Tag: free speech

Paying Attention to the Echo Chamber at CES Copyright Panel Discussion

“The Pirate Bay is speech.” This is a quote from one of the gurus perched on the mountaintop of techno-utopianism, John Perry Barlow, who appeared yesterday as a member of a panel discussion held at CES2013 in Las Vegas.

The subject of the discussion was “A pro-artist/pro-innovation approach to copyright,” although the panel did not include anyone representing any counterpoint from contemporary artists, and the conversation was typically vague on what exactly these folks mean by “innovation.” According to moderator Declan McCullugh, a reporter for CNet, an invitation to join the panel was declined by the MPAA; and I suppose that could be considered an effort toward balance, although I think it’s a little like saying, “We’re here to talk auto manufacturing, and the president of Ford doesn’t want to be a straw man, so we didn’t bother to invite any of a zillion other people who make a living actually building cars.” To his credit, McCullugh was mildly deprecating about the one-sided, anti-copyright love fest he was hosting — there’s not much to moderate when everyone agrees with one another — but that doesn’t mean the discussion failed to reveal anything of interest.

The full panel included:

  • John Perry Barlow – Co-Founder , Electronic Frontier Foundation, EFF
  • Wilson Holmes – Co-Director , Fight for the Future
  • Mike Masnick – CEO and Founder , TechDirt
  • Hank Shocklee – Founder and CEO, Shocklee Entertainment
  • Gigi Sohn – Co-Founder and President, Public Knowledge
  • (And surprise panelist) Derek Khanna

Of course, had the panel included an independent filmmaker, a small record label producer, a photographer, or an independent musician, the conversation might have been forced to settle down from its lofty heights and overused talking points poking “the content industry” into the nuts and bolts of everyday realities faced by middle and working-class creators. But the petty challenges of middle-class individuals seem to be of little concern to these folks, who believe they’re on a mission to bring about a brave new world. Gigi Sohn stated that any kind of new anti-piracy legislation, were it to dare raise its head in the post-SOPA landscape of net snipers like Public Knowledge, ought to be “grounded in reality.” It’s hard not to laugh at this in light of the fear-mongering exaggerations promoted by her organization and others about SOPA, but beyond that, reality is by definition something different from the the Internet. As such, I’m grateful to Barlow for making one of the few declarative statements that gets right to the reality underlying much of the noise on these issues.

We could set aside all the nit-picky squabbling over dollars lost and earned by big corporations, all the petty complaints about occasional, improper takedowns, all of Lawrence Lessig’s celebration of remix culture and Derek Khanna’s vague references to innovation, and make a decision as a society as to whether or not Barlow’s statement, “The Pirate Bay is speech,” is correct.

Taking a conservative point of view, law is what we as a society agree is immutable (e.g. murder will probably remain illegal), and anything beyond that is up for discussion and maybe shouldn’t be law. Before we could have a discussion about a new approach to copyright, then, we’d have to decide what, if anything, is immutable. Either Barlow is right that an enterprise like The Pirate Bay, which (let’s not mince words) makes its revenues by exploiting the works and investments of other people, is protected by free speech, or he’s wrong. This is a decision the next generation, one that is used to getting entertainment media for free, has to make; and I believe that if they make the expedient decision that Barlow is right, that they and their kids will pay dearly in the future. And the price could be more than the loss of creative culture.

I think it’s safe to say that, before we were on the Internet, before everything could become sharable data, that nobody would rationally have argued that selling bootleg CDs out of a car trunk would be an act protected by free speech. That being the case, the philosophical/legal question is, “What’s really changed?” The techno-utopian says we have to expand our definition of speech on the grounds that, in the digital age, it is all too easy to chill speech; but they fail to acknowledge that they’re standing on a theoretical peak with slippery slopes on all sides. If we define everything as speech, then it’s true that any restrictions of any kind in the digital world can be said to chill speech. The slippery slope in the other direction, though, is that if the business of The Pirate Bay really is speech, then so is a site or a link that promotes human trafficking. As a matter of pure reason, what’s the difference? In real life, both enterprises involve the exploitation of actual human beings (albeit one more grave than the other); but in cyberspace, both enterprises are just benign data, right? Either we will choose to define boundaries going forward, or we will not; and I am not alone in believing the consequences of that decision will become very real within a couple of decades.

Techno-utopians like the ones on yesterday’s panel like to refer to the horrors of a grandmother having her video taken down, either purposely or by accident, from YouTube and then imply that each of these anomalous incidents moves us one step closer toward authoritarian rule. In response to the comparatively benign deprivation of having a video removed from the Web, these folks would have us hyper-extend speech to the inclusion of real physical and economic harm. As I have argued before, this is like legalizing homicide in order to make sure no one is ever again wrongfully sent to death row. If we can negotiate the gravity of such flaws in our legal framework, surely we can get past a few wrongful yet survivable takedowns on the web.

Ostensibly, this panel discussion was about a copyright system that’s good for artists and innovators; but Barlow’s foundational statement puts the artists, who historically test the power of free speech to profound cultural effect, on par with common thieves who dilute both the cultural and economic value of the works they steal. And the implications could be far more serious than what happens to music and movies. To quote Chris Ruen from his new book Freeloading, in which he unknowingly echoes the name of this blog: “But behind free content’s superficial illusion of more lies a long-term reality of less. Sooner or later, it is something we all have to pay for.” Looking beyond the Web’s ability to expand sharing of entertainment media, I believe that price could be something far more dear than money.

Printing Guns as Freedom of Expression

First, I’ll lay some cards on the table:  I believe, as many do, that the contemporary view of the Second Amendment exceeds common sense — that like the Third Amendment, it was written in a time and for a purpose that has been outdated for more than a century.  Yet, because it is etched into the Bill of Rights, the gun industry, the NRA, and libertarian and conservative pundits have been able to play the civil liberties card in order to fuel a vicious cycle that has made the U.S. the leader among industrialized nations in unchecked gun-related homicides.

With each new firearm technology that our musket-wielding founders could never have imagined, the lobbyists, industry representatives, and gun-rights activists assert that any move to regulate even new and stunning tools for committing mass murder would be tantamount to infringing on a foundational civil liberty.  The threat of regulation itself is then portrayed as an example of government tyranny, which becomes the justification for unfettered access to more weapons.  And the cycle continues.  As I see it, we end up condoning mayhem for the sake of an illusory principle based on an obsolete reality.  If you have similar feelings about gun proliferation and the arguments behind it, stand by because it could get much worse in the digital age.  Take people like Cody Wilson of the Wiki Weapon Project seriously, and we have to imagine a future in which the incessant diffusion of sophisticated weapons is protected not by the Second Amendment, but by the First.

Wilson, a University of Texas law student, founded the Wiki Weapon Project on a premise of  Second Amendment absolutism through technology.   With the apparent goal of one day making DIY guns as easy to produce as music is to download, Wilson’s agenda sees technology obviating any conversation about gun control. This question is posed on the Our Plan page of wilson’s site, DefenseDistributed.com:   “How do governments behave if they must one day operate on the assumption that any and every citizen has near instant access to a firearm through the Internet?”   The question, of course, is both paranoid and infantile because it skips past the fact that the U.S. government remains of and by the people; and many of us people do not hope for a future in which we are all heavily armed, least of all as a means to keep our representative government in check!  The premise is fundamentally suicidal, but it is one logical extension of the kind of free speech maximalism that entices techno-utopians toward inventive means of self-destruction.

Photo by Syntag
Photo by Syntag

To the techno-utopian, who spends perhaps a little too much time in virtual and actual ivory towers, nearly all human activity is destined to be protected by the unassailable right of free expression.  This is, after all, how the world looks to a computer — that we humans are just nodes sharing data with one another. This world view has been used to argue that media piracy is a form of free speech while ignoring the more tangible problem of counterfeiting; it’s been used to argue that child pornography should be legalized while ignoring the realities of bullying, stalking, or human trafficking; it’s been used to justify mass dumps of hacked information despite the fact that sometimes secrets actually save lives. And in Cody Wilson’s future, free expression would be used to justify access to designs and software required to have a 3D printer build you an assault rifle for pennies on the dollar and without regulation of any kind. This technology is hardly around the corner, but advancement tends to happen more quickly than we expect; and the Wiki Weapon idea raises some important social, legal, and economic questions.

If Wilson is right, for example, one thing we in the media world can assure the gun industry is that piracy of weapon design and software is inevitable. The long-standing NRA mantra “everyone should have a gun” may be on a collision course with the millennial generation sensibility that believes “information wants to be free.” Combine these two messages, and the gun industry will have a serious intellectual property problem on its hands, so much so that notions of federal regulations might suddenly look very attractive to traditional manufacturers.

I think the big question the Wiki Weapon Project really raises is whether or not we are prepared to allow technology to obviate the need for law itself, even to the extent that such absolutism just might kill more people in the very real world?  In 1996, John Perry Barlow embodied with The Declaration of the Independence of Cyberspace what many techno-utopians sincerely believe — that we crossed some line about twenty years ago whereby we effectively shed the rule of law for the rule of instantaneous vox populi linked through social media. At the same time, we often refer to the Internet, both positively and negatively, as “the Wild West.”  Call me crazy, but if the vision for the future is indeed the Wild West with real guns, I have a hard time calling that progress.

See Q&A with Cody Wilson on Popular Science.

Tools & Hands

We hear a lot about community and free expression when it comes to the Web.  From tech bloggers to legal scholars, the boosters spare little praise for the social benefits of technologically connected groups.  Some cyber gurus even go so far as to predict that these new communities are already spawning a new, populist dialogue that will ultimately change the nature of state governance itself.

In the wake of Friday’s heartbreaking events, we know of course that the blogosphere amped up on the subjects of gun control and mental health.  And while we tragically have to admit that there may be no policy safety net we might erect that would have stopped this particularly horrendous mass murder, I am hopeful that some of the shared opinions, stories, ideas, and even outrage might cause some measure of reflection on how we relate to the tools we create. Sometimes, social media really does foster a village, and we do extraordinary things like get help to hurricane victims or share thoughts with friends half way around the world and truly connect in ways I believe are unprecedented, profound, and positive.  But sometimes a technologically linked crowd is just one catalyst away from turning into a knuckle-dragging mob, and we need to pay attention to that, too.

When the Newtown story broke, I happened to be writing about Anita Sarkeesian, who appears in this video to talk about her experience with the wisdom of one crowd that didn’t like her form of free expression and sought to silence it in an ugly way.  Described on her blog as a feminist media critic, Sarkeesian launched a Kickstarter campaign last May to raise funds for a video project called Tropes vs. Women in Video Games, which examines the portrayal of female characters in these games and the social significance of those depictions. Sarkeesian is a gamer herself who works with, not against, the gaming industry; but that didn’t stop at least some of the online gamer community from launching a cyber attack on her that included death threats, rape threats, death with rape threats, invasions of her privacy through hacking, and a torrent of images depicting her likeness being violated and/or mauled in ways that suggest an investment of time, imagination, and loose coordination within the mob.

The average gamer in the U.S. is a male age 30, so this alliance of village idiots was not just a handful of dopey teenagers. And well beyond the gaming community per se, we’ve seen this kind of testosterone-rich, misogynistic cyber-bullying among high school kids, in certain memes, and even on the fringes of political debate.  During the overheated battle on SOPA, media executives were harassed at home, and a staffer for Representative Lamar Smith received similar sex-offending manipulations from netizens who clearly don’t know the difference between free expression and assault.  Happily for Sarkeesian, and for society’s better angels, revulsion to the attacks on her resulted in an outpouring of support, and she wound up raising seven times her original goal on Kickstarter. This enabled her to broaden the scope of her work, and several video game studios have also invited her to speak with them.

The clowns who attacked Sarkeesian are very likely a minority of gamers, probably even fairly decent people in real life, so is there something about the technology or the environment that brings out these depravities?  Odds are, you’ve been in chats where it’s hard to maintain or moderate a civil tone, even among friends.  Why do these interactions turn normal people into sanctimonious, vitriolic, trolls?  In his book You Are Not a Gadget, technology expert Jaron Lanier argues that the design of Web 2.0 is fundamentally dehumanizing, and here’s what he says about social media discourse:  “If you look at online chat about anything, from guitars to poodles to aerobics, you’ll see a consistent pattern:  jihadi chat looks just like poodle chat. A pack emerges, and either you are with it or against it.  If you join the pack, then you join the collective ritual hatred.”

I do believe tools sometimes have a way of becoming the masters of their makers, that certain tools are not exclusively neutral objects occasionally weilded by sinister or unbalanced people. Some tools change some people.  Isn’t this what the cyber gurus keep promising about the unchecked expansion of the digital age, a whole new kind of human being?  New maybe, but how human remains to be seen.  By relating to our toys and devices (and yes, even our guns) as extensions of ourselves, I think we all get a touch of a dissociative disorder that undermines empathy and, therefore, functional humanity.

In the same way some 2nd Amendment zealots imbue their weapons with a false notion of freedom from an imagined tyranny — therefore, turning a right into paranoia — I suspect the technology addicts who attacked Anita Sarkeesian imagined themselves as an odd band of freedom fighters.  They were using Photoshop and social media as weapons to defend their “way of life.”   And, of course, the hypocrisy is all too obvious — that the sexual nature of the attacks justifies precisely the questions Sarkeesian hopes to answer.

It seems we have a tendency to either want to blame or absolve certain of our creations for the harm that can be done with them. In the face of abhorrent, human behavior, we want simple answers to complex questions; but the truth is that it’s never one thing. It’s not as simple as blaming the guns or video games or violent movies any more than it would be to blame our keyboards for the almost universal lack of civil debate on the Web.  I don’t have answers anymore than anyone else.  What does seem true, based on the many comments I read over the weekend, is that we are groping around for our posterity and finding little satisfaction in the ever-expanding cacophony.  One word that seems to be at everyone’s fingertips right now is enough.  There’s a reason I call this blog The Illusion of More.