I got a strange piece of hate mail from somebody named Karl Heideck who implies he is an IP lawyer. He may be this person, although there are a number of people on the Internet with the same name (I wonder if this is the same Pennsylvania law firm related to various Second Life lawsuits on property issues -- anybody?)
The text is as follows:
You seem to be......a very intelligent, passionate person, with strong opinions.
Naturally, I reject all of these hateful claims. I don't have "way too much time on my hands," I just type fast and like to think aloud and write blogs. I get to do that in a free society, thank God.
My interjections aren't "shrill" but pointed, in answer to what are really hysterical and shrill agitprop campaigns that in fact are appalling emotional -- and not technical -- in their arguments.
I'm attacking huge Silicon Valley platforms with millions to spend on their lobbying with a simple moral premise -- that their business model is deliberately criminal.
My notions about law and technology aren't incorrect -- if I state that there are defitions, remedies, and defenses in SOPA that hysterical geeks can't or won't understand as a context, I'm right, because they are there, and I point to the text -- unlike most geek screeds against SOPA, and -- I might add pointedly -- unlike ANY "First Amendment lawyer" pieces that don't point to any text in the law, but merely repeat geeky edge-casing.
If I point to dubious arguments against DNS schemes and "breaking the Internet" -- it's because they aren't grounded, aren't persuasive and not really based in technology so much as invoking technological complication in obfuscation to scare away critics.
As for the bit about a "flawed understanding of American history and politics" -- that's silly. People have diverse understandings of their own country's history and politics. Why would a disagreement be a "flawed understanding"? IP lawyers in particular tend to focus on arcane aspect of copyright law that helps them make their cases, sometimes dubious, for their clients. So what? I tend to focus more on the nexus of digital content as a commodity and the community needed to sustain the creator, and the commerce that links them (as Larry Rosenthal/cube3 has always explained).
The "leave the driving to us" bullshit in this hate mail is just what technologists say, in reverse, as if ordinary people can't comment on a regime that affects them profoundly. My neighbourhood is devastated by the removal of once-thriving businesses involving newspapers, video and music stores, book stores, and the little coffee shops that people used to have to read those newspapers and books. Hundreds of jobs went missing from my neighbourhood. It's a gulch. My neighbourhood's losses aren't made up for by a Starbucks chain with 30 zombies fipping i-pad pages on tablets. It's a devastation not made up for by Fred Wilson of Union Square Ventures, also in my neighbourhood, funding Four Square or other things in our town that don't replace the jobs of those other content industries and don't create livelihoods except for a few engineers and VCs.
It's very interesting how it is written, because he is bitching about me "speaking about things I don't really understand" although he can't really cite any arguments to prove that. I can and will point out when geeks are double-talking and obfuscating deliberately on things like "Breaking the Internet" with the DNS regime -- and I don't need to understand the intricacies to call them on their scare-mongering, or to ask very pointed questions with reason by analogy. Geeks block malware sites all the time. Why can't pirate sites be blocked? Geeks tell us encryption can never work for digital content. How come it can suddenly work for the new https regimes? I get it that streaming media may be different technically than the process by which server handshakes and such are made. Even so, principles are similar and involve the same set of hacking issues of spoofing and trusted signatures and such. So, how about it?
I've been wondering why it is that "Hollywood" and all those evil "IP holders" and big entities like the RIAA in fact aren't lobbying harder for SOPA. They are supposedly spending $100 million on lobbying, but it must be going all to quiet lobster dinners in Washington, DC or talks behind doors, because I don't see them using any of the methods of their opposition in waging this battle. There are no op-ed pieces anywhere in mainstream media supporting SOPA, although there could be, easily, as companies like The New York Times or the Wall Street Journal are themselves paid content and trying to keep alive the idea of protection of intellectual property.
Given that this is "Hollywood," it could easily hire actors and make viral videos like the nerds have, cunningly slipping them into the meme-stream to terrify teenagers that their Tumblr blog with a Lady Gaga clip is going to cause all of Tumblr to be taken down and make their parents pay $1 million fines. So why aren't they?!
Instead, you don't really hear from them in any kind of visually stunning way -- although they have that capacity. Perhaps they think this isn't the time yet; perhaps they don't realize it's important to fight the fight on the same battlefield, Youtube, with the same methods, Youtubes. And do the same kind of screaming as the geeks are doing. All they'd have to do is tell one real story about the band that was really good, really popular, and couldn't make ends meet by CD sales at rock concerts or giving away tunes on a website or MySpace or Facebook. Show them really eating their last box of pizza on the tour bus with the measly proceeds before they disband. Show thousands of kids walking around with their (by most of the world's standards) expensive i-pods listening to their free song, while the band dejectively goes home for Christmas without money to buy presents.
In Second Life, when the merchant class faced rampant "copybotting" by exploits that the company refused to fight (there was a ban of extremist geeks there who kept saying you "couldn't" stop copying technically there it was foolish to try), they used all kinds of techniques. They staged a mass store shut-down so that the company who made Second Life -- Linden Lab -- got the idea that if they wanted hundreds of customers who paid them lots of money for servers and gave them a percentage of their profits in fees for sales, advertising and currency exchange they sure as hell better do something about copying -- pronto. The merchants made effective lobbying groups and made poster ads showing naked avatars without clothes, explaining two things at once: that avatars wouldn't have clothes if conditions for merchants were so terrible that their designs were ripped off -- they wouldn't be willing to make them; and that by stealing merchants' designers, you were stealing the literal clothes of their literal backs in real life -- you were harming their livelihood.
Linden Lab, which contains the same kind of laissez-fair copyleftists as EFF (*exactly* the same people), was forced to create a content protection road map. To create a third-party viewer policy and registration policy to stop rampant rogue viewers. To develop a machinima policy. And so on -- numerous policy changes and changes to the TOS were eventually drafted that make it far more sophisticated in dealing with today's challenges than Facebook or Google+ (and Facebook, too, after a huge popular uprising, was forced to take out the geek-tropic TOS language giving the platform provider "perpetual, paid up, royalty-free" rights to everything, and articulate that you own your own IP and FB can't steal it to make a buck.
On Twitter, Martin Mueller responded to my comments on his essays about surveillance technology by saying that he opposed SOPA because he thought it wasn't the rule of organic law, as I maintain, but "rule by IP lawyer accusations."
I understand his fears, but to that reasoning, I can only answer with the following counter-arguments:
o all law starts with an accusation invoking authorities to fulfill its norm -- you don't say laws against armed robbery constitute "rule by irate merchants" because you don't go by somebody's possibly biased or false accusations, you use due process and the rule of law itself in the judiciary system to establish the facts and prosecute the case. The same applies to prosecuting IP infringement. It truly won't require a law degree to tell that the top 20 existing and established pirate sites are pirating content, and with most sites that have slews of obvious infringing content, you won't have to worry about prosecution somehow being wrongful; indeed, that's how ICE could seemingly "outrageously" hold sites up for a year (sure, they should have been processed much, much faster especially since they likely really did have a good case).
o And if it is wrongful, you have remedies. The geek edge-casing in analysis of organic law doesn't admit that when law-enforcers have to make their case in a situation governed by the rule of law and independent courts -- not China or Russia or Iran -- they have to make their case. Knowing that they have to make their case they gather the evidence to make it. They know that a teenage Tumblr blog is not how you make your case.
o Technologists are so used to "making their case" with edge-casing and nit-picking bug producing on the yes/no binary model that they don't realize that in the real organic world, you have to make the case based on other more complex criteria that doesn't reduce to binary categories. And that you will face a judge and jury, also making judgements not as machines in binary categories, but as human intelligence weighing many factors simultaneously.
But ultimately, I think there's a class of people who may not be rewarded by SOPA, if all goes well, and that is IP lawyers. And not for the reasons that Martin Mueller says, that SOPA means a lot of them will get windfalls of business.
What gives IP lawyers windfalls of business now is the DMCA takedown regime. To really get a platform to take down content, and abide by their own TOS against uploading infringing content, you have to chase them with the DMCA -- and even go further when they refuse or ignore you. This can be an arduous and slow process. Interestingly, in the Congressional hearing, we got more transparency on the "California Business Model" than ever before: Google claims they processed 5 million of these requests, and satisfied 75 percent of them. But clear-cut cases like that could have been taken down by Google itself without a lawsuit. Oh, but they can't and won't do it that way, they say, as they fear their losing of "safe harbour" status -- that they will be liable themselves for holding content. But the question isn't that 25 percent of the people couldn't make their case and force Google to act (it may be that they weren't persistent enough). It's that 75 percent could.
This will have to change, and will change, because in fact, their removal of 75 percent of the content means that most IP holders have a case, and that Google should do a better job of enforcing their own TOS by obvious means with obvious cases without the cunning invocation of civil rights principles that only reward their own criminality. The lawsuit shouldn't be for the removal of content; the lawsuit should be for the restoration of content proven not to be infringing. There'd be lots, lots LOTS less of those cases (and of course, it's the tiny, tiny, tiny percent of them that we hear TechDirt invoking when they claim dajaz1.com was just a discussion and review site and had all the music sent to them in fact granted for free -- a story that I don't buy, after visiting the Wayback Machine).
Oh, and with lots, lots less DMCA cases, there'd be less work for IP lawyers.
If there was a way to structure the law such that Google would be indemnified for the actions of their customers, but that they also had to take good-faith efforts to respond to customer complaints about infringing content immediately and effectively, maybe there'd be no need for SOPA. But that's not the world Google or other platform providers want to live in, and not because of the "safe harbour" concept, but because of their own cunning and duplicitious "California Business Model" -- look the other way while illegal content is uploaded, sell ads against it, then take your time answering DMCA takedowns.
But if SOPA *were* passed, what would happen to IP lawyers? We would have less need for them. Why? Because all it would take is a few obvious air-tight prosecutions of a few very obvious pirate sites before platform providers would realize they can't go on being so criminal. Even without the "breaking of the Internet" stuff that geeks shriek about with the process of resolving of domain names, a few such major prosecutions will be enough to start changing the dilatory and lax if not deliberately conniving behaviour of Google and other big platforms. They will have to figure out how to either make big licensing deals to big record companies, as they've done, or they will have to start doing much more massive deletions of accounts -- which they already do.
Right now, if I happen to make a Second Life machinima of somebody's zombie game in a sim, and they happen to have an Internet radio station playing on their parcel and I happen to pick up even half of it in my movie, along with our dialogue and the game action, within a day or two, I will get a notice explaining the following: that my content on my Youtube channel is infringing, because it contains copyrighted work (the half of a song by a performer that was on a radio station at that time). The software on the site is able instantly to pick up the "alike" digital bits in that performer's song as she recorded it, and the bits of it that happened to end up in my little Second Life movie with perhaps 17 views from my friends discussing mesh, which was a new feature in SL.
The other thing that happens is that I was notified that now my Youtube channel is not visible in Germany -- it's been blocked, because I've joined the throngs of unlawful content uploaders -- accidently -- that the EU or Germany itself is blocking. Good!
I'm just that sort of geeky edgecase -- somebody with an amateur channel of very low views just messing around testing a free piece of software to make movies who just happened to catch some song on the radio that I didn't even like -- so that the content is thrice removed from its source -- Internet radio station, virtual world, and then Youtube. I remember going back to study the Camtasia dials to see if there was a way of stripping that song out, and putting one of the legal free tunes put out by various companies, some of which you can subscribe to for a low fee, but it was too time-consuming to figure out how to strip out and then drop in the other stream, so I gave up, and then my trial expired. I do hope to go back and eventually buy that suite and figure that stuff out.
Oh, but meanwhile, Youtube didn't go to the next step they could have, and simply delete that content. It's still there. Why? The same system that found the two tracks and identified them as identical could have also simply removed the item -- and made me chase *them* to RESTORE it, possibly with its new lawful soundtrack, rather than the other way around.
Youtube pretends that it's about people making amateur videos, some at a professional level, themselves, and uploading it. But 90 percent of the content is NOT that. Should I cry because my little amateur machinima, on a parcel essentially blogging about and advertising somebody's neat zombie game that they created themselves, scripting, artwork, everything, that they admitted the "fair use" treatment of in a news show, should now be eligible for removal? Why, of course not, because if I weren't busy or less technically inclined, I could have dropped in the legal song by now.
When the SOPA prosecutions start, Google/Youtube and others will be forced to change their ways and delete that item until I chase it. And take a much more pro-active stance than they have now, and not make IP holders chase them with requests to remove 75 percent of the material that they admit shouldn't have been uploaded.
When the platforms start policing themselves more, there will be less for DMCA lawyers to do (Google and other video sites are already doing that, despite their vaunted "safe harbour" -- as a test I favourited some 40 videos on Youtube and put them in my favourites' queue, and now I see more than half of them have been removed "at the content owners' request". Good!)
The entire shift of IP lawyer work will shift from protecting content-holders, to protecting those who have an edge-case that content was unlawfully removed -- that it was only fair-use, or it was only used by poor black kids who in fact had a gift from one of their hip hop heroes, or was only used by old ladies who logged in on Sundays to make machinimas -- like me.
The work will telescope dramatically because the edge cases are just that -- edge cases. No wonder I got this hate mail.