As I looked around trying to find what other First Amendment experts were saying about SOPA, I wasn't surprised to find Brian Rowe, via Chris Pirillo. In this video, Chris, who is notorious to the Second Life community as an SL hater (and for being technically unable to log on to Second Life and function in the virtual world despite his supposed vast geeky credentials), acts goofier than ever and even appears to be stupid about law in general and the workings of Congress. This has to be a pose, right? Except geeks often *are* ignorant about how organic law works in the real world, as they live in the code-as-law embryonic Wired State, running everything via the Internet and computer code and thinking that this trumps many things in real life.
Because he claims to know nothing, he invites in The Experts -- in the form of activist and agitator Brian Rowe, a lawyer and law professor, and his law student. Brian Rowe is a type I've run across several times before in these debates (Benjamin Duranske AKA Benjamin Noble immediately comes to mind) -- a geek whose first academic degree was in science, i.e. computer science/engineering, who actively agitated against copyright for years working with various leftist causes including EFF, and then who got a law degree to assist him in his zealous struggle. I find these kind of zealots to be the most deeply convinced and persistent in their opposition to intellectual property rights and content as a commodity online -- even as they swear up and down that they are for IP because they themselves are content creators. (I guess Rowe has written books or something; Pirillo of course has his whole goofy website and videos and geek social network empire where I guess he mainly makes money off the ad clicks.) But of course, these IP-holders can afford to furiously advocate their give-away open-source stone-soup stuff because they don't actually earn their living from content sales, but from consulting fees, ad revenue, lecture fees, or teaching positions. Nice work if you can get it!
Here are my notes on Pirillo's video interview of Rowe and the law student.
Brian Rowe holds a B.S. in Informatics and B.A. in Political Science, both from University of Washington, and a J.D. from Seattle University. (see what I mean!)
On his website, under his "philosophy" section, Rowe lets us know about his conflicts of interest, and his siding with the cause rather than the client when he has to (a disconcerting choice all its own, given what should be lawyers' ethics -- of course he believes he answers a Higher Law). Rowe starts arguing with these kinds of usual ethical norms:
"These rules do not take into account individuals that are using the law to further a cause and fight for all stake holders instead of just one stake holder,"
This is really devious stuff -- and a good indication of why informatics and polysci geeks make for poor attorneys -- they want to *use the law* -- not apply the law or defend the law -- they have an instrumental view of it which in fact undermines the rule of law. They also believe themselves annointed to fight class action suits everywhere -- and lose sight of the rights of just that one individual -- who, of course, is the foundation of all human rights. There's a kind of legal hubris here -- "I'm going to dump this one client because I'm for fighting for a hypothetical class of stakeholders." I find this philosophy troubling -- it's not really a philosophy of defense of people, but defense of ideology.
Immediately in the video, Rowe then sets the stage for evasion and even cunning obfuscation about the actual law and the actual First Amendment by mendaciously referring to hypothetical cases of implementation of SOPA that will act against "a link to content somewhere".
Er, no, Brian. The anti-piracy law will act against not just "a link to content somewhere" but to *links to sites with pirated content* -- infringers of copyright. It's not just somebody's political speech or some teenager Tumblr blog. It's Pirate Bay. He knows that and we know that -- but he's keeping it deliberately vague so he can get a geek influencer like Pirillo -- already pre-disposed toward hating SOPA without even knowing why just because Cory Doctorow told him to think that.
Anti-SOPA geeks avoid talking about the realities of how SOPA would really be implemented, because if they did so, their scarifying about "links to somewhere" would evaporate. A basic notion of "probable cause" will have to operate as it does anywhere in valid law enforcement. There are restraints within the law, and defenses. Read them!
Rowe claims as anti-SOPA lobbyists always do that someone implementing the law "takes those links and monitors it" and "the government can put together a blacklist." "If you link to them you can end up with copyright infringement problems," he says -- vaguely, and of course mendaciously, because nowhere has he actually said that the target of SOPA is *pirate sites* -- and as I explained -- those with commercial intent to sell pirated content, who possess a certain threshold of it and commit this act within a certain period of frequency.
It's not really hard to figure out what a pirate site is. This isn't a "I'll know it when I see it" matter of taste. Either you have infringing content or you don't -- lots of it, or you don't.
So he's already completely faked up a scary future in which "the government" or platform providers will be monitoring your every email and blog post to see if you're linking to some bad site -- even though that's not what they will be doing. Neither Youtube or the US Government will have the capacity or the will (especially Youtube) to mount a massive trawling and filtering operation that will survey every appearance of a link and pounce on it. That's not how you find pirate sites; it's not how you *have* to find pirate sites -- and of course Chris Pirillo knows that perfectly well as he knows how SEO and traffic to sites work.
Rather, they will seek to cut off the main heavy trafficked sites that link to pirating sites to stop pirating. If a kid comes into a cafe waving a slip of paper with the address of a house where the parents aren't home and tells everyone they should copy down the information and go steal stuff in that house, or -- to be more modern -- Facebooks and IMs on his Blackberry or Android the address of where you can loot that store -- you're not going to be able to claim First Amendment or protected speech. And the law isn't intended to go after every Starbucks squatter with a laptop -- it's about pirate sites and the big businesses that profit from them.
Google was already forced to pay a $500 million fine because it ran ads linked to illegal drug sites. That's the real world even without SOPA. Good! Google couldn't mount the First Amendment defense on that one -- it can't with the intent of SOPA, either.
Rowe continues to say that the states' attorneys general will be given power to step in and ask ISPs or search engines "not to list particular content."
Again, he cunningly elides over the specifics of that content, painting a lurid picture that isn't based in the text of law or legal reference but just his vague agenda-driven conjecture.
But what the AGs will do is come in and tell ISPs and search engines *not to list known pirate sites*. Big difference. That's ok. And it's not hard to detect them. And they won't be failing to distinguish a teenager's Tumblr or Facebook or somebody Etsy craft page from a known high-volume pirate site.
Even without this law, the AGs stepped in and talked to Craigslist, that fought them with lawyers until finally negative public opinion forced them to change their business model, that basically consisted of looking the other way while all sorts of sordid prostitution ads were run -- paying Craig money -- and people browsed for used furniture and read the lurid free sex personals and paid escort offers. Some of those prostitutes got killed, and some of those hooking up on free ads got hurt or robbed. So the AGs acted. Properly. And Craig had to change. This was before SOPA.
Next, Rowe commits his greatest cunning feat -- invoking the notion of all these Fox-TV Wal-Mart shopping Bible-thumping people somehow using this law against "something somebody doesn't like" -- as he mendaciously puts it.
Um, something somebody doesn't like, Brian? No. Again, it's *pirate web pages*. Pages that offer infringing content deliberately, in the manner in which the law defines. Not your blog.
Brian is off and running with the classic ACLU argumentation known since the days of Skokie:
"If you don't like something, the answer is more speech."
Well, sure, if the issue is hate speech -- let's say racist, anti-gay, conservative, etc. speech you don't like. The answer isn't to restrict speech you don't like, but have more speech denouncing it, educating people, arguing, etc.
Er, the answer to *pirate sites* is to have *more pirate sites*, Brian? Or just a blog denouncing them? Really?
Now there's Chris' cue to pipe in with a denuncation of SOPA, based on this totally contrived and manipulative lobbying devoid of actual legal analysis, with airy expressions of "somethings" and "a link" -- and say, "Sounds assanine!"
Now Rowe leaves that line of argumentation that isn't very persuasive because it never touches down and actually explains how the First amendment is violated (as Floyd explains: it isn't), and goes off to a political lobbyist position and a cry for "fairness".
In this mantra -- tried and true from EFF for years -- we are told that "diverse stakeholders" weren't really involved in the law, and that they should have been consulted, and that's why it is "flawed" and even "technically impossible."
"Bring those of us who are experts to the table," he says in a bid to persuade the gullible, the innocent, who might be swayed only on grounds of "inclusivity" or "democracy".
But there's a good reason that the USTR reps don't bring these types of copyleftists to the table. They are not really for protecting copyright. They don't really want to protect it by law or by law enforcement. At best, they want a technocommunist regime -- truly -- that relies on communal peer pressure to force content creators to have a "license" from Creative Commons to assure them of proper crediting -- but which coerces them into then sharing their content for free to everyone who wants to use it -- except those who want to use it commercially.
The problem is that CC doesn't have any license that says "click and use this commercially and pay me". CC decouples itself from commerce -- and that's deliberate. It decouples itself from any kind of payment system which it could have developed by now *because it really doesn't want content to be paid*. They believe it should all be liberated and shared and that magically, like the few espousing this communist ideal, people will be paid. Of course they aren't.
There's another reason why the government doesn't bring in the California Business Model people to the table to help write copyright law -- they are massive infringers of it, deliberately, with their model. It's like having the fox come into the chicken coop.
Oh, sure, you could put together some government task force that had EFF, Google and whomever on it representing this copyleftist perspective. They will pretend, hand on heart, that they are all for protecting IP (perhaps they'll chloroform JP Barlow and put him in a closet so he won't give away the truth about their real position.) But I'm convinced they will endlessly delay and obstruct and dilute and prevaricate and in fact prevent any effective law from being passed. I've seen the prototype of how this works in Second Life politics with the same actors (Mitch Kapor, founder of EFF and Mozilla, chairman of the Linden Lab, which are the creators of Second Life.)
Larry Lessig's Creative Commons is not a legal regime, and not law; it's a really deadly form of peer pressure and propaganda. It has not worked to protect actual intellectual property, but only eroded the concept. It has not worked to get people paid. It's not a model; it's not law; it's technocommunist doctrine.
Rowe invokes an argument I've heard many times from geeks on a variety of subjects but particularly this one -- the Internet makes everything before it obsolete, we need to "modernize" the law.
Um, why? The Internet is not special. It's just a big pipe with a lot of trucks hooked up to it. Yes, you can copy a lot on that pipe. So what? You can rob my house easily too. That doesn't mean we cease to prosecute robberies. Fair use is still fair use. An entire video of a game is not fair use in a game review; only screen shots or clips are.
Next -- now he's totally in political activist mode departing from any law talk, Rowe invokes the horror of "lobbying money". Oh, those evil Koch brothers! But of course, the real lobbying money and mindshare especially on social media comes from Google and EFF and all its related networks -- the anti-SOPA lobby has enormous visibility and the pro-SOPA lobby has little or none. I count...one article in Forbes and one blog on MPAA's site. Seriously.
Rowe evokes a world in which the Internet has transformed human nature and economy (not really possible, of course): "people creating stuff in old entities is no longer the norm, now it's Internet people" he says.
Oh, baloney. All those lobbying groups in the movie, book, acting, etc. industry are still creating stuff and they are still the norm. Most of the content viewed on Youtube isn't some precious indy film about social justice in America; it's entertainment music videos and movies created by mainstream corporations. A mash-up isn't "innovative" -- it's just a mash-up. It wouldn't exist without first those mainstream corporations producing the original content and investing huge amounts in it.
There's actually very little original artistry. Second Life, again, gives you the prototyping machine and the miniature window on to this phenomenon: many people simply swipe photos or textures or designs from the Internet and incorporate them into "original" Second Life houses, clothing, cars, etc. Few actually sit over a Photoshop or a Blender and actually hand draw or design completely fresh material.
Despite the fact that the overwhelming majority of online "content creation" is derivative, Rowe claims falsely, "We're no longer passive automatons, we're the creators, and we don't have a stake" in the drafting of the law.
I'm the first to proclaim how we're no longer passive automatons, and I did this 12 years ago while Rowe was probably still scribbling in his Informatics class. But I recognized that underpinning our ability to "no longer be passive" were powerful content companies that created the tools *and the content building blocks* to enable us to do this, for example, with the Sims (offline and online). This is even more visible in Second Life.
Rowe proceeds -- again, completely knowingly and mendaciously -- to say that "ICE decided to take down some websites" -- without explaining that this act was legitimate, about unlawful sportscasting that was STEALING as I explain here.
He then implies that when ICE does this, they are too blunt an act (although they have acted legitimately in many cases) -- they took down what they "thought" were large infringing sites -- major rap review blogs. Rap artists send them to files.
So here you have this "ludicrous" case of "lawyers going to DOJ and asking to pull down websites that rappers themselves sent to bloggers."
Um, ok. Maybe they made a wild miss that time. Of course, I'd like to hear LOTS more about this. Do ALL rap artists send free stuff, or just wannabees and hopefuls? I see some rap artists in fact pretty heavily pursuing illegal uploads of their stuff on Youtube. Others put it up for free, but they have sales and ad clicks in high enough volume that lets them be magnanimous. Not every musician does -- and that's the Big Lie that the copyleftists tell.
There's an operative point here to be made as well: if ICE mistakenly prosecutes a site where the rappers sent in free music (if that's true), then...the truth comes out easily. The site goes back up. No harm, no foul. If they lost a few days of ad-clicking, um, terrible, terrible, but then, I dunno, they can sue for damages. This is not the norm; this is not going to be the norm, because the law is intended to go after sites that are pirates. And law-enforcement has to get a warrant for this as they do now. Even if they won't get a warrant in some instances ultimately they will still have to defend their actions in court.
These actions all take place in a context of high media visibility, vigorous activist law-faring lawyers like Rowe, lobbyists like EFF, and of course Google. I'm really not worried about poor black rappers getting crippled and silenced by SOPA. SOPA will make it possible for poor black rappers to stop being ripped off at home and in China and Russia.
Rowe really goes off the deep-end at the end of the interview, acting as if "fair use" won't be a defense and as if there aren't other defenses in the bill (technical infeasibility; economic hardship). He claims book reviews, even your karaoke at your birthday party is going to get blacklisted and get you hammered.
"Which idiots are supporting this bill?" says Pirillo helpfully at this juncture, incited to the max.
"Content owners," comes the answer. And then ""We are all content owners and content creators" comes the mantra -- although what we really are, most of us, are content mixers and copiers, and ad-clickers.
Rowe tries to incite indignation, nonetheless: "Groups who have bought content from others -- middle men trying to maximize limited rights, but don't have concern for us, the artists."
Of course, there's nothing wrong with middle men helping you sell your content. Most musicians and writers still seek this, if they aren't part of, oh, O'Reilly's geekosphere. There's only relative handfuls that can work directly with customers and the incredibly treadmill of social networking, constant concerts, constant sales hypes to sell their CDs is a very wearisome and low-margin proposition -- I know because I watch some of my favourite local musicians wear themselves out on this treadmill and I see its costs.
"Their business model is undermined by the Internet, so it's an attempt to re-entrench themselves," says Rowe airily.
Well, actually, no. The business model that is undermined by SOPA -- which in fact will strengthen the next iteration of the Internet -- is the California Business Model -- let people join for free and upload first, and force IP holders to chase the company with DMCA takedown notices.
Now Brian winds up for the big pitch -- the "SOPA breaks the Internet!!!" cri de coeur:
SOPA "violates" the "norms of sharing information."
The notion of sharing links of all sorts -- although, of course, what's meant here are *links to pirating sites*.
All you have to do to blow this argument out of the water is to invite the geek to try to apply these airy collectivist notions to the malware site. Geeks don't think sharing links to malware sites is cool; they block people who do that ruthlessly. They block such sites ruthlessly. They do overkill in blocking such sites as they are willing to accept specious, politicized reports of alleged malware in their geeky systems, as I've found. Geeks hold it as an absolute religious truth that you fight malware and you don't allow links to it and hijacking sites that force people to it. You combat this.
No geek would ever accept a First Amendment argumentation about malware sites; they wouldn't say that banning malware distributors and linkers as "a chill on free speech" and "speech that somebody doesn't like." That's because it hurts them in their own little realm of code in their narrow understanding of things. it's just that they don't stretch their tiny horizons to grasp that infringing content sites are exactly the same thing. They are crimes. They are morally wrong. The community should stop them. Same with illegal drug sites. But given the lefty/libertarian/nihilist mindset of the average geek, only malware out of all those bad things that are crimes strikes him as being actionable.
But no, Rowe says blocking search results leading to pirate sites is "screwing with the DNS system" -- although he'd never say that about malware sites. "The credibility of linking to sites" is undermined," he intones somberly -- although he'd never make that argument about malware sites or sites with zillions of pop-up ad-ware invading your computer.
"Don't use a hammer on Pirate Bay," he says. But why not?
If you don't let people upload game videos for video game reviews -- readers won't buy the game, is the argument there. huh? Fair use is fair use -- a portion. You don't need the whole thing, and of course readers will buy the game. The video game business may be declining, but there are many more purchases from the demographics that Chris and Brian represent of boxed games or MMORPG subscriptions than of music CDs or movie CDs. Wonder why? Because the geeks in the game biz really lock down their stuff tight.
"There's another way to accomplish it," says the law student. Oh? How? they never say. They point to a website that they say has adequate model laws, which I'll definitely examine, but I'm hugely skeptical, seeing the bad faith and mendacious ploys used in the debate so far.
Chris, trying to leverage the "masses" of his own audience (which is at least 8,000 people who viewed this relatively dull video), tries to get a prescription for action out of this wonk. He says -- without mentioning any First amendment! --
1. show content on their site that could be pulled
2. stress "out of date" concept
3. we need better proposals and have a "dialogue"
All fake, and all lies. The content they are showing that could be pulled wouldn't -- it's about pirate sites. Laws aren't so hard to update and in fact *are* being updated -- it's just those with an ardent believe in the Internet as an Autonomous Zone instead of a normal human marketplace are getting a wake-up call to reality.
And you can't have a dialogue with people who don't in fact value copyright or IP and claim even with their own content that it should be given away to make money.
"We haven't had a rational intellectual property law passed," whines Rowe -- as if everything he has said up til now is rational, and not a lie.
Let me say this: I hope we're about to!
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