March 3, 2012, 11:20 a.m.
esr's "Open Letter to Chris Dodd"
Armed and Dangerous Blog
February 23, 2012Into the valley of Death
Rode the six hundred.
-- "The Charge of the Light Brigade"
Alfred, Lord Tennyson, 1854
Former 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.
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 . . .
An Open Letter to Chris Dodd
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.
April 27, 2007, 8:10 a.m., 12:30 p.m.
There's a lot to comment about today, so this blog entry may expand from time to time throughout the day beyond what are, for now, entries about Jack Valenti, and the start of one about the Pella rain forest. Now (12:30 p.m.) with an entry on the return of "Bill Moyers Journal," opening with Jon Stewart -- a must see for fans of either or both!
Jack Valenti: September 5, 1921-April 26, 2007
Jack Valenti died yesterday. If you're unfamiliar with this extraordinary man, one of the more thorough morning-after obits is Adam Bernstein, "A Hollywood Promoter on Both Coasts," Washington Post, April 27, 2007, p. A1.
I first met Jack Valenti in February of 1964.
Following my Supreme Court clerkship with Justice Black I accepted a professorship at the University of California Law School in Berkeley, "Boalt Hall," where my teaching and legal writing was focused on "administrative law" -- encouraged by Ken Davis, Walter Gellhorn, Frank Newman and others in the field. The Washington law firm, Covington & Burling, had long felt I should be practicing law instead, and repeatedly gave me the opportunity to do so. Feeling that a little experience with administrative agency practice might be a worthy compromise -- if I could limit it to a two-year leave of absence -- the firm agreed to those terms and the family headed to Washington.
One day I received a call from the White House advising me that Bill Moyers wanted to see me. Although there are newspaper accounts from the time asserting that Bill and I were roommates at the University of Texas, they were not true. We were both married at the time, lived with our wives rather than each other, in fact never even met in Austin, and -- as you'll soon see -- never met that day in February either.
So I was totally mystified as to why he would want to see me. Not only did I not know Bill Moyers, I didn't know any other member of President Johnson's staff, either, and I had never met the President. I didn't know any senators or members of congress or party campaign contributors. I was working on a sort of "administrative procedure act" for anti-dumping procedures and involved with some airline matters before what was then the Civil Aeronautics Board, but I couldn't imagine that anyone in the White House would even know, let alone care, about that.
I had only been at the White House once before as a high school student for a rose garden event with President Harry Truman, and was looking forward to seeing the West Wing for the first time. So I went over, and waited -- and waited, and waited. It was about 45 minutes past the time for what I had been told was my appointment with Bill Moyers when a fellow tapped me on the shoulder and told me to follow him. We went down a corridor, he opened a door, pointed to the chair where I was to sit, and left.
It was only later I would discover that my White House tour guide had been Jack Valenti -- though I more quickly figured out that the room where he'd told me to wait was the Oval Office. (The rest of that story is that the only other occupant of the room was President Johnson, who eventually engaged me in conversation about something called the Maritime Administration and all the reasons why my country needed me to be Maritime Administrator. I made the mistake of telling the President all the reasons why I didn't think that was a good idea, and why I wanted to return to Covington and then to Berkeley. Why a mistake? Because he wisely realized that anyone who would want to be Maritime Administrator was probably unqualified to hold the office -- and as it turned out I was the only name on his list who didn't want the job.)
(Although Bill Moyers and I later did meet and become friends, I found it a little ironic in later years to discover that Bill, at age 29 and one of the principal advisors to the President of the United States, was alone among Johnson's staff in thinking that I -- also 29 years old -- was "too young" for the responsibilities of the Maritime Administrator. The Senate Commerce Committee members, by contrast, thought my prior shipping experience -- which I candidly explained to them was limited to the rather unsuccessful operation of a canoe on the Iowa River -- fully qualified me for the position.)
Jack Valenti and I stayed in contact over his Johnson years and subsequently during his tour as President of the Motion Picture Association of America. With his skills as a speaker and publicist, his contacts in Hollywood and Washington, he rapidly became, and remained, the most effective lobbyist in Washington.
One of his numerous advantages was that he had a lavish private dining room and theater where he could invite Washington's powerful to sit down with Hollywood's beautiful to watch the best of his industry's movies. Those were evenings that I, and any other guest, long remembered. (He was also the supplier of films to the occupants of the White House, for showings at Camp David or "at home.")
During the 1970s, when I was enjoying my own "15 minutes of fame" as a young single man in Washington, I developed a friendship with Kathleen Nolan, the national president of the Screen Actors Guild who had recently been appointed to the board of the Corporation for Public Broadcasting. Watching her function in Washington and Los Angeles during those bi-coastal years with her gave me new insight into Jack Valenti's lobbying advantage.
She could pick up the phone and call the Speaker of the House, the Secretary of Labor -- or even the President -- and suddenly they would have nothing better to do that afternoon than to invite her to come see them.
Jack Valenti had the same kind of access. Partly it was those dinners. Partly it's just that people with power like to associate with other people with power. And power can come from celebrity as well as from wealth, corporate or political and governmental power. Jack, of course, had all five.
Kathleen was -- and remains -- a skilled actor with hundreds of credits, charming, attractive, energized and fun. But, like Jack, she was probably also seen by politicians as a possible way of getting to other Hollywood celebrities who, if one could get them to attend one's Los Angeles fundraisers, might be helpful in raising campaign contributions.
A part of Jack's effectiveness was his strategic sense. There was a time when, as chair of the National Citizens Committee for Broadcasting, I was involved in what I believe may have been the only successful effort to reduce levels of violence in television programming. (We tied it to the advertisers on the most violent programs.) Years earlier, following official inquiries into the causes of civil disorders in the late 1960s, the movie industry was also taking heat -- as now once again -- for the impact of media and movie violence on real life violence.
Other industries' lobbyists didn't even bother to put a velvet glove over their steel fist; they just came out slugging, threatening members of congress, bullying, attacking their "enemies" -- the sort of approach that earned Tom DeLay his nickname: "The Hammer."
Jack, seeing what was coming in the form of potentially heavy handed government regulation, decided to seize, rather than seethe, the day. Rather than attack the industry's critics, he expressed compassion for those concerned about movies' content, suggested they were entitled to protection, and proposed the movie "ratings" system that is still with us today. It was a brilliant stroke, and preserved the movie industry's artistic freedom for decades.
[In response to "Anonymous'" 8:22 a.m. Comment added to this blog entry ("Wasn't Jack Valenti the same guy who wanted the VCR made illegal in the early 1980s?") I don't mean to leave the impression that Valenti's every lobbying effort took "the public interest" into full consideration, or that he was a paragon of virtue in all respects of life. Only that he was very skillful as a lobbyist.]
His campaigns on behalf of his industry's copyright rights helped impress upon me that, while there has been corporate abuse of copyright, extending its terms and protections well beyond what many of us believe was intended by those who wrote it into the Constitution, one can understand the concern of someone who has put $80 million into a feature film only to find it available in DVD format on the streets of Beijing, Moscow and Singapore before it even reaches theaters in the U.S.
I won't go on with Jack Valenti stories. Read the Washington Post piece. It also refers to a number of his books. His was a life worth knowing about, one I am pleased to have intersected in the few ways I did -- starting with that day in February 1964 when I was supposed to meet with Bill Moyers.
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Bill Moyers Journal Returns Tonight: Jon Stewart
Speaking of Bill Moyers, his "Bill Moyers Journal" returns to public television tonight, Friday, April 27, and his first guest is Jon Stewart. You won't want to miss that one!
And if you missed it, check out his "Buying the War: How Did the Mainstream Press Get it So Wrong?" It is a 90-minute "special" that aired Wednesday, April 25, but is available in video, and as a transcript, at the site linked just above. I watched at a house party in Iowa City organized by Free Press -- a media reform organization very much worth checking out. (As I've been saying for 40 years: "Whatever is your first public policy reform priority, media reform has to be your second priority. With it you have a prayer; without it you don't.") Prior to the broadcast Free Press provided a telphone hookup to livingrooms all across America for an exchange between Moyers and media activisits. The Huffington Post report of that half-hour (Timothy Karr, "Moyers' Three Factors in the Media's Iraq Failure," April 26, 2007, with a link to the audio of the conversation) has been made available by Free Press.
As the title suggests the program deals with the Iraq War, and necessarily therefore the Bush Administration's handling of it. But it is much more in terms of its analysis of how the media, especially the Washington press corps, deals with government, corporations and advertisers generally. It's really a kind of "must see" for teachers and students of communications studies, First Amendment law, journalism, and political science.
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Two Old Rain Forests
There are two old rain forests kicking around these days. One, apparently misplaced some 300 million years ago, was recently found in Illinois. (As my mother used to say when I'd lost something, "Oh, don't worry about it. It will show up.") Sara Goudarzi, "Giant Fossil Rain Forest Discovered in Illinois," National Geographic News, April 24, 2007.
The other seems like it's been around that long, but it's really only been 10 or 11 years. Variously called over the years "The Iowa Child Project of the Iowa Child Foundation," the "Iowa Environmental/Education Project," the "Iowa Environmental Project" (and occasionally just "The Environmental Project"), it has recently been renamed "Earthpark."
Joe Sharpnack, http://www.sharptoons.com, who holds the copyright on this editorial cartoon, captured the significance of the constantly changing names on this failing project with his usual sharp wit and insight. The cartoon appeared in the Iowa City Press-Citizen on May 11, 2006. Standing next to the dead horse that is Earthpark CEO David Oman is saying, "Maybe if I change the name again & hit it some more . . .."
Now he's beating that poor old dead horse once again. Even the Des Moines Register, The Gazette, and Iowa City Press-Citizen -- having supported the projecdt over the years -- are now coming to their senses. And State29 is all over it.
The Press-Citizen's editorial put it most succinctly: "Earthpark's lack of private funding, its constantly shifting timetable and its leaders' near pathological inability to provide a straight answer to the most straightforward of questions has led us to discourage any further public support for this project." Editorial, "State lawmakers should just say no to Earthpark," Iowa City Press-Citizen, April 26, 2007.
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UICCU and "Optiva"
The UICCU-Optiva story is essentially behind us. There may be occasional additions "for the record," but for the most part the last major entry, with links to the prior material from October 2006 through March 2007, is "UICCU and 'Optiva'" in Nicholas Johnson, "UI Held Hostage Day 406 - March 3 - Optiva," March 3, 2007. Since then there have been two major additions: Nicholas Johnson, "Open Letter to UICCU Board" in "UI Held Hostage Day 423 - March 20 - UICCU," March 20, 2007, and "'Open Letter': Confirmation from World Council of Credit Unions" in "UI Held Hostage Day 424 - March 21 UICCU," March 21, 2007.
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[Note: If you're new to this blog, and interested in the whole UI President Search story . . .
These blog entries begin with Nicholas Johnson, "UI President Search I," November 18, 2006.
Wondering where the "UI Held Hostage" came from? Click here. (As of January 25 the count has run from January 21, 2006, rather than last November.)
For any given entry, links to the prior 10 will be found in the left-most column. Going directly to FromDC2Iowa.Blogspot.com will take you to the latest. Each contains links to the full text of virtually all known media stories and commentary, including mine, since the last blog entry. Together they represent what The Chronicle of Higher Education has called "one of the most comprehensive analyses of the controversy." The last time there was an entry containing the summary of prior entries' commentary (with the heading "This Blog's Focus on Regents' Presidential Search") is Nicholas Johnson, "UI President Search XIII -- Last Week," December 11, 2006.
My early proposed solution to the conflict is provided in Nicholas Johnson, "UI President Search VII: The Answer," November 26, 2006.
Searching: the fullest collection of basic documents related to the search is contained in Nicholas Johnson, "UI President Search - Dec. 21-25," December 21, 2006 (and updated thereafter), at the bottom of that blog entry under "References." A Blog Index of entries on all subjects since June 2006 is also available. And note that if you know (or can guess at) a word to search on, the "Blogger" bar near the top of your browser has a blank, followed by "SEARCH THIS BLOG," that enables you to search all entries in this Blog since June 2006.]
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Media Stories and Commentary
See above.
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Technorati tags: football, athletics, academics, high school, college, University of Iowa, education, K-12, leadership, university president, Michael Gartner, Iowa Board of Regents, UI president search, Nicholas Johnson, FromDC2Iowa
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Nicholas Johnson's Main Web Site http://www.nicholasjohnson.org/
Nicholas Johnson's Iowa Rain Forest ("Earthpark") Web Site
Nicholas Johnson's Blog, FromDC2Iowa
Nicholas Johnson's Blog Index
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