Tag: electronic frontier foundation

Looking for Censorship in All the Wrong Places

Last week, I stumbled on a tweet by a staff member at the Electronic Frontier Foundation warning California citizens to “take action” in protest against the passage of Assembly Bill 2880.  The linked article on the EFF website written by Ernesto Falcon begins by asserting in its headline, subhead, and first paragraph that California will be venturing into brand new territory with regard to registering or enforcing state-owned intellectual property and that this will have the usual litany of ill effects—“chill speech, stifle open government, and harm the public domain.” Falcon’s first sentence reads, “The California Assembly Committee on Judiciary recently approved a bill (AB 2880) to grant local and state governments’ copyright authority along with other intellectual property rights.”  (Emphasis added.)

It is standard procedure for the EFF to make scary declarations while avoiding specifics. They have a habit of telling people that a proposal will be really bad while shirking the effort of quite explaining how. The organization also tends to focus almost entirely on copyrights when a broader view of IP might be relevant in a given circumstance, as it is with a state, which may have at least as much interest in patents and trademarks as in copyrights.  What Falcon wants the reader to conclude is that AB 2880 will grant new authority to the State of California to copyright works like public records, which would then give elected officials a means of stifling speech by misusing copyright law.  You might recognize this theme as one of the EFF’s Greatest Hits, but of course, this bill does nothing of the sort.

AB 2880 does not establish new IP rights for the State of California.  California and other states have owned intellectual property for a very long time.  A  FY2000 California audit of IP states, “In total, 125 state agencies own more than 113,000 identified items of intellectual property.” What this proposed bill does do is to clarify California’s position on its IP and then requires procedures (e.g. developing guidlines for contractors) to be overseen by the Department of Governmental Services for better management of state-owned intellectual property. A need for clarification in the law is noted in the comments from the State Assembly floor, which cites lessons learned from the widely publicized, 2015 dispute between the National Park Service and the Yosemite National Park concessioner Delaware North.  The floor comments include the following:

”…the lack of a robust intellectual property framework has led to confusion among state agencies, loose and informal practices, and possibly confusion among state and federal courts. Several recent court decisions have held that state agencies need legislative authority to hold intellectual property rights. In light of the recent Yosemite trademark issue and the recent court decisions, this bill builds on the framework established by AB 744 in order to assist state agencies manage and protect the state’s intellectual property rights, particularly in state contracts where state-owned intellectual property is at stake.” 

That’s not exactly spellbinding, but neither the character nor the language in this bill gets anywhere near the EFF’s implication that California agencies will have “new powers” to use copyright law in order to stifle speech or limit access to public records after passage of 2880.  Nevertheless,  Falcon writes, “As things stand today, works created by California state and local governments (like reports, video, maps, and so on) aren’t subject to copyright except in a few special cases. That ensures that Californians who funded the creation of those works through their tax dollars can use those works freely.”

Not quite.  Falcon is purposely being vague in order to have the reader assume that public records will be treated the same as expressive works or other IP that is funded by California taxpayers, especially where third-party contractors are involved.  At the same time, he’s sowing a bit of confusion about the difference between public property and the public domain—as if all works funded by taxpayers are automatically in the public domain, which is not the case.

A work, invention, or process that is in the public domain is no longer property of any kind.  It is entirely fair game for anyone anywhere to use for any purpose.  Public property, on the other hand, is just that; and state agencies have a responsibility to protect the investment of the constituency who paid for the development of the property.  For instance, it is common that public property, whether physical or intellectual, may not be used by a for-profit entity without that entity paying a license fee that goes back to the public fund.  And this is as it should be; the taxpayer isn’t typically expected to fund free resources to be used by for-profit entities without getting something in return.   To manage this, states need an intellectual property regime, and AB 2880 is a rather mundane update to that regime.

On the subject of censorship, Falcon draws our attention to the case in which the City of Inglewood wrongly filed a lawsuit against Joseph Teixeira, who posted city council videos (which are public records) on YouTube in remixes that were critical of the city’s Mayor James Butts.  The lawsuit was, to put it mildly, an act of rank stupidity on the part of city officials, which is pretty much what Federal Court Judge Fitzgerald said when he not only tossed out the case as “meritless,” but also ordered the City of Inglewood to pay the full fees of bringing the case in the first place.

And although Falcon is following the EFF playbook by riling up readers with a reference to this attempted abuse of copyright law, there is nothing in AB 2880 that would newly empower a future state public official to get any further with a federal court than Mayor Butts did.  It should also be noted that nothing in AB 2880—or any other statute for that matter—can fully prevent people from attempting to misuse the law, which is one reason why a judge determines whether or not a case has any standing before it can proceed. If anything, the Teixeria story ought to chasten city and state officials against future temptation to use copyright to stifle speech.

In addition to conflating public property with the public domain, Falcon is purposely mixing public records with other types of works that are copyrightable and is also confusing federal policy with state policy.  It goes without saying that federal public property belongs to all American citizens while state public property belongs to the citizens of that state, but it is not true that all public property in either case is the same thing as the public domain.   Still, Falcon declares that AB 2880 will impose new restrictions on California’s taxpayer-funded works, as if the proposed bill will move these works from the public domain into the protection of copyright. He writes, “… a vast majority of state created works are free to the public with only five exceptions. All other audio, visual, and written work of state and local govenment employees is in the public domain upon creation and free for the public to use however they see fit.”

Again, not quite. The legal precedent to which Falcon’s link refers states that the California Public Records Act “prohibits copyright in state government records unless there is specific statutory authority to do so.”  And this precedent is not overturned by the new language proposed in 2880, which reads as follows:

A public entity may own, license, and, if it deems it appropriate, formally register intellectual property it creates or otherwise acquires. A public entity’s intellectual property right shall not preclude the public entity from disclosing any information otherwise accessible under the California Public Records Act. A disclosure under the California Public Records Act shall not be construed as waiving any rights afforded under the federal Copyright Act of 1976.

All that says is that state agencies may own intellectual property (which was already true), that copyrigths may not preclude public access to public records, and that disclosure of public information does not inherently void the state’s copyrights. Not only does this language not override existing law, it seeks to clarify the law in light of some of the lessons learned from various court cases, as described in the floor comments cited above. Of course it is entirely possible that this clarification is exactly what the EFF doesn’t like about this bill. Clearer copyright laws are the opposite of no copyright laws, and it seems as though that organization is only ever interested in the latter.

Copyright Doesn’t Restrain Culture – Part I

Among the premises commonly stated to argue that we must “rebalance copyright for the 21st century,” we find two widely spread and oft-repeated generalizations, both of which are false.  The first generalization is about access, which proposes to speak for the consumer and implies—or explicitly declares—that copyright acts as a barrier to the diffusion of cultural works.  The second generalization concerns the creation of new works and proposes that copyright acts as a barrier to derivative and new works, that it stops new creators from building upon existing works, which is inarguably an essential—even unavoidable—part of the creative process.

The fundamental problem with both of these generalizations is that neither the consumer’s nor the creator’s experiences, practices, or behaviors largely support the assertions being made.  Nevertheless digital-rights activists, pundits, and academics continue to repeat these messages as though they are common sensical, observable truths; and further, they tend to conflate the two interests—consumers and creators—despite the fact that these are generally separate subjects with regard to copyrighted works.  As such, I’m presenting the following as a two part-part essay. Part I will address the first generalization about consumers, and Part II will address the second generalization about creators building upon existing works. And, although I understand that it is very popular to say that “we are all creators now,” that there is no longer a line between creator and consumer, I believe this is also not true in the market overall. In Part II, I will address the hybrid consumer/creator, but for the sake of clarity, Part I concerns only those people who consume works and have no interest whatsoever in creating even so much as a minor mash-up. After all, this is almost certainly how we can describe the majority of the market we honestly call consumers.

Part I – Access and the Consumer

Statements made about copyright limiting access are typically—one might even say purposely—phrased in high-minded, aspirational tones.  They involve words like culture, enlightenment, democracy, information, and education.  The assumption is that copyright terms are so long, that prospective consumers of important and valuable works have difficulty gaining access to them—or at least difficulty relative to the speed of the Internet.  This paints a picture in which copyrights keep great works under lock and key, thus starving society of the many rich, cultural experiences to which we are the rightful heirs as stated in the intellectual property clause of the Constitution.

Of course, one of the simplest, initial answers to this charge is that the lion’s share—by a substantial margin—of the works that are pirated via the Internet, are mass-appeal media, which have been produced only very recently; this includes works like motion pictures or hit TV shows that have not yet been officially distributed by their producers.  So, even the most tamely-worded proposals to reduce copyright terms to roughly a decade on the grounds that this would be “more in synch with the 21st century,” are naive at best, and outright lies at worst.  Or as Robert Levine puts it (and I have quoted him on this before), “It doesn’t matter if copyright is Life plus 70 or Life pus 50 years, because on the Internet, copyright lasts about ten seconds.”

With regard to older works (classics), the reformer’s view, which says these belong in the public domain sooner, is actually more elitist than its proponents would like to believe.  It assumes the majority of the market actually cares to have access to these works, which is a typically liberal leap of faith that wants to lead even the most stubborn horses to water.  I know that sounds snobbish, but it’s quite the opposite.  I don’t think less of my neighbors because they don’t likely give a damn whether or not the entire oeuvres of Bergman or Fellini are available via legal streaming, but that they are eager to watch Game of Thrones, Sons of Anarchy, The Walking Dead, and sports.  To the contrary, they represent the real market, while it is only a handful of us oddballs who might choose to make an evening out of re-watching Fanny and Alexander.

So, to put this in exaggerated terms, it wouldn’t really matter to a very large portion of the market if the works they don’t care to access had perpetual copyrights or if the works they do care about had ten-year copyrights because most consumers want to access current works immediately, and they will acquire them—either legally or illegally—regardless of copyright terms. And because most of the works they do want are current, these are also widely available through legal means.  So, in this regard, it is dishonest when the voices who say, “You can’t stop piracy,” or “Piracy is a reaction to scarcity,” happen to be the same voices who say that copyright terms should be shorter.  One cannot argue in favor of both theft and shorter terms at the same time without sounding ridiculous.

Meanwhile, long copyright terms are probably the most effective mechanism by which to preserve classic works that at least some portion of the market does want to access, and in formats in which they prefer to experience them. Maintaining licensing regimes funds necessary restoration, remastering, fresh translation, publication, distribution, and other labors necessary to produce fresh editions of media that are desirable to the market for a large number of classic works. (Because if one is going to make an evening of an Ingmar Bergman film, one does not to watch some crappy digitization of it on YouTube.) Yet, nearly two years ago, the Duke University Center for the Study of the Public Domain released an article, devoid of any clear thesis, complaining rather strenuously that a list of great works, including Bergman’s The Seventh Seal, remained under copyright as of the start of 2014.

Naturally, I’m using Bergman as an example that could stand for any classic work of art or scholarship, and I wonder now, as I did in my rebuttal to that Duke post, what exactly does one want to do with The Seventh Seal other than to watch it? Which, by the way, is currently possible via Hulu, Amazon, or iTunes.  So, not only does the copyright barrier not exist for the consumer in this case, but the narrative that is constantly repeated, even by scholars we’re meant to take very seriously, tells a double-fiction—first, by implying that there are scores of disenfranchised people hungry to watch this classic film; and second, that those who do want to see it are unable to do so.  Yet, here I sit, three dollars and about four button clicks away from watching Max Von Sydow play chess with Death, if I want to.

Of course, any number of readers can produce the title of an obscure work that is either difficult or nearly impossible to find.  But this has always been a challenge for the true enthusiast of a particular genre or artist, and its singular nature is again its own rebuttal to the claims made by copyright reformers that “the public” is underserved by the current IP regime. A tiny minority cannot necessarily represent “the public,” and the legal system cannot wholly anticipate and serve every unique desire. But again, for the true enthusiast in pursuit of an obscure work, the most sustainable preservation mechanism is likely going to be one that is built on a foundation of licensing.  While random digitization by amateurs ripping DVDs, etc. may have the momentary appearance of “making works available,” it is a very poor—and entirely unreliable—form of preservation.  For instance, MGM’s long-term interests in its library of famous musicals is the mechanism that maintains the prints and quality reproductions of Singin’ in the Rain, not YouTube and certainly not Putlocker. But in any regard, the more niche the interest of the consumer, the more we are talking about such a small fragment of the consumer market that it seems irrelevant to any practical debate about copyright terms acting as a general barrier to access.

Also, despite the fact that many classic works of art and scholarship are either in the public domain or cheaply accessible, the promised enlightenment that is supposed to follow as a consequence often looks a bit like a fading 60-watt bulb. For instance, in a bizarre moment of afflatus in May 2013, anti-copyright’s would-be prodigal son Derek Khanna stated on Twitter that people should not read The Great Gatsby because it is not yet in the public domain.  This still elicits a Scooby-Do double-take to consider his logic, which advocates a specific illiteracy as a symbolic protest against copyright terms, despite the fact that this particular novel is so widely available that one is apt to trip over a discarded copy in a city park.

Nobody can justifiably argue that readers lack access to the works of Fitzgerald because of copyright terms. Meanwhile, I’m sure these works are available illegally right now, but that does not necessarily mean any more people are reading them than they were 20 years ago. In fact, Gatsby itself is probably being assigned to groaning high school students at this very moment, including at least several who will keep up the American tradition of taking their access for granted and dodge the reading altogether. And, for that matter, we seem to be witnessing a new phenomenon in American colleges whereby certain students are refusing to engage with various assigned classics because some theme, topic, or language offends their own special snowflakyness.  All of which is to say that I suspect that with every new work that might be made more available by “rebalanced copyright,” we may simultaneously see new social and cultural reasons for consumers to disenfranchise themselves from works anyway.

The reality is that we have more works legally and affordably available than at any time in history, plus an entire black-market that trades in making works available for free.  Yet, it is hard to find much evidence that this river of media has produced a more fertile society comprising a cultural literacy that extends beyond whatever is trending in any given moment.  Last week, my kid’s middle school had a Dress as a Movie Character Day, and so my daughter (because she’s my kid) went as Charlie Chaplin. By midday, at least twenty schoolmates asked who she was, and some thought she was Adolf Hitler. I find this extraordinary. With all the information that’s available right now—all of it entirely unaffected by copyright—how do middle-class American kids get to be 13-14 years old and not at least recognize an icon like Chaplin’s Little Tramp — to say nothing of knowing what Adolf Hitler looked like? These are hardly images of arcana.

In another example, my eldest in college, taking a required American civics class, reports that several of his fellow students had no idea Germany was recently divided East/West, and they had also never heard of the Cuban Missile Crisis.  How?  Are these not digital natives who have grown up with “the world of knowledge at their fingertips”?  It is preposterous to claim that their ignorance on these basics of general knowledge is because Google hasn’t been allowed to digitize enough content due to copyright constraints. So, can anyone rationally argue that accelerating the progress of works into the public domain has anything to do with a broader literacy?  If these kids are missing certain fundamentals, it’s because of other reasons—mediocre schools and family influence being the most likely—that have nothing whatsoever to do with copyrights.  Ironically enough, I think my generation may have acquired more cultural literacy just watching Looney-Tunes cartoons on one of a dozen TV networks than many a digital native has gained from all the “access” he supposedly has today. After all, our Bugs Bunny “scarcity” was a primer in world history, music, film history, Shakespeare, art history, literature—and in a certain Wile E. Coyote way, basic physics.

This is not to say, of course, that there isn’t literacy to be found in contemporary media. Writer Daniel Starkey offers a very frank article about growing up poor and committing petty larcenies in order to have some of the things the kids around him had.  Entitled Piracy Gave Me a Future, Starkey’s main thesis is that media piracy provided him with access to a literacy he might otherwise never have had.  He writes …

“Deus Ex was the first game I’d seen that listed its primary influences, which included philosophers like Hobbes, Voltaire, Locke. They were wealthy men, to be sure, but learning about their work set me on the path to learning about sociology, about history, about how much all media is one long chain of slightly modified ideas, with each new link adding a new twist or perspective. The game’s themes also spoke to some of the most personal concerns of my life, including economic class, injustice, about the disempowered fighting against a wealthy ruling class.”

And this is exactly the kind of anecdote the copyright “reformers” like to cite in order to prove the purpose of their agenda.  But I would counter this with two points.  The first—as I have already indicated—is that Starkey pirated works that were current and, therefore, would still be under copyright even with very short terms; and the second is that exceptional individuals like Mr. Starkey have throughout history found ways to educate themselves beyond the barriers of their circumstances. Those barriers are usually financial, cultural, or political while having very little to do with the specifics of intellectual property laws. After all, there are millions of kids whose parents bought them Deus Ex and who did not take from their gaming experiences the kind of life lessons that effected Starkey’s future. But it is the market of those millions of paying customers and the legal framework for development and distribution of the game that provides the foundation for producing Deus Ex in the first place. (It should be noted that Starkey’s article does not make any kind of mention regarding copyright reform; he is merely sharing his own introspection.)

The critics claim that copyright creates “artificial scarcity” in a time when technology demands abundance.  They say we live in a “read/write” culture today, but this is only a fragment of the larger picture because I think we also live in a “don’t read/burn” culture, in which whatever is viral (ergo profitable) continually overwrites the kind of fundamentals of cultural literacy referred to above.  One need only look at the state of our politics to see that my kids’ schoolmates aren’t the only ones who seem to have no knowledge of basic, historical facts and are living out Santayana’s axiom.  Yet, organizations like the Electronic Frontier Foundation like to draw circuitous lines from a creator’s enforcement of his copyrights toward a slippery slope into political censorship. This was in fact the crux of one statement after the Ninth Circuit Court ruling in Lenz v UMG.  As posted on the EFF site, attorney/activist Corynne McSherry says the following:

“The decision made by the appeals court today has ramifications far beyond Ms. Lenz’s rights to share her video with family and friends. We will all watch a lot of online video and analysis of presidential candidates in the months to come, and this ruling will help make sure that information remains uncensored.”

Aside from the specific rebuttal we might make to McSherry’s assertion that a rights holder can use DMCA to effectively censor a candidate or criticism of a candidate—because she can only be referring to very specific and rather unlikely circumstances—her larger point would be laughable if it were not so depressing.  Have the hyperbolists at EFF not noticed that our digital-age, 140-character politics have become more reminiscent of the volatile, populist, and naive 19th century than anything akin to the revolutionary promise of a more progressive 21st? Remix isn’t just some fun thing the kids do with a song and some video clips, as Mr. Lessig would tell us, remix is also what’s happening to truth, to science, and to journalism that’s trying to stay relevant in a world moving faster than the speed of real investigation. So, it seems to me that we could hardly detect censorship in a public debate so utterly devoid of facts, reason, statesmanship, or even solid reportage in many cases. Yet, the EFF would have us believe that it will be some musician taking a video off YouTube that will in some way harm our political process. If anything, it may be the musician who’s the only one making any sense.

This is not to say that social and intellectual progress is not being made in many areas, or that digital technology does not play a significant role in that progress—only that copyright terms (or patent regimes for that matter) are not acting as a barrier to that progress. For all the anti-IP rhetoric, these regimes are probably as generative as they have ever been, and I sincerely doubt there is any measurable evidence to prove that the copyright system is holistically out of synch with the 21st century and the digital market.  It’s just one of those things that sounds true and may even look true on the surface, but probably isn’t true if we really study the matter carefully.  If anything, the present reveals that the general consumer has ample (legal) access to more works than he can realistically experience.  At the same time, there are myriad social reasons why consumers do not access any number of works of art or scholarship, and it seems hardly reasonable to blame the rights of the artists and scholars for that.

In Part II, I’ll address the assertion that contemporary copyright is out of synch by acting as a barrier to the creation of new works.

Copyright Freak!

There’s a difference between debate and marketing.

Yesterday, the Electronic Frontier Foundation unveiled an online PR blitz called Copyright Week. The campaign’s launchpad is a webpage that asks visitors to consider and support “six principles,” one per day, over six days which happen to lead up to Silicon Valley’s very own independence day, January 18th, 2012, a.k.a. “SOPA Blackout Day.”  The roll-out of this campaign also coincides with today’s new round of hearings in the House Judiciary Committee in the ongoing process to review and potentially revise copyright in the United States.  Specifically, today’s hearing was focused on the scope of copyright, and while the EFF is determined that this debate should happen in the emotional realm of PR and marketing, even a brief viewing of the testimony on Capitol Hill should demonstrate that copyright reform is considerably more complex than the blunt, faux populist scaremongering we see in the EFF campaign.

For example, Carl Malamud, founder of Public.Resource.Org offered testimony that, on the surface sounds like something we can all support. The text of written law must be accessible in a free and open society and, therefore, sites like his, which provide easy access to this information should not ever run afoul of copyright protections.  Makes sense to me.  The law shouldn’t be copyrighted; it belongs to all of us.  But in questioning Malamud, Representative Collins of Georgia asserted that the law is publicly available, but that certain annotations, for instance, remain intellectual property. Eyes rolling the back of your head yet?  I can’t blame you because unless you’re an IP attorney or just like to follow copyright issues like some people follow sports stats, you’re probably going to tune out about here and find any number of more fun diversions.  And that’s cool, but this is what the real debate will probably look like; it’s complex and nuanced and in some cases, kinda dull.

By contrast, the EFF would prefer to manipulate you with a portrayal of an epic battle for the soul of the American dream itself. They would have you believe that copyright is, in our time, a golem destined to destroy the future of all technological advancement and the sacred right to self expression.  Never mind the fact that most copyright holders are the manifestation of self-expression, the Copyright Week campaign would rather distract you with a barrage of references to the international trade negotiation known as the TPP and scary words like secret.  And maybe there are hazards in the TPP of which we should be aware, but I’ll bet it isn’t the copyright provisions. And I say this because the EFF will overreach when its spokespeople say things like “copyright has no business in a trade agreement.”  Why?  If one of our most valuable products is intellectual property, why doesn’t the subject even belong at the negotiating table? Surely, when copyright industries can boast a trillion dollars in GDP, the issue must have a few more shades of gray than that.

The Electronic Frontier Foundation boasts the motto “Protecting your rights in the digital age,” but you might notice that this does not necessarily include protecting your rights from the digital age.  When Google or Facebook revise their Terms of Use policies to encroach ever further on your privacy or claim the right to use your kid’s birthday pictures in a paid ad, the EFF is silent. They are silent on the subject of cyber-mobs, which are an acute and clear infringement on their victims’ right to free expression and have even resulted in physical attacks.  They are silent on Google’s monetizing just about any form of human depravity from sex-slave trafficking to illegal narcotics to abusive and deadly depictions of atrocities on YouTube.  And for all its efforts to leverage our distrust of the American government to mask the agenda of Silicon Valley, the EFF is silent about the deepening influence of these government contractors who are the tech companies they serve.

So, by all means, if you care about the future of copyright from any perspective, I encourage you to follow the nuts and bolts of review in the coming year (if you can possibly stay awake through it all).  But failing that, at least don’t freak out because an organization like the EFF says  you should.  After all, it isn’t the Hollywood studios who can scan your emails, manipulate the flow of information on the Web, or might one day help develop an autonomous weapon. Pour a glass of wine, take a breath, and ask yourself a very simple question:  If you had to guess who has the greatest capacity to adversely affect your civil rights today, would it be the copyright holders or the data collectors? Cheers.