Category: Copyright

The Wicked and Dissembling Glass

Photo by Yaroslav Gerzhedovich

Last week, MPAA CEO Christopher Dodd spoke in San Francisco about fostering better collaboration between the entertainment and Internet industries.  Not surprisingly, two voices from the tech industry, TechDirt and the Electronic Frontier Foundation rang out with rebuttal. Mike Masnick, editor of TechDirt, called Dodd a “predictable dissembler” and proceeded to attack him personally for “lacking the vision” for his role.  The EFF posted this article, which strikes a more conciliatory tone that only makes for an even more insidious version of the proverbial pot calling the kettle black.

Now, I don’t have any strong feelings about the MPAA or Mr. Dodd per se.  I agree with some functions of that body, disagree with others, and am generally neutral on most of its activities.  In January, I wrote that I considered the protest against SOPA to be generally dysfunctional and that well-meaning people were being used as puppets by the Web industry, playing on a historic distrust of the media industry.  So, let’s clear one thing up right now:  as of this moment, the Web industry outspends entertainment on straight-up lobbying and on general PR, including the work of the EFF.  As an aside, I feel a little silly using the term Web industry when one company, Google, owns more than 90% of search and advertising worldwide.  Is there a U.S. company more monopolistic at this point in history?

Still, the Web folks continue to get away with portraying themselves as the underdog and also as the champions of free speech. Thus, the EFF article states, innocent of the slightest hypocrisy, “But let’s not forget that he [Dodd] serves as the chairman and CEO of one of the most influential lobbying groups in Washington, and that the actions of the industry have yet to back up his rhetoric.”  The writers of the article aim to sound open-minded while warning the reader not to trust “Dodd’s influence” despite the fact that the EFF’s Northern California friends enjoy far more influence, if lobbying dollars are the true measure.  Let’s also not forget that the Web industry has left more than its fair share of unfulfilled rhetoric on the table.

While Web-centric pundits continue to raise the specter of SOPA’s return as an emotional tug on our senses, we should remember some of the odd dissembling that came from the bill’s opponents on January 18.  Remember these slogans?  Good intention, bad law.  End Piracy, Not Liberty.  These reasonable-sounding mantras were designed for general consumption by a public that doesn’t follow these issues on a regular basis; and they imply that the Web industry agrees that online piracy is a problem but that SOPA and PIPA were not the solution.  The question remains, though, what solutions has the Web industry offered since declaring victory in the name of liberty over these bills?

So far, this industry has continued to pump out fears regarding any legislative action designed to protect copyright; it has increased its lobbying efforts and expenditures;  it has perpetuated the implication that copyright itself is anathema to free speech; and it has continued to insist that the solution to piracy is to embrace it as a business opportunity rather than to confront it as a threat.  These are not the actions of an industry looking to collaborate to solve a problem. Perhaps because it’s not their problem.

Both the EFF and TechDirt articles in response to Dodd cite a Congressional Research Service Report (see embed) that they claim makes Dodd out as a liar with regard to the importance of filmed entertainment as a component of GDP as well as the industry’s role as an employer.  But, as is often the case with data, truth is in the voice of the interpreter; and it looks to me as though TechDirt and EFF are reading what they want to see in the numbers.

Download (PDF, 274KB)

First, the entire report is based on best available information only from the major studios listed on Page 1.  Hence, the employment number is meaningless, because anyone who knows the motion picture business, knows that the lion’s share of work is done by people who never receive a paycheck from these companies.  The report does not reflect, for instance, the independent production companies who produce most of the filmed entertainment in the U.S.  A quick glance at a web page for just one company, Participant, lists 50 projects completed or in production. If we average a conservative but realistic 150 roles per project (not including actors or directors), that’s 7,500 contract jobs ranging from entry-level to high-paying through one production company since 2004.

The report also would not include a four-person, middle-income shop in NYC doing motion graphics this year for a TV network. These people most certainly are employed by the entertainment industry, and so are several hundred shops just like them around the country. Then of course, there are tens of thousands of industry professionals who support themselves, their families, and their communities by working variously on TV shows, documentaries, low-budget features, commercials, and industrials, all of which are affected by the overall health of the motion picture industry, even at the top rungs of the ladder.

In the TechDirt article, Mike Masnick uses the CRS report to simultaneously assert that the movie business is doing just fine (i.e. studio executive salaries) and, by the way, it isn’t really all that important to the economy (i.e. small contribution to GDP).  Studio CEO salaries, right or wrong, have very little to do with the overall health of the American film industry, especially in a discussion about the effect of online piracy on filmmakers of every size.

As for the significance of filmed entertainment to the economy, again, the GDP part of the report is narrowly focused on box office sales in the U.S. and Canada for the major studios listed.  This leaves out huge segments of economic value in the for-profit, industry as a whole.   (It should be noted that this not a flaw in the report itself, only in how the limited data is being used in this context.)

Strangely enough, Masnick sees no irony in the fact that he says, on the one hand, that the film business doesn’t amount to much economically and yet somehow, Hollywood manages to wield tremendous lobbying power.  In fact, were we to take this report as the only relevant data, it shows clearly that Disney, News Corp, Viacom, Sony, and Time Warner combined don’t make as much as Google all by itself.  So, ask yourself who’s likely throwing whose weight around in Washington?

SOPA and PIPA may well be dead, even in revised forms; but currently on life support, I believe, is the Web industry’s ability to keep playing David to media’s Goliath, all  the while crying, “freedom” in order to effect policy in its favor.  It won’t take too much longer for the general public to figure out that the members of the newly announced Internet Association are no more deserving of our blind trust than any other wealthy, vested interest. This is just business and politics as usual; and I would ask what wicked and dissembling glass makes the the wizards of Silicon Valley believe they’re always the good guys?

“Insight” by TechDirt

Photo by GlobalIP

I really shouldn’t Google myself with a mouthful of coffee because spit-takes are bad for computers. Until this morning, I had no idea that a guest post I wrote back in June inspired the top-ranked offering TechDirt considered among the “funniest and most insightful comments of the week.” But I have to agree with Mike Masnick that, when it comes to both humor and insight, the following does indeed represent the paragon to be found on his blog:

*walks up to the podium, a small amount of feedback echoes across the loudspeakers* Mr. Newhoff, on behalf of “My People”… GO FUCK YOURSELF. I’d say something eloquent, but GO FUCK YOURSELF says so much more. How DARE you try to equate copyright with the discrimination “My People” face on a daily fucking basis. How dare you try to frame your pathetic argument that the bad people are stealing from you when my people are regularly discriminated against, beaten, and murdered. Fuck you, Fuck your shilling, Fuck the lobbyist asswipes you shill for. As soon as I can get married and not have to keep looking over my shoulder wondering if this might be the next bigoted asshole to beat the shit out of me we can discuss copyright. Until then… GO FUCK YOURSELF. *drops microphone and walks off stage*

This insightful and funny commenter, Anonymous Coward, was responding to a poor interpretation of this piece I had written on what I perceive as a preposterous assertion that copyright is antithetical to free speech.  It’s not clear whether or not Mr. Coward actually read my post or only read Tim Geigner’s purposely inflammatory response to it, but it is certainly my opinion that nobody is reading very carefully over there.  I leave it to you to decide.

Dear Rick II – Response to Rick Falkvinge on Legalizing Child Porn

Dear Rick:

Yesterday, I opened up on you without actually taking the time to refute your positions or points. Honestly, it’s tough to read that many words, disagree with every one of them, and know quite where to begin.  I know you said you would respond, but then GoDaddy sites were down for many hours.  In the interim, I took the time to write a more analytical response to your article, lest anyone think I’m merely reacting to the nature of child porn itself.  As I said in my open letter, I think many of the fallacies in the article speak for themselves, but let’s take look at its three main assertions:

1. The ban [on child porn] prevents catching/jailing child molesters.

Your support for this premise, which you write in the present tense, is to leap immediately to a very obscure hypothetical situation ten years in the future.  Never mind the fact that your scenario has a one-in-many-million chance of happening; but even in the event that an innocent citizen inadvertently records a child molestation while wearing his Google glass, you are merely speculating that this witness would be treated as a criminal. By this argument, if I found a tape in my neighbor’s trash that turned out to be child pornography and brought the tape to the police, you insist that they would charge me with possession.

Sure, this could happen if the police are corrupt or inept, but it is certainly not the intent of the law. Moreover, when technological or societal change really does demand amendment to the law, it happens. Writing a statute that exonerates your as yet imaginary, inadvertent witness/recorder of a crime involving a naked child seems like an afternoon’s work for a decent law clerk.

Far more serious than your purely hypothetical (and frankly paranoid) example is the very real tragedy that people languish in prison right now who have been wrongfully convicted of homicide.  As terrible as that is, I’m confident we will never legalize murder in order to right these miscarriages of justice.

 2.  The laws brand a whole generation as sex offenders

You state:   “Our current laws treat the video of a seven-year-old being brutally raped, on one hand, and two seventeen-year-olds who have eyes for nothing in the world but each other making consensual passionate love, on the other hand, as the exact same thing. This is mind-bogglingly odd.”

That would indeed be mind-bogglingly odd if it were true — or had subject/verb agreement seeing as a video itself cannot be charged with a crime.  Suppose a priest rapes a seven year-old altar boy and the act is caught on surveillance video.  The priest has committed a crime for sure, but is the owner of the building guilty of possession of child pornography, even when he marches that tape straight into the authorities as he should? All smoke, mirrors, and Google glass aside, this is basically what you’re saying, and it doesn’t make a lick of sense.

As for your 17 year-old lovers, the age of consent in Sweden I believe is 15, and the age of consent in the U.S. ranges from state to state between 15 and 17. So these kids are free to make “consensual passionate love,” as you put it; although at that age, there’s a decent chance it’s awkward, brief, and bit bumbly to be honest.  Still, you’re really painting this picture as a provocative intro to get us to focus on criminalizing the teenager who photographs him/herself naked and presumably shares those photos via telecom.  You state that criminalizing this behavior both equates the act with serious molestation against young children and makes teens feel bad about their bodies.  Again, nothing you’re saying makes sense to me as either an experienced parent or as a citizen with a working knowledge of the law.

In the first instance, the teen in possession of photos of him/herself can be charged in various states in the U.S. with misdemeanors, ordered to engage in counseling, etc. They will not face penalties equal to those of an adult convicted of physical child abuse. You’re guilty of the same associative argument you criticize with your “jaywalking-and-murder” example.  You’re lumping it all together for dramatic effect, but what you’re saying just ain’t so.

Regardless of legality, the act is very dangerous and very stupid; and it is not proscribing the self-photography that makes teens feel bad about their bodies.  When teens feel bad about their bodies, it’s because they’re teens, who have been feeling self-conscious long before technology gave them new toys to play with. A teen who chooses to exhibit him or herself naked via digital communication might be due for a serious discussion with an adult about self-worth and self-preservation.  It’s not about criminalizing the kids to appease some prudish authority — I’m a parent and couldn’t be further from the religious nuts you refer to in your article —  it’s about helping them take care of themselves, which includes protecting them from their own ignorance about the world, about child predators, about putting something out into the digital universe that they can never get back.

 3. The free speech war is won/lost at the battle of child porn.

At last, we get to something approximating your real goal, I believe.  This statement reminds me of another one from the protectmarriage.com website, active during the Prop8 fight to ban same-sex marriage.  I may be paraphrasing slightly as the site is currently down.  They stated:

 “While abortion is a foundational issue, we see marriage as a survival issue.” 

Interesting language, if you think about it.  Like you, these Protectors of Marriage also imagine an ideological war to be won or lost on the basis of a single law that taps into people’s emotions.  And just as they claim to be fighting for the religious soul of America, you claim to be fighting for the soul of free speech itself.  Both of you, of course, are guilty of ignorance in your premises and gross exaggeration in your purposes.  They believe American law is fundamentally more religious than it is; and you believe free speech is truly in jeopardy.

I happen to believe very strongly that the secular laws we write in a free and democratic society are, at their best, a unified declaration of our humanity without requiring religious doctrine. That which we protect and that which we abhor, as expressed through the rule of law, actually does matter a great deal.  But in a very similar way to our Christian zealots, Rick, you fabricate wedge issues in order to draw oblique lines toward dangerous conclusions about the very notion of law itself. To be blunt, I believe you are a technocrat who envisions a world in which technology either obviates the need for law or demands that the law bend beyond reason to accommodate technology’s endless vicissitudes.

In truth, you may be less like the American Christian zealot in your use of child porn here than you are like Ronald Reagan using flag burning as a distraction from your real agenda.  You knew you would draw fire for appearing to be pro-child pornography, and I am reasonably confident that you do not in reality advocate harming children, so perhaps your real mission has more to do with this statement:

“There is a reason the copyright industry loves child pornography.  This reason. It opens the door to censorship.”

This is your party platform, Rick, isn’t it? If so, I think you should be more transparent about it, champion of transparency that you are. Certainly, more straight talk would afford you more opportunity for concision in your writing, and what you’re saying is really pretty simple:  “Copyright is censorship.”  And, of course, if that’s what you truly believe, it’s no wonder you see censorship everywhere you look.

I happen to find your position naive, fallacious, and destructive for some of the reasons I mention above about law and humanity. You believe those of us who would defend copyright don’t understand the Internet, but the truth is you don’t understand copyright. What you want to call censorship is in fact one of the strongest statements my country makes about the importance and the value of a single voice.  Go ahead and blast media oligopolies and their lobbyists all you like.  It’s not my role to defend everything they produce, say, or do.  But as an artist, a big mouth, an atheist, and a liberal; I’m willing to bet I care a hell of a lot more about our First Amendment than you do, and I truly resent when amateurs misuse it.