Did you hear the echo?

This past weekend, as many people know (and even more people don’t), Saturday marked the two-year anniversary of the event known as SOPA Blackout Day.  In case you don’t remember it or missed it altogether, it was January 18, 2012 when various websites, most notably Wikipedia, went dark or semi-dark for the day in order to inspire users to take action and stop the SOPA and PIPA bills from passage in Congress. Google put out an online petition that a reported seven million people forwarded to Congress, and enough citizens called the Capitol that the phone system actually crashed.  In short, the protest worked.  It worked so well that members of congress got whiplash tying to figure out what happened to a pair of bills that had strong bi-partisan and White House support just days before.

It was remarkably easy to convince a lot of people that the proposed legislation was a threat to free speech and would break the internet as we know it, but I did wonder on the day whether or not the industry could keep banging the same drum indefinitely without getting on everybody’s nerves.  After all, one of the weaknesses of social media  is that it fosters flash trends and not so much sustained interest in any particular issue.  And, despite Google’s pre-anniversary email blasts and the EFF’s sponsoring a campaign called Copyright Week, I don’t think the message got very far outside the echo of the Valley.   It’s not surprising to see the industry attempting to use the same anti-speech refrain to rally public protest against the TPP trade negotiations, but I don’t think they can get lightning to strike twice.

A couple of posts ago, I essentially accused the Electronic Frontier Foundation of fear-mongering on this subject, saying that organization is acting more like a PR firm than a public advocate.  This yielded one response on Twitter from a member of the EFF, who sent this link to one of their many articles explaining what’s wrong with the TPP.  Read the piece for yourself without any preconceived bias — I personally don’t have strong pro or con attitudes about the TPP — and decide whether it’s being informative or manipulative.  Here’s my take on a couple of choice excerpts:

Lack of transparency:  The entire process has shut out multi-stakeholder participation and is shrouded in secrecy.

In my opinion, a public advocate would explain that the TPP, while unprecedented in scale and scope, is not particularly unprecedented in its relative level of secrecy.  With any trade deal, there is always a fine line between transparency and efficiency inasmuch as one cannot hold a real-time, public referendum on trade negotiations among a dozen nations and hope to actually get anything accomplished.  On the other hand, legitimate concerns have been raised about congressional oversight of ongoing negotiations, and these concerns are not to be dismissed.  Regardless, if the EFF is providing a public service, then disinterested analysis seems the proper approach rather than purple prose like “shrouded in secrecy.”  This is especially true given the fact that members of the EFF themselves have attended TPP stakeholder events, where, in fact, “multi-stakeholders” have been invited to speak and interact with negotiators.  If the EFF felt that these events were inadequate or unfair, then they are within their rights to share those observations with the public, but given their consistent use of conspiratorial language, it seems that their mission is not to inform but rather to elicit an emotional, SOPA-like response to the TPP.   Here’s another excerpt:

The TPP Will Rewrite Global Rules on Intellectual Property Enforcement

All signatory countries will be required to conform their domestic laws and policies to the provisions of the Agreement. In the US, this is likely to further entrench controversial aspects of US copyright law (such as the Digital Millennium Copyright Act [DMCA]) and restrict the ability of Congress to engage in domestic law reform to meet the evolving IP needs of American citizens and the innovative technology sector.

This paragraph doesn’t actually provide any information to the average citizen.  I doubt anyone who doesn’t follow copyright issues consistently would even know what this paragraph means; but it sounds kinda bad, right? And since distrust of the government is at an all-time high, it’s relatively effective.  Why provide information, when you can use an atmosphere of distrust to pump out industry talking points like “copyright stifles innovation?”  What this paragraph actually conveys is we should not ratify a trade agreement that would reaffirm existing copyright law when we should in fact be reforming existing copyright law at home because we all know it’s broken. Of course, if you don’t think it’s broken — and polls indicate that most Americans still support the fundamentals of copyright — then this paragraph doesn’t say anything negative about the TPP at all.  What the statement is really doing, of course, is base-playing, rallying support among people who’ve already decided that copyright threatens speech and innovation, which means the EFF is campaigning, which is not the same as providing impartial advocacy.

For instance, what the EFF doesn’t tell you is how or why DMCA is controversial.  For creators, it is a nearly useless mechanism for requesting takedown of unauthorized use of their works; whereas to the EFF, DMCA is an insidious means for powerful interests to censor people through wrongful infringement claims.  Yet, if you actually look into the issue, you’d find that wrongful DMCA takedowns are fairly uncommon, often accidental, and are dwarfed substantially by the volume of unchecked infringement of protected works.  Just last week, Google alone reached the milestone of receiving its 100-millionth takedown request from the music industry, and Google will mostly get away with ignoring these requests because it’s very big and very rich.  So, is the DMCA controversial?  Hellz, yeah.  But the EFF isn’t necessarily going to tell you why.  Instead, it simply uses the word controversial to imply “not good” and then say that the TPP will “further entrench” what’s not good about it.  Sound vague?  Not by accident.

If you’re relatively neutral on copyright law, you might interpret that ratification of the TPP  could unreasonably expand copyright even in the U.S., and that would be false.  No treaty has yet changed domestic IP law, and even the portion of draft content leaked by Wikileaks reveals nothing inconsistent with existing domestic law. What the USTR would be seeking in this deal is to have signatory countries agree to establish and/or enforce their own IP laws that would essentially mirror laws we have in the U.S. This is neither sinister nor unusual, given that a lot of the trade we’re negotiating includes a lot of copyrighted property, like popular movies and TV shows. Moreover, it should be noted that, among countries that uphold copyright, the United States has the most liberal interpretation of fair use because we also believe in free expression, education, and social commentary.  So, the prospect of exporting our approach to copyright is not necessarily detrimental to individuals in foreign countries, although it would certainly be a pain in the butt for social media companies. Again, the EFF isn’t going to get bogged down in such gray areas because that’s not how one wins a campaign.

There are quite possibly some reasons to be concerned about the TPP, but even Timothy B. Lee, with whom I disagree on just about all things copyright, states in this article that the trade deal is being falsely hyped up as Internet censorship. Lee will say that the TPP “exports some of the worst aspects of copyright law,” but this is only true if you believe those aspects of copyright law are bad in the first place, which brings us back to the domestic debate.  And that debate is why I believe the EFF and similar organizations are expending so much energy on trying to kill the TPP — because its ratification makes domestic reform from their perspective more difficult.  If that’s the case, then again I argue the EFF isn’t providing the public service of demystifying some of these complex issues so much as they are rallying support for a very clear domestic agenda.  Among the problems with what they’re doing is that all the hype over copyright can direct attention away from what might be serious concerns related to this trade deal.

Today, of course, is a legitimate anniversary when we celebrate a man who sacrificed his life to exercise free speech more eloquently than most to address real threats to civil liberty.  People my age were in grade school just a few years after Martin Luther King was assassinated, and I was at that time in a school populated by mostly African American kids. The mood was still visceral; the immediacy of King’s legacy was part of our development into conscious beings; and King can claim credit for the many voices that followed his example.  And still we have people in this country who would shoot Dr. King all over again; so we’re not quite done chasing his dream.  By contrast, I have to say the sound of ivory-tower lawyers ringing the bell of freedom from the tyranny of copyright is just a tad decadent.