in decline.’”

Interestingly, Packer begins his article with the description of a brutal murder of a Bangladeshi blogger, but his main thesis is a warning against the pitfalls of self-censorship, even here in the tolerant United States. Quoting Packer again:

“But, in some ways, an even greater danger than violence or jail is the internal mute button known as self-censorship. Once it’s activated, governments and armed groups don’t have to bother with threats. Here self-censorship is on the rise out of people’s fear of being pilloried on social media. In Russia, Vladimir Putin has been masterful at creating an atmosphere in which there are no clear rules, so that intellectuals and artists stifle themselves in order not to run afoul of vague laws and even vaguer social pressure.”

Packer’s assertion that self-censorship is “on the rise out of people’s fear of being pilloried on social media” exemplifies why I would caution against overemphasizing volume of speech in order to insure its universality as a right.  Personally, I believe that only when we uphold the right of the minority speaker above the majority’s capacity to silence that speaker, is speech as a right actually sustained.  Yes, this means American Nazis were given permission to march through the Jewish Village of Skokie, and it means Fred Phelps repeatedly made a public performance out of disrespect for grieving military families.  But such examples, when filtered through populist media like Twitter, seem to confuse support of the minority voice with unwavering tolerance of the offensive; the two are not necessarily intertwined. The offensive can also be the silencing mob.

Take the chronic occurrence of rape and death themes that flare up like herpes on Twitter when a woman says something a particular group of men doesn’t like. Setting aside actual threats, which are already criminal, wishing for sexual assault upon someone is offensive yet protected speech.  We the majority of ordinary citizens must, in the name of speech, tolerate the minority of apes, who have nothing better to do than tweet “I hope somebody rapes you,” to Ashley Judd because she dissed their basketball team or Emma Watson because she commented on women’s rights. But while speech defendants rush to make this point clear in these instances, we don’t seem to pay much attention to the potential or actual self-censorship of the original speaker.   Naturally, if the speaker is a celebrity, she has resources that inoculate and empower her to speak back, but not every individual with something to say is so blessed; and one consequence of this round-the-clock, global speech-a-thon we call the Internet is that it can certainly make almost anyone famous or infamous for a day.  Thus, one of the pitfalls of placing too much faith in more speech as a preservative of speech istelf is that both the dynamics and the economics of social media foster new types of crowds and new types of minority speakers. And the only real difference between a crowd and a mob is whether you’re with it or against it.

Meanwhile, the notion of tolerance itself, the basic idea that the health of speech depends on allowing or even embracing unpalatable ideas, seems to be changing online and in our national dialogue.  Paradoxically, from quarters like academia, one hears the refrain of what sounds like a new orthodoxy of “tolerance,” which is of course a form of censorship.  More on that in Part II.

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Like’s Labour’s Lost – Facebook Advertising

Beauty is bought by judgment of the eye,
Not uttered by based sale of chapmen’s tongues.

So, like, what’s a Like worth anyway?  I mean a Facebook Like.  Well, for starters, like, Facebook is valued at like more than 120 times its earnings, so, like, the concept “value” is like, y’know, hard to define. Likes are indeed currency, though good luck trying to figure out the exchange rate.  For most of us, a Like is just a casual, and usually literal, means of expressing appreciation among friends.  Like the new baby pics, Like that smart or funny comment you made, Like that you wished me good luck or Happy Birthday, and so on.  And while all that Liking does yield data for Facebook, which is fed into the box of dark magic that conjures what may or may not be useful market research in the social media age; Likes for business, organization, or cause promotion are another matter altogether.  And you know this because if you create a Facebook page for one of these things, Facebook will immediately let you know that you can broaden your exposure by paying for Facebook advertising.

There’s a classic advertiser’s quote, often attributed to David Ogilvy (though maybe not correctly), that says, “I know half my advertising budget is wasted, I just don’t know which half.”  Waste is the advertiser’s dilemma; nobody wants to spend money advertising to people who will never be customers, and the best traditional solutions to this have been based in demographics and broad market research, which trades in old-school likes (e.g. consumers who like football also like beer).   The advertiser of a sports car, for instance, can’t entirely avoid waste, but he can put commercials against programs known to be watched by his most likely customers based on market research.

The Internet is supposed to do better than that for advertisers. Rather than spray-and-pray sports car ads at men in a target demo, the hope has been that the advertiser can reach Steve, who is actively looking for a sports car right now. Much of the design of the Internet as we know it is built with an aim to achieve this goal and not whatever altruistic, social progress is being spun in the PR departments of social media giants.  One irony, to me anyway, is that I actually find Facebook to be a largely positive social network, which is not where it derives its market valuation; yet, I am very skeptical of its worth as an advertising network, which is where it derives market valuation.  I won’t lie:  I’ve enjoyed connecting with old friends, making new friends, keeping up with people, and kibitzing on Facebook; but I bet I’m not alone in saying that I am probably less brand aware today than I ever was in the days when I only had one screen in my life and a limited number of channels.

If anything, I find the obvious advertising on Facebook is either utterly missable or utterly obnoxious.  The only times ads have caught my attention on the network have been negative attention.  For instance, when Facebook tells me that a friend “Likes” a certain big corporation (e.g. Sam Likes Bank of America), it only attracts because I know it isn’t true, and I find myself wondering a) where Facebook gets the nerve to say this?  b) what idiot thinks this is good marketing for BofA? and c) what am I endorsing that I don’t know about?  Similarly, I’m sure we all notice that Facebook will very quickly feature ads for items we browsed online within minutes of said browsing, and maybe this is an effective sale closer sometimes, but certainly not if it’s an item we just bought. In this case, the ad just elicits a well-deserved sneer.

So, in the pursuit of “Steve,” that real customer, I often wonder whether these rather ham-handed efforts do not represent the new “waste” in advertising, particularly in light  of what has surely been lost in recent years, which is consumer relationships built on brand identity.  In the 1990s, advertisers were still very much talking about relationships, but today, it seems the word is engagement, meaning interactions through social media.  And believe me, I honestly think there are a million smart ways to build relationships through these platforms, but it’s not clear that there is much value to the Facebook Like.

The owner of a business, organization, or cause page on Facebook can purchase Likes through two mechanisms — one supposedly above board, the other not so much.  Paying for Facebook ads is the legit, and at least somewhat organic, way to attract valid, engaged interest in a page.  The not so kosher approach is to buy clicks through a third party that simply pays foreign labor in what are called “Click Farms” to sit and click on things at a rate of about $1 per 1000 clicks.  (I know, it’s a job that just screams innovation and prosperity, right?)  But this is how many a Facebook page acquires tens of thousands of Likes, which are less than worthless in the pursuit of engaged prospective customers, readers, or supporters of your cause.

Unfortunately, according to Derek Muller, creator and host of the YouTube science and tech series Veritasium, buying Facebook ads seems to generate roughly the same worthless pile of Likes as buying third-party Likes.  In fact, Muller explains that, based on the way Facebook algorithms test and then broaden the reach of posts in response to apparent engagement, having tens of thousands of bogus Likes actually reduces exposure to people who are legitimately interested in your page. The reason Muller gives for the Facebook ad buy attracting just as many fake Likes is that Click Farmers actually click on stuff for free (i.e. pages they haven’t been paid to click on) in order to hide their identities in the vast confusion of clicks throughout the network.  In short, so that nobody notices a sudden Like spike on one particular page from, say, the Philippines.  Muller doesn’t accuse Facebook of intentionally selling fake Likes, and this probably fair; but I still wonder what a real Like is really worth.

I recommend watching the video.  Muller is very entertaining, and the whole series looks great.  Had I first seen it on Facebook, I like totally would have Liked it.

Posted in Advertising, Digital Culture | Tagged , , , | 5 Comments