Tag: Featured

Site-blocking: can the U.S. finally get it done?

site-blocking

The Motion Picture Association (MPA) has prefaced a renewed interest in site-blocking legislation to combat piracy. Will things be different this time?

When the internet industry killed the antipiracy bills SOPA and PIPA in January 2012, I was a newbie blogger but guessed at the time that those parties had totally blown their wad on that campaign. First, there was the boy-who-cried-wolf limitation suggesting that Google & Co. had deployed too much hyperbole to ever again sound the “death of the internet” alarm. Next, the general belief that “the internet” is inherently a force for good was a notion that waned perceptibly after 2012 and then fell off the cliff circa 2016. Today, neither the general public, the government, nor the press fawns over the “white knights” of Silicon Valley as they did when those bills were scuttled.

None of that addresses the fact that the “Stop SOPA” campaign was a tidal wave of disinformation, but it would be naive to think that facts would win today any more than they did twelve years ago. When new site-blocking proposals begin to make headlines, and the network of tech-funded groups howl BEWARE SOPA 2!!, it will be interesting to see whether the same, or similar, false talking points are effective in an environment that is more skeptical of Big Tech in general.

What is site-blocking and why do It?

Site-blocking today would probably work much as it was intended back in 2011. A complainant would have the burden to prove to a court that a platform is principally engaged in illegal activity (e.g., media piracy) and is operating outside the reach of U.S. law enforcement. With sufficient evidence, the complaining party(ies) would obtain an injunction to deny the platform access to the U.S. market. The basic mechanisms are not much more complicated than that, though we can expect the same network of “digital rights” groups to sharpen the rhetorical pitchforks and again stoke allegations that this process will “break” the internet or that it violates the speech right.

Of course, neither claim is true. Site-blocking is employed as a remedy throughout the democratic world where the internet still functions, and speech rights are not infringed (at least not because of site-blocking). There is no more a speech implication to blocking a criminal web platform from access to the U.S. than there would be by interdicting a cargo ship full of counterfeit electronics. On that subject, the need for site-blocking legislation today is more urgent than it was in 2011, and not just for movies and music.

Although the MPA et al. will naturally focus on sites illegally hosting and/or streaming pirated entertainment, establishing a broader rationale for site-blocking—i.e., getting past unfounded ideological opposition—will serve other business and private interests. Online predators of every type have continued to adapt since 2012; evidence shows that media piracy is integrated with a broad spectrum of cybercrime; and the U.S. lags behind the EU et al. in adopting this basic mechanism of protection.

For instance, small-business owners making creative products sold on eCommerce platforms lack the resources to combat, or the margins to absorb, the pace of counterfeiting by foreign actors. Advancements in small-batch production methods and drop-shipping offer new flexibility for counterfeiters to flood the U.S. market with cheap knockoffs, harming both legitimate producers and consumers. Meanwhile, media pirate sites are delivery platforms for malware used for cyber extortion (including sextortion), identity theft, and direct theft of private and sensitive material from personal and business networks.

So, although the MPA will likely be the most prominent advocate of site-blocking legislation, there are many disparate parties—from small-business owners to advocates fighting online sexual abuse—who may see the value in the U.S. finally adopting a remedy the EU et al. have had in place for a decade or more.

An Interesting Moment

In 2011, it was easy to spread the message that site-blocking was only about “Hollywood” protecting its wealth to the detriment of speech on the internet. It wasn’t true then, of course, but it will be interesting to see whether some form of the same rhetoric will gain traction in the coming years. Specifically, a whole generation has grown to young adulthood since then—kids who never heard the proverbial boy cry wolf the first time. Notably, Torrentfreak reports that GenZ exhibits a high rate of pirate site access, citing familiar rationales that streaming subscriptions are too expensive and/or that interest in one title militates against subscribing to the necessary channel.

But what will really be interesting to watch over the next few months will be GenZ’s susceptibility (or not) to the “Save TikTok” campaign already underway. On April 24, President Biden signed a solidly bipartisan law stating that TikTok will be banned in the U.S. unless, within nine months, owner Bytedance sells the platform and, thereby, severs all ties to the Chinese Communist Party (CCP). Bytedance, in addition to vowing it will fight the law in U.S. courts, has already launched a PR campaign, including social media messages that will tap into the same emotional triggers used during the “Stop SOPA” campaign.

As Google & Co. did in 2011/12, Bytedance will use its addictive interface to promote the message that its business interests are synonymous with their users’ rights, only this time, the rhetoric isn’t coming from Big Tech filtered through the Electronic Frontier Foundation—it’s a psyop of the CCP. The efficacy of the “Save TikTok” campaign will be telling, not only about the viability of site-blocking legislation, but about the hoped-for savvy that “digital natives” might reveal about navigating the perils of cyberspace.

In 2011, it was frightening to watch the platforms use the insidious power of the platforms to advocate the policy interests of the platforms. Now, that same playbook is being run by a foreign adversary targeting 170 million 18-29-year-olds, and it is an anxious moment, to say the least, waiting to see how they respond. Regardless, the underlying rationale for site-blocking is sound, and I hope that both copyright and non-copyright interests see it as a necessary protection of American enterprise and security.

Photo by: tommoh29

Book bans deserve opposition, but not debate.

book bans

The Authors Guild, of which I am a member, has filed an amicus brief asking the Eighth Circuit Court of Appeals to affirm a lower court ruling that Iowa’s book ban law is unconstitutional. And of course it is. The subject barely warrants legal examination because it is impossible to draft a content-focused general book ban law that does not violate the First Amendment. And while there is reason to expect that ruling to be upheld on appeal, this cautious optimism does little to resolve the question as to why book ban efforts are more energized than they were 10-20 years ago.

Based on the titles highlighted in the AG brief, it is fair to assume that once again, conservative extremists have their righteous undies in a bunch over the inherent “evil” of sex. Iowa legislators join those in Texas, Florida, Arkansas et al. in the view that both fiction and nonfiction works that in any way confront, describe, or allude to sex, or sexual identity, are so dangerous to American youth (even teenagers who are having sex) that they must be removed from distribution.

Fear of sex is nothing new for the religious right, of course, but the current increase in book banning efforts appears to be animated by a reaction against wider social acceptance of a broader spectrum of sexual identity—i.e., a moralizing backlash against openly gay, nonbinary, and transgender persons. The sweep also includes reactions against subject matter dealing with race, and if (God forbid) any book addresses both race and sex, the earth will shake. As such, the novels of Nobel Laureate Toni Morrison make everybody’s list.

In public statements, politicians advocating book bans will portray these laws as necessary to protect children from age-inappropriate sexual content, but there is no truth to this implication, either in practice or law. Not only is there no evidence that teachers are reading Bukowski to third graders, but laws like Iowa’s are sweeping, content-focused bans for all libraries serving all students regardless of age. As old as the recurring theme of sex in book bans is the axiom that book banners, by their very nature, are illiterate. There is no more sense in arguing constitutional principles with these people than there is in talking cosmology with a gibbon.

Sure, one could explain for the umpteenth time that the five freedoms of the First Amendment very intentionally proscribe all rationales for state censorship. But for whose ears do we repeat this? Do the legislators endorsing these statutes know even a fraction of the history behind the Bill of Rights? Can they so much as theorize why the Constitution rejected the underlying frameworks of England’s censorious laws? Can they trace any portion of the narrative from the 14th century Lollards, through Henry VIII, Milton and Aeropagetica, royal patents entangled with the politics of the Church, the Puritan adventure to North America, and the next 160 years of history to get to the Constitutional Convention?

I ask because the constitutional framers (some who were total horndogs, BTW) knew that history from reading books! As such, the First Amendment, in 45 words, neatly encompasses centuries of lessons learned about successful and failed states to form a critical building block in the Plan for a nation unlike any that existed before or since the U.S. Constitution was ratified. In short, no book banning allowed—not even for allegedly “protecting the kids” from sex, an effort which, like book banning itself, has a history of spectacular failure.

Consider this detail:  the AG brief notes that among the prohibited books is “Laurie Halse Anderson’s Speak, which has helped countless teens work through the trauma of sexual assault.” By what twisted logic does banning such a book “protect” anybody from anything? Legislators with any real moral judgment should be focused on the “countless victims” of sexual assault, not the books that might help them heal. But again, you can’t explain such things to gibbons. This is what happens when alleged principles are unmoored from education—e.g., when one censors books without reading them. Any position taken to extreme will inevitably cross the boundary where the advocate contradicts his own core values, proposing unworkable, unconstitutional laws that can only be sustained by hypocrisy.

And I get it. I sympathize with the emotion. After all, it would be short work to argue that religious exercise has been the cause of more violence and depravity throughout history than all the smuttiest literature ever written. Yet, despite the mountain of evidence one might compile to support that thesis, the First Amendment is clear:  religious exercise may neither be prohibited nor compelled. And so it is with speech. It’s called democracy.

Photo by: mpalis

As Course Materials Prices Drop, Dept. of Ed. Proposes a Risky Rule Change

course materials

About 25 years ago, when my first child was a little kid, I predicted to a friend that by the time that boy was an adult, higher education in the United States would be in crisis—both financially and culturally. It was clear then that the rate of increase in costs implied a level of borrowing that the market could not sustain, even for students from middle- and higher-income families. Combined with various cultural factors, trends in education, and changes in the workforce, it seemed inevitable that we would soon have a generation of new graduates, carrying heavy debt burdens, looking at a market with radically shifting prospects, and wondering why they got degrees in the first place. (See McKinsey report.)

I mention all that by way of saying that while I endorse the spirit of the Biden administration’s intent to lower the cost of higher education, I am baffled by the Department of Education’s proposed rule change to a cost-saving program that appears to be working. Because one expense that has been trending downward over the last decade is the cost of course materials, thanks to an Obama-Biden administration initiative generally known as Inclusive Access or Affordable Access.

Today, more than 1,900 schools participate in access programs whereby Title IV funds (grants and loans) are used to pay for required course materials as part of a student’s tuition. This enables colleges and universities to bulk-buy digital versions of the materials and lower costs overall, and it enables students receiving financial aid to access the materials on day one rather than wait for funds to be processed a week or more after the start of the term.

Academic researcher Michael Moore, in a letter urging the department not to “gut” the program, writes that overall cost of materials has declined as much as 57%, and his research further shows both grade increases and higher rates of course completions across the student body since Inclusive Access was implemented in 2015. Not surprisingly, the increases in success rates are more dramatic among students likely to be at higher risk due to materials affordability.

But now, in what may be described as a scramble into the couch cushions to find savings, the Department of Education appears to be treating the inclusive access program as one of the “junk fees,” which the administration has promised to root out of rising costs in various sectors. The basis for the criticism is the opt-out model whereby the funds for course materials are automatically rolled into the cost of tuition, but switching to the opt-in approach proposed by the rule change could end the program altogether and drive materials prices back up for millions of students.

I do not have the specialized knowledge to comment on school procurement or to fully unpack the numbers, but if the research data generally indicate that the program is succeeding as intended, it is natural to wonder whether the Dept. of Ed’s rationale is well-founded. This is perhaps acutely concerning in light of the department’s ongoing FAFSA debacle. Seeking to make that process “easier,” the department has created what NBC News calls “a bureaucratic purgatory,” and so it seems more than fair to question the department’s thinking vis-a-vis Inclusive Access.

According to one committee memo that appears to sum up the department’s reasoning, the savings numbers are allegedly inflated by the publishers et al. because the lower cost of the digital materials is contrasted against the retail cost of new printed textbooks. Hence, the memo accuses the publishers, and parties like Barnes & Noble facilitating the program, of exaggerating the savings by “comparing apples to oranges.” But given the generalities presented, and lack of rigorous data cited, in the memo, it’s not clear that the department isn’t trying to compare apples to a whole fruit stand.

For instance, the memo alludes anecdotally to cost-saving strategies like buying used print books, sharing books, reselling books, etc., and on that basis, predicts that an opt-in approach would enable student’s more choices to spend even less on required materials. But even from a cursory glance, the department has not—indeed it probably could not—examine the question at the level of granularity that would be necessary to conclude that it needs to put the program at risk. For example, not only is the supply of used printed books limited, but the memo seems to imply without reason that those books are superior to the digital materials obtained through the access programs.

In fact, the digital course materials include features like interactive engagement between student and teacher that foster communication and performance tracking. (My books never did any of that, and we bitched about prices then, too.) On that topic, one report cited by the above-mentioned memo shows that about 50% of students currently spend between $100 and $300 per semester on textbooks. More compellingly, College Board reports that the average cost overall for required materials is just $310/year, which is no more (and may even be less) than we paid in 1984 when I started college, if we factor for inflation.

Naturally, students majoring in highly technical fields or getting advanced degrees are acquiring more costly materials, but even at the upper end of ~ $500 per semester, that’s about 3% of the average total cost for a year of college in the United States. It’s not nothing. But given that the primary purpose of college is to study and learn from the materials, it does not seem like 3% of the overall cost is wildly out of proportion. Moreover, government programs can never address every individual’s need, nor certainly satisfy every individual’s perception of costs. At best, most beneficiaries of a program will be in the median, and this rule of thumb appears to be borne out by the data on Inclusive Access. As such, the Dept. of Ed, in naively claiming it can accommodate all students could end up reversing the progress made for many students.

Finally, the copyright nerd in me wonders whether there are any whispers inside the department from the folks at organizations like SPARC, which promotes open educational resources (OER) as low-cost or free substitutes for materials from traditional publishers. Notably, the quality-control on OER materials is inconsistent and, therefore, risks lowering costs by lowering standards. I cannot say whether SPARC et al. are influencing the department’s thinking, but the lack of rigor in the argument for the rule change does resemble the kind of generalized talking points made by the free-culture, anti-copyright crowd.

We all know the adage you get what you pay for, and in fairness, this is not always true. In Biden’s State of the Union, he referred to food companies putting fewer “chips in the bag” for the same retail price, which I sincerely hope was meant as an example of a broader problem. Regardless, college course materials are not potato chips, mass produced for pennies a pound, and funding that supports the creation of high-quality course materials for America’s college students should not be characterized as “junk fees’”

Quality course materials must be written, edited, illustrated, produced, and (if digital) coded by professionals with expertise and skill. The cost of all that work is not zero, and the optimal price for these materials must be derived from analysis of data, not purely driven by anecdote and perception. For now, if the data all indicate that costs are trending down while student success is trending up, the Department of Education should be wary of rashly upending one initiative that happens to be working.

Photo by: Milkos