Blog: Congress

It may be pure fantasy, but with the unfortunate passing of Democratic Rep. Tom Lantos, a Democrat from mostly San Mateo County (northern Silicon Valley), some folks are suggesting the perfect next Congressman would be Professor Larry Lessig. There's a Draft Lessig Web site and a Facebook group that's up to 1,558 members. Nancy Scola has a good article on TechPresident about why this is not entirely (though almost) farfetched.

The December 30th FoxTrot comic hits on the very idea IPac ran with two years ago: sending iPods to Senators. Back in February 2006, Senator Ted Stevens mentioned the iPod he'd gotten for Christmas in a hearing, and to educate Senators on the many legitimate uses of digital technology, IPac launched the Your Senator Needs an iPod campaign.

It was a stunt as much as anything, but it generated awareness of the digital divide between citizens and elected officials who barely understand the technology they are legislating. The humorous nature of the campaign was the very quality played up by Sunday's FoxTrot, in which Jason sends iPods to members of the U.S. Senate this Christmas for exactly the same reason IPac did.

A small excerpt of the comic (click to read the whole thing with punchline):

The field of computer science, at base, is about efficiency. Algorithms are evaluated based on the time they take to run - "big O notation", using formulas like O(n²) or O(n log n) telling how much time it takes to accomplish a task based on the size of the input. Programmers love to optimize systems, to make them run faster and better and more reliably. And one of the great joys of computer engineering, unlike, say, architecture or bridge building, is that if something doesn't work optimally, it's often not that expensive to simply rewrite it.

It's easy to think government ought to work the same way. After all, government is simply a social construct, governed by a set of rules (laws) just as a computer program governs a machine's behavior. (Larry Lessig famously wrote how "code is law".) If some aspect of government isn't working, why can't we just reprogram it?

Unfortunately, government is not just a socially programmed system executing a set of legal instructions, but it's a complex one with lots of dependencies. In software, you might choose to simply rewrite your code, but you may be running it on an operating system you didn't write, with an application server you didn't write, accessing a database you didn't write. (If they're open source, you can try to submit patches, but they won't always be accepted). Or maybe your client needs you to integrate your code with some legacy system written decades ago on an IBM mainframe in FORTRAN.

When dealing with a system we can't fix, we try sending it data and seeing what it will do. If I call this function, this happens. If I put that data there, that happens. Software engineers start acting like biochemists - if the cell's concentration of ions is such-and-such, then the cell will exhibit so-and-so behavior. You can complain about the cell or curse the people who wrote the FORTRAN code, but you can't reason with these systems and explain to them why they're wrong.

To get results, we must treat government similarly. Think of Congress as a black box that reacts to various stimuli. Send them ten thousand letters from citizens in their districts about an issue, and they'll pay attention. Get a lot of people to give money to their challenger, and they'll think long and hard before voting against your point of view. Make it clear that voters care about an issue, and they'll care, too.

People on Capitol Hill like to think they're impartial stewards of the country, thinking dispassionately about the Right Thing to Do. But usually there's no consensus on what that right thing is. And when people in Congress do the wrong thing, it's easy to get frustrated about their backward thinking. Ed Felten, a terrific advocate for engineers, wrote a clever post rightly excoriating Rep. Howard Berman for saying he'd consulted "all the interested parties" on patent reform legislation when in truth he'd only consulted all of the Beltway lobbying groups, not citizens. Many commenters chimed in that politicians only listen to the groups that give them money and "know which master they are serving."

Back when Berman was appointed chair of the House IP Subcommittee, Larry Lessig wrote a scathing critique of the Democrats, newly in the majority. "'Radical' changes in Washington always have this Charlie Brown/Lucy-like character (remember Lucy holding the football?): it doesn't take long before you realize how little really ever changes in DC. Message to the Net from the newly Democratic House? Go to hell." Lessig saw Berman's appointment as a rejection of the blogs and activist groups on the Net that regained them the majority.

Felten is right that Berman wasn't considering the public interest. Lessig was right that the leadership wasn't considering Net activists' concerns when appointing him in the first place. But simply saying that on a blog is like saying that a cancerous cell shouldn't be dividing so darn much. True, but we don't just talk about it, we develop chemotherapy and radiation and drugs to stop it. Instead of just blogging or whining on comments, we need to be developing antibodies to the special interest groups. The ordinary citizens, who Congress isn't listening to, need to make themselves heard, by writing letters, making phone calls, signing petitions, giving money, and voting.

We know it works. Just look at Net Neutrality, an issue that most people still don't understand. But a coalition of groups from Free Press to MoveOn to the Christian Coalition worked together and didn't just talk, they bombarded Congress with advocacy. And it got results. Several major Presidential candidates and the Congressional leadership came out in support of Net Neutrality. The stimulus was strong enough, and the response meaningful. That fight is far from over, but it shows what citizens can do when they take action.

Next time you read about the latest assault on Internet freedom, don't just blog about it. To Lessig, Felten, Cory Doctorow, and all the other great bloggers, don't just write about how much it sucks, direct people to get involved to fix it. Encourage them to join or give to groups like Save the Internet, Free Press, Public Knowledge, EFF, or the political action commitee I founded, IPac, as well as many more.

For a long time everyone complained bitterly about Microsoft's monopolistic behavior and its operating system dominance. Then some hackers got together, enlisted more hackers, and created an alternative so good that most Web sites don't run on Microsoft software and (coupled with several more innovations) some people say "Microsoft is dead." We can make the IP extremists' and the information gatekeepers' positions dead in Washington, too.

Last week, the U.S. Senate Committee on Commerce, Science, and Transportation held a hearing on the "Broadcast Flag" and "Audio Flag," a set of proposals by the MPAA and RIAA that would stifle innovation by giving content holders a virtual veto over new technologies and existing user rights.

But Senator Stevens, the 82-year old committee chairman from Alaska, surprised the audience by announcing that his daughter had bought him an iPod, and suddenly Stevens had a much greater understanding of the many ways innovative technology can create choice for consumers. Content industry representatives at the hearing found themselves answering much tougher questions than they typically receive.

When I read about this in ths news, I immediately, thought, wouldn't it be great if more Senators owned iPods? Someone should give them to the Senators on the committee! Rather than wait for every Senator's daughter, over the weekend the team at IPac put together a campaign Your Senator Needs an iPod to raise money to buy a video iPod for the campaigns of Senators who work on legislation affecting technology. We're going to pre-load each one with examples of the cultural richness made possible by sharing and collaboration - public domain content, Creative Commons content, and audio messages about the importance of balanced copyright policy. It will be engraved with the words "listen to the people." And it will arrive at each Senator's campaign office with a letter of explanation and a list of all the people who helped pay for it.

The campaign went up Tuesday with a link on Boing Boing, and quickly spread through the blogosphere with links on Fark, Engadget, Ars Technica, Digg, and many other blogs, especially Apple enthusiast blogs everywhere (makes sense).

So far, we've raised enough for 4 iPods and are almost up to a fifth.

(cross-posted on IPac Blog)

Yesterday, the Democratic House leadership released the "Innovation Agenda", a portfolio of policy proposals designed to keep America friendly to innovative businesses.

There is some good stuff in there. But there's also this little rotten apple spoiling the barrel:

"Protect the intellectual property of American innovators worldwide, strengthen the patent system, and end the diversion of patent fees."

I don't have any problem with ending diversion of patent fees, but "protect the intellectual property of American innovators worldwide" is code for creating more and more draconian copyright penalties in trade agreements with other countries, which further stifles innovation around the world and comes back to bite American innovators when the content companies then push for "harmonizing" US law with the very laws that the US itself has pushed for internationally. And if anything, the patent system in many industries is too strong right now,

Fortunately, even some of the Democrats' most vociferous partisan supporters see through this terrible, lobbyist-induced section. Matt Stoller wrote a detailed critique on MyDD, one of the top liberal blogs, which was then echoed by Duncan Black (Atrios) and Matthew Yglesias.

Copyfighters should continue to engage with the partisan political side of the blogosphere. With their help, perhaps party leaders will think twice next time before blindly taking the content industry's word and incorporating their destructive ideas.

A culture and economy of innovation, such as that which grew up in Silicon Valley and elsewhere and created so many great technological products, is widely touted as one of the greatest American assets. But I believe this is much more fragile than many people realize.

We had revolutionary innovation in personal computer software and on the Internet. But these were possible only because both supported anyone building anything to run on them - you could write any software for a computer without requiring permission from Microsoft or Apple, and could deploy any Web site without running it by anyone.

This doesn't exist on other platforms such as cell phones and cable set-top boxes. One can only run software on a cell phone that is approved by a carrier. And it's nearly impossible to write software to extend the capabilities of a cable set-top box - only the cable company can deploy features there. And not surprisingly, we have very little innovation. My cell phone can't display my voice mail messages in an on-screen UI, and I can't get software which remembers what shows I watched and lets me email them to my friends. The list of things one can't do goes on and on, whereas on the Internet, as soon as someone thinks up some new application, there it is.

Walt Mossberg calls wireless carriers "the new Soviet ministries." They are acting in their own best interest, but not the best interest of the consumer. Media companies love controlled "walled gardens," because it's orderly, with everything a consumer sees being determined by a set of business deals. If it makes enough money, it happens, and if it doesn't, then it's not worth the gatekeepers' while. But the small developer gets shut out of this process, and thousands of clever applications which wouldn't make a lot of money but would make people's lives better never get built.

This becomes an especially big problem when media companies lobby Congress for new laws, laws which further entrench monopolies and help the larger players while making life harder for the true innovators, or worse yet, imposing enormous legal risks. When the Induce Act was being debated, I spoke to a legislative staffer for a prominent Senator who said they were staying away from that bill because the media industry and electronics industry didn't agree. That was great in that case since it killed a terrible bill, but what happens when Congress considers a measure which big media companies and big electronics companies all support, but hurts innovation? Who stands up for innovation? Should venture capitalists band together to create a pro-entrepreneurship lobbby? What about the open source developers who don't raise venture capital - who will stand up for them?

In 2004, hundreds of thousands of volunteers - mostly young people participating actively in a campaign for the first time - knocked on doors and made phone calls to register voters in swing states and get them to the polls. And for most of those volunteers, the outcome of the election was completely opposite what they had hoped.

I'm sure many of these volunteers were quite discouraged. But the grassroots groups that organized them aren't closing up and going home. They're fighting legislative battles like Social Security (and winning, so far, on that one) and girding for the next elections, nationally in 2006 and in many localities (including New York City) in 2005.

The proponents of what is often referred to as "Free Culture" are similarly discouraged by decades of bad laws coming out of Congress. The Digital Millennium Copyright Act passed virtually unanimously, as did the Sonny Bono Copyright Term Extension Act. It's easy for people to throw up their hands and say that we'll never be able to get reasonable legislation passed, that Congress is hopelessly in the pocket of the movie and recording industries. After all, the entertainment industry spends millions of dollars lobbying Congress, and we'll never be able to out-bribe them, right?

Back in the 80s and early 90s, a lot of geeks propounded a philosophy that the Internet was fundamentally unregulatable, beyond the reach of mere national governments. John Gilmore famously wrote that "the Internet interprets censorship as damage and routes around it." But governments have shown a remarkable resistance to being rendered obsolete. Far from being unable to control the Internet, governments have even been able to reach across international boundaries in enforcing their laws. Multinational companies now have to cope with a patchwork of regulations around the world with which they must comply if they want to do business in each jurisdiction. And content owning companies have been able to get laws passed to give themselves more and more control over the ways citizens enjoy legally purchased entertainment content.

Like the famous five stages of coping with grief, one can identify a few distinct stages of coping with government. Most geeks have moved out of the Denial stage. For many, just as with grief, Anger is next - anger at the RIAA and MPAA for suing their customers, or at the Copyright Office for imposing the Broadcast Flag. And it's very natural to lapse into Depression, to believe that no matter what we do nothing will ever change.

But our movement is growing. Already in the last few years, many more people are aware of the problems out-of-control copyright poses to our society. College students have joined documentary filmmakers and software engineers as copyright's overreach has impacted them. These issues have already started to seep into the public consciousness, and over time, as more ridiculous lawsuits impact average citizens, the movement will only grow.

At the same time, we are learning how to deal with that strange beast called Congress. The DMCA and CTEA passed virtually unanimously because there was no organized opposition. But last session, the INDUCE act threatened to stifle technological innovation, and people spoke up. Groups like Downhill Battle created catchy campaigns and organized call-in days. And Senator Clinton, who cosponsored the act early on, received questions about it at virtually every college campus she visited. And so, whereas the DMCA passed despite some obvious glaring problems, the Senate quietly let INDUCE pass away into memory. A package of very dangerous copyright changes, the "IP Omnibus", was first shrunk down into a much more benign (though still suboptimal) "IP Minibus", and then died altogether as a result of a completely unrelated issue.

Now the content industry still has plenty of friends in Congress. Orrin Hatch, their number one friend, was appointed chair of an IP subcommittee. And measures similar to INDUCE or those in the IP Minibus are sure to be reintroduced. But we won one round, and we can win again. More legislators and their staffs realize that citizens care about these issues, and that there are two legitimate sides rather than the Good Old American Capitalism versus Evil Stealing Commie Pirates And Kiddie Porn Makers, which is the way the content industry portrays the issue.

Winning these battles doesn't require outspending the content industry. The American system does have checks and balances which make it difficult to get legislation passed. A few key allies can do a lot, at least to stop bad bills. Congresspeople definitely don't want to damage the economy, and so playing up the potential damage to Internet companies and electronics manufacturers is a potent argument. College students are the voters of the future, and when an elected official hears young people - who historically are very unengaged in the political process - express concern about an issue, they take note. Letter writing campaigns get noticed. Funny Web satire videos get noticed. And when individual citizens or small groups make a trip to meet with their Congressperson, they get listened to. More important than outbidding record companies in campaign contributions, money matters because organizations need paid staff in Washington educating legislators, need staff to organize the grass roots, and need to make some campaign contributions, even if they are relatively small, because even small contributions get noticed.

Ultimately, legislators in Congress really do want to do the Right Thing. It just happens that this isn't clear. As long as only one side is talking to them, it seems straightforward. If we decide that fighting these battles each year is too onerous or too impossible, then we'll certainly never win them. There's a famous maxim in poker that you can't win a pot if you don't play a hand. Politics is like this. You can't ignore the legislative process and expect that the right thing will magically happen. And if you haven't been talking to Congress, you shouldn't be surprised when the people who have been talking get what they asked for. The Founding Fathers never envisioned Congress as some kind of enlightened body that dispenses divine wisdom from atop its hill. Congress was always supposed to be a forum in which different points of view duke it out with bare knuckles, where the side that has the most energized and organized people, the best facts, and yes, some financial muscle comes out on top.

All political movements start out small. The conservative movement which is so dominant today started in an era when almost all Americans believed in the ideals of the New Deal, in the concept of the welfare state that uses social programs to help the least fortunate citizens. They talked about what they believed, they wrote articles, and they organized. They converted more and more people to the cause and formed organizations to wield the power that comes with their numbers. And they had money, which helped, but it helped first to start magazines and to pay staff to organize and recruit even more believers.

The conservative movement lost a lot of battles. They were wiped out in a landslide in the 1964 election. But they persevered, and even though it took another sixteen years to elect a President they liked, they did not give up. The religious right has been organizing in churches to get voters to the polls for decades; the Moral Majority was founded in 1979 and despite supporting Republican candidates almost exclusively and having a Republican president for the next twelve years, many would say that only with the election of George W. Bush in 2000 did the religious right get a truly sympathetic President. Yet that movement has still not realized most of its policy objectives. Still, they do not give up, do not take their ball and stomp home allowing civil libertarians to legislate government control out of the bedroom. They realize that no matter how many battles they win or lose, fighting every battle is always better for them than not fighting it.

It's true that the conservative movement has benefited from a few extremely wealthy benefactors. But Free Culture has a few rich adherents too, and a lot of well-off professional believers in areas like the software industry. Even movements far from flush with cash have been able to make significant gains. The environmental movement, nonexistent until the publication of Silent Spring in 1962, has been able to make many rivers once again safe to swim in, and consumer groups have successfully won requirements on seatbelts and airbags, child toy safety, food labeling, and many other important issues. Today the Bush Administration is trying to reverse many of these gains, but that doesn't mean environmentalists or consumer advocates should think it wasn't worth achieving them in the first place, and continue to fight to reinstate and expand what Bush reverses.

We in the Free Culture movement must realize the same. No matter what happens in the Grokster case recently heard by the Supreme Court, Congress will be asked to take up the issue of filesharing. The FCC's Broadcast Flag rule will take effect unless we can convince Congress to stop it. And long term, copyright term extension is sure to be an issue once again around 2018. We have to focus on building up a movement that can effectively fight these battles both short and long term. We need to develop potent arguments for our beliefs and advocate for them before Congress in every possible venue - from asking questions at speeches on campuses to participating in call-in days and visits to legislator's offices to writing books and creating documentaries.

Along the way, we will surely lose, just as the army of progressive volunteers lost to the Bush campaign in Ohio and Florida in 2004. And when that happens, many people will say that this is hopeless, that we can never beat the content industry with its armies of lobbyists and suitcases full of cash. But we can win, and we will - as long as we play the hand.