Blurred Lines: Offensive, but Probably Not Copyright Infringement

At least in my circles, it’s pretty much taken for granted that Robin Thicke’s megahit “Blurred Lines” is shamelessly offensive.

I can’t imagine telling a woman “You the hottest bitch in this place!” I definitely can’t get behind the song’s no-means-maybe-means-yes message. The video is practically a parody of itself. (Here’s an actual parody that reverses the genders; much better.)

I also think it’s safe to say that Marvin Gaye gets a good bit more love and respect, even if nobody’s calling him a great feminist thinker. Further, “Blurred Lines” is just the latest example in a loooooong tradition of white artists appropriating musical styles developed by minority artists.

So, as forward-thinking people looking at the ongoing copyright dispute between the artists, it should be a slam dunk all-around agreement that, considering the striking similarity between “Blurred Lines” and the classic Gaye song “Got to Give It Up”, we should all hope that Gaye’s team sues Thicke for all he’s worth — or, at least, much/most/all of the truckloads of cash “Blurred Lines” has hauled in. (And let’s throw in Pharrell Williams, too, for producing and co-writing this bit of musical larceny.) Right?

Not so fast.

Before beginning a (brief) legal analysis, let’s set aside the very valid critiques of the gender politics in Thicke’s song and video (to say nothing of the shameful gender politics and troubling racial messaging of the Thicke/Miley Cyrus VMA performance).

If there’s one thing Larry Flynt got right about free speech law, it’s that we are better off if free speech protections also extend even to scumbags like Larry Flynt.

Under current law, “Blurred Lines” is probably not infringing, assuming no samples were used — that is, assuming that all the sounds were independently re-recorded for the new song, and Thicke and Farrell claim not to have sampled Gaye’s song.

Without sampling, an infringement case here requires proof of “substantial similarity” between the original and the newer work. Here’s a Billboard article where you can listen to both “Blurred Lines” and “Got to Give It Up”, side by side.

The rhythmic similarities are substantial, but according to literally every expert on musical similarity in copyright that I’ve ever read/heard/spoken with, that counts for very little — again, assuming the sounds were independently re-recorded. Here’s a bit from the Music Copyright Infringement Resource, a joint project of the law schools at Columbia and USC, explaining how melody is the key to establishing substantial similarity between two musical compositions:

A work’s melody is what we consider the tune of a piece. Indeed it is most usually the melody of a piece that we hum when trying to recall it; a piece’s melody is typically its most distinctive and memorable feature. As such, melody is the musical element that most easily lends itself to claims of originality. …

Melody is overwhelmingly the single most important feature of a musical work in evaluating the merits of copyright infringement claims. The entire corpus of judicial opinions in the area of music copyright infringement dwells on melody as the single most idiosyncratic element of the works in question, and almost entirely the locus of the economic worth of a song. Accordingly, the more melodically similar two works are, the more likely a court will determine that the later created work infringes upon the earlier.

So, for evaluating the question of musical infringement, the drums and backup instrumentals all take a way-in-the-back backseat to the melody. (We’ll come back to whether this should be the case in a bit.) With all this in mind, go back and re-listen to each song. A brief bit of each will do.

I’m not a trained musician, but I mixed house and drum & bass records for years (at the tail end of when it meant mixing actual vinyl records), so I notice rhythmic similarities much more readily than melodic similarities. In terms of rhythmic elements, the speed and the drum patterns are so similar as to be “I could mix these two songs together in my sleep” close, which most non-DJs would describe as the two songs “feeling” very similar.

The rhythmic similarities are the bedrock of the two songs’ similar feel. They’re well within the same genre, and it’s not at all shocking to hear Thicke say that he was deliberately trying to recreate the groove of Gaye’s song. Yet even in terms of drum patterns — where the similarities are the strongest, even if the impact in a potential infringement suit is smallest — there are real differences.

I can hear (and can even visualize, as would be represented in a step sequencer) a host of differences. Most folks could probably hear the differences, though it may take some patience to listen to each song enough times; it took me a few listens each.

Melodically, the two songs are substantially more different. They are still well within the same genre here as well, but the melody should be transparently different even to the untrained ear. I should know, because I have just such an untrained ear (ask my karaoke victims, er, audiences) and I can hear the differences pretty easily.

In the case law, the closest analog I know of is Bright Tunes Music v. Harrisongs Music, 420 F. Supp. 177 (S.D.N.Y. 1976). The plaintiff, Bright Tunes, held the copyright in the composition of the doo-wop hit “He’s So Fine” — written by Ronnie Mack, who died of cancer as the Chiffons recording of his song was rocketing up the charts in 1963.

When George Harrison wrote and recorded “My Sweet Lord” in 1970, “He’s So Fine” was not at all on his mind, but he wound up creating a melody very similar to the older tune.

The similarities are striking, and importantly for the copyright question, it is the melodies of the two songs that are so similar. Here, somebody has helpfully created a mashup of “He’s So Fine” and “My Sweet Lord”, so you can listen to them simultaneously. They don’t line up perfectly, but it’s pretty clear that the melodies are pretty similar.

Harrison didn’t realize the similarities, but once they were pointed out to him, he says, “I thought, ‘Why didn’t I realize?’ It would have been very easy to change a note here or there and not affect the feeling of the record.” (Again, this isn’t part of the legal analysis, but I actually give Harrison much more credit here than I do Thicke on the “How badly is this white musician exploiting black musical culture” question. Intent matters for ethical and cultural criticism, but how much we like people and think they’re doing the “right” thing is not the same question as whether or not the law is on their side.)

Anyway, Harrison was essentially found to have subconsciously infringed on Mack’s song — to have infringed without having done so deliberately. This even though the two melodies are not identical — just very similar.

In light of all of this case law, for songwriters to have a deliberate intent to borrow is, if anything, helpful for them. Thicke and Pharrell surely know that it’s the melody that gets you in trouble — and they definitely acted accordingly. It doesn’t take much imagination to listen to the Gaye and Thicke songs and hear the latter’s notes as deliberately dissimilar to the former — thus, creating far more daylight between the two melodies than in the Bright Tunes case.

There’s actually an art to this that can pay handsomely if one composes music for TV commercials. If a songwriter wants too much to license a hit song that an advertiser covets, the advertisers can just hire a composer to bang out a not-quite-copy for a fraction of the price. This happens all the time; here are just a few examples.

Anyway, I hope it’s pretty clear by now why “Blurred Lines” really isn’t infringing. Don’t believe me? Three independent industry insiders also hold this view.

I’ll end with a few words about whether the similarity standard we have now really should be the case. (Can you smell the journal article burning? What follows is the “This is a blog post and I need to go to bed” version.)

I don’t want a copyright system where I can’t create a song (or book or movie) that has a similar overall feel to anything that’s been done in the last hundred years. Because, guess what: If that’s the rule and it’s enforced at even a moderate rate (say, 10% or more), then creativity either comes to a screeching halt or goes largely underground. Building on previous cultural milestones is how culture works.

I’m even disturbed by the Bright Tunes standard: If we put two otherwise dissimilar songs next to each other, at just the right points, are most of the notes of some parts of the melody the same? Consider how scary this standard is in light of the musical simplicity of pop melodies. If this is the standard, are there any songs that aren’t infringing left to be written? I’m scared there may not be.

If Bright Tunes-style plaintiffs get just a bit more of a toehold in the case law, what’s to stop copyright trolls from buying up old songs that are just-similar-enough to big hits and demanding exorbitant payments? The ownership of the copyrights in studio recordings is more consolidated (mostly, these copyrights are owned by labels), but the rights to compositions are everywhere and can often be bought for relatively low prices.

If a hobbyist composer hopes to make it big but looks at this landscape in my not-unlikely-enough dystopian near-future, shouldn’t s/he be scared and consider maybe not even to bother? After all, even the mighty George Harrison claims never to have made a single dollar on one of his most beloved songs — all because he accidentally made the melody too similar to a very different song. What hope is there for somebody just starting out, who’s not also an expert musicologist walking around with a century of musical knowledge?

The Bright Songs standard is already too easy for plaintiffs. If Gaye’s heirs were to win a decision that “Blurred Lines” is infringing, it would send a pretty discouraging message to today’s would-be musical composers.

I say all of this as somebody who has a bone to pick with the “melody is everything” theory of musical composition that guides our law today. Distinctive rhythms can make or break a song, and the drums can themselves be the most memorable, marketable part of a song. (See: Stubblefield, Clyde.)

There are also unfortunate racial connotations to this paradigm. It’s not too far down the chain in the Apollonian/Dionysian dichotomy, where Apollo represents mind/discourse/melody/whiteness and Dionysus represents body/movement/rhythm/blackness.

Don’t think this still carries water today? Then why does popular discourse still treat blacks so prominently as athletes and dancers, generally discarding what they have to say? And why is it really important to hear what white people have to say, even when the very basis for their fame is a physical gift? (See: Tebow, Tim) Why is music from non-white parts of the world called World Beat and African music generally sold as AfroBeat?

The racial critique of this emphasis on melody is valid and important, but I still don’t want a copyright system where “Blurred Lines” is infringing, even though I just spent a whole paragraph arguing that the part where it’s most like “Got to Give It Up” shouldn’t be treated as so relatively unimportant by the law. While some have tried to reconcile this melody/rhythm inequity by pushing copyright in the direction of broader protection for rhythmic elements, I think the better solution is to put less emphasis on melody as separated from the whole composition and instead to put the whole composition in context.

Looked at as an entire composition, “My Sweet Lord” is pretty different from “He’s So Fine”. The lyrics are 100% different. The instrumentation is pretty different. The sound and feel are remarkably different. It’s only the focus on melody that led the court into what I think was a mistake.

On the other side, “Blurred Lines” and “Got to Give It Up” are more similar on most counts except lyrics and melody. They sound and feel very similar, though even the drum pattern is clearly not identical. Looked at holistically they’re still pretty different songs, built in large part on the very different lyrics and melody.

I don’t think we should set up a copyright system where “very rhythmically similar” is, by itself, grounds for a finding of infringement. The change I’m advocating is that we should also apply that standard to melodic similarity.

Just as inventors really want to keep the lawyers out of the lab, I really want to keep them out of the music studio. If the price of being able to compose without an attorney on retainer is that, sometimes, crass capitalists push the line of exploiting the feel of successful works, it’s a price I think we as a society should pay.

If we swing the other way, to the point that something like “Blurred Lines” equals legal hot water, that means pretty much all popular music puts you in legal hot water. Which would mean that only those who can afford attorneys — in advance — will have any business making music. And that’s a far higher price for we as a society to pay.

P.S. Speaking of prices paid, I hope we forward-thinking folks can all agree not to pay for “Blurred Lines.” If you like that song’s groove, allow me to suggest a Marvin Gaye tune I know. It’s not exactly the same; it’s better.

Dear Government Snoops: Just Come Get Me Now

For a number of (really good) reasons, I’ve not been able to spend much time following the endless, ever-forthcoming details about the US government’s decision to vacuum up as much of our communication data as possible.

Even from such a less-than-ideal base of knowledge, and even though it will take months or years for everything to come out (if ever), I already believe the following:

What Edward Snowden did is one of the most heroic, medal-worthy acts by an American so far this century. I say this even though I’m also horrified that somebody with his scant qualifications was in such a position.

No mountain of prestigious journalistic prizes can repay the debt owed to the Guardian and Glenn Greenwald by the citizens of this country.

President Obama should immediately grant Snowden a full presidential pardon — and, further, give Snowden his own (prematurely given and, as is now clear, unearned) Nobel Peace Prize as a token of his gratitude.

Concerns about the steady erosion of civil liberties and all-too-quick slide into a surveillance state are finally starting to get a sliver of the traction they should have gotten since roughly the end of 2001.

The erosion of civil liberties via state surveillance has been accompanied by an ever-shrinking capacity for citizens to monitor the state. This ranges from the mundane (e.g., police officers routinely harassing, arresting, injuring, and/or falsely charging people for photographing or recording them in public) to the profound (e.g., charging journalists as “co-conspirators” for soliciting restricted information).

There is perhaps no better test of whether technology activists will be able to mobilize the public en masse on behalf of a desired change — rather than, as in the SOPA blackout, against an unpopular proposed change.

Whether or not an anti-surveillance movement can effect major changes in policy is not a fair measure of whether and how well such a movement performs as a movement; better measures include people mobilized to action, mainstream coverage, and policymakers and allies recruited.

Regardless of whether it is fair to measure an anti-surveillance movement based on policy outcomes, such policy outcomes may be a fair way to measure the viability of our democracy. If we can’t get people on the left, right, and center to join together to take back the Fourth Amendment, the promises of our Constitution are pretty hollow indeed. (Satire or not, this hits close to home.)

If I were in the position of Snowden, Greenwald, or the Guardian, I hope and believe that I would make pretty much the same decisions.

I say all of this publicly, even though I no longer have faith that I can do so without fear of retribution (yes, I use that term deliberately) by the state.

So, to the snoops that are undoubtedly listening — even though it’s unlikely that any human will ever actually read this tiny speck in an ocean of data — come and get me.

If what Snowden did lands him in prison, being there next to him would be an honor. If blowing the lid off a giant, proto-police-state phone and internet surveillance operation is wrong, I don’t want to be right. If leaking state secrets in the public interest puts one in danger of torture, indefinite detention, exile, or being disappeared, we’re all in danger — and for most people, this will be because too few will be brave enough to take such a risk to protect the citizenry from the state.

So consider me part of the conspiracy, Mr./Ms. Snoop. Tell your supervisors that we have a dissident who needs closer scrutiny and maybe a visit from an agent.

I’d rather go to prison, right now, for the rest of my life than to live in complicity as we slide ever-closer toward becoming a bona fide police state.

And just to increase the odds that a real human does see this: bombs Al Qaeda assassinate infidels fertilizer kill death murder planes airports President Obama Capitol White House 9/11 TNT flying with liquids in containers larger than 100 ml (3 oz. for you SAE holdouts) and not taking off my accursed shoes. So there.

P.S. If there’s one consequence I do fear as a result of this post specifically, it’s being put on the no-fly list — itself a particularly apt illustration of the intersection of terrorism paranoia, unchecked executive branch power, and rank bureaucratic incompetence.

On PRISM: Orwell’s or Huxley’s America

It’s been a whirlwind news cycle over the past 48 hours.  Welcome to the 21st century surveillance state.  We’ve been living here for some time, but no one bothered to say so until now.  In grappling with it all, I keep returning to a few literary classics.

Neil Postman begins his magnum opus, Amusing Ourselves to Death, by ruminating on two distinct visions of our dystopic future, portrayed in George Orwell’s 1984 and Aldous Huxley’s Brave New World:

“Contrary to common belief even among the educated, Huxley and Orwell did not prophecy the same thing.  Orwell warns that we will be overcome by an externally imposed oppression.  But in Huxley’s vision, no Big Brother is required to deprive people of their autonomy, maturity and history.  As he saw it, people will come to love their oppression, to adore the technologies that undo the capacities to think.

What Orwell feared were those who would ban books.  What Huxley feared was that there would be no reason to ban a book, for there would be no one who wanted to read one.  Orwell feared those who would deprive us of information.  Huxley feared those who would give us so much that we would be reduced to passivity and egoism.  Orwell feared that the truth would be concealed from us.  Huxley feared the truth would be drowned in a sea of irrelevance.  Orwell feared we would become a captive culture.  Huxley feared we would become a trivial culture…  In 1984, Huxley added, people are controlled by inflicting pain.  In Brave New World, they are controlled by inflicting pleasure.”

(emphasis added)

On a Thursday afternoon panel at Personal Democracy Forum, Zeynep Tufecki argued that big data in campaigns is paving the way for a future that is equal parts Orwell and Huxley.  The threat comes less from electoral campaigns themselves than from well-financed economic players who will replicate and enhance the new market techniques in other arenas.  Our powers of monitoring and distraction are growing at an outlandish pace.

Through cosmic coincidence, the first news about PRISM broke just after her panel.  Along with monitoring all of our phone calls through Verizon, it seems the NSA is also capable of accessing all communications via Google/Gmail/YouTube, Microsoft/Skype, Facebook, Yahoo, Apple, Aol, and Paltalk. According to the career intelligence officer who leaked the information, “They quite literally can watch your ideas form as you type.”

PRISM is Orwell’s America. Really, what else can you call it? If, two weeks ago, Someone told me that the government was soaking up all our online data, capable of reading things while we type them, I would have backed away slowly, wondering where they left their tin foil hat. Then the Washington Post told me instead.  The depth and breadth of this domestic spying program is just astonishing.

But Huxley’s vision is the reason this Orwellian architecture can be constructed.  Consider:

RT @AdamKilgoreWP Friday on A1 of WaPo: The govt is reading yr email. Saturday: The Nats’ season has been a real drag http://wapo.st/15JSxGU 

And it’s not just the front page of the Washington Post.  Tune in to your Twitter stream tomorrow, around 9:30PM EST.  I guarantee you that no one will be discussing PRISM.  They’ll be talking about Daenerys Stormborn and Arya Stark.  They’ll be talking about Lebron James and Tony Parker.  They’ll be trading jokes about Don Draper and Joan Holloway.  It’s like Kurt Cobain said, “With the lights out, it’s less dangerous. Here we are now, entertain us.”

I see room for just a bit of anti-Huxley hope.  Also at Personal Democracy Forum, Sara Critchfield talked about Upworthy.com.  Upworthy has only been around for a year and a half, and it already reaches 2/3rds of all Americans.  Their business model is surprisingly simple: find “socially positive” stories, repackage them with more engaging headlines, and help them go viral.  Eli Pariser founded Upworthy after he wrote The Filter Bubble (see my review here).  It was founded on the premise that people actually want more than cat videos and celebrity gossip.  Provide engaging, inspiring, thought-provoking, or enraging content and people will read it, share it, and discuss it.  We just have to get better at marketing the quality content as well as we market the junk content.

Upworthy’s success gives reason for hope.  Sunday night, I’ll be watching the NBA Finals and Game of Thrones.  But Monday, I’ll probably see some PRISM-related content from Upworthy in my media stream, and I’ll share it and participate further in the public conversation.  How much hope we should have is directly proportional to how large of a niche companies like Upworthy will eventually occupy.  How widely are those diverse preferences for substantive and entertaining comments spread?  Can we sustain national attention around issues like PRISM for long enough to demand answers and action from public officials, or will we quickly flip to the next story?

I don’t know.  But, as we marvel at this newly unveiled Orwellian surveillance state, it’s these Huxley-esque questions that will concern me most.

We don’t arrive at this surveillance regime through a perpetual state of fear.  We get there through perpetual distraction.

Neglect and Uncle Sam, not the Internet, Killed the Middle Class

In an interview with Salon and his newest book, “digital visionary” (Salon’s words) Jaron Lanier claims that the internet has destroyed the middle class. Kodak employed 140,000 people, while at the point of its sale to Facebook, Instagram employed just 13, and (without much exaggeration) thus, the internet killed the middle class. QED.

What a crock.

Lanier is apparently incapable of stepping back from technological determinism and looking at the actual causes of our ballooning economic inequality — which, to cut to the chase, is primarily a result of our policy choices. Yet the role of government in determining the overall shape of the economy is too often understated or outright ignored by those who wring their hands about growing economic inequality.

With some noted exceptions, those who criticize Lanier still mostly point at the old standby twin bogeymen of automation and outsourcing. The HuffPost chat in which all of the guests are willing to challenge Lanier’s conclusions is typical on this count but hardly alone. To his credit, Buffalo State College economist Bruce Fisher starts heading in the right direction with his concerns about fostering and preserving the political and social engagement of those who are being left out, but he fails to take it the next step and discuss the major policy changes and political neglect that have brought us to this point.

The best explanation that I’ve seen of America’s growing wealth inequality is Winner-Take-All Politics, in which Jacob Hacker and Paul Pierson start with a simple look at other industrialized countries to show that inequality isn’t an inexorable outcome trade and automation. The Germans and Swedes certainly have similar chances to outsource their manufacturing and use technology to reduce labor forces.

Not only does the rest of the industrial world have the internet, too, better telecom policy means they generally have faster connections and cheaper prices. Yet as measured by the Gini Coefficient, a measure of economic inequality, their economies have far more equal distributions of income in take-home pay and wealth.

The wealth distribution in particular is just shocking — the US has a wealth Gini of .801 (where 1.000 is “one person owns everything”), the fifth highest among all included countries and almost exactly the same as the distribution of wealth across the entire planet (.803). Think about that for a second; we have the same radically unequal distribution of capital within the US as among the entire population of the world across all countries — from Hong Kong and Switzerland to Nigeria and Haiti.

With our paper-thin social safety net and highly unequal distribution of income and wealth, we’re left with an economy where tens of millions struggle to get by while wealthy Manhattanites are hiring handicapped “relatives” for $1,000 per day to be able to skip the lines at Disney World.

Across countless major policy areas —health care, education, financial regulation, taxation, support for the unemployed, and many more — the rest of the industrialized world generally does far more to make their societies fairer for all. Our shrinking protections for workers may be the greatest single cause of the shrinking middle class. Of course, this can be done badly — I would certainly not want to swing as far as Italy and Spain, where it’s nearly impossible to fire somebody once they’re a regular, fulltime employee. Yet we should not allow employers to fire union organizers with near impunity. We should not force organizers to wait for months between card check and votes to unionize so that employers can “educate” their captive audience workforce with the most pernicious disinformation and intimidation. We should not sit idly while nearly half of states fail to meet even “minimum workplace-safety inspection goals, due to state budget cuts and reduced staffing.”

It’s true that the middle class is being gutted in the US, but this is primarily due to how our political system turns the act of surviving and thriving into a high-wire act for an ever-larger slice of the population. Laid-off baby boomers, even those with desirable skills, are having a devil of a time finding work in a country where age discrimination is only nominally illegal. Meanwhile, our children attend public schools with an unconscionably unequal distribution of funding, so moving or being born into a more affordable neighborhood may cost kids their futures, too.

Teens and laid off workers alike are told that college is the route to a better future, but the cost of education is skyrocketing as states and the feds slash public investment in higher education. Many families — even many families with health insurance — are one major medical problem away from unemployment and bankruptcy. Since it’s totally legal to use credit reports and current employment status in making hiring decisions, being laid off or losing one’s job after a medical problem can quickly become a death spiral. None of this is due to outsourcing or automation, but is instead the result of a noxious combination of deliberate policy changes (the privileged seeking to strengthen their own hand) and policy drift (the rest of us sitting idly by or being ignored when we do speak up).

Frankly, I’m glad that Lanier has released this book, sloppy though it may be. (The people raving about this book as a carefully wrought masterpiece are deluding themselves — and not, as Lanier accuses others of doing, “diluting themselves”.) This is not primarily because he has some insights here and there, but because we need to talk about the gutting of the middle class as loudly and as frequently as possible. We must do so, however, in a way that examines how our collective decisions have gotten us to this point. That includes making international comparisons with other “laboratories of democracy” to see how we can do better.

After even a cursory glance abroad, we will see that we should stop returning to the too-easy explanations based on globalization and technology. These forces are at play across the world, and the other wealthy industrialized countries have generally not had the same dismal results. The more likely culprit is in the halls of government.

Dear Commissioner Copps: Thank You for Your Public Service

On Monday evening, the Hunter College Roosevelt House is hosting an event on media policy and reform, featuring former FCC Commissioner Michael Copps. Sadly, it’s in the middle of my Monday class, so I will be unable to attend — and it’s oversubscribed, so I can’t urge you to attend either.

Still, I’m really excited for my colleague Andrew Lund, who is leading the conversation with Mr. Copps, as well as the many Hunter students and faculty who will be able to attend. Thus, I wanted to share a bit about what I’d like them (and the world) to know about this great public servant.

To fully appreciate how exceptional Copps was as an FCC Commissioner, a role he fulfilled from 2001 to 2011, you need to know how thoroughly the Commission has traditionally been a “captured” agency — that is, generally doing the bidding of the industries that it was constructed, in principle, to regulate.

You should also know how the “revolving door” of government works: After working in government in a position of any real importance, many former public servants often take plum jobs in the private sector where they can leverage their regulatory knowledge and even their interpersonal connections to the advantage of their new employers.

Once he started his term at the FCC, Commissioner Copps knew that, after his time in government, he could easily walk into a plum job in the private sector. After all, this had been the route taken by many of his predecessors — as well as many of his colleagues who stepped down in the interim.

Unfortunately, when looking at the decisions that many of these FCC folks who turned that experience into very-well-paid private sector jobs, one could be forgiven for wondering whether many of them truly had the public interest at heart. Some of their decisions suggest that they were, at least in part, also thinking about their long-term earning potential. I won’t name names, but all of us who follow communication law reasonably closely know the most obvious examples.

When looking at Commissioner Copps’ decisions, however, nobody could possibly doubt that his true allegiance really was with the public for the full decade of his service. Media reform groups like Free Press and Public Knowledge finally had an unabashed, reliable ally with his hand on the levers of power, on issues from broadcasting to telecommunications to pluralism and diversity.

Want a sense of where Copps stands on the issues? Go listen to this interview with Democracy Now. Or this one. Read this collection of speeches or this collection of op-eds. Over and over again, you see him supporting the importance of using the power of the state to shape a more democratic, fair, and representative media system.

Copps is probably best known for his opposition to consolidation in ownership between media companies. He “was the one vote against approving Comcast’s takeover of AT&T’s cable systems in 2002” (p. 261), but this was just a warm-up.

The real sea change on ownership came in late 2002 and 2003, as then-Chair Michael Powell proposed a substantial roll-back in the rules against media consolidation. Copps and fellow Commissioner Jonathan Adelstein pushed to have substantial public discussion around the proposal, including multiple, well-publicized hearings. Powell said no — allowing just one hearing — so Copps and Adelstein went on tour, holding 13 unofficial hearings.

Through this and other efforts, working alongside public interest-minded NGOs, Copps helped bring major public attention to Powell’s proposal, ultimately bringing it to a halt. This slowed (though certainly did not stop) the process of media consolidation, through which ever fewer companies control ever more of our media landscape.

Copps has continued to be known for his opposition to media consolidation — though unfortunately, when Adelstein stepped down in 2009, Copps lost an important ally in the fight. Echoing the 2002 vote, Copps was the only Commissioner to vote against allowing Comcast to purchase NBC-Universal in 2011.

I would love to say a great deal more about Copps’ time at the FCC, but I’ll say just a few more words on one more issue: broadband regulation. He came in just in time to dissent from the FCC’s decisions to give away the keys to the kingdom on broadband interconnection, in the decision that led to the Brand X ruling by the Supreme Court.

The FCC ruled that broadband infrastructure companies — the folks who’ve used imminent domain and massive public subsidies as key tools as they’ve laid the cable, phone, or fiber lines over which broadband is transmitted — are not obligated to share their “last mile” systems with competitors. (This requirement for “interconnection” was already in place for landline local and long-distance telephone service, which led to an explosion of competition and plummeting prices.)

The Supremes held that the FCC was within their rights to make the decision, not that it had to come out that way; if Copps had won the day, we wouldn’t be dogging it in the horse latitudes of poor service, high prices, and slow broadband speeds as the world runs past us on all three counts. In the years after, Copps made the best of a bad regulatory position, serving as the most reliable vote for for mandatory network neutrality.

Again, though ownership and broadband policy are among his best-known issues, Copps was a tireless voice for the public interest on virtually every issue imaginable that came before the Commission. Even though he stepped down from the Commission over a year ago, he continues the work today.

Even as a former Commissioner who spent a decade being the thorniest thorn in the sides of those seeking to make a quick buck at the public’s expense, Mr. Copps could still quickly make a quick buck himself working for industry. There are a large number of companies, industry trade groups, and swanky D.C. law firms that would be quite happy to give him a huge salary, cushy office, and first class travel budget to speak on their behalf.

Instead, Copps has moved on to work for Common Cause, one of our nation’s strongest voices fighting for the best interests of ordinary people. This is just the latest in a long line of decisions in which he has chosen to fight for the public interest, even though it’s easier and more lucrative to fight for those who already have disproportionate money and influence.

For public interest advocates, Michael Copps was, at a minimum, the greatest FCC Commissioner since Nicholas Johnson retired nearly 40 years ago — and perhaps the greatest ever. His work at the Commission will be missed, but I look forward to seeing him continue to have a major role in pushing for a fairer, more just media system for many years to come.

One more point, for anybody who’s read this far: As of now, Copps’ Wikipedia page is a mere stump — the Wikipedia term for an article that is too short and needs to be expanded. In this case, a great deal more needs to be said in order to do its subject justice. I call on you to help me do this in the coming weeks. Mr. Copps was and remains a tireless and effective servant of the public, and this is but a small favor we can do in return.

Research Note: The Trouble With Studying Big Data in Campaigns

What are political campaigns doing with our data?  How would we know?

Sasha Issenberg, author of The Victory Lab, gave a talk at GW last night.  The book offers a strong take on the impact of the Analyst Institute on American political campaigning.  It traces the emergence of more sophisticated (and more widely available) voter data, and also traces the emergence of rigorous social scientific experiments that help campaigns optimize their outreach tactics.  It’s well worth your time.

During Q&A, an interesting tangent came up: political campaigns won’t talk with reporters about their data practices.  They didn’t want to give anything away that their opponents could use.  The Obama campaign told its staff not to talk to Issenberg.  When other reporters write articles about campaign data mining, the campaigns don’t offer corrections if they’ve gotten it wrong.  What little public record we have of these activities is based on reporters’ best guesses, without the usual corrective of sources shouting them down via the blogosphere.

This morning, one of those potential sources weighed in.  Ethan Roeder, data director of Obama for America, wrote an Op-Ed for the New York Times titled “I Am Not Big Brother.”  Pushing back against some of hype, he tells us, “You may chafe at how much the online world knows about you, but campaigns don’t know anything more about your online behavior than any retailer, news outlet or savvy blogger.”

The truth is probably somewhere between Roeder and the underinformed headlines.  It’s true that campaigns don’t know anything more about our online behavior than retailers like Target, but what those retailers know is pretty disturbing.  And c’mon, the Obama campaign operates at a scale and complexity far greater than any “savvy blogger.”  That scale matters for what questions the campaign is going to ask, and what it is going to do with our information.

As a researcher who studies how organizations adapt to the digital environment, the real trouble here is that it’s nearly impossible to move beyond vague impressions.  Campaigns have an incentive not to talk to reporters.  They have an even greater incentive not to talk to academic researchers (at least without a non-disclosure agreement firmly in hand…).  When the journalistic coverage gets basic facts wrong, scholars have little way of knowing.  When campaigners disagree after-the-fact, we can’t tell whether they’re correcting the public record or trying to smooth away rightful mistrust.

Academics at our best offer healthy skepticism to the public discourse.  There are important conversations for us to have about the implications of refined digital marketing, management, and persuasion techniques for a healthy democracy.  But it’s going to be systematically difficult to engage in those conversations, because the underlying facts just aren’t going to be very clear.

 

Jaron Lanier’s technologist myopia

Jaron Lanier is at it again.  Two weeks ago, at Personal Democracy Forum, Lanier unveiled the central thesis of his next book: computer networks are causing the demise of the American middle class, threatening Democracy as we know it.  New information technology has exacerbated the distribution of wealth.  The Internet has undermined a set of “levees,” including academic tenure, copyright, and taxi medallions (???).  All sorts of social problems — from Wall Street shenanigans to the decline of unions — can be laid at the feet of technologists.  And, in Lanier’s eyes, these technological problems have technological solutions.  We simply have to rewrite the entire Internet, embrace Ted Nelson’s failed Project Xanadu and rebuild from the hyperlinks on up.

If that sounds extreme, don’t worry.  It’s supposed to be.  Jaron Lanier is the Great Curmudgeon of the Internet Community.  An influential technologist in the 1980s and 1990s, Lanier later began to ask “what hath our efforts wrought” sorts of questions.  He thinks on a grand and abstract scale, he does not like what he sees, and the Internet Community regularly provides a platform for him to voice his objections.  Among my friends and colleagues in the Internet research community, everyone either loves or hates what Lanier has to say.  But he is always provocative, and that indeed is largely the point.

We need good curmudgeons (or skeptics, at least) in the world.  Particularly in the technology & society community, which has a habit of falling into boundless optimism.  Good curmudgeons force smart optimists to engage in healthy self-reflection.  For that, if nothing else, they should be thanked.  My problem with Lanier, however, is that I don’t think he’s a particularly good curmudgeon.

As usual, there’s a kernel of truth in his work.  Technologists ought to be mindful of the values that they encode in software.  The individuals who construct our digital environment make up an increasingly important social elite.  Facebook and Google are, indeed, monetizing our every action – we create value, they harvest that value and turn a profit.  We ought to think through the social consequences of technology-driven disruptions.

But, as with his last book, the power of his critique evaporates due to a pair of gaping flaws.  The first is a problem of style, the second an error of analysis.

Stylistically, Lanier writes the way he talks — stream of consciousness, hoping from one example to another.  If you have trouble following his argument in the book or in the video, that isn’t because he’s just so brilliant.  Like many technologists, he likes to begin from first principles, designing his arguments basically from scratch.  That’s a fine method for create operating systems.  It’s a poor tool for social analysis though.  There are too many complicated moving parts, too much that cannot be simplified or assumed away.

His haphazard style exacerbates a habit of treating correlations as causation.  Lanier sees the rise of computer networks and the decline of unions in America and thinks “this is all connected!”  Yet unions began their decline well in advance of personal computing.   He sees computer networks driving wealth creation, but seems to forget that past advances in technology drove wealth creation as well.  History cannot be neatly divided into “pre-Internet” and “post-Internet” categories.  In doing so, he fails to take history seriously.

The bigger problem is Lanier’s error of analysis: Technologists are an elite, not The Elite.   The decline of unions (particularly the recent union fights in Wisconsin and Ohio) is not caused by the new information environment.  It is caused by motivated political elites, enacting policies that favor their own narrow interests.  The Wall Street crash was orchestrated by “quants” using computer networks, but it was made possible by the repeal of Glass-Steagall.   The decline of the American middle class has not been caused by technology.  The solutions to that decline lie not in the realm of bits and bytes, but in the realm of policies and votes.

A better skeptic would take other social forces into account.  To borrow from Larry Lessig, the information environment is shaped by four forces: laws, norms, markets, and architecture.  Indeed, one of the lessons from SOPA was that, if internet architects don’t exert political pressure, then Hollywood will reforge the internet.  Lanier looks at the Internet and sees the rise of a digital elite.  He then makes the moral argument that they should give up their power, creating an egalitarian internet along the lines of Ted Nelson’s original vision instead. Better skeptics, like Siva Vaidhyanathan, also see the rise of a digital elite.  But instead, Siva concludes that we should think of companies like Google and Facebook as though they were utilities, and regulate them accordingly.  Siva’s perspective is not just more realistic, it’s also more nuanced and accurate.

We dealt with the old robber barons (eventually) by regulating their influence.   Even if you agree with Lanier’s claim that technology is undermining the old “middle class levees,” the solution is to create new ones through public policy.  Blaming Facebook and Google for our social problems may be gratifying, but it lets the real culprits off the hook.

For Jaron Lanier, All Roads Lead to Code.  That perspective has made him the most popular internet curmudgeon.  Lanier has the ears of the entire tech community.  He occupies a space in a network – the space reserved for the critic.  With that role comes the responsibility to use it well!  Sloppiness either in thought or execution makes it too easy for his audience to dismiss all such criticism.  I can only hope that, as he transforms his PDF talk into his next book, he takes this responsibility seriously.  Technologists are not the only architects of our society.  We should be mindful of the values encoded in our technologies, but just as mindful of the values embraced by our public policies.

 

 

Dear David Lowery: Thanks for the Slander and Bad Metaphors

Going around on Facebook now is a post by musician David Lowery (of the bands Camper Van Beethoven and Cracker) in which he politely but condescendingly assails young people for copyright infringement. It’s in response to this post by NPR intern Emily White, in which she discusses how she has a hard drive full of music for which she has not paid.

There has been a good bit written about this post already, but I would like to make two additional points.

First, foremost, and “How dare you, sir!” on the list is this: David Lowery is guilty of slandering the free culture movement.

As is often the case of copyright maximalists, Lowery is relatively vague about who counts as defining the free culture movement. So before we even get to his accusations, let’s start with my rough-sketch, top-of-the-head list of some of the illustrative people and groups. Lowery cites Creative Commons specifically, but I would also add:

  • NGOs like EFF and Public Knowledge
  • Research centers like Harvard’s Berkman Center, Stanford’s Copyright and Fair Use Center, Duke’s Center for the Public Domain, and American University’s Center for Social Media
  • Virtually all of the technology press, from the generally-supportive pubs like Wired magazine to the super partisan sites like TechDirt (On that note, Mike Masnick’s coverage of SOPA was legitimately Pulitzer-worthy.)
  • A very long list of public intellectuals in fields such as law (Lessig, Jaszi, Litman, Boyle, Samuelson, …), communication (Vaidhyanathan, McLeod, Gillespie, Aufderheide), Library Science (Gasaway, Crews), and computer science (Felten).

That’s a long list. It’s not even the beginning of a complete list, either. So keep in mind that, when Lowery (or anybody else) attacks the free culture movement (or any of the derisive names they love to hurl at us—and yes, I include myself, though I’m increasingly more of an observer than a partisan), he’s attacking a LOT of institutions and people.

Now, on to some of the things Lowery says about us. Here are a few choice quotes:

“I just think that you have been presented with some false choices by what sounds a lot like what we hear from the ‘Free Culture’ adherents.”

“What the corporate backed Free Culture movement is asking us to do is analogous to changing our morality and principles to allow the equivalent of looting. Say there is a neighborhood in your local big city. Let’s call it The ‘Net. In this neighborhood there are record stores. Because of some antiquated laws, The ‘Net was never assigned a police force. So in this neighborhood people simply loot all the products from the shelves of the record store. People know it’s wrong, but they do it because they know they will rarely be punished for doing so. What the commercial Free Culture movement (see the “hybrid economy”) is saying is that instead of putting a police force in this neighborhood we should simply change our values and morality to accept this behavior. We should change our morality and ethics to accept looting because it is simply possible to get away with it.  And nothing says freedom like getting away with it, right?”

And what is, in my opinion, the kicker:

“Technological and commercial interests are attempting to change our principles and morality. Rather than using our morality and principles to guide us through technological change, there are those asking us to change our morality and principles to fit the technological change–if a machine can do something, it ought to be done. Although it is the premise of every “machines gone wild” story since Jules Verne or Fritz Lang, this is exactly backwards. Sadly, I see the effects of this thinking with many of my students.

“These technological and commercial interests have largely exerted this pressure through the Free Culture movement, which is funded by a handful of large tech corporations and their foundations in the US, Canada, Europe and other countries.*”

I’ll start with the end of the last quote because it’s the most outrageous of the lot.

Funding for the free culture movement came from individual donations and charitable foundations long and strong before technology companies really stepped up to the plate at all with substantial funding, and corporate donations continue to be a minority of the funding for the free culture movement.

With any research at all, Lowery would see this for himself. In fact, his own research proves my point and disproves his. Follow the link to “their foundations” in his post; it’s a tax document by Creative Commons listing their donors. (As if this were some sort of secret.) It lists the following donors in the following amounts (resorted here from largest to smallest):

  • William and Flora Hewlett Foundation: $4 million
  • Omidyar Network Fund: $2.5 million
  • Google: $1.5 million
  • MacArthur Foundation: $700,000
  • Mozilla Foundation: $500,000
  • Fidelity Nonprofit Management Foundation: $315,162

Google is the ONLY tech company donor on the list, they get credit for maybe 15% of the funding (probably less; I think their individual donor base is substantial), and they were late to the party. Mozilla themselves are nonprofit. Omidyar and Hewlett may have made their money in technology, but their foundations are their own, not their companies’. Their foundations believe in CC’s mission the same way the Gates Foundation believes in fighting Malaria—because they believe it’s a good cause, not because it makes them (still) more money. This is especially true for Creative Commons, since the link between their mission and any of these companies’ (even Google’s) bottom lines is tenuous at best.

Creative Commons was created in 2001 and ran for years without any substantial corporate funding. Their own history says they were founded on generous funding by Duke’s Center for the Public Domain! (Does Lowery refuse to use Google or not look at his opponents’ webpages?) Then it was able to attract money from big foundations. Further, the very mission and purpose of Creative Commons was set long before tech corporations were giving much of anything, and if Google tried to re-arrange things so that they’re really in charge, they’d be shown the door. In short, calling CC one of “their [tech corporations’] foundations” is like calling the Brooklyn Nets “Jay-Z’s team.” In both cases, the investment is really a chance to put down money on something you think is worthwhile and get a front row seat to watch other people play the game—NOT anything like a controlling interest.

The EFF and Public Knowledge have similar-but-different histories and funding mixes, but the basic story is the same in their cases, too. Yes, technology companies are giving to free culture organizations. Yes, those organizations can use the money and will take it. But none of these orgs are Astroturf groups for the tech industry, and to call them such is slander, pure and simple.

The other outrageous accusation is that the free culture movement thinks we should change our morals to accept infringement. (Excuse me if I insist on the correct if technical term vs. “theft” and “looting”; more below.) This is just not true. Go back to the list above. To my knowledge, NONE of the roughly dozen scholars I cite have publicly advocated that we just accept infringement. Ditto the academic research institutes and NGOs. Some tech bloggers may something like that here and there, but I cannot think of any specific examples.

In other words, everybody who can in any serious way be identified as speaking for the free culture movement—as a movement—accepts something like the basic tenets of copyright and some degree of online enforcement. Even isolated examples of “forget copyright, let infringement happen” are exceedingly difficult to find from serious participants in the policy debate—and while I might have missed some examples, few scholars can claim to have spent more time over the last decade studying the debate over copyright, so it would be a rare thing indeed. Sure, EFF Board Member John Perry Barlow said that over a decade ago, but it’s never been EFF’s position. Public Knowledge has had a radically centrist position on copyright for its entire existence—for which they’ve gotten nearly zero credit, by the way. Creative Commons is a way for copyright holders to better effect their wishes! That is why another (smaller) corporate donor to CC is Microsoft, a company that loves copyright almost as much as do the movie and music industries.

The free culture movement believes in copyright and enforcement, but the movement exists to point out that the devil of copyright and its enforcement is in the details. Consider the size of penalties. Free culture advocates don’t think we should end all penalties for infringement. They just think that penalties in the millions for peer-to-peer use are ludicrous and utterly disproportionate. Even if we accept Lowery’s metaphor of stealing physical records (again, I do not; see below), there is no set of circumstances I can imagine that could lead to me being fined millions of dollars for stealing records.

If I were to hijack a truck full of records with a fully automatic machine gun, my fine would still not be a million dollars. Even including the opportunity cost of the time I would spend in prison, we’d be hard pressed to get to a million dollars. Million dollar fines are appropriate for large corporations and people who commit massive securities fraud—not people who create actual harms that are numbered in the hundreds or thousands.

If the RIAA and MPAA got to reshape the law, online civil liberties would be in serious danger. Nobody at the table (especially the congressional hearing witness table) thinks infringement is just fine and dandy. Yet content industry lobbyists and their allies in Congress would be completely happy throwing due process and the First Amendment on the bonfire of every-stronger copyright enforcement—and they regularly bristle at the idea that anybody would stand in their way and accuse the free culture movement of supporting the “pirates”. Like Lowery, they do so in lieu of discussing the complicated trade-offs in a serious way.

Imagine a world where ISPs are legally required to disclose your full contact information to anybody who alleges copyright infringement as having occurred at your IP address. Imagine a giant copyright filter in the middle of the internet. Imagine a world where the mere allegation of infringement is enough for the US government to seize your web domain with no day in court, no explanation, and nobody to hold accountable when your business is seriously derailed. Sadly, this last one is not even imaginary, but actual US policy.

Being horrified by violations of civil liberties is not the same thing as being complicit in copyright infringement. Copyright can be too strong or too weak. We can disagree on which it is without disagreeing about whether copyright should exist or whether it should be enforced at all.

Instead of engaging these subtleties, however, Lowery straw-mans the whole free culture movement, portraying us as urging complicity in widespread infringement. For shame.

My first and main point, again, but more clearly: David Lowery has slandered a lot of good people and groups. He ignores the generous individual and foundation funders, the underpaid professionals (no, really; Cary Sherman’s salary of $3.2m is roughly the size of the annual budget for the whole EFF), and the scholars who get paid the same whether they support more or less copyright. These people are the reason this movement got started in the first place and they make it go. He has accused this very thoughtful group of people of encouraging law breaking, when they cannot repeat often enough or loudly enough that they are doing no such thing. He owes them all a deep and sincere apology.

(I won’t hold my breath, but in Lowery’s case, there’s at least an outside chance that it might happen. Unfortunately, though, such slander and creative pulling-of-“facts”-out-of-behinds is all in a day’s work from the content industry’s professional lobbyists. The chance of one of them apologizing is just slightly more likely than Jay-Z entering the next NBA All Star game—and winning MVP.)

A second point is that Lowery is also guilty of abusing the metaphor of property—though this is utterly unsurprising, since it’s a staple of what I call the “strong copyright” coalition’s rhetoric. I have a great deal to say about this. In fact, here’s a journal article I wrote, “Breaking and Entering My Own Computer: The Contest of Copyright Metaphors.” (Available for free online; don’t tell Lowery, but not everybody who creates information and culture has an interest in maximizing copyright exclusivity.)

The short version is that the metaphor of tangible property is extremely misleading. If I copy your work, you still have it, while if I steal your car, it’s gone. Thus, copying without permission is not stealing; it is either infringement or permitted for certain reasons, such as criticism, library preservation, or an expired period of protection.

Accusing infringers of theft, looting, or piracy is sloppy, but the poor fit of the metaphor benefits those who want ever-stronger copyright. I have no fair use right to your car, the government will never tell you the fixed rate at which you have to rent me your car, and your ownership right in your car never expires. If I ran the RIAA, I’d want to make it that way for recorded music, too. Thus, invoking the metaphor of physical property is super handy. Forget the fact that copyright exists for different reasons and works very differently; the less different they become, the better I’m doing my job.

Because of this, I propose alternate metaphors that are something of a better fit. One of which I’m particularly fond is: Copyright is the air conditioning in the bazaar of cultural production. We’ll never agree on the perfect temperature, but we need to set it to a middling level to maximize the work that gets done by all of the different people working in the studio. If the AC is rarely on and the room is too hot (copyright is too loose), stuff will melt together, and only those who work well in heat with stuff melting together (scholars, jam rock bands, open source programmers) will get work done. Conversely, if the AC is on constantly (copyright is too strong), everything will be frozen in place, and only those who can use things that are frozen in place (big media companies, authors and musicians who are already successful) can confidently work under these conditions.

This metaphor does a much better job conveying the contested, complicated world of cultural production. Nobody agrees on the temperature because we have different goals, but we have to find a temperature that approaches the best possible mix of production we want to see in total.

Unlike the property metaphors, the AC-in-the-bazaar metaphor does not suggest any easy answers, but that’s a virtue—again, unless you’re trying to score cheap political victories for the content industries. We can even describe Creative Commons and GPL licenses as a “hot room” in the relatively cool arena of the broader cultural economy, where mixing and remixing are easier. Anyway, that’s my second point, that Lowery’s metaphor is hackneyed (though he’s not alone), and we need to think about these things more subtly.

Finally, I don’t have the time or energy to develop this into a third point, but I cannot believe that any musician would pen this exact sentence: “Fairly compensating musicians is not a problem that is up to governments and large corporations to solve.”

Really? Because to this outsider, it sure seems like large corporations in recording and concert promotion have spent decades figuring out how to cash in on fans’ love of musicians while giving as little of that revenue as possible to musicians. I’m on the side of musicians in this fight, and it is a fight against large corporations. The occasional principled stand by Pearl Jam or PR stunt by String Cheese Incident notwithstanding, the only way to stop the concert promoters from pillaging artists’ livelihoods is probably for governments to step in. There are similar stories to tell on licensing revenues and contract language on the recording side.

This is a fight that should unite Lowery and the free culture movement. It would, however, require that musicians organize against the corporations that use those same musicians as mascots whenever it’s time to ask for help from the government on issues such as copyright.

P.S. For the record: Get your music, movies, books, and software legally. There are now very many easy, cost-effective, and convenient ways to do this. But some of them require ethical decisions, such as how much your local public radio or TV station is worth to you—the original “Pay your fair share, damnit!” media cause.

RIAA Chief Needs Better Understanding of Fairness

Some people will use every single under-handed tactic in the book to win—and then, if they lose anyway, complain that the game was rigged.

In a New York Times op-ed yesterday, RIAA head Cary H. Sherman whines that his side lost the latest round of the copyright wars because, in his eyes, the opponents of SOPA and PIPA acted unfairly.

For those who have been following the copyright debate for longer, this claim is so laughably ironic as to need no rebuttal. That the Times ran it, however, suggests that a broader historical context is needed.

Among other groans, Sherman rails against the anti-SOPA crowd for describing the bills as “censorship,” which he describes as “a loaded and inflammatory term.” He says he would rather have “respectful fact-based conversations” using “reason, not rhetoric.”

Yet in the same essay, Sherman continues the content industry’s decades-long history of using every loaded and inflammatory term they can think of in describing infringement.

Sherman repeatedly eschews the more accurate term “infringement,” choosing the morally loaded (and inaccurate) term “theft” instead. He compares sites accused of online infringement to “stores fencing stolen goods.” He accuses SOPA opponents of “supporting foreign criminals,” “misinformation,” and “demagoguery.” He even wonders how many of the bill’s opponents may be among the members of Anonymous who engaged in retaliatory online attacks against his group.

These accusations against the moral rectitude of their opponents are a tried-and-true pattern for the content industries. Now Sherman is upset that SOPA opponents used a morally loaded term? Anybody who has paid any attention to the debate over copyright should laugh out loud.

In addition to being on the wrong end of the accusation of rhetorical hyperbole, Sherman is also on the side that has a far less sound record of making accurate factual claims and of including all relevant details.

In this very essay, Sherman plays fast and loose with the truth. He claims that the bills were “carefully devised” and were proceeding after policymakers had “studied the problem in all its dimensions, through multiple hearings.” This could hardly be farther from the truth.

The bills were written in blatant disregard of a veritable library worth of skeptical input and proposed amendments from the tech sector, civil society groups, internet engineers, legal scholars, and the public. Rep. Lamar Smith, the lead sponsor and Judiciary Committee chair, was trying to ram the bill through on the House side after a single hearing in November that was so stacked in favor of the bill—five supporters to just one opponent—that the very even-handed group Open Congress described this sham of a hearing as a “lovefest”.

During the markup in December, the bill’s House opponents practically begged Smith to hold more hearings to hear more of the technology and civil society sectors’ concerns about the bill. Smith was unmoved and tried to move forward anyway. That is hardly studying the problem “in all its dimensions,” to say the least.

Next, Sherman defends the legislation’s proposals to shutter accused infringers, saying it wouldn’t be censorship because these sites would only be shut down after a court had undertaken “a thorough review of evidence.” First, the claim that these one-sided hearings would be “thorough” is, um, generous; the operator of the accused website would not only not have any right to contest the charges in court, they would not even be notified until after it was over! In nearly all cases, the site would be shuttered before the operator knew what happened.

Further, this misleadingly implies that sites would only be affected based on a court proceeding, which is patently untrue. Under Section 103 of SOPA, a letter from a coypright holder would be sufficient to compel payment processors and advertisers to stop doing business with a site. This sets up a more extreme version of the DMCA’s notice-and-takedown provisions, except rather than nudging behavior by creating a safe harbor for sites that comply (and thus creating such strong incentives to comply that a takedown notice is almost compulsory), it actually compels companies to obey these letters from the content industry that have never seen the inside of a courtroom.

Of course such a system will be subject to both human error and genuine malfeasance. We know this for a fact because of the many examples of fraudulent, mistaken, and abusive takedown notices under the DMCA.

Of course, these are just the inaccuracies in the article itself. In general, on the count of circulating misleading information, the content industry and their allies in the government are so guilty as to have few peers in DC.

Their estimates of how much infringement costs the US economy are an especially rich source of whoppers. These estimates have varied wildly, but they have consistently been so high as to be laughable. You may have heard the figures of $250 billion and 750,000 US jobs bandied about on a regular basis (though, granted, this is an estimate for all IP infringement). It turns out this figure is literally made up out of thin air, but it has been cited endlessly by IP zealots of all stripes.

When will Sherman begin admitting what the Government Accountability Office found in its 2010 report (pdf), which describes all of the major problems in all of the industry-funded studies of copyright infringement? (The GAO concluded that it is “difficult, if not impossible, to quantify the economy-wide impacts” of infringement.)

Where is Sherman’s outrage about the MPAA’s laughable estimate that infringement costs the movie industry $58 billion/year? (For some perspective, that’s a figure larger than the GDPs of 10 different US states.)

Sherman (who, by the way, earns an annual salary of over $3m) has also made incredibly inaccurate and misleading statements on other matters, even doing so in person in Congress. For instance, in a 2004 hearing on proposed DMCA reforms, he contended:

Second, there has been an impression created that the DMCA disallows fair use. In fact, it allows consumers who legally acquire a copy to make a fair use copy and you have a triennial review process to provide even further assurance that fair use rights are not lost.

The DMCA only prohibits companies from selling black boxes to strip away content protection for any purpose.

Not only is this patently untrue, if Sherman was honest with himself, he knew it was untrue as he was saying it. Section 1201(a)(1) of the DMCA actively prohibits circumvention of access-controlling DRM (including, e.g., the protection on DVD discs), which makes it illegal for consumers to make fair use copies of the media they legally acquire. To say the DMCA “only” regulates devices is, ahem, incorrect.

Further, his reference to the Copyright Office-administered triennial review process is also disingenuous at best. In the 2000 and 2003 DMCA hearings, consumers and consumer advocates had twice asked for the right to make fair use personal copies of encrypted media such as DVDs, and twice the Copyright Office had told them no. As Oscar Gandy and I demonstrate, those proceedings were marked by the Copyright Office giving as few exemptions as possible under as narrow a set of terms as possible with little regard to consumer welfare. This has improved a bit in the years since, but Sherman’s claim would still be false today.

I fully support a rational, fact-based discussion about the future of copyright. Unfortunately, the content industries have spent at least the last three plus decades polluting the discursive waters with loaded rhetoric. Remember which technology it was that MPAA chief Jack Valenti invoked the Boston Strangler to damn? That’s right, the VCR, and he did so in 1982. They have also spent at least the last decade trafficking in skewed, inaccurate, and downright-made-up statistics to support their claim that the post-internet sky is falling.

Setting aside Sherman’s radical hypocrisy on loaded and inflammatory terms and misinformation, there’s a deeper critique here: For far too long, copyright law has been decided in a nearly-private discussion between the affected industries and select policymakers with little public input. Jessica Litman makes a very persuasive case that this was true throughout the 20th Century.

Since then, as I show in my forthcoming book, the EFF has gotten heavily involved in copyright advocacy, and Public Knowledge has become a respected on-the-Hill counterweight to the industry’s clamoring for ever-stronger copyright enforcement. These groups have also helped persuade the tech sector to stop acquiescing to the kinds of compromises that let technology-shackling acts like the AHRA and DMCA sail through in the 1990s. Thanks to these changes, it has been much more difficult for Big Content to write new changes to the copyright statutes.

Still, until late 2011, the details of a proposed bit of copyright legislation had never really penetrated into much of the public conversation. In November, over a million citizens expressed their opposition, and even this was not enough to make an impression on Congress. The content industries have been playing the lobbying game to a masterful degree for decades, and when those kinds of relationships and campaign donations are on the line, calls from angry constituents can be ignored—at least until there are so many calls that it melts the phone lines.

Last month, of course, everything changed, and now Big Content is outraged. MPAA chief Chris Dodd, as part of his own personal lashing-out (which as far exceeded that by Sherman), made far too transparent the nature of this game. On January 20, he went on Fox News and said:

Those who count on quote ‘Hollywood’ for support need to understand that this industry is watching very carefully who’s going to stand up for them when their job is at stake. Don’t ask me to write a check for you when you think your job is at risk and then don’t pay any attention to me when my job is at stake.

Dodd, a former Senator, may actually have crossed a legal line here, making explicit the implicit exchanges that characterize the systemic corruption that Lessig describes as DC’s “gift economy” of trading favors. Regardless of whether he could be prosecuted, however, is almost immaterial. Rather, it highlights the profoundly unjust and immoral way that copyright law has been made up until this point.

It was an unexpected development, to say the least, that so many of the world’s leading websites chose to act together to bring greater public attention and scrutiny to this important issue. I definitely count it as a blow for democracy and against the way of lawmaking that moves along without even the fear of substantial input from the voting public.

Whenever both RedState and MoveOn think a bill is bullocks, the odds are high that the proposal is not just imprudent, but that it is being advanced in a profoundly anti-democratic way.

If Sherman wants more fairness in policymaking, he should lobby for systemic reforms instead of railing against a genuinely democratic movement.

(10:25 pm: Edited b/c I accidentally posted the whole thing in twice. Whoops.)

Stop Online Piracy Act: Terrible Law. Great Example of Internet Mobilization?

We’re in trouble. The future of the internet is in danger, and if that danger comes to pass, it’s both unhealthy for and a very bad indicator of the health of our democracy.

Congress is already very close to passing companion bills to censor the internet, the Stop Online Piracy Act (SOPA, H.R. 3261) and the Protect IP Act (PIPA, S. 968). This is in addition to the domain name seizures already underway by Immigrations and Customs Enforcement (ICE).

All of these efforts are terrible ideas. Their supporters don’t understand or care about the internet and are happily willing to break the internet to appease the content industry. It is among the very worst contemporary examples of a government that is of, by, and for special interests, and if it passes, it will be a slap in the face of democracy, free expression, due process, and technological innovation. To top it all? It won’t even do much to stop online infringement.

Fortunately, there may be signs that things are turning our way. I’ll get to that further below.

EFF has a great summary of the several ways SOPA can lead to a site getting shut down. Section 102 deals with foreign sites and is the most all-encompassing, but 103 and 104 are actually easier for rights holders to (mis)use, and they apply to domestic as well as foreign sites, so I’ll start there.

Section 103 allows IP rights holders to go directly to a website’s payment processors and advertisers—and to demand that these third parties cease all business with the website operator. These payment processors and advertisers then have just five days to act. The website operator has the right to file a counter-notice that they are not substantially dedicated to infringement, but (a) they may not get the chance until after the payment processors and advertisers have already cut off payments, and (b) the third parties have no obligation to take the counter-notice as final and re-establish a business relationship.

Section 104 takes this “default=censorship” strategy even further. Everyone in the internet ecosystem—registrars, web hosts, advertisers, financial processors, search engines, etc. etc.—gets near-categorical federal and state immunity for any decision to terminate a business relationship with a site (or even to shutter a site) “in the reasonable belief” that the site is dedicated to infringement. Under Section 103, a rights holder must at least file a claim. Under Section 104, even the intimation that a site is infringing might be enough to get it shut down—and the site would have no legal recourse.

The Administration also gets in on the fun in Section 102, which gives the Attorney General the power to use government-mandated Domain Name System (DNS) filtering to stop Americans from accessing “foreign infringing sites.” A domain name, such as Google.com, is an easy-to-remember way to tell one’s computer to go to a specific numeric address (e.g., 74.125.39.147). It is this number (the IP address) that identifies that site’s server (the computer that hosts the website). Everyone enters the domain name into their browser’s internet address bar, but the numbers would take one to the same site. Click on the numbers above or paste them into your browser to see for yourself.

Under Section 102, if a site were found to be primarily dedicated to infringement, the government could “seize” the site’s domain name. More precisely, the domain name registrar—a company that keeps track of which domain names are attached to which servers—would, if US-based, be compelled to stop sending users to the correct server. All domestic ISPs would also be forbidden to take you to the right server (the number behind the name), and advertisers and banks would be forbidden from doing business with these companies.

If the government found a foreign site to be infringing under these bills, the government would try to make it disappear for US audiences.

If this bill becomes law, we will see the shuttering and/or financial starvation of thousands of websites—which are, of course, a form of speech and/or press. They would be silenced and/or starved based on either an affidavit by a rights holder, a mere suspicion by a business partner, or (at best!) a one-sided court hearing with a low burden of proof. Little wonder then that legal scholars from (my friend and) rising star Marvin Amorri to the legendary constitutional scholar Laurence H. Tribe (pdf) have concluded that the bills are unconstitutional threats to the First Amendment.

By now it should be clear that, if passed into law, SOPA or PIPA would have devastating consequences for innocent actors who are mistakenly identified. The web seizures undertaken by U.S. Immigrations and Customs Enforcement (ICE), beginning in 2010, illustrate this peril all too well. Several websites have been taken down for posting media files that were authorized and even actively shared by the copyright holders or their representatives. Others have apparently been seized merely for linking to allegedly infringing content.

One in particular, DaJaz1.com, has become the cause célèbre of the anti-domain-seizures movement. It was one of a cluster of hip hop websites seized last year. Major voices from Vibe to Kanye to P. Diddy were actively promoting the sites, hardly a sign that they are dedicated to copyright infringement.

Last week, the feds finally gave up on DaJaz1. TechDirt (which has nearly gone all-SOPA, all-the-time) had the headline:

Feds Falsely Censor Popular Blog For Over A Year, Deny All Due Process, Hide All Details…

Their opening clarifies exactly how unconstitutional this is:

Imagine if the US government, with no notice or warning, raided a small but popular magazine’s offices over a Thanksgiving weekend, seized the company’s printing presses, and told the world that the magazine was a criminal enterprise with a giant banner on their building. Then imagine that it never arrested anyone, never let a trial happen, and filed everything about the case under seal, not even letting the magazine’s lawyers talk to the judge presiding over the case. And it continued to deny any due process at all for over a year, before finally just handing everything back to the magazine and pretending nothing happened. I expect most people would be outraged. I expect that nearly all of you would say that’s a classic case of prior restraint, a massive First Amendment violation, and exactly the kind of thing that does not, or should not, happen in the United States.

They go on to detail how DaJaz1’s owners were stonewalled, blockaded, and never allowed their day in court by the feds—for over a year—while the feds managed to arrange a court process during which all court proceedings (including several granting extensions that DaJaz1’s owners should have been able to contest) were secret and all the filings were sealed and not open to the site owners.

Once the details of the accusations came out, it turned out that the allegedly infringing songs were given directly to the blog by copyright holders’ agents in the hopes of promoting the music. The RIAA was the source of the original complaint, and one of the songs in question was not even released by an RIAA label.

Another operation using similar methods but for a different goal—seizing sites with child pornography—mistakenly took down 84,000 sites in one shot, resulting in each of those thousands of sites being down for 3 days. Even worse, each domain was redirected to an ICE notice that the website had been seized for trafficking in child pornography. Nearly all of those sites were not dedicated to child pornography, and to my knowledge, ICE never even apologized to them for the error.

Further, it takes little imagination to picture a devastating chill on legitimate sites that make fair uses of copyrighted content. If I run a news and commentary site, I may be less likely to include portions of copyrighted works, even if such inclusion is very likely fair use and crucially relevant to my discussion of the matters at hand.

In particular, media criticism sites would be in grave peril; how long after the bill’s passage would it be before partisan news outlets started using the new law to silence their critics? How long before FoxNews goes after Media Matters for America? Think that’s far fetched? Witness Righthaven’s efforts to sue bloggers for using even brief quotations. And what was on the list of threats they used to scare people into paying licensing fees? Domain seizure. Among other things, these bills would give a hunting license for those who would like to shutter the sites of upstarts, competitors, and critics.

At least these bills will stop piracy, right? Hardly.

Dedicated infringers will still find infringing sites—especially foreign sites that host infringing files with impunity. Remember, the feds are seizing the site name (e.g., Google.com) but not the number behind it (74.125.39.147). All you need is a small program to tell your computer to go to the right number—and, because the bill will forbid your ISP from getting you there, a proxy server in the middle. The same strategies have already proven successful for dissidents behind government firewalls, who still manage to upload and download forbidden information—despite far more active, on-the-fly, and resource-intensive censorship schemes.

Programmers have already developed tools to work around these restrictions. The law hasn’t even passed yet, and already there is a Firefox plugin that would help users work around SOPA-like restrictions.

You might think that at least payment processors and advertiser networks would be scared off of dealing with these sites. If it were that easy—if we could target the banks and advertisers that support internet scofflaws—then spam and other internet evils would have long since been wiped out.

The internet breeds decentralized innovation, and innovators will spring into action to help users circumvent ISP and search engine filters as well. This software will also be considered grounds for legal action—with the goal being to ban the tools, as the 1998 DMCA bans DRM-hacking devices. That’s worked so poorly that multiple free circumvention tools are available for most major DRM systems. There are so many DVD rippers that LifeHacker has a post comparing rippers to help you choose the best.

As if all of the above failures and offenses were not enough, these bills would harm our economy and reduce our competitiveness in the internet age. If SOPA were law when YouTube was getting started, the site probably would have been shuttered. The next YouTube will be much less likely to be born in the US if it can be kicked out of the legitimate portion of the web before it has really grown up. The EFF warns that sites like Etsy, Flickr, and Vimeo would be in danger.

Internet innovation is one of the few bright spots in the economy, and major internet firms have warned that this will increase the cost of regulatory compliance and decrease our competitiveness. Venture capitalists have also warned that SOPA would substantially decrease their willingness to invest in US technology start-ups. Union Square Ventures, just down the street here in NYC, even put this link saying the same thing on their homepage.

Senator Ron Wyden (D-OR) has placed a hold on PROTECT-IP, and he has even vowed to filibuster the bill should it come to the Senate floor. Because of this principled opposition and his long record of standing up for internet freedom, I made a donation to Sen. Wyden’s re-election campaign—even though my wife and I are watching every dollar as we save to buy our first home.

So these bills are terrrrrible, but they enjoy a lot of support in the House and Senate—30 cosponsors in the House, and a whopping 40 in the Senate. This post is derived from an email I sent to my Senators and Representative, and all three wrote back with disappointing notes to the effect of, “Yeah, but we gotta stop internet infringement.” Surely this is unrelated to the content industries having spent far, far more money on lobbying and campaign donations than their opponents on this issue.

Which brings us back to democracy.

In response to these bills, we have seen the swelling of a major internet movement—nearly the groundswell we saw around network neutrality in 2006. Opponents created a campaign declaring November 16—the day of a hearing in the House that was heavily stacked in favor of SOPA—as “American Censorship Day,” a campaign that went viral in a major way. Over 6,000 sites including Wikipedia, Creative Commons, Mozilla (including the default start page in Firefox), Reddit, TechDirt, and BoingBoing, directed traffic to a single action site, AmericanCensorship.org. At the time, the site said that it had generated over 1,000,000 emails and four calls per second to Congress. To date, AmericanCensorship.org has earned over 650,000 Facebook likes and 63,000 tweets.

This is democracy in action. After all, most people don’t support draconian copyright enforcement, and a solid majority of people oppose government attempts to block access to infringing materials. (40% support, 56% oppose; this skews to 33% for, 64% against when framed as censorship.)

If Wyden’s hold and the opposition can stop this fast-moving train(wreck), then perhaps democratic values and majority opinion can actually shape the future of the internet. Just maybe, a public outcry can stop a terrible idea backed by special interests.

If not, we may be in big trouble—and not just because the internet will be broken.