Larry Lessig 50th Birthday Lip Sync Tribute from Daniel Jones on Vimeo. This video illustrates many famous goofs and and lesser-knowns who have endorsed Lessig's loopy technocommunist ideals starting with Joi Ito, venture communist. Only the children can be forgiven. Featuring Ethan Zuckerman telling us there is water at the bottom of the ocea. See Aaron Swartz at 2:38. This video has a CC license. I am using it because I can as an illustration to a critical post.
Accordingly, given my strong and persistent stance -- many people criticize CC once or twice but never come back again because they are browbeaten to death by its supporters -- I have expected the following:
1) Someone who resents my critique and who is their supporter will call me out for "hypocrisy" on the fact that despite being a strong critique of CC, I use photos of people who have indicated they want a CC license. To be sure, I attribute the photos to those persons -- although I refuse to put any CC insignia or marks or notifications on my site -- but they may feel that if I use them *and criticize the idea of CC* I may be "hypocritical and "to be stopped".
2) Someone who resents my critique and is a CC booster will claim that if use attribution-only photos, not for commercial use, but have Google Ads on my blog for Adsense, that I am supposedly "exploiting" their non-commercial pictures "for commercial use".
3) And finally, someone who resnts my critique and supports Lessig and others will invoke the vague wording in the license for attribution -- "You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work) -- and say that the mere appearance of their photo on my site implies "endorsement" and therefore they will ask me to remove their photo as they don't endorse me or my views.
And what's interesting is that despite the high potential for "trolling" and heckling and harassment and claw-backs and hatred on the Internet, and despite the near-cult-like fanatacism that some people bring to the whole Creative Commons shill, I've never encountered any of these issues ever on this blog.
Until now, regarding the first one.
And it's not surprising that it's from a persistent sniper and heckler, Pieter Hulshoff, and avid copyleftist and excuser of piracy who endlessly Energizer-Bunnies in the comments here against me, such as in the comments to my article about copyleftist law-faring where he says:
You know, for someone who bashes Creative Commons as much as you do, you
use a remarkable amount of images released under that license. :) Since
when is "there isn't an easy payment system" an acceptable excuse in
your mind?
So...Why do I use Creative Commons "licensed" pictures?
The answer is simple.
Because I can.
Because they are there for the taking, for attribution, and in keeping with other terms they might use, i.e. no mixing, or mixing etc.
I simply given them the attribution they require under their fake
"license" as a consideration I'd give anybody who released their work on
the Internet for attribution -- and I link back to their page so that
someone can go see more of their work and decide if they want to get
involved in the CC thing themselves or not. I never put any CC on my own
works -- they all say "copyright" and they all mean "pay me to use
them".
The CC "licenses" and people who use them do not say, "You can use our system, only if you like our ideas and support us and are one of us". They don't say, "You can't criticize our system or you can't use it." They don't even say, "You must put the CC license jpeg/insignia on your site along with the attribution or you can't use it". But of course, they will likely come to that point some day precisely because they aren't what they seem and pretend.
Pieter is a good example of that duplicity, and a very good example of a shyster who uses fake morality to try to play gotcha in the eternal pirate's undermining of legitimacy for copyright.
He thinks that a critic who says to pirates "lack of ease for payment isn't an excuse to copy" can't therefore justify using a CC license by reverse logic. Basically, he's saying, "You can't use CC unless you support its philosophy, and you can't use CC if you criticize piracy or prosecution of copyleftists -- or else I will call you out as a hypocrite."
That's stupid -- and hey, I saw what you did there.
Like I said: the condition for use of CC isn't "you must refrain from criticism of our lack of a paid option". Or "you must refrain from being a hypocrite". It just says, essentially, "if you copy this, give me credit".
I think the lack of a payment option on CC "licenses" is cunning, conniving, and deliberate. It's not about the difficult of coding payment systems and coupling them to content distribution pages -- that's trivial and done everywhere now. It's not about pretending that payment and distribution are apples and oranges and they don't do those windows. No, it's about a concerted, central, ideological belief that people should not be seeking to commercialize digital items on the Internet. They want to deliberately smash the commodiofication of the digital, and remove any inherent commodification properties it has. That's why they endlessly cite this fake pirate fallacy that you "haven't really stolen anything" when you lift a copy of something that is copyrighted. Of course you have. You've stolen the ability to monetarize by the IP owner.
If people who want attribution also had an easy way to pay them, I'd pay them. But they don't. So I don't. Because I can. They didn't ask for payment. Flickr doesn't add payment options; other sites don't either. They send you to Getty Images sometimes for commercial use, but I'm not a commercial user, and it's too may steps for a casual user to try to convert as a moral action.
No, the Silicon Valley tilt away for payment for the user-generated content is deliberate, ideological, and methodically thwarted. It is no accident, comrade. So I won't be playing that game.
I take those images *because I can* and that's how it's going to be. I don't take them because they haven't made payment easy -- that's the pirate's logic. I take them because they've released them for attribution only, not pay. Full stop.
Trying to gin more out of it is just obvious "trolling" -- a word that I usually reject for usage because it's so overbroad and always used to hamper free speech. But it has a specific connotation for many in this: deliberately heckling and harassing someone over a perceived hypocrisy in the effort to try to get them to somehow concede their hypocrisy or give up. I won't be doing that because I'm not hypocrital, I just take people seriously when they put free content on the Internet for me to take -- with attribution. I do. Because I can. The minute somebody smartens up and bucks the Silicon Valley mandate on this and puts in easy payment options with microcurrency to make small reasonable payments, I'll be all over it.
As for these other two concerns that haven't come up -- they will, inevitably, some day. As my blog gets more traffic, as those people I criticize get more nasty and oh, decide they have "second thoughts" about themselves in pictures at parties with each other with wine glasses or whatever it is that they feel should have only been used by their little friends. And I expect that at some point, they will restort to gambits 2) and 3). They will feel, "Hey, that movie for Larry's 50th birthday should only be used by his friends and admirers to support him, not to criticize him or imply they're goofs". And the moment they do that, they will have proved that they aren't what they seem. They're not a global village; they're just a village.
No. 3 is easy to reject. The ads for my little blog produce minimal income, the blog is not high traffic, and it is impossible to characterize it as a "commercial" blog when nothing is sold on it. The intention of such an edict should be to ensure that, say, newspapers that are commercial entities and that normally have to pay for photos because they sell their newspapers and sell advertising, don't just lift CC photos casually. There is even a successful lawsuit in this regard in Holland by Adam Curry -- where else and by who else, eh?!
But in order to succeed with that notion, CC couldn't just arbitrarily harass little blogs with no income to speak of who aren't selling anything with these pictures -- they're just there to illustrate the blog post and help bring attention to the work of good photographers.
No. 2 I expect to see here some day because I've seen it in the Second Life context.
And the language is indeed overbroad, and those freaks who boost the CC system as a political action will be the first to try to claim an interpretation of that vague language to suit them.
I don't think that they should get to do that, and that if they do that, they will be merely revealing the true nature of Creative Commons as not really about what it claims -- a means for photographers and designers to get their work "out there" and recognized and attributed properly -- but rather a means in fact to actually create that digital commons that is the collectivist vision of the future these technocommunists have.
That's why I don't think they'll hesitate at all to use methods 1) or 2) or 3) to discredit their critics, even though in fact we're all supposed to be able to copy and use these images for distribution on our blogs if we give the people credit -- and they should not claw that back regardless of the free speech used around their freely-given images.
It's only a matter of time before some Marxist-Leninist Occupier who put his work for CC on Flickr demands that it be taken down from my blog because I criticize OWS and he does not want to appear as an endorser of my views. Not to put ideas into their addled little brains, but it's the sort of thing that is coming as the Internet becomes more and more of a contested space.
Yes, soon, I may be able to retire from blogging about the Wired State, which I'm not particularly good at, because there are better bloggers with more resources and more attention on this subject now, for example at Red State.
I didn't use to read Red State much at all, but after the elections, when they repudiated the crazies in the GOP like Glenn Beck, Rush Limbaugh and Michelle Bachman, etc. there was hope. After all, I had just voted Republican for the first time in my life as a protest. I don't think I could become a Republican party member, but I'd like the party to get better than it is.
I only care for about half of what I read on Red State -- so much of it leaves me cold because it's either about gun stuff, which I don't support, or it's about that day-to-day political scrum of domestic issues on the Hill about who said what or who fought with whom or wasn't righteous enough -- and I can't get hugely interested in that.
But I like Tech at Night (I wish the guy would just write and stop clearing his throat all the time and apologizing) and there have been some great pieces on the whole Google problem and politics which have been very well done.
Obama, Google and the Democratic Party
Today, there is a great expose on Google and the intimate connections with the Democratic Party.
Of course, I noticed the picture of Eric Schdmit and Harper Reed on Google+ back in November on election day, and it's taken them all this time to notice it, even though I put links in the comments a few times to my piece, Harper Reed and the Soulessness of the New Machine. It is almost impossible for any new voices to get attention there -- though they promise you a blog page (like Daily Kos) and they promise to elevate some of the blogs, I simply never got the blog page because evidently they are either overwhelmed or don't like me. Oh, well.
Neil Stevens has a great piece, Whose Side is Google On? which really gives the lie to the constant refrain from techies that there are a mixture of political views in these big companies. Of course there aren't. Geez, look at the campaign chart above! Says Stevens:
A few years ago, Google was deeply in bed with the left wing activists like Moveon.org and
Free Press pushing for Internet regulation. When Obama was elected,
Google got even more deeply embedded with both the left and the
government. At this point, Republicans began paying more attention to
Google and Google realized it had a political problem.
So, after years of lining up with the left to demand more government regulation of the internet, Google changed course. (“Google cozies up to the GOP“)
Google promoted their Republican lobbyists, hired Republican
consultants, sucked up to conservative organizations and even hired a
squishy Republican, Susan Molinari (R-MSNBC) to run their DC office.
Stevens asks whether Google will jump back into the arms of Moveon.org and CAP etc. on "net neutrality". Oh, of course they will. They never left. They feel they can move in for the kill now with Obama II.
Remember that enormous, sophisticated data operation the Obama
campaign had? The one that gave them massive daily data on public
opinion trends in almost every segment of potential voters.
It’s almost as if Democrats had access to some sort of huge database
of real time information about what the public was reading or writing
online. The kind of breathtakingly large, real-time data that could be
used for real-time trend analysis, predictive modeling and even
behavioral manipulation.
Well, I've been trying to find the smoking guns on that, and of course, in this discussion here over Katherine Maher's article on Westphalia, they all vigorously deny it.
My hunch is actually that Eric Schmidt is not going to stay with Google. I don't know why I feel that. I just do. Maybe because he sold his stock, and because his title is demoted, and because his trip to North Korea to snuggle with the Dictator and bond over connectivity cults wasn't so well-received and even got sort of upstaged by his own daughter's blogging.
But Google may be calving off other nonprofits to permeate society better and maybe they'll have him run one.
Google Running Intel for Dems?
Ben Howe says:
The real threat is that Google, or perhaps just a few people within
the leadership of Google, may be quietly operating as a private
intelligence agency for the left.
And every time you use Google or Gmail you could be contributing just a little bit more of your behavioral data to the left.
Well, they probably are doing that. But he has no proof. You can be sure that Google would work very hard to keep traces of anything like that out of the public eye. If you notice, the top Googlers really are very well hidden, and aren't even in Google -- McLaughlin doesn't have a Wikipedia entry -- neither to others in the top echelons, current and former. Do they have a deal with Jimmy Wales? Or are they just good at working their own non-secret-for-them algorithms?
Obama’s impressive data team also boasts a large number of high-profile connections to Google, starting at the top with Rayid Ghani, OFA Chief Scientist. Not only has Ghani keynoted an address at Google Research Labs, according to his online CV
(PDF), but he also spoke this month at his grad school alma mater
Carnegie Mellon University in a lecture series sponsored by – you
guessed it – Google. Ghani’s former department at Carnegie Mellon boasts seven alumni on Google’s payroll on their website.
Ghani’s role on the Obama campaign was to direct Project Dreamcatcher, which used “text analytics to gauge voter sentiment” about issues and speeches. I wonder how he came up with that idea? Could it have been in talking with Katharina Probst, Senior Software Engineer and Tech Lead at Google, who, according to her own site, is “working on new features for Gmail and Gmail Ads?” (Google is currently facing some heat over how it exploits Gmail user data for advertisers – but they would never exploit user data to help the Obama campaign, right?)
They Have All Come Out from Under the Berkman Center's Overcoat
Ben Howe also notes Catherine Bracy, OFA Community Outreach Lead, Product Manager,
Tech4Obama Program Manager, and co-director of Obama’s San Francisco
technology field office and formerly of the Berkman Center "an administrative director at Harvard’s Berkman Center for Internet & Society, which receives millions in funding from Google," says Howe. Well, no surprise there; I have spent a lot of time over the years arguing with people from the Berkman Center like Ethan Zuckerman, an avid GrumpyCatFitz follower, and Jillian York, who is no longer there but is now at EFF.
I was trying to undertand what all the neuralgia was from York over my probing on her position about "net neutrality". I put all the tweet fights here on Storify. She claimed she wasn't flogging it at the OSCE Internet 2013 meeting because it's a domestic issue and that's "not her job". I pointed out that it was a position of EFF's, where she worked, and she could hardly separate from it. She claimed it was a division of labour between foreign and domestic affairs and that EFF didn't really lobby on "net neutrality". Oh, come now. I pointed out the blog illustrating that a former intern at EFF had gone on to become the Free Press advocacy director on "net neutrality," surprise, surprise. She made it seem like this was some terrible exaggeration and mocked it by saying OMG, we cited someone's blog! Well, it's not just someone's blog, it's your former guy, now in this other group that does your agenda. She thinks that the microscopic differences between all these Mitch Kapor groups, despite the overlapping of boards and funders, are somehow significant. They aren't.
One of the things I really, really complained about all last year was the way these copyleftists were taking the "net neutrality" gambit and trying to insert it into international fora and put it on par with the problem of countries like Russia filtering the Internet or countries like Tajistan simply blocking all of Facebook or trying to -- not to mention the arrests of bloggers such as in Azerbaijan.
There was no question that Rebecca MacKinnon, on the US dime, speaking as the keynote speaker at the OSCE Dublin conference, pushed for "net neutrality" as did the UN rapporteur Frank Le Rue, somewhat indirectly, and some European states. The US activists also got various Serbs and Azeris and others to speak up from their NGOs about the issue -- and of course there is a very active Dutch group called Free Press (which claims it is not related to the US Free Press group) which is pushing it -- I got into a debate with their staffer and really challenged them doing this -- "net neutrality" in the hands of oppressive governments in fact means further granting of control of the Internet for filtration and censorship -- it's the old New Information Order gambit of yesteryear at UNICEF, or the World Information Society summits in which journalists and ISPs are pressed into service to fulfill "progressive agendas" that are "helping mankind," and then of course kill off competition, markets, freedom.
The fight is more dramatic in Europe where they have a history of distrust toward private media, more state broadcasting for TV, and a natural inclination to have the state then run the Internet, too, in the name of "freedom from capitalism" which they view as a negative -- much the way Lessig calls markets a "restraint" -- or worse.
Fake Claim that Comcast 'Censored' OWS
Free Press' rep at OSCE Internet 2013 Tim Carr openly called for "net neutrality" and gave a talk claiming falsely that Comcast censored OWS and Amazon censored WikiLeaks -- wildly tendentious stuff that no one was available to push back on from the panel, which left me just being able to question some of it from the floor, which was limited. Free Press is of course a Marxist front group (McChesney).
I'm reading an old Rand study now, The Organizational Weapon: A Study of Bolshevik Strategy and Tactics by Philip Selznick. I swear every word reads like the "community organization" background of Obama, and the vehicle that Obama for America is now morphing into. It's refreshing to read a book where there is no apology for frank discussion of how communists infiltrate organizations because they were really doing that and it was really visible just after the war.
We shall speak of organizations and organizational practices as weapons when they are used by a power-seeking elite in a manner unrestrained by the constitutional order of the arena within which the contest takes place. Thus the partisan practices used in an election campaign -- insofar as they adhere to the written and unwritten rules of the contest -- are not weapons in this sense. On the other hand, when members who join an organization in apparent good faith arei n fact the agends of an outside elite, the routine affliation becomes "infiltration".
As this book was published in 1952, there's no Internet -- but that means there's no distraction to studying how organizations work, how people are indoctrinated into them, how recruitment and ideological zeal is cultivated and of course loyalty.
With the whole Google and Wired State sort of thing, it's not like they have to have a YPSL-style summer camp to indoctrinate cadres. There's no need for boot camp when you have bar camp. Through all the various conferences and unconferences, bar camps and TED talks and Sun Valley and Roots Camp and Wikimania and even Tech @State, people find each other and bind and develop that formulation of "the line" that is so important to cadre organizations.
What does "cadre organization" mean to me? It doesn't have to mean some literal communist cell or even special indoctrination; it means people who work with a very aggressive line that does not brook dissent, and who react to outside criticism by either trying to vilify the critics as in the wrong political opponents' group, or demean them as "trolls," or say that they are so complex and technical that the average person just can't understand them. You see all of that cadre work on this thread related to the Westphalia article I discussed.
RightsCon
I think one of the ways the ideological line was crafted and advanced was through RightsCon (aptly named, as it is a con using rights as a cover). This will be back again this fall. Here the Silicon Valley regulars leading the charge like EFF (John Perry Barlow) took advantage of the fact that the Ebay VP's wife, Elaine Donahoe, as an Obama bundler, was named as US ambasador to the UN Human Rights Council in Geneva. She still holds that post. And that office has been used to advance Internet Freedom, in part understood in the classic way, but also as a toehold to give MacKinnon a platform and slip in the "net neutrality" stuff and anti-SOPA and anti-CISPA work.
At this Rightscon, Silicon Valley was able to bring in all the top human rights officials, like the Assistant Secretary of State for Human Rights Michael Posner (whom I've known and worked closely with for some 30 years) and all the leading human rights groups, and lobby them to their heart's content with no outside critics, trying to convert them to their vision of "Internet freedom". They didn't succeed in totalling throwing these people to adopt "net neutrality" -- but they didn't have to, as the purpose was to soften them up to the approach of moral equivalence between control of the Internet by China and Russia and "control of the Internet" through something like SOPA. The result was collaboration, many more meetings to come, and of course, the deploying of budgets.
I don't know who will fill Posner's post now that he is leaving. He and several other key human rights leaders like Harold Koh, the legal advisor, and Samantha Power, the democracy staff person at the National Security Council, are leaving. Maybe they don't feel they can justify drones. Or Bradley Manning's pre-trial detention. Or any number of things. I will be very, very interested to see who gets in that spot at DRL, whether it will be one of these very copyleftist-primed cadres or whether it will a a veteran style civil rights leader like Gay McDougall. In a way, it doesn't matter, as this office already has Dan Baer in charge of the Internet Freedom portfolio, and he may be friendly to all the copyleftist types, but he is under adult supervision at State that means he cannot go too far with this (I hope).
There's no question that these folks are battered mercilessly by the left and those far more radical than they are or can be.
US Delegation at OSCE Gets it Right
There's nothing objectional of the "net neutrality" or "anti-SOPA" stuff in this speech delivered by Baer at OSCE last week. But it has some generic phrases that have been tooled-and-died to fight internal bureaucratic battles with those that might worry if they pass CISPA that it will enable countries like Russia to say they are doing no different (that's actually not the case, because the nature of the regime matters). Says Baer:
But just as we support individuals who are targeted every day for
exercising their rights online, we are conscious of a broader threat to
the future of Internet openness. Right now, in various international
forums, including OSCE, some countries are working to change how the
Internet is governed. They want to replace the current multi-stakeholder
approach, which supports the free flow of information in a global
network, and includes governments, the private sector, and citizens. In
its place, they aim to impose a system that expands control over
Internet resources, institutions, and content, and centralizes that
control in the hands of governments. These debates will play out in
international forums over the next few months and years.
Katherine Maher goes much further -- it's clear from her piece that she'd just as lief not have governments at all in her notion of multi-stakeholder approach, except as possibly cash cows to just keep supplying broadband to the masses -- she romanticizes -- and misreports -- the origins of the Internet:
And unlike almost every other global resource in history, the Internet largely
escaped government regulation at first -- probably because no one could figure
out how to make money from it. From the outset, it was managed not by
governments, but by an ad hoc coalition of volunteer standards bodies and civil
society groups composed of engineers, academics, and passionate geeks --
awkwardly dubbed the multistakeholder system.
In fact, it was managed by the US government in DARPA and ARPANET and all the rest, and the USG then handed it over to nonprofits like ICANN with the understanding that they would be good stewards. It's not clear that they are. Whenever people hear the term "standards bodies", they genuflect and grow very pious -- as if technical standards are beyond the ability of mere mortals to question.
But that's sheer nonsense, as these bodies like IEEE and IETF are not democratically run with due process like Congress -- they can be swayed by whoever shows up and behaves the most aggressively. I constantly cite from personal experience the example of the Virtual Worlds working group in IETF which was run by a loose consortium of companies and coders who argued about things like copyright, but which then got entirely taken over by the US military. Completely. And they have been unfriendly to copyright and push the open source line as a cost-cutting measure (supposedly) -- they want to be able to download and save all the OAR files and have them as freebies and not pay for virtual builders or worry about licensing fees or problems.
Problems involving people's ownership rights; their livelihoods as designers; issues of identity, geospatial location; proximity data; privacy; on and on and on -- these are not mere technical problems. They are profoundly human problems and they should not be left only to Google and its chosen Democrat or OFA apparatchiks to manage for all of us. We need to fight hard against all of this.
We sure get a taste of what life would be like under the rule of those copyleftists heckling Berin Szoka of TechFreedom -- they would never let anyone speak who didn't agree with their technocommunist perspective. And they shouldn't pat themselves on the back because Swartz's girlfriend gets them to shut up to hear a fellow sectarian across the aisle -- they behave this way on every Internet forum and news site and mute, block, ban anyone who disagrees and if they persist, they hack their computers and expose their privacy -- they control the discourse and all Szoka bought was some time to give the barbarians another optical maneuver to pretend they aren't at the gates.
As Pando Daily reported and as you can see in the video above, it was a spectacle of unfreedom there for some minutes:
“I cannot condone what Aaron did,” Szoka started, about to launch into an argument about how Internet freedom should not be a partisan issue. He was cut off before he could go any further.
“Come on!” shouted a man from the crowd. “Come on!”
As Szoka tried to speak again, someone else shouted out: “Knowledge for everyone!”
Then from a different corner: “We’re free!”
“Just don’t come then!” cried another.
Szoka tweeted some of his reactions to this and you can see some of the smarmy reactions from people then patting Swartz's girlfriend and the "moderates" for being "willing to listen" -- when in fact their heckling in the first place gave away the story as a hopeless one. What will it take to mug this Libertarian with the thuggish reality of the technocommunists?
You would think professors and tech millionaires goading a young hacker into his death because they didn't support him would give him some clue of that essential tribal criminality. It hasn't yet. He's young. He also feels sorry for Swartz -- his tells us in his moving presentation that his own father committed suicide because he faced some sort of criminal prosecution and he feels like he understands Swartz's family.
Anonymous and the Lessig copyleftists are a known quantity -- they are anarchists engaged in the "propaganda of the deed", like Swartz was. But CATO type Libertarians ought to know better. They ought to have a healthier attitude toward privacy and private property and a better nose for Leninism in new cyber-clothing, and realize that smashing JSTOR by destroying its ability to monetarize is not libertarianism but a new form of the coercive collectivism they supposedly reject. Szoka seems to concede that this is wrong, or "an infringement," but then he busies himself complaing about the law. Why? The law may in fact not be stringent enough given what we're facing -- online anarchy that even threatens power plants in real life.
Aaron Swartz and his organization take away choices -- no one can use the Internet for purposes they don't approve and in ways they don't like. But the Internet has to have multiple forms of commercial and nonprofit activity on it and pay walls and walled gardens must be protected by law and have a right to exist if there are to be human livelihoods. Surely the socialists can respect that much even if they want to smash corporations. And that means laws and prosecutions, not posturing with the enemy in "bi-partisan" coalitions that exist only to get foundation grants -- it's the sort of things that Soros loves.
Berin Szoka is utterly not credible in demanding changes to CFAA or killing of SOPA given the stakes here -- that a rabid, radical communistic force is smashing the ability to have a free Internet. He's not characterized how changing these laws will solve the problem of technocommunism that is very real when kids can casually hack banks and the Pentagon and break JSTOR.
And the reality is that CFAA is not the draconian horror he claims when you look at precedents, which count for a lot in our country. There are no such cases under the CFAA where any hacker of Aaron's type served 50 or 35 or 7 or 5 years -- it's absurd. The few edgecases are very different. Hackers get off; hackers get the Asperberger's defense; hackers get 1-2 years -- and the kinds of cases coming up now involve things like greatly harming SONY costing millions or dollars, or hacking Stratfor and harming business and right to freedom of association and speech; and even Gawker or Twitter. Arguably, these more serious offenses if anything should get more than a year -- they aren't getting that.
Szoka needs to be confronted for he is unleashing here; Anonymous and their copyleftist enablers are beyond reason. He shouldn't be.
I speak as not a Republican, not a reactionary, not a copyright authoritarian, but a true liberal who is interested in all human rights for all on a free Internet which is indeed free for the free flow of people, ideas, goods, and services -- and that means multiple forms of property, whether capitalist or socialist, commercial or nonprofit. It means CHOICE. And it means the rule of law, not code-as-law.
In his zeal to be seen reaching across the aisle and looking cooperative on the Hill, Szoka does not seem to have grasped the dangers he is inciting and enabling in these people. He pleads with them not to hack sites and heckle and make Swartz a martyr because otherwise the cause looks loony and left -- and he's right, it looks that way because it is. He struggles to get them to behave themselves long enough to focus on a law he thinks is outdated or draconian -- but he fails to explain why such a law isn't needed when they are like this, poised to take away all our freedoms.
As it turns out, contrary to the perceived robustness of US democracy, political change in America is often tied to martyrdom of some sort. It took an egregious mass shooting, one that claimed the lives of 20 young children, before President Obama and Congress got serious about the gun control debate. It took the suicide of two kids for Massachusetts to pass an anti-bullying act. The Republicans had to be humiliated in a Presidential election in which Mitt Romney won only 27 percent of the Hispanic vote for the party to change its tone on immigration. And New Jersey and New York had to suffer a devastating hurricane before the words “climate change” became a 2012 election issue.
This is just plain ridiculous -- and scary. Change in American happened at the ballot box, not the bullet box: gay marriage got passed in New York and other states through legislative action, not killing or suicide. Sentence reduction that impacted minorities was achieved through civic campaigns. Marijuana was legalized in five states -- if that's your thing -- not because somebody hanged themselves. This country works. You can't listen to oppressive and extremist anarchists telling you Congress is "broken" when they are the broken creatures produced by the Internet who won't even consider for a moment that violent video games and movies might be culpable in some massacres.
The gun control debate was serious with Virginia Tech and then Aurora -- to be sure it heightened with Newtown but we don't know if in fact anything serious really happened. And...to get action this way? Is this to be a national yearly ritual, like The Lottery or the Hunger Games, which ripped off the Lottery story, where we kill off some young people who are idealistic about causes to make a point? Disgraceful. As for the claim that Sandy became an election issue, that really is to misunderstand politics. People like Christie because he was there for him and went to bat for them with the federal government. If he endorsed -- or rather, didn't dis -- Obama for president, it isn't because he had caught religion about climate change per se or socialist solutions for it, but because he merely went to the federal pot to get as much as he could, and that was what had to be done.
The issue isn't to somehow coerce people to "admitting" climate change -- many do. The issue is to stop pretending that religious conversation process of yours is a replacement for actual policy debates that aren't about the religious doctrine of the planet's changes, but about what you do about them: whether you suppress capitalism and forcibly bring about communism, the way Naomi Klein wants to, citing the excuse of such disasters, or Susan Crawford, who invokes Sandy. It really is a debate about communism or capitalism, not about the weather. You don't have to convince a Republican that his house didn't wash away; you have to convince him that spending millions on green jobs and research that Obama's cronies benefit from is the way to keep the next house from washing away.
Ben Szoka's group was a useful corrective to the madness of the Mitch Kapor-funded organizations like EFF and Demand Progress, Swartz's campaign. They came out with an alternative Internet Freedom manifesto this summer when the copyleftists were stumping for communism. That was a useful public service.
But they are drowned out. They will lose. They don't have an alternative to 50,000 screaming for Ortiz' head in the most unseemly and chaotic manner on whitehouse.gov. Right now, the CATO tech Libertarians have an outsized influence on people like Issa in Congress for only one reason: people are afraid of technology and they look in awe at those who seem to have mastered it. This is how we will lose all our freedoms.
I've been thinking today of a word I thought I was inventing when I made a typo on a comment "playment," which I wish would become like "Kleenex" in ten years and enable us to effortlessly, with one click, pay for content online and get creators paid and end the regime of deliberate, engineered Internet copyleftism that has crippled the web for over a decade.
As I've said in the debate on piracy, the copyleftists are concern-trolling when they claim they're trying to get ways for artists to be paid, they just don't want them to involve "ineffective" or "futile" DRM or "prosecutorial overreach" or "chill on speech". Nonsense. They aren't serious, of course, because they don't really believe in capitalism to start with, and you can usually flush that out of them after a few rounds of debate. But they pretend that their entrepreneurial Big IT capitalism exploiting the open source cult is "capitalism" and they pretend that university- or government-funded open source work is entrepreneurial and capitalistic, too, especially if they get consulting fees. It's not a real economy for the rest of us.
CC supporters keep saying that you can't mix "licensing" and "implementation". Of course you can. The Internet mixes things all the time. That's how it gets ahead, routing around.
Google Play isn't playment yet, because you still have to click a few times and still click through to a "shopping card" and credit card information.
But eventually we'll have one-click consumption and payment -- playment.
Right now the closest thing I see to playment is Loren Feldman's site where Tinypass comes up with a 50 cents charge to see a video. This takes you to either your TinyPass account or PayPal which is faster than to Mastercard. Once you make the TinyPass account which is dirt simple, that will speed it up to make your own balance/wallet and then draw it down. This experience is better for the consumer than Google Play.
My only beef with the whole site as it is now is that it kicks up too many emails, in part because Wordpress lets you click to follow, then instead of just accepting that you really wanted to follow, then asks for a confirmation email -- I don't like Wordpress for this and other reasons but I can understand why developers use it because it has all these little modules to plug in.
Tinypass kicks up multiple emails too and this gets annoying, but likely a lot of people want payment confirmation from the payment system AND the pass system. Again, all of this has to get tighter, smoother -- it has to become PLAYMENT. ENJOYMENT.
Playment could operate off your phone and be a wallet, maybe even that Google wallet that never seems to get working and get uptake. The key is micropayments -- a view of a Youtube has to be almost microscopic, but the rewards of tipping a blogger have to be tangible -- and I'm not sure how, except with leader boards and reputational systems that always get gamed. That can be worked on.
Unfortunately, the MIT group come out of the whole "share" mentality" as you can tell right off the bat when they demand "the opening up of walled gardens". Why? People like walled gardens -- that's why Facebook has a billion members and Diaspora has a team whose member committed suicide and who took a lot of Kickstarter cash and didn't do much with it.
If the site is quoting Tim Berners-Lee on "grassroots innovation" as a solution to the Internet's "universality", we're in trouble. This is not the droid we're looking for, because Tim Berners-Lee is the fellow who welded three deep flaws into the Internet:
o failure to protect privacy
o failure to secure intellectual property
o failure to encourage commerce
It's in spite of TBL that the Internet has thrived, not because of him.
Here's why we know we're in trouble with this version of "playment":
The MIT "playment" people are likely to jealously guard their interpretation of this concept.
Playment is establishing a way for consumers *and* sound recording
copyright holders (including both established record companies and
independent recording artists) to share and profit from high quality
digital music and media distributed via internet websites and
peer-to-peer (P2P) platforms as well as via physical media like CD-Rs
and DVD-Rs and portable storage devices like external harddrives and pen
drives.
Playment aims to be the first and defacto standard implementation of the Open Music Model
(OMM) developed at MIT's Sloan School of Management. Playment has
adopted and refined the five fundamental requirements of the OMM and is
working to clearly define aspects pertaining to content metadata
validation (Semantec Web stuff) to facilitate compensation for copyright
owners.
In brief, the key concepts of the OMM are:
Open File Sharing
Open File Formats
Open Membership
Open Payment
Open Competition
But that doesn't mean the rest of the world can't route around them.
Playment shouldn't require open systems or open standards or open anything which actually slow down innovation and put it in the hands of a cranky few code dictators. There can be a thousand walled gardens and different implementation of different standards or even different standards. You don't need Facebook, Twitter, and G+ to talk to each other, you just need them to talk to the third-party payment system that more seamlessly welds in with their system, the way Seamless is now welding in with restaurants so you can order online more easily.
I think one of the problems for why no third-party payment system ever seems to become ubiquitous, except for Paypal, is that none of these giants like Google or Twitter want to enable a third-party payment system to become bigger than them by serving all three or four.
Metadata validation is the problem that the IETF virtual worlds group that was going to make Second Life and There and the Open Sims all "interoperable". That group failed miserable and got occupied and taken over by the US military, a disastrous development that no one except me has protested. People who need simulations of Afghan villages are just more driven and more resourced than people merely toying with virtual worlds with their own money. I constantly objected on the mailing list for this group that they were leaving out the engineering of copy/mod/transfer which they could easily do just as it had been done in SL, and that only ideology was stopping them. There were ways to address the problem of trusted servers and certificates and engineered as well as organic community solutions. The ideological default against them was too great, however.
Real playment has to start with a robust sense of property, not openness; of law, not code; of community, not collectivization.
My hope is that while the MIT technocommunists are tinkering away with their Playment -- they are still looking for seed investors and evidently Mitch Kapor hasn't become interested -- some real business with a real profit motive and not funded professors and students will have the hunger to make this happen.
Playment is going to have to be about wallets and about in a sense a phone meter but one that doesn't seem to drain the pocketbook and doesn't make the consumer feel that he has yet another high gadget/Internet bill coming in -- it has to have a lot of choice to it.
I'm encouraged by the way I saw Facebook log-on for comments appear everywhere on blogs and become almost the industry standard until TechCrunch went back on this very good way to do things and put in Livefyre, which I've criticized deeply.
TC did this because their comments -- and traffic -- fell off when they had identity. They tried to be noble about it and make it seem like they were willing to gut it out while a better sort of people came to the site (and I would add, especially more women, which is a demographic that won't comment in an environment with tekkie assholes being anonymously nasty).
But they weren't really noble because AOL needed the traffic, so they've now let in Lifefyre which takes Twitter and Disqus log-ons which can be anonymous.
I still think Disqus is good if you have anonymous because it builds up a record you can see with a click and it's very easy to use and manage.
Anyway, the appearance of third-party commenting platforms lets me hope there will be third-party payment solutions that seamlessly -- like Seamless -- get us to real playment, not like the MIT Playment.
OK, I'm done with this dense Dutchman.
Unless I see some new argument, I won't be replying, as I think I said pretty much everything that needs to be said in my "Twelve Arguments" post and it all kinds of sums up here,
Imagine, trying to compare your real-life home-cooking versus a restaurant, with copying/content/commerce issues...
Aaron Swartz making an unauthorized entry into the network wiring closet at MIT in January 2010.
The other day, I did a double take when I saw an email from Taren Stinebrickner-Kauffman, the partner of the late Aaron Swartz -- but it was a campaign mailer set up by the ACLU, which I subscribe to:
Dear Cathy,
On January 11, 2013, facing decades in prison on trumped up charges, my partner, Aaron Swartz, made the tragic choice to take his own life. He was only 26.
Aaron's supposed crime? He was accused of checking out too many articles (4.8 million), too fast, from an online academic library called JTSOR, to which he had authorized access. He never used or distributed the articles and later returned them. For that, he faced 35 years behind bars and endured two years of relentless persecution.
So Stinebrickner-Kauffman and the ACLU -- which should know the law better -- decided to go with the "checking out too many books from the library" theory of the case, which is the notion from the script kiddies, eternal teenager geek lifers and Anonymous anarchists on every single tech blog and forum and discussion site like Redditt.
But if you read the grown-ups on this, an entirely different picture emerges -- one that now Stinebrickner-Kauffman is now busy campaigning busily against to gain sympathy not just for her boyfriend but for the cause.
I can't imagine the grief someone would experience finding their beloved hanging from a window, after just seeing them seemingly upbeat that morning. I can't imagine sitting down and blogging about anything related to it only a few weeks later. That this woman can is part and parcel of her life and role as an anti-corporate "progressive" campaigner whose life with Swartz was a movement love story.
What I want to gather here now is a series of notes that I think will speak for themselves. Most of them come from the New York Times, Marcy Wheeler's many blogs on this subject at Empty Wheel, and Saul Tannenbaum's article -- and the comments at Empty Wheel.
What's clear from the picture that emerged is that the MIT people didn't look up from their desks and chuckle, "Oh, somebody's taking out too many books from the library again! Kids will be kids! Guess we'll have to reset the servers again LULZ".
Instead, they were worried, thought it was the Chinese hacking them because of how sophisticated and secretive it was -- and then got even more worried when they found physical evidence of break-ins in the networking wiring closet -- a vital component of the university's computer network, not a "broom closet," as some people try to write about it fancifully, not some old forgotten nook because it had "a homeless man's clothing in it," but the network's wiring heart.
That the door was even open at MIT instead of locked spoke to a culture of laxness and liberation -- which is why Swartz apparently chose MIT for his "propaganda of the deed". Saul Tannenbaum writes interestingly of how the IT people have become "more corprate" since he -- a frizzy-haired geek with wire-rim glasses -- left, and people in suits replaced him. He implies that the corporatization of IT at MIT is a precursor for what he sees as an untenable lawsuit -- that MIT now was hand-in-glove with the national security state and corporations and was no longer the hacker paradise of the 1970s and 1980s in its heyday where the very lexicon of hackerdom was codified and the culture of open source was solidified as much as it was in Silicon Valley.
Start with the New York Times, an article little-discussed in the tech press which tended to ignore it as it didn't fit their "library narrative". The article is titled "How MIT Ensnared a Hacker Bucking a Freewheeling-Culture". Remember how I said that we never, ever seemed to hear who the IT guys were and what they thought about all this? Well, they're mentioned and even quoted in this article. They're exactly the people that Prof. Hal Abelson is now talking to and will report back from in "a few weeks" along with other senior MIT officials in the decision-making chain.
But he is unlikely, as a founder of Creative Commons, the copyleftist organization that Swartz ardently supported as well along with his mentor Larry Lessig, to be anywhere near as critical of the Times -- which isn't all that critical either of a liberal East Coast bastion like MIT.
What happened, as NYT says, is that the authorities at MIT -- first the computer guys, and then the senior managements decided "to treat the downloading as a continuing crime to be investigated rather than a security threat that had been stopped" -- like JSTOR. MIT is constantly contrasted unfavourably with JSTOR, but JSTOR was the content hacked, not the servers breached like MIT.
The visitor was clever — switching identifications to avoid being blocked by M.I.T.’s security system — but eventually the university believed it had shut down the intrusion, then spent weeks reassuring furious officials at Jstor that the downloading had been stopped.
“The user was now not using any of the typical methods to access MITnet to avoid all usual methods of being disabled,” concluded Mike Halsall, a senior security analyst at M.I.T., referring to the university’s computer network.
Early on Jan. 4, at 8:08 a.m., according to Mr. Halsall’s detailed internal timeline of the events, a security expert was able to locate that new method of access precisely — the wiring in a network closet in the basement of Building 16, a nondescript rectangular structure full of classrooms and labs that, like many buildings on campus, is kept unlocked.
So Mike Halsall didn't think somebody was just "taking too many books out of the library," because that wasn't what was happening -- and he acted properly and normally for his job position regardless of whether he is viewed by anyone as "corporativized" now.
In the closet, Mr. Halsall wrote, there was a netbook, or small portable computer, “hidden under a box,” connected to an external hard drive that was receiving the downloaded documents.
Two days later, the timeline notes that Aaron Swartz “enters network closet while covering his face with bike helmet, presumably thinking video cameras may be in hallway.” More seriously for the M.I.T. investigation, “once inside and with the door closed, he hurriedly removes his netbook, hard drive and network cable and stows them in his backpack.” He was gone within two minutes, too quickly for the police to catch him.
Mr. Swartz turned over his hard drives with 4.8 million documents, and Jstor declined to pursue the case.
That's a very different picture that emerges from the weeping and self-justifying and indignantly righteous narratives on the Huffington Post, the Verge, Tech Crunch, CNET and hundreds of other incestuously-connected tech sites and blogs.
But it explains that there wasn't any "library" problem but a disturbing problem of physical breaking and entry and secrecy.
There's a lot of chatter about MIT making the decision to prosecute, as if they are sell-outs to that "Man" that Issa said we should "stick it to". But Swartz was a trespasser on their campus and in their system -- he was a Harvard student. Swartz's lawyer's later efforts to try to fight off these charges by referencing various precedents were not accepted by the judge. *The judge*.
Says the Times:
The government has defended M.I.T.’s decision to “collaborate” with the federal investigation and argued there was no need for a warrant because, as a trespasser on M.I.T.’s campus, Mr. Swartz had no reasonable expectation of privacy for his netbook. And M.I.T.’s officials were rightfully concerned, the government argued, by the threat they faced.
“M.I.T. had to identify the hacker and assist with his apprehension in order to prevent further abuse,” the government argued in court.
The NYT references “a security expert” analyzing MIT’s network.
Early on Jan. 4, at 8:08 a.m., according to Mr. Halsall’s detailed internal timeline of the events, a security expert was able to locate that new method of access precisely — the wiring in a network closet in the basement of Building 16, a nondescript rectangular structure full of classrooms and labs that, like many buildings on campus, is kept unlocked.
This is a detail I’ve long wondered about: who was the expert and what tools did she or he use?
And then there’s the thoroughly unsurprising news that Michael Pickett was with MIT’s head cop when they found Aaron on January 6, 2011.
A little after 2 p.m., according to the government, Mr. Swartz was spotted heading down Massachusetts Avenue within a mile of M.I.T. After being questioned by an M.I.T. police officer, he dropped his bike and ran (according to the M.I.T. timeline, he was stopped by an M.I.T. police captain and Mr. Pickett).
There were no interceptions (as the term “intercept” is defined in 18 U.S.C. § 2510(4)) of wire, oral, or electronic communications relating to the charges contained in the indictment, made with the consent of one of the parties to the communication in which the defendant was intercepted or which the government intends to offer as evidence in its case-in-chief.
Yet Empty Wheel asks: "Anyone want to bet they were using some fancy surveillance to find Aaron?"
She suspects they had some GPS locator, or something on his phone, and could trace him as he ran away -- she illustrates her point with a Google map and pushpins. As the courts have ruled that GPS surveillance on vehicles are not allowed, maybe there is something unlawful here, but the dates would have to be checked.
It's also possible in a small college neighbourhood the cops were able to pick out the student with the backpack that they had seen on their video surveillance system.
The Young Turk on Youtube has made much of the fact that during a February 11 house and office the authorities did not tatke the hardware implicated in the crime. He asked whether it was "incompetence" and a fishing expedition where they were there to grab everything else "almost as if they were interested in something else" i.e. WikiLeaks. He wonders if Swartz was a "target for daring to ask about the treatment of Bradley Manning". On a second show, he puts these questions to Swartz's lawyer and doesn't get answers -- the sound seems to go bad right at that moment.
But the fact is, the police already took the laptop involved in the JSTOR hack and turned it over to forensic experts. Empty Wheel goes to great lengths to try to find something nefarious in this, with some thinking it indicates the corrupt core of the corporativized MIT hand-in-glove with the evil security state, but Tannenbaum making the point that they may have simply wanted to get the best experts, and that it was normal for police to call on such experts with whom they worked closely on many kinds of cases.
That's naturally the nexus of the issue that many of the tech set are complaining bitterly about, because they feel as if MIT has wronged Swartz -- his distraught father says MIT has killed his son -- by not dropping the case when JSTOR dropped it.
Tannenbaum is less emotional, as a former MIT IT guy:
finding that someone has placed a computer in one of your wiring closets, well, that gets outside the realm of network security and moves into physical security. And a prudent network administrator at that point calls the cops because trespassing is someone else’s problem.
He is challenged then by Rayne who uses the classic Anonymous double-talk known to us well from many an SL incident. Why wasn't MIT's security in their closet better? It's their fault:
MIT has a security problem, and it’s not just in its decision-making process or its network security. It’s a physical security problem...Frankly, Swartz did them a favor by revealing a weak spot in their security while not actually accessing anything that couldn’t be obtained without coughing up a registration and money to JSTOR.
MIT didn't see it that way; neither did law-enforcement.
And look again at comment no. 62 by Marcy Wheeler herself, who carefully analyzes all of Swartz's FOIA requests and tries to match them to the prosecution's actions to see if they were punishing him for those FOIA requests:
That’s not the same as saying they were not investigating him, period. Also note my FOIA post two doors down. There is at least the possibility that he may have come up in SOME grand jury investigation between October 8 and December 11 of 2010.
Look, part of the Manning investigation pertained to who helped Manning scrape lots of data w/encryption to avoid notice. He got a software tool to help him do that in Jan-Feb 2010 in Cambridge. According to Adrian Lamo, he had already told the Feds who that was by August. In Cambridge at that time (though I have no idea if he was at the parties earlier) was someone who had ALREADY scraped massive amounts of data without being identified. So it’d be unlikely that he would totally escape their interest.
[One of the questions I've always had about the Lamo chat logs and Manning's confessions is that if he confessed this in May, and Lamo told the feds by August 2010, then why did the cables still get published and not stopped by November 2010? I must have something wrong in the timeline.]
as Wheeler continues:
And presumably, one way to learn more about that would be to learn how Swartz uploaded the PACER documents to Amazon. That’s another thing he was FOIAing–what kind of info the govt got from Amazon in that investigation. And that’s something the GJ in this case was investigating too.
I’m fairly sure they used the GJ to investigate if he had ties to WikiLeaks, and that’s what his lawyer was trying to learn about in his discovery motions.
Bingo. Amazon is the connection here. If Swartz didn't make the scraper tool directly for Manning, or give it to Danny Clark to give it to him, or some other person, then maybe he helped at the other end of the pipeline, in getting the WikiLeaked items out of the US military's servers to WikiLeaks and then to "safety" at Amazon (but not for long).
We can estimate that they did use the grand jury, because Swartz's previous girlfriend Quinn was questioned and given immunity by the grand jury -- unlike David House, she didn't publish and notes so we don't know what happened.
There's this instructive email communication that Chris Soghoian, the privacy guru now working for ACLU whom I have criticized in the past, who communicated with Swartz and gave him advice and interpretation about "the cloud". He published these emails as a public service, but one wonders if in fact the grand jury looked at them as evidence:
Swartz is no stranger to the feds being interested in his skills at prodigious downloads. In 2008, the federal court system decided to try out allowing free public access to its court record search system PACER at 17 libraries across the country. Swartz went to the 7th U.S. Circuit Court of Appeals library in Chicago and installed a small PERL script he had written. The code cycled sequentially through case numbers, requesting a new document from PACER every three seconds. In this manner, Swartz got nearly 20 million pages of court documents, which his script uploaded to Amazon’s EC2 cloud computing service. (from Tim De Christopher thatvisionthing no. 10 on Empty Wheel)
You know who else downloaded millions of pages? Bradley Manning.
Again, I will quote Tannenbaum:
Manning was no stranger to Boston and Cambridge, visiting his then boyfriend, a Brandeis graduate student active in the Boston area hacker community. During these visits, the last of which was in January 2010, Manning met David House, a founder of a Boston University hackerspace and an MIT researcher. After Manning's arrest and subsequent solitary confinement, House helped found The Bradley Manning Support Network, an activist group seeking to bring attention to what they saw as the inhumane treatment of Manning. House, himself, later became a target of the Wikileaks Grand Jury. During his grand jury appearance, in which he invoked his Fifth Amendment rights against self-incrimination, House was questioned about a supposed meeting with Bradley Manning and others during his January 2010 visit, including a breakfast at the Oxford Spa in Cambridge on January 27th.
As one commenter at Empty Wheel put this very succinctly, unlike so many anarchist word-salad sous chefs at the Atlantic:
it’s pretty cheeky to blow off net staff attempts to control their system while squatting on their real estate and physically hanging hardware on their lan. (lefty665 no. 91)
Again, Bradly Manning visited Cambridge in January 2010 with his then-boyfriend who was an MIT hacker moving in these circles, and attended an open house for BUILDs, the hacker community space established by David House.
Denver Nicks author of Private: Bradley Mannings, Wikileaks and the Biggest Exposure of Officials Secrets in American History did an interview with Democracy Now in which he said:
Julian Assange was part of this hacker culture in the '80s and early ’90s, and continues to be, but he was at that time. And like many people who are involved in that scene, Assange gets involved in writing open-source software, software based on the premises that Richard Stallman founded, the sort of free software ideals. Bradley Manning, later in his life, becomes good friends with a fellow named Danny Clark, who worked for Richard Stallman at the Free Software Foundation, and to some degree, I think, became interested in Stallman's ideas and the notion that information should be free.
As Swartz himself discovered, according to Heather Brooke, when "following the networks," Danny Clark was also connected to Benjamin Mako, who gave the FSF talk at the BUILDS open house the night Manning was present.
None of these people have to be put together in space and time to connect them, as some of them connect on Twitter or elsewhere. All of Swartz's tweets have been siphoned into a giant searchable file on the Internet Archive and one hopes nothing was removed.
The MIT General counsel's office "approved the disclosure of information to law enforcement agents even in the absence of a warrant or process complying with the Stored Communications Act"...(and in contravention of MIT's published policies of only disclosing such information after receit of such process), and at a time when MIT personnel were acting as government agents, Halsall gave S/A Pickett historical network flow data relating to two IP addresses associated with the netbook...
But that's the spin TechDirt will give to any hacker's case. Acting as government agents?! That's absurd. They were acting properly as people whose system was hacked and breached, and they called in law-enforcers.
As Tannenbaum explained, it was normal given this kind of physical breach. And it's important, again to note that Swartz's lawyer could not make the case in court that there was something improper here. Peters tried to argue that the case to cite was Sanchez, which holds "a mere trespasser has no Fourth Amendment protection in premises he occupies wrongfully". The lawyer had no luck in trying to claim otherwise for Swartz as a trespasser. The law doesn't change itself because you are a genius or making a larger point.
On January 4, 2011, Dave Newman, MIT Senior Network Engineer, located an ACER netbook in a data room in the basement of an MIT building, which Newman believed was the computer being used to download journal articles from JSTOR. Timeline at 6. Newman, in consultation with Paul Acosta, MIT Manager of Network Operations, decided to leave the netbook physically undisturbed and instead to institute a “capture” of the network traffic to and from the netbook, which was done via Newman’s laptop, which was connected to the netbook and which intercepted communications coming to it.
On January 5, 2011, Ellen Finnie Duranceau, MIT Program Manager of Scholarly Publishing and Licensing, took notes of a conversation with Halsall in which she indicated that the netbook was “left in place to capture traffic” because law enforcement “want[ed] to find intent + motive.” Exhibit 24 at 2. Those same notes stated that it was “now a Federal case” and that everything that had been provided was done “by choice,” and not pursuant to a subpoena. Id. at 3.
So there you have it. These two are at the frontline of the decision-making process. They aren't evil prosecutors or evil corporate suits, but people doing their job properly. They didn't know -- again -- that they were supposed to act diferently because the intruder was an "Internet freedom fighter" hero and that they were supposed to get out of the way of "a national conversation" and a revolution to undermine the rule of law.
Although the event functioned as a critique on the federal criminal
justice system, it also served as a memorial service attended by
high-profile lawmakers, academics and activists angered by Swartz's
prosecution on federal hacking charges. Such an event is extraordinarily
rare in the Capitol complex, especially one honoring a private citizen
whose suicide has made him a symbol of federal prosecutorial power.
Sen. Ron Wyden (D-Ore.) and House Oversight Committee Chairman
Darrell Issa (R-Calif.) spoke at the event, as did Reps. Alan Grayson
(D-Fla.) and Jared Polis (D-Colo.). Sen. Elizabeth Warren (D-Mass.),
Rep. Zoe Lofgren (D-Calif.) and Rep. Jan Schakowsky (D-Ill.) also
attended.
Some program notes:
o Ron Wyden has worked assiduously against SOPA/PIPA legislation and for privacy and against government surveillance -- Wyden wants to know "how many Americans the government had spied on
through application of the Foreign Intelligence Surveillance Act's
secret court, has sent a letter to CIA Director nominee John
Brennan to try to get information about the administration’s use of
drones to kill people."
o Darrell Issa worked against SOPA/PIPA and continuously represents the interests of Silicon Valley on the Hill; Google and other Big IT corporations are among his contributors naturally.
o Elizabeth Warren is the "progressive" who gained fame with the "you didn't build that" statement about how the government's support of you is prior to your own efforts -- as if your taxes out of your revenue wasn't prior, and the government second
o Zoe Lofgren in tandem with Darrell Issa did all the work against SOPA/PIPA -- from Mike Masnick's lips to her mouth.
o Jan Schakowsky is linked to the DSA regulars in Chicago, and is former community organizer. Not at all surprised to see her linked to the SEIU socialists at a Norman Thomas dinner -- but you know, Norman Thomas wasn't a stealth socialist like these folks.
I used to pick out all the DSA cadres for other foreign policy purposes and usually they'd be grouped around Ron Dellums. It's so funny to see these lefties now make common cause with Silicon Valley corporate types that as stealth-socialists they ought to loathe or at least be critical of.
When people talk about "bi-partisan" meetings like this that are supposed to represent some grand civic thing, what they really mean is that sectarians of the left and right have met at the outer edges -- "progressives" of the open source software cults meet up with the Republican Libertarians who seem to think property liberation is an innovative business model.
I guess this is sort of the rump of the Wired State.
Naturally Lessig and company were all in attendance.
The event was rife with outrageous hyperbole:
Grayson called Swartz's prosecution and death the "human sacrifice" of a
luminary who sought to reform the political status quo -- a loss he
said belongs in the tradition of the poisoning of Socrates.
Human sacrifice? But it's people like Atlantic writers that think that Aaron Swartz died so we can all have, as the DSAers always used to put it, "a national conversation" about computer fraud laws, mental health/suicide, and hackers. Converse away -- that someone took his own life is merely a conversational starter. Maybe they plan to make this an annual ritual?
Lessig is still in high dudgeon, absolutely evasive about his own role in this young man's death, by not going to the mat for him and in fact telling him he had "crossed a line" by his felonious hacking:
"The striking fact about this case is that the more they learned, the more obstinate they became," Harvard University law professor Lawrence Lessig told the crowd
Naturally the "progressives" have always and everywhere tried to offset this proper prosecution with "the banksters" whom they falsely claim are never prosecuted.
Center for Economic Policy and Research: "This is a Justice Department
that couldn't find anyone to prosecute for the tens of billions in
fraudulent mortgages that were issued, but somehow had time and
resources" to pursue Swartz.
Well, maybe the Justice Department pursues cases under the rule of law and due process, unlike people who believe in code-as-law where the tribe gets to decide?
And this star turn beats all:
"Stick it to the man," Issa said. "Access to information is a human right."
Oh, my. Isn't a US congressman from California backed by Silicon Valley himself "the Man"? I guess not! I guess he's Little Brother lol!
But...Swartz had access to information -- he could access those JSTOR files any time as a student at Harvard.
Berin Szoka with the TechFreedom group was supposed to be part of the bipartisan mourn fest, but he was jeered and the crowd had to be quieted by Swartz's girlfriend when he tried to explain that Swartz was not a "martyr for
openness" because he shouldn't have stolen the JSTOR files, but was a "victim" of an overzealous criminal justice system.
Oh, my.
The photo doesn't look as if "hundreds" attended -- it doesn't matter, this movement is very good at taking even just a few dozen well-resourced and well-connected people and making it seem like the entire "the Internet".
A tweet by Jay Rosen, an expert on new media and journalism who never really worked as a journalist by his own admission, via Dan Gilmor, a man who would create a lexicon of approved terms for journalists to use, about Swartz's girlfriend's blog got 103 retweets and 49 favourites. Surprisingly, or maybe not, he does get some pushback in the comments, but it's more from the tough young tech thugs who think Swartz wimped out.
Copyleftists and sly piracy advocates like the nuisance Pieters Hulshoff always refer to the "horror" of the "evil RIAA" harassing innocent individuals who merely downloaded a few songs -- why, even cases of $18,000-$80,000! The horror!
But this "$80,000" is a) an edge case b) not represented accurately c) the tip of a much more cynical iceberg involving wealthy piracy services.
It's a total edge-case because there is only...one case like this. Okay, maybe there's a few, but all of them endlessly litigate, and the spectacle of grandmothers and teenage boys paying fortunes just doesn't happen as a matter of course.
If you read the lefty tech press on this, which takes the copyleftist perspective and always reports this story with maximum drama, you might, like Pieters, come away thinking "OMG this Native American woman has been victimized by evil corporate overlords who are making her pay $80,000 a song."
So if you see these stories here, here, here, and here on CNET you will only thing "victim" and "outrage" and "evil record companies".
But even Wikipedia gives you a broader perspective on this case, originally known as RIAA v. Thomas-Rasset and now known as Capitol v. Thomas.
And you see what this is really about:
The plaintiffs alleged that on February 21, 2005, Jammie Thomas shared a total of 1,702 tracks online; however, plaintiffs sought relief for only 24 of these.
So if the plaintiff had 1,702 tracks -- a very precise number -- that's what they had because that's what was on her shared drive and that's what she made available to the Kazaa, the file-sharing service that itself as an entirety been subject to a lawsuit and shut down.
It isn't just that she downloaded a few songs to her hard drive; it's that she made stolen songs available to others to steal on a service that itself was illegal -- that's piracy. (BTW, Kim Dotcom wants to make more cases like this "poor woman's" case by shifting legal responsibility for theft of content on to his account holders in Mega).
Did she get personal profit, i.e. with a Dotcom kind of site? It doesn't seem so, and two things happened precisely because of that likely fact: a) the plaintiffs reduced their case down to 24 songs where they had litigants that would care b) they made a plea bargain of $5000 in damages to call it a day.
Most tech blog reporting disguises that fact of the $5000, just like today Declan McCullagh of CNET keeps leaving out the $6000 plea offered to Aaron Swartz.
Was she "made an example of"? Oh, no question -- that's what happens when you don't have a law like SOPA to adjudicate these kinds of cases better, the authorities make cases of people.
Was she innocent? No, I doubt even she claims that, although she did try to buck the problem to her son or others using the computer, which ultimately prompted even the judge to say she was lying.
Why would the giant record industry go after a Native American woman with maximum victimhood potential? Because they had a good case, she was a big downloader who used Kazaa.
So what happened next?
She and her lawyers and the EFF types decide to keep bucking the system -- the system not only of big record associations that want to protect their business, but the independent judiciary which doesn't "need" to find in favour of big record associations but does need to defend its own integrity.
These lawfarers slammed at the legal system again and again trying to break that as much as they tried to break the inherency of copyright in the first place.
And that's where they found that it go worse for them:
In July 2011, the court again reduced the $1.5 million jury award to $54,000, or $2,250 per song.[5] The record labels appealed this decision.[6][7] On September 11, 2012, the Eighth Circuit Court of Appeals reversed the District Court's reduction of the award, and reinstated the award of $222,000, which was the amount awarded by the jury in the first trial.[8]
If *a jury* could give an award of $1.5 million, it's because they found that when the law was applied, then there was a case. Copyleftists sometimes think that if only they push through to a jury, they will get off on the strength of their charm. They don't. The jury is in the real world and unimpressed with their lying and shenanigans. That costs them.
So she was down to $2250 per song for her lawfaring, based on statutory damages (go read up on these legal distinctions), not $80,000, but that wasn't good enough for her. She fought it, and the system responded with what it thinks of those trying to break copyright as well as the judicial system itself: a reinstatement of the original fine of $220,000 or $9166 per son, not $80,000 per song. Still awfully high, but remember this is a woman who refused to accept the $5000 settlement offer and kept bucking the system to try to break it on principle, and then got a worse deal because a jury was unimpressed with the Big Lie and the little lies.
Along the way the court ruled that this sort of heavy fine isn't unconstitutional. Torrentfreak may find all this a horror:
There is some amazing reasoning in the ruling, including the
assertion that Congress was well aware of online copyright infringement
back in 1999.
“Congress no doubt was aware of the
serious problem posed by online copyright infringement, and the
‘numberless opportunities for committing the offense,’ when it last
revisited the Copyright Act in 1999. To provide a deterrent against such
infringement, Congress amended § 504(c) to increase the minimum
per-work award from $500 to $750, the maximum per-work award from
$20,000 to $30,000, and the maximum per-work award for willful
infringement from $100,000 to $150,000.”
The fact that Thomas-Rasset was a regular user who made no special
effort to distribute or advertise the availability of the files in her
shared folder means she was about as passive as it was possible to be,
but the court saw things differently. In the ruling Thomas-Rasset’s
actions are described as “an aggravated case of willful infringement.”
But...when you put something on a file-sharing service you are not passive -- it is not on your hard drive alone. It's available to thousands -- millions! -- of other people and picked up by them -- duh. You don't have to "advertise"; the system automatically finds you.
There's maybe one or two other cases like these, all dragging out, and all of them may "go away" for all we know, or get back to the $5000 which they started with. But legal principles have to be applied justly, and what the lawfarers are finding is that they try to challenge fair legal principles applied justly, the system doesn't accept their flawed reasoning.
Again, the cure for this solution isn't to exonerate this file-sharer or pretend there are violations here other than the technical ones the judge himself found that affected the case. The cure is to pass SOPA, and put the fines in it lower if you find them punitive, and make the definitions clearer regarding those who offer file-sharing but who don't sell ads or premium accounts around the content. Oh, and admit that a law like SOPA will make a site like Kazaa illegal. Too bad, so sad.
It's almost impossible in the welter of high-traffic tech news sites and tech blogs that vigorously take the copyleftist side and skew the coverage to find out what the RIAA itself says. The RIAA isn't as vigorous in their blogging, on their own site and through quotes on other sites, as the tech Internet pioneers who rule Google search results -- and they are always targeted with hate campaigns which drown them out. (The reality is that the record industry isn't the powerful monster depicted by Mitch Kapor-funded groups; the copyleftist network mafia is the powerful monster that could muster millions of people against SOPA and prevent it from ever coming to a democratic vote).
But this article on Torrentfreak at least lets us hear what one RIAA official had to say:
What this lets us know is that Thomas had A LOT of songs and MILLIONS of people could access them -- the heart of illegal services like Kazaa, itself shut down with a lawsuit ultimately.
And the recording artists are going to fight this blatant theft because if "everybody does it" and there is no legal deterrent and punishment, they will lose business increasingly until they are closed.
If you don't like this one woman getting this seemingly outlandish fine, the answer isn't to say "RIAA is evil and she is a victim". The answer is to say that we need SOPA so that definitions and fines are set -- which in fact they were, fairly and reasonably -- and so that it is established as a generic fact that a site like Kazaa is unlawful.
It's just that the unreasonable and unruly Internet mob never met a law it liked as they are legal nihilists.
The answer to the legal nihilism of pirates and their enablers like Thomas isn't more legal nihilism in the form of Creative Communism from Larry Lessig and other ruses. The answers is better rule of law.
The further lawfaring that Ben Sheffner does on that particular copyleftist blog about the instructions to the jury or the nature of the act are distractions from the original issue rightly framed by the RIAA official: this woman downloaded thousands of songs and made them potentially available to millions, and that has to be stopped.
Like the prosecutor in Swartz's case, the RIAA offered a reasonable cure for this wrong by offering a $5000 plea -- but that meant acknowledgement of guilt and payment of $5000. This defendant and her lawfaring lawyers thought they could beat that by denying guilt and endlessly bucking the system itself of law, not the system of record companies. The lawfarers have created the monstrosities of this case, not the record industry that offered a $5000 solution.
If you read Wikipedia -- again, hardly a credible source itself and skewed to the left and copyleftism -- you will find:
In yet another set of related cases, in September 2003, the RIAA
(trade association of the music industry) filed suit in civil court
against several private individuals who had shared large numbers of
files with Kazaa; most of these suits were settled with monetary
payments averaging $3,000.
So the monster is a fiction; the $80,000 per song is a fiction.
And you will find another fun fact out of all this -- Kazaa was created by the same people who eventually created Skype -- and then sold it to Microsoft. They are definitely not hurting for cash today. Kazaa's subsequent owners still had to pay $100 million in damages to the record industry. Big IT always seems to get its sleazy and seamy start in the grubby piracy business or crappy ad sales business before it graduates to more sophisticated products, and then ultimately sells out to the Man. That ought to tell you where the real hearts of this business are. Lawfarers try to portray the record industry as evil and themselves and their clients as innocents. They shill for -- and disguise -- the real evil, which is that those fighting for piracy who will be happy to expose your privacy and sell you down the river to Big IT as quickly as they originally stole the IP of other people to make ad revenue from them illegally.
There's kind of a mania about Chinese hackers now, now that the liberal bastion of the New York Times and the conservative bastion of The Wall Street Journal have been hacked by the Chinese themselves. That's what it takes -- the WSJ was better at reporting Hurricane Sandy because they could look out the window and see the flooding and their power went off; the New York Times was in NoPo, as the area is now jokingly called, not SoPo (north of power or south of power) -- the cut- off was 42nd Street.
Now it seems as if the Chinese are everywhere -- but they were always everywhere. There were people warning of them years ago (me). In 2011, Vanity Fair had a huge expose of the Chinese hackers and the incredible damage they do to both corporate and government web sites. The mainstream daily news didn't much pick up the story and the tech press was absolutely silent about it because China is their gadget manufacturing factory.
I don't think that Chinese hacking can be isolated from the other issues of Internet governance, however. You can't have L. Gordon Crovitz giving a bully pulpit to Google's Andrew McLaughlin to "break the kneecaps" of international bodies like the ITU over copyright, and then expect the world to do something about Chinese hacking. These things all emanate from the same problem: the legal nihilism of the communist regimes and the continued legal nihilism of their successors today, even if they aren't as communist as they used to be. The solution to Chinese hacking can't be artificially compartmentalized from the problem of piracy and hacking in other areas -- they all go together.
Hence my comment to the WSJ editorial that tries to put the focus on the content and the reporting -- as if Chinese hacking in their case was only about how they covered a government scandal. The WJS is a business; as such, it is a target for the Chinese Communist Party, Inc. to attack -- full stop. Every business person in America and many in the world reads it every day. The WSJ says:
The larger question is why the Chinese do this and what the regime's spying compulsions say about what it is.
In an op-ed in these pages last year, Mike McConnell, Michael Chertoff and William Lynn noted that "The Chinese government has a national policy of economic espionage in cyberspace." The three former national security officials chalked this up to Beijing's need for rapid economic growth to improve the lot of its people. "It is much more efficient for the Chinese to steal innovations and intellectual property," they wrote, "than to incur the cost and time of creating their own."
The answer to your question of why Chinese hackers do their hacking is easy: because they can.
And the answer to why this happened to you is easy too: because you haven't taken the problem of hacking seriously enough and worked to prevent and mitigate it better.
The problem of hacking is often seen as merely a technological problem, that you need better IT people or products or expensive consultants.
But the first place to tackle hacking is in your mindset and your editorial board and your corporate culture.
And there, things are rotten because your young colleagues in particular have accepted copyleftism as a component of their culture which they radically defend; they have opposed SOPA and they have written news and editorial pieces attacking the efforts of any body, at home or abroad, to control piracy. Hackers are cheered as "freedom fighters" that might be protecting your Libertarians from losing your freedom instead of the anarchist Leninist-Marxists that you as *the Wall Street* Journal should be rejecting.
THAT is where the problem begins: a failure to understand the *ideological* side of the problem of a casual regard to property and property rights merely because they are digital. That's what you have to fix first. The rest will follow.
When you're ready to let writers like L. Gordon Corwitz stop dog-whistling to Kim Dotcom supporters and Google lobbyists ilke Andrew McLaughlin; when you're ready to stop golf-clapping WikiLeaks and letting Julie Angwin report only on the fears of government intrusion into social media and rarely the destructiveness of Anonymous, then you will be less of a target. It's just that simple.
***
Watch out for Eric Schmidt's solution to the problem he is finally admitting (Google didn't going into China or staying in China for years until their own servers were directly dinged). I suspect Eric wants Google to take over the state (it already has a revolving door) although he's less naked about it than Sergey Brin, who advocates for an end to political parties and governance on the Internet. For now, Eric is content to have this solution, in the words of a BBC review: "Western governments could do more to follow China's lead and develop
stronger relationships between the state and technology companies." This is why all those human rights organizations that joined the Google-dominated GNI were providing cover for something antithetical to freedom and human rights.
P.S. I remember the early days of email on the Internet in the mid-1990s when a tekkie swore to me that an attachment could "never" carry a virus. Boy, was he wrong. So when the stories began to surface of how software could penetrate the hardware of infrastructures, I paid attention, was sneered at by tekkies that "this couldn't happen here," took on some breathless Internet bloggers here, and today read that yes, power infrastructure can indeed be attacked. Bloomberg will report on this seriously; obviously the Onion won't, and lets us know an underlying attitude in the tech set -- "I for one welcome our new overlords."
You can tell the copyleftists and the pirates are on the run, as they are getting more and more desperate and aggressive.
Prosecution of piracy goes forward, even if it has reversals, and even if the US loses extradition requests, it's not going away. Kim Dotcom is not going anywhere; his next hearing is in August, and he's flamboyantly flouting all the rules, but the chickens are roosting. Aaron Swartz committed suicide rather than face trial, now we will never know many things. But Prof. Abelson of MIT, the copyleftist and Creative Commons founder entrusted to research MIT's response, is not going to emerge saying that it's okay to "take too many books out of the library," nor will he bless hacking into systems with deception and physical obstructions and taking 4 million files with a circumvention script as "mere inconvenience" or "okay". He may agitate for the results of technocommunism, but as an established professor, he will not be trumpeting the means. More on this later, but because there's one terribly aggressive but not very bright copyleftist constantly haranguing me this days on this blog and Twitter, I think it's worth going over the basics again.
Web 2.0 claimed that web 1.0 was wrong about walled gardens and paid content, and ushered in the era of "sharing" which was really coerced loss of privacy, loss of revenue, destruction of content industries, and not so innovative at the end of the day. The tekkies constantly sneered that walled gardens couldn't possibly succeed, because the defeat of AOL in the first iteration of the Internet, and Netscape and others, meant that they couldn't win, everything had to be "open". I realize the issues of open standards, walled gardens, copyright, and piracy are all separate issues, but the mindset and theology all comes from the same self-serving place.I can't count how many times we were witheringly told in Second Life that it "couldn't" be proprietary and "had" to be opened up and we "couldn't" have DRM and paid content because "the web" had "decided" that walled gardens were "dead".
Then we all sat back and watched not only Second Life succeed -- yes, succeed, because there isn't any other community like it with $450 million of user-generated revenue for people, not just the "game company" or platform provider like it. Anywhere. Per capita, it is greater than Facebook. And then we also sat back and watched Facebook, that quintessential walled garden, get a billion users and start selling digital content. Then Twitter also stayed a walled garden and began to block others.
Then we saw the Wall Street Journal and the New York Times begin pay walls that worked and succeeded.
The copyleftists always claimed they were sincere and just wanted to help, and that there proposition was honest: free all the content, they said with a straight face, don't put on DRM, and we promise, pinky promise, that we will buy the content. Well, sometimes. Or maybe tip people. Well, sometimes. They claimed that if you "make it easier to pay" people will pay, and that that's all it's about.
Of course, all of this is the Big Lie, because copyleftists aren't interested in actual rights or artists' revenue, even if they pretend they are and pretend they are for the little guy against the big evil record company that exploits him. They're actually interested in smashing the commodification of digital content -- the ability to sell it in any fashion -- and make it only shareable -- because the Commons is more important than the Creative for technocommunists. It's an ideology of how to move the failed communism of real life online where it might succeed, not really about artists. The people who founded Creative Commons aren't artists, aren't musicians, aren't writers. They are ideologues and computer programmers. Lessig teaches political science. Doctorow is a writer but a minor secondary one whose main fame comes from his lecturing on copyleftism and his tech blog Boing Boing. His main revenue comes from those sources, too. The others in Creative Commons are radical coders, lawyers, professors of communications, etc. -- not artists. They're the last people you want to ask about how to enhance the creative profession to enable artists to make a living -- they only want to enable a living for themselves, and not others.
The debate has heated up again with the plan to put DRM into HTML5, which the tech blogs and copyleftists are now all braying can't be done, shouldn't be done, will kill the Internet, blah blah. Meanwhile, Google and Apple and other companies are actually in talks about how it can be done.
Google has changed everything, after lots of lawsuits, some of them still ongoing, by going into the paid content business with Google Play. Obviously it has to buy the rights to those things it sells there. Sergey Brin tried his best to reproduce the communist ideal of Maxim Gorky and HG Wells for a vast information library for the masses by "liberating" as many books as he could, facilitating Wikipedia's high placement with his algorithms, and fighting copyright laws like SOPA. But he has a backup plan, and so should you: he's started Google Play.
That lets you know Google sees the writing on the wall.
So the false premises go like this and I'll answer them briefly here:
1. "DRM doesn't work".
Of course it works. Millions of people encounter a block on their right-clicking or a payment page for an i-tune and they don't break it, they buy it. Or if they are viewing it on Youtube on some ripper's page, they don't use some software to squeeze it into their i-pod queue or i-phone. When Pinterest came out, what did Facebook and Flickr to? They made it impossible to use the Pinterest code on their site to automatically "pin" an image. Oh, sure, you could right click and save to hard drive then upload, duh, or you could use "print screen". But they *didn't make it easy". In Second Life, the DRM of "copy/mod/transfer" is not defeated most of the time, either through using rogue viewers or various scripts that can capture parameters of texture or even print screen. Most people encounter a DRM, and they don't seek to crack it; their game CD doesn't copy -- they don't copy it. They don't have some burning need to have more copies of Spore. It's just that simple. It works for most people, and that's enough.
Everybody gets it about how you "can't" engineer copyright. Except...you can. It's done all over the place. It's done by game manufacturers and MMORPG managers with obfuscation all the time. When it wears out because the script kiddies defeat it, they scramble it again. As many times as the hackers want to hack and make exploits in World of Warcraft, the manufacturers come back and defeat it, one way or another, sometimes by simply arbitrarily changing game mechanics to make some quest or object no longer relevant or valueable. Every day, while thousands of geeks are busy hacking and jailbreaking and cracking, thousands of other geeks are busy defeating it, and that's the way it goes. Pretending that "DRM" doesn't work when it just worked to save Flickr from Pinterest, by and large, is silly. BTW, you also can't so easily just right click an "all rights reserved" picture in Flickr, either unless you work at defeating the system.
Copyleftists constantly babble on about how "the industry itself" has gotten rid of DRM or that "not everybody has to crack it, they can torrent it," but the industry has put in notices threatening prosecution when they catch torrenting and if they ditch DRM in some cases it's not a blanket decision, it's only an experiment or a tactical maneuver while they keep it in other settings.
2. "Piracy is not theft".
I dealt with that silly, juvenile alibi here with my own graphic. Of course it's theft. It doesn't matter if you "leave the original" and "only take a copy" (did these children think this is some kind of genius discovery). What you steal with piracy is the inherent capacity of a digital item to be commodified. You steal its commerce juice. It's okay for a digital object to have inherent sellability. If you deprive the intellectual property holder of that inherent property of his object -- if he puts a price tag on it, it will sell -- then you are stealing. You are not just "infringing," i.e. usurping his rights and reselling it as if you had those rights yourself. You are *stealing* by destroying the inherent capacity of the item.
This is very easy to visualize and see in the round in Second Life, where each piece of digital code has a 3-d visual manifestation as a table or chair or whatever. Its harder to concede when the eye can't see it and it is imagined then only as a string of code that some people possess as authors and others might "borrow". But it is stealing. This is why the prosecutor in the Swartz case, Carmen Ortiz, said "Stealing is stealing, whether you do it with a computer command or a crowbar." Absolutely. A right-click is a command just as much as "keepgrabbing.py" or something more sophisticated. It doesn't matter if you "can"; by doing so you *steal*.
3. "DRM has to work 100% or it isn't viable"
Nonsense. Nothing is more idiotic than binary 010101 geek thinking in this regard. DRM can work 60-40 or even 90-10 for God's sake; the point is, that if it works to deter enough people, it is still sales for that company or artist.
The incessant nattering about how you are either infringing or not infringing or either there is infringement or not infringement is just nonsensical. Even if there is piracy and "infringement" (a word that is misused to try to avoid responsibility for theft) and the DRM is defeated, as long as it still works as a deterrent to encourage most people to be honest and pay, it's a success. It need not be perfect to be a success.
People who claim this all or nothing proposition can't then also cite statistics to show there is a "lot" of infringement/theft that also show us...that people still pay. The "all or nothing" proposition is common to geeks who code and manage systems that they believe are defeated if even one percent of the code goes wrong. This is hard-wired into their thinking and they can't see reason on this. Fortunately, the rest of the world uses organic common sense in the real world where nothing has to be perfect to be viable. The flu shot doesn't work 100% to prevent the flu. It has even a certain percent of those will get bad side effects. Yet millions will still get the flu shot because it will prevent the flu for many people.
4. "Take away DRM and you still get sales"
This is one of the hustles that one set of Silicon Valley geeks has tried most strenuously to impose on another set of geeks in Hollywood. And because geekdom is one tribe, they make their argument to some extent especially as the first set of geeks are willing to thunderously pat on the head the second set of geeks and give them kudos and tribal approval if they "agree". But it's still highway robbery.
And it's not true. The theory is that if a consumer gets to an i-tunes page and sees a pay wall that he can't defeat or a Youtube that he can't copy easily, he will be frustrated and then go to a torrent site using handy Google searches. Sure, some percentage of the kids do that. But not everybody. Some people come to a pay wall and...they pay. And they don't mind paying. If 60% of adults pay and 30% of youth pay, that's payment. That's how the industry survives.
5. "Sales come to you even when you give away content and you should give away more to get more sales or tips."
This is one of the most idiotic shills of the copyleftists and one they never submit to scrutiny or transparency. Cory Doctorow makes this claim, but he never publishes his spreadsheets of income showing how many book sales he really makes. Little Brother has an Amazon ranking of 10,040. Not exactly a barn-stormer. When Cory Doctorow presents us the spread-sheet of his income, or allows some credible, impartial authority to examine his books, we might see if this works even for him, but I bet it doesn't.
David Pogue, the gadget-writer of the New York Times, famously took on a bet from Kevin Kelly of Wired, who is happy to describe the Internet as communism all on his own, that if he gave away his book for free, he would sell more copies of other books plus even that one. Pogue then never came back to report what happened. I suspect it didn't work.
This shill works for a few high-profile writers who make their living just as much from lecture fees and consulting, like Seth Godin, as they do from their free book shills -- even as they get $25 in a train station book store for their glorified magazine articles in the business section.
It certainly can't work for musicians. A.J. Keen, in Cult of the Amateur, followed through on some of the MySpace and other social media bands and found that they couldn't keep themselves in pizza money. Lesser-known musicians who do concerts for fees, even in bars, and sell their CDs to enthusiastic fans who want to support them will still see some of those fans drain them of revenue with copying -- and can't survive unless they take on a punishing concert schedule that not everyone could sustain because of competition.
6. "Putting out free content with Creative Commons licenses enables people with custom orders to find you and you can make a living".
I had a poll on my Second Life site at secondthoughts.typepad.com asking people whether they used Creative Commons "licenses" and whether they thought it helped them get business. Given the high level of fanaticism that "openness" *does* perform these miracles, you would expect I would get a huge number of people -- a majority -- who claimed that CC worked, because they would be motivated to answer the poll.
But in fact, it was roughly one third that found that to be true, and one third that didn't care and would let regular copyright law protect them, and one third that specifically said it did not help them to make sales. Unfortunately, Vizu discontinued their free polls (not surprisingly) and they aren't archived anywhere so I will have to start them over again. I ran that poll for years and the numbers were pretty much the same.
The silly thing about that idea is that a system of payments and especially micropayments would accomplish the same thing. If I see an item that is available for purchase and I buy it and display it, that person who wants a custom order sees it just as much as if I copied it. Buying displays things, too. If I see a photo under copyright with a message that I can go to Getty to purchase the image, I go to Getty. In fact, I think Getty should make payment more automatic on site rather than making you go have a separate relationship and transaction with them, usually not automatic but by email, and that if they don't do that, eventually the business that figures out how to get payments and photos merged on social media sites and mobile aps will put them out of business. And that is coming soon.
Sales distribute the news of your quality just as much as free copies. To be sure, free copies might distribute *more* news. But that distribution on more amateur sites on a very long tale isn't necessarily going to come to the attention of that big buyer with the jingle order or that customizing customer. You don't need Creative Commons to put the news that your item can be copied for attribution or paid for if used commercially on your site. That's what Internet linkage is for. Internet linking should make Creative Commons completely irrelevant and obsolete.
And it's also intellectual dishonesty to go on assuming people will support the entire collective farm of Creative Communism -- the remaining oligarchs and wealthy people not destroyed by communism yet! What a plan, hoping for your rap video that you give away for free will pay your bills because some rich guy might be willing to pay you for a TV ad jingle. Like TV isn't undermined by the freeness of the Internet? Like that advertising with that jingle reaches less and less people on TV? It's just not a plan for the industry and it's really disingenuous -- expecting some oligarch somewhere will remain to bail out your communism even as you make it impossible for his industry to exist with your piracy.
7. "Streaming with licensing is now the way to go, many people will pay the low-cost premium subscriptions".
For one, streaming that people are willing to pay for, even if only $3 or $7 a month or whatever, gives the lie to the idea that "information wants to be free," because information wants to be paid for, and services that need to get their own bills paid are willing to charge for it -- and get for it.
The copylefists thought, when they began shattering the inherency of commodification in digital property, that they had achieved a forcible "business model" for the content industry: give away everything for free or die. Give away everything for free *to us* or we will kill you. Give away everything for free, and then hope...for concert fees or t-shirt sales or 360 deals with merchandising of t-shirts and coffee cups at Duane Reade.
But instead, streaming services came along, which confounded the copyleftists because people paid for them OR they put up with the ads in the free version.
But, once again it's A.J. Keen who has explained to us that for artists, the streaming solution isn't paying them a living wage. And the reality now is that people like Taylor Swift hold their hits back from the streamers for a period while they make their first millions because giving it to the streamers means they don't make sales. Do the math, as they say, don't engage in wishful thinking about how stone soup will magically make the vegetables appear from people who are only good at stealing them and not growing them.
8. "You can't stop copying so you should just find a new business model."
The "new business model" snark is particularly silly because the industry has in fact already tried various things for their "new business model". They've tried removing DRM in some places; they've tried making payment easier; they've tried streaming; they've tried licensing and with Youtube and letting the masses view for free, like on the old radio station model. But none of this helps their falling revenues and none of it is enough -- piracy still harms them when it could be reduced and mitigated.
The real people who need to get a "new business model" are pirates. They hijack content and sell ads on other people's IP. That's not only despicable, because the rate of clicking and conversion is not so great for these types of sites with their cheapy spammy ads, they have to get more and more intrusive and cheap and spamming and people just stop going to those sites, they're so annoying. Only the most persistent little script kiddie with the time to keep trying to get rid of all the malware and browser hijackers and adware that come from visiting torrent sites will keep using them.
History shows again and again that piracy is not a business model. Piracy invades every new form of transportation for a time and seems inevitable and incurable. And each new form of transportation has eventually shaken loose pirates by introducing better forms of security, inventory control, payments. When was the last time you heard of a train robbery or piracy anywhere but Somalia, really? Don't edge-case. Piracy forms are beaten back in every age by increased security and inventory control and better forms of payment, and they will be on the Internet as well.
9. "Because I can, it must be okay."
This argument doesn't fly in real life -- you can open up an unlocked door and steal somebody's belongings, or steal a car where the key was left in the ignition "because you can". You would still get arrested and go to jail for doing this.
But because the technology of the Internet enables you to copy easily -- indeed, this was hard-wired into it deliberately by Tim Berners-Lee and other pioneers -- pirates think that they are exonerated.
10. "Copyright and anti-piracy laws are poorly written."
No, they just prosecute copyright violation and piracy so copyleftists and pirates will never, ever like them.
Every person who keeps nattering this, even after heavily revised bills like SOPA that in fact had the benefit of every technological input in the country, including from Eric Schmidt, CEO of Google, has to be confronted if they refuse to put up their own draft of a bill they *would* accept. At least the copyleftist congressmen serving Silicon Valley have gone through the fake motions of doing that.
11. "Any copyright/anti-piracy law will chill free speech and wield too large an axe against the innocent or the casual users and not reach the real culprits."
Nonsense. The reason why you have adversarial lawyers, judges, and juries in the independent judiciary we have in this liberal democratic state of America is to prevent just that sort of thing. The shrill hysteria around SOPA and claims it would "chill speech" amounted to claiming that publication of links to piracy sites is speech, and not accessory to a crime. The claims that it chilled legitimate jazz reviews on a site like dajaz1 are pretty lame when we go look at the site and see it filled with youtubes that were swiped from their owners.
Nobody has ever successfully pointed to a copyright lawsuit or piracy case that actually chilled free speech. That would not be Kim Dotcom or a half dozen other famous ones I've covered here. None of these people were Martin Luther King or Gandhi let alone Michael Moore. No one's political or cultural speech was hampered by the fact that they were stopped from selling ads on other people's content.
The notion that a link is an artifact of free speech and not a crime accessory is one of those fictions that the Electronic Frontier Foundation has worked very hard to create to hang their entire argumentation upon. No one has ever shown us convincingly that political or personal speech is harmed by the inability to torrent.
12. "People who download illegally are the biggest buyers of content as well, therefore, don't worry about illegal downloads and stop putting in DRM".
This is one of the dumbest arguments I've heard lately -- but its proponents very slyly but ultimately stupidly think that the listener will be wowed by this "seemingly contradictory" factoid and shut up.
But pirate-buyers who also pirate are not the sole source of income from the music industry. If they were, they might make a case. But they aren't. The 60% of adults and 30% of youths who don't steal are holding up the music industry, not the 2% or 10% or whatever the power curve numbers are for the pirate buyers. Notice the much-vaunted studies at Columbia University don't give us the numbers of that spread -- what percentage of overall sales over time those pirates make up.
The proposition then, if these "cunning" but stupid types would admit it, is this: "give away music and we'll pay you sometimes when we feel like it if we're in a good mood". That's not a model to sustain the music industry, and the content producers have to go on using a variety of strategies, from DRM to streaming to pay walls to prosecution to stay in business. And that's all okay.
Columbia University is a home of leftist studies like many other universities these days -- Tim Wu, one of the biggest proponents of the "open Internet" is there as are others with the same copyleftist views. The studies are based on *self-reporting*. We're to believe the self-reports of pirates?
Industry could put markers -- it could just be a serial number of UUID on the digital content -- and track it around the Internet. See where it ends up on pirate sites. On Youtube. On people's blogs or sites. And how many sales it generates. They can just take the next generation and track those particular new numbers they want to track. Can crackers alter the numbers even of digital labelling not meant to serve as a DRM? Oh, I don't know. Sure, hackers get at anything. But it can be an experiment that would be devised to test that "self-reporting" of the people you can't trust -- the pirates. So it's like blood diamonds. You don't attempt to search for and stop the ones being smuggled. You do another thing -- you try to stamp the good ones with a marker to trace them.
Ultimately, all the argumentations here that we're still hearing in this day and age from copyleftists are bankrupt and intellectually dishonest. None of the supposed "business model changes" are viable. None of them are going to work exclusively. The content industries have to use a variety of strategies -- and will go on doing so. One of those strategies has to be prosecution and that means effective legislation as the DMCA takedown is a burden on artists and laughed at by Google, trying to undermine it with its "Transparency" reports.
There are rumours of the SOPA drafters coming back. Good! In my next post I will write a list of strategies they should use this time to prevail.
Pieter Hulshoff
@PieterHulshoff
CatherineFitzpatrick
@catfitz
Recent Comments