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February 24, 2012

Copyright U

"You cannot have democracy without a public domain," says Tracy Mitrano. She clarifies: "Where the issues that matter are part of what people think about every day and we express them to our representatives in a representative democracy."

As commentators, campaigners, and observers keep pointing out, copyright policy hasn't been like that. A key part of the street protests over the Anti-Counterfeiting Trade Agreement (ACTA) was the secrecy of the negotiations over its contents. Similarly, even if there had been widespread content with the provisions of the Digital Economy Act, the way it was passed would be disturbing: on the nod, revised at the last minute with no debate, in the wash-up before the election with many MPs already on the road to their constituencies. If these are such good policies, why do they need to be agreed and passed in such anti-democratic ways?

My conversation with Mitrano is partly an accident of geography: when you're in Ithaca, NY, and interested in the Internet and copyright she's the person you visit. Mitrano is the director of IT policy at Cornell University, one of the first academic institutions where the Internet took hold. As such, she has been on the front lines of the copyright battles of the last 15 years, trying to balance academic values and student privacy against the demands of copyright enforcement, much like a testbed for the wider population. She also convenes an annual computer policy and law conference on Internet culture in the academy.

"Higher education was the canary in the coal mine for the enforcement of copyright and intellectual property on the Internet," she says.

We don't generally think of universities as ISPs, but, particularly in the US where so many students live in dorms, that is one of their functions: to provide high-speed, campus-wide access for tens of thousands of users of all types, from students to staff to researchers, plus serving hundreds of thousands of alumni wanting those prestigious-sounding email addresses. In 2004, Cornell was one of the leaders of discussions with the music industry regarding student subscription fees.

"To have picked on us was to pick on an easy target in the sense that we're fish in a barrel given our dependence on federal funding," she says, "and we're an easily caricatured representation of the problem because of the demographic of students, who care about culture, don't have a lot of money, are interested in new technology, and it all seemed to be flowing to them so easily. And the last reason: we were a patsy, because given that we care about education and we're not competing with the content industry for profits or market share, we wanted to help."

The result: "The content industry paid for and got, through lobbying, legislation that places greater demands on higher education ISPs than on commercial ISPs." The relevant legislation is the Higher Education Act 2008. "They wanted filtering devices on all our networks," Mitrano says, "completely antithetical to all our values." Still, the industry got a clause whose language is very like what's being pushed for now in the UK, the EU, and, in fact, everywhere else.

"After they got what they wanted there, they started in Europe on "three strikes"," she says. "Not they've come back with SOPA, ACTA, and PIPA."

Higher education in the US is still paying the price for that early focus.

"Even under the least strict test of the equal protection clause, the rational basis test, there is no rational basis for why higher education as an ISP has to do anything more or less than a commercial ISP in terms of being a virtual agent of enforcement of the content industry. Their numbers prove to be wrong in every field - how much they're losing, how many alleged offenders, what percentage of offenders the students are alleged to be in the whole world in copyright infringement."

Every mid-career lawyer with an interest in Internet policy tells the story of how tiny and arcane a field intellectual property was 20 years ago. Mitrano's version is that of the 15 students in her intellectual property class, most were engineers wishing to learn about patents; two were English students who wanted to know why J.D. Salinger's biography had been pulled before publication. By the time she finished law school in 1995, the Internet had been opened up to commercial traffic, though few still saw the significance.

"Copyright, at that moment, went from backwater area to front and center in US politics, but you couldn't prove that," she says. "The day it became apparent to most people in American society was the day last month when Wikipedia went black."

Unusually for someone in the US, Mitrano thinks loosening the US's grip on Internet governance is a good idea.

"I'm not really willing to give up US control entirely," she admits, "it's in the US's interests to be thinking about Internet governance much more internationally and much more collaboratively than we do today. And there's nothing more representative than issues around copyright and its enforcement globally."


Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.


February 17, 2012

Foul play

You could have been excused for thinking you'd woken up in a foreign country on Wednesday, when the news broke about a new and deliberately terrifying notice replacing the front page of a previously little-known music site, RnBXclusive.

ZDNet has a nice screenshot of it; it's gone from the RnBXclusive site now, replaced by a more modest advisory.

It will be a while before the whole story is pieced together - and tested in court - but the gist so far seems to be that the takedown of this particular music site was under the fraud laws rather than the copyright laws. As far as I'm aware - and I don't say this often - this is the first time in the history of the Net that the owner of a music site has been arrested on suspicion of conspiracy to defraud (instead of copyright infringement ). It seems to me this is a marked escalation of the copyright wars.

Bearing in mind that at this stage these are only allegations, it's still possible to do some thinking about the principles involved.

The site is accused of making available, without the permission of the artists or recording companies, pre-release versions of new music. I have argued for years that file-sharing is not the economic enemy of the music industry and that the proper answer to it is legal, fast, reliable download services. (And there is increasing evidence bearing this out.) But material that has not yet been officially released is a different matter.

The notion that artists and creators should control the first publication of new material is a long-held principle and intuitively correct (unlike much else in copyright law). This was the stated purpose of copyright: to grant artists and creators a period of exclusivity in which to exploit their ideas. Absolutely fundamental to that is time in which to complete those ideas and shape them into their final form. So if the site was in fact distributing unreleased music as claimed, especially if, as is also alleged, the site's copies of that music were acquired by illegally hacking into servers, no one is going to defend either the site or its owner.

That said, I still think artists are missing a good bet here. The kind of rabid fan who can't wait for the official release of new music is exactly the kind of rabid fan who would be interested in subscribing to a feed from the studio while that music is being recorded. They would also, as a friend commented a few years ago, be willing to subscribe to a live feed from the musicians' rehearsal studio. Imagine, for example, being able to listen to great guitarists practice. How do they learn to play with such confidence and authority? What do they find hard? How long does it take to work out and learn something like Dave van Ronk's rendition, on guitar, of Scott Joplin rags with the original piano scoring intact?

I know why this doesn't happen: an artist learning a piece is like a dog with a wound (or maybe a bone): you want to go off in a forest by yourself until it's fixed. (Plus, it drives everyone around you mad.) The whole point of practicing is that it isn't performance. But musicians aren't magicians, and I find it hard to believe that showing the nuts and bolts of how the trick of playing music is worked would ruin the effect. For other types of artists - well, writers with works in progress really don't do much worth watching, but sculptors and painters surely do, as do dance troupes and theatrical companies.

However, none of that excuses the site if the allegations are true: artists and creators control the first release.

But also clearly wrong was the notice SOCA placed on the site, which displayed visitors' IP address, warned that downloading music from the site was a crime bearing a maximum penaltde y of up to ten years in prison, and claimed that SOCA has the capacity to monitor and investigate you with no mention of due process or court orders. Copyright infringement is a civil offense, not a criminal one; fraud is a criminal offense, but it's hard to see how the claim that downloading music is part of a conspiracy to commit fraud could be made to stick. (A day later, SOCA replaced the notice.) Someone browsing to The Pirate Bay and clicking on a magnet link is not conspiring to steal TV shows any more than someone buying a plane ticket is conspiring to destroy the ozone layer. That millions of people do both things is a contributing factor to the existence of the site and the airline, but if you accuse millions of people the term "organized crime" loses all meaning.

This was a bad, bad blunder on the part of authorities wishing to eliminate file-sharing. Today's unworkable laws against file-sharing are bringing the law into contempt already. Trying to scare people by misrepresenting what the law actually says at the behest of a single industry simply exacerbates the effect. First they're scared, then they're mad, and then they ignore you. Not a winning strategy - for anyone.


Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.


February 10, 2012

Media cop

The behavior of The Times in the 2009 NightJack case, in which the paper outed an anonymous policeman blogging about his job, was always baffling since one of the key freedoms of the press is protecting sources. On occasion, journalists have gone to jail rather than give up a source's name, although it happens rarely enough that when it does, as in the Judith Miller case linked above, Hollywood makes movies about it. The principle at work here, writes NPR reporter David Folkenflik, who covered that case, is that, "You have to protect all of your sources if you want any of them to speak to you again."

Briefly, the background. In 2009, the first winner of the prestigious Orwell Prize for political blogging was a unidentified policeman. Blogging under the soubriquet of "NightJack", the blogger declined all interviews (I am not a media cop, he wrote ), sent a friend to deliver his acceptance speech, and had his prize money sent directly to charity. Shortly afterwards, he took The Times to court to prevent it from publishing his real-life identity. Controversially, Justice David Eady ruled for The Times on the basis that NightJack had no expectation of privacy - and freedom of expression was important. Ironic, since the upshot was to stifle NightJack's speech: his real-life alter ego, Richard Horton, was speedily reprimanded by his supervisor and the blog was deleted.

This is the case that has been reinvestigated this week by the Leveson inquiry into media phone hacking in the media. Justice Eady's decision seems to have rested on two prongs: first, that the Times had identified Horton from public sources, and second, that publication was in the public interest because Horton's blog posts disclosed confidential details about his police work. It seems clear from Times editor James Harding's testimony (PDF) that the first of these prongs was bent. The second seems to have been also: David Allen Green, who has followed this case closely, is arguing over at New Statesman (see the comments) that The Times's court testimony is the only source of the allegations that Horton's blog posts gave enough information that the real people in the cases he talked about could be identified. (In fact, I'd expect the cases are much more identifiable *after* his Times identification than before it.)

So Justice Eady's decision was not animated by research into the difficulty of real online anonymity. Instead, he was badly misled by incomplete, false evidence. Small wonder that Horton is suing.

One of the tools journalists use to get sources to disclose information they don't want tracked back to them is the concept of off-the-record background. When you are being briefed "on background", the rule is that you can't use what you're told unless you can find other sources to tell you the same thing on the record for publication. This is entirely logical because once you know what you're looking for you have a better chance of finding it. You now know where to start looking and what questions to ask.

But there should be every difference in an editor's mind between information willingly supplied under a promise not to publish and information obtained illegally. We can argue about whether NightJack's belief that he could remain anonymous was well-founded and whether he, like many people, did a poor job at securing his email account, but few would think he should have been outed as the result of a crime.

Once Foster knew Horton's name he couldn't un-know it - and, as noted, it's a lot easier to find evidence backing up things you already know. What should have happened is that Foster's managers should have barred him from pursuing or talking about the story. The paper should then either have dropped it or, if the editors really thought it sufficiently importance, assigned a different, uncontaminated reporter to start over with no prior knowledge and try to find the name from legal sources. Sounds too much like hard work? Yes. That this did not happen says a lot about the newsroom's culture: a focus on cheap, easy, quick, attention-getting stories acquired by whatever means. "I now see it was wrong" suggests that Harding and his editorial colleagues had lost all perspective.

Horton was, of course, not a source giving confidential information to one or more Times reporters. But it's so easy to imagine the Times - or any other newspaper - deciding to run a column written by "D.C. Plod" to give an intimate insight into how the police work. A newspaper running such a column would boast about it, especially if it won the Orwell Prize. And likely the only reason a rival paper would expose the columnist's real identity was if the columnist was a fraud.

Imagine Watergate if it had been investigated by this newsroom instead of that of the 1972 Washington Post. Instead of the President's malfeasance in seeking re-election, the story would be the identity of Deep Throat. Mark Felt would have gone to jail and Richard Milhous Nixon would have gone down in history as an honest man.


Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.


February 3, 2012

Beyond the soup kitchen

"The whole idea of what a homeless service is, is a soup kitchen," one of the representatives for The Connection at St Martin-in-the-Fields said yesterday. But does it have to be?

It was in the middle of "Teacamp", a monthly series of meetings that sport the same mix of geeks, government, and do-gooders as the annual UK Govcamp we covered a couple of weeks back. Meetings like this seem to be going on all the time all over the place, trying to figure out ways to use technology to help people. Hardly anyone has any budget, yet that seems not to matter: the optimism is contagious. This week's Teacamp also featured Westminster in Touch, an effort to support local residents and charities; the organization runs a biannual IT Support Forum to brainstorm (the next is March 28).

I have to admit: when I first read about Martha Lane Fox's Digital Inclusion initiative my worst rebellious instincts were triggered: why should anyone be bullied online if they didn't want to go there? Maybe at least some of those 9 million people who have never used the Internet in Britain would like to be left in peace to read books and listen to - rather than use - the wireless.

But the "digital divide" predicted even in the earliest days of the Net is real: those 9 million are those in the most vulnerable sectors of society. According to research published on the RaceOnline site, the percentage of people who have never used the Net correlates closely with income. This isn't really much of a surprise, although you would expect to see a slight tick upwards again at the very top economic levels, where not so long ago people were too grand, too successful, and too set in their ways to feel the need to go online. But they have proxies: their assistants can answer their email and do their Web shopping.

When Internet access was tied to computers, the homeless in particular were at an extreme disadvantage. You can't keep a desktop computer if you have nowhere - or only a very tiny, insecure space - to put it or power it, and you can't afford broadband or a landline. A laptop presents only slightly fewer problems. Even assuming you can find free wifi to use somewhere, how do you keep the laptop from being stolen or damaged? Where and how do you keep it charged? And so The Connection, like libraries and other places, runs a day center with a computing area and resources to help, including computer training.

But even that, they said, hasn't been reaching the most excluded, the under-25s that The Connection sees. When you think about it, it's logical, but I had to be reminded to think about it. Having missed out on - or been failed by - school education, this group doesn't see the Net as the opportunity the rest of us imagine it to be for them.

"They have no idea of creating anything to help their involvement."

So rather than being "digital natives", their position might be comparable to people who have grown up without language or perhaps autistic children whose intelligence and ability to learn has been disrupted by their brain wiring and development so much that the gap between them and their normally wired peers keeps increasing. Today's elderly who lack the motivation, the cognitive functioning, or the physical ability to go online will be catered to, even if only by proxy, until they die out. But imagine being 20 today and having no digital life beyond the completely passive experience of watching a few clips on YouTube or glancing at a Facebook page and thinking they have nothing to do with you. You will go through your entire life at a progressively greater disadvantage. Just as we assume that today's 80-year-olds grew up with movies, radio, and postal mail, when *you* are 80 (if the planet hasn't run out of energy and water and been forced to turn off all the computers by then), in devising systems to help you society will assume you grew up with television, email, and ecommerce. Whatever is put in place to help you navigate whatever that complex future will be like, will be completely outside your grasp.

So The Connection is helping them to do some simple things: upload interviews about their lives, annotate YouTube clips, create comic strips - anything to break this passive lack of interest. Beyond that, there's a big opportunity in smart phones, which don't need charging so often and are easier to protect - and can take advantage of free wifi just as a laptop can. The Connection is working on things like an SMS service that goes out twice a day and provides weather reports, maps of food runs, and information about free things to do. Should you be technically skilled and willing, they're looking for geeky types to help them put these ideas together and automate them. There are still issues around getting people phones, of course - and around the street value of a phone - but once you have a phone where you can be contacted by friend, family, and agencies, it's a whole different life. As it is again if you can be convinced that the Net belongs to you, too, not just all those other people.


Wendy M. Grossman's Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series.