Tuesday, May 18, 2010

Information, Culture, and Rights

Here is a big chunk of a blog posting by Cory Doctorow on the Guardian newspaper site:
"Information wants to be free" (IWTBF hereafter) is half of Stewart Brand's famous aphorism, first uttered at the Hackers Conference in Marin County, California (where else?), in 1984: "On the one hand information wants to be expensive, because it's so valuable. The right information in the right place just changes your life. On the other hand, information wants to be free, because the cost of getting it out is getting lower and lower all the time. So you have these two fighting against each other."

This is a chunky, chewy little koan, and as these go, it's an elegant statement of the main contradiction of life in the "information age". It means, fundamentally, that the increase in information's role as an accelerant and source of value is accompanied by a paradoxical increase in the cost of preventing the spread of information. That is, the more IT you have, the more IT generates value, and the more information becomes the centre of your world. But the more IT (and IT expertise) you have, the easier it is for information to spread and escape any proprietary barrier. As an oracular utterance predicting the next 40 years' worth of policy, business and political fights, you can hardly do better.

But it's time for it to die.

It's time for IWTBF to die because it's become the easiest, laziest straw man for Hollywood's authoritarian bullies to throw up as a justification for the monotonic increase of surveillance, control, and censorship in our networks and tools. I can imagine them saying: "These people only want network freedom because they believe that 'information wants to be free'. They pretend to be concerned about freedom, but the only 'free' they care about is 'free of charge.'"

But this is just wrong. "Information wants to be free" has the same relationship to the digital rights movement that "kill whitey" has to the racial equality movement: a thoughtless caricature that replaces a nuanced, principled stand with a cartoon character. Calling IWTBF the ideological basis of the movement is like characterising bra burning as the primary preoccupation of feminists (in reality, the number of bras burned by feminists in the history of the struggle for gender equality appears to be zero, or as close to it as makes no difference).

So what do digital rights activists want, if not "free information?"

They want open access to the data and media produced at public expense, because this makes better science, better knowledge, and better culture – and because they already paid for it with their tax and licence fees.

They want to be able to quote, cite and reference earlier works because this is fundamental to all critical discourse.

They want to be able to build on earlier creative works in order to create new, original works because this is the basis of all creativity, and every work they wish to make fragmentary or inspirational use of was, in turn, compiled from the works that went before it.

They want to be able to use the network and their computers without mandatory surveillance and spyware installed under the rubric of "stopping piracy" because censorship and surveillance are themselves corrosive to free thought, intellectual curiosity and an open and fair society.

They want their networks to be free from greedy corporate tampering by telecom giants that wish to sell access to their customers to entertainment congloms, because when you pay for a network connection, you're paying to have the bits you want delivered to you as fast as possible, even if the providers of those bits don't want to bribe your ISP.

They want the freedom to build and use tools that allow for the sharing of information and the creation of communities because this is the key to all collaboration and collective action — even if some minority of users of these tools use them to take pop songs without paying.
I am bothered by the fact that in my lifetime I've seen copyright "rights" extended, and extended, and extended. I'm horrified by the RIA that has sued its customers and terrorized innocent users of recorded material. Owners of "dead stars" make more money from the personality that the star did in their lifetime. That is fundamentally wrong.

And here is an example of "rights" gone wild. On one hand the White House wants to bolster their Supreme Court nominee by making her Ph.D. thesis available and on the other hand we have a PR flak (a "University Archivist and Curator of Public Policy Papers" who is in reality acting as a PR flak) for Princeton University claiming "IP rights" for a published thesis. This is from a posting by Brad DeLong:
Garance Franke-Ruta:
Kagan theses to be available online: The White House announced Monday that it would make Supreme Court nominee Elena Kagan's Princeton senior thesis available for online publication. Her Oxford graduate thesis would also be made available for online posting, a White House official said, as "a demonstration of our commitment to transparency." Permission... will be granted when the White House sends the Senate Judiciary Committee Kagan's responses to questions from the panel about her background.... Princeton University had sent news organizations and blogs copies of the thesis for research and personal use purposes -- hence the many excerpts from it in news stories -- but objected when a conservative blog posted the full document online late last week. The university... [said] Friday that only Kagan could give that permission because she was the copyright holder on the 1981 document detailing the collapse of the Socialist Party in New York.

Asked by The Post for permission to publish the document Friday, the White House said it would review the matter. Other major media outlets also requested permission last week to publish the paper. Access to the senior thesis... threatened to become a point of controversy after conservative blog RedState.com published it online Thursday, only to receive a letter Friday from Princeton demanding that it be taken down. RedState complied, but over the weekend liberal blogger and economist Brad DeLong also objected to the university's stringent defense of its former student's copy rights and published the thesis, sparking anew attention to the question of why Princeton was seeking to keep the full document out of the public record.

Blog Infidels Are Cool also had published the thesis Thursday and on Friday a Washington state man uploaded it onto Scribd, further demonstrating the difficulty of keeping documents off the Web once they have been formatted electronically, especially in a media environment in which small, nontraditional outlets routinely flout copyright laws and citizens have access to powerful document-sharing technology. By opening access to the theses, the White House seemed to be signaling that it recognized the theses would be less of an issue -- conservative bloggers have seized on the Princeton thesis to argue that Kagan, and by extension Obama, are socialists -- if made freely available to the public.
I have two points:

First, as I wrote before:
Elena Kagan's Undergraduate Thesis: UPDATE: Elena Kagan's thesis does not seem to have brought any clarity of thought. Interpretations of it seem to depend on whether the phrase "those who" (in "those who, more than half a century after socialism's decline, still wish to change America [in a radical way]") means "people like my advisor Sean Wilentz and my brother" or "people like my advisor and my brother and me."

I believe it is much more likely than not that "those who" carries the first meaning. Remember, she was crafting the thesis to resonate with those who would grade it--with Sean Wilentz and his colleagues. I think it highly probable that if she had placed herself among "those who" she would have used a different phrase: "we who."

I think that her takeaway from her thesis was Clintonian (and Obamaian): radicals in America need to shut up, take their place at an oar, and row like hell for minor reformist victories.

The thesis is, I believe, mostly an argument against Glenn Greenwald and his fears that Elena Kagan is really John Roberts in disguise...
Second, Princeton's letter:
Daniel J. Linke of Princeton University Writes to Erick Son of Erick:

From: Daniel J. Linke
Subject: Kagan senior thesis copyright violation
Date: May 14, 2010 3:04:42 PM EDT

To: contact@redstate.com

Dear Sir or Madam:

It has been brought to my attention that you have posted Elena Kagan’s senior thesis online. (See: http://www.redstate.com/erick/2010/05/13/breaking-we-have-elena-kagans-college-thesis/) Copies provided by the Princeton University Archives are governed by U.S. Copyright Law and are for private individual use only. Any electronic distribution is prohibited, as noted on the first page of the copy that is on your website. Therefore I request that you remove it immediately before further action is taken.

Please notify me as soon as possible that you have removed it from your web site.

Sincerely yours,
Daniel J. Linke

University Archivist and Curator of Public Policy Papers
Seeley G. Mudd Manuscript Library
Princeton University
is misleading in two respects:
  • it does not say "electronic distribution is prohibited without the permission of the copyright holder, Elena Kagan"; it says "electronic distribution is prohibited."

  • it does not say "I request that you remove it or we will inform the copyright holder, Elena Kagan, that you may be in violation of her copyright"; it says "I request that you remove it immediately before further action is taken."
I don't think that either of those misleading statements is misleading by accident.
Go to the original posting to get the embedded links.

In short, the insanity of declaring "rights" to cultural information has gone beserk. There is no commercial value in Elena Kagan's thesis. There is no reason for Princeton to prohibit distribution. This is simply a bureaucrat throwing his weight around. But it "chills" the sharing of cultural information. President Obama wants to release the information -- and presumably Elena Kagan as well and she is the real owner of the IP -- but some petty bureaucrat is saying "no! no!" and using fear of a legal lawsuit to "protect" IP for which he has no rights.

A similar bit of nonsense goes on with YouTube with companies demanding takedowns of material to which they claim "rights" that they really don't have. But the lawyerese they use scares off ordinary people.

Culture is shrinking. When I was a kid, you could expect to have open access to cultural creations within a generation of an artist's death. Today, that "free access" continues to recede into the dim future. Sad.

Now... to present the other side of the argument which I support (from BoingBoing). Yes, I'm both for free access and IP (Intellectual Property) rights that must be paid for. I'm trying to find a middle ground. Here's a wonderful argument for paying for access to IP. First, the "information needs to be free" claim:
From: [redacted]@[redacted].com
Sent: Friday, May 14, 2010 6:21 PM

To: Nicolas Chartier

Subject: Hurt Locker lawsuit

Dear Mr. Chartier,

I have recently become aware of Voltage Pictures' intention to sue thousands of people who are suspected of having used BitTorrent to download films produced by your company.

I wish to register my disagreement with these tactics, and would like you to know that as a result of these actions I am boycotting your films. The majority of the people you are suing were not seeking to make money from their downloads, and will be financially devastated by a lawsuit or settlement. While it is completely understandable that Voltage Pictures wishes to defend its intellectual property, this is an inhumane way of doing so.

Until Voltage Pictures publicly states that it will not pursue lawsuits for downloading its films, I will not view, rent or buy any films produced wholly or in part by your company. I will urge my friends and family to take the same actions. I do not wish for the money I spend on entertainment to be used against otherwise good people.

Thank you for your time.
Now the wonderful, and funny, but stinging rebuke from the IP must be paid for side. This is from Nicholas Chartier, the producer of the film The Hurt Locker:
From: "Nicolas Chartier"
Date: May 15, 2010 2:30:30 AM PDT
To: [redacted]@[redacted].com
Subject: RE: Hurt Locker lawsuit
Hi Nicholas, please feel free to leave your house open every time you go out and please tell your family to do so, please invite people in the streets to come in and take things from you, not to make money out of it by reselling it but just to use it for themselves and help themselves. If you think it's normal they take my work for free, I'm sure you will give away all your furniture and possessions and your family will do the same. I can also send you my bank account information since apparently you work for free and your family too so since you have so much money you should give it away... I actually like to pay my employees, my family, my bank for their work and like to get paid for my work. I'm glad you're a moron who believes stealing is right. I hope your family and your kids end up in jail one day for stealing so maybe they can be taught the difference. Until then, keep being stupid, you're doing that very well. And please do not download, rent, or pay for my movies, I actually like smart and more important HONEST people to watch my films.

best regards,

Nicolas Chartier
Voltage Pictures, LLC
[address, phone, other personal details redacted]
I actually believe that stealing movies and distributing them for free via bit-torrent is a crime. What I don't think is a crime is to take stills from the film or short snippets and discuss them. This actually adds value to the film and should be viewed by people lik Nicholas Chartier as "free advertising" that will help get an audience for his film. In other words, there is a middle ground. The issue isn't black or white. Cory Doctorow threads the needle. He makes some of his novels electronically available and he recognizes this boosts sales. However, if he sound that it undercut sales, I would back him 100% in lawsuits to stop any illegal copying. But I wouldn't back a blanket "no copying" lawsuit. The public has the right to replicate short bits from the novels in order to discuss it.

I think Cory Doctorow is one of the few people who understands the right balance between draconian IP laws and a wild West of no IP laws.

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