Category: Politics

Copyright Principles & Consensus?

Yesterday, the House Judiciary Committee held a hearing meant to lay some of the groundwork for overhauling copyright law in the United States.  The title of the hearing is “A Case Study in Consensus Building: The Copyright Principles Project,” suggesting that the “project” is about establishing premises and ground rules for how the debate might be framed going forward.  I suppose because the word consensus is also part of the title, several lawmakers and the witnesses called to testify repeated the rhetorical question as to why debate about copyright has become so contentious.  For authors and creators who actually use copyrights to forge professional careers and build businesses, this feint at decorum will elicit a justifiable sneer because it’s kinda like saying, “All someone did was spit in your eye, and I don’t know why we can’t now have a civil discussion about the principles of expectoration.”  Of course, there weren’t any authors or creators present at this hearing, and that in itself has been cause for concern.

For the lawmakers who asked the question in earnest as to why the debate on this issue can be so vituperative, they need only have paid close attention to one subtle but significant choice of words in the testimony of Professor Pamela Samuelson when she was asked about the matter of online piracy.  Samuelson, the lead author of The Copyright Principles Project, stated that individual artists are at “some disadvantage” in protecting their rights on the internet.  Some disadvantage?  Like a lone Boy Scout would be at some disadvantage fending off a mechanized armored division.  The thing about consensus is that you can’t ask for it if you’re going to propose a foundation of “principles” predicated on lies and half truths.  The correct answer to the question asked of Professor Samuels is “Individual artists don’t stand a chance of protecting their rights on the internet; they might as well shout their grievances into the next passing hurricane for all the remedies and resources at their disposal.”  Had the good professor said something remotely descriptive of the true nature of this problem, then perhaps we can have a big ol’ debate as to whether or not anybody cares, as I suspect many lawmakers and fellow citizens do.  Keep in mind that the scale of the problem as I describe is not even disputed by some of copyright’s most vocal antagonists and piracy’s most vocal supporters.  “You can’t stop it, don’t try” was a familiar mantra during the dustup over SOPA, and with just one BitTorrent site claiming three billion page views a month, they may be right. But let’s not equivocate as to what creators are up against as we presume to “build consensus.”

This past March, The Wall Street Journal published a profile of the anti-piracy unit within NBCUniversal, and even this group of dedicated professionals funded by a major corporation can hardly keep up with the rate or volume of unlicensed distribution of their properties.  By contrast, independent filmmaker Ellen Seidler has documented in great detail exactly what the experience is like trying to protect just one small, niche film from being hijacked and monetized by criminals and Google.  Lawmakers should be aware of the facts and aware of the obfuscation, however subtle, being employed by academics like Professor Samuelson.  At the same time, the general public should be aware that not every idea that comes out of an academic’s head makes it automatically a good idea no matter how prestigious their company.  In academia, one doesn’t make a name for oneself by defending the status quo, but rather by bucking a system, even going so far as to identify “problems” within a system that may not be problems at all. Academic study is critical to a progressive enriched society, but we should never underestimate the motivating factors of ego and self-promotion and grant acquisition when reading between the lines.

On the subject of what is supposedly wrong with copyright, the other theme of the day in addition to why we can’t just all get along, was a substantial amount of griping and joking about complexity.  Copyright law is too complex, say the witnesses and a few legislators, and I have no doubt that it is complex and maybe too complex in certain areas that require streamlining.  But as a general rule, is copyright law more complexly burdensome than any number of other laws?  Isn’t that why people study the law in challenging post-graduate schools and then have to pass a really hard test before they’re allowed to practice the discipline professionally?  More to the point, though, if technology has made the world of consuming content more complex, is it disingenuous to suggest that revising copyright to balance the rights of authors and consumers in the digital age would not produce an even more complex set of statutes?  And if more complexity is required, so be it; but that’s not what’s being proposed.  What’s being proposed, at least by Samuelson & Co., is to simplify the legal system, which sounds good in theory; but it seems to me that the only way to “simplify” a law in an ever more complex world is to eliminate key functions of that law.  And since copyright’s key functions are the protection of authors and inventors, this begins to echo David Lowery’s distillation of the internet industry agenda:  “All your data are belong to us.”  No question that’s very simple.

So, again, the premise issuing from the chamber and reverberating on Twitter is predicated on smart sounding academic theory (i.e. simplifying a law) entirely untethered to a real or pragmatic world view.  The premise being proposed is that copyright ought to be easier to understand for any layman because it is now “everyone’s issue” because in the digital age, “we are all authors.”  This was the oft-repeated theme of live tweets by Gigi Sohn, President and co-founder of Public Knowledge and echoed at least once by Mike Masnick of Techdirt.  Of course, the truth is that just because the internet fosters a lot of production of stuff, that doesn’t make us all authors anymore than corporate softball teams make us all ballplayers.  On my best day, I don’t write as well as many authors I admire deeply; and on my worst day, I’m better than many a citizen whose claim to authorship is the possession of a smart phone and a pair of thumbs. So one can sit in tech-industry funded ivory towers and ruminate over the proposition that a novel by Steven Millhauser is of equal value to the random bits of personal detritus shared on social media, but if we consider for a moment that copyright ought to be amended based on this childishly whimsical proposition, then we might as well start burning the libraries this afternoon.

Speaking of Mr. Masnick, he live tweeted that his blood pressure was being elevated by the hearing because, as usual, “Congress doesn’t get the internet.” This is a familiar cheap shot available to anybody with an axe to grind.  One can start the sentence “Congress doesn’t get _______” and find any citizen or group to fill in that blank with their personal gripe du jour.  Of course it was very clear that certain lawmakers, including Hon. Collins, Hon. Chu, and Hon. Goodlatte, that Congress is not at all willing to automatically swallow unsubstantiated, academic theory as the sole basis for rewriting a legal system that has made the United States a leader in the professional production of creative and cultural works for more than two centuries. And had there been any creators asked to testify, they would have clearly demonstrated that academics like Professor Samuelson don’t know the first thing about the production of creative works or the nature of protecting them.  Somehow, all this translates into the failure of congress to understand the internet, but maybe it’s not that so much as some of the ideas being presented are kinda dumb and transparently self-serving.

On that last point, as more hearings like this one are convened in what will surely be a years-long process toward some kind of reform, we should not forget who the monied interests are that have the most to gain from weaker copyright laws.  The premise most often asserted in the name of “consensus” is that we cannot allow supposedly outdated legal systems to stand in the way of innovations that benefit society.  Again, this is a perfectly reasonable sounding position, but there should not be a lawmaker of any party who does not include economic growth in his or her definition of innovation, and this recent article in The Daily Beast should serve as a caution in light of the fact that intellectual property supported jobs still number in the tens of millions.  As the article’s author Joel Kotkin points out, “Today’s tech moguls don’t employ many Americans, they don’t pay very much in taxes or tend to share much of their wealth, and they live in a separate world that few of us could ever hope to enter. But while spending millions bending the political process to pad their bottom lines, they’ve remained far more popular than past plutocrats, with 72 percent of Americans expressing positive feelings for the industry, compared to 30 percent for banking and 20 percent for oil and gas.”

Copyright may be a little hard to understand, and some members of congress might not “get” the internet, but it doesn’t take a law degree or expertise in code writing to know what a contemporary Robber Baron looks like, does it?

Tools & Hands

We hear a lot about community and free expression when it comes to the Web.  From tech bloggers to legal scholars, the boosters spare little praise for the social benefits of technologically connected groups.  Some cyber gurus even go so far as to predict that these new communities are already spawning a new, populist dialogue that will ultimately change the nature of state governance itself.

In the wake of Friday’s heartbreaking events, we know of course that the blogosphere amped up on the subjects of gun control and mental health.  And while we tragically have to admit that there may be no policy safety net we might erect that would have stopped this particularly horrendous mass murder, I am hopeful that some of the shared opinions, stories, ideas, and even outrage might cause some measure of reflection on how we relate to the tools we create. Sometimes, social media really does foster a village, and we do extraordinary things like get help to hurricane victims or share thoughts with friends half way around the world and truly connect in ways I believe are unprecedented, profound, and positive.  But sometimes a technologically linked crowd is just one catalyst away from turning into a knuckle-dragging mob, and we need to pay attention to that, too.

When the Newtown story broke, I happened to be writing about Anita Sarkeesian, who appears in this video to talk about her experience with the wisdom of one crowd that didn’t like her form of free expression and sought to silence it in an ugly way.  Described on her blog as a feminist media critic, Sarkeesian launched a Kickstarter campaign last May to raise funds for a video project called Tropes vs. Women in Video Games, which examines the portrayal of female characters in these games and the social significance of those depictions. Sarkeesian is a gamer herself who works with, not against, the gaming industry; but that didn’t stop at least some of the online gamer community from launching a cyber attack on her that included death threats, rape threats, death with rape threats, invasions of her privacy through hacking, and a torrent of images depicting her likeness being violated and/or mauled in ways that suggest an investment of time, imagination, and loose coordination within the mob.

The average gamer in the U.S. is a male age 30, so this alliance of village idiots was not just a handful of dopey teenagers. And well beyond the gaming community per se, we’ve seen this kind of testosterone-rich, misogynistic cyber-bullying among high school kids, in certain memes, and even on the fringes of political debate.  During the overheated battle on SOPA, media executives were harassed at home, and a staffer for Representative Lamar Smith received similar sex-offending manipulations from netizens who clearly don’t know the difference between free expression and assault.  Happily for Sarkeesian, and for society’s better angels, revulsion to the attacks on her resulted in an outpouring of support, and she wound up raising seven times her original goal on Kickstarter. This enabled her to broaden the scope of her work, and several video game studios have also invited her to speak with them.

The clowns who attacked Sarkeesian are very likely a minority of gamers, probably even fairly decent people in real life, so is there something about the technology or the environment that brings out these depravities?  Odds are, you’ve been in chats where it’s hard to maintain or moderate a civil tone, even among friends.  Why do these interactions turn normal people into sanctimonious, vitriolic, trolls?  In his book You Are Not a Gadget, technology expert Jaron Lanier argues that the design of Web 2.0 is fundamentally dehumanizing, and here’s what he says about social media discourse:  “If you look at online chat about anything, from guitars to poodles to aerobics, you’ll see a consistent pattern:  jihadi chat looks just like poodle chat. A pack emerges, and either you are with it or against it.  If you join the pack, then you join the collective ritual hatred.”

I do believe tools sometimes have a way of becoming the masters of their makers, that certain tools are not exclusively neutral objects occasionally weilded by sinister or unbalanced people. Some tools change some people.  Isn’t this what the cyber gurus keep promising about the unchecked expansion of the digital age, a whole new kind of human being?  New maybe, but how human remains to be seen.  By relating to our toys and devices (and yes, even our guns) as extensions of ourselves, I think we all get a touch of a dissociative disorder that undermines empathy and, therefore, functional humanity.

In the same way some 2nd Amendment zealots imbue their weapons with a false notion of freedom from an imagined tyranny — therefore, turning a right into paranoia — I suspect the technology addicts who attacked Anita Sarkeesian imagined themselves as an odd band of freedom fighters.  They were using Photoshop and social media as weapons to defend their “way of life.”   And, of course, the hypocrisy is all too obvious — that the sexual nature of the attacks justifies precisely the questions Sarkeesian hopes to answer.

It seems we have a tendency to either want to blame or absolve certain of our creations for the harm that can be done with them. In the face of abhorrent, human behavior, we want simple answers to complex questions; but the truth is that it’s never one thing. It’s not as simple as blaming the guns or video games or violent movies any more than it would be to blame our keyboards for the almost universal lack of civil debate on the Web.  I don’t have answers anymore than anyone else.  What does seem true, based on the many comments I read over the weekend, is that we are groping around for our posterity and finding little satisfaction in the ever-expanding cacophony.  One word that seems to be at everyone’s fingertips right now is enough.  There’s a reason I call this blog The Illusion of More.

Strange Theater at the CATO Institute

“To keep up even a worthwhile tradition means vitiating the idea behind it which must necessarily be in a constant state of evolution: it is mad to try to express new feelings in a “mummified” form.”
– Alfred Jarry –

Legal expert and blogger Terry Hart and I had the chance to meet in DC this week, and we were discussing the likelihood that, although copyright is dispos’d in brawl ridiculous on the virtual battlefields of cyberspace, that most people neither know nor likely care much about the subject. This is probably a good thing as there are more serious matters at hand. Still, one of the reasons I personally do pay attention to this digital-age donnybrook is that, beyond concern for the rights of creators, the future of culture, and the economics of the creative industries, my sense is that there are some strange, ideological forces at play.

A couple of weeks ago, I wrote a post asking whether or not conservatives and libertarians are eager to take up copyright reform under the umbrella agenda of small government.  My post was in response to a somewhat haphazard brief, published and then retracted by the Republican Study Committee.  And last week, the libertarian Cato Institute hosted what I can only describe as a piece of absurdist theater entitled Copyright Unbalanced: From Incentive to Excess, so named for the book edited by Jerry Brito and co-authored by Tom W. Bell, who were the featured speakers

As usual, I’ll direct you to Terry’s blog for legal analysis of the presentation but offer my take from a broad perspective. The premise is that copyright law has expanded beyond it’s original intent (translation: an example of big government), and the conclusion proposed is that copyright law ought to revert back to its status of 1790 (translation: strict constitutionalism).  So, as a purely academic exercise, I get why this stage play might seem attractive to libertarians or conservatives; but as we contemplate taking these proposals seriously in the real world, we run headlong into some peculiar hypocrisies and contradictions.  Libertarians and conservatives looking to weaken the notion that intellectual property is property? Or even stranger, the same groups suddenly emphasizing the “public good” over the individual?

Now, I personally have come to reject most political labels, which seems only rational when liberals classify me as a conservative, and conservatives as a bleeding heart liberal.  But no matter what ideological alliance is being claimed, I’m always concerned when anyone makes a case that any law ought to remain static as of the 18th century.  I believe there is an inherent danger, somewhere between impractical and barbaric, to propose living too strictly according the gospels of ancient men. (Just look what happens when people try to cherry-pick the Old Testament for political purposes.) Hence other than selling a book (and no it doesn’t seem to be available through Creative Commons license), it’s a little hard to fathom what in any practical sense Brito and Bell are proposing with regard to “re-balancing” copyright.  There may be a rational conversation to be had about the present system and duration of terms, but Mr. Bell’s loftily presented assertion that it’s obvious we should simply erase 200 years of jurisprudence and reset the clock to a time before mass publication of books even existed doesn’t exactly have the ring of balance to my ear. On the other hand, I might be game for resetting the letter of the law to 1790, if we are willing to restore remedies from the same period.  I mean, who doesn’t want to bring back dueling or good old-fashioned belaboring one’s ideological foe with a cudgel? Or the word cudgel, for that matter?

Most of us recognize that technological innovation is a primary reason why copyright, not to mention quite a few other laws, has grown and evolved since the world was new. In the case of copyright, of course, technologies have created new media the framers could not have imagined, as well as new ways to consume media and new ways to steal media. Yet, Brito and Bell seem to want to ignore these and other realities and regress the law as an ideological principle to a time when the U.S. population, including slaves, was roughly 3.9 million. That’s about one million fewer people than visit just The Pirate Bay on a daily basis to enable mass copyright infringement. Shift this same academic argument about half a click toward the subject of patent protections, and I suspect that any conservative or libertarian support for the larger rationale will quickly vanish. And that’s part of what was so bizarre about the presentation — the fact that Brito and Bell seem to be weaving a very narrow and serpentine path through conservative and libertarian values, not to mention running smack into conflict with the preachings of Ayn Rand from a stage built partly in her honor.

Brito himself invoked the name of Rand, and all I could imagine was the smoky old tart choking on his assertion that copyright is not based in any kind of natural right of the individual.  By choosing to interpret the clause on copyright “To promote the progress of science and useful arts…” in the most collectivist sense, Brito and Bell would earn themselves an indignant tongue-lashing from Ms. Rand were she alive to hear them.  After all, even a half-stoned teenager forced to skim the novel Atlas Shrugged would be able to glean that Rand placed value solely on the individual’s absolute, natural right to exploit for profit any type of product of his own mind without restriction of any kind ever. She reviled the notion of performing work “for the common good,” even voluntarily; and she defined those who would profit from the work of others, either by design or by circumstance, as “looters.”  Hence, in the digital age, Rand would see the rise of “looters” among torrent sites, the users of these sites, Google, advertisers, payment processors, etc.  So, it’s odd enough to hear collectivist proposals about any property right at the Cato Institute, but it’s even more bizarre that these academic proposals would supersede a pragmatic discussion about the unmitigated expansion of “looting” in our times.

Of course, we shouldn’t be surprised that so many tech bloggers are swooning over the assertions of  Brito and Bell.  Those who aren’t working directly for the Internet industry have culturally bought into the premise that copyright stifles innovation and new business, so they’re thrilled to hear anyone propose rolling back copyright until it’s all but irrelevant.  Of course, I have yet to hear any “new business” concepts whose aims are actually stifled by copyright. Instead, we continue to hear the same kind of vague predictions that we’ve been hearing since Web 1.0, when investors were lulled into launching start-ups that had no foreseeable revenue stream. Hence, without real data on real businesses being held back, I have no idea what’s conservative about this basis for a discussion about copyright reform.