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.

Pink Slime Culture

Originally published on the blog at Copyright Alliance, and the folks at Techdirt were insulted.

A few months ago, our Facebook walls were adorned with images of “pink slime,” the nickname given to Mechanically Separated Meat (MSM) that is now the subject of controversy. And although claims that pink slime is currently used in McDonald’s nuggets aren’t true, who isn’t disgusted by this stuff, no matter where it might be in the food supply?  I know I would certainly like to see a world that neither “needs” nor even allows pink slime to pose as food.  To me, this goo is emblematic of what happens when we allow unfettered corporate culture to lead society away from the most basic qualities that actually make us human — like eating chicken that is actually chicken.  Of course, the consumer plays a role, too, by demanding more volume for less money; and the U.S. obesity rate is, perhaps, an indicator as to how much emphasis is placed on quantity over quality.

Another thing that makes us human is the desire and ability to create and experience art in its many forms; and I would certainly like to envision a future where technology companies don’t do to art what the slime makers are doing to meat. Setting aside the arguments over economic harm done to the culture industries, we should consider how the work itself is being treated and what this means to our quality of life in general.

Among the reasons I believe companies like Google are so hostile not only to copyright but  to other regulations, is that their revenue and aspirations are anathema to distinguishing value (prime meat) from muck (MSM).  To the contrary, their business models are literally based on grinding up all content into a homogenous slurry in order to turn billions of clicks into billions of dollars.  To companies like Google, torrent sites, and many aggregators, everything goes into the big, digital grinder — a John Irving novel, some bits of junk journalism, a few stupid cat videos, Lawrence of Arabia, several thousand mail-order brides, a hard-news report from Central Africa, trafficked children, an episode of Downton Abbey, counterfeit pharmaceuticals, The White Album, years of scientific research, and of course several jiggling pounds of college chicks shaking their booties at webcams.  It’s all just ones and zeroes, right?  It’s digital pink slime.

This is where I think the schism between technologists and creators becomes ideological and sociological.  The serious artist is offended to have his work ground into mouse fodder, valued identically with the garbage; and the consumer should be offended, too.  The paradigm Google wants to foster is one that asserts that the booty-shakin’ college girl video has the same intrinsic value as the Emmy Award-winning TV show and that the value of either will only be determined by the number of hits each receives in cyberspace. Never mind that the financial value of those hits won’t be shared; this is a philosophical world view through the eyes of a computer. It is a machine’s sensibility, not a human being’s.

I believe our current economic woes are cultural, asserting short-term transactions over long-term production. Wealth consolidation has resulted from allowing many corporate interests to practice in an unregulated environment that grinds real value into virtual value, generating cash for the few and leaving the many empty-handed. And all under the guise of “freedom,” according to many industry leaders.  This is the same culture that produces junk securities backed by faulty mortgages, the same culture that wants to refute climate change, the same culture that ignores child labor making our products overseas, the same culture that makes pink slime, and the same culture that treats art as generic ones and zeroes.  At some point, the consumer has to realize that he’s going to get exactly what he pays for and decide just how much slime he’s willing to swallow.

Is copyright a threat to free speech?

This is a piece I wrote as a guest post for The Copyright Alliance. It got the folks over at TechDirt into a lather, but I suspect that’s because it wasn’t read or read very carefully by most of them.  

Not only have Copyright and Free Speech coexisted peacefully for the entire history of the Republic, but I would go so far as to suggest that Copyright is both literally and figuratively the money where our proverbial mouth is when it comes to the power of the First Amendment.  Think about it:  we are not only free to criticize our government, but if we’re really good at it (like Lewis Black), we’re entitled to make a pile of cash doing it.  How cool does that make America?  I say pretty cool, but there are those who seem to think the enterprise piece of the equation somehow diminishes the freedom part.  Au contraire.

If the U.S. is founded on one idea above all others, it’s that there is a link between free enterprise and freedom itself. Yes, this ideology has its flaws, and we’re still living through the economic woes of certain kinds of enterprise run amok; but let’s not throw out the baby with the bankers just yet. I believe it is no accident that we grant special rights of enterprise to those who exercise free speech in the form of books, music, and the performing and visual arts. After all, the First Amendment guarantees the right of anyone on U.S. soil to speak, but it in no way guarantees that everyone has something to say.

I know this may be hard to believe in the age of Tweetdecks, blogs, and threads; but all speakers are not created equal. Those who speak well enough to do it for a living have benefitted society in precisely the way intended by Article I Section VIII of the Constitution; and while you may quarrel with a particular form of expression, you can’t quarrel with the trillions of dollars in economic activity derived collectively from all works. Still, the mental contortionists of the copyleft claim that copyright, in the magic wonderland we call The Digital Age, now threatens Free Speech. And their position reminds me of another First Amendment stumper:  that same-sex marriage threatens the Freedom of Religion.

As alluded to in one of my recent posts the Kantian principle that your rights end where they infringe on the rights of another is logically implicit, if not explicit, in the broad, human rights established in our laws.  In a nutshell, society functions because most of us agree that your pursuit of happiness does not extend to a right to, say, drive an ATV across my yard and tear up the garden. Strangely, though, we often encounter folks trying to argue this principle in reverse — i.e. that my right to restrict trespassing infringes on your right to drive an ATV wherever you please.  Yeah, this sounds dumb because it is; but the logical construct is applied by religious zealots regarding same-sex marriage and by copy zealots (they actually have a religion now) regarding copyright.

The craftiest of gay-marriage opponents will argue that legalizing these unions infringes on their rights to be Christian in America, which is tantamount to undermining religious freedom.  Yes, anyone with two working brain cells can recognize that this isn’t sound reasoning so much as thinly veiled bigotry. Same-sex marriage can only be a threat to religious freedom if we agree that the zealot’s belief that homosexuality is a sin should implicitly influence our legal definition of marriage. There is no way to cut through this logical Gordian Knot without concluding that all marriage would have to be religious (and ultimately Christian) in order to be legal in the U.S.  And that would violate the definition I believe most of us apply to religious freedom.

Similarly, the copyright-threatens-speech proposal uses the illusion of reverse discrimination to suggest that when the producer exercises his copyright, this somehow infringes on the consumer’s desire to reuse or “share” the work as he sees fit, which amounts to a “chilling effect” on speech. Like the same-sex marriage thing, this argument glosses over personal bias to foster a logical leap to a shaky conclusion.  Copyright only threatens speech if we agree that the consumer’s right to reuse is more important than the producer’s right to treat his work as property. But we haven’t agreed to this for the same reason we don’t agree that you may drive an ATV over my lawn in the pursuit of happiness.  Freedoms have boundaries defined by the harm done to others; and free speech has managed to survive just fine despite the fact that it does not grant permission for plagiarism, perjury, libel, vandalism, disturbing the peace, hate crimes, or, indeed, theft of intellectual property.

It’s not the song, Stupid, it’s the right.

No doubt, the U.S. Pirate Party will be in a caffeinated kerfuffle over yesterday’s upholding by the 1st Circuit Court of Appeals in Boston of the $675,000 fine being levied at Joel Tenenbaum for illegally downloading and sharing 30 songs several years ago.  And no doubt anyone under the age of about 35, who very likely has a lot more than 30 illegally downloaded songs in his possession is thinking, “Dude, this is ridiculous. That’s too big a penalty for just downloading music. If you follow the debates surrounding copyright in the digital age, you will frequently encounter the slogan “Copying Isn’t Theft,” and the argument behind this assertion goes as follows:

If I take your car, then I have your car and you no longer have it.  That’s theft.  But if make a copy of your car so that you have your car and I have the copy, that’s not theft because you still have your car.

Of course, it’s not possible to digitally copy a car, but the copy zealots still assert that the logic holds up when we transfer the discussion to authored works that can be digitally reproduced and distributed.  In short, “I have the song, but I have not taken your song, so I have not stolen anything. And, by extension, the other ten million people who have copies have not stolen anything either.”

As the father of three, I recognize this as classic kid logic, which is invariably based on the unilateral premise that individual desire trumps all competing forces, particularly any matters too complex for the child to comprehend.  When my five-year-old wants something, he will propose what sounds to him like solid reasoning but what is really just a variation on the theme “because I want it.”  Of course, one of the many thankless roles of the parent is to teach children that indeed there are considerations beyond their individual desires — health, safety, fairness, legality, courtesy — that shall be enforced whether the child understands the principle or not. The hope is that, as they grow, they will understand the principle, not merely the rule.

What the children of the digital age need to learn as they are now entering the world of grown-ups is that it’s not the song or the movie or the book they’re stealing, but the rights of the creator.  When a few million college kids copy and share a digital file of a creative work, they believe this is not stealing because 1) they’re focused on the file itself; and 2) they’re focused on what they want.  And it is always the folly of youth to confuse desire with rights while failing to recognize, to paraphrase Kant, that their rights end when they infringe on the rights of another.

Imagine you’re having a blow-out party that’s going well into the wee hours.  You’re not committing any serious crimes, but you are keeping your neighbor awake, who finally gets fed up and calls the police.  When the police arrive and tell you to turn down the volume, you may think The Man is infringing on your right to have a good time, but the reality is that he’s balancing your right with your neighbor’s equally valid right to a night’s sleep in his own home. This may seem like a prudish example, but it really is that simple.

Copying is a violation of an individual’s right that has been part of our constitution for as long as we have had a constitution. The person doing the copying may think his own actions are irrelevant in the scheme of things, but we see many examples where individuals, especially younger people, are willing to take personal responsibility for collective harm.  Shifting attitudes  toward environmentalism is perhaps the most obvious; my children don’t know what it means not to recycle, but this was hardly the norm during my own childhood.

The generation that enjoys media enough to want to copy and share it in such high volume needs to understand that creative work is a resource that can be squandered like any other; and there are legitimate data to prove the harm being done to creative industries by illegal downloading and file sharing.  If those industries fail, they take millions of jobs with them (maybe even a job these same kids would like to have one day) and quite possibly the music, books, and movies will disappear, too. It is time to stop listening to vested interests (namely Google) who tell you it’s not only okay to copy, but that it’s a right and a societal benefit.  This is simply not the case.

I feel a little bit bad for Joel Tenenbaum inasmuch as he did something that he has been told is innocuous.  His legal team has likely convinced him that he’s a poster boy for the cause of free speech, freedom of information, transparency in government, anti-corporate-greed, and probably a few other causes that are in no way related to what he actually did.  The unfortunate reality is that he was a grown-up who made a childish decision; and he now has a grown-up problem on his hands.  I hope when the case is finally closed, that Google will at least pay his fines.  To be clear on this case, Tenenbaum’s real mistake is not the downloading of 30 songs per se.  He was a recidivist downloader, who refuted C&D requests, offers of relatively minor fines, and chose to fight this battle on principle.  I don’t think anyone should be pulled out at random to face potentially staggering penalties.  Tennnebaum’s choice, however, to be the face of a precedent-setting case forces the recording industry to pursue vigorously.  It is on principle where Joel Tennenbaum is wrong.

ADDENDUM:   In fairness, and apropos of a comment I received on this post, I ought not to have suggested Google pay Tenenbaum’s fines but instead suggested that his lawyer, Charles Nesson, do so.  This is not a David and Goliath fight.  Nesson, through Tenenbaum, is gunning for copyright law itself and banking on a Supreme Court appearance and a landmark, law-changing case.  So, while I do blame the likes of Google for fostering a general psychology about file sharing, I think it’s fair to say that Nesson’s hubris is the fuel behind this particular case; and when they lose, I hope Tenenbaum won’t be left alone to pay the bill.