The Spy Draft

The national security letter strikes me as an inherently bad thing. As they exist today, they can compel people and institutions to hand over information, much like a warrant, except that they don’t require a judge’s oversight. A judge is only required to review an NSL if someone challenges the NSL. But here’s the really tricky thing: when you get one, you can’t talk about it. It comes with a built-in gag order. So good luck asking anyone if you have any grounds to challenge it, sucker. For most folks, your only realistic options are to comply or to get arrested. In effect, they force the recipient to become a spy; they must hand over whatever secret information their superiors want, but they cannot reveal their actions to anyone. Brewster Kahle got one, and his experience was not a pleasant one. I don’t want to see that sort of thing happen to anyone.

And how many people does this sort of thing happen to? Well, if we go by 2013 alone… 19,212. That’s how many NSLs were sent out in just one year. Nineteen thousand secret warrants. Nineteen thousand forced acts of spying. And if you think that’s bad, apparently it used to be worse: this article says that between 2003 and 2006, the FBI issued about 200,000 NSLs. That comes out to about 180 secret gag warrants being sent out every single day.

Some folks call modern America a “police state”, but I don’t think that’s quite the right term. It conjures up images of massive overt oppression, when what’s really happening is much more insidious. I propose, instead, that we call our current state a “spy state”. You can’t see who’s watching you, but you know they’re there, seeing everything you do. And life goes on and everything seems normal, until the day they decide they need you, in which case you’d better cooperate, or you’ll just disappear. There is no resisting the spy draft.

Why I Copyleft (reposted from Livejournal)

The following is a slightly edited repost of this LJ post. I’m moving it here for completeness’s sake.

If you look at my personal copyright policy, you’ll see that everything I make is automatically copyleft. Deciding to do so actually took me a bit of time, because there was another option that I still find very appealing: making all of my things public domain. I wanted to do that and I still want to do it, and I shall now attempt to explain why I want what I want and why I’m not doing what I want to do.

But first, what do I mean by “public domain”? There are at least two different definitions for this term.

The first definition of “public domain”, according to the great body of all knowledge, is whatever is not covered by “intellectual property rights” [sic]. This is the definition we’re all probably more familiar with. But there is a second definition. Consider the disclaimer from the bottom of the Crypto Museum’s website. I quote:

“To the best of our knowledge, this site only contains information that is either available in the public domain or that is unclassified or that has been officially declassified. Whenever possible, the source of the information will be credited in the References section at the bottom of each page. In some cases the classification status of an object is not entirely clear because there is no list of classified objects available in the public domain.” (emphasis in original)

Here, “public domain” basically means “not classified”, or, in other words, “known to the public”. If this essay by Crosbie Fitch is correct, then this definition is actually the older one, and I think that it is the more logical definition.

If you disagree, please consider this: what happens when you “publish” something? To publish is to make something known to the public. When something is made public, it is in the public’s realm and under the public’s control. Does this not make it part of “the public domain”? Published material certainly can’t be called “classified”. J.K. Rowling may own the copyright on Harry Potter, but millions of people have read those beloved books, and no one can take the words away from them. Harry Potter is in our hearts and minds, and claiming to “own” the “expressions” in the HP series is ridiculous; how can you own what you have given away millions of times over? So really, all published works ought to be Public Domain. If you want to keep something private (a state which I’m going to call “Private Domain”), then don’t make it public, or in other words, don’t publish it.

Alas, this simple concept does not appeal to monopolists and censors, so they invented “intellectual property” to lock up parts of public knowledge. Within the Public Domain, they created a new state which I shall call the Plundered Domain. The Plundered Domain consists of all public information that others force us to treat as if it were private. It’s an inherently unstable and illogical state of affairs, but people seek to perpetuate it because of the opportunities it gives for control and profit. In our time, the Plundered Domain has steadily grown, swallowing up more and more of the Public Domain. Mike Linksvayer has a good writeup here, showing how the reach of copyright has continuously expanded, entrapping ever greater amounts of information within the Plundered Domain.

So when Zacqary Adam Green post an angry rant in response to an appeals court saying that putting out-of-copyright works back into copyright is totally okay, I don’t get quite as angry as Zacqary, because how can I get mad at copyright for doing what it’s always done? “Intellectual property law” has never served the public; it is a tool for plunderers.

In response to this terrible state of affairs, many people set out to formally reject the principles of the Plundered Domain and make their works truly public. Some declared their work to be “no rights reserved”, some adopted a BSD-style license, and some got really snarky, like Woody Guthrie:

“This song is Copyrighted in U.S., under Seal of Copyright #154085, for a period of 28 years, and anybody caught singin’ it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.”

The trouble is, it didn’t quite work. Microsoft and Apple happily swallowed up BSD-licensed code but neglected to publicize their alterations, instead preferring to embrace, extend and extinguish the free alternatives to their proprietary systems. And poor Woody got it even worse: five different organizations still claim copyright over his songs, hoping to control the music he had sought to liberate.

It was not enough to refuse the Plundered Domain, and it was too dangerous to go against it. The lawmakers would not be denied. People needed a new solution. Then some cheeky folks had a thought: if we can’t afford to ignore the law, and we can’t afford to change the law, and we certainly can’t afford to break the law, can we still subvert the law? Can we use the power of the law against itself?

One of these cheeky folks was Richard Stallman, who created the GNU General Public License. Under the terms of the GPL, you could use information, and modify and share and sell that information, and everything else that you’d be able to if the information were “public domain”, except for privatizing the information. GPL’ed stuff stayed under the GPL for as long as it stayed under copyright. In the words of Rob Myers, it was an “ironisation of copyright law”, taking the means of the law to achieve opposite ends.

Sadly, the GPL wasn’t perfect, so it’s needed two major revisions, but even worse than that was Stallman’s decision to not apply it uniformly. He also made the Free Documentation License (which sounds nice, but Debian rejected it for not being a truly free license, and Wikipedia rejected it in favor of the superior CC-BY-SA) and the Verbatim Copying License, which is brief, simple, and utterly wrongheaded.

But in spite of human flaws and frailties, the principle of copyleft was established, and it has held true. Under the GPL, free software has flourished, with GNU/Linux being the shining star, and under CC-BY-SA, free knowledge and culture have flourished, with Wikipedia being the shining star. The copylefters successfully created a new domain, which I shall call the Protected Domain. Within the Protected Domain, free people can stay free, safe from the grasp of plunderers.

Now, none of this is to say that I’ll never make anything “public domain”. Lots of folks whom I admire have done so. Folks like Peter Saint-Andre and Nina Paley and Mike Linksvayer and Rick Falkvinge and the previously mentioned Zacqary Adam Green. There’s value in releasing stuff under a totally liberal license, and I will do so for some of the stuff I do. But under our current system, I don’t consider that to be a safe default. It’s sad to say it, but we need protection from the laws we live under, and in practice, the best protection has come from subverting the laws to work against themselves.

Perhaps someday, when the Plundered Domain has been destroyed and the Protected Domain is free to be merely Public again, I shall look back on all this with a laugh. For now, I copyleft. You are free to use any information I give you, but not free to take away others’ freedom. And that’s how it should be.

Mark Schultz is a silly man

Over on Cato Unbound, for a discussion of copyright reform, Mark Schultz contributed a response essay: Copyright Reform through Private Ordering. Please read it, because it is the topic of my essay today.

Mark Schultz, like myself, believes in the power and usefulness of “private ordering”, meaning the systems that individuals build for themselves by working together, without any central planning or management. I feel that Pierre-Joseph Proudhon put it best when he said: “Liberty is the mother, not the daughter, of order.” Of course, it is possible to have order without liberty, but if you would have both, then you’d better start with liberty. There are many reasons for this, but I think that the best reasons are the knowledge problem (the central planner cannot possibly know everything they need to know) and the fact that power corrupts (any central authority strong enough to unilaterally establish order will be tempted to establish an order that benefits the authority at the expense of the subjects). For these reasons and more, private ordering beats central planning.

But for private ordering to work, power must be in the hands of the individual actors. No one’s going to bother establishing an order if they know that a central planner can overrule them at any time. The people need to have the power to assert their independence and to negotiate terms with each other. This is where “private property” comes in. If you have a space to call your own, you can make it on your own. Mark Schultz and I are still in agreement here. The example he cites – Susette Kelo defending her home against the city of New London – is very appropriate. Birds have nests, foxes have holes, and humans have private property, and we fight to defend it.

Now how well does this match up with copyright and other forms of IP? Mark Schultz thinks this still applies very well. Here, I disagree. I quote, at length, from Roderick Long:

But ethically, property rights of any kind have to be justified as extensions of the right of individuals to control their own lives. Thus any alleged property rights that conflict with this moral basis – like the “right” to own slaves – are invalidated. Intellectual property rights also fail to pass this test. To enforce copyright laws and the like is to prevent people from making peaceful use of the information they possess. If you have acquired the information legitimately (say, by buying a book), the on what grounds can you be prevented from using it reproducing it, trading it? Is this not a violation of the freedom of speech and press?

It may be objected that the person who originated the information deserves ownership rights over it. But information is not a concrete thing an individual can control; it is a universal, existing in other people’s minds and other people’s property, and over those the originator has no legitimate sovereignty. You cannot own information without owning other people.

Susette Kelo could have defended her own property personally, perhaps with a fence and a shotgun. But there’s no way to do the same thing with information. As I said about J. Neil Schulman’s claims: you’d have to fence off other people’s property to defend your IP.

Now, if private ordering were a reality, IP would already be dead. But central planning is a thing, and the elites have kept IP alive. But since they couldn’t keep it as a form of simple property, they transformed it into a kind of regulation. Cory Doctorow describes the process here:

There is an ancient copyright agreement that Victor Hugo came up with called the Berne Convention that most western nations are parties to. If you read the agreement closely, it seems to make this whole business of blanket licensing illegal. When I’ve asked international copyright specialists how all these Berne nations can have radio stations and karaoke bars and hairdressers and such playing music without negotiating all their playlists one at a time, the usual answer is: “Well, technically, I suppose, they shouldn’t. But there’s an awful lot of money changing hands, mostly in the direction of labels and artists, so who’s going to complain, really?”

Which is by way of affirming that grand old Americanism: money talks and bullshit walks. Where the stiff-necked moral right of a copyright holder to control usage rubs up against the practicalities of allowing an entire industry’s capacity for cultural exchange and use, the law usually responds by converting the moral right to an economic right.

Rather than having the right to specify who may use your works, you merely get the right to get paid when the use takes place.

From property right to collective taxation, so goes IP.

Now Mark Schultz hates regulation, and I can’t say I like it very much, either. He probably hates taxation, too. So it’s no surprise that he doesn’t like blanket licensing:

One potential problem with a copyright reform that views copyright owners as “regulators” is that it may insert government regulators (further) into the copyright industries to ensure that a proper balance is achieved. One problem with this result is regulatory complexity—complexity of the sort that smothers entrepreneurship. The Copyright Act already contains such provisions. For example, Section 111 contains a lengthy and complex compulsory licensing regime for collecting and divvying up royalties from cable television providers administered by the Copyright Office and the Copyright Royalty Board. A resource for documentary filmmakers referred to these “retransmission” royalties as television’s “multi-million dollar secret”, because of the complexity and expense of the process tends to leave out those with fewer resources.

But without those regulations, copyright becomes impossible. If we removed those regulations, then copyright and personal liberty would come into open conflict, and without elite intervention, copyright would lose. To save copyright, we’d have to destroy it…

Mark Schultz tries to strengthen his case by citing the success of Creative Commons and Open Source, but these don’t help his case at all. Creative Commons, as an organization, explicitly sees copyright as regulation, and their aim is to improve it. Schultz mocks the idea of “reform that promotes an abstract and unattainable balance between individual and collective interests”, but that’s exactly what Creative Commons wants. And Open Source? Open Source is anti-copyright. To qualify as open, you have to be really, really liberal about what you let people do with your code. Schultz praises the open source movement for “address[ing] shortcomings in the copyright system through private action”, but when the private action consists of either abandoning copyright or actively subverting it, I have to wonder how big those shortcomings are.

In summary, I agree with Mark Schultz: private ordering can and does fix the problems with copyright. But I disagree with Mark about what the fix would look like, and I think that Mark Schultz is a silly man for not realizing that copyright has always been regulation.

Contra Brin; or, Why patents are worse than secrecy

So David Brin has this article here:
Considering Copyright

It’s got copyright in the title, but his focus is more on practical technology than on expressive art, so discussing patents might be more appropriate. But that’s a minor quibble. His theme is “intellectual property”, and so is mine.

Brin doesn’t like IP very much, and he thinks it’s especially bad these days. But unlike myself, he does not advocate ending intellectual monopoly. He argues that abolishing monopoly would bring back the old practice of pervasive secrecy, which is even worse than monopoly. So although IP is bad, we should try to make it better, because we don’t have a good alternative.

I disagree, because IP has many practical problems that are really hard to get rid of, and these costs tend to greatly outweigh the benefits.

First off, to make the system enticing enough to overcome the allure of secrecy, we’ll have to make it strong and broad. This is expensive and risky.

A great part of the expense (and risk) comes from enforcement. You have to enforce the patent basically everywhere, because any place that can escape enforcement will still be able to profit from the disclosed information. The United States did this in its national infancy, to the country’s great benefit and Britain’s chagrin. China does this today. If we want patents to work, how do we deal with this? One way is to force the rebellious nations to get in line and honor the patents, but this adds considerably to the expense involved, and also the risk: if we start calling in the military for something that clearly isn’t national defense, then it becomes more tempting to call them in for other non-defense issues, and we get creeping tyranny. Of course, there are other ways to punish patent violators besides shooting at them. We could enforce trade sanctions… just like folks did in the days of mercantilism. I don’t recall that working out well. Or we could hide the details of the patented technology from the cheaters… but then we’re back to secrecy, which we were trying to avoid.

Then there’s the matter of qualification. Which inventions deserve special status? Since the point is to combat secrecy, we should only select non-obvious inventions. But how do we determine what is obvious and what is obscure? Who is to judge? Here is another expense, and another great risk. Whoever’s in charge of judging patents possesses great power, and with great power comes great opportunity for favoritism and graft. When the controlling power is corrupt or incompetent, then greedy folks can get patents on obvious technology and plunder at will.

In practice, this disclosure thing isn’t working out, so much so that this article calls disclosure a “myth”. Furthermore, the historical record goes against Brin’s theory of encouraging disclosure. By that theory, we would expect to see IP law put into place before a period of innovation. In practice, we see IP law put into place after a period of innovation. The lawmakers create these privileges not to encourage new progress, but to exploit existing progress. The people who demand these laws are usually people who have lost the capacity to profit from secrecy, and so they are looking for a legal privilege to replace their lost competitive advantage.

We do not need an “innovation” like IP to encourage creativity. We just need honesty and laissez-faire.

A Law for Nobody

Imagine that there is a law, and that the officials require everyone to obey this law. I suspect that this isn’t hard for you to imagine. But now imagine the following reactions to this law:

1. Many people choose not to obey this law. In fact, about a third of the population chooses to willfully disobey.

2. Many more people just don’t care about the law. In fact, about half the population thinks that this law is a bad idea, and that it should be fixed, or repealed.

3. Everyone breaks the law without knowing it. The entire population. The law is so difficult to follow that no one can avoid breaking it.

Amazingly, this law is not a drug law (although I suspect that these numbers might be applicable to a great many drug laws).

If you’ve read any of my previous posts, then you can guess that I’m talking about my old favorite, copyright/IP law. And here are my sources for those numbers:

1. Bastille Day Bulletin: Nearly One-Third Of French Citizens Storm The Gates Of Online Piracy
The bulletin notes that the number of violators might be even higher, to say nothing of the rest of the world.

2. Study: Half Of All Young People In UK Think Digital Content Should Be Free To Download
Note that the study described here suggests that the numbers in the USA might be even higher.

3. Now this is the fun one. Go read Infringement Nation: Copyright Reform and the Law/Norm Gap or just watch this video by Tom Bell. Consider the infringing actions listed therein, and ask yourself how many you’ve done today.

In other words, we have a sizable minority that’s completely opposed to IP law, a slight majority that’s mostly opposed to IP law, and an absolute totality that’s constantly breaking IP law. By themselves, each of these factors are sufficient to compel us to re-examine IP law. Taken all together, they should compel us to revile IP law. Right now, the law is helping nobody.

The Revenge of Jack Valenti

Techdirt reports that the Supreme Court has just outlawed Aereo.

This is bad, folks. This is really bad.

If you’re wondering why this is bad news, I recommend you head back to Techdirt and check out some of their other posts, including these two:
Why Do So Many People Describe Aereo ‘Complying’ With Copyright Law As The Company ‘Circumventing’ Copyright Law?
Broadcasters’ Lawyer Lays Out Every Bogus Trope Possible Against Aereo

As far as I can tell, this decision rejects a lot of well-established precedent (making a mockery of the so-called “rule of law”) and ignores a lot of technical details (details that the consumer is not allowed to ignore; remember that breaking DRM is illegal even if the DRM is preventing you from doing perfectly legal things) in favor of handing more power over to the “content creators”, meaning the publishing and broadcasting companies. Now, ignoring the letter of the law is not something I necessarily oppose; the “rule of law” is not a good concept, and there are times when you should set aside the letter of the law to better fulfill the spirit. But consider the spirit that the Supreme Court has established here. It appears to me to be a spirit of control, dictating who can record and view the broadcast companies’ precious signals. It looks to me like a spirit of assumption of guilt. Consider this excerpt from the official decision; after the court notes the technical differences between Aereo and cable, it dismisses them:

But this difference means nothing to the subscriber. It means nothing to the broadcaster. We do not see how this single difference, invisible to subscriber and broadcaster alike, could transform a system that is for all practical purposes a traditional cable system into “a copy shop that provides its patrons with a library card.”

In other words, because Aereo feels like cable, it must be cable.

If that still doesn’t strike you as awful, consider this hypothetical. Someone makes a car that looks a lot like a plane, and designs the controls and driver’s seat such that driving the car feels a lot like flying a plane. But it can’t fly; in fact, its “wings” are spoilers that push the car into the ground, and its engine is within street-legal limits so it could never provide enough thrust to get off the ground, and so on. Of course, the reason the car looks and feels like a plan is because that’s its selling point – the car maker advertises the special car as “feeling just like flying!” The FAA catches wind of this, takes a look at the car, and says: “This is a plane. You need a pilot’s license to operate it.” “But wait!”, the maker protests. “It can’t fly at all! It’s within legal limits and safe for street driving, and I can prove it!” “Doesn’t matter”, the FAA replies. “It looks like a plane and feels like a plane, so it’s a plane.” And so the special car never takes off (pun intended), because it’s useless as a plane but you have to have a pilot’s license to drive it.

This is what the Supremes have done to Aereo. They have ruled that perception trumps reality. Sorry, Aereo, but you make the cable companies feel bad, so you have to go.

But this is nothing new in IP law. Techdirt has another good post on this subject: The Bizarro, Fact-free World Of Copyright Policymaking. The crux of that post is that when it comes to “intellectual property” law, evidence doesn’t seem to matter at all. Everything is based around perception. If sharing a file feels like theft, then theft it must be, even if this defies sound information theory and negates the concept of freedom of expression.

Jack Valenti and his co-conspirators failed to kill the VCR, but they never give up in their fight for control. And why should they give up? By the time the Betamax came around, they had already captured the cable companies. And now, though Jack is dead, his spirit lives on, and his successors have captured Aereo, and they’re probably going to kill it, because Aereo dared to offer a service that they didn’t control.

Don’t let the hype fool you, folks. We may have the freedom to complain, but we don’t live in a free country. The elites make the rules for their own benefit, and Valenti cackles from the grave.

Still disagreeing with J. Neil Schulman

A short while ago, before formally quitting Livejournal, I wrote a post in which I took J. Neil Schulman to task for his pro-copyright position (I’ve included the full text below the cut). Since writing it, I’ve had a few thoughts that I’d like to add to it.

First off, one thing that I wanted to include, but couldn’t find a place for, was a link to this response to J Neil Schulman by Kyle Bennett. Kyle opens up with this quote from Neil:

For now I would be entirely satisfied if libertarians and anarchists recognized my property rights in the things I create and respected my right to license copies, using no other enforcement mechanism than social preferencing.

He then makes this observation: “”Rights” to me, and I think to a lot of people, implies things that are legitimately addressed by force.” This, I believe, is the crux of the matter.

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