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March 24, 2017

Trading places

1200px-SOPA_protest_San_Francisco_City_Hall_January_2012.jpgIt's tough when your child looks up at you and hisses words like "defensive, old-fashioned attitudes".

There was such a moment at this week's Transatlantic Consumer Dialogue annual forum, when the whole group of civil society representatives, who until that moment had been disagreeing about how to reinvent trade agreements to work for consumers instead of against them, united in offended solidarity. The target was Stuart Eizenstat, who claims co-foundership of TACD.

The story, as he told it, was that during the Clinton administration he and US Secretary of Commerce Ron Brown created the Transatlantic Business Dialogue to encourage international collaboration between business and governments. TABD's success meant they followed up with two more flavors: labor and consumer. "You have flourished," he said, before going on to scold TACD for not flourishing in quite the way he wanted.

Stuart_eizenstat_8269.JPG"There's no trade agreement you like, there is always a deficiency, there is always too much secrecy," he complained before explaining why all of these ideas were just plain wrong. The now-defunct Transatlantic Trade and Investment Partnership (TTIP) would have been a "great boon" for consumers on both sides of the Atlantic; nothing required the EU to abandon the precautionary principle; duplicative testing could have been eliminated bringing lower costs for cars and pharmaceuticals; even investor-state dispute settlement (ISDS) would have improved upon the status quo.

"If you kill TTIP and you fight every effort at mutual recognition, you will wind up with global standards set by the Chinese. Killing TPP [Trans-Pacific Partnership] has given China a free gift. It was our leverage in Asia to compete with China. Now even Japan is falling into China's orbit with no environment, labor, or safety standards. Is that what we want?"

To a newcomer, this dispute - to roomwide support, Eizenstat's comments were rapidly taken apart by first Public Citizen president Robert Weissman and then by Monique Goyens, director general of the European consumer organization BEUC - is hard to unpick. What are the probabilities: could this guy, whom the whole room opposes, be nonetheless right? And then he suggested sacrificing ISDS to allow negotiators to focus on: "strong IP protection and data flows", which he said were "crucial to the transatlantic digital economy". Firmer footing, at last.

There were good reasons to oppose the copyright protectionism embedded in TTIP and TTP, not least that as elements of previous efforts such as Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) they were sufficiently noxious to attract street protests across Europe. (Street protests about copyright!) Data flows, of course, means bypassing those pesky European data protection laws, the target of what may have been the biggest lobbying effort in European legislative history.

The precautionary principle I also knew about: it's the idea embedded in EU legislation that new foods, drugs, and chemicals must prove they are safe before they are allowed to enter the market. In the US, while that applies to medical devices, it does not apply to foods. So genetically modified foods have had easy entrée into the US, but the EU let in silicone breast implants, which the FDA rejected six times (noted Lori Wallach, director of Public Citizen's Global Trade Watch). Mutual recognition of testing is certainly more efficient, but it does control bias: comparing the results of EU and US tests is how Volkswagen got caught.

"Consumers like trade, not trade agreements," Monique-Goyens-Lisbon.jpgsaid Goyens. Of course, things are more complicated than that: the same consumer who relishes paying less for goods from Wal-Mart is also the formerly employed worker whose employer moved manufacturing oversees. The multiple life roles everyone plays are not reflected in how we talk about these things.

Eizenstat versus his child is the same dispute that is dividing electorates in so many countries. On US Election Day), I this same attitude was on display at Berlin's Aspen Institute at the event The Liberal Order - Under Siege? (PDF). In DC, Eizenstat accused the group of being "aligned with Trump"; in Berlin the arrogant presumption by some speakers that anyone who was against TTIP must be a Leave voter or Trump supporter was similarly voiced. Yet the two are not connected: many who would support neither still oppose these agreements because they are increasingly being used to implement provisions that bypass democratic accountability. The response when I said this: it's a legitimate issue, but we shouldn't throw out the benefits of economic integration.

The paper TACD has just launched proposes a list of pro-consumer conditions such agreements should meet. Dump ISDS. Bar intellectual property and other types of rent-seeking from being part of the negotiations. Set a minimum floor for consumer protection. Increase transparency during negotiations. Do not try to reach agreement on data flows when the US and EU are at such odds with each other. Do not undermine efforts to regulate the financial sector. Don't use trade agreements to privatize public services. And so on.

This is all good stuff, as is the paper's overarching point: with TPP dead and TTIP and the Trade in Services Agreement (TISA) "in the freezer", this is an opportunity to rethink how these deals are done. If the public is mistrusting these things so much, maybe the public isn't the problem.

Illustrations: SOPA protests, San Francisco 2012 (Wikimedia; Stuart Eizenstat (Slowking); Monique Goyens (Flickr - Lisbon Council;

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

March 17, 2017

Dangling metaphors

1200px-Gutenberg_Bible,_Lenox_Copy,_New_York_Public_Library,_2009._Pic_01.jpgThis week, the veteran screenwriter Ken Levine started a thread on outdated terms in common use that no longer make sense, like "dial" and "tape". "Carbon copy" persists as the "cc:" line email headers; copy" and "paste" are ubiquitous. These are dangling metaphors, like a dangling clause in a sentence: they have lost their roots in reality. It's easy to see how this comes about. In order to explain a new technology to people who haven't encountered it before, its inventors plunder the language of the older technology it's replacing.

Unfortunately for artists, creators, rights holders, and the legal system, the internet has long been making copyright law into a dangling metaphor. In 1992-1993, John Perry Barlow warned about this when he called it selling wine without bottles. I was reminded of it this week at the London Book Fair, where this year's Charles Clarke lecture was a debate about fair use between Pierre Leval, who ruled in Google's favour in the Google Books case, and frequent sparring partner Jon Baumgarten, former General Counsel at the US Copyright Office, who publicly disagrees.

leval-cspan.jpgLeval's decision in the case saw Google Books as a transformative work that does not compete with the authors' or publishers' market and is not a substitute for buying the book, but offers "gigantic" benefits to the public and to authors by helping to find books. "Fair use is not your enemy," Leval said to this audience of, predominantly, publishers.

Jon Baumgarten.jpgBaumgarten, by contrast, deplored the "take first and negotiate later if we're caught" approach, which he called a "well-known tactic of mass infringers". Fair use analysis should not minimize the core fact of unauthorized reproduction, he argued, adding that the decision is already being "misapplied" by others and that the conclusion that Google Books does no harm paid insufficient attention to the potential for the rights holders themselves to create a market. (Chorus of Netheads: "But they didn't!"

Not being a lawyer, the case that always seemed to me most similar to Google Books was UMG Recordings, Ltd v. MP3.com, Inc. In this 2000 case, MP3.com created a comprehensive database of ripped CDs; users were allowed to access only the titles they could show they owned by placing the disc in the computer drive. MP3.com lost this case so comprehensively that it vanished into a merger with Vivendi.

Wikipedia dates the earliest work on Google Books to 2002, only two years later; the suits by the Authors Guild and the Association of American Publishers were filed in 2005. ; the final disposition was in 2013. There were three significant differences: MP3.com users who passed the ownership test could play the whole disc where Google searchers got just snippets; fair use does not apply to music; and Google was, as Jonathan Band snarked in his account of a similar discussion, "too big to infringe".

Baumgartner called the Google Books judgment "an expansion of fair use". Leval responded by stressing that Google keeps the copies closely guarded.

Yet this aspect of the judgment bothers me. Collaborative efforts have created public alternatives to other Google efforts - OpenStreetMap being the most obvious. With books, only the much earlierGutenberg Project and the Internet Archive have matched Google Books, and then only with books that have entered the public domain. Google does not directly profit (through ads) from Google Books; doing so would likely have produced a different court result. But it retains the data generated by searchers, which presumably has value for delivering its other services to those users and also in market intelligence. I lose nothing by having my books listed. But the notion that Google's close control over the database made its behavior acceptable seems perverse to me; one could equally argue that Google owes it to rights holders, authors, and the public to share ownership of the database. Should fair use expand to embrace something like "fair ownership"? Yes, Google expended resources to scan 20 million books and send cars out to record the landscape, but it also used publicly-funded resources such as library book collections and public roads.

This was a suggestion Leval had clearly heard before. "It would undermine all of copyright," he said when I put it to him. My question, really, though, was whether at some time in the future the law concerning fair use might expand in this direction, something he couldn't really answer. "I take the cases as they come."

Reviews of copyright law - such as present EU efforts - typically ask how to adapt existing copyright rules to modern technology. That has led us to anti-circumvention laws, the clauses in the UK's Digital Economy bill that would criminalize file-sharing, and so on, in accordance with Leval's explicitly-stated view that a copyright case is "a property dispute". This is less clear when you're copying a file instead of stealing a physical book. "Intellectual property" itself as a term is a metaphor.

Law makers do not typically step back and ask, "Does today's copyright law meet its intended goals of promoting the progress of the useful arts" and if not, how do we optimize it does it does?" Instead, they ask, "How do we update it to cover these new gaps?" Last year, the MEP Julia Reda recommended that sort of rethink. It's badly needed.

Illustrations: Gutenberg Bible, Pierre Leval, Jim Baumgarten,

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.


March 10, 2017

Fans with typewriters

Thumbnail image for crassh-tech-journalist-2017-03-09.JPGYesterday in Cambridge, the veteran journalist Charles Arthur held an event at the Centre for Research in the Arts, Social Sciences, and Humanities (CRASSH) that asked this:

Has the public been well served by technology journalism?

Arthur assembled a smart panel of long-serving folks: Andrew Brown, Carole Cadwalladr; and Ingrid Lunden. The notable thing they all had in common: none are specifically "technology journalists". Arthur first covered tennis, computing, and science. Brown made his name writing about Sweden and religious affairs. Cadwalladr is a generalist features writer for The Observer (part of the Guardian. Lunden came to TechCrunch from telecoms and art. I did The Skeptic, and began writing for computer magazines via a personal contact.

The technology journalism community I joined was largely male, mostly young, and vastly excited by the boxes (hardware and software) arriving on their desks for review. None were stupid; but I felt they were entranced by the tools in a way I was not. I suspected that if they weren't writing about computers they'd be building or selling them, whereas if I'd be writing about something else. I took on jobs others didn't like: long interviews, book reviews. I had known about and even briefly sampled the internet and computer bulletin boards for years, so I knew enough to pick it as the future of communications and a good area to specialize in. The existing specialists were writing about modems and telecommunications. Instead, I wrote about usability, government overreaction to hacking, and, as early as 1993, encryption policy, and attended early data protection conferences and Computers, Freedom, and Privacy. Arthur and Brown were among my commissioning editors.

Thumbnail image for underwood-typewriter.jpgGadget-driven technology journalism is much like sports journalism: people who love "the game" writing enthusiastically about it. In his 1991 book, What's Wrong with Sports, the classic American commentator Howard Cosell complained that covering the huge business of sports requires knowledge of labor law, economics, finance, and medicine. Both the technology and sports industries have seen huge influxes of money in the last 25 years, both derive considerable revenues from public purses, and both need far more scrutiny than they get from "fans with typewriters".

It was always predictable that, as these technologies spread through society, technology journalism would move from its ghetto to the front pages. Martin Banks summed this up neatly on

At CRASSH, Hal Hodson asked if a more adversarial approach at the beginning would have changed the future. If, he suggested, at the beginning of the automotive industry journalists had predicted the need for big roads, pollution, and various other downsides, we might have made different decisions. My guess is probably not: espousing contrarian views in a new and fast-growing industry is like playing tennis: an adversary (a company with money) is trying to frustrate your every move.

Even in 1991, some people did sound alarms about the dangers, most notably Simon Davies, started Privacy International fresh off successfully fighting the proposed Australian ID card and whose 1996 bookaccurately mapped out the direction of progress. In Australia in 2004, the same year that Facebook was founded, Roger Clarke looked at early social media experiments and wrote Very Black Little Black Books, predicting that such companies would inevitably abuse data because they had no other business model.

But even the prescient people did not, in 1999, take their first look at Google's friendly, empty, fast-loading home page and say, "There lurks evil." In 2006, I pegged privacy concern about Google to approximately 2004, when it both launched Gmail and went public. In 2009, the company was still widely loved; by 2010 I was hating its interface changes and bailed. By 2013, even before Snowden, on its 15th birthday - disturbance about its data practices was becoming mainstream. By then Davies was suggesting that Google was a threat to sovereign states.

That sort of forward thinking elicits two reactions: 1) you're paranoid; 2) but this stuff is so wonderful. I fully believe that internet pioneers like Vint Cerf (co-creator of the internet protocols) and Tim Berners-Lee (inventor of the web) believed that their democratic values were being unassailably embedded in the technologies they were creating. Michael Froomkin is fond of saying that the presence of just one lawyer in the room when the domain name system was created would have changed its design and avoided the years of wrangling we've had since. Stories about new and wonderful technology with early success stories are easy sells; scaremongering stories are easy sells. Thoughtful, nuanced stories that end with uncertainty are not. Technology journalists can only perform the service the public and the publication's business model allow.

Anders Sandberg says that artificial intelligence is only called that until it starts to work; thereafter we call it "automation". Something of the same is going on here: a gadget review is "technology journalism"; Cadwalladr's deconstruction of Google's search results is just "good journalism".

Yesterday, Cadwalladr laid down this challenge to all of us: "The correlation between technology, capital, influence, and power hasn't been brought together effectively." This is our mission, should we choose to accept it.

Illustrations:: CRASSH event; Underwood Typewriter (Kolossos/CC-by-SA-2.5).

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.

March 3, 2017

Unforced errors

nsfnet-1986.gif"I thought the phone company would do it all," John Connolly told me in 1993. Connolly is a largely forgotten grandfather of the internet: while at the National Science Foundation he wrote the checks that financed the creation of five supercomputing centers; the backbone connecting them formed the beginning of the internet as we know it. In that interview, published in the now-defunct Personal Computer World and a later compilation book, Connolly said the NSF's investment was the American response to Japan's Fifth Generation program to develop an all-purpose AI machine. He then described a whirlwind of having to spend $50 million in six months...but I digress.

The Republican Congress and the White House, plus the appointment of Ajit Pai to head the US Federal Communications Commission has led to myriad stories fretting about the future of network neutrality, which he has publicly called a mistake. At CNet, Marguerite Reardon recounts Pai's first month: the agency has voted to suspend transparency requirements for broadband providers with fewer than 250,000 customers (up from 100,000) and closed an investigation into AT&T's and Verizon's zero-rating arrangements. CNBC says he's disinclined to review AT&T's in-progress purchase of Time-Warner. Pai has also apparently dropped his predecessor's plan to require US cable companies to open up to third-party devices and software.

In other news, Verizon, which bought AOL in 2015, is now following up with Yahoo, albeit at a bargain they-had-security-issues price. And Google has announced a live YouTube TV streaming service that will charge consumers $35 a month for what sounds essentially like what Americans would call basic cable: Disney, Comcast, ESPN, USA, FX, plus the broadcast networks CBS, ABC, NBC, and Fox. The target audience is cord cutters who are ditching cable because of the cost and turning to streaming and alternatives, including (gasp!) antennas. There's a second benefit to Google if this service takes off: it will finally give the company the second income stream it has so far failed to create and which it will sorely need.

tim-wu.jpgMainstream battles over network neutrality began in the US in 2005 and the UK in 2008, when AT&T and Virgin, respectively, began talking about "slow lanes" for video providers who didn't pay up. The term, however, was coined by Columbia law professor Tim Wu in a 2003 paper (pdf). Wi argued then and since that there was an inherent conflict between the private interests of broadband providers and the public's interest in an open, competitive environment.

Perhaps the most significant change since the early years of this discussion is that the private interests of the companies that used to promote network neutrality have changed somewhat. In 2004, Google had just gone public, Facebook was just emerging from Harvard, and Amazon, which went public in 1997, had only been profitable (the first time) for three years. None were streaming video. YouTube was founded in 2005, and acquired by Google in 2006. While these companies want network neutrality in the sense of not wanting to pay extra charges for fast lanes to carry their video streams to their audience, they may be less eager about it as an enabler for new competitors.

johnconnolly.pngThe opening quote continued like this: "But the phone companies, much to my shock, weren't interested in the network - they didn't see a lot of money in it. So now it's kind of ironic that you see the phone companies fighting over the business. They say, 'How did this Internet grow up and we weren't controlling it?' Well, you blew it. I remember long meetings with people like IT&T, Sprint, MCI, and all of those companies that we have, saying 'Wouldn't you like to do this? This is where the future is,' and they didn't see any money in it." Of those companies, only Sprint, the US's fourth-largest wireless carrier, is still a name in telecommunications. This was an expensive lack of foresight.

So, to sum up: in the US now the FCC, legacy telephone companies, and modern internet companies all have reasons to want to shape the internet in their interests instead of ours. The US's converging mass media and telecommunications landscape is beginning to look disturbingly like the kind of commercial carve-up that communications scholar Robert McChesney has been warning about for years. The number of large companies that own both content and the means of distributing that content is growing and includes some old, some new. Verizon, AT&T, and the Murdoch empire represent old companies branching out; Google, Amazon, Facebook, and Apple ("GAFA") represent newcomers branching...in. We don't normally think of Amazon as an infrastructure company, but this week's outage showed how widely essential Amazon Web Services has become. These are all anti-trust situations waiting to happen. In the UK, BT's sports channel and Sky's and Virgin's broadband-and-content mixes pose similar problems.

Discussions of network neutrality tend to focus on innovation and economics, but we also want it for freedom of expression, of assembly, and of access to information. It looks like we will have to fight hard to keep it if we don't want the years of the open internet to have been a short, narrow, wasted historical opportunity.

Illustrations: NSFnet in 1986, Tim Wu, John Connolly.

Wendy M. Grossman is the 2013 winner of the Enigma Award. Her Web site has an extensive archive of her books, articles, and music, and an archive of earlier columns in this series. Stories about the border wars between cyberspace and real life are posted occasionally during the week at the net.wars Pinboard - or follow on Twitter.