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.

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.

ADDENDUM:   In fairness, and apropos of my friend Doug’s comment below, 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.

If you hate Citizens United, think twice about that anti-SOPA campaign

In late January, Justice Scalia drew the ire of Democrats and civil libertarians when he said the following about the flood of soft-money, political ads flowing from the 2010 decision in Citizens United v FEC:  “I don’t care who is doing the speech — the more the merrier.  People are not stupid.  If they don’t like it, they’ll shut it off.”  I wish I could agree with the justice that people are not stupid, but I do agree that it isn’t the Constitution’s job to make us smart.

I’m the kind of pedant who read the transcripts of this case shortly after the ruling was made; and I haven’t been able to get the recent notion out of my head that there’s a connection between reaction to that decision and the anti-SOPA/PIPA campaign. I’ll do my best to explain.

Citizens United intrigues me because it raises a paradox in that everyone who fears the influence of the ruling likely believes it is someone else who is susceptible to the wiles of PAC spending. Presumably, we each think we’re well-informed enough to see through the charade and that it is only other folks who will be manipulated by corporate interests. Of course, those other folks probably think the same thing, hence the paradox.  If we were all truly well-informed, Scalia would be right, and the landmark ruling should be a pyrrhic victory for the manipulators.  They could spend themselves into oblivion and not move the agenda in the slightest.

To the contrary, we know that PAC and SuperPAC spending has tremendous influence, so at least some of us are indeed unable to see the puppet strings in the process, which raises this question:  If reliable data is the weapon against corporate influence, what if that “reliable data” is being disseminated by manipulating corporations in the first place?  And that, my friends, is what the Internet enables in mass quantity, which brings me to the anti-SOPA campaign.

Both Citizens United and the anti-piracy battle raise First Amendment issues, albeit from very different perspectives.  Scalia argued that a ruling in favor of the FEC in this case would have a chilling effect on free speech; and web industry lawyers argued the very same thing about certain sections of SOPA.  While it would take a very long article to compare and contrast the First Amendment particulars of these two topics, an underlying principle that both appear to share is that the best way to protect free speech is to have more speech.  If we look at the state of news and information in the digital age, I am personally dubious that more has made the information better.  As such, I find myself wondering, does more makes us freer, or does more actually mean more opportunity for more manipulators not only to tell us what to think, but to make us believe we thought of it ourselves?

The protest of January 18th has been hailed as a landmark event in direct democracy, but I personally believe it was exactly the opposite. If 10+ million people read either bill plus analyses from each side before making their decisions, I’ll eat my hat and a cardigan for dessert.  On the other hand, as I indicated in my last article in The Hill, if people were rallied by a manipulating industry to stop legislation in it’s tracks, then that is merely an illusion of democracy more insidious than all the lobbying and advertising in the world.  Specifically, it is a manifestation of the very thing we fear about Citizens United.

Behind the cacophony of aggregate and mutant hype that led up to blackout day was a rhythm section pumping out a steady beat of blogs, emails, legal opinions, and claims that came from organizations like the The Electronic Frontier Foundation, The Sunlight Foundation, Change Congress, Free Press, and several others.  All of these organizations are 501(c)(3)PACs that receive substantial support from tech and web companies like Google.  That in itself is not a smoking gun.  In fact, some of these organizations do some important, grass-roots work on civil liberties issues predicated on ideas that just so happen to dovetail with the business objectives of their backers.  That is why PACs are effective — they often stand for principles we hold dear.

The point is that this protest so many believe was about the people taking charge was, in fact, more industry-backed and coordinated than its joiners probably realized. And my fear is that we just taught the next manipulating industry how cheaply and easily they could blast some other piece of legislation. Hence, before we shout too loud against the influence of Citizens United, we should learn to recognize a river of soft-money when we’re swimming in it.

Citizen Journalism – The burden is on the reader.

Yesterday, I was listening to a discussion with Tom Brokaw broadcast on NPR from The Commonwealth Club.  Asked his opinion of news and information in the digital age, the veteran journalist said that he believes the variety of available content is generally a benefit to the world but that the consumer must “apply filters” to the information being delivered.  In other words, the onus is now on us to do the fact-checking we used to rely on relatively few news sources to do on our behalf; and Brokaw suggests the basic questions:  “What is the source? Who are the players?  What is the vested interest?”

We liberals are pretty clear about the manipulative puppet show that calls itself FOX News, but we are simultaneously less critical of information sources that at least appear to share our ideological views.  In general, even if the source is the New York Times or Forbes, we should pay attention to the reality that the non-stop, digital news frenzy results in a lot of self-made journalists sourcing one another.  On Salon.com, for example, Glenn Greenwald will use a word like documented that links to another article that itself provides no hard evidence for its position.  This phenomenon is literally viral, and I believe the educated, progressive class needs to be more critical of every story before feeding the disease, no matter what logo appears in the header.

Recently, a  well-educated, liberal friend of mine posted this piece from Reader Supported News, and it may well be one of the worst examples of insidious, hack journalism I’ve seen yet.  If all you read is the article, you will assume that Senator Franken voted against the National Defense Authorization Act, which is not true and can actually be documented.  The article, dated 12/17, is largely copied and pasted from a floor statement made by Franken prior to the vote (dated on the senator’s site 11/29); but Franken ultimately voted Yea for NDAA on 12/1, when the bill passed 93-7.

In addition to literally taking the senator’s words and post-dating them in order to obfuscate, somebody (we’ll never know who) wrote an introduction to the piece that begins “Yesterday, the Senate passed a bill…” thus creating the illusion that whatever date the news aggregator puts on this nonsense is, in fact, the day after a vote that is now almost a month old.

This same article, whatever its source, appears verbatim on Huffington Post and several other sites with less brand recognition.  Huff Post shows over 6,000 “Likes,” and nearly 3,000 shares — all by well-meaning, likely-liberal citizens who have literally been lied to about this story and simply assumed that it was true.

Citizen journalism can be a powerful tool, but only if those of us still clinging to rational thought in this crazy world are willing to double check before sharing.