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 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.

Google v. Bing Lawsuit? Not for Violating Copyright

(As always: I’m not a lawyer, I’m definitely not your lawyer, and nothing herein is to be taken as legal advice.)

In light of the revelations that Microsoft has been copying Google’s search results and feeding them into its Bing results, there’s a discussion about whether and how Google might seek a legal remedy. While “sue for copyright infringement” is perhaps a good default answer in internet law, I don’t think it’s the right one here. There may be other good options, though; I discuss one further below.

Senior Google Counsel William Patry knows a lot more about copyright than I ever will, but I’d be shocked if his team went into court with the claim that their search results are copyrightable. Copyright is only granted to creative expressions fixed in a tangible medium. Databases (compilations of data, including the association between various bits of data) are not subject to copyright unless there’s some creative expression involved, and then, only the creative expression is protected.

I think the clearest case law analogy here is Feist v. Rural, in which the defendant acknowledged having copied the plaintiff’s white pages. Still, the SCOTUS found unanimously for the defense. Why? Because there’s no creativity in collecting the data and alphabetizing the list of names. This is true even though several of the names were fake—and appeared in both the original and the copied version. Sound familiar?

The technology is different, but the legal question is remarkably similar. Google doesn’t create the websites to which it links, and it is exceptionally clear that the sorting that happens in the black box is fully automated and governed by complex equations. In other words, it’s like a much more complicated version of alphabetizing.

Imagine similar copying based on a sorting mechanism that is more complicated than alphabetical order but less complicated than Google search rankings—say, NFL quarterbacks’ passer ratings. If I were a sports blogger, I would have no compunction about copying the list of starters ranked by passer rating from the NFL.com site. Why? It’s just a list of which quarterbacks had which ratings, sorted by a somewhat complicated but ultimately mathematical rating. The NFL could sue me, but it would be pointless.

We don’t know how the math behind the search results and rankings work, but we do know that it’s an automatic process. Anybody who knows the formula could apply it and get the same results. This means the results aren’t sufficiently creative to be copyrightable. Even though Google’s search software is much more complicated, it’s probably best described as the legal equivalent of alphabetizing or ranking quarterbacks by formulaic passer ratings. I’m perhaps overstating the case, but on a scale from “Shakespeare” to “phone book,” search engine results are practically tripping on the white pages.

One might object, “But software is copyrightable!” Yes, software written by creative human programmers is copyrightable. This includes the code inside Google’s black box. But Bing didn’t copy the code. That would be infringement, not to mention a violation of trade secrets. Bing just copied the results–and not even whole hog, but as input for their own formula–and the results are not themselves a creative expression.

So where does that leave Google’s legal strategy? I know much less about this area of law, but I think they could go for the other default answer for internet law: “Sue for violating the clickwrap license.”

Here, the case law seems to be much more on their side. One reasonably analogous case is Register.com v. Verio. In this case, Plaintiff Register.com won an injunction against Verio for repeatedly and automatically harvesting subscriber data from Register.com’s site in violation of the terms of use.

The fit here is also not bad. Google’s Terms of Service forbid certain uses, including accessing any services “through any automated means (including use of scripts or web crawlers).” Even though the IE users themselves are not automatons, IE is, and apparently it’s serving as a web crawler, harvesting the data and sending it back to Redmond.

Funny coincidence that I’d pick this case, too. Read the slip opinion here (pdf), and check out the participating attorneys. Guess who was the lead attorney for Register.com, the victorious plaintiff… William Patry. Maybe I’m not so far off base here in predicting a Register v. Verio-based strategy.

Google may well let Bing’s actions speak for themselves and avoid the legal route altogether. That’s a fine PR strategy, and suing also may not be worth the political cost of giving fodder to Google’s opponents on other issues down the road. But if they want to sue, I think copyright is a terrible route, while breach of contract may be a good route.

There are still other legal options, to be sure. But as “Chainsaw” Dan Snyder reminds us, suing isn’t always the best option.

White House Claiming Quasi-Copyright Over Official Pics

It’s 100% legal for me to post this picture:

It’s an official US government document, so copyright does not apply–at least not in the US. (See 17 USC § 105.) It’s galling, then, that the official White House Flickr account has been adding language incorrectly claiming copyright-like restrictions on pictures.

The language reads:

This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.

The only true part of the statement is that the photo may not be used to suggest commercial or political endorsement. The rest is balderdash.

You can print a thousand posters of this picture and sell them for profit. [Ed. Feb. 13: MAYBE. See below.] You can crop out Joe Biden’s face, insert your own, and use that for your Facebook profile picture. You can print a photobook using this and dozens of other official photos. It would be polite to credit photographer Pete Souza, but even that’s not required.

Just don’t do anything that implies endorsement of your product or political cause. (For instance, don’t sell your poster as an official White House poster.)

I’m sad to see yet another instance of the administration not delivering the government transparency we were promised. Willfully misrepresenting the law to constituents is bad form indeed.

Of course, it’s nothing compared to the fiasco that is the Anti-Counterfeiting Trade Agreement. The negotiations continue, with the goal of a signed treaty this year, but ACTA draft proposals remain “classified in the interest of national security pursuant to Executive Order 12598.”

It’s enough to make willful misrepresentation of the law look downright charming.

[Ed. Feb. 13: Here's where "I'm not a lawyer" should just be auto-added to the top of all my posts. There's no FEDERAL law that would keep you from reproducing and even selling government document photographs. There is, however, a state law issue of the "Right of Publicity."

I think some applications of this right can be troublesome, but others make good sense. In any case, I failed to account for it in the first version of this post. Here's a good post discussing the frequent uses of Obama's image as a question of the right of publicity.

Short version: Politicians have a right of publicity according to state rights, though uses are more likely to raise First Amendment concerns, and enforcement is such a PR nightmare that it almost never happens. Which is why I was able to buy Obama handpuppets at the inauguration--and why you'd still be effectively able to sell your posters, but it may technically be illegal depending on your state's law, and an attorney would likely discourage you from doing so.

But it's still 100% legal to photoshop your face over Biden's and use that as your Facebook profile. In fact, I have Photoshop...]

Thanks to Newsweek for Having Me at News/Geek

Just a quick, 24-hours-overdue thanks to the folks at the Newsweek Dev Team for hosting me last night at their third News/Geek event.

I had a rollicking good time, the questions were awesome, and the post-talk celebration was even better. If you want the Powerpoint, it’s here in all its 12.2 MB glory.

Further discussion welcome.

lessig on institutional corruption

Professor Lessig is presenting on Institutional Corruption today at the Kennedy School as his first public appearance at Harvard since his return a few months ago.

Professor Lessig likes to introduce three ideas to frame his talk today: 1) influence, 2) independence and 3) responsibility.

Relying on his framework of the four modalities of control that he used in Code, Professor Lessig explains how the law, markets, norms and architecture together exert influence, and that depending on your policy objectives, these four forces can be complementing or conflicting. He suggests that together they form an “economy of influence” that we need to understand if we want to make effective policy.

He continues to explain “independence”, in the sense that something is not dependent on something. Independence matters, because it means that you try to find the right answer for the right reason, as opposed to doing so for a wrong reason you might be dependent on.

Independence, however, does not mean dependence from everything. Lessig reframes independence as a “proper dependence”. In legal terms, it means that a judge depends on the law for her judgment. So independence is about defining proper dependence, and limiting improper dependence.

Responsibility is the third concept Lessig goes into. He tells us about a case he represented in 2006: Hardwicke vs ABS. It was a case that focused on a series of events concerning child abuse, all perpetrated by a single person. The question that was raised: Who is responsible? Lessig makes the argument that responsibility does not lie with the individual, that this individual has no power to reform, and that this is pathological. Instead, he makes the case that responsibility in this case is all the people who knew about the wrongdoings, but refused to pick up the phone. Nevertheless, the focus of the law was on the one pathological person. Lessig suggests it is more productive to focus responsibility on those who have the power to make changes, instead of those are pathological and are not in a position to reform. He notes it is ironic that the one person who is least likely to reform is held responsible, while the one entity who could do something about it, was immune.

He raises another example of “responsibility” gone awry. He cites Al Gore and his book “The Assault on Reason”, and lambasts its narrow perception of responsibility. It focuses on former president Bush, arguably the man least likely to reform, and instead forgets those who could have done something about it, suggesting that they also have been critically responsible.

His argument is one of “institutional corruption”. What it is not: what happened with Blagojevitch; it is not bribery, not “just politics”, not any violation of existing rules. Instead, institutional corruption is “a certain kind of influence situated within an economy of influence that has a certain effect, either it 1) weakens the effectiveness of the institution or 2) weakens public trust for the institution.

He explains the system of institutional corruption using the White House. Referring to Robert Kaiser’s book “So Damn Much Money”, he argues how the story of the government has dramatically changed in the past fifteen years and how the engine of this change has been the growth of the lobbying industry. He illustrates this with numbers: Lobbyists pay with cash which members use as support for their campaigns. The cost of campaigns have exploded over the years, and subsequently, members have become dependent on lobbyists for cash – he cites that lobbyists make up 30-70% of campaign budgets! This is not new, he carefully explains, but citing Kaiser again, what is new is the scale of this practice has gotten out of hand. Members /need/ and take /much more/, becoming /dependent/ on those who supply. This is only during the tenure, but institutional corruption also needs to be understood as something after tenure: 50% of senators translate their senate tenure into a career as lobbyist, while 42% of the house do the same. This suggests a business model, focused on life after government, that perpetuates itself, and influential people who end up becoming dependent on this system surviving, both during and after their time in Congress.

He goes on to give example after example of institutional corruption. He mentions the important work done by maplight.org that tracks money in politics, who have shown that members who voted to gut a bill had 3x times the contribution from lobbyists than those who voted against. Simply put, policies get bent to those who pay. He cites a study by Alexander, Scholz and Mazza measuring rates of return for lobbying expenditures, who conclude that ROI is a whopping 22,000%! He again cites Kaiser, who suggests that lobbying is a $9-12 billion industry.

Why does this matter? It matters if it
1) weakens effectiveness of institution or
2) weakens public trust of institution

In the first case, he argues how lobbying can shift policy. He cites a study by Hall and Deardorff “Lobbying as Legislative Subsidy” on how the work of congresspersons shift as a result of lobbying. Imagine you’re a congressperson and you see it as your goal to work on two issues: one is to stop piracy, the other is to help mums on welfare. The line of lobbyists that will happily help you with stopping piracy is long, whereas not so many will help you with the latter – so work of the congressperson shifts, and thus work of Congress shifts.

Lessig suggests it also bends policies. Does money really not change results? Citing the Sonny Bono case of October 27, 1998, he shows how in copyright lobbying power had a powerful influence in getting the copyright term extended for another twenty years. Does this advance the public good? A clear no. Lessig backs this up by telling how in the challenge at the Supreme Court, an impressive line-up of Nobel Prize winning economists, including Milton Friedman, supported this and that it would be a “no brainer” to sign the support that copyright extension did not advance the public good. But he concludes that there were “no brains” in the House. An easy case of institutional corruption. There are two explanations: Either they are idiots, or they are guided by something other than reason. He suggests of course it’s the latter. It is not misunderstanding that explains these cases.

Lessig continues to explain how corruption can be seen as weakening public trust. He tells us about how the head of the committee in charge of deciding the future of healthcare is getting $4 million from the healthcare industry. Or how a congressperson ended up opposing the public option even though the majority of his constituency supports it. The idea is not that there might be a direct link between the money and the vote, but that if you take money to do something that is against the public interest, people will automatically make that link, and this weakens public trust. If you don’t take money and you go against the popular vote, that won’t reek of corruption.

Lessig goes on to discuss different fields: medicine and the healthcare industry, citing research by Drummond Rennie from UCSF that shows how there is an overwhelming bias in favor of sponsor’s company drugs. How there are 2.5 doctors to 1 detailer (a detailer being someone who is like a lobbyist for the pharmaceuticals, promoting the drugs to doctors, often giving “gifts”). How the budget for detailing tripled in the past ten years.

Lessig asks us: how can we find out whether these claims are true? Do detailing practices either weaken the effectiveness of medicine, or weaken the public trust for it? What would it take to know?

There is also the issue of “the structure of fact finding” that Lessig suggests is corrupt. Again, he argues we need to understand whether this is a process by which results are affected or trust is weakened. He cites how sponsor funded research can cause delay, and mentions the case of “popcorn lung”.

Lessig makes a strong case that we need more than intuition. That we need a framework or metric to know for sure. Because we all have ideological commitments, that we need to escape this in order to have a proper understanding of corruption. This is, in short, the aim of his new project: The Lab. It should be a neutral ground with a framework that determines whether and when institutional corruption exists, to develop remedies for institutional corruption when it exists. He sees the initial work having three dimensions: 1) data – necessary to describe influence and track its change; 2) perception of institutional corruption and understand how it has changed;
and 3) causation – what can we say about what causes what in these contexts in alleged corruption. Having this information, we can then design remedies.

Stimulus Bill: Content Filtering Out, Open Networks Requirement In

Thanks to Alex Curtis at Public Knowledge for the stimulus bill content filtering update. The good news is in the headline: No on content filtering, yes on open network requirements.

He also posted a PDF of the relevant section. See the highlighted portion on page 9 for the nondiscrimination requirements.

HBO Demands YouTube Take Down Inauguration Concert Footage, Then Seems to Recant

It was already shameful enough that HBO got the exclusive TV rights to broadcast the video of the inaugural concert. Compounding this shame, HBO was sending DMCA takedown notices to YouTube for clips that concertgoers made themselves.

Over at Public Knowledge, Daniel McCartney’s take is that HBO is trying to own history. I’d have to agree.

As McCartney points out, HBO’s copyright claim is dubious at best–and that’s without even considering fair use–but the DMCA takedown notice system rewards over-enforcement. Generally, a (real or alleged) copyright holder says “Take this down,” the site complies, and that’s the end of the story.

In a more recent development, HBO was apparently shamed into changing their mind. Some clips are still down (like this one), but others remain.

For instance, here’s an amateur recording of Bishop Gene Robinson’s invocation:

Also, there’s even a professional recording of the coveted Pete Seeger/Bruce Springsteen performance of “This Land is Your Land”. Judging by the titling, this was made for or repurposed by a station broadcasting in another country.

For those whose clips get taken down, note that you might get Google (who owns YouTube) to re-upload the clip by filing a counter-claim.

IMPORTANT: If you file a counter-claim, you’re basically daring HBO to actually sue you, though considering their change of heart, the odds of a real suit seem slim. Depending on the clip, it’s a risk I might take, but I don’t expect everyone to agree.

This is why the DMCA takedown system rewards over-enforcement. The people on the “Take that down!” end of the transaction already have a team of lawyers, while those on the “Where the heck is my clip?” end generally don’t know their legal rights and don’t have the money to hire a lawyer.

On an unrelated note–the “This Land” performance–listen carefully to the lyrics. Note that two of the verses from Woody Guthrie’s original version are pretty socialist. These are generally omitted from the version taught in primary schools. Seeger and Springstein appeared to take particular pleasure in singing the full song.