Category: Culture

Tedious Anti-Copyright Stance of EFF is Not About Protecting Anyone

Welp (as the kids say), it looks like Katherine Trendacosta of the Electronic Frontier Foundation (EFF) found an old PowerPoint deck from 2012 and used it to write a new post ominously titled Hollywood’s Insistence on New Draconian Copyright Rules Is Not About Protecting Artists.

Typical of the EFF playbook, Trendacosta devotes an entire post maligning the motion picture industry rather than address the “rule” (the SMART Act), which she does not even mention until the final paragraph. At that point, the reader is meant to take her word for it that the proposed legislation is bad because—believe it or not—there is too much diversity and choice in the streaming market, and because film producers want to make money.

Ms. Trendacosta calls streaming a “hellscape” where consumers cannot find what they want and/or where shows and films are canceled or moved to different platforms. She writes, “It’s disingenuous for Hollywood’s lobbyists to claim that they need harsher copyright laws to protect artists when it’s the studios that are busy disappearing the creations of these artists.”

“Hellscape” is a bit dramatic as critiques go, given that market research indicates that 74% of consumers report being satisfied with streaming and that those numbers are currently trending upward. Of course, the anti-copyright playbook Trendacosta is using tells her to imply that when producers make market decisions to stop producing a given work, or to move a work from one channel to another, this is “disappearing” material that should be available in perpetuity. In fact, she inscrutably cites the “disappearance” of a film which is temporarily being made available in a new 4K cinema format and will return to streaming in a matter of months. Hellish, no?

Perhaps Trendacosta is unaware that we are enjoying a new golden age of filmed entertainment available on—or produced especially for—the private screen market. Streaming models have fostered a diverse range of projects that would never have been made, let alone been sustainable, in the narrower distribution paradigms pre-Netflix. But a reality of all this bounty is that more experimentation and risk-taking means that a higher volume of material will be canceled or redistributed more frequently as audiences respond to what gets made. That’s just the business of making entertainment media, and the EFF always acts as if the business is what makes efforts to mitigate piracy somehow dishonest or sinister.

Here, Trendacosta digs a little deeper into the big box of EFF’s toys and argues that ordinary tensions that arise among studios and talent—including strikes and financial disagreements—are evidence that the parties seeking remedies to piracy “don’t care about artists.” True to form, the folks at EFF pretend to care about artists by erecting a false dichotomy between the creators who work on projects and Hollywood, where “Hollywood” is a generic term to describe a monolith that does not exist.

It’s a very strange argument because the artists to which Trendacosta refers in those strikes, etc., want money, too. In fact, money is often exactly why they have disagreements with certain producers or studios. Yet, Trendacosta elides the fact that piracy hurts everyone in the ecosystem, regardless of their internal disputes and negotiations with one another. That’s why unions like DGA, WGA, and IATSE are members of the Copyright Alliance and work closely with the studios to fight piracy. It is categorically false to suggest that large studios are the only parties with an interest in this issue. As independent filmmakers and other artists have explained repeatedly, it’s the smaller, independent projects that are most vulnerable to the negative effects of piracy.

And let’s be honest. EFF opposes all copyright enforcement measures in the same style as this post—no substance, just uninformed, ad hominem attacks—and it behaves no differently when smaller groups or indie artists seek copyright remedies in Congress.

So, what is the supposedly “harsh” new piracy remedy that EFF is opposing this time?

The Strengthening Measures to Advance Rights Technologies (SMART) Act is a legislative response to the fact that for more than 25 years, Big Tech has refused to fulfil its side of the bargain struck with the adoption of Section 512 of the DMCA. Simply put, Section 512(i) requires online service providers to collaborate with copyright owners to develop standard technical measures (STM) to identify and expeditiously remove infringing content from internet platforms.

But not only did the development of STM never quite happen, the Googles and Facebooks of the world, who came after the OSPs that negotiated the DMCA, benefitted from mass infringement on their platforms because the DMCA shielded them from liability.

SMART seeks to address more than two decades of stonewalling by adding a new Section 514 to the DMCA that would create new remedies to confront Big Tech’s refusal to adopt appropriate and affordable technical measures to reduce online piracy. At the same time, its proposals would protect smaller and less well-resourced service providers by calling for a variety of tailored and practical technical measures to be developed under a multi-stakeholder process overseen by the Librarian of Congress.

This is what the EFF is calling “draconian”—a proposal to restore the intent of the DMCA as it was enacted in 1998. SMART is the first substantive response to Big Tech’s two big lies: 1) We can’t do it; and 2) We shouldn’t do it because it will chill speech. Those arguments have worn paper thin in recent years given the role these same companies have played in fostering the most toxic, Republic-shaking nonsense ever to be “freely spoken.” But credit where it’s due. At least Ms. Trendacosta didn’t say SOPA.

Climate Disaster: A Rough Decade

This month is the tenth anniversary of The Illusion of More. Specifically, I believe the site launched on August 12, but I did not know what, if anything, I wanted to say to mark the occasion other than to thank readers for following and supporting the blog for a decade. And I am very grateful for that. But in light of the editorial focus of this blog and the state of the world, ouch. It’s been a rough ten years.

I asked in the intro to the first podcast in 2012 (an interview with journalist Christopher Dickey) whether digital technology was making things “suck faster,” whether the illusion of more access, engagement, and information would simply make otherwise reasonable people more rapidly and more virulently misinformed. For one contemporary answer to that question, read Francesca Tripodi’s recent article in Wired describing how Google’s changes to its “neutral” search engine can prioritize false information and reinforce a psychological vulnerability she calls the “IKEA effect,” (i.e., taking pride in something one has assembled). Tripodi writes:

Conspiracy theorists and propagandists are drawing on the same strategy, providing a tangible, do-it-yourself quality to the information they provide. Independently conducting a search on a given topic makes audiences feel like they are engaging in an act of self-discovery when they are actually participating in a scavenger-hunt engineered by those spreading the lies.

Or for a lighthearted version of the same principle, Craig Ferguson says in his Netflix special, “Tweet it, retweet it, retweet it again—fuckin’ true.”

As explained and reiterated in many posts on this blog, what began as a response to the lies and flood-the-zone tactics deployed in the anti-SOPA campaign of 2011/12 quickly encompassed a much broader concern about the major internet platforms (Big Tech) as a dangerous force that just might swallow democracy itself. This was not a popular view in 2012. Both official policy and public sentiment were predicated on a blind faith that more speech without restraint (i.e., direct democracy) had to be a good thing. That fallacy was central to rejecting the anti-piracy legislation just over a decade ago, and it persists today in, for instance, the Internet Archive’s rationales for its brand of book piracy.

Big Tech and its network of mostly left-leaning organizations said that harmful speech—from personal harassment to raving conspiracy—would be mitigated and safely marginalized by a fresh, invigorated dialogue enlightened by open access to information. Standing in the way of that utopian vision, they insisted, was “the government” in cahoots with corporate “gatekeepers” like the press, publishers, and Hollywood—all wielding the cudgel of copyright law to control what we are allowed to learn or experience. Meanwhile, the words of the prophets were written on the social media walls.

To suggest that, we seemed to be entering an age when information would be indistinguishable from bullshit, was to earn the title “luddite.” Even now, despite the overwhelming and terrifying events that have occurred in last ten years—all of it based on free access to deep wells of bullshit—the tech-utopians still believe in the illusion of more as surely as climate-change deniers refuse to see the science in the global havoc unfolding daily.

But lest anyone think that conspiratorial delusions are exclusively the opiate of the Trump cult, I would ask readers to remember the climate changes in our politics that were taking place before the Tiki Torch parade began. When the Ed Snowden story broke, and my friends on the left went nuts about those revelations, I wrote a post recommending calm, in which I opined, “While oversight is an essential, and believe it or not still extant, component of the American system, a universal and unwavering distrust in ‘the government’ is tantamount to distrust in one another, and this is the cancer that grows into a malignant threat to civil liberty.”

And here we are, witnessing real threats to the constitutional order of the United States, as the Former Republican Party (FRP) is consumed by a cult of personality, surfing waves of bullshit about the most basic mechanisms of government and law enforcement. On the other side, we share memes lampooning the “law and order” party for shrugging off credible threats to attack the FBI, the Attorney General, and a federal judge, but perhaps we choose to forget that this same conspiratorial rhetoric, comparing the American justice system to the KGB et al., was more universal before the election of 2016.

Like watching glaciers melt and rivers evaporate, it is easy to think that the erosion of trust in core institutions is beyond repair–that it is really just a question of who is doing the distrusting. And to believe that social platforms are not an underlying cause of this harm is as willfully ignorant as believing that easy access to firearms is not the key ingredient in mass shootings.

Social media offers some nice features, but on balance, it has made everything suck faster. It is a hallucinogen that produces twin chimeras named Information and Engagement, who gnaw on Common Sense and Humility until Narcissism and Arrogance prevail. Take for instance, this little collage made from responses to photographer Jeff Sedlik’s copyright lawsuit against tattoo artist Kat Von D:

I draw your attention to both the ignorance and the style in this hatecloud—not because it is rare, but because it is common to the point of predictable. This is how we talk now about almost everything. Those comments were made by ordinary individuals, probably decent people most of the time, but who would be unlikely to admit that they know less than nothing about the law or about Sedlik and his motives. And all that rancor directed at one individual, empowered by the technology designed to “connect people,” is just a response to a little copyright case. So, can we really be surprised that, by means of the same tech exploiting the same psychological frailties, tens of millions of people are easily duped into believing that an election was stolen, or that the U.S. Justice Department is indistinguishable from the Stasi?

In 2012, in that same intro to the first podcast, I quoted Mark Twain who said, “It’s not what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.” A keen observer of human nature, Twain foretold the Big Tech Lie that is still flooding the zone with millions of other lies, which, like too much carbon in the atmosphere, may yet make the world uninhabitable.

Photo by: ole999

Publishers’ Suit Against Internet Archive is Pro-Author, Not Anti-Library

“The raggedy state of my books that some readers and educators hand me to sign is the best compliment of all.” – Sandra Cisneros –

The matter of Hachette et al. v. Internet Archive should be short work for a court in the Second Circuit (or any circuit). The allegations about IA imply an operation that is barely distinguishable from other mass-piracy enterprises. which have sent their owners to jail. The motion for summary judgment (MSJ), filed by the publishers on July 7, is a catalog of statements of undisputed material facts (SUMF), a fraction of which should obliterate IA’s claims that it operates within the most elastic reading of the copyright law.

In a follow-up post, I’ll discuss the legal questions presented and why I believe more firmly now than I did two years ago that IA will lose on every point in this case. But for the moment, I’m calling bullshit on the big theme IA tries to sell in the court of public opinion—namely, its claim to be just another library “doing what libraries do” and that it is, therefore, a target of a voracious publishing industry and a proxy for the interests of all libraries.

Without getting into the weeds, IA’s conduct is highly distinct from ordinary libraries for three key reasons: 1) its founder Brewster Kahle has repeatedly stated his agenda to obviate copyright law and make “every book in the world” available online for free; 2) IA engages in a scanning-to-ebook scheme that circumvents ordinary library licensing under its own theory called Controlled Digital Lending (CDL); and 3) even if CDL were well founded in copyright law, IA does not adhere to its own invented restrictions set forth by the regime.

So the contention that IA functions like any other library is untrue, as the aforementioned catalog of material facts makes clear, and offensive, as author Sandra Cisneros makes clear in her declaration to the court, also filed on July 7. “Real libraries,” she writes, “do not do what Internet Archive does. The libraries that raised me paid for their books, they never stole them.” Simple and to the point. But Cisneros’s testimony in this matter contains multitudes.

Many authors will recognize their own personal battles with both craft and purpose when they read Cisneros divulge, “About three years after The House on Mango Street was published, when I was 33 years old, I found myself unable to pay the rent and considered killing myself because it was so painful to feel like I was of no value to society, even though I knew I was a gifted writer.” That’s more than an economic statement. It is existential in every sense. And countless artists have been there in one way or another.

So, to the snarky bros of tech utopia, the self-righteous wonks at EFF, the privileged dilettantes of anti-copyright academia, Cory Doctorow, and most especially Brewster Kahle, you are all invited, with prejudice, to go fuck yourselves. Because what, one might ask, was Cisneros’s solution to transforming the growing popularity of her work into a measure of financial sustainability for herself? Naturally, it was copyright law.

“…my agent of the last thirty-five years, Susan Bergholz, approached me at this time and helped me to enforce my rights as an author,” writes Cisneros, stating that she initially asserted her rights among some smaller publishers but notably not with Penguin/Random House—a relationship she describes as integral to sustaining her as an author.

This lawsuit is not about a billion-dollar industry seeking to hinder the lawful conduct of a real library. It is about a multimillionaire ideologue hijacking the author’s livelihood for his own commercial gain, and because he believes he knows best how the world should work. We have enough ideologues robbing individuals of their agency these days. Why is a tech baron seeking to rob book authors of their rights any better?

“It was like I had gone to a pawn shop and seen my stolen possessions on sale,” Cisneros tells the court about visiting the IA  platform and seeing her work distributed for free and without license. She also notes that she has personally given away many copies of her books to readers who, like her own childhood family, cannot afford to buy books.

Cisneros’s testimony is compelling because IA’s defenses cannot breathe in law, but only in PR, where cute graphics and grabby headlines falsely portray it as a Robin Hood taking on industry. And lest we forget, her voice is not alone. When this litigation was triggered in 2020 by IA’s so-called National Emergency Library, citing the pandemic as an excuse to distribute 1.4 million unlicensed titles, authors Colson Whitehead, Alexander Chee, and others sharply criticized the move. “The Internet Archive’s ‘emergency’ copyrights grab endangers many already in terrible danger,” Chee tweeted at the time.

More authors should continue to call out IA for its conduct—if not for themselves, then for the next generation of writers. “The ability of copyright law to incentivize the creation of new works will be profoundly undermined if Internet Archive devalues books further by continuing its mission to put bootleg copies of every book it can acquire on the Website,” the publishers’ motion argues.

It is a simple rule of economics that you cannot eliminate fair trade in distribution without destroying the incentive to produce—except perhaps as an eccentric hobby. “Aided by its industrial scanning apparatus and book pipeline, IA can realistically achieve its goal of offering 80% of all books currently residing in libraries within the decade,” the publishers’ motion states. If that ambition were realized, one ironic result could be shuttering real libraries around the country because an operation like IA would render those institutions obsolete.

But the more devastating and certain effect would be to kill many prospective writing careers in their fragile beginnings, a period Cisneros describes as discovering her voice when she found the child narrator for The House on Mango Street. She says, “Best of all, writing in a younger voice allowed me to name that thing without a name—that shame of being poor, of being female, of being not quite good enough, and examine where it had come from and why, so I could exchange shame for celebration.”

That’s the author Brewster and his swarm of elitist amici want to deny both income and the right to make her own choices about her work. As she writes in a latter chapter in Mango Street, “People who live on hills sleep so close to the stars they forget those of us who live too much on Earth.”

Note: Some quotes by Cisneros are transcribed from the introduction to the audiobook version of The House on Mango Street, and my punctuation may not match hers.

NOTE: Originally published that Neil Gaiman criticized the NEL, as reported by NPR. Gaiman later tweeted that the article misrepresented his views.