Blog: IP

In Canada's elections last night, voters threw the ruling Liberal party out of power, at least partly because of corruption on the part of the Liberal majority. In western Toronto, one Liberal MP made unusual news recently becuase of a unique form of corruption of her own: taking large campaign contributions from private industry and introducing legislation overwhelmingly favorable to that industry. Sarmite "Sam" Bulte, author of a report recommending drastic revisions to Canada's Copyright Act which would strengthen existing content industry monopolies, threw a huge $250/plate fundraiser full of content industry representatives. Sadly, In the "States" this is so commonplace as to not warrant surprise, but Canadians still cling to a tradition of independent-thinking elected officials, and Bulte received a healthy dose of bad press spurred on by online rights advocates like Cory Doctorow and my newly Canadian friend Ren Bucholz.

How much due to the general anti-Liberal wind and how much due to the specific campaign over copyright overreach we will never know, but last night Bulte was soundly defeated by NDP candidate Peggy Nash. As Ren wrote,

I think it's impossible to overstate how much Bulte shot herself in the foot. At any point, she could have met the criticisms of her fundraising and ties to the entertainment industry with response that didn't alienate people. . . . But instead, she grouped critics in her riding as "zealots" and ran through a series of platitudes about artists. Even for people who don't think about copyright very much - meaning the vast majority of people in her riding - those responses sounded shrill and empty. This amplified the relatively specialized issue of copyright into a generalized issue of, "Do we want someone who sounds like that to represent us? Again?!" We hear a lot about the "optics" of politics, and Bulte's were way out of focus.

Unfortunately, not all industry shills will be so dumb. Far-right Supreme Court nominee Robert Bork was rejected in his Supreme Court nomination in large part because he was outspoken about his extreme views and abrasive in his manner. As a result, extreme conservatives nominated today practice a strategy of complete inscrutability, refusing to divulge any information that could expose their true beliefs to the public. The next unabashedly pro-recording industry MP in Canada will certainly try to at least act as if he is listening to the public interest, couching his beliefs in euphemisms like "innovation" and "protecting artists," leaving all but the most knowledgeable constituents none the wiser.

(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.

Last week I spent a few days in Washington, DC, meeting with Congressman Rick Boucher (D-VA) for IPac, Gigi Sohn of Public Knowledge, and Tom Manatos in Nancy Pelosi's office for Drinking Liberally. I also got to see RFD, site of the DC Drinking Liberally, even though I wasn't able to stay for Drinking Liberally itself - unable because that Thursday night, Simon Rosenberg spoke at The Tank about his candidacy for DNC chair, followed by a panel about the race the next day. All in all, between visiting the capital and the Capitol, and the gaggle of Democrats gathered in New York for the DNC meeting, it was a politician-filled week.

P.S. I've added a few new themes, like this and this, plus these strange signs as a tribute to Mike's Satan's Laundromat.

It's 1:20, and so far I've seen two April Fools jokes. Both were about lawsuits being filed relating to intellectual property: Improv Everywhere being sued for defamation by the estate of Anton Chekov (defamation isn't actually IP, but it sounds like an IP complaint would be more appropriate if this were real), and the RIAA suing Google for contributory copyright infringement.

Once upon a time, IP lawsuits weren't a part of everyday pop culture.