Tag: Cory Doctorow

Really, Cory? Then how the hell did we get to now?

“One of the reasons Hamilton found the word democracy so offensive was because he realized that the vast majority of American citizens had not the dimmest understanding of what he was talking about.”  – Joseph Ellis –

Proving that it is easier to be a futurist than a historian, Cory Doctorow contributed a bit of soothsaying to a New York Timesseries the editors describe as follows:

… science fiction authors, futurists, philosophers and scientists write Op-Eds that they imagine we might read 10, 20 or even 100 years from now.

So, Doctorow projected himself ten years into the future, gazed back at the present, and decided that the heedless error we are making is not ignoring climate change or precipitating a completely avoidable war with Iran or even committing mass child abuse at the southern border.  No, what Doctorow considers the potential misstep of the moment could be a decision to amend the policy of zero-liability for web platforms.  That will be the decision we will regret ten years from now:  telling internet companies that they may no longer give people the finger, even when they are directly responsible for injury.  He writes …  

“Bit by bit, the legal immunity of the platforms was eroded — from the judges who put Facebook on the line for the platform’s inaction during the Provo Uprising to the lawmakers who amended section 230 of the Communications Decency Act in a bid to get Twitter to clean up its Nazi problem.”

The only point on which Doctorow and I might agree is that the reaction against Big Tech—including the chatter about regulation and possibly amending the liability shield in Section 230—is that lawmakers, the press, and the public may be responding to the wrong stories.  The efficacy with which Facebook removes unpalatable content is not the major issue. For one thing, they apparently already filter out so much garbage we never see that some of the moderators who dosee it have suffered from PTSD.  Additionally, I would agree with Doctorow that so long as these platforms are used, a certain amount of ugly is going to persist, and we are going to have to learn to deal with that as a society.

But the first order of business in addressing the immunity paradigm for websites is actually fairly low-hanging fruit from a statutory perspective.  As discussed in this post, there are websites that trade in material that, in any other context, would be sued out of existence, yet remain shielded for no reason other than the fact that they operate online.  Sites that purposely host material that is libelous, defamatory, inciting violence, vengeful, infringing, etc. is not comparable to Facebook and Twitter stumbling in their efforts to maintain civil online communities.  And Doctorow is being ridiculous when he lumps it all into one regulatory narrative. 

Individuals and businesses who are injured online through conduct that is unquestionably illegal in real space should not be left to crash into the Section 230 wall when pursuing their legal rights to relief.  It would be a major step in the right direction, and relatively easy legislative work, to make clear that websites that intentionally trade in material, which would ordinarily be actionable, no longer enjoy automatic immunity from litigation.  Done.  No draconian censorship needed, as Doctorow seems to imply. 

Why Not Tweak the Experiment?

Meanwhile, Doctorow can hardly claim that the laissez-faire approach to the internet has produced many of the benefits he seems to think will be lost if we revise our policies.  As I say, it is easier to be a futurist than a historian, and he seems to have forgotten history when he writes, “Democracies aren’t strengthened when a professional class gets to tell us what our opinions are allowed to be.”  

Perhaps not what our opinions are allowed to be, but that’s Cory being Cory—sowing fear of censorship rather than considering the more subtle effect the internet has on the valueof opinion-making.  It is not merely chance that the rapid expansion of “internet culture” coincided with the erosion of trust in professionals (i.e. experts), who have some damn good reasons to recommend what our opinions oughtto be on a number of important topics.  The aforementioned shrugging at climate change comes to mind.  

The democratization of opinion-making, leading to the inevitable folly that all opinions have equal value, may be seen by historians as a major catalyst to explain how the putative leader of all democratic republics, the United States, managed to achieve its present state of freefall on such a wide range of policies.  At no time in living memory has the federal government been manned by such a large group of temp-job hacks without a single credential to recommend them for the departments they run. 

The most powerful and extensive military force in the world has not had a legitimate Secretary of Defense since the day seven months ago that one of the most qualified commanders we have resigned because he considered the administration’s policy too incoherent to follow.  And whether they will admit it publicly or not, every serious Republican on the Hill paled at the news of Mattis’s departure but would not say so for fear of being instantaneously thrashed on Twitter by mobs of citizens who haven’t got a clue what they’re talking about.  If the free-for-all internet is so good for society, Cory, how and the hell did we get to now?  

I know what Doctorow and his friends like to say. Don’t blame the internet for the degradation of statesmanship, intelligence, common sense, and decency.  But why not?  The relatively novel introduction of social media, adding an unprecedented scope of direct democracy into the process, has been an experiment.  It is neither logical to assume, nor evident to observe, that the experiment has yielded only positive results.  So, we should not be afraid to adjust the conditions of the experiment.  I can certainly imagine looking back ten years from today and regretting plenty of policy decisions, but I don’t think holding internet companies responsible for their actions is going to be on that list.  

Jeers of a Clone: Doctorow Lies About the CLASSICS Act

If Cory Doctorow writes an article about copyright, “it’s only there trying to fool the public.”

For instance, his recent missive about the CLASSICS Act in the venerable Boing Boing (which I assume is the sound inside its editors’ heads) is a fabrication rich in offensive overtones. Not only does he repeat the fiction that this bill extends copyright terms for pre-1972 sound recordings, but he actually invents a legislative process out of thin air.

As explained in more detail in this post, the CLASSICS Act is relatively narrow legislation that would allow musical artists who recorded songs before February 15, 1972—many of them are still living—to receive royalties in the current market for certain types of digital broadcast performances.  Quite simply, an artist with a song recorded after that date is eligible for royalties (e.g. from satellite radio), but the same artist with a song recorded before that date is ineligible for royalties for the same use.  In testimony supporting CLASSICS before the Senate Judiciary Committee, singer/songwriter Smokey Robinson presented the following:

“…some digital radio company lawyers found a loophole.  Those corporate lawyers asked, ‘What if we don’t pay for classic pre-72 recordings under the new federal license because they are covered under state law, and then what if we argued state laws are too old to cover digital radio?’  Then, they figured, they could profit off some of the most valuable recordings of all time, paying legacy artists nothing at all.”

Because a good story needs a good villain, Doctorow enigmatically cast Senator Orrin Hatch in this role and reported that the senator is personally responsible for combining CLASSICS with the otherwise-popular mechanical licensing bill known as the Music Modernization Act. This is imaginative to the point of incoherence. CLASSICS was in fact merged with the MMA and the AMP Act under the aegis of the House Judiciary Committee to form an omnibus music copyright bill, which passed the full House in April with an extraordinary tally of 415 to 0. It then moved to the Senate where it acquired 17 bi-partisan co-sponsors.  If for no other reason than the fact that Hatch is a member of the wrong chamber, he had nothing to do with “adding” CLASSICS to the MMA.

Perhaps Doctorow needs to review the whole House-to-Senate legislative process, but nearly all copyright legislation begins in the House Judiciary Committee.  Meanwhile, Cory’s style of blatant propagandism is especially obnoxious coming from pundits who imagine themselves champions of democratic principles in the digital age.  By “Hatching” this bogus narrative, he obfuscates the real process whereby a bill like CLASSICS emerged after several years worth of hearings held in multiple cities, and after gathering testimony from a variety of stakeholders. Even a rudimentary knowledge of Congress belies the absurdity of claiming that Senator Hatch personally—not to mention belatedly—has been pulling strings on Capitol Hill for his pals Smokey Robinson and Dionne Warwick.

In fact, to emphasize Doctorow’s hypocrisy, readers might notice that the URL for his “article” doesn’t even mention the legislation but is simply titled “orrin-fucking-hatch.” Why? Because Boing Boing isn’t a source of information.  It’s a click-bait site using SEO as a fly-catcher to grab readers already opposed to Senator Hatch on policy unrelated to music copyright.  I don’t have much in common with the senator’s views myself, but Doctorow arrogantly piling garbage on this bonfire of bullshit should be disabused of any notion that he’s doing the Republic any favors.

“The records of the 50s and 60s aren’t called ‘classics’ because of their age.  They’re called classics because of their greatness.  They still resonate today.  They add value to our lives and bring people together.  They define America.”  — Smokey Robinson —

In Doctorow’s version of the CLASSICS Act tale, not only is a senator authoring bills in the House, but he is allegedly also extending copyright to 144 years for all pre-1972 sound recordings.  (This is like saying Cory Doctorow is entirely responsible for that alien attack in Poughkeepsie.)  As addressed in my earlier post—and in considerable detail by Terry Hart on Copyhype—CLASSICS actually leaves in place the same 2067 expiration date that exists right now for this body of sound recordings.

Nothing in the public domain is being re-protected, and no new ambiguity is being introduced that will adversely affect librarians and archivists.  To the contrary, CLASSICS would serve to clarify important protections for these institutions that only exist in the federal statute but which do not apply under state law.

Beyond the key facts being misrepresented, there is another dimension to the recent assault on this bill that is hard to overlook.  Many of the artists who stand to benefit from CLASSICS happen to be people of color because the period between the 50s and the 70s is the same era when artists of color gained wider mainstream acceptance in the market. (Hell, if this were just the Ray Charles Act alone, it would be worth considering.)

When I think about the indispensable music created by artists like Smokey Robinson, The Supremes, Otis Redding, Marvin Gaye et al, and then contrast all those beautiful sounds against the whinging noise of Doctorow and his pals at EFF and Public Knowledge, the duplicity of these privileged, ivory-tower “activists” takes on a whole new shade of offensiveness.  It is truly fascinating to see Doctorow and his friends insist that the quirky history of sound recording copyrights must continue to disenfranchise this particular group of artists from a share in the revenue generated by certain corporations broadcasting their music.

That’s some bizarre logic coming from the same people who love to repeat the refrain that music copyright is irrelevant because the labels “always screw artists anyway.”  Not only is this talking point an oversimplified cliché, but in this context, it’s tantamount to calling the individual artists who have endorsed CLASSICS a bunch of liars about their own careers. Moreover, the critics who portray this bill as just another “gift to labels” fail to mention that the royalty split under the §114 statutory license is 50% to the recording owner, 45% to featured artists, and 2.5% each to non-featured vocalists and non-featured musicians.

I don’t like to insert race where it doesn’t belong, but in this case, the optics are little too blatant to ignore. There are plenty of opportunities for opinion, debate, and theory on the subject of copyright law, but here’s the meat-and-potatoes of the fairly uncomplicated CLASSICS Act as Robinson put it:

“Now, I fully recognize I have been blessed and I’ve been lucky. But for many legacy musicians and their families, this issue is far more urgent. I’m 78 years young, but many artists I came up with are unable to tour or make appearances or record new material to earn a living. They should be able to rely on income from the recordings used by digital radio companies to attract listeners and earn profits. For so many, especially at this point in their careers, this is how they make ends meet. It’s how they pay their mortgage and their medical bills. It’s how they feed their families.”

Are Doctorow and his entitled entourage really comfortable saying Robinson is just wrong? And then further twist this improbable narrative by introducing Orrin Hatch as the legislative knife in Smokey’s hand? I think Cory and Friends should find something else to boing-boing about, and anyone with a basic sense of fairness should “second that emotion.”

IP Skeptic Doctorow Notices a Problem

Last week, Cory Doctorow reported on Boing Boing that Amazon has a growing counterfeit products problem on its hands due to a change in company policy that allows Chinese suppliers to sell direct on the platform, bypassing domestic importers. If accurate, the issue itself is not very surprising. What is surprising is that Doctorow does not acknowledge—at least not in this article—that the counterfeit outbreak he describes is an inevitable result of the anti-IP agenda he has personally supported for years.

At some point, one must toss that copy of The Declaration of the Independence of Cyberspace into the digital dumpster and accept that the internet is not a magical cornucopia whose bounty will flow only so long as it operates beyond the legal limits of the physical world. To the contrary, the virtual increasingly has significant influence on the tangible. Doctorow describes the following:

“In late 2015, there were a spate of warnings about knockoff sex toys on Amazon made from toxic materials that you really didn’t want to stick inside your body. Now this has metastasized into every Amazon category. Sometimes its clothes and other goods that have weird sizing, colors, or poor construction. Sometimes its goods that generate no complaints, but are priced so low that the legit manufacturers can’t compete, and end up pulling out of Amazon or going bust.

Or it can be the worst of both worlds: super-cheap goods that make it impossible for legit manufacturers to compete, coupled with low-quality knockoffs that generate strings of one-star reviews from pissed off customers, meaning that even if the fakes were chased off the service, the sales will never come back.”

Sound familiar? Doctorow observes that Amazon is making money on transactions that may defraud—or even endanger—consumers while simultaneously causing permanent economic harm to legitimate suppliers. Isn’t that what many of us have been saying would happen when IP rights are not enforced online—that the “free culture” fiesta would extend beyond the supposed “harmlessness” of media piracy and eventually manifest as physical goods that can maim, poison, or kill people? Or at least just rip them off?

Unfortunately, the broader battle over IP protection on internet platforms has been distorted by a naive belief in the harmlessness of pirating entertainment media and the assumption that IP only serves the big conglomerates who produce those works. This feeds a sense that IP in general is just a “protectionist” regime for entrenched corporations to slow innovation. When it comes to physical goods, though, suddenly people begin to notice that protecting IP happens to protect consumers. This is why for instance trademark infringement is not a minor transgression. The knock-off Polo shirt won’t get anyone killed, but the knock-off Graco car seat certainly could; and when one distribution service like Amazon is vying to be the “Everything Store,” the possibility for widespread hazard becomes clear.

Presumably, Amazon will recognize the potential loss of consumer confidence if their counterfeit problem grows. The company could take mitigating measures akin to the effective, anti-fraud practices employed by eBay, which weighed heavily in its favor in a 2002 litigation with Tiffany over fraudulent products being sold on that platform. That Doctorow writes the following, however, is the real hypocrisy that needs to be addressed:

“Amazon is bending over backwards to refund customers who get bad fakes, but either can’t or won’t stem the tide of fakes themselves (I run into counterfeit editions of my books on Amazon all the time). It may be that it’s more profitable to offer refunds to customers who get bad products than it is to police the millions of SKUs that are pouring in now that Chinese industry has a direct pipeline to Amazon’s customers.”

Doctorow is criticizing Amazon for tackling the counterfeit problem one infringement at a time while failing to take broader measures to “police” its own platform to “stem the tide.” Is that not a familiar refrain copyright holders have been singing about mass infringement of their works on platforms like YouTube? I think it is. Either these platforms are under the control of their owners or they’re not. Either we want a digital market that protects suppliers and consumers, or we don’t. And we can’t have the former without shedding this naive premise that the technology itself obviates the need for intellectual property enforcement, or that IP is exclusively a barrier to access, information, or innovative services.

This subject actually refers back to the first article I wrote about any of these issues—one that appeared in December 2011 in Stars & Stripes supporting SOPA/PIPA because of their associated provisions designed to mitigate counterfeit products entering the military supply chain. You remember SOPA, right? Certainly, the cadre of “digital rights” activists won’t let you forget it as they chronically insist that all proposals to protect any kind of IP online are basically SOPA in disguise. (See Guide to Critiquing Copyright in the Digital Age).

Likely, nobody remembers that Tittle II of SOPA contained anti-counterfeiting provisions as did a companion bill to PIPA called the Combatting Military Counterfeits Act, authored by Sheldon Whitehouse (D-RI). These provisions and proposed amendments would not be protecting US consumers from Amazon-purchased counterfeits more than the existing statutes (Title 18) already do, but the bills did go further to protect against certain types of counterfeiting, and both bills expanded the principle that trafficking in counterfeits online poses a serious threat to consumer safety.

As Doctorow’s observations forecast, someone’s eventually going to get hurt. And unfortunately, that’s often what it takes for people to demand any kind of action. Or we could change the conversation before that happens.