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.

Strange Theater at the CATO Institute

“To keep up even a worthwhile tradition means vitiating the idea behind it which must necessarily be in a constant state of evolution: it is mad to try to express new feelings in a “mummified” form.”
– Alfred Jarry –

Legal expert and blogger Terry Hart and I had the chance to meet in DC this week, and we were discussing the likelihood that, although copyright is dispos’d in brawl ridiculous on the virtual battlefields of cyberspace, that most people neither know nor likely care much about the subject. This is probably a good thing as there are more serious matters at hand. Still, one of the reasons I personally do pay attention to this digital-age donnybrook is that, beyond concern for the rights of creators, the future of culture, and the economics of the creative industries, my sense is that there are some strange, ideological forces at play.

A couple of weeks ago, I wrote a post asking whether or not conservatives and libertarians are eager to take up copyright reform under the umbrella agenda of small government.  My post was in response to a somewhat haphazard brief, published and then retracted by the Republican Study Committee.  And last week, the libertarian Cato Institute hosted what I can only describe as a piece of absurdist theater entitled Copyright Unbalanced: From Incentive to Excess, so named for the book edited by Jerry Brito and co-authored by Tom W. Bell, who were the featured speakers

As usual, I’ll direct you to Terry’s blog for legal analysis of the presentation but offer my take from a broad perspective. The premise is that copyright law has expanded beyond it’s original intent (translation: an example of big government), and the conclusion proposed is that copyright law ought to revert back to its status of 1790 (translation: strict constitutionalism).  So, as a purely academic exercise, I get why this stage play might seem attractive to libertarians or conservatives; but as we contemplate taking these proposals seriously in the real world, we run headlong into some peculiar hypocrisies and contradictions.  Libertarians and conservatives looking to weaken the notion that intellectual property is property? Or even stranger, the same groups suddenly emphasizing the “public good” over the individual?

Now, I personally have come to reject most political labels, which seems only rational when liberals classify me as a conservative, and conservatives as a bleeding heart liberal.  But no matter what ideological alliance is being claimed, I’m always concerned when anyone makes a case that any law ought to remain static as of the 18th century.  I believe there is an inherent danger, somewhere between impractical and barbaric, to propose living too strictly according the gospels of ancient men. (Just look what happens when people try to cherry-pick the Old Testament for political purposes.) Hence other than selling a book (and no it doesn’t seem to be available through Creative Commons license), it’s a little hard to fathom what in any practical sense Brito and Bell are proposing with regard to “re-balancing” copyright.  There may be a rational conversation to be had about the present system and duration of terms, but Mr. Bell’s loftily presented assertion that it’s obvious we should simply erase 200 years of jurisprudence and reset the clock to a time before mass publication of books even existed doesn’t exactly have the ring of balance to my ear. On the other hand, I might be game for resetting the letter of the law to 1790, if we are willing to restore remedies from the same period.  I mean, who doesn’t want to bring back dueling or good old-fashioned belaboring one’s ideological foe with a cudgel? Or the word cudgel, for that matter?

Most of us recognize that technological innovation is a primary reason why copyright, not to mention quite a few other laws, has grown and evolved since the world was new. In the case of copyright, of course, technologies have created new media the framers could not have imagined, as well as new ways to consume media and new ways to steal media. Yet, Brito and Bell seem to want to ignore these and other realities and regress the law as an ideological principle to a time when the U.S. population, including slaves, was roughly 3.9 million. That’s about one million fewer people than visit just The Pirate Bay on a daily basis to enable mass copyright infringement. Shift this same academic argument about half a click toward the subject of patent protections, and I suspect that any conservative or libertarian support for the larger rationale will quickly vanish. And that’s part of what was so bizarre about the presentation — the fact that Brito and Bell seem to be weaving a very narrow and serpentine path through conservative and libertarian values, not to mention running smack into conflict with the preachings of Ayn Rand from a stage built partly in her honor.

Brito himself invoked the name of Rand, and all I could imagine was the smoky old tart choking on his assertion that copyright is not based in any kind of natural right of the individual.  By choosing to interpret the clause on copyright “To promote the progress of science and useful arts…” in the most collectivist sense, Brito and Bell would earn themselves an indignant tongue-lashing from Ms. Rand were she alive to hear them.  After all, even a half-stoned teenager forced to skim the novel Atlas Shrugged would be able to glean that Rand placed value solely on the individual’s absolute, natural right to exploit for profit any type of product of his own mind without restriction of any kind ever. She reviled the notion of performing work “for the common good,” even voluntarily; and she defined those who would profit from the work of others, either by design or by circumstance, as “looters.”  Hence, in the digital age, Rand would see the rise of “looters” among torrent sites, the users of these sites, Google, advertisers, payment processors, etc.  So, it’s odd enough to hear collectivist proposals about any property right at the Cato Institute, but it’s even more bizarre that these academic proposals would supersede a pragmatic discussion about the unmitigated expansion of “looting” in our times.

Of course, we shouldn’t be surprised that so many tech bloggers are swooning over the assertions of  Brito and Bell.  Those who aren’t working directly for the Internet industry have culturally bought into the premise that copyright stifles innovation and new business, so they’re thrilled to hear anyone propose rolling back copyright until it’s all but irrelevant.  Of course, I have yet to hear any “new business” concepts whose aims are actually stifled by copyright. Instead, we continue to hear the same kind of vague predictions that we’ve been hearing since Web 1.0, when investors were lulled into launching start-ups that had no foreseeable revenue stream. Hence, without real data on real businesses being held back, I have no idea what’s conservative about this basis for a discussion about copyright reform.

Correction Re. TechDirt

In today’s post about transparency, I stated that TechDirt was among the blogs that criticized the appointment of Representative Lamar Smith as Chairman of the House Science Committee.  There was, in fact, a slew of blogs about the appointment, and I honestly believed I had seen one from TechDirt several days before writing my article.  Editor Mike Masnick wrote a comment on this blog accusing me of lying, although I believe it’s clear that the point of the article does not in any way hinge on TechDirt’s role, and that I have no reason to invent the statement.  It was an honest mistake, and I hope Mr. Masnick accepts the apology, the retraction, and the correction to the blog itself.

DN

The Opaqueness of Transparency

It isn’t just perception.  Partisan politics in the U.S. really is worse than ever, if we’re to take the word of those who’ve been on the inside for the last 40 or so years. I was listening to an audio version of Tom Brokaw’s book The Time of Our Lives recently, and hearing him describe today’s dysfunctional intransigence in Washington, I began to wonder why, in the age of so much transparency and mass communications, do matters appear to be getting worse? More to the point, is it possible that we’ve created an illusion of transparency while ignoring the fact that the way we tend to use digital media produces the opposite of rational and cordial discourse among both the electors and the elected?

Brokaw writes, “…modern means of communication are now so pervasive and penetrating, they might as well be part of the air we breathe and, therefore, they require tempered remarks from all sides.  Otherwise that air just becomes more and more toxic until is is suffocating.”  Sounds a lot like the blogosphere to me.

Those who vehemently pursue transparency through technology — everyone from hacktivists to open-government scholars– offer the premise that transparency through Web technology is not only good, but a near panacea to our political ills.  And while we certainly don’t want to see our elected officials get away with crimes and misdemeanors, I’m not convinced that the theater of rapid-response outrage we’ve created does much to thwart real mischief so much as it incubates some of the more toxic viruses in day-to-day governance — namely blind partisanship and associative reasoning.

The promise of transparency is meant to be an independent voter’s ideal — that with digital access to real data, one can make unbiased decisions based on the particulars of a given situation. In theory, information trumps partisanship. Through on-demand access to raw information and fact-checks, the argument goes, we can more accurately judge our elected officials as individuals rather than broadly associating them with the views of a particular party.  So why does our national dialogue sound more and more like a cacophony of lunatics?

One problem with the case for this kind of transparency is that it assumes data are neutral, which is a very techie point of view because to a computer, of course, data are neutral and interpreted by a fairly rigid code. In human affairs, and politics in particular, data are subjective and interpreted by a code called emotion that is both subjective and dynamic. Computers like data, humans like stories. That’s why an editorial about a proposed bill in congress beats reading the bill itself and a catchy, 140-character headline beats both.

While access does exist to unbiased, raw data, this access seems to have very little to do with how Web 2.0 is affecting our political evolution. To the contrary, social media is highly emotional and is referred to as a “hive mind” for good reason. Hence, the instinct to react, not only as individuals, but as mobs has been given an outlet through these technologies.  What we often end up with is our worst political instincts on speed pretending to be a more enlightened process.  If anything, the way we use social media and blogs seems to foster more associative reasoning, which allows (or forces) all issues to be painted with very broad brushes. This is the opposite habit that transparency is meant to produce.

Look at the way the tech blogs lit up last week over Rep. Lamar Smith’s appointment to the chairmanship of the House Science Committee.  It’s one thing if Representative Smith has a dodgy record on actual science, but TechCruch and others ran headlines decrying the appointment because Smith was the lead author of SOPA.  Even if you hated that bill for what it was, calling it anti-science or anti-technology makes as much sense as calling speed limits anti-Lamborghini. It’s a straight-up cheap shot with a clear political agenda. After all, Smith is a Texas republican and the author of SOPA. So, attacking him is good for scoring points among progressives, who will never bother to make the distinction that SOPA had nothing to do with science; and neither will they bother to look up Smith’s record on science issues, even though they could with a couple of mouse clicks.  In this case, the tech blogs are behaving much like FOX News, looking at all stories through a single filter.

I bring up this example because it’s recent, but also because some of those bloggers are the same folks who proclaim the unmitigated value of transparency while using the technology to promulgate more of the opaque, associative political nonsense that makes our politics so dysfunctional.  As a side note, Smith’s record on science is relatively unclear at this point, other than past remarks doubting the veracity of some climatologists; but let’s not confuse that with bills designed to stop an international criminal enterprise, shall we?

What we think of as transparency is often a lot of reactionary noise that can literally be a barrier to a better functioning representative government. Sure there are a lot of folks in congress with some pretty wacky ideas, but why does it seem that even moderate representatives can’t sit down to rationally discuss issues that shouldn’t even be partisan in the first place? Might the digital, global microscope be a cause for divisiveness itself?  We have to imagine governing — and heaven forbid compromising! — in an environment where every syllable, every meeting, every gesture inspires instantaneous, and often erroneous, condemnation that goes viral.

Mass media, especially the blogosphere, demands conflict because humans like stories.  But representative government can only function through compromise and cooperation, which fails to satisfy multiple constituencies at any given moment — and now, they’re all on Twitter. Hence, it seems only one of two things can result from all this so-called transparency:  1) that governance stalls; or 2) that functional governance can only happen in even greater secrecy than we had before the digital age.  It certainly wouldn’t be the first time technology has produced exactly the opposite conditions it promised.

It’s true that with a lot of time and effort, we can use the Internet to look objectively through a clear glass at our politics; but I suspect that most of the time, the window is truly opaque and that we’re always seeing at least a half reflection of ourselves.  If the people’s representatives are dysfunctional, then it’s possible that the people are as well.  The question remains as to how the design of these technologies might be playing a role in that dysfunction.