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.

Headless in the Garden – Facebook & Free Speech

It turns out this is Free Speech Week, although I doubt this fact had anything to do with the timing of Facebook’s recent dustup over its decision to allow videos of beheadings on its pages. On Monday, it was reported that executives at Facebook had decided to lift a previously imposed ban on sharing videos that depict actual beheadings committed by terrorists and gangsters. The company almost immediately reversed this decision in response to what appears to have been universal revulsion by users. Of course, our disgust doesn’t mean sharing these videos is not a matter of free speech, but neither is it a First Amendment issue simply because Facebook says it is.  Regardless, the story raises some of the cultural and/or legal questions inherent in our relationship to social media, so it’s an interesting topic after we all agree that almost none of us wishes to see, let alone have our kids stumble upon, a video of someone being decapitated.

The first question it seems we grapple with is whether the company that owns a site like Facebook does or does not bear responsibility for the content we users post on its walls. In principle, if the site establishes any rules governing content at all — and they wouldn’t get far in most countries if they didn’t — then the very existence of said rules implies responsibility.  Facebook, for instance, does not allow nudity to be posted, and the reason is obvious; there are simply too many ways to run afoul of existing laws pertaining to obscenity or to sexuality and minors. Every teenager posting a naked selfie would be a legal entanglement for the company. Yet, it’s easy to wonder why it matters when minors are a mouseclick away from being exposed to every kind of pornography outside the walled garden of Facebook.  While executives at the company are not entirely wrong that protecting kids from exposure to horrific images is a job for parents, our voluntary presence and activity on the site is a bit like entering a shopping mall where the landlords are allowed to turn our interaction into revenue.  As such, it isn’t really public space.  If I put a bunch of violently offensive posters on the walls in my local shopping center, I could be arrested; but the mall owners could easily be sued if they chose to leave the posters up on the grounds that I was exercising my right of free expression.  This argument would never fly in physical space, and it doesn’t appear to work so well in virtual space either.

The attitude of most site owners tends toward a laissez faire approach to content shared or created by users; and this is legitimately understandable given the slippery nature of trying to define protected vs. restricted speech.  Still, I suspect the primary motivations are financial rather than ideological.  When one is in the business of monetizing traffic, it’s simply easier not to care what drives that traffic.  But when thousands or millions of users dog-pile onto some content or activity that is truly depraved, we do have to decide whether we’re okay with allowing the walled gardens of social media to become new Coliseums of grotesque spectacle.  From anecdotal observation, it seems most users are not okay with this and that they do want to hold site owners accountable.   When Caroline Criado-Perez campaigned in the U.K. for Jane Austen to appear on British bank notes, she received  a deluge of death and rape threats via Twitter. The company was ultimately forced to respond to public demand for greater capacity to report and mitigate abuses through the social network.

With regard to the decapitation videos, Facebook tried to play the pubic service card, claiming that people were sharing a particular beheading video “in order to condemn it, but one must ask to what end?  So we can put those pro-beheading folks in their place?  There is a persistent conceit that the Internet brings us realities from around the world that traditional news media does not deliver and that we are thus able to confront hard truths head-on and address them. Sometimes, this is the case, but often it’s just bullshit.  Nothing, for example, will happen as a result of 20,000 or 200,000 people watching a video of a gangster or a terrorist beheading someone except that a majority of viewers will wish they hadn’t seen it, and a small number of viewers  will anesthetize their senses to a medieval form of murder.  What possible social value would Facebook’s perhaps-too-insulated executives imagine coming from allowing these videos?  What is anyone meant to learn that would manifest as some action we might take?  Absent a good answer to those questions, one must conclude that the motivation is spectacle itself.

Certainly I believe free speech is the most sacred right to be preserved in a free society, and in order to protect this right, most of us understand that we must defend it absolutely even for expressions we find offensive.  It seems, however, that those who presume to lead in the digital age would expand this principle to include all transactions made through these technologies, even when there is technically no speaker and nothing being said.  This is perhaps a byproduct of labeling all user-provided substance with the generic content.  A rape-threat tweet or a poem are the same thing, measured only by the attention they attract.  It is comforting to see that plenty of so-called users have not quite bought this rationale.  So, Happy Free Speech Week!

Are Americans Dumber in the Information Age?

Information is the oxygen of the modern age. It seeps through the walls topped by barbed wire, it wafts across the electrified borders. … The Goliath of totalitarianism will be brought down by the David of the microchip.
– Ronald Reagan, The Guardian, 1989

The knowledge and power of the Information Age will be within reach not just of the few, but of every classroom, every library, every child. 
– Bill Clinton, Second Inaugural Address —

Remember the promise?  The most hardscrabble kid in America (in the world) will be able to reshape her destiny with the wealth of knowledge that will be freely available to her through the Internet. Tyrants will melt in the sunlight of so much information that every citizen will carry in the palm of his hand. Prosperity will be enjoyed by more people in more places than ever before.  And despite a great deal of statistical and anecdotal evidence to the contrary, technologists are still selling this same message.

CISCO currently runs a commercial about the near future of interconnectivity, envisioning a world that moves like a well-tailored suit to accommodate every human need or whim  — a place where an ambulance tells traffic lights to turn green en route to a hospital. How do we not raise an eyebrow at this image in particular while the US government was only recently shut down because we can’t all agree that every citizen has the right to be in that ambulance? How is it that we are more (or at least as) divided on so many basic issues?  Doesn’t everybody have the Internet? Yes. And unfortunately, it tells everyone exactly what he wants to hear.

About a week ago, the Organization for Economic Co-operation and Development (OECD) released the results of a two-year study that tested thousands of adults in 23 countries on basic skills in literacy, math, and use of technology.  Americans scored very poorly for a highly-developed nation, especially in the tech and math departments. Yellow journalists and humorists couldn’t resist the urge to offer variations on Americans being the dumbest people on Earth, but I like this more sober assessment by Sadhbh Walshe, writing for The Guardian, in which she focuses on wealth inequality as a very likely culprit in America’s score.  It’s really no surprise that people with money can afford better educations and, therefore, do better in life and continue to be people with money, who raise kids who will get better educations.  Ditto the cycle of poverty, poor education, and continued poverty for a growing number of Americans.

But what happened to the expectation that the Internet would help universalize education, or at least fill in the gaps for those less privileged?  We’ve had a whole generation grow up appended to these devices and their applications.  So, why do things seem to be getting worse, not only in education itself, but also with regard to overall prosperity? The internet industry will go to great lengths to protect the sanctity of the web from even the most imaginary threats to its design as a never-ending and unregulated bazaar, but the dreamy images in the advertising are a stark contrast with real human experience.  We buy the pitch about a 15-year-old girl in the slums of Detroit looking up astronomy data and becoming head of NASA, but we ignore the more typical reality that thousands of 15-year-old girls in middle-class suburbia are getting bullied online or being pressured to snap a few naked “selfies” or more likely just using these technologies to attend to the same, not-so-educational, matters that have long been the purview of teenage girls.  Meanwhile, that girl in the slums of Detroit has yet to benefit in any tangible way from the expansion of all this so-called innovation that, by nearly every measure, only seems to feed the economic cancer of our age — wealth consolidation.

In his new book, Who Owns the Future, Jaron Lanier compares the mortgage-backed securities crisis and media piracy in order to draw attention to the cultural trend that wants to tear down systems — Lanier calls these levees — claimed by one group or another to be barriers to prosperity.  “The Wall Street mogul and the young Pirate Party voter sang the same song,” writes Lanier. “All must be made fluid.  Even victims often cheered at the misfortunes of people who were similar to them.” The design of the digital age leads to wealth consolidation, and not even by capitalists like those of the early 20th century, who at least built infrastructure, but by hucksters who bundle worthless debts into phony securities or who trade in trafficking your family photos or an artist’s work without permission or payment.

When it comes to addressing the ill-effects of digital technology — whether it’s about media piracy or rape threats against a journalist or just the general diffusion of bad information — academics, lawyers, and hacktivists rush to the defense of the systems and their designs. Thus the conversation remains theoretical and cold while we continue to ignore the flesh-and-blood realities of everyday life.

To Share or Not to Share

Last week, a report emerged from the London School of Economics claiming that piracy is not harming the entertainment industries.  One of my new Twitter pals, Jean-Phlippe Vergne (@pirateorg) sent me a link to the report calling it “scientific” rather than based on “moral claims.”  I read the report, and there’s nothing scientific about it, particularly in that it lacks any statement of methodology (science likes methodology). Like other “studies” of its kind, this one begs the reader to make a very broad and unscientific leap to the conclusion that because gross sales of movies and music went up over a given period of time, we must therefore conclude that piracy is not having any ill effects on those industries.

Never mind that the report appears to double-count music revenues or that measurements like “box office sales” alone do not paint a complete picture of the economic health of the filmed-entertainment industry, but such measurements say nothing at all about the effects of piracy.  It’s a bit like saying America has more millionaires than ever before, so the economy overall must be very strong.  The lack of rigor in the report may be attributable to the fact that its authors are not economists despite the imprimatur of the LSE, but this didn’t stop the pro-piracy crowd from making hay out of headlines like London School of Economics Says Piracy Does No Harm.  After all, nobody’s going to read the report except those of us who play inside baseball.

Regardless, the report itself has already been criticized,  but I want to go back to this refrain my new friend, Mr. Vergne has played, which is the chronic implication that the subject of piracy should not be examined in a moral context.  Why not?  I suspect because it’s inconvenient to go there because even the pro-piracy crowd reveals the subject to entail a moral choice by repeating their favorite chant, “Copying isn’t theft.”  One has to buy that premise unequivocally in order to to believe that piracy is amoral, but does anyone other than a tiny group of soon-to-be-finding-a-new-hobby zealots really accept this premise as absolute?  I don’t think so.

Of the hundreds of millions of users of pirate sites, it is a comparatively small population, who actually copy files and upload them to these sites.  I have several younger friends who have downloaded music and films from torrents and the like,  but these same people would probably not go the next step and physically rip files from a disk to upload to a site, let alone take money for having ones and zeroes on their hands.  Subtle though it may be, I bet even that is a moral step too far for a lot of people, even though they realize that as viewers, they’re benefitting from the fact that someone else has crossed a threshold they wouldn’t.  This is common enough behavior.  Smoking dope is one choice, dealing it is another.

Most of us draw and redraw moral boundary lines while making dozens of choices a day.  We typically break laws in small and presumably harmless ways, but usually within some sort of self-imposed boundary unless we are irredeemably narcissistic.  For instance, I’m betting most of us would agree that speeding on an open highway with few other vehicles around is a choice that is morally superior to speeding on a city freeway. And the uniformity of the law or possible punishment has no bearing on the moral decision in this case. We make these choices and judgment calls all the time, and I don’t think making bad choices necessarily implies corruption.  Corruption begins when we permit ourselves to stop asking the the question, to assume there are no boundaries; and with regard to piracy, this is exactly what its proponents try to do — to give particularly young and inherently narcissistic people permission to stop asking the question.

But what boundaries might exist when it comes to this activity many of us call theft and others would like to call sharing?  By way of example, I recently committed a low-volume act of copyright infringement against one of my favorite musicians, Mr. Leo Kottke (sorry Leo).  My new production assistant is also a guitarist and a singer/songwriter, and while traveling on a recent shoot, I asked her if she knew Kottke’s music because I happened to have his first album loaded in the CD player.  She hadn’t heard Kottke, but she liked it a lot, so I told her to borrow the CD and copy the files onto her Mac.  Her slightly astonished look was more sincere than mocking, knowing that I write this blog and firmly support copyright.  What gives?

Good question.  It’s an argument that’s been made — that “file sharing” sites are just a contemporary and technologically inevitable extension of what pre-digital people like me have always done with media when we share with one another.  But is it the same thing?  What makes the difference?  Is it volume?  Is it about the technologies used?  Is it about presentation or delivery mechanisms? Or is it simply that I in no way profit financially from this exchange with my assistant?  Would Leo Kottke be mad at me?  Maybe, but I don’t think artists have ever cared much about this kind of one-to-one exchange. Plus, I can accurately state that my success rate in terms of fans made in this case as 100% fans for all recipients of the free media. But maybe that’s an excuse.   If I want to be altruistic about it, maybe I should send Leo $12.26 with an explanation that it’s the current Amazon price for one extra copy of his 1969 album “6-and-12-String Guitar.”  Wouldn’t he be surprised?

My choice to “share” in this instance is bound by certain conditions that, absent the larger debate about piracy, I doubt I would examine consciously.  Nevertheless, the first condition is that I would never think of the word sharing to describe an exchange that does not involve transmission of media to an actual person I know.  Absent the connection made, the rapport built, the camaraderie fostered by introducing someone to a particular work based on some quality I recognize in the individual, the exchange would be meaningless and empty.   As such, I find the conceit of piracy’s defenders who call that activity “sharing” to be a devaluation of human interaction in the same way mass IP theft itself is a devaluation of the human labor that produced the work in the first place.  Does anyone rationally believe they can “share” anything with several hundred million complete strangers?

A component of this condition that I share with an actual person is that I have a measure of trust in that individual — that she isn’t going to do something irresponsible with the files, but almost more importantly that she’s accepting the gift because she actually gets something out of the music.  We’ve seen evidence that the free media bonanza has led to a kind of habitual gluttony among younger users who may have thousands of songs on their iPods but have little to no relationship with much of the music they’ve collected. This phenomenon was in part highlighted when David Lowery wrote his famous letter to NPR intern Emily White after she boasted that she had 11,000 songs but only paid for 15 CDs in her life.

Another component of sharing only with a known person is of course a matter of scale.  After owning Kottke’s album for two or three decades, I personally increased the number of individuals with bootleg copies by one.  By contrast, were I to upload those same files one time to a pirate site, I’ve made the album available to roughly 2.5 billion people, which is to say the entire Internet-connected world.  It’s frankly shocking that any of the debate about piracy continues to get bogged down in comparing a 1:1 exchange with a 1:2.5 billion exchange, but I assume that’s why folks like Mr. Vergne prefer semantic games and a pretense of socially progressive philosophy (i.e. bullshit) over anything so clear-cut as numbers.

And scale aside, giving the Kottke files to my assistant remains within another boundary  in that I did not serve up this artist whose work I love to be exploited for profit by the owners of pirate sites. It doesn’t matter that Kottke’s music would be downloaded substantially less than, say, Lady Gaga.  It wouldn’t even matter if Kottke’s files were never accessed via pirate site simply because his fan base likely skews toward a demographic that doesn’t generally use these sites.  What matters is a gut instinct that if I could ask Leo Kottke his feelings on the matter, I’m guessing he’d be cool with the exchange with my assistant but would be insulted and furious at my uploading his work to the entire world so some parasitic individuals can profit from its trade.  And in this simple, old-school exercise of putting oneself in another’s shoes, the moral choice is clear.