Tag: copyright

Copyright Advocacy in Turbulent Times

copyright war

It is admittedly difficult, maybe even a bit ridiculous, to think about a policy matter as arcane as copyright law when the headline story of the moment is an attempted coup d’etat—let alone one fomented by the President of the United States and endorsed by some Members of Congress. But against the backdrop of existential threat from within, I am also reminded why I believe a subject like copyright is so important:  first, because it exemplifies the hard truth that our democracy is built on fragile principles requiring careful and persistent stewardship; and second, because it expresses the almost quixotic hope among the founders that the nation might eventually be great enough to produce art and culture. In a different post, I cited this quote from a letter written in May of 1780 by John Adams to Abigail:

 I must study politics and war, that our sons may have liberty to study mathematics and philosophy. Our sons ought to study mathematics and philosophy, geography, natural history and naval architecture, navigation, commerce and agriculture in order to give their children a right to study painting, poetry, music, architecture, statuary, tapestry and porcelain.

Although Adams could not possibly envision the modern, technological media that would emerge in the late nineteenth century, his allusion to such delicate arts expresses that aspiration toward an American greatness that could one day be a nation strong enough to indulge in creativity and invention. Yorktown was still a year and half into the war’s uncertain future when Adams wrote those words to his wife. Thirty-four years later, during the war that some historians call the “second American revolution,” an adversary occupied a congressional chamber in the U.S. Capitol, which was still newly under construction. On August 24, 1814, Admiral Cockburn of the Royal Navy sat down in the Speaker’s chair and in a mocking, parliamentary tone asked his troops, “Gentlemen, the question is, Shall this harbor of Yankee democracy be burned? All in favor of burning it will say Aye!”

This anecdote appears in the Handbook of the New Library of Congress, published in 1897 to commemorate the grand opening of the beautiful Beaux Arts building—today the Jefferson Building—situated just east of the Capitol with its copper dome topped by the flame of liberty. Although the story has a whiff of mythologizing in it, the account of Cockburn’s farcical, legislative theater as a prelude to lighting up the Capitol is at least a metaphorically fair reflection of England’s disdain for the American experiment when they burned down icons that they noted had been so hypocritically built with slave labor.

The reason that story was published in the Handbook of the New Library is that the precursor to the Library of Congress was burned by the British as the library within Congress—a narrow skylit atrium of hardwood and wrought iron, originally located along the west wall we see behind the stage where presidents are inaugurated. The new library, as envisioned by Lincoln’s appointed Librarian of Congress Ainsworth Spofford, was not only meant to be a house for the people, but a repository for the latent genius of the people by collecting copies of works deposited for copyright registration. As cited in the book I published in November:

Immediately following passage of the 1870 Copyright Act, the library received just over 5,700 deposits, or roughly one work for every 6,600 citizens; by the peak year (for the century) of 1893, the library received just over 48,000 deposits, or roughly one work for every 1,360 citizens. So while the population nearly doubled in this same period (from about 38 million to about 75 million), creative output increased roughly fivefold.

To put it mildly, the goons who ransacked the Capitol have no better understanding of what the leaders of the Revolution hoped for America than they were clear about what they might ultimately achieve with their grotesque misadventure on the Mall. By the end of the nation’s first century, Adams’s modest hope that the United States would be strong enough to be creative was beginning to be realized. And one terrible irony of the present is that in so many areas, real American greatness—its capacity to invent, to create, and to reinvent itself—was alive and well the day Donald Trump told the nation that all he could see was “carnage.”   

It is no coincidence that the corporations most responsible for the aggressive assault on creators’ rights are the same companies now finally understood to have played a substantial role in cultivating that alternate reality in which too many citizens now operate. Mischaracterizing copyrights as barriers to access has been a key ingredient in Silicon Valley’s magic elixir they sold to the world as the “free flow of information.” And for years, they simply refused to acknowledge that truly dangerous disinformation flows just as freely and twice as quickly.

I jumped into this debate almost a decade ago because I believe that an empowered population of authors and creators is essential for a thriving democracy. In 2013, I wrote, “To put it whimsically, a great bulwark against tyranny would be a class of unusually wealthy poets.” Having now witnessed a closer brush with tyranny than many would have thought possible in the United States, I am more committed than ever to that particular kind of whimsy.

NYTimes Reports: Propaganda Mills Have Replaced Local News

“You provide the prose poems. I’ll provide the war.” – Charles Foster Kane, Citizen Kane

You are probably familiar with “advertorials,” the relatively benign mash-ups of information and advertising offered by many print and online publications. For instance, a regional electric service company that sells generators might publish a page that reads a lot like an article suggesting some good reasons to consider a backup generator for the coming Winter. This blurring of editorial and marketing is usually transparent to the reader and, in most cases, the publisher explicitly states somewhere on the page that it is a paid ad.

But according to a story published Sunday by the New York Times, millions of Americans are now reading articles they perceive as local news, but which are in fact the equivalent of advertorials, paid for and directed by political operatives and major business interests. And the articles are in no way identified as distinguishable from real news. Focusing primarily on a network owned by former TV reporter Brian Timpone, the Times states:

Maine Business Daily [MBD] is part of a fast-growing network of nearly 1,300 websites that aim to fill a void left by vanishing local newspapers across the country. Yet the network, now in all 50 states, is built not on traditional journalism but on propaganda ordered up by dozens of conservative think tanks, political operatives, corporate executives and public-relations professionals, a Times investigation found.

The Times feature describes a content mill in which freelance writers—many who might otherwise be real journalists if the industry had not been gutted by the “free content” cluster bomb dropped by Google & Co.—are paid pennies on the dollar to write articles with very clear instructions as to what they should say about political figures or matters of public policy. Not only are the articles not local news in any sense, but a story aimed at, say, residents of Hanover, New Hampshire may be written by somebody sitting in her apartment in Atlanta, who has been paid between $3 and $22 for coloring in a few lines provided by “the clients.” How this is demonstrably different from Russian troll farms is a mystery to me, except that I imagine Russian trolls are paid better. The Times article states:

The network is one of a proliferation of partisan local-news sites funded by political groups associated with both parties. Liberal donors have poured millions of dollars into operations like Courier, a network of eight sites that began covering local news in swing states last year. Conservative activists are running similar sites, like the Star News group in Tennessee, Virginia and Minnesota.

The most compelling (okay, infuriating) example cited by the Times describes how hotel magnate Monty Bennett, a major donor to President Trump, used the MBD network to lobby for a coronavirus stimulus bill in a manner that ultimately garnered his publicly-traded company a $70 billion government bailout. The Times also reports that Mr. Bennett also paid for articles designed to influence at least some of the rhetoric vis-à-vis U.S. China policy in response to the pandemic.

So, if you find yourself wondering how millions of Americans can believe any of the crap the president says, or why they are not outraged when millions of tax dollars allocated for “small-business” support winds up in the accounts of major corporations, at least some of this mass cognitive dissonance can be explained by the amount of professional propaganda online that is so easily disguised as journalism.

Thanks entirely to the democratizing power of the internet, the political propaganda game is bigger business than ever. The hippie/libertarian mantra that “information wants to be free” (which was not even the whole quote) became the business model for Web 2.0. Thus, the alleged monopoly on “information controlled by mainstream news organizations” was the cocktail shaker where the anti-copyright narrative collided with our political divisions, added a heaping dollop of conspiracy theory, and poured forth a river of yellow journalism that might even disgust some dormant scruple in Mr. Hearst himself.

Whatever was imperfect about mainstream journalism, it was professional and, in general, there were standards. As I said in an older post, there was a lot to be said for TV news before the expansion of cable. It was mandated by law and a money-loser for the networks. Consequently, there was no reason not to separate the news division from entertainment and let the journalists do their jobs. Millennials and Zoomers have no knowledge of this era, and I daresay a few Boomers have forgotten it. The fact is that less was way better than more. As I said in that same post, we used to argue about what to do next or how to do it but not about what has already happened. The truth was not nearly so subjective for the vast majority of citizens.

What cable TV initially did to news, the internet did to everything, and at logarithmic scale and velocity. Yet, even as we watch disinformation trample sanity in the streets, the tech-utopians in the blogosphere and many of the executives in Silicon Valley still cling to the narrative that more speech is the antidote to bad speech. This premise was naïve when Justice Scalia articulated it in context to the Citizens United opinion, and it was no wiser when the major internet companies asserted it (with the help of the EFF, Techdirt, PublicKnowledge, et al) in defense of their revenue streams.

Now, as we watch Twitter and Facebook try to stuff the arms and legs of their genies back in their bottles, this Times story reveals why those efforts are almost laughably futile. Local newspapers have been wiped out by the “natural price of zero,” and in their place, propaganda networks serve heaping portions of cheaply-made garbage to a public that not only can’t tell the difference, but increasingly doesn’t even want to know. Confirmation bias may have achieved its apotheosis this week when the President of the United States, in the middle of a pandemic, called one of the world’s top infectious disease experts an “idiot.” And yet, the tech-utopians and speech absolutists keep saying more—more speech is the antidote to bad speech. Really?

Promoting Progress in the Digital Age

progress

Over the past three years since the internet industry first had to respond to the so-called “Techlash,” various comments on the theme that “the internet didn’t turn out like we expected” have generally shared one common flaw—a failure to acknowledge that the expectation itself was folly.  Whether parties are debating the amount of moderation that should or should not be done by a platform like Facebook; or whether breaking up the internet giants to foster competition would ameliorate the negative effects; or whether curtailing liability shields and treating platforms like publishers would do the trick, the big lightbulb that has not dimmed nearly enough is the original assumption that more people expressing, sharing, posting more stuff could only benefit the world.  All evidence points to the contrary.

When I started this blog in the Summer of 2012, I was partly motivated to advocate artists’ rights (copyrights) against the agenda of Silicon Valley, but I was also skeptical that the underlying assumption justifying the abrogation of those rights—that the information age was fulfilling its promise—was true in any meaningful way.  I asked at the outset whether the internet, as it was shaped since the 90s, was in fact empowering our better angels and ushering in a second Enlightenment grounded in science; or whether it was more effectively aggravating our worst instincts and undermining the pillars of republican democracy.  

In this context, I use the word science in its broadest sense to encompass the principle of a politics rooted in knowledge and reason, and this expansive reading is roughly how we have interpreted Madison and Pinckney’s use of the word science in writing the constitutional clause that gave Congress the authority to adopt copyright law.  This is why the tech-utopian assumption that the internet would bring about the aforementioned second Enlightenment is directly tied to the anti-copyright agenda. 

What authors of works see as the protection of their rights, the digital-age copyright critics characterized as barriers to access, rent-seeking mechanisms, and corporate gatekeeping, all of which results in what they call “artificial scarcity” of expressive and informative works.  Hence the critic’s logic that “free” digital distribution inherently abridges—if it does not simply obliterate—the original purpose of adopting copyright as an incentive to produce and distribute works of science.   

Bizarrely, this utopian narrative persists despite the fact that the United States has now arrived at an existential crossroads.  Mired in what some observers have gravely termed a “cold civil war,” we are officially a nation divided and sub-divided into separate realities; and relatedly, our so-called “age of information” is witnessing an unprecedented volume of brain-drain at the highest levels of government and public service.  While the owners of the major platforms double down on their idealistic talking points, the real world increasingly resembles the worst corners of cyberspace, complete with mob-like assaults on expertise, professionalism, and patriotism for the sake of what can only be described as the cult of Trump.  

In the space of two years, the Republican Party has abandoned its own core principles, sloughing off actual conservatives, and even going so far as to faithlessly attack the characters of career service professionals who have risked their lives for American interests.  And all because they are afraid of being the targets of a presidential tweet.  “We shall nobly save, or meanly lose, the last best hope of earth,” Lincoln wrote to Congress in 1862.  So, is it really conceivable that a century and a half since the Civil War, the party that used to call itself “the party of Lincoln” will allow the Republic to falter because an illiterate mean-girl wearing a tinfoil crown has a Twitter account?  Talk about going out with a whimper.

It is presently unavoidable to blame the GOP for this particular moment of history-altering fecklessness but also worth remembering that thanks in no small part to social media, my friends on the left helped loosen the bolts on many of the same girders this administration is now dismantling.  It may be shocking to watch Members of Congress disrespect public servants like Lt. Col. Vindman, Dr. Hill, or Ambassador Tayor, but it was not very long ago (2014) that, for example, Naval War College professor Tom Nichols, wrote for the decidedly-conservative Federalist, “I fear we are witnessing the ‘death of expertise’: a Google-fueled, Wikipedia-based, blog-sodden collapse of any division between professionals and laymen, students and teachers, knowers and wonderers – in other words, between those of any achievement in an area and those with none at all.”

To a great extent, Nichols seemed to be addressing a progressive-leaning constituency of netizens who, just like many latent Trump supporters, dismissed authority, expertise, and experience as “elitist.”  And they still do.  So let’s not pretend the GOP is alone in amplifying and weaponizing internet conspiracy theories like the “deep state.”  Mainstream media, the intelligence community, the military—even the U.S. Copyright Office!—have all been generically maligned as “the government” by disparate constituencies—as if the government did not already comprise thousands of people just like Vindman, Hill, and Taylor. 

By contrast, all that ebullient swooning a few years ago over data-dumpers like Assange, spraying their cans of sunlight, was naïvely perceived as leaking truth to power.  But what that illusion of access really achieved was an erosion of faith in the same professionals now having their patriotism questioned for political gain.  Likewise, bloviators like Reps. Jordan and Nunes may be the most prominent figures calling the mainstream media “puppets” and “enemies,” but let’s be real: the word mainstream as a pejorative has been used across the political spectrum to justify dismissing any career journalist who reports something that some constituency doesn’t want to hear. 

Suffice to say, the battlefield was well-softened for armies of disinformation trolls to start what former State Department official Richard Stengel calls a full-scale information war we are not winning:  

“Governments, nonstate actors and terrorists are creating their own narratives that have nothing to do with reality,” Stengel writes. “These false narratives undermine our democracy and the ability of free people to make intelligent choices. The disinformationists are aided by the big-platform companies who benefit as much from the sharing of the false as from the true. The bad guys use all the same behavioral and information tools supplied by Facebook, Google and Twitter. Just as Nike buys your information to sell you sneakers, the Russians bought your information to persuade you that America is a mess.”

Having dutifully fulfilled the trolls’ prophecy—because America is certainly a mess now—it is a pretty harsh referendum on the information age to watch the GOP respond to clear evidence that the President of the United States abused his office, asserting a combination of internet conspiracy theory and the eccentric proposal that Trump is too incompetent to break the law (see Sen. Graham comments).  That’s one hell of a rationale to pitch to the American people about their president, but it is astoundingly effective thanks to the “democratization of information.” 

So, no, the second Enlightenment did not happen. Science is now a choose-your-own-adventure game you can play on your mobile device, and the “illusion of agency”* provided by social media is being moderated by some over-caffeinated, professional rat-fucker in St. Petersburg.  All that being the case, perhaps the tech-industry activists who still insist that copyright is a gremlin sabotaging the promise of the internet, might find some better targets for their censure than the authors and artists of the world.

*All credit to Neil Turkewitz for this expression.

Unicorn illustration by julos.