Tag: EFF

EFF Doubles Down on Barlow Declaration

In December of 1775, the text of King George III’s October speech to parliament regarding rebellion in the American colonies arrived on this continent and was distributed among a people toying with idea of independence. Prior to this revelation, many citizens, members of Congress, and even Washington himself were not entirely sure that a new nation would or should be the desired outcome of hostilities that had begun in Massachusetts earlier that year. According to historian David McCullough, it was the paternalistic and heavy-handed tone of the king’s speech that galvanized American commitment to sever their colonies from England, write The Declaration of Independence, fight a long and bloody revolution, and then form a democratic republic unlike any nation that had ever existed.

221 years later, the Congress of that same nation passed a law called The Telecommunications Reform Act, and it was this law that supposedly inspired former Grateful Dead lyricist and co-founder of the Electronic Frontier Foundation John Perry Barlow to write and deliver his own Declaration of the Independence of Cyberspace at the World Economic Forum in Davos, Switzerland on February 8, 1996. The Declaration begins…

“Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.”

To the cyber-utopian, Barlow’s declaration remains a seminal work — so much so that the Electronic Frontier Foundation earlier this month announced that the “Department of Records” has newly released a limited edition, vinyl recording of Barlow reciting his words. The album is beautifully packaged with a signed, printed copy of Barlow’s pronouncement, and is available to purchase for fifty bucks. I clicked on the link to the Department of Records, and near as I can tell, this “organization” consists of a three-page website boasting a stated mission to “preserve cultural artifacts for the collective memory in both the physical and digital worlds.” So far, the collection belonging to the DOR appears to comprise a single artifact, that being the limited edition, vinyl album of Barlow’s Declaration of the Independence of Cyberspace. And despite the fact that the Declaration implies a rejection of intellectual property…

“In our world, whatever the human mind may create can be reproduced and distributed infinitely at no cost. The global conveyance of thought no longer requires your factories to accomplish.”

I can’t help but notice that the acronym DOR on the site bears a registered trademark symbol, and there is an affirmation of copyright at the bottom of the page. Then, again both the hubris and the hypocrisy of the whole package are consistent with the Declaration itself. Barlow continues…

“We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.”

Like a cybernetic Lorax, Barlow sows the seeds of ultra-libertarianism, which more honestly describes the ideology that connects both Silicon Valley’s wealthiest oligarchs and social media’s lowliest trolls. In fact, had Barlow borrowed from Dr. Seuss…

I’m JP Barlow, and I speak for the Tubes,
And I’m telling you folks that we are not Rubes!

I might actually buy the album. But possessing neither the moral authority nor the clarity nor the poetry of either Jefferson or Geisel, Barlow’s Declaration is more political stump speech than a work deserving white-glove custodianship. Like any rouser of rabble, the Declaration is typically vague as it strings together emotionally-charged phrases adding up to unfulfillable promises like the following:

“We are creating a world where anyone, anywhere may express his or her beliefs, no matter how singular, without fear of being coerced into silence or conformity.”

Unless of course you are a woman and a feminist, in which case, we are very likely to violate your privacy and your personal safety and to Photoshop your likeness as though it is being raped by an angry baboon. The gullibility of Barlow’s words and those who find inspiration in them proceeds from the premise that the rule of law itself is not the expression of an enlightened society but is rather the means by which our better angels are corrupted. This is a refutation of the Framers upon whose shoulders Barlow presumes to be standing.

Had this speech been a clear criticism of particular aspects of the Telecommunications Reform Act, then we could debate the merits of that criticism in context to what has transpired since that law’s passage, but to enter into such debate is to accept that law has any role to play at all, and that idea remains anathema to cyber-utopians swooning at the altar of Barlow. He doesn’t want to criticize a law, he wants to reject the notion of statehood in favor of mob rule while espousing an astonishing faith that mobs left to their own devices are ethical…

“Our identities have no bodies, so, unlike you, we cannot obtain order by physical coercion. We believe that from ethics, enlightened self-interest, and the commonweal, our governance will emerge. Our identities may be distributed across many of your jurisdictions. The only law that all our constituent cultures would generally recognize is the Golden Rule.”

Indeed. With Marxian naiveté, Barlow makes the case that the unfettered design of cyberspace fosters a natural, ethical order among people just as the removal of private property would foster peaceful coexistence in a communist society. He cynically implies that order is only established in the physical world through the threat of physical coercion, as though IRL, we are incapable of altruistic morality. Ask yourself whether you’ve experienced more rudeness in the physical world or in cyberspace; whether or not everyone who expresses ideas through social media is treated with respect; whether or not, prior to our networked world, some asshole with a keyboard could have done the kind of damage to free speech, privacy, and civil rights that the Sony hacker(s) managed to do this month. The Golden Rule? I don’t think so.

Cyberspace, like physical space, is a world in which people act like people; and unfortunately, this includes criminal, morally depraved, or just plain dumb behaviors, some of which were not possible prior to the opening of this new frontier. Human trafficking, identity theft, intellectual property theft, cyberstalking, the expansion of yellow journalism, terrorist propaganda, and child abuse are all beneficiaries of Barlow’s sacred “home of Mind.” We have to accept that and deal with it; and absent our participation in society through government, I am at a loss to know what realistic alternative might exist. Letting the six guys who own the most popular sites make all the decisions? Because that’s what’s happening now. Governance of cyberspace exists; it’s written in the Terms of Service, and you didn’t vote for anyone who wrote those terms.

In truth, I think Barlow’s too hip, too vague, and too naive speech ought to be titled The Declaration of Indyness. Because indyness is kind of like independence, but would be an appropriately fuzzy neologism that expresses the attitude of the individual narcissist, rather than the sovereignty of a society that must construct systems in an imperfect attempt to achieve prosperity for as many citizens as possible. Still, I imagine the record jacket is just as useful as any for separating the seeds from the stems, and with Christmas just around the corner, it might be the perfect gift for someone you know.

Digital Rights Activists & the TPP

Photo by Wahoo istockphoto.com
Photo by Wahoo
istockphoto.com

If the TPP is secret, how accurate are its biggest critics?

I can’t claim expertise (or even substantial knowledge) on the subject of international trade, but can you?  When was the last time, you followed a trade negotiation like a sports fan?  Yeah, me either.  But consistent with our conspiracy-rich times fostered by overvalue of context-free leaks and well-funded fear mongering, various organizations are keeping up the controversy over ongoing negations in the multinational Trans Pacific Partnership agreement.  The first thing self-proclaimed digital rights advocates will tell you is that the TPP negotiations are entirely secret, and then they’ll proceed to tell you what’s wrong with many of the proposals being made by the USTR.  If you’re paying attention, that’s a contradiction right there, but for sure, they want you to know it’s secret, and that the officials doing the negotiation aren’t even elected!

Trade negotiations have always been conducted in some measure of secrecy, and the negotiators have always been comprised of appointed officials by the executive branch, which is empowered to enter into treaties that congress must then ratify.  Thus, if a treaty is really predicated on an agenda that our representatives will never support, it’s not going to pass; and the USTR would wasting months if it is truly skulking around in the shadows.  To hammer out a trade deal among several nations and do so as an ongoing public referendum would be chaos — yes, even with Facebook and Twitter to keep us all up to date.  Assuming enough of us even had time to pay attention to that much information, whatever proposal pissed some of us off at any given moment would as likely be obsolete by the time we voiced our outrage as any other outcome.  Nothing would get done.  So, while one cannot deny that we the public are somewhat in the dark with regard to the TPP negotiations, I remain leery of many of the more breathless proclamations being made about the deal, especially the worries over copyrights coming from vested interests in the Internet industry.

A new post by Tyler Snell, written for Latin American digital rights bulletin Digitalrightslac.net, leads off with this gotcha headline:  What do free trade agreements have to do with your ability to listen to music online?  A lot more than you think…

One might expect Snell to fulfill the promise of this headline with at least one exemplary line drawn between what he believes to be afoot with the trade negotiations and our ability to listen to music online.  Of course, he doesn’t because he technically can’t because, as he and other digital rights critics keep saying, “It’s secret!”  In fact, Snell states in his article,  “Everything we know about the agenda of the TPP negotiations comes from a 2011 Wikileaks exposure of the proposed Intellectual Property chapter and later documents from the November 2013 Salt Lake negotiations.”  That’s probably true, although neither leak reveals anything particularly egregious with regard to copyright, and both leaks were obsolete at the time of their exposure.  At the time of the first leak, I took Assange to task for his hyperbole about the contents of the documents.  It’s my own bias, but if Assange felt the need to tell people things like the following, then he’s probably exaggerating the value of his leak:   “If you read, write, publish, think, listen, dance, sing or invent; if you farm or consume food; if you’re ill now or might one day be ill, the TPP has you in its crosshairs.”

So, no, Snell does not say how a ratified TPP might affect our ability to listen to music online, but he follows the playbook thus far used to imply that Hollywood alone has both an ear and a mouth in these super-secret dealings.  He cites a post by Mike Masnick at Techdirt decrying the injustice that the MPAA gets text documents of the negotiations while members of congress do not!  What Snell and Masnick left out of that story is that industry advisors can gain access to information from the USTR but face criminal penalties if they share that information with their own organizations.  Additionally, do we honestly believe the USTR is just blowing off Google & Friends or other stakeholders while giving exclusive access to the Motion Picture Association?  Why would they?

Also in an effort to push buttons in lieu of substance, these articles consistently allude to issues pertaining to pharmaceuticals and other medical needs being thwarted by the TPP, and yet, it is invariably the copyright fears that get all the attention.  Demonstrate that a trade deal will deny a kid in Kenya some medicine, and I’m all ears; but for some reason, these medical concerns are relegated to dependent clauses and parenthetical statements used to dress up the most dire predictions about the deprivations we’re sure to endure thanks to the copyright proposals in the deal.  I am far from qualified to comment on what qualms Doctors Without Borders may have with these negotiations, but I have to shake my head at some of the language used to describe the supposed dark ages that might ensue if copyright protections akin to the ones we have in the US are adopted by its trade partners.

And that brings us to a letter the Electronic Frontier Foundation is circulating on the subject of proposed copyright term extensions associated with the TPP.  As I’ve stated in the past, I don’t personally claim to know where copyright terms ought to be, but I have yet to hear any criticisms of the current terms that make much sense to me, and that don’t ultimately benefit Internet companies by allowing free exploitation of works.  Terms vary around the world, and the EFF feels that society will “suffer” if global partners in the TPP establish the current U.S. term of Life of the Author + 70 years.  In fact, the letter states, “There cannot be any serious question about the fact that the copyright term results in a net welfare loss to society, and effectively amounts to a transfer of wealth to a small number of multinational copyright-holding companies.”

No question at all?  If nothing else, I should think the fact that the U.S. remains the largest producer of new, marketable works in the world ought to raise some question, but that’s just me looking at the world. It is also galling that this presumptive white-hat organization continues to promote the fallacy that all copyrights are held by giant corporations despite the fact that most copyrights are owned by independent organizations and individual creators. Still, the EFF offers its rebuttals to three of the leading arguments often made for extending terms in this agreement.

That Authors Life Expectancy is Higher

“We fully support artists receiving just rewards for their creative output.  However because “life” is the starting point, copyright already extends beyond the lifetime of any author, and providing for his or her descendants is not a legitimate goal of copyright law.”

For one thing, it’s merely an opinion about copyright law that it should not benefit the author’s descendants, and it’s not even an opinion the EFF can claim is widely held by the general public.  In fact, terms have consistently been predicated on the idea of benefiting the author plus two generations of heirs; they’re not just random durations.  More importantly, though, statements like this are cynically focused on resentment over money (which is kinda gross considering the EFF’s oligarchic funding sources) and entirely leaves out the various ways in which stewardship over copyrights yields a wide range of benefits, some of which have nothing to do with revenue to the author’s heirs.  I recently met with a friend who runs the Jerome Robbins Foundation and learned that nearly seventy percent of the proceeds from licensing Robbins’s most popular works goes to funding many other  theatrical organizations around the country.  That’s how Robbins set up his trust to function, and it’s just one example for which I cannot imagine the social benefit of those terms ever running out.

So, I think it’s pretty hard to say whether or not TPP partner Singapore, for instance, might not reap long-term benefits from stronger copyright protections akin to the U.S. model.  Certainly, in my talk with local musician Kevin Lester, I got the distinct impression that he and his fellow Singaporean artists dearly hope to see a mature industry grow out of what is now a local scene.  And that brings us to the next topic…

That Weak Copyright Laws Deter Investors

“There is not a single published study that shows a significant positive relationship between copyright law and foreign direct investment, in any country.”

That statement might be true, but the absence of a published study is not evidence that investors are eager to enter markets with weak copyright protections.  To the contrary, there is plenty of anecdotal evidence suggesting that investors absolutely weigh barriers like piracy and weak copyright enforcement with regard to foreign market investment in media production or distribution.  Nevertheless, the EFF paragraph at this point rather abruptly segues from the subject of investment to a complaint that works under long copyright terms often become unavailable, concluding with this head-scratcher:  “Conversely, creative works are often only rescued from oblivion after entering the public domain.”  What this really says is “Our Googlers want to digitize everything ever made, and the sooner they can do that, the better.”  Otherwise, it’s an odd statement.  A work entering the public domain simply means its copyright has expired, but if the work has also at some point entered oblivion, that term expiration doesn’t necessarily bring it back to life.  I recognize that there is a value in having certain databases maintain libraries of arcane works that might otherwise disappear, but these are case-by-case endeavors that have little to do with international trade and global investments.  I’d say this is particularly true for countries that have yet to produce enough creative works to worry about them wandering off into oblivion.

That Copyright Terms Should be Harmonized Among Partners

The EFF argues that extending terms among trade partners in order to harmonize the law across borders is a “sham” since domestic copyright laws are so complex that harmonization cannot be achieved anyway.  They even share a graphic to show how complex copyright law can be.

Perhaps this is true, but you know what’s even more complex?  Free speech.  The EFF and just about every other digital rights organization behaves as though copyrights and wrongful takedowns are the primary threat to free expression thriving around the world, and I have to wonder whose crack pipe over there is the hottest.  There are parts of the world where speaking freely gets a speaker beheaded or stoned to death or brutally raped or all of the above.  That’s complexity in the matter of free expression, and I’m grateful every day to live in a country where free speech is foremost among all civil rights.  But even TPP negotiating partner Brunei is governed in part by Sharia Law, so I really don’t think it’s going to be copyright terms, plus or minus 20 years, that will predict the fate of free expression in that country.

Yes, there are cases in which DMCA takedowns and other abuses of copyrights have been used to infringe free speech, but these incidences are not the norm and are relatively tame in contrast to the hyperbole employed by these organizations who would have you think Prince is on the verge of curb-stomping an innocent grandmother.  And of course all the mistaken and malicious copyright abuses combined are dwarfed by the billions of copyright infringements that occur monthly, which not only harm the individual creators of those works but can poison the atmosphere in a fundamentally beneficial business sector for which international trade ought to thrive.  We’re talking about trade in the fun stuff here; but on a more substantive level, I am not alone in believing that legally and financially empowered authors can be agents of political and social change.  That’s why many of us who believe in strong copyright protections see the law as an engine of free speech rather than a barrier to it.

Naturally, I cannot claim to defend the entirety of the TPP or even every aspect of the copyright proposals, since I don’t know what they are.  Don’t forget, it’s secret!  I would only suggest that people encountering the more frightening articles look through some of the dust being kicked up over a lot of of speculation and misinformation, and then to consider in whose interest it’s being kicked.

Hedy & George: Art, Tech, & IP

In 1997, the Electronic Frontier Foundation bestowed its prestigious Pioneer Award upon an 82-year-old movie star and posthumously to an avant-garde music composer.  The movie star was Hedy Lamarr, the composer was George Antheil; and their collaboration as amateur inventors during the early days of America’s entry into World War II led to a working model for a signal transmission method known as “frequency hopping,” which sits on a technological timeline that currently ends in in the palm of your hand, if you’re using a wireless device to read this.

Frequency hopping is a means by which a transmitter and receiver shift in synch with one another from frequency to frequency within a given bandwidth. This method of transmission is the basis for our ability to have millions of cellular phones and wireless signals that are resistant to interference from other signals and from one another.  In the late 1930s, the Viennese beauty, born Hedy Kiesler turned Hollywood starlet Lamarr, was spending much of her spare time at home, foregoing the industry party scene for her drafting table, where she tinkered in the tradition of the natural inventor who has no formal training.  By 1940, Hedy, who loved her adoptive country and had many personal reasons to know how dangerous the Nazis were, set her mind to the problem of the deadly fleet of German U-Boats preying on ships in the Atlantic.  And the unusual confluence of events that brought Hedy’s ideas together with George Antheil’s uniquely relevant experience is told in a wonderful book called Hedy’s Folly, by Richard Rhodes.

When Hedy Kiesler was still in her early 20s, she temporarily left the acting career she’d begun in her teens to marry a wealthy and powerful, Austrian arms manufacturer named Fritz Mandl.  Finding herself trapped in a gilded cage, however, Hedy literally escaped from the overbearing Mandl in 1937, running almost directly into the embrace of motion pictures, signing a lucrative contract with Louis B. Meyer. Rhodes assumes that as Mandl’s wife, Hedy very likely learned a great deal about munitions from conversations between her husband and his many associates. Mandl treated his young bride as though she were just another decoration in his mansion, but Hedy’s father had instilled in her his passion to understand how things worked.  Behind the gorgeous face was a mind paying very close attention to Mandl as he helped build the German war machine.

At the same time, New Jersey-born pianist and composer George Antheil was living in Paris supported by a wealthy, American patron.  Antheil’s riot-inciting works include the composition Ballet mécannique, originally begun as the score for the avant-garde, futurist film of the same name that is today required viewing for many film students.  Ballet mécanique, as the title might suggest, sounds as though a factory has attained consciousness and begun to make music and dance.  A performance of the composition requires such industrial apparatus as saws, electric bells, and an airplane propellor; and Antheil’s original hope for its debut was to synchronize sixteen player pianos, although he eventually settled for eight.  It was Antheil’s work to get multiple pianos to play in synchronization that set the mechanical framework in his mind for taking Hedy’s ideas and “reducing them to practice” as the patent law requires.  But first they would have to meet.

Hedy went to Hollywood to escape the emptiness of life with Fritz Mandl and to rekindle the passion for acting she’d cultivated from childhood. George Antheil and his wife, always living one meal to the next, moved to Los Angeles partly because the warm weather was good for George’s health — he suffered from bronchitis and asthma — and partly due to a change in copyright enforcement on existing music compositions.  With sound film just emerging and the young ASCAP pressing the rights of composers and songwriters, the studios, which also owned the theaters, were going to have to pay new royalties to record and exhibit existing scores with their films.  This led to a new demand for composers to create original film scores as works for hire, which led to a new source of revenue, albeit never a great one, for George Antheil.

Meanwhile, in the North Atlantic the SS City of Benares, carrying among its passengers 90 British children being evacuated away from the brewing war, was torpedoed by a German U-Boat.  According to Richard Rhodes, Hedy was deeply moved by the story of “seventy-seven children drowned in twenty-mile-per-hour winds in the bitter North Atlantic, killed by people who spoke her native language and whose country had forcibly annexed her native land .  . .”

America had not yet entered the war when Lamarr and Antheil were collaborating on their design for a torpedo that could be radio-guided to its target and avoid enemy signal jamming by hopping frequencies in an undetectable pattern.  At the time, reports Rhodes, American torpedoes were about sixty-percent duds, prone to missing their targets and ill-timed detonation.  Nevertheless, in the Winter of 1942, the US Navy declined Hedy and George’s torpedo design on the grounds the mechanism was too complicated and too heavy, neither of which makes much sense on the face of it.  That same Summer, their system received a patent, and at some point — the record is still sealed — the Navy acquired that patent.  Make of that what you will; this is another story.

Hedy Lamarr and George Antheil were a pair of passionate, often-rebellious, artists who were equally passionate about a variety of sciences and technologies.  The patent they received never earned either of them a dime, and their contribution went largely unnoticed for many decades, well into the development of signal transmission technologies we now consider the foundation of the Information Age.  At the time, of course, both were motivated by a desire to do their part in fighting fascism and the rising terror of the Nazis, but George Antheil certainly could have used some financial stability in his life.  Hedy, of course, made millions as a young movie star, but in her later years, most of that fortune had been diminished by California community property laws divided among several divorces.  In fact, according to Rhodes, most of the $3 million estate she left to her children was from a combination of smart investments and settled lawsuits “against corporations that tried to exploit her name and image.”

Hedy’s receiving the EFF Pioneer Award was the result of advocacy by Retired Army Colonel Dave Hughes, who had won the same award in 1993 for his work in early computer networking. Hughes had come across the Lamarr-Antheil patent in his own research, but according to Rhodes, he “smelled sexism” in the engineering community’s early resistance to recognize Lamarr.  The colonel, who had a boyhood crush on the movie star, was convincing; and the award was granted with Hedy accepting graciously via recorded message.

George Antheil died of a heart attack in 1959, and Hedy Lamarr just barely fulfilled her desire to live into the new millennium, passing away in January of 2000.  That particular year, one winner of The Pioneer Award was Tim Berners-Lee, who is credited as the inventor of the World Wide Web. Unfortunately, this technology we call the Web has often made antagonists of artists and technologists, except not really.  There have been artist/inventors throughout history because the instinct to create is the same and the processes are so similar.  The artist and the scientist are both problem solvers and truth seekers, co-dependent on one another as society is dependent on both of them.

Happy Memorial Day Weekend to my American readers.