Armed and Dangerous Blog
February 23, 2012
Into the valley of DeathFormer Senator Chris Dodd, the Motion Picture Association of America's impossible effort to reincarnate Jack Valenti, recently went charging into the Valley of Silicon with a brigade of lawyers, lobbyists and publicists at least equaling Tennyson's 600, and with results no more victorious.
Rode the six hundred.
-- "The Charge of the Light Brigade"
Alfred, Lord Tennyson, 1854
What they encountered was as initially invisible and unexpected as that which greeted the British brigade in the Ukraine -- or the British redcoats 80 years earlier in America. Those whom esr describes as "technologists" had embedded their bunkers in the code they had written; what Larry Lessig first described as "west coast code" (as distinguished from the "U.S. Code" created by Congress on the east coast); the Internet which supports today's global business, education, finance, journalism, politics, social relations -- and entertainment.
Eric S. Raymond, sufficiently well-known and revered (in some quarters of his community) to go by "esr," in a true gesture of combative fairness, took it upon himself to explain to Senator Dodd why he had lost when "Into the Valley of Silicon road MPAA's 600."
Although I agree with much of what esr has to say, I'll add a little overly simplistic comment about my own position. The complaints of some copyright owners, including some Hollywood studios and producers, I find quite reasonable. Imagine if you had invested $100 million of your own money in the creation of a feature film, and then found pirated DVDs of it available (at a fraction of what they would someday sell for in America) on the streets of Beijing, Moscow and Singapore -- before you've even had your first showing of the film in a motion picture theater.
That's not to say the solutions the MPAA proposes make political, public interest, pragmatic, or even economic sense. It's just to say that their outrage and frustration is understandable.
Ironically, many over-compensated, multi-million-dollar corporate CEOs are not as swift as one would assume they'd be when it comes to designing business plans to optimize bottom line profit. Take the recording industry, for example. Few executives saw the genius in the Grateful Dead's willingness to let concert goers tape, and share, their concerts. Few saw the reasonableness of their customers' reluctance to pay $15 or $20 for a CD, when all they wanted was a single cut. After further alienating their customer base by suing everyone from teenagers to the elderly, they've finally come to see the wisdom in Apple iTunes' sale of multi-billions of individual songs.
It's important to recognize the distinction between ends and means when it comes to the constitutional intellectual property protection called copyright. The end, the goal, in Article I, Section 8, is that "The Congress shall have power . . . To promote the progress of science and useful arts, . . .." The means is a limited time copyright (originally 14 years, and now expanded by Congress to over a century, in response to Disney's desire to control Mickey Mouse).
"Fair Use" is an effort to promote the ends, the goal. It provides a four-factor guidance to the circumstances under which copyright material may be used without violating the copyright law. The two most significant are commercial considerations. Will the use adversely impact the income of the true copyright owner? Is the purpose of the user to make a profit, or are they using it in a classroom, a book review, or other commentary? The other two relate to the nature of the work, and the amount used. Use of factual material, historical accounts, or news are more likely to be considered fair use than use of creative works, such as songs, poetry, novels or plays. And the amount used is critical. The entirety of a song, poem, short story, or other work will have a tougher-to-impossible time passing as fair use than, say, a single sentence or paragraph from a 400-page book. All four factors are relevant; for example, just because it's "history," or the user isn't profiting from it, doesn't mean the user can reproduce an entire chapter or book.
The reason for this diversion into "fair use" is because legitimate corporate efforts to protect their intellectual property (such as films) from criminal taking, reproduction, and profitable sale, can sometimes take the form of a gross overreaching that encroaches on users' legitimate fair use utilization or other user rights under the copyright law.
From my perspective, that's what the fight is, or should be, about. Such revisions as there may be to the copyright law need to meet a "least restrictive alternative" standard -- remedies that simultaneously protect corporate intellectual property from criminal profiteers, while enhancing rather than curtailing efforts to "promote the progress of science and useful arts," and the fair use doctrine, by enabling the widest possible use of copyright material.
As esr hints in the last line of his essay ("if you’d like to discuss some ways of fighting piracy that don’t involve trampling on us and our users, we do have some ideas"), he and presumably other technologists are even willing to help out in designing such balanced standards.
Now, here is . . .
Posted on Thursday, February 23 2012 by esr
Mr. Dodd, I hear you’ve just given a speech in which you said “Hollywood is pro-technology and pro-Internet.” It seems you’re looking for interlocutors among the coalition that defeated SOPA and PIPA, and are looking for some politically feasible compromise that will do something against the problem of Internet piracy as you believe you understand it.
There isn’t any one person who can answer your concerns. But I can speak for one element of the coalition that blocked those two bills; the technologists. I’m not talking about Google or the technology companies, mind you – I’m talking about the actual engineers who built the Internet and keep it running, who write the software you rely on every day of your life in the 21st century.
I’m one of those engineers – you rely on my code every time you use a browser or a smartphone or a game console. I’m not exactly a leader among them as you would understand the term, because we don’t have those and don’t want them. But I am a well-known philosopher/elder of the tribe (I’ll name two others later in this letter), and also one of our few public spokespersons. In the late 1990s I helped found the open-source software movement.
I’m writing to educate you about our concerns, which are not exactly the same as those of the group of firms you think of as “Silicon Valley”. We have our own culture and our own agenda, usually coincident with but occasionally at odds with the businesspeople who run the tech industry.
The difference matters because the businesspeople rely on us to do the actual technical work – and since the rise of the Internet, if we don’t like where a firm’s strategy is going, it tends not to get there. Wise bosses have learned to accommodate us as much as possible and pick the few fights they must have with their engineering talent very, very carefully. Google, in particular, got its huge market capitalization by being better at managing this symbiosis than anyone else.
I can best introduce you to our concerns by quoting another of our philosopher/elders, John Gilmore. He said: “The Internet interprets censorship as damage and routes around it.”
To understand that, you have to grasp that “the Internet” isn’t just a network of wires and switches, it’s also a sort of reactive social organism composed of the people who keep those wires humming and those switches clicking. John Gilmore is one of them. I’m another. And there are some things we will not stand having done to our network.
We will not have it censored. We built the Internet as a tool to make every individual human being on the planet more empowered. What the users do with the Internet is up to them – not up to Hollywood, not up to politicians, and not even up to us who built it. Whatever else we Internet geeks may disagree on among ourselves, we will not allow our gift of fire to be snuffed out by jealous gods.
Because we will not have the Internet censored, we are also implacably hostile to any attempts to impose controls on it that could be used for censorship – whether or not that is the stated intent of the controls. That is why we were absolutely unanimous against SOPA and PIPA, and a significant reason that you lost that fight.
You speak as though you believe that the technology industry stopped SOPA/PIPA, and that by negotiating with the industry you can set up the conditions for a successful second round. It won’t work that way; the movement that stopped SOPA/PIPA (and is now scuttling ACTA) was much more organic and grass-roots than that. Silicon Valley can’t give you the political firepower or cover you’d need. All you’ll get from them is a bunch of meaningless press conferences and empty platitudes from CEOs who have nothing actually to gain by helping you and really wish you’d go away so they can get back to their jobs.
Meanwhile, the engineers inside and outside those companies will take it as their duty to ensure that you lose that battle again if you try to fight it again. Because there aren’t a lot of us, but the vast mass of Internet users – who do vote in numbers large enough to swing elections – have figured out that we’re on their side and we’re their early-warning system. When we sound the tocsin – as we did, for example, by blacking out Wikipedia – they will mobilize and you will be defeated.
Accordingly, one of the cardinal rules for any politician who wants to have a long career in a 21st-century democracy has to be “don’t screw with the Internet”. Because it will screw you right back. At least two primary challenges to SOPA/PIPA sponsors are in the news right now because they wouldn’t have happened without the popular outrage against it.
Hollywood wants you to screw with the Internet, because Hollywood thinks it has problems it can solve that way. Hollywood also wants you to think we (the engineers) are foes of “intellectual property” and in willing cahoots with criminals, pirates, and thieves. Neither of these claims is true, and it’s important that you understand exactly how they’re not true.
Many of us make our living from “intellectual property”. A few of us (not including me) are genuinely opposed to it on principle. Most of us (including me) are willing to respect intellectual property rights, but there’s a place where that respect abruptly ends. It stops at exactly the point where DRM threatens to cripple our computers and our software.
Richard Stallman, one of our more radical philosophers, uses the phrase “treacherous computing” to describe what happens when a PC, or a smartphone, or any sort of electronics, is not fully under the control of its user. Treacherous computers block what you can see or hear. Treacherous computers spy on you. Treacherous computers cut you off from their full potential as communications devices and tools.
Treacherous computing is our second line in the sand. Most of us don’t actually have anything against DRM in itself; it’s because DRM becomes a vehicle for treachery that we loathe it. Not allowing you to skip the advertisements on a DVD is a small example; not allowing you to back up your books and music is a larger one. Then there was the ironically pointed case of the book “1984″ being silently disappeared from the e-readers of customers who had paid for it…
Some companies propose, in order to support DRM, locking up computers so they can only only run “approved” operating systems; that might bother ordinary users less than those other treacheries, but to us would be utterly intolerable. If you imagine a sculptor told that his new chisel would only cut shapes pre-approved by a committee of shape vendors, you might begin to fathom the depths of our anger at these proposals.
We engineers do have an actual problem with Hollywood and the music industry, but it’s not the one you probably assume. To be blunt (because there isn’t any nice way to put this) we think Big Entertainment is largely run by liars and thieves who systematically rip off the artists they claim to be protecting with their DRM, then sue their own customers because they’re too stupid to devise an honest way to make money.
I’m sure you don’t agree with this judgment, but you need to understand how widespread it is among technologists in order to get why all those claims about “piracy” and lost revenues find us so unsympathetic. It’s bad enough that we feel like our Internet and our computers are under attack, but having laws like SOPA/PIPA/ACTA pushed at us on behalf of a special-interest group we consider no better than gangsters and dimwits makes it much worse.
Some of us think the gangsters’ behavior actually justifies piracy. Most of us don’t agree that those two wrongs add up to a right, but I can tell you this: if you make the technologists choose between the big-media gangsters and the content pirates, effectively all of us will side with the content pirates as the lesser of the two evils. Because maybe both sides are stealing on a vast scale, but only one of them doesn’t want to screw with our Internet or cripple our computers.
We’d really prefer to oppose both groups, though. Our sympathies in this mess are with the artists being ripped off by both sides.
Consider this letter our “Don’t tread on me!”. Our agenda is to protect our own liberty to create and our users’ liberty to enjoy those creations as they see fit. We have no give and no compromise on either of those, but long as Hollywood stays out of our patch (that is, no more attempts to lock down our Internet or our tools) we’ll stay out of Hollywood’s.
And if you’d like to discuss some ways of fighting piracy that don’t involve trampling on us and our users, we do have some ideas.