Category: Intellectual Property

Paying Attention to the Echo Chamber at CES Copyright Panel Discussion

“The Pirate Bay is speech.” This is a quote from one of the gurus perched on the mountaintop of techno-utopianism, John Perry Barlow, who appeared yesterday as a member of a panel discussion held at CES2013 in Las Vegas.

The subject of the discussion was “A pro-artist/pro-innovation approach to copyright,” although the panel did not include anyone representing any counterpoint from contemporary artists, and the conversation was typically vague on what exactly these folks mean by “innovation.” According to moderator Declan McCullugh, a reporter for CNet, an invitation to join the panel was declined by the MPAA; and I suppose that could be considered an effort toward balance, although I think it’s a little like saying, “We’re here to talk auto manufacturing, and the president of Ford doesn’t want to be a straw man, so we didn’t bother to invite any of a zillion other people who make a living actually building cars.” To his credit, McCullugh was mildly deprecating about the one-sided, anti-copyright love fest he was hosting — there’s not much to moderate when everyone agrees with one another — but that doesn’t mean the discussion failed to reveal anything of interest.

The full panel included:

  • John Perry Barlow – Co-Founder , Electronic Frontier Foundation, EFF
  • Wilson Holmes – Co-Director , Fight for the Future
  • Mike Masnick – CEO and Founder , TechDirt
  • Hank Shocklee – Founder and CEO, Shocklee Entertainment
  • Gigi Sohn – Co-Founder and President, Public Knowledge
  • (And surprise panelist) Derek Khanna

Of course, had the panel included an independent filmmaker, a small record label producer, a photographer, or an independent musician, the conversation might have been forced to settle down from its lofty heights and overused talking points poking “the content industry” into the nuts and bolts of everyday realities faced by middle and working-class creators. But the petty challenges of middle-class individuals seem to be of little concern to these folks, who believe they’re on a mission to bring about a brave new world. Gigi Sohn stated that any kind of new anti-piracy legislation, were it to dare raise its head in the post-SOPA landscape of net snipers like Public Knowledge, ought to be “grounded in reality.” It’s hard not to laugh at this in light of the fear-mongering exaggerations promoted by her organization and others about SOPA, but beyond that, reality is by definition something different from the the Internet. As such, I’m grateful to Barlow for making one of the few declarative statements that gets right to the reality underlying much of the noise on these issues.

We could set aside all the nit-picky squabbling over dollars lost and earned by big corporations, all the petty complaints about occasional, improper takedowns, all of Lawrence Lessig’s celebration of remix culture and Derek Khanna’s vague references to innovation, and make a decision as a society as to whether or not Barlow’s statement, “The Pirate Bay is speech,” is correct.

Taking a conservative point of view, law is what we as a society agree is immutable (e.g. murder will probably remain illegal), and anything beyond that is up for discussion and maybe shouldn’t be law. Before we could have a discussion about a new approach to copyright, then, we’d have to decide what, if anything, is immutable. Either Barlow is right that an enterprise like The Pirate Bay, which (let’s not mince words) makes its revenues by exploiting the works and investments of other people, is protected by free speech, or he’s wrong. This is a decision the next generation, one that is used to getting entertainment media for free, has to make; and I believe that if they make the expedient decision that Barlow is right, that they and their kids will pay dearly in the future. And the price could be more than the loss of creative culture.

I think it’s safe to say that, before we were on the Internet, before everything could become sharable data, that nobody would rationally have argued that selling bootleg CDs out of a car trunk would be an act protected by free speech. That being the case, the philosophical/legal question is, “What’s really changed?” The techno-utopian says we have to expand our definition of speech on the grounds that, in the digital age, it is all too easy to chill speech; but they fail to acknowledge that they’re standing on a theoretical peak with slippery slopes on all sides. If we define everything as speech, then it’s true that any restrictions of any kind in the digital world can be said to chill speech. The slippery slope in the other direction, though, is that if the business of The Pirate Bay really is speech, then so is a site or a link that promotes human trafficking. As a matter of pure reason, what’s the difference? In real life, both enterprises involve the exploitation of actual human beings (albeit one more grave than the other); but in cyberspace, both enterprises are just benign data, right? Either we will choose to define boundaries going forward, or we will not; and I am not alone in believing the consequences of that decision will become very real within a couple of decades.

Techno-utopians like the ones on yesterday’s panel like to refer to the horrors of a grandmother having her video taken down, either purposely or by accident, from YouTube and then imply that each of these anomalous incidents moves us one step closer toward authoritarian rule. In response to the comparatively benign deprivation of having a video removed from the Web, these folks would have us hyper-extend speech to the inclusion of real physical and economic harm. As I have argued before, this is like legalizing homicide in order to make sure no one is ever again wrongfully sent to death row. If we can negotiate the gravity of such flaws in our legal framework, surely we can get past a few wrongful yet survivable takedowns on the web.

Ostensibly, this panel discussion was about a copyright system that’s good for artists and innovators; but Barlow’s foundational statement puts the artists, who historically test the power of free speech to profound cultural effect, on par with common thieves who dilute both the cultural and economic value of the works they steal. And the implications could be far more serious than what happens to music and movies. To quote Chris Ruen from his new book Freeloading, in which he unknowingly echoes the name of this blog: “But behind free content’s superficial illusion of more lies a long-term reality of less. Sooner or later, it is something we all have to pay for.” Looking beyond the Web’s ability to expand sharing of entertainment media, I believe that price could be something far more dear than money.

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.

Uncrumpling Policy Papers – The Khanna Memo

Photo by Erickson Photography

Are conservatives fixing to adopt a position that copyright is a “government handout?”   Maybe.  Here’s what happened over the weekend:

The Republican Study Committee, which for now is still chaired by Tea Party conservative Rep. Jim Jordan (R-OH), issued and then retracted a policy brief proposing an approach to amending copyright law.  Officially, a spokesman for the committee stated that the memo was pulled because it “lacked balance,” but that’s putting it mildly for a document that is so bizarre it actually contradicts conservative fundamentals. Written by a young staffer and law student named Derek Khanna, the memo asserts that the current copyright paradigm stifles innovation (something we’re used to hearing from corporate interests who stand to gain from weaker copyright laws); but the content and tone of this particular memo is bipolar in its attempts to recast individual property and civil rights as a government subsidy. Some assertions in the brief seem to want to make copyright reform part of the “small government” agenda, while other assertions are downright collectivist in ways that would normally set conservatives’ hair on fire.  Of course the strangeness of the brief didn’t stop the folks at TechDirt, Daily Kos, and Boing Boing from high-fiving one another over it, all seeming more than ready to cozy up to the strangest of bedfellows in pursuit of corporate agendas masquerading as populism.  In short, it’s all just weird.

Titled “Three Mythys about Copyright Law and Where to Start to Fix It,” the brief begins with false premises about the origins of copyright itself, proceeds to describe non-existent or purely hypothetical problems, and then proposes reform to copyright laws without the slightest reference to how these laws have evolved since ratification of the Constitution.  I’ll leave it to legal scholars like Terry Hart, and Professor Mark Schultz to address premises and conclusions, but the middle part of the memo — the supposed problems — don’t require legal experience to dismantle on face value.  The brief identifies five ways in which innovation, which the author defines as “productivity,” is being stifled by the current copyright system.  The five headings are quoted verbatim from the brief.

1) Retarded the creation of a robust DJ/Remix industry.  After we’re done having a good chuckle over the whitest of white people championing the “DJ/Remix industry,” we’ll settle down and ask whether this is meant to be taken seriously at all.  Are we really meant to infer that there is an untapped wealth of employment to be had in the presently “retarded” DJ/Remix industry?  I’m not sure, but I do know that I would love to see some hardline, Tea Party conservatives out there stumping for the tens of thousands of DJ/Remix related jobs they want to create. In all seriousness, though, my colleague David Lowery is quick to point out that there is something of a racial divide here — that the mostly  black DJ/Remix artists are paying for the samples and works they use and doing just fine while this “problem” identified by the author is one of perception among a bunch of white academics in ivory towers.

2)  Hampering scientific inquiry. We hear this claim about science from quite a number of vested interests but not all that often from scientists themselves.  Again, while acknowledging the RSC retracted the brief, they also let it out of the bag in the first place; and I feel compelled to point out that current Chairman Jordan of that committee is a strong proponent of teaching Intelligent Design in schools and an opponent of stem cell research.  If there are ways in which scientific inquiry is tangibly stymied by the current copyright system, I suggest we should hear about this from people who are not hostile to science in the first place.  What people like the author of this brief usually mean when they say this is that the general public needs “more access,” but as I addressed in an older post, the general public has more access than ever before without necessarily showing any more interest.  Darwin v. Intelligent Design makes a pretty simple example.  Nothing in copyright law stands between the public and all the data on evolution one might want to consume, and yet, we’re still suffering with politicians who would rewrite that particular science into religion.

3) Stifling the creation of a public library. By stifling the creation of a public library, the author is mostly referring to Project Gutenberg, which has a noble component to its primary agenda.  Still, an argument for the mass digitization of all media to the diminishment of the value of authorship is both strange and a little frightening coming from this crowd.  It’s strange because the argument being made is for a kind of “redistribution of wealth,” in this case that intellectual property ultimately belongs to society more than to an individual or corporate entity.  That sounds about as anti-conservative as anything I’ve heard in some time.  Never mind that in the process of too eagerly making IP the “property of society,” we would also be making the owners of the cyber highway even wealthier and more powerful, but the cultural implications of what the author is saying is potentially staggering.  To quote Jaron Lanier from You Are Not a Gadget:

“Google and other companies are scanning library books into the cloud in a massive Manhattan Project of cutlural digitization.  What happens next is what’s important.  If the books in the cloud are accessed via user interfaces that encourage mashups of fragments that obscure the context of authorship of each fragment, there will be only one book. . . . A continuation of the present trend will make us like various medieval religious empires or like North Korea, a society with a single book.”

4) Discouraging added-value industries. When the author writes about discouraging added-value industries, he’s just plain winging it, suggesting that there is an as yet unkown wealth of legitimate industry to be made from more extensive reuse of media, if it were simply in the public domain sooner.  Absent any actual research, though, the author refers to VH1 style pop-ups (remember those?) as an opportunity to redistribute old films with “fan generated content,” like some massive, live Mystery Science Theater 2000 (remember that?) expereience. I can see why any number of UG experiences will always be good for Google, Facebook, and Twitter, but there’s nothing in this memo that indicates how real jobs might be created, which seems to me a requirement if one is to use the word industry.  In fact the overarching statement in the preface, “we don’t know what isn’t able to be produced as a result of our current system,” may be the most accurate sentence in the entire memo.  I’d also point out that as a practitioner in the entertainment industry, there is literally no end of material and ideas in the public sphere from which one can draw to keep producing new works that have measurable economic value.

5) Penalizes legitimate journalism oversight. Considering the sheer magnitude of professional and amateur journalism out there, as well as the number of groups who identify themselves as  journalism watchdogs of one kind or another, it’s odd that the author conjures a purely hypothetical scenario in order to support his assertion that copyright stymies the oversight of journalism.  “Imagine if there were a memo pulished by a well-known DC think-tank during World War 2,” he begins (inexplicably averse to Roman numerals) and then proceeds to describe how that memo could be found by an enterprising journalist and then squelched by the think tank through the use of copyright law.  For decades, I’ve been searching for an adverb to describe a degree of dumbness that literally reverberates inside its own logic, and this is one of those times I’d use the word if I had it.  Aside from the example being a figment of the author’s imagination, it also happens to be untrue.  There are several circumstances in which information like the kind he describes could not be protected by copyright, but that isn’t even the point.  The point is that a brief released by a group with the word study in its name ought to have some research in it and not the whimsical, TV plot ideas of a junior staffer.

This policy statement may well have been quickly buried by the very people who first published it, but that doesn’t mean there are not conservative and libertarian views looking to redefine copyright as a government handout.  In fact, on December 6th, the libertarian Cato Institute is hosting a forum entitled Copyright Unbalanced:  From Incentive to Excess.  I know plenty of pro-copyright people, including artists, willing to talk about whether or not elements of copyright need rebalancing, but that conversation cannot be had in an ideological context like the one this memo implies.