breaking culture

Copyhype over ePARASITES? Not quite.

Terry Hart, at his blog Copyhype, likes to chide critics of IP legislation for their failure to recognize the innate beneficence and insight of both legislators and the pro-IP lobbyists that shape legislation.  Today, he provides a snapshot of why he has this view.  It is likely true that there has been extreme rhetoric by people looking at new legislative initiatives and considering its hypothetical implications down the road: in many cases, I think this is the result of the extremes we must go to to make the (Lippmann) public act like a (Dewey) public (or vice versa).  

To paraphrase, the Dewey public is the public is a public in itself and Lippmann’s is a public for itself.  Dewey, in The Public and Its Problems, describes the public in roughly structural terms: something is private when it affects only the people who are voluntarily involved in an exchange; it is public when the effects of of that exchange overflow beyond it.  The public is thus constituted as an “externality” in economic terms.  Therefore, it exists as an objective fact even if the people affected by the event don’t realize that or how they are being effected.  

Lippmann, on the other hand, in Public Opinion and more darkly in The Phantom Public, limited his conception of the public to the people who took an interest in the events that might be affecting them.  In this sense, while Dewey is often termed a pragmatist, Lippmann was more pragmatic in his definition.  The public as a thing in itself might exist, but until it asserted its interests, it remains a phantom.  Lippmann’s feeling was that there was no way for people to be informed enough about the potential effects of, for instance, a given legislation, so democracy as a practice should be limited.  The process of policymaking should be left up to experts who would fine tune it according to what was deemed necessary.  The public could never, in this sense, be effectively for itself; instead it should be left to experts who could operate in the interest of the public (in itself).  

This is basically what we have today: with lobbyists acting as the experts and interest groups to help legislators craft policy in the public interest; and most of the public baffled or unaware of pending legislation, and thus silent in terms of potential public checks on the people supposedly operating in their interest.  It takes a great deal of noise to inspire this lumbering, busy public in itself to operate as a public for itself. But this is basically the job of organizations like EFF and similar venues.  

Hyperbole about hypotheticals is clearly a tool people on both sides of policies use to get them passed. Hart seems keen to cherry pick those opposing maximalist forms of protection rather than looking at the public fight over policies in their entirety.  For instance, this statement released by a number of Hollywood unions last week, which claims that “rogue websites” will ultimately destroy the vitality of their enterprise—as if it wasn’t valid websites like Netflix, Vimeo, or Youtube that pose their greatest threat.  Either way, Hart’s method here is to show some of the hyperbole from the anti-IP or what I might call the “balanced IP” side before a bill was ultimately passed, and then compare it to what actually happened.  Of course he only provides these counter examples in a couple of cases, more on that in a second.  

What seems more important from my perspective is not only that he doesn’t look at the hyperbole from the maximalist camp, but that, even if he did, there would be little need (or even ability) to look at a counter example:  we don’t know what would have happened if the maximalist camp didn’t get it’s way.  Would the entire IP industry have collapsed in a heap, taking with it the entire post-industrial US economy?  Would rogue websites have proliferated on the fringes and turned into viable venues for the transmission of all cultural content in the world, ultimately turning actors and movie producers into serfs in the pirate economy?  We don’t really know because for the most part, the Pro-IP lobby got most of what they asked for each and every time.  Whether any of it was necessary is not a concern of Hart: if it occurred, it must have been necessary.  Or…

I’d contend that there are quite a lot of problems with copyright extensions and, particularly from the perspective of libraries in the digital age. And the hobbled system of rights clearance which favors control over freedom is the result of decades of kowtowing to the interests Hart seems to find infallible.  Resistance to bills like the Shawn Bentley Orphan Works Bill in 2008 by the hysterical pro-IP lobby, some of whom claimed it would cause, “significant economic and artistic harm,” led to the demise of an initiative which, if revised in the House version, could certainly have resolved some of the issues the Hathi Trust now faces in its own Orphan Works suit.  Since the Author’s Guild has asked for the Hathi initiative to be stopped until legislative action is taken, it seems like even they agree there is only a legislative solution to this quandary.  Yet the pro-IP lobby got its way, mostly using the same sorts of hysterical rhetoric for which Hart criticizes the balanced IP groups.  It may be true that we all are able to subsist despite their success, but that hardly means the criticisms of the time weren’t warranted.

I appreciate Hart’s perspective and it is certainly important to compare the claims with the ultimate results.  This should be an ongoing, transparent process as a check on all the parties purporting to operate in the public interest.  But it is also important to consider that any particular intervention has to be contextualized in the moment it was made and, especially, the version of the bill in question.  A large part of the process of legislation is responding to these various interest groups.  I don’t have a deep enough knowledge (or time this morning to research it) but if we were to look at claims critics made about a bill in order to compare it with the ultimate results of the bill once passed as law, it would be important to see what version of the bill was being critiqued and how that compared with the ultimate law.  Public intermediaries like EFF and critics like Pam Samuelson, Lawrence Lessig, and Cory Doctorow all play a role in shaping legislation and encouraging public attention to the process.  Hyperbole is one way to attract that attention, but it is also only hyperbolic relative to the version of the bill being discussed.  If the bill was changed in response to this public pressure or hyperbolic criticism, it’s hardly fair to point out that the resulting law wasn’t as bad as they predicted: it might not be as bad precisely because of the rhetoric in question.  

On the other hand, since Hart’s goal is to mellow the critique of the current PROTECT-IP or ePARASITES act, it is ironic that Hart’s only real example of hyperbolic anti-anti-IP rhetoric going awry was in relation to the DMCA.  Despite the heated rhetoric at the time of its passage (and the fact that it is a classic example of policy laundering), Hart contends that, “Ten years later, many of those same critics couldn’t praise the DMCA enough.”  As evidence of this, he quotes an article in WIRED on the 10th anniversary of the bill as saying, “Blogs, search engines, e-commerce sites, video and social-networking portals are thriving today thanks in large part to the notice-and-takedown regime ushered in by the much-maligned copyright overhaul.”  

This is in reference to the so called “safe harbor” provisions established by the DMCA, which provided ISPs with immunity from prosecution if infringing content was found on their networks.  As the WIRED article in question puts it:

Still, the DMCA’s separate notice-and-takedown provision has proven even more crucial to the growth of the internet. The provision grants immunity to so-called “intermediaries” — ISPs, for example — for any copyright infringement by their users. To earn that so-called “safe harbor,” the intermediary such as video-sharing site YouTube must promptly remove material if the copyright holder sends a takedown notice. But the company can restore the content if the user certifies that it’s noninfringing, and the copyright claimant fails to sue.

In other words, it isn’t so much that the DMCA as a whole was beneficial, but that one portion of the bill has been very important to the growth of Web 2.0.  On the one hand, I haven’t checked this, but to follow from the argument above, it is possible that these safe harbor provisions were introduced as a response to those very critics.  The critic of note on DMCA for Hart is Pam Samuelson and one of the points she raises in her critique of the white paper version of the DMCA sound very much like a call for some sort of safe harbor.  Her #7 problem with the proposed arrangement was that it would, “Force online service providers to become copyright police, charged with implementing pay-per-use rules:”

If online service providers have to monitor everything users do, they will artificially impose centralized structures of control over user communications. The danger that overzealous copyright owners will sue online service providers in order to censor online communications has already evidenced itself in the ongoing Religious Technology Center and Bridge Publications Inc. v. Netcom case.

So although Hart faults her for predicting a disaster that never occurred, it is also possible to see her intervention as helping prevent that very disaster from being implemented completely in the bill.

Hart advances his argument in order to insinuate that people claiming current legislation has problems are just whiny chicken littles or, worse, false prophets of the digital apocalypse.  This is an important consideration—and one that bears scrutiny.  The irony in this case is that the beneficial parts of the DMCA are precisely those which the current legislation in question (PROTECT-IP/ePARASITES) threatens to rewrite—arguably with the intention of quashing what is currently useful about the safe harbor provisions.  One of the main proponents of the bill, Viacom, has already shown its animosity to Web 2.0 with its suit against Youtube.

Even the bill’s sponsor agrees that one of the primary goals of the bill is to change the way DMCA copyright claims have been handled up till now. The Hilicon Valley (linked above) paraphrases him as saying, “no sector of the Internet will be entirely exempted from taking part in the fight against online piracy.”  To reiterate, this is the removal of the very provision that Hart cites WIRED as saying was the unintended benefit of the DMCA.  Sounds like it might be worth sounding a warning bell or two.

To the credit of the House bill sponsors, they seem willing to negotiate on these issues, but their interest in doing so is in direct proportion to the amount of flak they catch from people and organizations like those Hart disparages.  While I welcome his historical perspective, we might need to dig a little deeper before dismissing this as pure “copyhype.” 

UPDATE: Techdirt has a nice rundown of the “Hysterical hyperbole” of the entertainment industry over the years.  It is far more revealing than Hart’s portrayal of the other side.