Tag: copyright reform

Show Me the Innovation

Now that the very early stages of copyright reform are underway with preliminary hearings on Capitol Hill, I think it’s worth revisiting the question as to why the conversation is happening in the first place.  There are, of course, specific adjustments to the system that ought to be looked at with regard to media & information distribution in the digital age, but these details are often hard to identify amid the clamor of broad, public messaging that has been pumped out of the Silicon Valley PR leviathan for more than a decade.  Instead of specifics, much of the testimony, editorials, and even academic theory can be boiled down to two generalized assertions:  1) the copyright system no longer serves the public interest overall; and 2) the copyright system stifles innovation, which is technically a premise for the first statement.  Since I began paying attention to these issues, I have encountered variations on these declaratives more times than I can count; and each time I do, I look for the innovation being stifled by copyright but can’t seem to find it.  In fact, if we assemble a few fragmentary glimpses of Google and Silicon Valley, a mosaic begins to take shape and forms a picture that is not exclusively innovative at all.

Innovation is one of those catch-all terms that demands context in order for it to have any discernible value. Eli Whitney didn’t necessarily intend to foster a demand for African slaves in the American South, but both slavery and the war it spawned were consequences of his Cotton Gin.  (As a side note, Whitney’s patent was overwhelmingly ignored because he wanted too much money for the simple machine, so IP theft also had a hand in expanding the slave trade and the Civil War.)  But, if the copyright system, which has already yielded more than two centuries of tremendous social and economic benefit, is now in fact stifling innovation (as Big Tech insists that it is), we should demand specifics as to exactly what is being stifled, how it’s being stifled, and who would be the beneficiaries of any proposed un-stifling to be undertaken by congress. The last part is easy to answer; Silicon Valley corporations benefit in a system with weak intellectual property laws — or at least they do now that they’ve already built multi-billion-dollar businesses from patented technologies — but the overall benefit to the public of scaling back these laws in the name of vaguely described future “innovation” is questionable.

Assuming we must rationally define innovation as something that fosters prosperity, then a view of Silicon Valley in general, and Google in particular, makes clear that we cannot unequivocally say that their brand of innovation is always a boon to American or universal well being. Yes, there are many businesses made possible by the internet, but this does not mean Google & Co. get all the credit for this entrepreneurism; and neither should we take at face value their claims that IP laws are somehow a threat to  such enterprises. Moreover, the leading web companies reveal a culture that belies the kind of universal humanism they tend to preach when they want to rally the public to support their political agendas.  This article in the Daily Beast paints a pretty clear portrait of Big Tech as a new American oligarchy that consumes much, controls unprecedented, consolidated wealth, and does not contribute a great deal either to the US or to foreign economies.  As a companion piece, this article from The Guardian (shared by a regular reader) reveals a rather disturbing anthropological manifestation in which the minority population of Silicon Valley employees live a detached existence from their Northern California neighbors, with Facebook employees shuttling in private, luxury busses between the city and their corporate cloisters where they enjoy subsidized haut cuisine, barber shops, and massages as part of the working environment.  Viewed together, these two shards in the mosaic already begin to project a picture antithetical to the grand, social equalization these wizards claim will be the inevitable byproduct of their monastic labors on our behalf.

Looking at some other pieces in the mosaic, we want to be very careful not to let the word innovation become some new PC term for criminal, unsavory, immoral, or meaningless endeavors just because they’re based in web technology.  For instance, Wired offers this detailed account describing Google’s role in “innovating” the sale of millions of dollars worth of illegal and counterfeit drugs.  The story describes exactly how federal agents, working with a con-man-turned-cooperator,  conducted a sting operation that led to Google settling the case against them for a half-billion dollars.  That’s a fine that exceeds the annual revenue of nearly all the largest businesses that depend on copyright and patent protections; whereas for Google, I imagine it’s the snack budget for the programmer pool.  In this story at Music Tech Policy, we see that only under pressure from people like Rep. Carolyn Maloney (D-NY) did Google back off the inclusion of the app Utoopi on its Android phones.  Utoopi Combines geo-location with escort services in order to “innovate” prostitution, which is known to be a primary driver for “innovating” contemporary human trafficking.  And, of course, we had the Google Streets bugaboo, in which the company was charged with “innovating” unauthorized access to private data from people’s computers through open WiFi while driving around in their “innovation” buggies taking photographs.

Yet, for all these shenanigans, Google employs fewer than 40,000 people worldwide, if we exclude the Motorola division.  At the same time, Facebook employs fewer than 5,000; Twitter employs just about 1,000; Pandora employs fewer than 500; and Reddit employs about 20.  Naturally, these numbers alone do not reflect the gross economic value of the internet, which has fostered many start-ups in many lines of business; but the premise being asserted by this elite group of dominant companies is that IP laws like patents and copyrights are a barrier to even more untapped, economic value. The message being sent is that congress must revise these laws so that we the people can benefit.  Start to sound familiar?  “Lift these environmental regulations and drill, baby, drill!”  But at least in that case, there really is oil in them thar hills, and we can debate the pros and cons of drilling for it. When the internet industry and its paid advocates say copyrights and patents stand in the way of economic opportunity, it’s a double-lie.  First, they’re simply serving their own interests; and second, there is no solid evidence that these long-standing rights of creators and inventors inhibit anything that can be called real innovation.

If we are going to allow the internet industry to speak as loudly as it does on the subject of legislative reform this important, their track record on social responsibility should be factored into their testimony. In short, when the web gets ugly and reveals its capacity to enable bullying, defamation, illegal and counterfeit transactions, human trafficking, incitement to terrorism, organized misogyny, and mass copyright exploitation, the owners of these sites and designers of these systems consistently claim the amoral high ground of neutrality. “We are just the highway,” they say, “and we cannot be responsible for how people drive.”  And that’s fair enough to an extent, but not when these companies profit, however inadvertently, from exploitation or from some other form of human suffering, and especially not when these same companies presume to take credit for all the social good derived from the internet.  It seems to me they want their cake, your cake, my cake, and would like to eat it all.

So, operating under the premise “if it ain’t broke, don’t fix it,” congress should begin with what already works, and has worked for a very long time, in the copyright system.  In fact, this week’s WSJ reports, “In the past two decades, intellectual property has emerged as the principal driver of economic growth in the U.S. and other developed countries. IP is now, in many respects, the new global currency.”  So, if we are to revise this system at the urging of this small but vocally powerful industry, legislators should get its Cuba Gooding Jr. on and insist, “Show me the innovation.”

Copyright Principles & Consensus?

Yesterday, the House Judiciary Committee held a hearing meant to lay some of the groundwork for overhauling copyright law in the United States.  The title of the hearing is “A Case Study in Consensus Building: The Copyright Principles Project,” suggesting that the “project” is about establishing premises and ground rules for how the debate might be framed going forward.  I suppose because the word consensus is also part of the title, several lawmakers and the witnesses called to testify repeated the rhetorical question as to why debate about copyright has become so contentious.  For authors and creators who actually use copyrights to forge professional careers and build businesses, this feint at decorum will elicit a justifiable sneer because it’s kinda like saying, “All someone did was spit in your eye, and I don’t know why we can’t now have a civil discussion about the principles of expectoration.”  Of course, there weren’t any authors or creators present at this hearing, and that in itself has been cause for concern.

For the lawmakers who asked the question in earnest as to why the debate on this issue can be so vituperative, they need only have paid close attention to one subtle but significant choice of words in the testimony of Professor Pamela Samuelson when she was asked about the matter of online piracy.  Samuelson, the lead author of The Copyright Principles Project, stated that individual artists are at “some disadvantage” in protecting their rights on the internet.  Some disadvantage?  Like a lone Boy Scout would be at some disadvantage fending off a mechanized armored division.  The thing about consensus is that you can’t ask for it if you’re going to propose a foundation of “principles” predicated on lies and half truths.  The correct answer to the question asked of Professor Samuels is “Individual artists don’t stand a chance of protecting their rights on the internet; they might as well shout their grievances into the next passing hurricane for all the remedies and resources at their disposal.”  Had the good professor said something remotely descriptive of the true nature of this problem, then perhaps we can have a big ol’ debate as to whether or not anybody cares, as I suspect many lawmakers and fellow citizens do.  Keep in mind that the scale of the problem as I describe is not even disputed by some of copyright’s most vocal antagonists and piracy’s most vocal supporters.  “You can’t stop it, don’t try” was a familiar mantra during the dustup over SOPA, and with just one BitTorrent site claiming three billion page views a month, they may be right. But let’s not equivocate as to what creators are up against as we presume to “build consensus.”

This past March, The Wall Street Journal published a profile of the anti-piracy unit within NBCUniversal, and even this group of dedicated professionals funded by a major corporation can hardly keep up with the rate or volume of unlicensed distribution of their properties.  By contrast, independent filmmaker Ellen Seidler has documented in great detail exactly what the experience is like trying to protect just one small, niche film from being hijacked and monetized by criminals and Google.  Lawmakers should be aware of the facts and aware of the obfuscation, however subtle, being employed by academics like Professor Samuelson.  At the same time, the general public should be aware that not every idea that comes out of an academic’s head makes it automatically a good idea no matter how prestigious their company.  In academia, one doesn’t make a name for oneself by defending the status quo, but rather by bucking a system, even going so far as to identify “problems” within a system that may not be problems at all. Academic study is critical to a progressive enriched society, but we should never underestimate the motivating factors of ego and self-promotion and grant acquisition when reading between the lines.

On the subject of what is supposedly wrong with copyright, the other theme of the day in addition to why we can’t just all get along, was a substantial amount of griping and joking about complexity.  Copyright law is too complex, say the witnesses and a few legislators, and I have no doubt that it is complex and maybe too complex in certain areas that require streamlining.  But as a general rule, is copyright law more complexly burdensome than any number of other laws?  Isn’t that why people study the law in challenging post-graduate schools and then have to pass a really hard test before they’re allowed to practice the discipline professionally?  More to the point, though, if technology has made the world of consuming content more complex, is it disingenuous to suggest that revising copyright to balance the rights of authors and consumers in the digital age would not produce an even more complex set of statutes?  And if more complexity is required, so be it; but that’s not what’s being proposed.  What’s being proposed, at least by Samuelson & Co., is to simplify the legal system, which sounds good in theory; but it seems to me that the only way to “simplify” a law in an ever more complex world is to eliminate key functions of that law.  And since copyright’s key functions are the protection of authors and inventors, this begins to echo David Lowery’s distillation of the internet industry agenda:  “All your data are belong to us.”  No question that’s very simple.

So, again, the premise issuing from the chamber and reverberating on Twitter is predicated on smart sounding academic theory (i.e. simplifying a law) entirely untethered to a real or pragmatic world view.  The premise being proposed is that copyright ought to be easier to understand for any layman because it is now “everyone’s issue” because in the digital age, “we are all authors.”  This was the oft-repeated theme of live tweets by Gigi Sohn, President and co-founder of Public Knowledge and echoed at least once by Mike Masnick of Techdirt.  Of course, the truth is that just because the internet fosters a lot of production of stuff, that doesn’t make us all authors anymore than corporate softball teams make us all ballplayers.  On my best day, I don’t write as well as many authors I admire deeply; and on my worst day, I’m better than many a citizen whose claim to authorship is the possession of a smart phone and a pair of thumbs. So one can sit in tech-industry funded ivory towers and ruminate over the proposition that a novel by Steven Millhauser is of equal value to the random bits of personal detritus shared on social media, but if we consider for a moment that copyright ought to be amended based on this childishly whimsical proposition, then we might as well start burning the libraries this afternoon.

Speaking of Mr. Masnick, he live tweeted that his blood pressure was being elevated by the hearing because, as usual, “Congress doesn’t get the internet.” This is a familiar cheap shot available to anybody with an axe to grind.  One can start the sentence “Congress doesn’t get _______” and find any citizen or group to fill in that blank with their personal gripe du jour.  Of course it was very clear that certain lawmakers, including Hon. Collins, Hon. Chu, and Hon. Goodlatte, that Congress is not at all willing to automatically swallow unsubstantiated, academic theory as the sole basis for rewriting a legal system that has made the United States a leader in the professional production of creative and cultural works for more than two centuries. And had there been any creators asked to testify, they would have clearly demonstrated that academics like Professor Samuelson don’t know the first thing about the production of creative works or the nature of protecting them.  Somehow, all this translates into the failure of congress to understand the internet, but maybe it’s not that so much as some of the ideas being presented are kinda dumb and transparently self-serving.

On that last point, as more hearings like this one are convened in what will surely be a years-long process toward some kind of reform, we should not forget who the monied interests are that have the most to gain from weaker copyright laws.  The premise most often asserted in the name of “consensus” is that we cannot allow supposedly outdated legal systems to stand in the way of innovations that benefit society.  Again, this is a perfectly reasonable sounding position, but there should not be a lawmaker of any party who does not include economic growth in his or her definition of innovation, and this recent article in The Daily Beast should serve as a caution in light of the fact that intellectual property supported jobs still number in the tens of millions.  As the article’s author Joel Kotkin points out, “Today’s tech moguls don’t employ many Americans, they don’t pay very much in taxes or tend to share much of their wealth, and they live in a separate world that few of us could ever hope to enter. But while spending millions bending the political process to pad their bottom lines, they’ve remained far more popular than past plutocrats, with 72 percent of Americans expressing positive feelings for the industry, compared to 30 percent for banking and 20 percent for oil and gas.”

Copyright may be a little hard to understand, and some members of congress might not “get” the internet, but it doesn’t take a law degree or expertise in code writing to know what a contemporary Robber Baron looks like, does it?