Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

Why the Wrong Picture Matters

On Friday last week,  a Q&A appeared on The New York Times website between journalist James Estrin and photographer Ami Vitale.  The story pertains to the now widely recognized hashtag campaign #BringBackOurGirls, meant to raise awareness and perhaps pressure officials in our own countries to do everything possible to rescue nearly 300 schoolgirls kidnapped by Islamic terrorists in Nigeria.  At issue are three photographs of young, African women that have to a great extent become the faces of the campaign, spread throughout the Internet and featured on mainstream news broadcasts.  The problem is that these three photos, used without permission, were taken by Ms. Vitale as part of her documentary study of the society in Guinea-Bissau, a country located more than a thousand miles from Nigeria and whose residents have nothing to do with the victims of these kidnappings.

Vitale is angry for several good reasons, I think, not the least of which (if I may paraphrase) is that the appropriation of these images, even in the name of a cause as dire as the Nigerian situation, implies a tremendous cynicism about the civil liberties pertaining to the likenesses of the subjects; and in this case, is further aggravated by cultural insensitivity.  In other words, nobody’s image should be used without permission as though it were a generic stock photo — I know I’d be angry if my daughter’s picture were featured in an anti-sex-trafficking campaign without our permission — and this particular misrepresentation implies that faces can just be interchanged because, well, they’re African, and nobody around here really knows the difference.  Ironically, that homogenous view of Africa is an impression Vitale is seeking to contradict with this particular series of photos from Guinea-Bissau.  To quote:

“I wanted to put a human face on conflict. But when I got there my story changed. Because I realized the way Africa is generally portrayed in mainstream media is either wars, famine or stories like this terrible abduction. You see the horrors or the other extreme, beautiful safaris and exotic animals. There’s nothing in between.”

Photographs can, of course, be very powerful; but the power of a single image I believe is tied to the manner in which it becomes encoded into long-term memory rather than passing through short-term memory.  And the tendency now to gist our way through constant absorption of images through social media could well be turning us into short-term memory beings, who outsource long-term memory to the cloud.  Certainly, this would be consistent with some predictions coming from technologists who promote this modification as an enhancement to the human condition.  But if this is in fact the new reality, it seems to me, that when images like Vitale’s photographs are stripped of their legitimate context and applied to another context of tremendous gravity, that what’s being lost is anything but trivial.

No matter how this horrific story in Nigeria unfolds, doesn’t it matter if Vitale’s photos of the girls in Guinea-Bissau could theoretically become icons associated with a completely unrelated story?  Wouldn’t this betray the principles of journalism and all non-fiction storytelling?  Or does a hashtag campaign like #BringBackOurGirls exist as some collective activism similar to but separate from journalism in which the goal of awareness-raising is more important than the integrity of the story tied to a single image?  Personally, I don’t think so.

Cynical as it sounds, I think we have to admit that hashtag campaigns about highly complex and deadly serious issues have a somewhat contradictory nature.  On the one hand, there is a measure of practical and social value to the kind of global vigil being held at this moment; but on the other hand, sadly, the Nigerian kidnapping story is just what’s “trending” this month alongside celeb gossip and other bits of fluff.  In this recent article in The Daily Beast, terrorism expert Christopher Dickey suggests that when our momentary attention to this story wanes and the girls are very likely still captives, that what may well effect their release is the unsavory option of a large ransom and a slow negotiation with the devil.  Whether that’s the case, or intelligence services and special ops can locate and rescue these girls, the hashtag campaign is, to an extent, just something the rest of us do because we can do nothing.

Dickey’s assessment is based on several decades worth of knowing who the players are in global terrorist organizations and about the motives of individual actors.  And this relates the work of Ami Vitale in an important way.  When we all move on to the next story from the safe distance afforded by our devices, it’s the photographers and journalists and documentarians who stick around in places like Nigeria, Kenya, Somalia, and Guinea-Bissau so they can tell the rest of the story.  And it is essential that those stories be kept intact and not casually remixed, even with the best of intentions.

The Story “Transcendence” Didn’t Tell

Photo by agsandrew. istockphoto.com
Photo by agsandrew. istockphoto.com

WARNING:  There be spoilers here!

Despite the bad reviews, I had to go see the film Transcendence last weekend.  Given that its plot is based on certain theories pertaining to the technological singularity, how could I not go see it?  Indeed, it was very much not a good movie, and although film criticism is outside the editorial scope of this blog, the the story opportunity I think was missed is relevant for discussion here.

Johnny Depp plays Dr. Will Caster, a top computer scientist working in the field of AI (artificial intelligence) along with his wife, Rebecca, also a top computer scientist.  The adoring couple believe absolutely that human “transcendence” through symbiosis with computers into a newly evolved condition is a virtuous pursuit that can only benefit mankind.  Unfortunately for them, a group of hacker/terrorists led by one of Caster’s former students believes that advancing AI toward the technological singularity — the moment computing intelligence surpasses human intelligence and becomes self-aware — is a dangerous abomination.  At the start of the film, this underground group assassinates several leading AI researchers, and one of their operatives shoots Dr. Caster, which at first appears to have been a non-lethal grazing but is soon revealed to cause radiation poising from a polonium-tipped bullet.  With her husband having only weeks to live, Rebecca, along with the help of their colleague and dear friend Max, upload Caster’s mind into the core of their highly sophisticated computer and succeed in giving his consciousness new life.  Once Rebecca connects Caster to the Internet, he becomes omnipresent and nearly omniscient. And then the movie really starts to blow.

What unfortunately transpires after Caster’s transcendence is a stock action thriller complete with paramilitary personnel towing around a piece of WWII-era artillery for no particularly good reason.  By the time supercomputer Caster begins to “heal” sick and wounded people with nano-tech that tuns them super-human and immortal as long as they’re connected to the network, Rebecca finally catches on to the fact that she’s started something pretty dangerous.  Together with Max, the underground hackers, a smattering of federal agents, and the wise old scientist (played by Morgan Freeman of course), they determine that the only way to stop the conscious computer is to send in a virus.  This is ultimately accomplished when Rebecca volunteers to be infected with the virus and lets Caster upload her into the system.  Stopping Caster has the unfortunate side-effect of plunging the planet into darkness because, of course, they infect everything that is networked worldwide.

As my son and I left the theater, we joked about the fact that that film leaves us with the world “saved,” if we can call civilization reduced to a primitive sate and about to erupt in medieval chaos “saved.”  But that joke is exactly where I think the more interesting plot point was lost in the movie that got made.  The existential question asks which is the better choice:  to shut down all systems and let humanity try to rebuild civilization from the destruction that would surely follow, or to allow all living things to artificially evolve into a new state as networked entities with what might be described as kind of holographic consciousness and probably no free will? Would it even be humanity?

This is already a question for our times, if one is to take seriously the very real utopianism of AI scientists like Ray Kurzweil, presently the director of engineering at Google.  Plenty has been written about Kurzweil himself, his obsession with immortality underscoring a relentless pursuit in a lab that enables him to work at “Google scale,” as the offer was apparently put to him when the company courted his employment. AI research is no science fiction, and neither is the probability of singularity, but as theoretical physicist Stephen Hawking warns in an article published yesterday, nobody is really taking the implications of this inexorable march toward possible self-destruction very seriously.  Never at a loss for wit even when dealing with weighty subjects, Hawking writes, “If a superior alien civilisation sent us a message saying, “We’ll arrive in a few decades,” would we just reply, “OK, call us when you get here – we’ll leave the lights on”? Probably not – but this is more or less what is happening with AI.

Hawking warns unequivocally that, while AI could bring about some miraculous achievements in the  short term, that computers able to reprogram themselves, outwit financial markets, and even build weapons could very easily transcend human control and become the recipe of our sudden extinction.  Personally, I think there are enough hazards to be considered right now, including experiments with autonomous weapons that can decide who their targets are, and consolidated, corporate control of the research, data, and the agenda itself.  It seems to me people are just beginning to grapple with the implications of how much invasive data mining we’re allowing a company like Google to do, so how long will it take before anyone talks about the possible doomsday algorithms being tinkered with in its labs?  Cynically, I believe I know the answer to that question, and it will have something to do with whatever The Biebster is up to next week.

Anyone who reads this blog knows I write in defense of copyrights but not necessarily why.  It’s easy to get into debates and squabbles over the particulars of that body of law and to get caught up in what I believe to be a false debate over progress vs anti-progress.  I defend copyrights for the same reason I’m uncomfortable with drone warfare and don’t want to see autonomous weapons, even if they might make my own kid’s future job in the Navy less hazardous.  Copyrights, I believe, are merely one way in which we affirm that humans maintain dominion over their technology.  When we reduce our intimate thoughts, ideas, and creative expressions to the banality of data, we take a step closer toward abdicating that authority.

We should probably pay attention to anyone of Stephen Hawking’s stature, but I find his voice on this particular subject uniquely poignant.  After all, Hawking is probably about as close as any human has ever come to a life manifest as Descarte’s cogito ergo sum (“I think therefore I am”), existing almost entirely as a mind without a body, and most importantly, a mind blessed with the capacity to travel well beyond the boundaries that contain most of us mortal thinkers.  We are lucky to have had Hawking live as long as he has with a disease that was supposed to take his life many years ago.  I’ll stop short of calling him a prophet, but maybe somebody should at least report what he’s saying on the news or something.  Perhaps they could split the airtime for round-table discussion between the fate of Donald Sterling and the fate of all humanity.  In the meantime, Transcendence was indeed a box-office flop for Alcon Pictures, and from my point of view, it’s because the filmmakers let the interesting story go for the sake of a lot of boilerplate action sequences.  Maybe that in itself is a lesson.

Lighten up, Derek Khanna

A legal cub named Derek Khanna, rather than finishing his law degree and taking the bar exam, has been steadily transforming himself into something of an anti-copyright celebrity purporting to represent a conservative perspective.  And yesterday,  he offered this inscrutable editorial, which appeared on Business Insider* among other places.  Ostensibly, the article is a criticism of copyright terms (i.e. the length of copyright), and there is certainly nothing wrong with having that discussion.  In fact, in the two plus years since I’ve personally been involved with these issues, I’ve met several strong proponents of copyrights who would be open to discussing the pros and cons of shorter terms; but it must be something about their 20-30 years worth of professional IP experience that makes them sound just a little less, I don’t know, hysterical than Derek Khanna.

Titled “The Conservative Case for Taking on the Copyright Lobby,”  one might think that the word case coming from a Fellow at Yale would involve some sort of logical construct written with the kind of dispassion legal scholars often exhibit, given their experience balancing complex and competing interests. Not so much.  Instead, Mr. Khanna offers a sort of screamo variation on the anachronistic theme that Hollywood lobbyists are robbing the future economic and creative capacity out from under the next generation while simultaneously committing treason against the orthodoxy of America’s Framers.  All of this is achieved, of course, by the “content lobby” sequestering creative works in the grip of terminal copyrights.

While Disney’s extended hold on its seminal cartoon Steamboat Willie certainly makes an interesting case for discussion, to read Khanna’s article, one might get the idea that creative work has receded thanks to Mickey and the 1976 Copyright Act rather than expanded. All the novels and plays and screenplays unwritten!  All those songs unperformed!  The films we’ve never seen!  And the computer games not produced!  All because of that damn mouse!   Seriously?  Even with terms as long as they are, I have yet to meet a single artist, great or small, who gives existing, protected works anything more than a passing thought when he or she begins to create something new. So, Derek should lighten up because he’s not only not a lawyer yet, he’s really very much not an artist.  I quote:

The costs of one of the greatest thefts in American history by these special interests hinders learning, destroys our cultural legacy, hurts innovation and the public, but, most important, it impedes filmmakers, artists, deejays, and other content creators who need to be able to build upon the work of others to create new content — as we have done for centuries. 

What do you mean we, kid?  And where have you been for the last 20 years?  Oh, right, growing up.

Certainly, Khanna is correct that the social purpose of copyright is to promote new works in the arts and sciences; and if the application of the law exceeds or betrays this purpose by preventing people from building upon the works of others, then reform is in order. Yet, despite whatever research opportunities his fellowship at Yale affords, Kahnna insists on trotting out some of the most overused, amateur complaints about copyrights — Steamboat Willie, corporate ownership of the song “Happy Birthday,” and some ill-advised things former MPAA head Jack Valenti said 32 years ago — rather than demonstrate how current copyright terms are having any tangible, negative effect on the creation of new works. This is because there are no solid data to support this accusation on any scale that can be considered problematic.  To the contrary, copyright continues to serve as a basis for fair trade among authors of works that enables multiple parties to benefit creatively and financially; and it also codifies the principle of fair use in the U.S., which happens to have the most liberal interpretation of that concept among countries that maintain copyright laws.

It is interesting, though, that Derek claims to be making a “conservative case” with this article.  In fact, the absence of a case by any definition of traditional argument reveals the piece for the emotional, buzzword vehicle that it is.  And to this end, the only apparently conservative position taken by Khanna (and it’s not his idea, by the way) in this editorial is a lightly veiled nod to “strict constitutionalism” with quotes like this one:

The steep costs to perpetual extension of copyright have been long known and are well documented. This is why the British copyright statute, the Statute of Anne, limited copyright duration to 14 years; why 12 of the original 13 colonies had similar copyright durations in their own statutes; why the Constitution includes the phrase “limited times”; and why the founders limited copyright to 14 years.

Of course, it’s rational to assume that the Framers anticipated the downsides of perpetual copyright, but the term of 14 years is as arbitrary and irrelevant to contemporary America as whatever it is Sarah Palin keeps babbling about muskets and militias.  When the U.S. extended terms in 1998, it was playing catch-up as one of the last countries to adopt the same terms other copyright-supporting countries already had in place.  What that means is that the U.S., as one of the largest exporters of entertainment and information media in the world, was literally leaving money on the table relative to its trade partners; and it’s difficult to imagine a conservative advocating a position that would support losing revenue in that manner.   One does not make a sound case for thoughtful reform simply by repeating incendiary and obsolete complaints or by bowling a googly like this one:

To their credit, in moments of candor, content-industry lobbyists at least admit their goal is to repeal the copyright clause from the Constitution. 

I got nothin’. I’ve read it several times and cannot figure out why Khanna claims content owners would want to repeal the copyright clause unless he means they would seek to repeal only the phrase “for a limited time.”  Either way, it’s pure, careless invention to suggest this notion lurks anywhere in the minds of serious copyright professionals. The clause itself is older than the Bill of Rights. And no matter what the subject, every time someone with a political axe to grind claims to know the intent of the Framers, it’s hard not to see how such “wisdom” in the wrong hands results in events like the armed standoff now taking place in Nevada.  To quote Terry Hart, who writes the blog Copyhype:

The fact is, the Founders spent remarkably little time on copyright. Joel Barlow told the Continental Congress we should have a copyright act and, by the way, you should just copy England’s law. The copyright clause was proposed just a few days before the Constitution was finalized, and adopted without debate. Compare that to the process going into the 1976 Act, which actually comprises 20 years worth of study by the Copyright Office, roundtables, discussion drafts, public comment, and congressional hearings.

And in case Derek Khanna and the editors who think he’s worth listening to hadn’t noticed, a new copyright review has been underway for several months now, complete with hearings in the House Judiciary Committee. It’s a complex matter being discussed by serious people with many points of view and by a variety of stakeholders. And I am told by lawyers I know who have been the room with studio execs and the MPAA, that nobody is talking about extending terms. Meanwhile, the narrative that Hollywood alone holds Washington in the grip of its lobbyists has been outdated for quite some time, with those resources dwarfed by the expenditures of Google alone in its efforts to weaken copyright.

I get why Khanna’s charm and good looks make him an attractive poster boy to watch poke a hornet nest with a stick. But despite all the aggrandized prattle about the digital age elevating discourse in the world, this is all too often what it really looks like:  a kid with exactly zero professional experience spouting a bunch of popular-sounding and oversimplified bullet points, all because it’s good click-bait. But that’s not where the real discussion is taking place, and neither should it be. This kind of reminds me of a moment in the year 2000 when CNN was reporting the unfolding disaster of the Russian sub Kursk, trapped deep in the Barents Sea and about to lose all hands. And CNN brings on action/thriller novelist Tom Clancy because of course he wrote The Hunt for Red October.   Fourteen years later, this circus gets more absurd by the hour.

*This was mistakenly attributed to another article and link in The Washington Post.  Thanks to Mr. Khanna for the correction.