Inkwell: Authors and Artists
Mike Godwin (mnemonic) Tue 24 Jan 12 12:24
<scribbled by mnemonic Tue 24 Jan 12 12:28>
Mike Godwin (mnemonic) Tue 24 Jan 12 12:32
(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.
Mike Godwin (mnemonic) Tue 24 Jan 12 13:32
Jon, can you remind me what the drill is for off-WELL people to post questions and comments?
Mike Godwin (mnemonic) Tue 24 Jan 12 14:08
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."
Responding to Mike's question... (jonl) Tue 24 Jan 12 14:58
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.
Jon Lebkowsky (jonl) Tue 24 Jan 12 15:03
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?
Ted Newcomb (tcn) Tue 24 Jan 12 15:49
<scribbled by tcn Tue 24 Jan 12 15:50>
Ted Newcomb (tcn) Tue 24 Jan 12 15:51
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?
Mike Godwin (mnemonic) Tue 24 Jan 12 20:43
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.
Jon Lebkowsky (jonl) Wed 25 Jan 12 02:19
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?
Mike Godwin (mnemonic) Wed 25 Jan 12 07:48
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."''
Ted Newcomb (tcn) Wed 25 Jan 12 08:50
<scribbled by tcn Wed 25 Jan 12 09:09>
Ted Newcomb (tcn) Wed 25 Jan 12 08:51
Mike, thanks for your response in #34, that cleared things up for me.
Ted Newcomb (tcn) Wed 25 Jan 12 09:10
"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 itselfopen, 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.
Mike Godwin (mnemonic) Wed 25 Jan 12 18:44
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.))
Mike Godwin (mnemonic) Wed 25 Jan 12 20:47
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>
Brian Slesinsky (bslesins) Wed 25 Jan 12 21:41
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
Ted Newcomb (tcn) Thu 26 Jan 12 03:52
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
Mike Godwin (mnemonic) Thu 26 Jan 12 08:25
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.
Ted Newcomb (tcn) Thu 26 Jan 12 14:51
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/
Mike Godwin (mnemonic) Thu 26 Jan 12 15:50
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>
Jon Lebkowsky (jonl) Thu 26 Jan 12 18:21
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?
Ted Newcomb (tcn) Fri 27 Jan 12 02:33
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.
Mike Godwin (mnemonic) Sat 28 Jan 12 11:34
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.
Mike Godwin (mnemonic) Sat 28 Jan 12 12:07
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.
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