Category: Digital Culture

The Revolution in the Mirror is Closer than it Appears

The father of modern chemistry Antoine-Laurent Lavoisier was beheaded in 1793 in what is now the Place de la Concorde. A victim of France’s post-revolutionary Reign of Terror, he was specifically marked for execution by one vengeful, lesser scientist named Jean-Paul Marat, whose incorrect theory about combustion had been publicly scorned by Lavoisier at the royal academy.

It’s rare when revolutions do not produce new tyrants, and of course the fact that our own war of independence avoided this fate is a legitimate source of national pride for Americans.  This doesn’t mean we’ve managed to avoid tyranny altogether, only that our despots tend to be CEOs instead of warlords.

In an article for Evonomics, Lawrence Lessig writes, “ … the biggest danger to free markets comes not so much from antimarket advocates (the Communists and worse!) as from strong and successful market players eager to protect themselves from the next round of strong and successful market players.”

Lessig is of course referring to historical precedent in which “old innovation” employs—or even revises—legal mechanisms as a means of protection against “new innovation”.  The familiar narrative is one in which the legacy industry clings to power for as long as it can while new industry inexorably builds the market of tomorrow.  Referring to the protectionists as capitalism’s biggest enemies, Lessig sets the stage as follows:

“…there are only two things we can be certain of when talking of free markets:  first that new innovation will change old; and second that old innovation will try to protect itself against the new.”

In the article, he identifies this protectionism as the kind of crony capitalism in Washington that ought to make allies of “progressives on the Left and free-market advocates on the Right”. And indeed, this type of alliance did manifest in 2012 with the shouting down of the SOPA and PIPA bills, when we saw paradoxical solidarity among members as divergent as the ultra-conservative Heritage Foundation and the anarchic hacktivist group Anonymous. And those bills were certainly labeled “protectionist”, although there were no reasonable grounds for portraying either their intent or their mechanisms in that light.  Still, one cannot deny that one droning note of rhetoric, which continues to muddy the waters, is a broad narrative of Old v New, with New having the advantage of at least appearing to be on the “right side” of history. After all,  history will tell you that New always wins.  That’s why it’s called New.

But the crucial detail Lessig leaves out of his otherwise reasonable premise is that New already won quite some time ago. The yearning revolution he’s talking about is in the rear-view mirror.  The self-proclaimed innovators—the market leaders who are presently writing the future and leading the public debate—already have the lion’s share of wealth at their backs.  Google, Apple, Facebook, UBER, Amazon, et al are not seedling enterprises trying to grow through the concrete and rusted barbed wire of outdated policy; they are the crown jewels of Wall Street and private equity with the capital to do just about anything they want and the PR budgets to tell the market that it’s what we want, too.  Far from banging their heads against a wall of protectionism, New industry is actively and effectively rewriting policy and public opinion; and Lessig is correct that both progressives on the Left and free-market advocates on the Right are cheering them on.  Though I don’t think he’s quite right that they should be.

Neither progressives nor free-market advocates (and I personally consider myself a bit of both) should be bamboozled by the rhetoric of innovation yet to come.  This is not to say that new inventions and new paradigms are not on the horizon—no doubt they are—only to propose that the corporations most likely to be at the forefront of the biggest changes, for better or worse, are already among the most financially and politically powerful entities in the world.  And Lessig is right that the powerful will use protectionist measures to entrench their interests, but the funny thing about our market today—in which a company like UBER goes from start-up to a $60bn market cap in five years—is that Silicon Valley’s leaders and VCs have disrupted protectionism itself and renamed it progress.

Redefining IP as Protectionsim

Not surprisingly, in this broader narrative about protectionism, Lessig invokes criticisms of both patent and copyright law.  With regard to the former, he refers to an increase in patent litigation from 2007 to 2011, with particular focus on the “patent troll”, who might litigate away an otherwise useful innovation.  Although patent trolls are a problem—the worst are sort of the ambulance-chasers of IP law—these actors do not generally represent a protectionist agenda for legacy business.  Ironically enough, though, the Google and Facebook-backed “reform” bill HR-9 is a protectionist proposal inasmuch as its language so broadly defines “patent trolls” that the law could actually harm small, entrepreneurial inventors while entrenching already-big patent owners—like Google and Facebook.

With regard to copyright, Lessig accuses the recording industry of seeking Internet radio rates “designed” to stifle diversity and competition online.  But in describing he innovation being hindered in this case, he first broadly conflates amateurs and enthusiasts with big, corporate players and then blames the RIAA for assuming the online radio market will consolidate.  It’s a bit hard to summarize his point here since he begs some important questions.  You can read the section for yourself, but his larger argument that the recoding industry “wants” a smaller market seems to overlook clear evidence that the networked economy tends to produce monopolies by its own means, and not because of so-called protectionist maneuvers by traditional industries.

Moreover, given that Lessig’s broader thesis is a criticism of money in politics, it seems especially disingenuous to ignore the fact that the VC money behind most of these technology plays is very much betting on market consolidation rather than expansion. In this extensive profile of Marc Andreessen, Tad Friend, writing for The New Yorker, describes the sensibilities of Silicon Valley’s major venture capitalists, who make big bets with the understanding that just one needs to become the “unicorn” while the others can fail entirely.

It is a rationale driven by an instinct for knowing that the 1000x return is somewhere in the mix of proposals that may sound like haphazard lunacy to many of us, but which sound like the future to this niche club of mostly male investors. But the point not to be missed is that this culture produces extraordinarily powerful, competition-resistant companies that go from zero to Forbes cover at historically unprecedented speed. And the political influence they wield scales in tandem, as we see when Google shifts in a matter of a few years from virtually no lobbying to ranking among the top ten in the country.  So, Lessig’s portrayal of private industry leveraging public policy is fair; it’s simply looking in the wrong direction.

Perhaps most importantly, the ideology of the venture capital behind the businesses we tend to aggregate under the generic term innovation is one that has almost no kinship with Lessig’s stated political reform agenda (i.e. getting money out of politics).  Guys like Marc Andreessen and Peter Thiel don’t talk about “fixing” American politics; they talk about rejecting it altogether—taking themselves quite seriously with proposals to establish alternative, technocratic states.

Utopian fantasies like Seasteading may be appealing to any number of libertarians and anarchists out there, but it’s a world view that should not in any way be confused with, for instance, a Bernie Sanders-like proposal to effect reform from within the system. In fact, the two interests are wholly antagonistic since Sanders-style political reform is predicated on forcing American-made wealth to reinvest in America itself—not on billionaires building autonomous societies akin to Ayn Rand’s magic valley in Atlas Shrugged.

Meanwhile, the extent to which Silicon Valley’s brand of libertarian ideology speaks with money in Washington, it is often disguised as anti-protectionist, legislative reform proposals just like HR-9.  Political clout is not exclusively a matter of pay-to-play; it’s also a manifestation of market capitalization that buys even unproven companies a seat at the table simply because they’re too disruptive to ignore. Meanwhile, it’s clear that there is a lot of stable, economic value in “old” industry. And so, this narrative that, for instance, the rights of individuals—be they authors or inventors—are just nuisance barriers to be innovated around, can foster our own economic reign of terror in which lesser innovators are financially incentivized to decapitate greater genius.

Monkey selfie suit is not all monkey business.

A couple weeks ago, I scorned the righteously flamboyant PETA for trying to sue a British photographer named David Slater for copyright infringement on behalf of an Indonesian macaque whom the animal rights group calls “Naruto”.  I mocked this monkey-pre-trial proceeding because, well, it’s pretty mockable; but as Tom Sydnor writing for TechPolicyDaily, points out, it isn’t necessarily a laughing matter.  For starters, Sydnor wonders whence PETA gets the legal standing—never mind the chutzpah—to presume to represent animals in this type of litigation in the first place.  He writes:

“PETA cannot empower any federal judge to decide whether “Naruto” can own US copyrights until it has proved that it has constitutional and prudential standing to sue Slater on behalf of this particular Indonesian monkey. Its lawsuit thus raised the following question: Does PETA’s IRS-bestowed section 501(c)(3) non-profit status grant it the constitutional and prudential standing to sue a foreign, human nature photographer or videographer in the US on behalf of any animal in the world whose acts triggered a camera or camcorder?”

Sydnor raises a concern of validity, suggesting that even allowing PETA to proceed any further with this case—rather than demanding sanctions and payment of Slater’s legal fees to date—the court may entrench the notion that not-for-profit status automatically grants a corporation the standing to sue on behalf any constituency it claims.  Sydnor writes:

Even if the US Copyright Act did authorize federal judges to decide whether monkeys can own US copyrights, some brute realities would remain. Federal court is not a Dr. Seuss book, and PETA is not the Lorax. Absent special circumstances, PETA lacks standing to sue anyone on behalf of the trees, random animals, Brown Barbaloots, “Cecil the Lion,” or an Indonesian monkey that some other primates allegedly named “Naruto.”

Sydnor further makes the point that PETA’s overreach in this case may be compared to certain actions of not-for-profits (e.g. the Electronic Frontier Foundation) when these organizations presume—Lorax-like—to speak for the Internet. And it is true that the semantics and hyperbole can get a little out of hand when these groups claim to represent our “digital rights” as though these are something separate from just plain rights.  While it is certainly the case that wired life poses new challenges vis-a-vis civil rights, these organizations tend to consistently favor laissez-faire conclusions about the all-sacred Web, which isn’t necessarily tackling said challenges.   In the same way that PETA often strays way beyond the question of humane behavior all the way into projecting our social philosophies onto the animal world, these digital activist organizations do have a tendency to describe the Internet as though it’s a delicate biosphere, untouchable by the ugly laws of Man, rather than what it is–a global advertising platform designed and run by huge corporations.

What sticks in my craw about this particular circus, zoo, cat fight, goat rodeo is that PETA’s anthropomorphic excess only aggravates the absurd misconception that copyright functions solely as a barrier or as grounds for litigation.  Because even if one could argue that the copyright in the “monkey selfie” belongs to the monkey himself, how might PETA demonstrate that its human employees know this particular primate’s wishes with regard to his copyright interest in the image?

At its most basic level, copyright is a legal affirmation of the author’s choice with regard to what may be done with a given work; and absent the ability to articulate this choice—either directly or through some agent—the copyright has almost no meaning. So, PETA ’s claim to know the macaque’s wishes regarding “his copyright” only promotes the fallacy that copyright can only be applied in one way.  How do they know the monkey doesn’t want to make the work available without restriction? Or perhaps he only cares about attribution. Or maybe since the photo was made as the result of a joint effort, the monkey feels he shares the copyright with David Slater.

Moreover, it seems that if PETA asserts that the animal kingdom is entitled to intellectual property rights, and if they cannot prove that the macaque they call “Naruto” engaged their services as a legal representative, then the organization is theoretically infringing this macaque’s right of publicity, which could lead to this farce getting even sillier as follows in this excerpted “court document” …

NOTE: This was written before I learned the macaque is a female. (Update 7/15/17)

Macaque v PETA

Creators Are Not Wassailers

In a wonderful book called The Battle for Christmas, author Stephen Nissenbaum relates the evolution of this holiday from its pagan roots to the modern Christmas as it came to be celebrated in the United States. He tells us that in agrarian England most labor would be done by December and that it was often a time of bounty because only so much of the year’s harvest and slaughtered livestock could be stored for winter. Thus, the ancient Roman tradition of the Saturnalia became manifest among the English working classes in the form of drunken revels, often lasting the entire month. Landlords would throw open their doors and provide food and drink to the commoners, and it was custom for these visitors to sing “good tidings” to the master and his family in the form of a wassail song.

Of course, as one might expect, weeks of drunken, orgiastic wassailing could turn rather nasty at times—less an exchange of goodwill than an expectation that landowners will provide generously or face the consequences.  This is why if you listen to the lyrics of a traditional wassail song, there is usually an element of a threat, some variation on the theme of “Bring us the good stuff, or else.”  And the or else could mean violence or vandalism.  As a result, a sense of entitlement ran in both directions with regard to the keeping of Christmas—certainly among the rabble that exercised its right to caterwaul outside a home at any hour of the night expecting to be compensated with “a bowl”; but also among some of the gentry who grew to resent these traditions, blind to the fact that class division was the source of any underlying tension in the first place.  Hence, Dickens’s Ebenezer Scrooge is an expression of these sentiments.

Keeping Christmas in this traditional English sense was certainly not a practice that would be transported by way of the Puritans to the American colonies.  As Nissenbaum explains, Christmas lay somewhat dormant (by our standards) in America until it was effectively rebooted in the early 19th century by key members of New York society. Most notably, Clement Clarke Moore’s 1823 poem A Visit From St. Nicholas provides a cultural transition from the ultimatum inherent in the wassail to a more genteel celebration marked by a visit from a commoner who lets the master know he has “nothing to dread.” Thus, Christmas in America becomes a more peaceful tradition—a hodge-podge of cultural influences as it should be—and a time to bestow gifts upon one’s own children as a revision of the wassailer’s demands.

Wassailing comes to mind, not only because it is that time of year, but also because I recently encountered the criticism, often made by those who reject creators’ rights, that creative people reflect a sense of entitlement in their expectation to make a living from their works.  Usually in the context of a discussion about media piracy—or even the fees paid by legal streaming services etc.—this theme of the entitled artist will be referred to as if the artist were a drunken wassailer outside the door in the middle of the night expecting compensation for his unwelcome noise.  And because creative expression is typically personal to the author, I don’t doubt that there are creators—likely younger ones—who might feel that they deserve adoration, fame, or wealth for their work; but this is not the attitude of most people who take their work seriously, whether artistic or otherwise.  More to the point, however, those who belabor the entitled artist trope in a conversation about business and economics are usually playing a semantic game with the word entitled.

In a broad definition, entitlement is almost always negative in my opinion because it excuses the entitled from any responsibility to earn. To have a sense of entitlement is to believe that by virtue of merely existing, the individual–or even a whole society–has a natural or “God-given” right to certain things.  And although the principle of Natural Rights surely provides a philosophical framework for our own governance, when a sense of entitlement goes too far, the individual or society can forget that even civil liberties and basic needs must be consciously and responsibly earned or maintained by means of some effort. We may feel, for instance, that we are entitled to potable water and breathable air, but if we are remiss in our labor to preserve these things (i.e. we fail to earn them), we will quickly discover that the only thing to which we are truly entitled is our own self-destruction.

In a narrower sense, of course, once some benefit earned—be it compensation, credit, an award, or even potable water or free speech—then the individual, group, or society can certainly be described as entitled to that which it has earned. And with regard to creative work, the onus is unquestionably on the author to earn the appreciation of the market.  If her work does not earn in this sense, she can be expected to fail financially; but if her work does earn market appreciation, then she can be expected to succeed financially.  And of course, in the context we’re discussing, if the author earns market appreciation but does not succeed financially, solely because the mechanism which should compensate her has been expropriated by what we call piracy, then she has most certainly been robbed of something to which she was, in the narrow definition, entitled.

Of course, what the critic of creators’ rights tends to do in these discussions is to accuse creators in general of having a sense of entitlement, which is a character flaw, and then let that accusation stand as though it applies to the narrower definition of entitlement after having earned the acceptance of the market.  So, whenever I encounter the entitled artist theme, it’s hard not to picture the speaker as a member of the landed gentry sneering over his frilly collar at the revelers approaching his manor and muttering to himself Humbug.  Of course, those who invoke the entitled artist trope do seem to believe the consumer is entitled to the fruits of the creator’s labor without any obligation in the exchange.  As stated, this is the very definition of what it really means to have a sense of entitlement.

So, we should have conversations about creative industry—or any industry for that matter—in the digital age; but no serious discussion should tolerate a view of creators as though they are 18th century wassailers bleating at the windows for more cider than they deserve.  Artists are fully aware that the world does not owe them success, but consumers should be equally aware that the world doesn’t owe them art either.

Happy Christmas!