Inkwell: Authors and Artists

    <scribbled by mnemonic Tue 24 Jan 12 12:28>
  

    

(reposting with spelling error fixed)

Ed, I have a number of responses about copyright piracy. First, I used to
be more concerned about the word "piracy" than I am now -- then I realized
I was giving too much attention to fights over nomenclature when I should
be giving more energy to the underlying facts and policy. (As some WELL
people know, I'm one of the minority of progressives who think George
Lakoff's focus on "framing" is sort of laughably obtuse. As in, when
I say someone's "shepherding a bill through Congress," my mind isn't
secretly visualizing a guy in a robe with a rod and a staff to comfort
the bill.)

"Piracy" in the copyright vernacular is part of the debate now, and getting
into a quarrel over it just marginalizes us, IMHO.

So ... there are really two general classes of infringement that copyright
industries like to conflate: the first, truly problematic class is the one
that involves large-scale, seriously funded efforts to leech revenue from
the copyright companies. This used to be done via copied VHS tapes and
later DVDs -- now of course much more is done through digital uploads and
downloads (which may later be reduced to playable DVDs, of course).
The Megaupload legal actions do, more or less, tell us that the rationales
behind SOPA and PIPA are questionable, for a couple of reasons: (a) there
really is an international copyright enforcement regime, and law-enforce-
ment actions of copyright-treaty signatory nations work together to go after
these commercial infringers, and (b) nothing proposed by SOPA and PIPA
sponsors really addresses the problems and methods of these commercial
infringers. (Instead, as I've said, their goal is to turn Google et al. into
copyright enforcers, because it reduces their own enforcement costs and
creates a new class of well-financed defendants if the content companies
are unhappy with the results.)

The second general class of infringement is something we've had with us for
a long time, and that's the kind of sharing of content enabled by
consumer-electronics devices that duplicate content. The "problem" here
is as old as home-taping. (I am showing my age when I reveal that I made
mix tapes for my first girlfriend ... on my reel-to-reel machine, which was
hooked up to a Thorens turntable. We were both 13 at the time.) Later we
made cassettes, burned our own mix CDs, later burned DVDs, and now
carry around thousands of songs and/or gigabytes of video on USB key
drives.

Is this really the kind of "piracy" the content companies need to worry
about? On one obvious level, it isn't, since it arguably fuels the market as
much as it leeches from it. An example: when I first learned about the cult
favorite TV show "Community" and told friends about the show, many of them
"caught up" with the show by snagging copies of episodes via BitTorrent.
(Others, of course, used commercially legitimate services like Hulu Plus
or NBC's own site.) I know a guy who loved the show he downloaded via
BitTorrent so much that he bought the Season One and Two DVDs as a present
for his girlfriend. In effect, his unauthorized copying of some episodes led
to direct revenue for the owners of "Community," because he'd never have
thought of buying those DVDs for her if he hadn't watched the unauthorized
copies in the first place.

On some level the content companies know this kind of copying is innocuous
at worst; at its best it creates a market (or aftermarket) for the content
they produce. The problem for them is that advances in technology that
make friend-to-friend copying possible also make larger-scale commercial
infringement possible, and it's conceptually easier for them to target
technology and internet companies than it is to focus on whether a
particular defendant is really causing them financial harm.

What I know about the Megaupload cases suggests that these are particularly
egregious infringers, but I tend to agree that they demonstrate a certain
degree of phoniness about the official rationales for SOPA and PIPA.
  

    

Jon, can you remind me what the drill is for off-WELL people to post
questions and comments?
  

    
Ed, I think the takeaway from Julian Sanchez's article at the Cato
site is that the piracy problem is profoundly exaggerated by the
copyright industries. I was talking with a DC colleague yesterday, and
we laughed about the fact that the studios and publishers like to cite
their studies and forget to mention that, you know, they paid for the
studies. At one point I actually made fun of an MPAA "expert" who was
providing a chart that showed how advances in internet bandwidth and
compression were continuing to make infringement of movies easier, and
that this trend could be expected to continue upward in a steep curve.
I pointed out that if his projections were correct, a two-hour movie
would eventually be reduced to a single binary bit of data and take a
nanosecond to spread all over the globe. I made him stutter a bit at
this use of reductio ad absurdum, and while I had fun at his
discomfort, it was not my best moment of spiritual progress. He later
submitted his study to the FCC in a digital-television proceeding. In
less than a day I filed a point-by-point response letter titled "How to
Lie With Statistics."
  

    
If you're reading this and you have something to add, but you're not a
member of the WELL, send your comment or question to inkwell at
well.com, and we'll get it posted.
  

    
Could it be that the culture of sharing will become so prevalent that,
at some point, we really will rethink at least the duration of
copyright? Are there aspects of copyright, other than duration, that
could change without disrupting the intended stimulus for creative
work?
  

    <scribbled by tcn Tue 24 Jan 12 15:50>
  

    
This is probably naive, but as just a basic user of the Net, this
whole SOPA/PIPA issue drives me nuts, because I see it simply in terms
of business trying to tell me what I can and can't do and restrict
what
I like to think of as freedom. I understand the piracy/stealing issue
and wonder why it can't be worked out either under existing
international laws or in a narrow manner as it pertains to the NET. I
cannot understand where business thinks it has the right to come into
the digital realm and affect everything and everyone just to get their
way.

And I hear the footsteps of government right behind them wanting to do
the same thing.

Am I being too simplistic? Or are other dynamics at work here?
  

    

I think one way to understand the kind of political and economic
forces that fuel bad laws like SOPA and PIPA is that they reflect
both rational self-interest (on the part of the companies backing the laws)
and fear (in those very same companies).

Once you have a complex society -- and any society as large and divese as
ours is necessarily going to be complex -- you end up have governments.
And learning how to make your government work for you turns out to be smart
for anyone -- not just the bad guys (however you define them) but the good
guys as well. So rational self-interest plus knowledge about how to make
government work for you leads to a lot of self-interested, well-moneyed
players trying to influence government at every level, and especially the
national level. Even if one objects to that fact as a matter of principle,
it's something I think is going to be inherent in human societies as long as
we have them, and as long as our nature continues to be what it is.

Added to that self-interest is fear. Fear of current and future change in
general, and fear of decentralized, inexpensive, commonplace digital
technologies in particular. The content industries have ridden a long way on
the technological happenstance that copying content has been difficult,
expensive, and labor-intensive for centuries. (That of all those monks who
spent lifetimes retranscribing Aristotle and Virgil, not to mention the
Bible.)

Digital technologies changed pretty much every assumption the traditional
content industries were built on. Copying is easy and cheap and good -- so
is retransmission of copies. For the content industries, this all amounts to
technological earthquake that just never ends. You can't sue Junior for
transcoding a DVD movie to an uploadable .avi file and expect to get any
money, or any real deterrence, or anything like good publicity. But maybe
you can slow things down by burdening Google and Bing and Yahoo! and
Wikipedia and the administrators of the domain-name system with a bunch
of extra legal obligations. Will this make the internet less useful for
looking things up? Of course it will, but this isn't the content industries'
problem -- in fact, they rather liked the world better when you had to pay
more to look things up, because that is yet another content business model
under siege in today's digital world.
  

    
We used to say that the Internet "interprets censorship as damage and
routes around it." It still seems that any attempts to constrain online
freedom tend to fail; it's a genie that's out of the bottle. How might
the concept of copyright be defined in the context of this kind of
freedom, and the easy replication and distribution of content?
  

    
I'm going to answer your question shortly, Jon, but I've got some
stuff in my inbox this morning that I want to share with folks here
first, so I ask your patience.

First, I advise everyone here to read this article:
<http://www.forbes.com/sites/larrydownes/2012/01/25/who-really-stopped-sopa-and
-why/>.

This is the best single analysis of what happened to halt SOPA and
PIPA that I have read so far. One of its best features (and it has a
lot of good ones) is that it shows understanding of what
business-as-usual in DC policy circles looks like, why the "bit roots"
movement both circumvented and supplemented business as usual, and how
a number of current policymakers still don't realize that this is
scarcely any ordinary debate between one set of industrial players (the
content industries) against another (the tech companies).

More importantly, it reminds readers that MPAA and other content
players may have temporarily retreated, but they haven't given up.

As Robert Schwartz, a lawyer in DC at Constantine Cannon puts it on
the Lawfuluse mailing list:

'An important piece.  We can quibble that Larry understates the long
and hard D.C.-based efforts by Netco, PK, CDT, CCIA, CEA, the
libraries, the universities, EFF, and many others to demonstrate to
congressional staff what was wrong with the drafts of COICA and PIPA
and to educate the public, and the early and vocal leadership shown by
Ron Wyden and Zoe Lofgren.  But the fact is, when this remained
primarily an "inside game," the tech and public interest community was
being brushed aside and their many critiques and redlines -- of which
Sandra and others were unaware or which they refused to admit existed
-- were largely ignored.  Larry is right that MPAA now seems to be
proposing -- and launching -- another "inside game."''
  

    <scribbled by tcn Wed 25 Jan 12 09:09>
  

    
Mike, thanks for your response in #34, that cleared things up for me.
  

    
"The political philosophy of the Internet, though still largely
unformed, is by no means inarticulate. The aspirations of Internet
users largely reflect the best features of the technology itself—open,
meritocratic, non-proprietary and transparent.  Its central belief is
the power of innovation to make things better, and its major tenet is
a
ruthless economic principle that treats information as currency, and
sees any obstacle to its free flow as inefficient friction to be
engineered out of existence." (Larry Downes, from the Forbes article
cited above)

That captures my sentiment exactly. I'm unhappily drug into the
politics of all this. On the one hand there is the issue of new
mediums
for content distribution that is disruptive to the old guard. They
need to get on the train, while realizing the days of owning and
distributing someone else's creative product are over. Fine, if they
want to protect what they have already stolen with a fountain pen, but
not to the detriment of a new day. And that's the other hand, new ways
for people to create and distribute. Ed Ward and many others here on
the WELL have talked about these new models and the issues involved.
And perhaps they can speak more to that as this conversation develops.
  

    

Jon, I always believed that the comment about the Internet interpreting
censorship as damage was more aspirational than strictly true. I think
it's definitely true that simplistic Internet censorship schemes can
be sidestepped rather easily, and, as I've noted above, even if SOPA
had been put in place, determined individuals would find ways around it
(e.g., using shifting IP numbers rather than registered domain names).

So how can I say with conviction that SOPA/PIPA threatened to "break the
internet." The short answer is that memorable domain names and DNS lookup
turn out to make it easier for more people to find what they're looking
for. It's a little bit analogous to Facebook and other social networks,
which incidentally function to make it less important to remember people's
precise email addresses. (And email addresses change from time to time
for unpredictable reasons, such as a job change.)  An even better analogy
may be storing phone numbers on your cell phone -- you and I both, Jon,
grew up in an era in which we routinely memorized seven digits (or ten
digits, or more) in order to be able to quickly telephone someone we
routinely needed to speak to. Nowadays, I don't bother even to memorize
my daughter's phone number -- it's right there on my cell phone under the name "Ariel."

Yes, of course we could lose all this and go back to an era of memorizing
phone numbers or writing them down on rolodex cards or address books, but
... it would slow things down, wouldn't it? And that's just for the people
and places we already know. What the internet as we currently understand
it does amazingly well is help us find contact information, or other
information, that we don't already know. Creating a legal obligation for
service providers to censor some of that information, or creating
incentives for them to self-censor, takes value away from the internet as
we understand it. And while clever people with great memories and/or
ingenuity can figure out ways around some of these measures, it's socially
damaging to take a tool that's pretty useful to most people online and
make it deliberately more obscure and less useful.

There are probably other dimensions of the censorship-of-the-internet
issue that I haven't touched on here, but I'm sure someone will come along
and remind me of them. (I don't prepare my answers here in advance very
often, so what you're mostly getting here is me free-associating an answer
based on your questions. This, at least, is going to be my standard excuse
for any typos or other errors.))
 
  

    
Latest from the MPAA: the SOPA blackout was Google's fault. Also,
don't feed a Mogwai or Thomas Edison after midnight.
<http://bit.ly/wJoVr8>
  

    
Have you kept up with what's going on with ACTA? What do you think
about it?

http://www.techdirt.com/articles/20120124/11270917527/what-is-acta-why-is-it-p
roblem.shtml
  

    
What do you think about Yochai Benkler's 4 ideas about where we go
from here?

http://techpresident.com/news/21680/seven-lessons-sopapipamegauplaod-and-four-
proposals-where-we-go-here
  

    

Brian, the link you provide is a good summary of why people should object
to ACTA. I'll underscore the bad points for me: (1) bad, secretive process,
(2) an international treaty process that sidesteps a lot of constitutional
protections, (3) conflation of infringement offenses with counterfeiting
offenses, (4) restrictions on patent exceptions for developing nations.
I'll note that much of this doesn't strictly have a lot to do with the
internet and digital communications as such. There is a separate, and in my
view deeply frightening, problem with harmonizing national laws to
international treaty agreements that are largely driven by large-scale
commercial industrial interests. The treaty process shouldn't be primarily
a tool for well-moneyed companies to sidestep national laws.

Tom, I love Yochai's essay, but what I really want from Yochai is a plan
to translate his ideas into national policy. This isn't a criticism --
Yochai's perspective is a good one. But it's hard, given the realities of
political action in DC or any other forum for policymaking, to see how you
get there from here. Yochai hopes that the SOPA/PIPA resistance has awakened
the sleeping giant of public engagement in the policy process, and I would
love to believe he is correct, but the I don't sense that this resistance
has begun to institutionalize itself the way (say) MoveOn has, or even the
way the Occupy movement has.
  

    
Getting "Internet Freedom" straight. This article from Tech Crunch
starts to get at the freedom issues:

http://techcrunch.com/2012/01/15/getting-internet-freedom-straight/
  

    
By the way, here's a great video of Yochai Benkler for TED:

<http://www.ted.com/talks/yochai_benkler_on_the_new_open_source_economics.html>
  

    
Mike, aside from censorship and intellectual property issues, what
challenges do you see to to the open Internet and what we often call
the Freedom to Connect?
  

    
Mike, when you have a chance, can you explain ACTA and how it impacts
this discussion? This seems to be the agreement we are going to live
with at the moment, more narrowly defined.
  

    
Sorry for having been largely out of touch Friday -- it was one of
those days where sudden events end up pulling me out of my office and
handling meetings the whole day. So let me try to catch up to some
outstanding question.

Jon, you actually have a couple in the queue, so let me tackle them
first. A while back -- Tuesday -- you asked whether "we really will
rethink at least the duration of copyright?" and "Are there aspects of
copyright, other than duration, that could change without disrupting
the intended stimulus for creative work?" I don't think I answered your
Tuesday questions properly, though I meant to. With regard to duration
of copyright, I believe the academic community is already rethinking
it -- it's not at all clear that continually extending the term of
copyright well beyond the death of the creator adds incentives to
create that make any difference at all to the creative to the creative
process. If you're a novelist, and someone offers to extend your
copyright to (say) 90 years after your death rather than 70 years, does
this make it any easier to confront the blank page (or screen). It's
hard to say that it does. And it's hard to argue that this even
increases the price you might demand if you assign your copyright to
someone else, such as a publisher. So the academic community recognizes
generally, I think, that the economic incentives for extending
duration of copyright are questionable, these days. (I want to be clear
here that I do not oppose all extensions of copyright terms that have
occurred during the 20th century -- some of the earlier ones made
perfect since, as authors begin to live long, and as the formalities of
renewing copyright became trickier and more onerou -- but I think
we're well past solving that problem, and that the extensions over the
last few decades can't be justified that way. Mostly, they represent
corporate interests lobbying for extensions, not authors worried about
providing income streams for their great grandchildren,) 

The policy problem, though, is that it hasn't mattered what a
plurality (perhaps a majority) of copyright theorists think -- the
processes by which copyright duration has been extended have
sidestepped theory altogether. In the United States, that theory has
been embodied in U.S. Constitutional language: 

Article I, Section 8, Clause 8 of the United States Constitution,
known as the Copyright Clause, empowers the United States Congress
"To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries."

Now, you will note that the Constitution talks about promoting
progress and "limited Times" -- not about providing income to creators
as the ultimate goal. In fact, it's clear that the Copyright Clause
here sees getting creators paid as a means to an end, not an end to
itself -- there's nothing here that suggests that "limited Times" was
surplus, ignorable language. As a practical matter, the lack of
specificity here has given the copyright industries and policymakers in
Congress and in the courts carte blanche to say that Congressional
additions to the duration of copyrights are within Congress's power.
About the only thing you can be sure of with regard to "limited Times"
is that Congress probably can't make copyrights of infinite duration.

And because copyright is still seen as itself a relatively arcane area
of law for most citizens, you're not seeing Americans rise up and
challenge things like the Sonny Bono Act to any great degree. And the
academics who are critical of duration extensions tend to be mostly
ignored, although Yochai Benkler, among others, is trying to use the
SOPA/PIPA protests as a way of reopening the duration debate and
awakening a new public dialog about copyright policy.

His job, and the job of the rest of us, is going to be a hard one,
though, because we're not just dealing with U.S. law -- the United
States, like many other nations, is signatory to international
copyright treaties that have had the effect of ratcheting up copyright
protections in ways that make it hard for democratic movements within
terrestrial jurisdictions to challenge them or reduce them. (Quite
often the argument in policy circles is that "we have to increase
duration [or modify our copyright laws in other ways] in order to bring
us into line with the demands of the treaties we've signed.")

I'm going to talk a little bit more about treaties when I answer tcn's
question about ACTA.
  

    
Jon, on Thursday you asked what other legal issues affecting
cyberspace law and policy are lurking out there that we ought to be
aware of. 

One of the obvious areas is privacy: especially in nations outside the
United States, there are strong, comprehensive privacy laws that are
frequently used these days to compel internet companies to remove
content. At Wikipedia, back in 2010, for example, I was asked by a
German court to remove the names in the (English language) Wikipedia of
two German men who had been convicted of murdering a German television
star a couple of decades previously. Under German law, there's the
principle that these men had served their prison sentences, and had the
right to return to normal lives unencumbered by what potential
employers and others might learn about them through Google searches or
Wikipedia. Now, even in Germany these renewed privacy rights have
limits, as I understand it -- no one had to go to German libraries and
use black markers to blot out the names of the convicted murderers in
back issues of Der Spiegel, for example. But the online archives of Der
Spiegel and other German publications were compelled by court order to
remove (or partially remove) the names of the convicted killers, now
presumably rehabilitated, at the demand of their lawyers. And
German-speaking Wikipedians even complied with their demands as far as
the German-language version of Wikipedia is concerned.

Now, we have nothing like that setup in the United States, for better
or for worse. (I say "for worse" because I think the United States
legal system could do better than it does in allowing for the
possibility of rehabilitation, and in reintegrating ex-felons back into
productive roles in society -- I'm not wholly unsympathetic to the
German individuals who wanted their records cleared.) Plus, there were
plenty of bilingual German-English speakers who were offended that the
convicted murderers were able to get a certain fraction of history
amended or erased -- so what they did, when the German Wikipedia
community self-censored regarding the names of the killers, was go
right to the English-language Wikipedia and repost them in the article
about the murdered German actor, Walter Sedlmayr
<http://en.wikipedia.org/wiki/Walter_Sedlmayr>. And soon we received
demands from the killers' lawyers at Wikimedia headquarters in San
Francisco.

The Wikimedia Foundation, which operates Wikipedia and other projects,
is in an unusual editorial position -- WMF is not a publisher like Der
Spiegel, but in fact is the host of many different writers,
publishers, editors, contributors, and creators who make Wikipedia and 
the other projects what they are today. And my view is that if the
community of Wikipedia editors in the English-language version chose to
keep the names of the the murderers in the Sedlmayr article, the
Wikimedia Foundation should not pre-empt that decision. And I wrote the
German lawyers representing the murderers and let them know this was
our position. I could have stopped with that, but there was always the
risk that the Germans would seek a judgment in a German court that
could be enforced -- through international treaty obligations regarding
the recognition and honoring of foreign court judgments -- against WMF
in the United States. I decided to make this strategy more problematic
for the Germans by letting American journalists know about the whole
kerfuffle -- the New York Times (in an article by the WELL's <jswatz>,
who has another topic in this conference centering on a lovely book he
wrote) published a story about the contretemps, and cleverly included
the actual names of the convicted killers. This meant that if the
Germans were going to try to bring legal action against Wikipedia in
the United States, they were probably going to have to sue the New York
Times as well. (The Times story appears here:
<http://www.nytimes.com/2009/11/13/us/13wiki.html>.)

Now, privacy is only one area of the law in which the United States
legal and constitutional framework does not fit well with the laws of
other nations, or with international standards -- there are others
(notably defamation, which is a lot easier to sue someone about in the
UK and in the EU generally than it is here in the USA). So one of the
larger issues I see lurking out there for internet policymakers is the
fact that, on the one hand, there's a huge impulse to harmonize law
among the world's nations (and certainly among the ones that are
signatories to multilateral treaties). On the other hand, there are
expectations that, if you live within a particular country, your
national government ought to have the autonomy to set set standards and
expectations consistent with your regional, cultural, and legal norms,
regardless of whether they're harmonious with the laws and
expectations of other nations. This tension is not likely to be
resolved anytime soon -- I imagine that we're going to see world
nations struggle over harmonizing internet-related law (and the law
regarding whatever may succeed or supplement the internet) throughout
this century. I don't expect this tension to end during my lifetime, or
even my daughter's lifetime.