Tag: Goodlatte

Copyright Principles & Consensus?

Yesterday, the House Judiciary Committee held a hearing meant to lay some of the groundwork for overhauling copyright law in the United States.  The title of the hearing is “A Case Study in Consensus Building: The Copyright Principles Project,” suggesting that the “project” is about establishing premises and ground rules for how the debate might be framed going forward.  I suppose because the word consensus is also part of the title, several lawmakers and the witnesses called to testify repeated the rhetorical question as to why debate about copyright has become so contentious.  For authors and creators who actually use copyrights to forge professional careers and build businesses, this feint at decorum will elicit a justifiable sneer because it’s kinda like saying, “All someone did was spit in your eye, and I don’t know why we can’t now have a civil discussion about the principles of expectoration.”  Of course, there weren’t any authors or creators present at this hearing, and that in itself has been cause for concern.

For the lawmakers who asked the question in earnest as to why the debate on this issue can be so vituperative, they need only have paid close attention to one subtle but significant choice of words in the testimony of Professor Pamela Samuelson when she was asked about the matter of online piracy.  Samuelson, the lead author of The Copyright Principles Project, stated that individual artists are at “some disadvantage” in protecting their rights on the internet.  Some disadvantage?  Like a lone Boy Scout would be at some disadvantage fending off a mechanized armored division.  The thing about consensus is that you can’t ask for it if you’re going to propose a foundation of “principles” predicated on lies and half truths.  The correct answer to the question asked of Professor Samuels is “Individual artists don’t stand a chance of protecting their rights on the internet; they might as well shout their grievances into the next passing hurricane for all the remedies and resources at their disposal.”  Had the good professor said something remotely descriptive of the true nature of this problem, then perhaps we can have a big ol’ debate as to whether or not anybody cares, as I suspect many lawmakers and fellow citizens do.  Keep in mind that the scale of the problem as I describe is not even disputed by some of copyright’s most vocal antagonists and piracy’s most vocal supporters.  “You can’t stop it, don’t try” was a familiar mantra during the dustup over SOPA, and with just one BitTorrent site claiming three billion page views a month, they may be right. But let’s not equivocate as to what creators are up against as we presume to “build consensus.”

This past March, The Wall Street Journal published a profile of the anti-piracy unit within NBCUniversal, and even this group of dedicated professionals funded by a major corporation can hardly keep up with the rate or volume of unlicensed distribution of their properties.  By contrast, independent filmmaker Ellen Seidler has documented in great detail exactly what the experience is like trying to protect just one small, niche film from being hijacked and monetized by criminals and Google.  Lawmakers should be aware of the facts and aware of the obfuscation, however subtle, being employed by academics like Professor Samuelson.  At the same time, the general public should be aware that not every idea that comes out of an academic’s head makes it automatically a good idea no matter how prestigious their company.  In academia, one doesn’t make a name for oneself by defending the status quo, but rather by bucking a system, even going so far as to identify “problems” within a system that may not be problems at all. Academic study is critical to a progressive enriched society, but we should never underestimate the motivating factors of ego and self-promotion and grant acquisition when reading between the lines.

On the subject of what is supposedly wrong with copyright, the other theme of the day in addition to why we can’t just all get along, was a substantial amount of griping and joking about complexity.  Copyright law is too complex, say the witnesses and a few legislators, and I have no doubt that it is complex and maybe too complex in certain areas that require streamlining.  But as a general rule, is copyright law more complexly burdensome than any number of other laws?  Isn’t that why people study the law in challenging post-graduate schools and then have to pass a really hard test before they’re allowed to practice the discipline professionally?  More to the point, though, if technology has made the world of consuming content more complex, is it disingenuous to suggest that revising copyright to balance the rights of authors and consumers in the digital age would not produce an even more complex set of statutes?  And if more complexity is required, so be it; but that’s not what’s being proposed.  What’s being proposed, at least by Samuelson & Co., is to simplify the legal system, which sounds good in theory; but it seems to me that the only way to “simplify” a law in an ever more complex world is to eliminate key functions of that law.  And since copyright’s key functions are the protection of authors and inventors, this begins to echo David Lowery’s distillation of the internet industry agenda:  “All your data are belong to us.”  No question that’s very simple.

So, again, the premise issuing from the chamber and reverberating on Twitter is predicated on smart sounding academic theory (i.e. simplifying a law) entirely untethered to a real or pragmatic world view.  The premise being proposed is that copyright ought to be easier to understand for any layman because it is now “everyone’s issue” because in the digital age, “we are all authors.”  This was the oft-repeated theme of live tweets by Gigi Sohn, President and co-founder of Public Knowledge and echoed at least once by Mike Masnick of Techdirt.  Of course, the truth is that just because the internet fosters a lot of production of stuff, that doesn’t make us all authors anymore than corporate softball teams make us all ballplayers.  On my best day, I don’t write as well as many authors I admire deeply; and on my worst day, I’m better than many a citizen whose claim to authorship is the possession of a smart phone and a pair of thumbs. So one can sit in tech-industry funded ivory towers and ruminate over the proposition that a novel by Steven Millhauser is of equal value to the random bits of personal detritus shared on social media, but if we consider for a moment that copyright ought to be amended based on this childishly whimsical proposition, then we might as well start burning the libraries this afternoon.

Speaking of Mr. Masnick, he live tweeted that his blood pressure was being elevated by the hearing because, as usual, “Congress doesn’t get the internet.” This is a familiar cheap shot available to anybody with an axe to grind.  One can start the sentence “Congress doesn’t get _______” and find any citizen or group to fill in that blank with their personal gripe du jour.  Of course it was very clear that certain lawmakers, including Hon. Collins, Hon. Chu, and Hon. Goodlatte, that Congress is not at all willing to automatically swallow unsubstantiated, academic theory as the sole basis for rewriting a legal system that has made the United States a leader in the professional production of creative and cultural works for more than two centuries. And had there been any creators asked to testify, they would have clearly demonstrated that academics like Professor Samuelson don’t know the first thing about the production of creative works or the nature of protecting them.  Somehow, all this translates into the failure of congress to understand the internet, but maybe it’s not that so much as some of the ideas being presented are kinda dumb and transparently self-serving.

On that last point, as more hearings like this one are convened in what will surely be a years-long process toward some kind of reform, we should not forget who the monied interests are that have the most to gain from weaker copyright laws.  The premise most often asserted in the name of “consensus” is that we cannot allow supposedly outdated legal systems to stand in the way of innovations that benefit society.  Again, this is a perfectly reasonable sounding position, but there should not be a lawmaker of any party who does not include economic growth in his or her definition of innovation, and this recent article in The Daily Beast should serve as a caution in light of the fact that intellectual property supported jobs still number in the tens of millions.  As the article’s author Joel Kotkin points out, “Today’s tech moguls don’t employ many Americans, they don’t pay very much in taxes or tend to share much of their wealth, and they live in a separate world that few of us could ever hope to enter. But while spending millions bending the political process to pad their bottom lines, they’ve remained far more popular than past plutocrats, with 72 percent of Americans expressing positive feelings for the industry, compared to 30 percent for banking and 20 percent for oil and gas.”

Copyright may be a little hard to understand, and some members of congress might not “get” the internet, but it doesn’t take a law degree or expertise in code writing to know what a contemporary Robber Baron looks like, does it?

Whose Future Is It?

Compressorhead, the all-robot band that plays hits by AC/DC, Motorhead, and The Ramones, represents another step toward a technological future in which machines continue to perform tasks as well as (or better than?) humans.  Many a techno-utopian  envisions a world in which human labor, including creative and performing arts no longer represents economic or social value.  Naturally, the prospect of a robot that can unfailingly impersonate virtuoso musicians leads to the inevitable assumption that this technology will eventually converge with Artificial Intelligence and produce a robot that can compose as well as perform.  This then raises the philosophical question about the present and future role of the artist or performer in society.  After all, what is the experiential difference between listening to two identical-sounding guitar solos played either by man or machine?  Nothing except of course the entire purpose of art — and just maybe the entire purpose of living.

Much of the discussion about our technological future is predicated on the central theme as to how much autonomy we want to cede to our machines?  While it’s reasonable to accept that a doctor-supervised robot can perform a delicate surgical technique without the human fallibility that causes hands to shake, current research into the use of IBM’s Watson in the work of diagnosis and prognosis begs the question as to what the human doctors of the future might do.  Meanwhile, Human Rights Watch just launched a campaign against the use of autonomous weapons capable of making battlefield decisions to kill a human target. And as Google works with other technologists to develop the driverless car, I have my own doubts about the prospects of its reliability given the rate of failure of ordinary MP3 players. These and other stories, of course, imply a progression toward the technological singularity, and it’s hard to avoid the sense that we might cross that event horizon without making a conscious, collective choice to do so.

It’s true that we mortals are imperfect, born of imperfection itself by the miracle of chance, composed of detritus from exploded stars.  We are finite, fallible, and fragile; but through experiencing one form of expression or another, we seek exaltation, we connect to one another, and we continually redefine what it means to be human for as long as we’re here. I believe this is why it’s exciting to watch an Olympic athlete perform a feat impossible for most of us but still achievable by a being who is one of us.  If we could not sense the fragility of our own joints or know the blunt, unforgiving nature of gravity, the flight of the figure skater would be a mundane exercise in high-school physics. It may be true that the capacity to build a machine that might replicate the subtle and complex motions of a skater is a human triumph in itself, but the ultimate value of such an endeavor must be something other than the android athlete. Once the novelty of the shiny object wears off, we will be no more excited to watch this object do a quadruple Lutz than to watch a forklift load a truck.  So it is with art.

Art absent the human hand serves no particular purpose.  If this were not the case, the world wouldn’t need Rostropovich and Yo Yo Ma, let alone the range of compositions for cello that come from a diversity of human imperfections. While many popular works, particularly in film and music, are so formulaic, they could arguably be the products of an algorithm, even these works often contain within them component features of extraordinary human creativity (e.g. great design in an otherwise lame movie) and so remain safely on this side of the event horizon.  The future, however, in which the robot wakes to compose and then perform its own songs is a tipping point when art becomes the expression of the robot condition.  Thus do our machines become our masters as we see in so many sci-fi, cautionary tales.

I remember a radio interview with Pete Townsend at least 15 years ago, in which he described breaking his hand and said that he would likely never be able to play with the speed and agility he once had.  And I suppose, with a few keystrokes, the lead guitarist of Compresorhead, Fingers, can be programed to reproduce Townsend’s intro to “Pinball Wizard” just as Townsend played it as a young man.  Hell, Fingers could even be programmed to smash its guitar at the end of the song, creating a bit of android satire.  Of course, what Fingers doesn’t have is a grandmother who shouted at him as a teenager to stop playing that terrible rock-and-roll and so inspired the first smashing of his first guitar.  And in this act is a glimpse into the significance of the cultural revolution in the U.K., where a generation of fatherless kids grew up in the gray rubble left by WWII and burst forth in a profusion of color and sound, themes that reverberate throughout nearly all the music of The Who.  It isn’t just about the data and the mechanics that produce the sounds.

This week Senator Goodlatte announced the start of the months long process to overhaul the copyright laws of the United States, and in his statement, he refers to the ongoing need to update and revise copyright to adapt to changing technologies.  But nowhere does the senator even imply that the basis for intellectual property rights has lost a fraction of value.  It’s safe to say that technology will continue to evolve according to the acceleration predicted by Moore’s Law, but this does not mean that we must inevitably relinquish control to our machines.  Preserving the basis for copyright and intellectual property law is about keeping the human in the human condition.

Photo by: Zyabich