Category: Digital Culture

Out of the Fire and Into the Matrix

Photo source by orlaimagine

One of the first articles I ever published (for a magazine that no longer exists) was about cogeneration.  This is the process whereby the waste heat produced by a power plant is captured and used to heat the same structures to which it supplies electricity.  That was in 1997, just as President Clinton was about to sign the Kyoto Climate Change Protocol to the consternation of most of the GOP. In fact, the Senate refused to ratify the treaty on the usual grounds that emissions restrictions would harm the American economy.  This was also nearly a decade before An Inconvenient Truth helped bring the subject of climate change into mainstream consciousness for many Americans.

Based on what I had learned about the efficiencies of cogenerating power plants and other technological solutions to reduce carbon output, I speculated in that article that emissions caps like those called for in Kyoto, while they serve an important purpose, may be surpassed by industry. As soon as enough companies realized that using less energy saves money and that investments in new energy innovation could be profitable in itself, the private sector should, in theory, do better than the regulatory mandates of a negotiated treaty. And to an extent, this is what happened.

Many American corporations have realized the benefits of low-carbon-emission investments, and they’re not going to reverse course just because the current president doesn’t believe in science.  Reporting on this very topic has been among the silver-lining responses to Trump’s announcement that the U.S. would naively pull out of the Paris Agreement; but even if the domestic private sector continues to develop energy alternatives in spite of federal policy, one major problem with not having government as a partner in innovation is that the people then have little say about where technology leads or how it’s used.  In the energy sector, this may not be a major concern, but when it comes to the effects of our data-driven society overall, that’s another story.

Among the fears that keep me up at night—and there are many of late—is that the current administration will create such a gaping policy vacuum, leaving so many Americans wanting, that we will then react by turning to the technologists to save us.  And many of these folks are indeed brilliant in their own ways, but they don’t necessarily get democracy either. Perhaps the murmurings about Mark Zuckerberg running for president are just murmurings.  Perhaps the exaggerated proposal in 2014 to anoint Eric Schmidt as “CEO of America” was meant as a provocative joke. But I find it more than plausible to imagine how we might slingshot around the gravity of this black hole administration to accelerate an already-latent desire to breed a technocracy.

After all, as much as I bash Silicon Valley for various reasons (especially how the internet giants have treated creative workers), there are certainly investors and geniuses out there solving tangible problems whether the nation’s political leaders think they should or not.  They’re investing in renewable energy solutions and medical research and advancing real innovations beyond the side-show marketing platforms we generically call the internet. It is hard to ignore the Ayn Rand-like contrast between the valley of brilliant minds and the regressive whimsy of Covfefe, which I propose become the official name for the Trump doctrine.

The problem, as we know from the world of science fiction, occurs when the wizards, in the spirit of Rand, assume that we cannot live without them. And then they turn out to be right! When oligarchs own the machine of the world and we destroy the intermediary force of representative government, we get feudalism, albeit in technological form this time.

One of the biggest challenges we currently face is how we are going to address the progress of automation and the probability of a workless future for perhaps as much as 40% of the population within a decade or two.  And while we are understandably distracted, either by supporting or denouncing efforts to rekindle “the greatness” of the United States of 1955, the AI challenges—economic, social, and moral—are “not even on our radar screen,” says Treasury Secretary Mnuchin, as reported in this article by Jamie Bartlett for The Guardian.

Theorizing that the current dominance by right-wing populism through data-manipulation  (i.e. propaganda) is merely the story of the moment, Bartlett writes, “Digital technology has helped the populist right for now, but it will soon swallow them up, along with many other political movements unable or unwilling to see how the world is changing.”  What he’s referring to is crypto-anarchy, an ideology based on the premise that networked technology will obviate the need for governments or states; and this view is only slightly divergent from the brand of libertarianism espoused by many of Silicon Valley’s leading executives.  This theme can also be heard in the political views of more than few progressives who seem to feel that government itself is an obsolete construct. Bartlett writes …

“It’s not a direct path, but digital technology tends to empower the individual at the expense of the state. Police forces complain they can’t keep up with new forms of online crime, partly because of the spread of freely available encryption tools. Information of all types – secrets, copyright, creative content, illegal images – is becoming increasingly difficult to contain and control. The rash of ransomware is certainly going to get worse, exposing the fragility of our always connected systems. (It’s easily available to buy on the dark net, a network of hidden websites that are difficult to censor and accessed with an anonymous web browser.) Who knows where this might end.”

That may sound like good news to the anarchic idealist, but there is not a single lesson in history where we find the collapse of government resulting in good times for most people.  In fact, the benign anarchists would probably be among the first slaughtered in a world of marauding survivalists reacting to the breakdown of basic systems. Perhaps it wouldn’t go that way, but the proposal that technology alone can sustain billions of people, leaving us all at our leisure to write poetry and share selfies, seems to overlook one or two qualities of human nature and the post-Enlightenment rationale for constructing democratic states.

To me, a crypto-anarchist is a guy who insists on paying for a RedBull with Bitcoin because he has no idea how the RedBull got to the vendor in the first place. No question technology is a major part of that supply chain, but we forget the human element at our peril. As Barlett notes in that article, the efficiencies gained by “Uberizing” multiple sectors of the economy come at the cost of labor rights due to the lack of accountability for the virtual “employer.”  And when it comes down to brass tacks, civil rights are profoundly intertwined with labor rights.

One of the dangers of the presently divisive climate, driven by so much false information, is that Americans in particular will forget how fragile the Republic actually is.  It’s just words on paper that we try to live up to, and that effort has produced some incredible results—particularly in the arts and sciences.  The inherent brittleness of the American contract has historically been mitigated by the sustainability and economic security of a large middle-class.   So, if enough things break and our “nation turns its lonely eyes” to Google, what follows is hard to say, but I don’t think it will be democracy.

EFF Petition Language Used in Fake Emails to the FCC

Photo by Elnur

It’s depressing how often one reads news that makes the United States seem as though we’re reliving the 19th century rather than an enlightened 21st.  With that comment, you might think I’m referring to the current administration (and I certainly could be), but at the moment, I refer to Americans across the political spectrum who seem willing to return to the political tactics of Tammany Hall, albeit in digital form.

On May 31, the National Legal and Policy Center, a D.C. watchdog group, reported that an “initial forensic analysis” of the 2.5 million comments submitted to the FCC on Net Neutrality found that over 465,000 of these were fake. It further states that over 100,000 of these comments used language from the Electronic Frontier Foundation’s “Dear FCC” petitioning tool in support of “Net Neutrality.”  Although the NLPC did not accuse the EFF of processing these false emails, the organization was quick to defend itself as though it had been so accused.  It’s June 1 response states …

“NLPC’s report is false. Not one name, email address, or email domain cited in the report matches to any of the comments that came through EFF’s comment tool.”

Then, missing the point and seizing the moment, the statement proposes …

“Throughout the FCC’s comment process, we’ve seen malicious actors attempt to discredit the process by generating obviously fake comments. Their hope is that they can drown out the voices of the overwhelming majority of Americans who support net neutrality.” 

I am in no way qualified to assert that the EFF had any direct hand in the fake emails, but somebody spammed the FCC; and I have no problem saying that the EFF’s rebuttal is preposterous.  If there is a manipulator trying to sway public opinion “away from Net Neutrality,” it would be easier and more effective to SPAM the FCC with comments in support of that agenda than it would be to plant false data with the hope that its discovery will make the EFF look bad as a tangential way to tip the scale on the neutrality debate.  That’s a convoluted process expecting a lot of the public that, frankly, has bigger fish to fry these days.

It is far more likely that the false emails in this case have been generated by a manipulator who is on the same side as the EFF on the neutrality issue, and the EFF’s failure to denounce the practice is both telling and typical of our times.  In short, it seems that people across the political spectrum have forgotten that American democracy demands that the means are more important than the ends—a discipline that requires vigilance and which may be in regression thanks largely to social media.

Even people who are thoughtful about big issues will naturally respond to memes and headlines with short claims like “X million Americans support Net Neutrality.”  We accept these statements as fact and help to spread them, lending them the credibility of our endorsement. That’s politics via Facebook and Twitter, and whichever side can claim the larger number stands a decent chance of winning the debate regardless of merit.  During the SOPA/PIPA dustup, the EFF and similar organizations crowed loud and long about the apparent overwhelming groundswell of support to defeat those bills. But nobody stopped to wonder how many ineligible voices—kids, trolls, foreign citizens, bots—were represented in those numbers.

Now that there is a full-scale congressional investigation into Russian meddling in the U.S. election and we’re doing a lot of soul-searching into the nature of populism, people are beginning to at least consider the insidious role data manipulation can play via this internet thing that groups like the EFF like to call “the greatest tool for democracy ever invented.”  In this regard, I encourage readers to follow the ongoing investigation by British journalist Carole Cadwaldr into the role of data manipulation in national elections.

The EFF defends the internet writ large as the essential tool for speech and democratic principles, declares that FCC Chairman Pai’s agenda threatens all of that, but then downplays the significance that at least 20% of the emails associated with this very campaign appear to be fake. We’ve seen this brand of politics before from similar groups.

As reported in April of 2016, Fight for the Future’s brag about the 100,000 citizens who responded to the USCO’s request for comments about the DMCA appeared to be at least partly fake based on an experiment conducted by David Lowery and his colleagues. In fact, it appears that the Canadian company Tucows, which is implicated in that same FFTF campaign was also employed in John Oliver’s so-called grassroots campaign “Go FCC Yourself,” which processed such thoughtful comments as “Fuck you Ajit Pai for what you’re are trying to do and I hope you die a horrible painful death with no remembrance to your name …” (I do love how the internet fosters the big ideas.)

I have already proposed in a few recent posts that Net Neutrality is so complex an issue that I doubt many actual citizens who sign these petitions understand what they’re signing anyway.  Add to this a substantial number of fake signatories and geniuses like the one cited above, and I’m at a loss to discern how this politics of cybernetic ballot stuffing is any better than the Breitbart network of gobbledygook posing as news.  I’ll keep an open mind about the FCC and neutrality and watch what happens;  but so far, the only player in this whole story who has actually given me reason to think about the issue, rather than a lame talking point, is Ajit Pai.

Does Google Claim Some Invalid Copyrights?

Photo by Harrisr

I assume it’s well understood by now that the biggest, corporate antagonist to intellectual property rights is Google. The company has backed an impressive array of academia, press, lobbying, and activism, all generally evangelizing the message worldwide that IP is fundamentally anachronistic in the digital age.  In response to this juggernaut, many a pro-IP advocate likes to underscore the hypocrisy that, despite all their PR on this issue, Google is no less a vigilant steward of its own intellectual property.  A favorite refrain, for instance, is the observation that the company isn’t about to “share” its proprietary, patented search algorithm even while its spokespeople continue to promote “openness” and other crunchy values.

I don’t personally begrudge Google protecting its intellectual property; I think they should.  But it’s hard not to get a bit heated when the assorted pundits, who either directly or indirectly help promote Google’s interests, take so much pleasure in displaying anecdotal evidence of alleged copyright abuse and overreach as though this problem is so rampant that we’re all just one litigation away from losing our right to use the internet.  But what if Google itself is making some dubious claims of copyright in some of its most widely-used works?

The next time you’re using Google Maps, Street View, or Google Earth, take a look in the lower right hand corner.  You will see a declaration of copyright, either for Google, for one of its partners, or both.  While these parties may absolutely claim copyright in the software, it’s not entirely clear that they can claim a copyright—at least in the US and Europe—in much of the imagery produced by these applications.  This is because the photo and satellite images appear to lack the modicum of “originality” required for protection.  In fairness, it must be noted that Google’s terms of use for these apps are quite liberal, mostly mandating attribution.

Maps & Charts

Maps and charts were two of three types of works (books being the other) protected by the first copyright act of 1790.  Near as I can tell, this is indicative of two things:  1) that American copyright doctrine had yet to evolve; and 2) that maps and charts were badly needed and very hard to make in the 18th century.   This utilitarian/incentive predicate to get cartographers and surveyors out into the water-moccasin-and-mosquito-filled wilderness does, with the hindsight of history, create a bit of a dichotomy with respect to the way copyright doctrine evolved by the end of America’s first century. In other words, until technology really began to shape the contours of the law.

For roughly the first half of the 19th century, it took a few cases for the courts to begin to draw lines separating copyright from its twin, patent law; and over time, jurisprudence on copyright increasingly coalesced around the principle of “originality of expression” rather than “sweat of the brow” to qualify for protection. Put simply, a work may take substantial labor and/or capital investment, but if it lacks at least some measure of human, creative expression, then it doesn’t generally qualify for copyright.  This principle was most recently solidified in the 1991 case Feist Publications v. Rural Telephone, which held that the compilation of a phone book, though laborious, did not meet the minimum standard of “originality” to be eligible for a copyright.

The question of how much creativity is required met its first major challenge when copyright confronted photography in the case of Sarony v. Burrow-Giles (1884) involving a portrait of Oscar Wilde taken by New York photographer Napoleon Sarony in 1882. In a time when the prevailing sentiment considered photos to be merely a mechanical means to record facts, the Supreme Court ultimately had to consider what made Sarony’s image the expressive work of its author.

In that case, the Court held that Sarony’s choices of background, arrangement, pose, etc. to achieve a look that was purposely designed (i.e. not capturing a fleeting moment of independent reality) was sufficiently “creative” to sustain copyright in at least some photographs. The issue of copyright in photographs that do capture fleeting moments of reality (e.g. street photography or photojournalism) recognizes choices like position, focal length, timing, and framing as representing the minimum amount of human creativity required.

Fast-forward to the present, and cameras are everywhere, from satellites miles above the Earth to cellphones in the hands billions of people on the Earth, to specially-designed Google cars roaming the streets and taking 360˚ views of nearly every traversable corner of every town, city, and hamlet.  The app is impressive and extremely useful. I’m sure many of us have planned trips to places we’ve never been by using Street View.  But are the images copyrightable?  Probably not. At least not in the United States or any country where copyright doctrine evolved on the principle of “originality” to make a work eligible.

Loyola Law School Professor Justin Hughes, whose paper The Photographer’s Copyright I’ve cited before, discusses the legal distinctions that many of us intuitively assume—namely that functional imagery like surveillance and security photos, police crime-scene pictures, and satellite imaging are inherently different from the kind of works captured by photojournalists, art photographers, and even many amateur photographers with an eye for distinctive compositions.  Hughes opines, for instance, that most of the photographs museums take of their public-domain paintings to sell as postcards and posters are not legitimately protected by copyright because they are precise representations (copies) of the original that do not contain—indeed are not meant to contain—any original expression of the photographer. Hughes writes …

“With all these photographs — photographs of museum paintings, images captured at ATMs and by immigration officials stamping your passport, Google Maps Street View, aerial reconnaissance photographs—there is no originality to give rise to copyright. These images may have copyright in the few countries that still base copyright protection on ‘sweat of the brow,’ but not in the United States or most countries in the European Union.”

With regard to Google Maps, Hughes suggests that when we use the tool in map view, Google at least has some statutory/historical claim to protection of maps, and there is precedent for human choices—colors, line thickness, shading, etc.—in the rendering of maps to qualify for copyright.  But when we use the application in Satellite view with all the markings turned off, Hughes is somewhat doubtful about the claim of copyright made by Google and partner TerraMetrics.

In his analysis, he describes the amount of human and computational labor required to composite various photo assets and data in order to present the satellite images we see in the app, but the question of copyrightability would turn on the extent to which any of that labor constitutes original, human expression rather than “garden-variety choices” made for the purpose of rendering the best possible representation of a factual image. Or as Hughes puts it, “what a perfect satellite would see on a perfect day with absolute fidelity.”

At the same time, Arizona State University Professor Dennis S. Karjala, in his 1995 paper Copyright in Electronic Maps suggests that the rejection of the “sweat of the brow” theory after Feist could, as he puts it, “deny copyright protection to a variety of works whose optimal production, as a matter of social policy, may require some form of intellectual property right as an incentive.”  In other words, perhaps Google’s claim of copyright in some, or all, of these apps rests on the more utilitarian rationale we can assume was present in 1790 when maps and charts were first given protection.

Of course, the chance that anyone will challenge Google on any of these copyright claims seems about as as likely as a camel passing through the eye of a needle, but that’s about corporate power, not tested theory of copyright law.  Suffice to say, that considering what a daunting adversary to the copyright interests of millions of creators Google remains, it’s at least interesting to consider that its own copyright claims in this case might prove very weak if they were in a legal dispute with an entity that treated their IP exactly as they have treated the IP of others.