Kim Dotcom & the Illusion of Freedom

I’m still stuck on the following dependent clause:  “In a dramatic series of tweets,…”

I can’t help it. That’s just funny.  Because for me personally, the verb tweet will never quite convey the kind of gravity that begs for an adjective like dramatic.  But that’s just my personal taste for what Roy Blount Jr. calls “sonicy” in discussing the correlation between the sound of words and their meanings.  Nevertheless, “In a dramatic series of tweets,” writes Kaveh Waddell for National Journal, the infamous Kim Dotcom declared himself “HIlary’s worst nightmare” with his vow to establish a foothold for his New Zealand Internet Party here in the United States – a party that has yet to gain an actual foothold in New Zealand, by the way.

One might think that Dotcom’s status as a fugitive from U.S. justice, continuing to fight extradition for mass intellectual property infringement, racketeering, and a few other charges, would preclude his laying the groundwork for a new political party in this country, but we do live in strange, some might say psychotic, times, so never say never.  At least never say never about what Dotcom represents to some people.  I think it’s safe to say that Kim Schmidtz himself has no future in American politics in any literal sense and is unlikely to be Hilary’s “biggest nightmare,” if Mrs. Clinton decides to run in 2016, but this particular corpulent criminal still spews a rhetoric that resonates with young and understandably frustrated American citizens.  And by rhetoric I mean an echo chamber from which there is no escape.

I know what the Green Party is, but what the hell is the Internet Party? It makes as much sense to me as the Paved Sidewalk Party. The “internet” is a work of infrastructure.  The current manner in which the internet is used is not the only way in which it could have been or can be used or might be used in the future. In fact, the design and economics of Web 2.0 are in many ways an aberration of the visions of some of the web’s early pioneers.  The internet had its roots in sharing information among colleagues, in openness, and in building a better world through information, but that is not quite the internet we have today.  The internet we have today belongs to a handful of corporate owners, who more than a decade ago, traded in any lofty visions they might have had for the wealth derived from advertising and the power derived by designing the most sophisticated, yet ironically voluntary, surveillance state in global history.

Kim Dotcom himself may be a joke (let’s hope so), but the rhetoric he coughs up, the rhetoric still being shouted from Silicon Valley is in reality just the cosmic background noise of long-exploded dreams of the digital pioneers who no longer influence the evolution of the web we are using. I believe that many people are desperate for new answers, fed up with government both left and right, and continue to buy this premise that “a free and open internet,” the central plank of any Internet Party, is essential for a more progressive, less authoritarian future.  But who defines what a “free and open internet” is?  Should such a political party become manifest in the U.S., that definition will surely come from the financial backers of that party, and they will be the same plutocrats whom we empower and enrich with every tweet, text, status update, and agreement to their terms of service we don’t bother to read.

The EFF’s Maria Sutton yesterday wrote yet another post asserting that the DMCA, the legal mechanism used to request takedowns of material that infringes copyright is the quickest and easiest way for “state officials to censor online speech.”  Hmm.  The documentary film  Terms and Conditions May Apply highlights three or four cases in which citizens were subjected to, shall we say, unfortunate encounters with various authorities resulting from innocuous posts and searches online.  The lesson is that privacy is dead, any of us can be un-anonymized, and companies like Google and Facebook are not only profiting from all our voluntary data sharing but are the surveillance database for the government agencies we’re supposed to be concerned about.  People like Maria Sutton write articles about videos on YouTube being taken down, even temporarily, as though to imply that this kind of “censorship” is the leading edge of a slippery slope.  But anyone who thinks this way doesn’t realize we’re already in the middle of the avalanche. A free and open internet my ass.  Sutton even cites one anecdote of a takedown in Saudi Arabia without any acknowledgement that free speech in that country has a long way to go past its murderous history before we need to worry about the temporary removal of some videos from YouTube.  People get shot for speaking their minds, and speech somehow survives.  And in the U.S., where speech is everything, our overvaluation of these social media toys, as though speech itself depends on their unfettered existence, is probably the fastest way to bring about the end of free speech because it’s not a one-way street.  These platforms enable us to, as my son says, “spy on ourselves.”

And the real irony of this misguided premise — that it’s those bastard copyright holders who foster censorship — is that intellectual property rights are about the only thing left that Google, Facebook, et al can’t quite get their hands on.  We’ve already ceded privacy and potentially some rather more serious expectations of civil liberty.  After all, there is no legal guarantee of privacy, and by volunteering information through social media, we actually waive our 4th Amendment rights with regard to government use of that data.  But intellectual property law remains.  It says that what I author belongs to me, and you can’t have it unless I say so.  Kim Dotcom made millions breaking that law and called it “freedom,” and the tech billionaires who would back an “internet party” would like to see those laws gone.  They’ll tell you it’s for the good of society.  I say, it’s because it’s the only form of speech left for them to steal.

© 2014, David Newhoff. All rights reserved.

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17 comments

  • Meh, there’s nothing in the constitution saying that an accused criminal can’t run for president.

    A non-citizen, however…

  • “The internet had its roots in sharing information among colleagues, in openness, and in building a better world through information, but that is not quite the internet we have today. The internet we have today belongs to a handful of corporate owners, who more than a decade ago, traded in any lofty visions they might have had for the wealth derived from advertising and the power derived by designing the most sophisticated, yet ironically voluntary, surveillance state in global history.”

    The internet does not “belong” to anyone. No one forces you to use Google, Amazon, Facebook, or Apple products. No one forces you to join a PRO and allow your music to be distributed digitally. No one. You are still completely free to choose whether or not you step into the digital space. The irony in your statement is that you see a difference between the “real” world and the digital world when it comes to such things.

    Your 4th amendment comes into play, just as it would when you enter a public space. At this point, you have no expectation of privacy. Do a google search, guess what, it is the same thing. Buy from Amazon and utilize their system of rating and analyzing products. You traded privacy for information. No different than if you enter a K-Mart, movie theater, car dealership, whatever. When you leave the privacy of YOUR space and enter a public space, or the space of someone else, you have no right or guarantee to privacy. They can watch how you move, what you buy, who you were with, when you arrived… Your privacy is the same as it has ever been, completely under your control. And while there are MANY examples of agencies and businesses trying to circumvent that, the law still remains on your side, IF you are smart.

    In both the real and digital realms the ONLY way to stop such things is via regulation. Which surely does protect your privacy(from people who aren’t the regulators), but also limits your ability to interact with others. It is, always was, and always will be a trade off.

    In the real world, property is inherently easy to protect from theft. I have this thing, it belongs to me, if you want it, you will have to physically take it from me. In the digital world, I created this thing, if I make a copy, they are exactly the same, I do not actually own the thing, but rather the rights to the content of the thing, if you take it, I have no way of knowing unless you use it in a manner that alerts me to its presence.

    With media content, music especially. There is no true way to stop people from experiencing your work for free. If I walk down the street and your song is on a stores radio, your license deal with them does not stop me from hearing it. So even if you get your cut from them playing it, they did not get my business, so I essentially, by your logic in regards to digital services “stole” your work.

    So what should be done? The restaurant can close the door. The bar can charge a cover. what they do to make money, has no bearing on your once your PRO makes a deal. In the digital realm. Creators need more direct control over their works in regards to licensing. They have to take a step back from the “free” and open internet you describe above and become more conscious of what the convenience of a PRO, or youTube, or iTunes… Means in the long run.

    People like Kim Dotcom exist in the same way places like Walmart exist. They feed off of a desire for convenience. By collecting many things under one roof, they do not have to worry about any particular product. The “if it exists, we have it”. That draws consumers away from the little guy. The independent. Shitty no doubt. But ultimately stopping them does not automatically more people go to the source. The problem of exposure and engagement still remains.

    As always, I believe the problem for content creators is not youTube. It is not a huge sharing site. It is not a streaming service. No, they like the mom and pop convenience store that exists two blocks from Walmart need to find a way to stand out and convince the customers that they have something more than just convenience to offer. That going to the source, or through an approved conduit to the source, somehow adds value to the desired product. Until that happens, there will always be a Kimdotcom and there will always be a Walmart.

    • I’m sorry, but there is no point in responding to any of that other than to say believe what you like. Your responses on the privacy matter are particularly naive. Yes, one can choose not to use the Internet, but not really — not if you need to function in the contemporary market. And if you believe you can protect your privacy without being a fairly sophisticated programmer, you’re sticking your head in the sand.

      • David, that wasn’t the point. I work in this industry. Trust me my understanding of privacy on the internet is anything but naive.

        Are you looking for solutions or just trying to express how bad it is? The point being, none of us are powerless against the internet machine. Yes, it is an essential part of how the world operates, but there is no reason why we, as both the consumer and creator can not exercise some level of control over how we interact with that machine.

        I have often though about how the technology principles behind something like Bitcoin could be applied to digital content. The basics of that mechanism being a continuous “chain” that links the coin and all transactions to the person who owns it.

        In principle that would solve a lot of problems for content creators as there would be a clear record of usage directly tied to the OWNER, not the distributor.

        Do I have the answer as to how to implement this? No. But the idea behind keeping media and the rights that go with it, in the hands of the owner are sound.

      • I’m not qualified to look for technological solutions, though I respect the fact that you have an industry perspective. All I do is write things that are read and shared by general folks, legal scholars, lawmakers, and other professionals, and these readers often tell me I spark new thoughts and ideas. It’s what I have to offer.

        No, we’re not powerless. Quite the contrary. But I don’t believe I am exaggerating in the least when I describe the unprecedented nature of the power of this new oligarchy. And as I’ve said, I’m far from the only person saying it and far from the most credentialed person saying it.

        You want solutions? Enforcing anti-trust laws, demanding these companies to pay their taxes, imposing regulatory practices, and handing down real punishments for criminal activities. You won’t like those solutions, though because they sound old-fashioned.

        I have to tell you that most of the time I read or hear about a “solution,” it reminds me of the times I will exceed my skills as a handyman. I mess something up and then “solve” it in a way that is a very poor substitute for the thing I messed up in the first place. Yeah, it works sorta, but can’t quite be called a solution.

      • “Are you looking for solutions or just trying to express how bad it is?”

        I think this is actually a very respectable position to take. There is a lack of good faith discussions of this type on the pro-copyright web. That said, please let me make a constructive criticism: in many of your posts you sound like a know-nothing torrentfreak every-digital-thing-should-be-free-screw-you-dumb-artist-you’re-lucky-I-even-pay-attention-to-anything-you-do type.

        For example : “As always, I believe the problem for content creators is not youTube. It is not a huge sharing site. It is not a streaming service.”

        No.

        Those things are big problems and are costing lots of good, talented, hardworking people lots of money (with farther reaching economic costs, as those people have to change their personal economics to meet new monetary realities) all while often mainly making money for slimebags like Kim Dotcom.

        I’m am quite open to your “provide value” refrain. But the reason we have to hunt around to figure out such value is because of the Kim Dotcoms who stole the value we used to provide. You seem strangely immune to recognizing this. More importantly I have not heard any* way you have suggested to provide value aside from some version of “live shows and merch”, which are incredibly poor substitutes.

        In short, I’ll listen with patience (and hope!) to any new ideas for solutions. How about in return you contemplate the possibilities for sensible regulation?

        *The Bitcoin thing you just mentioned is the one exception, and I agree it’s an interesting idea . My only questions is – what about screen or audio grabs?

      • Bitcoin tech won’t work for audio. I dunno about film, as that’s not my area… and even if it could, it still leaves out every other creative endeavour so have no delusions it can fix the creator/web dichotomy…… but hey, if you can crack that nut you will be a wealthy man.

        The reason it won’t work (and that we need actual legislative action to update our laws) is because you don’t control the port between the speaker and ones’ ears (at least there’s some degradation when using a mic to recreate). But more importantly –going back a step in the chain: you don’t own the port between the computer/device and the speakers… and there’s no way in hell you can replace every existing device for one with more restriction, as each consumer would have to physically buy a *new* physical device to replace their less restricted one… it’s not a simple matter of updated software…..

        As for your PRO comments, angryV, do note that Dave never brought that up.. nor is he a musician.
        As for me, with all I said about PROs in that other thread, I still think they provide a very valuable function, and are necessary, though I dont wish to rehAsh, its more about the restrictions on such along with the rate courts whom decide the pricing. “but you don’t have to…” , let me as you A.V., do you have any original songs?

      • *and beyond convincing every single consumer to buy a new audio device, you would have to either outlaw the existing devices and/or convince every device manufacturer from here on in to eternity to implement your new bitcoin-like technology….
        ….that is why the bitcoin idea won’t work…

  • ” Kim Schmidtz himself has no future in American politics in any literal sense and is unlikely to be Hilary’s “biggest nightmare,” if Mrs. Clinton decides to run in 2016. ”

    In reality-land I think Barry Sanders and Elizibeth Warren are going to be Hillary’s biggest hurdle in getting the Dem. nomination. Kim Dotcum likes to think he is more important than he really is. He is yet another name that people will forget as soon as he’s thrown into the dungeon he so deserves.
    The only example he provides is yet again: steal enough money and you’ll have legal defenses that keep you in your stolen mansion for years (or at least until you have attorney fees that you can afford), while the kid who steals a candy bar or cigar gets shot dead on the streets.

    As for the eff lady, she is almost as delusional as Kim Dotcum…

  • I really don’t think its about technological solutions. It’s about not accepting every technological change as inevitable (and, no, that’s not the same as impeding progress)

  • @David – The value of these companies is based on usage. When that usage shifts dramatically, thus goes the value and influence of said company. That is what I mean when I say we are not powerless. There are many examples of consumer habits influencing BILLION dollar companies to completely shift gears. The more people are made aware, the more control they will have. It is not an easy road, but it certainly is also not an impossible one.

    @sf46 – “Those things are big problems and are costing lots of good, talented, hardworking people lots of money (with farther reaching economic costs, as those people have to change their personal economics to meet new monetary realities) all while often mainly making money for slimebags like Kim Dotcom.”

    Those things are also making a LOT of money for independent content creators. They are granting ACCESS to otherwise impossible to get exposure. Are they the perfect solution? No. But neither are they the primary enemy of independent content creators.

    My point is not that Kim Dotcom is legitimate. My point is that sharing services are not the primary reason for less money in the hands of independent creators. As a musician. If I were pushing enough units to make a living. I would have to have some sort of exposure and reach, correct? A certain level of notoriety otherwise how would I make any sales at all? Consumers have access to MORE entertainment. Is that a good thing? For the consumer it is. For the artist? No. It isn’t. No matter how the consumer is getting that content.

    Legitimate or not, more choices means less potential for the individual creator. But that goes for anything. I can see the perspective that in a competitive market, every sale counts, now more than ever. That reality is not lost to me. And as I have continuously stated, keeping the creator in control of their work is paramount to them making money. And THAT is where I tend to focus my thoughts in regards to a solution. How do I, as a musician get my stuff out there. My motivation is not money. My motivation is expression. I made something, I would like as many people as possible to hear it. For ME, sales are secondary. That does not mean that I think everyone should be giving away their stuff for free. But I also can’t ignore the opportunity I have to engage an audience via technology now as opposed to 10 years ago.

    From my perspective, the amount of units I would have to sell in order to make piracy an issue, would also be enough to make piracy a non issue, as I would almost certainly be selling more than I was “giving away:, That is not to suggest it is the case for everyone. But I have a hard time reconciling an artists successful enough to do nothing but make music, with an artist who can’t pay the bill because of a torrent site.

    And no, I have never used such a service. Hell, I don’t even use Spotify or Pandora. Even though my music is apparently on both services.

    @Audionomics – As I said. The principle behind a chain of ownership intrigues me, but I do not have the technical understanding to implement such an infrastructure. One possibility is to eliminate ownership of digital media altogether. Consumers would HAVE to listen through a service when online. In that case the PRO could partner directly with a technology provider and take 100% control of the media. All plays would go through a single hub. That would guarantee royalties to the creator. Again, waaaaay easier said than done. The only way to guarantee rates is by controlling the output. IMO.

    As for your question. Yes. My band has released two albums(three if you count an acoustic retrospective) and we are in the process of writing a third. I have written both music and lyrics for about 5 songs in our catalog, otherwise we have done everything in a collaborative manner. Why do you ask?

    • I don’t think anyone has any issues with someone using a torrent site or youtube to distribute or make known their work. That isn’t the issue at all. What people are saying is that some 3rd party, you or I do not have any right to distribute or make known their work for them. What is so difficult about that? It is something you should relish as the removal of all those unwanted files from the torrent sites and youtube will only leave the places less crowded, so those that want to use them won’t be crowded out by the popular acts.

      As for music, the digital age has dumbed it down to soundbites. For me an album plays for 45 – 70 minutes, its a journey. Yes there are favourite tracks but mostly they are moments of punctuation within the experiential whole that is the album experience. The individual track.song is little more than a postcard, a souvenir of the experience.

    • people don’t stumble onto new stuff for the most part.. there is a ton of money and or time spent in promotion to get people listening to new music. if you are only relying on ‘well I made it, and put it on the web, now people will hear it’ you are not going to have an audience. Streaming and heck, even file-sharing sites arent “discovery” platforms, people know and look for specific things for the most part, and even if they didnt what makes your “file” stand out among the billions of other files on these sites? That is why your constant “exposure” refrain rings hollow.

      A.V. -“I have written both music and lyrics for about 5 songs in our catalog, otherwise we have done everything in a collaborative manner. Why do you ask?”

      Let us assume one of those are a good tune. I can record and release any one of those songs (legally) without your permission. Lets say my version is actually popular, and no one has ever heard of you , which happens.. and I “just want exposure” and only stream my recording… you could have the most popular song, make the streaming service a ton of money and add a ton of value, but not see a physical dime (ok, you might see an actual dime, but not much more..). Online databases for songs are notoriously horrible, and there are no liner notes w/streaming. you now have a charting song and still have zero exposure (or money). Even if there was mentions of you, nobody know you anyhow as even with cd liners, people dont understand what all those credits meant…but at least there was a payday with downloads or physical. And thats all assuming the people who covered your tune went the legal route, and didnt just upload to TPB for “exposure”…

      • So someone records a version of our(there really isn’t a “me” in terms of how my band handles credit/money) song. They don’t sell it, which would be illegal due to copyright, but it does get released to streaming services. That version, becomes popular and starts generating revenue because of plays. Am I understanding your statement correctly?

        Assuming I am, I have mixed feelings about this. This is my honest opinion of how I would feel in that scenario. And it is just that, an opinion.

        My song. The one we recorded belongs to us. It is our interpretation of our work. The derivative work, the one created by someone else, IMO primarily belongs to them. It is not OUR song that became popular, it is theirs. Yes technically we wrote it, but I would be a hypocrite if after all of my posts I did not at least acknowledge the fact it isn’t my work generating all of the plays, exposure, etc.

        Yes we came up with the idea, but our version, in your scenario is not the one that has taken off. And, as I said, this causes mixed feelings.

        I can honestly say I am not sure how I would proceed in that situation. One of our albums is copyrighted, the other is in the process. I honestly don’t know.

      • Coincidentally, I’m currently getting linkedin requests from someone I licensed a photo to several years ago. Now they told me who the publisher was (Elsevier) and the title of the new edition of the book, but I wasn’t paying that much attention, it was academic, the photo I’d taken whilst walking one evening after work, so I said just send me a pdf of the chapter it appears in. Amazon sells the book for $300. I doubt the ‘exposure’ amounted to a bean. I’m a lot more careful about such things nowadays.

      • AngryVillager says “So someone records a version of our(there really isn’t a “me” in terms of how my band handles credit/money) song. They don’t sell it, which would be illegal due to copyright..”

        Actually, if you published the song, you don’t have a say in who covers it whether for private OR commercial purposes. It would be legal for anyone to cover any of your published songs as long as you published them (and not some pirate). ‘publish’ means anything such as posting it online…

        It wouldn’t be “illegal due to copyright” as long as they cleared the rights with Limelight or Harry Fox.
        To be clear, anyone can record their own version of your song as explained above, they just can’t use any of your sound files without your permission….

      • absolutely, James.
        To be clear, there is no right of refusal. Just because you need to clear the rights, ie pay the mechanicals, A.V. could not refuse to grant anyone the right to cover his songs.. in fact, he isn’t even in the loop except for the letter of intent and the required accounting updates if any. If all the people who cover his song make it popular, he could have the most popular song on the planet and still need a day job if the main portal of release is through streaming sites rather than dl.

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