Tag: jerry brito

Your rights are in my freedom.

It’s another Independence Day weekend, and I can’t help but notice that we find ourselves this year grappling with some unfortunate consequences of liberty run amok.  We’ve got open-carry nuts sporting assault rifles in department stores and coffee shops to prove how free they are; and we’ve got the supreme court granting business owners the right to discriminate against employees on the grounds that said discrimination can be considered the free exercise of religion.  These real-life manifestations are borne in the logic of narcissism in which the self-righteous individual believes in liberty that is not bound by the limits imposed by the rights of others. It is the same logic that says legalizing a same-sex marriage is an infringement on religious exercise.  And like it or not it is the same logic that attempts to absolve many sins of the digital age in the name of free expression.

It sounds good on paper, but in reality, freedom without limits isn’t freedom for anyone but the powerful, whether that power is derived by wealth, political influence, technological prowess, or violence.  On July 1, a debate was held at the American Enterprise Institute on the matter of intellectual property rights during which Mark Schultz of the Center for the Protection of Intellectual Property at George Mason University said the following:

“If our only understanding of liberty is if I get to do whatever I darn well please, it is a five-year-old’s understanding. A grown-up understanding of liberty is ordered liberty, competing claims that need to be reconciled through a system.”

The underlying question in that debate was whether copyrights are a right or a privilege, but it is instructive that even in this academic forum on intellectual property, Schultz feels the need to affirm a definition of liberty that (he’s right) ought to be obvious to any adult. In short, liberty is not all about what we want.  One of the reasons I began writing about digital age issues and intellectual property is that many of the arguments used to rationalize negative social behaviors (e.g. piracy) are First Amendment arguments; and it seemed to me the right of free expression was being stretched beyond reason in ways that mirror the aberration of free religious exercise we saw this past week with the Hobby Lobby case.

Do women have a right to comprehensive health care, including contraception?  Yes, according to federal law, they do; but the supreme court just said they kinda don’t, that this right has been recast as a privilege to be offered at the discretion of an employer based on his personal moral code.  Many of us are hopping mad about this, and we should be, both in practice and in principle.  It is quite simply a grotesque distortion of the free exercise clause that sets a precedent begging for abuse by people in positions of power over individual workers.

But what about my colleague Mark Schultz debating copyrights with academic libertarians like Jerry Brito of the Mercatus Center at George Mason University, who want to recast this longstanding right as a government granted privilege?  Copyright is less emotionally charged (and ultimately less critical) than the health of American women, but the false logic being applied is very similar, as would be the consequence in that the wealthy and powerful would ultimately win another victory over individual workers.

Central to the arguments made to eliminate or severely weaken copyrights is a claim that the rights of individual authors limit the right of free expression.  This is similar backward reasoning to “your right to contraception violates my right of religious expression,” and again it is an idea based in narcissism and backed by corporate interests.  We all are entitled to the right of free expression and the right of intellectual property protection, if we want the latter; so why give up either right when we can have both?  It’s as much a false dichotomy as religious freedom vs birth control.  It’s what happens when we can’t tell the difference between freedom and a free-for-all.  And in a free-for-all, the biggest bullies usually win.

What’s in a Search Result?

Ukranians faced off riot police yesterday in Independence Square, a tense scene that ended peacefully for now, with police forces withdrawing.  The protests are sparked by anger over president Viktor Yanukovich’s apparent stonewalling on signing a trade deal with the EU that would further emancipate the fledgling democracy from its former Soviet occupiers.  The pact would bring badly needed investment into the nearly-bankrupt country of 46 million and help break the stranglehold Russia has on its industrial sector as the sole supplier of natural gas.  Meanwhile, what are Americans and other citizens who enjoy diverse economies quibbling about?  What movies are available online of course.

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My colleague at Vox Indie, Ellen Seidler brought it to my attention that a Google search for “movie piracy” will presently bring up as the second result an October 15th article written by Timothy B. Lee, a libertarian with views generally hostile toward copyrights.  Lee offers yet another variation on the message “piracy is a reaction against industry failure” by pointing to a handful of top movies that are supposedly unavailable to stream or purchase online through paid services yet. Although the central fact is exaggerated — some of the movies cited are available — Lee unblushingly quotes fellow libertarian and team leader of Piracydata.org, Jerry Brito, thus:

“The MPAA is complaining that Google leads people to infringing links, but what’s the alternative?” The movies that are available on file-sharing sites, he says, are “very rarely available for legal acquisition.”

Oh the humanity!  What is the alternative indeed?  What will my long-suffering fellow countrymen do of an evening if they cannot find a recently released movie on demand? Are they to risk carpal tunnel searching aimlessly?  Or watch something else, like maybe a film with an older release date?  Or (perish the thought) read something????  What is the point of living in a free and culturally diverse society?  What is this, Ukraine??

If you’re an American, everything about this search result should worry you, and everything it’s communicating should embarrass you. As for the worrisome part, if you read Ellen Seidler’s post about Lee and Brito and the Mercatus Center, the information-control process looks like this:  a user types in a broad search term like “movie piracy,” Google ensures that this pro-piracy article is the number two result, and the body of the article promotes the agenda of from an organization that is heavily funded by anti-labor, anti-civil-liberties forces like the Koch Brothers.   As many of us keep saying, the anti-copyright agenda is effectively an anti-fair-trade, anti-labor, anti-collective-bargaining agenda disguised as a pro-liberty agenda, and that brings us to the part that should embarrass you.  Because this message only works if you the user really believe that instant, round-the-clock access to all content is a right tantamount to a civil liberty.   If you honestly believe that, read about Ukraine this week. This is a nation hungry for a diverse economy, and I’ll bet the Ukranians would dearly enjoy a rich IP sector modeled after countries like the U.S., where artists are rewarded instead of, you know, jailed.  By contrast, people like Lee and Brito sound a hell of a lot like my kids complaining that there’s nothing to watch on television.

Strange Theater at the CATO Institute

“To keep up even a worthwhile tradition means vitiating the idea behind it which must necessarily be in a constant state of evolution: it is mad to try to express new feelings in a “mummified” form.”
– Alfred Jarry –

Legal expert and blogger Terry Hart and I had the chance to meet in DC this week, and we were discussing the likelihood that, although copyright is dispos’d in brawl ridiculous on the virtual battlefields of cyberspace, that most people neither know nor likely care much about the subject. This is probably a good thing as there are more serious matters at hand. Still, one of the reasons I personally do pay attention to this digital-age donnybrook is that, beyond concern for the rights of creators, the future of culture, and the economics of the creative industries, my sense is that there are some strange, ideological forces at play.

A couple of weeks ago, I wrote a post asking whether or not conservatives and libertarians are eager to take up copyright reform under the umbrella agenda of small government.  My post was in response to a somewhat haphazard brief, published and then retracted by the Republican Study Committee.  And last week, the libertarian Cato Institute hosted what I can only describe as a piece of absurdist theater entitled Copyright Unbalanced: From Incentive to Excess, so named for the book edited by Jerry Brito and co-authored by Tom W. Bell, who were the featured speakers

As usual, I’ll direct you to Terry’s blog for legal analysis of the presentation but offer my take from a broad perspective. The premise is that copyright law has expanded beyond it’s original intent (translation: an example of big government), and the conclusion proposed is that copyright law ought to revert back to its status of 1790 (translation: strict constitutionalism).  So, as a purely academic exercise, I get why this stage play might seem attractive to libertarians or conservatives; but as we contemplate taking these proposals seriously in the real world, we run headlong into some peculiar hypocrisies and contradictions.  Libertarians and conservatives looking to weaken the notion that intellectual property is property? Or even stranger, the same groups suddenly emphasizing the “public good” over the individual?

Now, I personally have come to reject most political labels, which seems only rational when liberals classify me as a conservative, and conservatives as a bleeding heart liberal.  But no matter what ideological alliance is being claimed, I’m always concerned when anyone makes a case that any law ought to remain static as of the 18th century.  I believe there is an inherent danger, somewhere between impractical and barbaric, to propose living too strictly according the gospels of ancient men. (Just look what happens when people try to cherry-pick the Old Testament for political purposes.) Hence other than selling a book (and no it doesn’t seem to be available through Creative Commons license), it’s a little hard to fathom what in any practical sense Brito and Bell are proposing with regard to “re-balancing” copyright.  There may be a rational conversation to be had about the present system and duration of terms, but Mr. Bell’s loftily presented assertion that it’s obvious we should simply erase 200 years of jurisprudence and reset the clock to a time before mass publication of books even existed doesn’t exactly have the ring of balance to my ear. On the other hand, I might be game for resetting the letter of the law to 1790, if we are willing to restore remedies from the same period.  I mean, who doesn’t want to bring back dueling or good old-fashioned belaboring one’s ideological foe with a cudgel? Or the word cudgel, for that matter?

Most of us recognize that technological innovation is a primary reason why copyright, not to mention quite a few other laws, has grown and evolved since the world was new. In the case of copyright, of course, technologies have created new media the framers could not have imagined, as well as new ways to consume media and new ways to steal media. Yet, Brito and Bell seem to want to ignore these and other realities and regress the law as an ideological principle to a time when the U.S. population, including slaves, was roughly 3.9 million. That’s about one million fewer people than visit just The Pirate Bay on a daily basis to enable mass copyright infringement. Shift this same academic argument about half a click toward the subject of patent protections, and I suspect that any conservative or libertarian support for the larger rationale will quickly vanish. And that’s part of what was so bizarre about the presentation — the fact that Brito and Bell seem to be weaving a very narrow and serpentine path through conservative and libertarian values, not to mention running smack into conflict with the preachings of Ayn Rand from a stage built partly in her honor.

Brito himself invoked the name of Rand, and all I could imagine was the smoky old tart choking on his assertion that copyright is not based in any kind of natural right of the individual.  By choosing to interpret the clause on copyright “To promote the progress of science and useful arts…” in the most collectivist sense, Brito and Bell would earn themselves an indignant tongue-lashing from Ms. Rand were she alive to hear them.  After all, even a half-stoned teenager forced to skim the novel Atlas Shrugged would be able to glean that Rand placed value solely on the individual’s absolute, natural right to exploit for profit any type of product of his own mind without restriction of any kind ever. She reviled the notion of performing work “for the common good,” even voluntarily; and she defined those who would profit from the work of others, either by design or by circumstance, as “looters.”  Hence, in the digital age, Rand would see the rise of “looters” among torrent sites, the users of these sites, Google, advertisers, payment processors, etc.  So, it’s odd enough to hear collectivist proposals about any property right at the Cato Institute, but it’s even more bizarre that these academic proposals would supersede a pragmatic discussion about the unmitigated expansion of “looting” in our times.

Of course, we shouldn’t be surprised that so many tech bloggers are swooning over the assertions of  Brito and Bell.  Those who aren’t working directly for the Internet industry have culturally bought into the premise that copyright stifles innovation and new business, so they’re thrilled to hear anyone propose rolling back copyright until it’s all but irrelevant.  Of course, I have yet to hear any “new business” concepts whose aims are actually stifled by copyright. Instead, we continue to hear the same kind of vague predictions that we’ve been hearing since Web 1.0, when investors were lulled into launching start-ups that had no foreseeable revenue stream. Hence, without real data on real businesses being held back, I have no idea what’s conservative about this basis for a discussion about copyright reform.