Tag: electronic frontier foundation

The EFF assumes the worst – of everyone else.

“Speaking of shotguns,” a Chilean idom I learned from an old school friend to describe an abrupt change of subject, I came across this article from NBC News about a new report on the Theft of American Intellectual Property, which covers issues to do with serious cyber-espionage threatening both national security and economic interests of the United States.  Apparently, the report raises the prospect of using certain defenses, including watermarking data, tracking unauthorized access, and even “boobytrapping” likely hackers with malware that locks up their computer systems.  I haven’t read the report and am no expert in any of the technological remedies described, but near as I can tell, the story has very little to do with entertainment media producers and the DMCA.  Nevertheless, Corynne McSherry, Intellectual Property Director of the Electronic Frontier Foundation couldn’t resist the opportunity to change the subject and monger a little fear.

Whether the defensive tools mentioned in the article are sound remedies or not for protecting data like military or trade secrets from mostly Chinese hackers seems of little interest to McSherry who prefers to vilify copyright holders and the DMCA.  “The potential for abuse is extraordinary” McSherry says. “The long and shameful history of the Digital Millennium Copyright Act file takedown abuse teaches us that intellectual property owners cannot be trusted with the enforcement tools they already have — we should hardly be giving them new ones.”  The “long and shameful” true history of the DMCA is how utterly useless the mechanism is for rights holders to protect their works.  Many creators have demonstrated over and over again that the DMCA notice and takedown procedure is spitting in the wind for even very large, well-funded producers, and completely hopeless for independent and smaller rights holders.  Meanwhile, it is the industry that funds the EFF, who have made sure that DMCA remains a fly swatter in a storm of raptors.  And that’s bad enough, but to add insult to injury, McSherry sticks this fact in a paper bag and lights in on fire on our doorstep when she says the DMCA has a “history of abuse” by rights holders.  And one reason we can know she’s full of it, is the flimsiness of the cases her own organization chooses to take on as exemplary of this so-called abuse.

As described in this post and in the supporting post from Copyhype, the EFF stands on very shaky ground in its attempt to position a typical DMCA error as willful abuse in the case of Lenz v UMG.  To paraphrase Terry Hart, if there is such rampant abuse, why is this the best case the EFF can produce?  Is it perhaps because the headline “Prince sues grandmother” is too good a rabble-rousing opportunity to pass up?  And while McSherry carelessly lumps all rights holders into a single group and accuses them a priori of abusing tools most of them, like me, have never heard of, the total number of infringements against rights holders at this moment remains in tens of billions per day.

Publicly promoting the assertion that if rights holders had better tools to protect their intellectual property that abuse will naturally increase is insulting, irresponsible, and naive.  For one thing, most rights holders are in the business of doing something like making movies or building new energy systems; and the cost of protecting against attack is just that — a cost and a distraction from the core enterprise. In other words any business from a TV network to a shoe manufacturer wants to spend as little time and money on counter-theft as possible.  It would make just as much sense for McSherry to say that because Macy’s has video cameras throughout the store, false accusations of shoplifting are going to be out of control.

Interestingly enough, there is an omnipresent video case a bit like this in the UK, in which an innocent man, Eoin McKeogh, would like a video removed from YouTube that defames him as a cab fare deadbeat and resulted in the kind of cyber-bullying mob that is SOP at this point. I can’t say I’m surprised that defendants Google & Facebook haven’t voluntarily helped this young man clear his name, and it looks like they will only do so if ordered by the court. It’s almost as though we could say these tech companies’ absolutist defense of their technologies is, I don’t know, like an abuse of this young man’s civil rights or something.  But of course, these are tools, right?

It is the nature of even the best-meaning organizations to occasionally identify somewhat thin evidence of the general problem they’re committed to solving.  But in the relatively short time I have paid attention to the EFF, I find them usually unbalanced and often hysterical. It’s more than okay to raise a yellow flag and ask whether or not a security measure or legal remedy might adversely affect civil liberties? But it is rare that I read anything coming from this organization that has even a hint of the humble inquisitive or an acknowledgment that indeed creative rights holders, let alone other enterprises, have any problems worthy of concern in the digital age. As such, I find McSherry’s ham-handed, opportunistic attack on rights holders more or less business as usual.  The EFF claims to protect our rights in the digital age, but who protects our rights from the digital age?

Privacy Concerns?

Just a quick post this morning regarding this story in yesterday’s New York Times about Google’s admission to violations of privacy as a component of its Street View project.  For those who haven’t followed this story, the crux of it is that while Google’s vehicles have been combing the streets, mapping the world through pictures (something that is admittedly very useful), they’ve kinda been collecting personal data from household computers with open wi-fi connections. I suggest reading the article for deeper insight.

As I have argued many times, and shall continue to argue, there’s nothing wrong with questioning the federal government’s ability or willingness to spy on us in cyberspace; but there’s a lot wrong with over-dramatizing this fear while turning a blind eye to both the capacity and the motive for a company like Google to point its virtual proboscis where we may not want it.  Moreover, the Electronic Frontier Foundation, which I criticize with some frequency, is perceived as a privacy advocate in the digital age but remains rather silent on the matter of Google’s invasions of privacy in contrast to the amount of “ink” it devotes to drones and other forms of government surveillance.

I leave it to you to decide which worries you more:  a government with a limited budget, a defined scope for surveillance, and a mess of competing oversight processes; or a private corporation whose entire business model is based on amassing every bit of data it can gather.

The Wicked and Dissembling Glass

Photo by Yaroslav Gerzhedovich

Last week, MPAA CEO Christopher Dodd spoke in San Francisco about fostering better collaboration between the entertainment and Internet industries.  Not surprisingly, two voices from the tech industry, TechDirt and the Electronic Frontier Foundation rang out with rebuttal. Mike Masnick, editor of TechDirt, called Dodd a “predictable dissembler” and proceeded to attack him personally for “lacking the vision” for his role.  The EFF posted this article, which strikes a more conciliatory tone that only makes for an even more insidious version of the proverbial pot calling the kettle black.

Now, I don’t have any strong feelings about the MPAA or Mr. Dodd per se.  I agree with some functions of that body, disagree with others, and am generally neutral on most of its activities.  In January, I wrote that I considered the protest against SOPA to be generally dysfunctional and that well-meaning people were being used as puppets by the Web industry, playing on a historic distrust of the media industry.  So, let’s clear one thing up right now:  as of this moment, the Web industry outspends entertainment on straight-up lobbying and on general PR, including the work of the EFF.  As an aside, I feel a little silly using the term Web industry when one company, Google, owns more than 90% of search and advertising worldwide.  Is there a U.S. company more monopolistic at this point in history?

Still, the Web folks continue to get away with portraying themselves as the underdog and also as the champions of free speech. Thus, the EFF article states, innocent of the slightest hypocrisy, “But let’s not forget that he [Dodd] serves as the chairman and CEO of one of the most influential lobbying groups in Washington, and that the actions of the industry have yet to back up his rhetoric.”  The writers of the article aim to sound open-minded while warning the reader not to trust “Dodd’s influence” despite the fact that the EFF’s Northern California friends enjoy far more influence, if lobbying dollars are the true measure.  Let’s also not forget that the Web industry has left more than its fair share of unfulfilled rhetoric on the table.

While Web-centric pundits continue to raise the specter of SOPA’s return as an emotional tug on our senses, we should remember some of the odd dissembling that came from the bill’s opponents on January 18.  Remember these slogans?  Good intention, bad law.  End Piracy, Not Liberty.  These reasonable-sounding mantras were designed for general consumption by a public that doesn’t follow these issues on a regular basis; and they imply that the Web industry agrees that online piracy is a problem but that SOPA and PIPA were not the solution.  The question remains, though, what solutions has the Web industry offered since declaring victory in the name of liberty over these bills?

So far, this industry has continued to pump out fears regarding any legislative action designed to protect copyright; it has increased its lobbying efforts and expenditures;  it has perpetuated the implication that copyright itself is anathema to free speech; and it has continued to insist that the solution to piracy is to embrace it as a business opportunity rather than to confront it as a threat.  These are not the actions of an industry looking to collaborate to solve a problem. Perhaps because it’s not their problem.

Both the EFF and TechDirt articles in response to Dodd cite a Congressional Research Service Report (see embed) that they claim makes Dodd out as a liar with regard to the importance of filmed entertainment as a component of GDP as well as the industry’s role as an employer.  But, as is often the case with data, truth is in the voice of the interpreter; and it looks to me as though TechDirt and EFF are reading what they want to see in the numbers.

Download (PDF, 274KB)

First, the entire report is based on best available information only from the major studios listed on Page 1.  Hence, the employment number is meaningless, because anyone who knows the motion picture business, knows that the lion’s share of work is done by people who never receive a paycheck from these companies.  The report does not reflect, for instance, the independent production companies who produce most of the filmed entertainment in the U.S.  A quick glance at a web page for just one company, Participant, lists 50 projects completed or in production. If we average a conservative but realistic 150 roles per project (not including actors or directors), that’s 7,500 contract jobs ranging from entry-level to high-paying through one production company since 2004.

The report also would not include a four-person, middle-income shop in NYC doing motion graphics this year for a TV network. These people most certainly are employed by the entertainment industry, and so are several hundred shops just like them around the country. Then of course, there are tens of thousands of industry professionals who support themselves, their families, and their communities by working variously on TV shows, documentaries, low-budget features, commercials, and industrials, all of which are affected by the overall health of the motion picture industry, even at the top rungs of the ladder.

In the TechDirt article, Mike Masnick uses the CRS report to simultaneously assert that the movie business is doing just fine (i.e. studio executive salaries) and, by the way, it isn’t really all that important to the economy (i.e. small contribution to GDP).  Studio CEO salaries, right or wrong, have very little to do with the overall health of the American film industry, especially in a discussion about the effect of online piracy on filmmakers of every size.

As for the significance of filmed entertainment to the economy, again, the GDP part of the report is narrowly focused on box office sales in the U.S. and Canada for the major studios listed.  This leaves out huge segments of economic value in the for-profit, industry as a whole.   (It should be noted that this not a flaw in the report itself, only in how the limited data is being used in this context.)

Strangely enough, Masnick sees no irony in the fact that he says, on the one hand, that the film business doesn’t amount to much economically and yet somehow, Hollywood manages to wield tremendous lobbying power.  In fact, were we to take this report as the only relevant data, it shows clearly that Disney, News Corp, Viacom, Sony, and Time Warner combined don’t make as much as Google all by itself.  So, ask yourself who’s likely throwing whose weight around in Washington?

SOPA and PIPA may well be dead, even in revised forms; but currently on life support, I believe, is the Web industry’s ability to keep playing David to media’s Goliath, all  the while crying, “freedom” in order to effect policy in its favor.  It won’t take too much longer for the general public to figure out that the members of the newly announced Internet Association are no more deserving of our blind trust than any other wealthy, vested interest. This is just business and politics as usual; and I would ask what wicked and dissembling glass makes the the wizards of Silicon Valley believe they’re always the good guys?