Category: Copyright

The Knights Who Say SOPA

At last count, the EFF has over 40 attorneys on staff* and lord only knows how many communications minions.  So, if this organization is going to maintain its loose relationship with reality, they might at least take a meeting and invent some fresh exaggerations.  But no. SOPA is just too provocative a buzzword to let go. And as part of their unrelenting strategy to keep trying to scare the hell out of people, the EFF has invoked SOPA so many times, I’ve personally run out of colorful metaphors by which to mock them for it and have had to resort to Monty Python references.

For instance, in this recent missive, EFFer Mitch Stoltz uses the acronym SOPA seven times in the first four paragraphs, which might lead the reader to think that the subject of the article has something to do with SOPA.  Of course, it has nothing to do with SOPA.  Heck, SOPA didn’t even have anything to do with SOPA, but let’s not worry about that right now.

What the knights at the EFF are saying SOPA about at the moment is the fact that as part of the major motion picture studios’ litigation against the pirate network MovieTube, they are seeking injunctive relief that would include disabling domains registered to the network and the discontinuation of services to MovieTube sites by third-party providers.  Granting such an injunction, according to the EFF, is reason to say SOPA, meaning that such a ruling by the court would inevitably lead to crippling the Internet as we know it.  Sound familiar?

But true to form for the EFF, Stoltz neither acknowledges that MovieTube is doing any tangible harm nor the fact that the relief being sought by the studios is far from unprecedented legal territory.  It is well-settled law that injunctions against a named party, which is directly harming a plaintiff, can also bind third parties that may be contributing to, or facilitating, ongoing harm.  And although this principle is nothing new in legal terms, it is a chronic sticking point for Internet companies because they are frequently facilitating harm, whether they mean to or not.  But, in another case involving injunctive relief, the British Columbia  Supreme Court demonstrated in the Equustek case that Google may be ordered to de-index on a global basis all sites (and not just pages) belonging to a business that was engaged in counterfeiting the plaintiff’s products and using its websites to hijack Equustek’s likely customers.  And still the Internet hums along.

Of course, Silicon Valley doesn’t like this sort of thing, but not because of anything to do with your freedoms so much as with their bottom line. News flash:  industries don’t like regulation.  And so, the Web industry likes to portray every prospect of this type of legal action — especially when it involves the motion picture industry — as the beginning of the end.  They say SOPA, and hope the peasants cringe. (And make no mistake, to the wealthy .01 percent of that industry, we are all peasants.) Thus, the EFF invests tremendous energy in this strategy, breathlessly warning us about the inevitable doom that will surely follow if, heaven-forbid, the rule of law might apply to trade across our precious tubes.

Stoltz’s post implies a lack of due process and a dangerous slippery slope, despite the fact that injunctions are court ordered on a case-by-case basis.  And just because an entity is granted this type of relief in one case does not mean it will then have free reign to seek random, baseless injunctions at will. (Or is the real problem that the Internet companies are acutely aware of how much global traffic is driven by piracy, that they really don’t want to go there; and they can always rely on millions of people who like free media to help evangelize their erroneous legal claims?)  If so, they should at least call it what it is and lay off the pretensions to be upholding some principle for the greater good.  Yet,  Stoltz writes:

“If the court signs this proposed order, the MPAA companies will have the power to force practically every Internet company within the reach of U.S. law to help them disappear the MovieTube websites. Regardless of whether those sites are engaged in copyright infringement or not, this is a scary amount of power to confer on the movie studios. And it looks even worse at scale: if orders like this become the norm, Internet companies large and small will have to build infrastructure resembling the Great Firewall of China in order to comply.”

Of course that makes perfect sense. Because what could filmed-entertainment companies want more than a completely dysfunctional Internet and a “wall” of censorship? Filmmakers love censorship! And they certainly don’t want their products to be seen by the paying public via the growing number of legal streaming services that are entirely dependent upon a well-functioning Internet. Naturally, the MPAA is looking for a legal wooden shoe that it can wield to the ultimate sabotage of these distribution portals for studio products.  And in a related story, the Teamsters are going to lobby to defund highway maintenance.

But to put it less sarcastically, if Internet companies truly cannot help to foster a web ecosystem that honors certain rights, including intellectual property rights, without “building a Great Firewall of China,” then maybe they just suck at what they do.  Because, in the long run, we don’t need an Internet that remains the proverbial Wild West, we need one that matures into a vital component of a functioning civilization.

Anyway, if you want a proper (and admittedly calmer) legal analysis of the relief being sought by the studios in this case, I recommend this post by Terry Hart because he actually knows, y’know, legal stuff. I’m mostly being a smart-ass because this kind of fear-mongering is at least as offensive as it is repetitive.  Above all, I resent the tone the EFF consistently takes with regard to piracy — as though it’s some adolescent prank that doesn’t hurt anybody. I and others have cited volumes of data that proves piracy is a big, black-market business that causes tangible and multi-faceted harm to real people.  I will also add that during the anti-SOPA campaign, organizations like EFF, as well as the Googles of the world, implied in their populist messaging that they cared about ending piracy, but the bills SOPA and PIPA were too flawed.  Where in the last four years, have we seen any substantive indication that anyone speaking for the Internet was remotely sincere when they made those statements?

So, if as a general rule, any of EFF’s writers framed these articles by stipulating that a site like MovieTube is — and damn-well should be — illegal and deserves to be shut down, then by all means they should play the role of the public advocate they claim to be.  Instead, the organization’s thesaurus appears to favor repeating SOPA as often as possible and using calculated, provocative language, like the way Stoltz uses the word disappear as a verb to imply that MovieTube is akin to a political dissident being silenced by an authoritarian government. (If nothing else, this kind of rhetoric is just irresponsible in a world with real dissidents and real tyrants.)  For all the attorneys on staff at the EFF, they rarely seem to produce an even-toned, nuanced analysis for public consumption regarding cases of this nature.  I guess it’s just easier to be The Knights Who Say SOPA.  Maybe if somebody brings them a nice shrubbery, they’ll knock it off.

*To be fair, and at last count, the EFF had what I counted as over 40 attorneys spread among staff, board, special counsel, and advisors, which is not exactly the same as 40 staff attorneys.  But in the spirit of this post, suffice to say, they have a buttload of lawyers to keep coming up with the same talking point over and over.

NOTE:  Within an hour or so of TorrentFreak citing this article, I received comments from anonymous trolls with handles including Adolf Hitler and Osama Bin Laden calling me “faggot.”  I think the EFF should be proud to have such erudite supporters.  I don’t know what I was thinking by criticizing their rhetoric, which has clearly elevated the debate.

The Copyright Hub is Launched in Britain

In this post from June of 2014, I argued that the Internet is a reason for the average person to care more about copyright, not less.  The premise of that piece was that just because it’s a right most people will never need or care to enforce, that’s not a reason to allow—let alone get fooled into evangelizing—a weakening of those rights for the sake of Internet industry profits.  And among the many dubious talking points oft-repeated by the tech sector and its network of faux-progressive organizations, are variations on the theme that copyrights are today exclusively a barrier to the “free flow of information.”

Not only do I find that premise philosophically offensive (akin to saying “civil rights are a barrier to the free flow of bigotry”), but I also think it is remarkably non-innovative, especially coming from the presumptive problem solvers of our future.  Rather than take the view that the ideal Internet requires that property interests in data (e.g. a photograph or a musical work) be removed as nuisance barriers, why not seek technological solutions that facilitate easy licensing and other methods of leveraging those property interests, so that more people share in the digital-age bounty other than just the Facebooks and Googles of the world?  Crazy, right? Maybe not.

As Andrew Orlowski reports in The Register, The Copyright Hub was unveiled this week in the U.K., and the principle is precisely based on—get this—harnessing the power of data to enable people to easily identify the owner of a work, the terms of the owner’s interest in that work, and to request a license to use that work according to those terms.  That might sound a little bit like Creative Commons, except it isn’t at all. Creative Commons functions much more as a PR tool evangelizing the vague ideology of the “sharing economy,” rather than providing any kind of transactional efficiency between the creator of a work and the proposed user of a work.  Orlowski writes about the prospect of the Hub …

So what previously took days or weeks to track down and negotiate is handled in the background in fractions of a second, because content has identifiers. By reducing the friction and the cost of licensing to almost zero, lots more licensing should be possible. One can envisage a whole new internet that supports functioning markets growing out of the rancid free-for-all of today’s clickbait-infested swamp.

When big corporations get away with practices like stripping metadata from images or pushing the boundaries of infringing an individual’s right of publicity to the extent that all data, all images, all “content” becomes one big grab-bag of decontextualized—free flowing thought it may be—stuff, this is not only bad for professional creators of works but is ultimately bad for the aspirations we have for the Internet itself.  An initiative like The Copyright Hub seems designed to fulfill one goal of the web, which is to connect people, in this case by fostering respectful relationships through content, rather than treating content like wildflowers meant to be picked at will. And in many cases, these transactions will involve no more than the exchange of a simple please and a thank you.   

Orlowski reports that the head of The Copyright Hub, Dominic Young, views this initiative as restoring the right of choice to the owner of a work, which is, of course, the backbone of copyright.  To quote Young from Orlowski’s article, “Copyright is actually the freedom to decide what happens to your work. Everyone has it. Should people be able to make their own choice about how it’s used? Most people would say ‘Yes’. Should they have a single choice thrust one them? Most people would say ’No’.”

Internet industry practices by the big boys have not only chipped away—if not utterly destroyed—that freedom of choice for rights holders, but they have so successfully planted the idea in a new generation of creators that copyright is a state-imposed, mandatory barrier to freedom, that many contemporary creators have been duped into advocating a weakening of rights that are completely optional in the first place.  The hope is that through efficient, technological applications like the Hub, creators who have, to some extent, given up on copyright may find a renewed faith in their ability to connect with users of their works through interactions based on the idea that permission can still be part of our digital future.

For more information about The Copyright Hub visit www.copyrightdoneright.org

Orphan Works Rumor Not Helpful

Okay.  A bunch of my artists rights friends and colleagues need to take a breath, because some of you are doing exactly the kind of stuff we hate when the tech industry exaggerates or fabricates negative aspects of copyright.  In the last 24 hours, I’ve encountered a handful of artists rights proponents sharing links and comments proclaiming that the Copyright Act is about to be overhauled, that there is an Orphan Works proposal before Congress, and that visual artists in particular must immediately write to the Copyright Office by July 23rd to make their voices heard on these matters.

Stop.  Breathe.  None of this is true.

First of all, the Copyright Office is seeking input from photographers and other visual artists in order to gain insight as to how this class of creators might better monetize their works, enforce their rights, and more easily register works in the digital age.  The office is soliciting comments in the interest of better protecting creators’ interests, and this July 23rd request has nothing to do with Orphan Works, even if there were such a proposal on the Hill—which there is not.

As for Congress, the Judiciary Committee began holding hearings in April of 2013 as the first step in a comprehensive review of the Copyright Act, and the last of those hearings was held in April of this year.  Congress has thus far listened to 100 witnesses and, as stated by Chairman Goodlatte, “Over the next several months, the Committee will be reaching out to all stakeholders to invite them to share their views on the copyright issues we have examined over the course of our review so far, as well as any others.”  In case you’re unfamiliar with the sound, that’s the proverbial wheels of justice grinding slowly, which is what they’re supposed to do. (Okay, it’s a bit of a mixed metaphor for the legislature, but you get the idea.) It’s also worth noting that the last revision of the Copyright Act took several decades, and the outcome of this review process may not be a rewrite of the law. Hence, nothing is moving as rapidly as your Twitter and Facebook feeds.

The purpose of this review—hence the word review—is not to debate any specific changes to the law, but to assess the Copyright Act in a contemporary light and to hear testimony from experts and stakeholders with differing views as to the strengths and weaknesses of the law in our new technological times.  As such, there is neither an Orphan Works bill nor any other proposal before Congress to amend the Copyright Act. Not yet. Those days may come, and artists and creators should certainly remain involved when they do.

Artists and creators have typically been shouted down or bamboozled by heavily-funded corporate shills and the nouveau-savant within academia, who for various reasons have jumped on a bandwagon of hostility toward intellectual property.  They are the hysterics. They are the ones who cry SOPA every time anyone thinks to protect IP in the digital age. They are the ones who deflect any attempt to impose civil law upon Internet companies by manufacturing a backdoor conspiracy involving a pair of congressmen and a bag man from the MPAA.  Creators cannot afford to to play those games, not least because the antagonists to the interests of creators are masters at exploiting the hypocrisy of others while admitting no such errors in themselves.

Stay involved. Stay the course.  But stay informed.