Apple vs. FBI – The Spy Draft Marches On

Apple has sent out a letter declaring the need for encryption, and lots of people are talking about it, and fortunately for us, some of those people are intelligent and moral. Check out Bruce Schneier’s post, especially all the good posts he links to, like Julian Sanchez’s editorial and the EFF’s summary of the situation. Schneier doesn’t link to Techdirt’s takedown of the DoJ, but I won’t hold that against him.

As Schneier so aptly puts it, people are seeing this as “Apple privacy vs. national security”, when really, it’s “National security vs. FBI access”. To quote Julian Sanchez:

These, then, are the high stakes of Apple’s resistance to the FBI’s order: not whether the federal government can read one dead terrorism suspect’s phone, but whether technology companies can be conscripted to undermine global trust in our computing devices. That’s a staggeringly high price to pay for any investigation.

Once again, government forces are pushing for measures that will make all of us less safe. And once again, they’re forcing people and companies to cooperate with them. It’s spy draft 2.0, in which you must not only hand over information, but also perform labor, and build a world where infiltration and surveillance are permanently easy.

This must not stand. Do whatever you can to oppose this. Support organizations like the EFF and EPIC that fight against this. If you buy Apple, let them know that you love what they’re doing, but that you and your dollars will leave them if they give up the good fight. And tell your elected officials to make the FBI (and every other three-letter agency) stop fighting against real security in our technology.

This is a fight worth fighting. Resist the spy draft.

The Illusion of Guilt

There is a sickness in our minds, and it runs deep. It is a desire to force the facts to fit our opinions, rather than force our opinions to fit the facts. This madness is especially dangerous when the facts in question are related to crimes and justice. Our institutions have a terrible tendency to force people to appear guilty instead of determining whether or not they actually are guilty.

One area where this tendency manifests is in the way cops interrogate suspects. The Reid Technique is currently popular among American law-enforcement agencies as a way to get suspects to confess. It is a powerful technique, with a proven track record of getting people to confess to crimes that they could not possibly have committed. FalseConfessions.org describes how this can happen on this page. Here’s a typical example:

Martin Tankleff had just turned 17, when he found his mother brutally murdered and his father clinging to life after being attacked. After calling 911, he was immediately taken to police headquarters and underwent harsh interrogation by homicide investigators. He was told that his hair was found in his mother’s dead fingers and that his father awoke from his coma to identify young Martin as his attacker. Although he was never Mirandized and maintained his innocence, police finally convinced Marty that he must have blacked out. Confused and scared, Marty came to believe his interrogators that he blacked out and committed the crime. Although not one bit of forensic evidence linked Marty to the crime scene, he was convicted and sentenced to fifty years in prison. After serving close to 18 yeas, his conviction was finally overturned in 2007. (see www.Martytankleff.org)

A recent scientific study, reported here by the Star, concluded that it was extremely easy to get people to believe themselves guilty of a crime: 70 percent of participants in a study were persuaded that they were guilty of a crime, with only minimal suggestions from the researchers. To make matters worse, some of the fooled participants became so convinced of their own guilt that they could not be re-persuaded to believe themselves innocent, even when the researchers revealed the ruse! The scientists prematurely ended the study, frightened of their terrible discovery, but the techniques they used remain common practice in police departments all across America. In fact, the Reid Technique was first developed in 1942, so we have several decades’ worth of false confessions on the books. How many people have already died, wrongfully convinced of their own guilt? I can only guess.

It’s worth noting, as Brian Gallini does in this paper, that the Reid Technique was based off of polygraph techniques – the so-called “lie detector”, which happens to be based on a pack of lies. Gallini observes that the polygraph’s credibility was already in question in 1942, so the Reid technique was in trouble from the start, and yet it has become common practice, in spite of evidence that it does not work! And speaking of the polygraph, that one hasn’t gone away, either: California is now requiring paroled sex offenders to take the test. Apparently, it is too much to ask that our governments refrain from using methods that routinely incriminate innocent people.

The Reid Technique and the polygraph are not alone in the government’s arsenal of methods for conjuring up guilt. Let us not forget that our forces are fighting a War on Terror, and to fight such a war, they must sometimes use “enhanced interrogation techniques” to get critical information out of terrorist suspects. Torture, in other words. But does torture work? There is precious little evidence in its favor. There are many who claim that it is effective, but, as former FBI agent Ali Soufan notes in this op-ed, they have a track record of lying. The US Army’s own field manual on intelligence interrogation notes that “the use of force is a poor technique, as it yields unreliable results, may damage subsequent collection efforts, and can induce the source to say whatever he thinks the interrogator wants to hear”. Alas, it is that final property of torture – that it can induce someone to say whatever the interrogator wants to hear – that makes it so useful to its practitioners. When you want to force the facts to fit your opinion, waterboarding people into submission seems like a great idea. (For a good examination of this mad way of thinking, read this piece by Major Anthony Milavic.)

There is one other information-gathering technique that I wish to discuss: mass surveillance. This one stands out from the others I’ve mentioned because it’s so much less personal, and it doesn’t appear to force anyone to lie. And yet, it suffers from the same failures as torture, polygraphing, and Reid Technique: it’s terrible at getting the truth and great at creating the appearance of guilt.

In defense of the first assertion, consider this post from WashingtonsBlog, in which the author notes (among other good points) that even before the 9/11 attacks, there was plenty of mass surveillance going on, and plenty of data being gathered about the people who would eventually carry out the attacks, but none of that data was able to prevent the attack. Why not? The author quotes from this piece by Nassim Taleb: “Big data may mean more information, but it also means more false information.” Perhaps this is why the NSA’s bulk metadata collection program has failed to prevent even a single terrorist attack.

As for creating the appearance of guilt, we need look no further than the strange case of Brandon Mayfield:

But there’s another danger that Snowden didn’t mention that’s inherent in the government’s having easy access to the voluminous data we produce every day: It can imply guilt where there is none. When investigators have mountains of data on a particular target, it’s easy to see only the data points that confirm their theories — especially in counterterrorism investigations when the stakes are so high — while ignoring or downplaying the rest…

Mayfield had converted to Islam after meeting his wife, an Egyptian. He had represented one of the Portland Seven, a group of men who tried to travel to Afghanistan to fight for al Qaeda and the Taliban against U.S. and coalition forces in a child custody case. He also worshipped at the same mosque as the militants. In the aftermath of 9/11, these innocent associations and relationships, however tangential, were transformed by investigators into evidence that Mayfield wasn’t a civic-minded American, but a bloodthirsty terrorist intent on destroying the West…

FBI agents broke into Mayfield’s home and law office. They rifled through documents protected by attorney-client privilege, wiretapped his phones, analyzed his financial records and web browsing history, and went through his garbage. They followed him wherever he went. Despite all this, the FBI never found a smoking gun connecting him to Madrid. They did, however, find Internet searches of flights to Spain and learned that he once took flying lessons. To FBI agents already convinced of his guilt, this was all evidence of Mayfield’s terrorist heart…

While it may seem like there were a freakish number of coincidences here, when the FBI was confronted with evidence that demonstrated Mayfield’s innocence, they twisted it to support their original theory of his guilt. With no evidence that Mayfield had traveled internationally for years — his passport had expired, and the last record of foreign travel was during his military service in 1994 — the FBI simply concocted the theory that he must have traveled overseas as part of this terrorist conspiracy under a false identity…

Because of mistakes made by the FBI — they left shoe prints in the carpet of the Mayfields’ home and broke in one time when Mayfield’s son was home alone — Mayfield concluded he was under surveillance by federal authorities. Paranoia set in. When driving, he would look to see if someone was following him home or to the office. The FBI took his skittishness as more evidence of his guilt.

There is a saying, which some attribute to Cardinal de Richelieu: “Qu’on me donne six lignes écrites de la main du plus honnête homme, j’y trouverai de quoi le faire pendre.” Translated: “If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him.” (Hat tip to Cory Doctorow for telling me about that quote) In other words, it’s easy to make people look guilty. And if six lines aren’t enough, then collect six hundred, or maybe six million. That is what mass surveillance offers: enough noise to cherry-pick any data we want, and invent guilt in any target we choose.

This all has to stop. We have tens of thousands of people being wrongfully convicted, and millions of people being pointlessly spied on, all because our institutions refuse to admit that they can be wrong. I don’t know how to put an end to all of this, but I know we need to do it, and as soon as possible. It is time to stop supporting the illusion of guilt.

Addendum: Did TV Tropes violate their own license?

In my previous post, I noted that TV Tropes used to be available under a BY-SA license, but then they changed to a BY-NC-SA license. I consider this a bad move, of course, but after I finished my post, another thought occurred to me: what if it’s illegal?

To understand why this would be illegal, you’ve got to know a few things about Creative Commons licenses and how they work. First off, they are supposed to be irrevocable. Consider the following excerpts from the BY-SA legal code:

Subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work…

The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats….

Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the Work). Notwithstanding the above, Licensor reserves the right to release the Work under different license terms or to stop distributing the Work at any time; provided, however that any such election will not serve to withdraw this License (or any other license that has been, or is required to be, granted under the terms of this License), and this License will continue in full force and effect unless terminated as stated above.

The code is long and boring to read, but the parts I just quoted seem pretty clear that the license lasts as long as the copyright. This doesn’t mean that TV Tropes can’t re-release stuff under the BY-NC-SA license, but it does mean that everything is still covered by the more liberal BY-SA license. This is why All The Tropes has the right to take all of TV Tropes’s old stuff and repost it under the BY-SA license. So, at the very least, it is misleading for TV Tropes to imply that none of their current content is covered by BY-SA.

But there’s a deeper problem than that. It comes down to a question of “ownership”. The Creative Commons legal code notes that the “Licensor” reserves the right to release the Work under different license terms. So the question is: who is the proper “Licensor” for TV Tropes’s content?

If TV Tropes, LLC, is the proper “owner” of the content in question, then they do have the right to relicense their stuff, although I question the ethics of doing so. But I don’t think they can call themselves the “owner” of most of their content! Their current administrative policy is to take “irrevocable ownership…with all rights surrendered” of everything they receive, but some of their older administrative pages say nothing about that at all! In other words, TV Tropes simply cannot claim to own the copyrights on anything submitted to them before they changed their policy, which happened in November 2013. If TV Tropes does not own that stuff, then the contributors (and there are a lot of contributors) still have the rights to it, according to the Berne Convention. They gave TV Tropes permission to use it under the BY-SA license, but that doesn’t include the right to relicense their contributions under the BY-NC-SA license! Did the legions of contributors ever explicitly give TV Tropes permission to relicense their work? If not, then TV Tropes is violating the BY-SA license, and by so doing, they lose their rights under that license, meaning that they lose the rights to use the work at all! Their relicensing the content to BY-NC-SA is a massive act of infringement, and they had better pay up – or else!

Of course, it’s been nearly a year since TV Tropes started claiming irrevocable ownership, and over two years since they started marking everything as BY-NC-SA. Why hasn’t anything bad happened to them yet? I believe it is because of the inherent weakness of Creative Commons licenses: they rely on copyright for their power, and copyright is not a tool for the masses. Copyright is now, as it has ever been, a tool for the few to oppress the many. Expecting it to come through in our favor is a foolish proposition, and everyone who does so (including Creative Commons) has made the fatal mistake of believing hype over substance.

But perhaps I am being too pessimistic. Time will tell. In the meantime, I intend to probe this issue further, and see if we can’t actually use these licenses to put some pressure on TV Tropes. Maybe I’m a fool, but I know that large organizations live and die by the words on paper, and there are cases on the books of the lowly bringing down the haughty using the law. Wish me luck.

P.S. For a good bit of reading on the trouble with copyright, check out this essay: ‘Balanced’ Copyright: Not A Magic Solving Word, by Alan Story (and some good follow-up on Techdirt). I’ll have to give that essay a more thorough reading later, but for now, let me just say that I fully agree with Alan Story’s suggestion to “burn Berne”.

Check Your (Intellectual) Privilege: a book recommendation

I recently finished reading Intellectual Privilege: Copyright, Common Law, and the Common Good by Tom W. Bell, and I’m glad I did. In the introduction, Tom Bell promises to offer a “libertarian view” of copyright, and this libertarian thinks that Tom delivers the goods.

I was actually surprised by how libertarian the book is. You see, in the publicity for the book (like this video), Tom informs us that the book is covered under what calls a “Founder’s Copyright”, in which he and the Mercatus Center reserve only some rights (the rights specified in the original 1790 Copyright Act), and only for a limited time (28 years, the maximum time offered under the original Copyright Act). This is highly preferable to modern copyright law, but not nearly as good as no copyright at all. With that as introduction, I was expecting a wishy-washy “middle of the road” take on copyright. I was unprepared to read Tom saying things like this:

Copyright thus creates both a legal power to censor and an economic incentive to speak, an uneasy but unavoidable conflict that Neil Netanel, a professor at University of California, Los Angeles, School of Law, has aptly described as “copyright’s paradox.”
Copyright’s paradox reaches beyond mere speech, however. Although often described as a form of property, copyright relies for its very existence on violating property rights – the traditional common-law rights that each of us presumably enjoys in such tangible things as our printing presses, guitars, and throats. – from Chapter 1

Barely two pages into the first chapter, and Tom has already described copyright as a censorship instrument and as a violation of property rights. Tom W. Bell is not kidding around, folks. And it only gets better from there.

In case you don’t believe his assertions, Tom carefully spells out why copyright cannot be a natural right (here’s an excerpt where he explains why copyright fails to fit John Locke’s definition of natural rights, and here’s another excerpt where he explains why copyright fails to fit Randy E. Barnett’s definition of natural rights). He gives us a thorough history lesson that shows that, while America’s Founders often tried to “sell” copyright to the masses as a natural right, they never actually treated it as such. He closes Chapter 3 with this doozy of a sentence:

In sum, we should consider copyright an unnatural statutory privilege that violates our natural rights and can claim only as much justification as can the state itself.

Now that’s what I like to read in a book discussing copyright. And if I were writing the book, that’s about where I’d end it, staying only long enough to write a conclusion urging my readers to “smash the state”.

That’s not where Tom ends things, perhaps because Tom is not an anarchist. But whatever Tom isn’t, I can say what he is: he is very thorough, rather humble, and quite dedicated to finding a solution to our problems with copyright. And he spends much of the book talking about solutions: both ways to make copyright less odious, and ways to make it unnecessary or irrelevant. Since the governments of the world don’t seem likely to crumble any time soon, it’s likely that copyright will be with us for some time to come, so Tom Bell’s pragmatic solutions might be just what we need to deal with it.

To make copyright less bothersome, Tom describes a legal theory called “copyright misuse”. The idea here is that, since copyright is necessarily a violation of common-law rights, anyone who invokes copyright rights does so at the expense of their own common-law rights. In other words, you can either have common-law protection (which covers your person, property, and promises) or copyright protection (which grants you exclusive rights in distributing your expressions), but not both. He discusses several legal cases where this doctrine has developed, and describes how a more general application of this principle would make copyright less noisome. Take DRM and EULAs, for instance. Both of these are limitations on what a user can do with copyrighted information, justified on grounds of property right or contract. Under the theory of copyright misuse, both of these would be illegal; a copyright holder could limit users’ rights either by copyright or by contract, but not both at the same time, so an EULA that ordered anything besides “Don’t violate copyright law” would be null and void unless it didn’t apply copyright at all, and DRM could not be used to prevent a user from doing anything not forbidden under copyright law. As Tom notes, when copyright and common-law rights combine to oppress, “we should respond by limiting the former and respecting the latter” (from Chapter 7). Tom then goes on to propose an addition to the Copyright Act, which he calls section 107(b), and which reads as follows:

It constitutes copyright misuse to contractually limit any use of a copyrighted work if that use would qualify as noninfringing under § 107(a). No party misusing a work has rights to it under § 106 or § 106A during that misuse. A court may, however, remedy breach of any contract the limitations of which constitute copyright misuse under this section.

This would formally recognize the doctrine of copyright misuse in the relevant legislation, and give abused users a firm defense against copyfraud. And I really must tip my hat to Tom Bell, for how thorough he was in drafting this proposed bit of legislation. You’ll have to read Chapter 8 to see just how much thought he put into this. And in Chapter 9: Deregulating Expressive Works, he proposes another expansion to the Copyright Act, section 301(g):

(g) Nothing in this title annuls or limits any common-law restriction on the use of a fixed work of authorship if that work has been dedicated to the public domain.

Tom believes in the strength of common-law protections (and so do I), so Tom wants to encourage artists and innovators to use common-law methods instead of copyright. Section 301(g) would explicitly allow them to do so even after abandoning copyright. Not such a bad way to encourage folks to contribute to the public domain, if you ask me.

But Tom doesn’t stop there. See, Tom takes seriously the idea that there might exist a “market failure” in the production of expressive, creative works. It’s this market failure that copyright supposedly exists to cure. But instead of legislation, Tom Bell proposes that we look for other ways to cure the market, including improved technology and novel common-law solutions. Chapter 11 is titled “Outgrowing Copyright”, and right there, I must give Tom credit for a hopeful vision. While so many copyright reformers talk about finding the right balance in copyright, Tom talks about finding ways to do without it. Rather than ask “How much do we need?”, Tom asks “How can we get to a point where we don’t need any?” I’d love to here more of this kind of talk from Larry Lessig and Cory Doctorow. Step up your game, guys.

In fact, if you’re the sort who thinks that we can and should find the right balance in copyright legislation, I recommend you read Tom Bell’s analysis of the difficulties involved in doing so, found in Chapter 6: Copyright Politics: Indelicately Imbalanced. I think I can sum up the whole chapter nicely in one sentence from it:

Copyright policy combines all the elements of a public choice tragedy: concentrated benefits, diffuse costs, and state power.

In other words, if you’re waiting for the lawmakers to properly adjust the settings on copyright, you’ve got a lot of waiting ahead of you. There’s a reason they’ve screwed it up thus far, and the reason is that they don’t see any reason to bother getting it right. Hoping for a fix of copyright is probably a pipe dream, even with Tom’s proposed additions, so we’d be better off looking for an escape from copyright, instead.

The book’s conclusion is titled “The Packet-Switched Society”, and it includes a brief discussion of what makes the Internet special and how this offers us a way to render copyright superfluous, changing it from a “necessary evil” to just plain evil. It’s a good conclusion to a good book, and I hope you all will read it. Buy a copy, borrow a copy, whatever you must do. There used to be a draft freely available online, but Tom has since taken that down… but thanks to the Internet Archive, you can still read it! So check it out and give it some thought. You’ll be glad you did.

And to any copyright maximalists who are reading this, let me just say: Check Your Privilege!

Addendum: Valenti, continuing to be wrong

First off: in my previous post, I thank Timothy Wu, Eric Brander, and Wikiquote for helping find quotes, but my thank-you note makes it sound like these people helped me personally. They did not; they provided the quotes from Valenti to the whole world, not just me. I alone am solely responsible for the quotes I picked out, but I still thank the previously mentioned folks for making the quotes easier to find.

Now, then. There were a few Valenti quotes that I wanted to include in my last post, but I felt like I couldn’t find a good place for them. So, they’re going here. Without further ado, more incorrect statements from Jack Valenti, starting with his thoughts on a fan edit of a film:

It’s like drawing a mustache on the Mona Lisa.
– from this New York Post article, 8 June 2001

Just so we’re clear here, Valenti was complaining about The Phantom Edit, a fan-made remix of The Phantom Menace that received praise from Star Wars fans, compliments from professional critics, and condoning from Lucas and Lucasfilm. And Valenti compared it to puerile vandalism. Then again, maybe he’s paying it a compliment; some people consider drawing a mustache on the Mona Lisa to be fine art

I found the most convincing part to be the working stiffs, the guys who have a modest home and kids who go to public schools. They make $75,000 to $100,000 a year. That’s not much to live on. I don’t have to tell you that.
– from this Entertainment Weekly Article, 18 April 2003

Here, Jack is talking about those anti-piracy PSAs that keep showing up before the film finally plays, telling us how copying is stealing and how if we don’t pay for movies, all the working class of Hollywood will go out of business. To put the numbers in perspective, the global average yearly income in 2010 (made by averaging the GNI per capita) is about $11,000 per year, according to this World Bank report. Here in the USA, our GNI per capita is currently about $53,000 per year, according to the latest data. For further reference, the official poverty line in the USA is $23,550 and under for a family of four. And here’s Jack, trying to stir our sympathies for people who earn a hundred grand a year in show business. Won’t somebody think of the poor little rich people?

Of course, before he retired, Jack’s salary was $1.35 million per year, so maybe he has a different perspective on money than the rest of us.

What needs to happen is we all sit down together in good-faith negotiations and come to some conclusions on how we can construct a broadcast flag (for keeping digital TV content off the Internet), on how we plug the analog hole (allowing people to record digital content off older televisions and other devices), and how we deal with the persistent and devilish problem of peer-to-peer.

There are more than nine and a half million broadband subscribers now. Once those large pipes and high-speed access subscribers begin to increase, we can be terrorized by what’s going on.
– from this interview with John Borland, 4 April 2002 (archived on 3 June 2002)

In that interview, Valenti is speaking in favor of the proposed CBDTPA, which would have mandated the inclusion of so-called “trusted computing” hardware in all digital devices (called the “Fritz chip” after the bill’s sponsor, Ernest “Fritz” Hollings). As usual, Jack had no idea how technology actually works (and neither did Hollings). “Trusted computing” leads to some terrible consequences. Richard Stallman, who does know how technology works, calls it “treacherous computing”, describing it as a “plan to take away our freedom” that would create a “paradise for corruption”. And here’s Jack, saying that we need to have “good-faith negotiations” to figure out how to implement this. But it gets better; not only is the plan evil, it’s also stupid. Here’s Edward Felten’s take on the Fritz chip:

This was the digital traffic cop that would sit inside digital media devices and prevent them from doing bad stuff. But it’s worth noting that the law would have, the bill would have included the Fritz chip in every digital media device that was built in the United States. And there are a great many diverse digital media devices. Here are some examples. Big Mouth Billy Bass is a digital media device, because he plays music that’s recorded in digital form. Also the electronic whoopie cushion, as advertised on the Howard Stern show, plays recorded digital content which happens to be copyrighted. Think about that. Any my personal favorite the Kung Fu Fighting Hamster. I actually have him here to give you a performance. That’s copyrighted audio. Not to mention other devices like digital hearing aids, which would have to vet the sounds that came into a listener’s ear to make sure they weren’t copyrighted, and digital sewing machines which would have to vet the patterns of stitchery that were to be put onto cloth to make sure they weren’t copyrighted. Because in fact, embroidery patterns are copyrightable, and Senator Hollings brought to Capitol Hill to testify a person who makes their living by creating embroidery patterns.

So that was problem number one, the Fritz chip would have be built into nearly everything, including devices where it clearly wasn’t needed. The bigger problem was problem number two, how was this thing going to work? What technology could you design which would actually prevent bad things from happening? Well here’s what the Hollings bill said about this: It said that the, whatever the Fritz chip, whatever the design of the Fritz chip was, it should be reliable, renewable, resistant to attack, readily implemented, modular, applicable in multiple technology platforms, extensible, upgradable, and not cost prohibitive. Which is all well and good as a goal, but again the question, how is this thing going to work? And the truth is that nobody who knew much of anything about technology had any idea of how you could possibly do such a thing. And it was, in testimony I submitted to the Senate I likened the standardization of the Fritz chip to the creation of a standard system for teleportation. And it just wouldn’t do for the Senate to pass a bill that said we will make a standard for teleportation and we’ll do it within eighteen months. After that we’ll teleport all over the place.

And the fundamental reason why nobody knew how to build a Fritz chip is because of this dilemma: Any Fritz chip you built, had to either to allow universal computers or ban them. If you allow universal computers then you allow consumers to do absolutely everything you’re afraid they’ll do. And then what’s the point? Or if you ban them then you’re throwing out the baby with the bathwater. And we no longer have universal computers, we no longer have a universal Internet and the entire computer revolution goes out the window. Much too high a price to pay to protect ourselves against copyright infringement.
– from this talk at Princeton University, 12 October 2004

The Fritz chip: designed to take away freedom, inherently impossible to implement, and endorsed by Jack Valenti. After all, we have to do something about all those devilish college kids terrorizing the MPAA with their P2P software. And when John Borland asked Jack for a response to those who felt that “the Hollings bill would take away some of their rights”, Jack’s response was: “What rights are we talking about? I’m not trying to be glib.” Let me give a non-glib answer: the right to control our own computers and the right to securely communicate. You can’t stop P2P without killing either of those.

But Valenti doesn’t much care about the right to control your own computer:

I do not believe that you have the right to override an encryption. Because if you have the right to do it, everybody can do it. For whatever benign reason you have, somebody else has got one even more benign. But once you let one person deal in a digital copy — and I don’t have to tell you; you know far better than I that, unlike in analog, the ten thousandth copy is as pure as the original — it is a big problem. So once you let the barriers down for your perfectly sensible reason, you gotta let it down for everybody…
Let me put it in my simple terms. If you take something that doesn’t belong to you, that’s wrong. Number two, if you design your own machine, you can’t fuss at people, because you’re one of just a few. How many Linux users are there?
– from this interview with Keith Winstein

Keith Winstein is arguing for the right of Linux users to build and use computers that can get past access control measures without having to obtain a “license”. But Jack insists that Keith and his fellow Linux users (like me) do not have such a right. Why? Because if they did have such a right, then they could easily decrypt their DVDs and record broadcasts, and they’d have lovely, shareable digital files, which are “a big problem” for Mr. Valenti because they’re too easy to share. And after all, to share those files would be “to take something that belongs to somebody else”, so we just have to prevent everyone from overriding encryption, don’t you see?

And then there’s the right to securely communicate:

My second recommendation is to resist those who are clamoring for a copyright exemption for on-line service providers. On-line service providers and others have a key role to play in freeing cyberspace of the taint of copyright lawlessness. Accountability for copyright violations committed by users is as essential for advancing this indispensable goal.

Who is responsible if a valuable copyrighted work is downloaded from a provider, and then copied on a digital video machine from which thousands of copies can be made, the last copy as pure and pristine as the first? And if no one can be held responsible, then who and what is to prevent the flood that will surely follow? This is a loophole larger than a parade of eight-wheelers through which a dam-busting avalanche of violations can rupture the purpose of your bill every day.

Although there has been much said about the dire consequences of applying existing standards of copyright liability to on-line service providers, in truth, there is as yet no evidence of any disfunction [sic] in the statute that requires fixing. No court has found an on-line service provider to be guilty of infringement except where the provider participated in infringing activity or was actually aware of infringing activity carried out by a user of the on-line service. Despite what you have heard, there is no imminent threat of debilitating damages against “innocent” on-line service providers.
– from testimony to the House of Representatives, 7 February 1996 (archived on 26 February 2005)

Well, I’m all for freeing cyberspace from the “taint” of “lawlessness”. Let me quote a successful European politician:

One of the primary demands of the Pirate Party has been that the same laws that apply offline should also apply online. I think it’s an entirely reasonable thing to demand; the Internet is not a special case, but part of reality. The problems appear when an obsolete but powerful industry realizes that this just and equal application of laws means they can’t enforce a distribution monopoly any longer.

The politician was Rick Falkvinge, describing here why we should insist on having the same legal protections online as offline, including privacy, postal secret, and due process. Rick goes on to describe how media companies have pressured on-line service providers to help them wiretap and censor online communication, and points out that we wouldn’t let this kind of thing happen to postal communications, so why are we putting up with it happening online?

And as for there being “no imminent threat of debilitating damages”, we have good evidence that there is such a threat. Innocent people are getting hurt, and more will get hurt if people keep favoring copyright over other rights. Jack Valenti should have known this and cared about this, but he chose not to.

But I shouldn’t be surprised that he’d do something like that. After all, he was the kind of guy who said things like this:

I think lobbying is really an honest profession. Lobbying means trying to persuade Congress to accept your point of view. Sometimes you can give them a lot of facts they didn’t have before.
– from an interview with Derek Slater

An honest profession, you say? Oh, Jack. No wonder you get everything so wrong.

The Inevitable State

It has recently occured to me that as a group, we libertarians are a bunch of peaceniks. We may talk tough about self-defense and bearing arms and forming militias and so on, but really, we don’t want to engage in fights at all, let alone start them. We’ve got better things to do, like discuss philosophy or tinker with 3-D printers or smoke cannabis. As the pseudonymous dL puts it in this post, “Live and Let Live” is a big part of what it means to value liberty. We like life, and we hate war. Oh, how we hate war. As Randolph Bourne put it in The State, “War is the health of the state”, and oh, how we hate the state. One of our more popular sites is Antiwar.com, and they mean business. We libertarians just hate war.

Now, you may be thinking to yourself, “So what? Everyone hates war. You think you’re special for hating it or something? Do you think that non-libertarians like war?” And not so long ago, I’d have said something about how I think you actually hate war just as much as we do, but you just haven’t figured out how to get rid of it. But that was then, and this is now, and in between then and now, I changed my mind. Now, I don’t think you hate war as much as you think you do. I also don’t think I hate it as much as I think I do. And this poses a big problem for all of us.
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What I support, and what I oppose

If you look at my previous post, you’ll notice that I’ve written a few essays talking about things I’m against and discussing views I disagree with, but not as many essays that describe what I am for, or that present views I agree with. This post is an attempt to rectify this, and to explain to all and sundry just what it is that I want when it comes to IP, my favorite topic.

First off, I am in favor of self-ownership. I own me, you own you, that person over there owns herself, those guys back that way all each own themselves, and so on. I am in favor of this because I believe that the person best equipped to know and do what is best for me is me, and the person most able to control, manage, and protect me is me, and also, because I don’t know what’s best for other people and I’m not in any position to manage and protect people besides myself. Thus, I oppose drug laws and other measures that restrict people’s freedom to do what they want to themselves, and I oppose slavery and any other relationship that compels people to work for the benefit of others before themselves.

As a consequence of self-ownership, I am in favor of property rights. Some level of property right is both necessary and inevitable, because it’s hard for two people to sit in one chair at the same time so it makes sense to say that the chair belongs to just one person. But beyond the baseline imposed by self-ownership and basic physics, there’s a level of property right that’s convenient for everyone. We like having our own space and our own stuff, and it’s nice to not have to constantly guard our stuff to make sure no one else takes it. The good news is that this kind of stable ownership is possible. We know this, because we have experienced it. It is a gift we all give to each other, and it is good; the benefits really do outweigh the costs.

As the above paragraph implies, I am in favor of cooperation and society. We are social creatures, and though we can often survive on our own, we are stronger when we work together. We create communities for our mutual benefit, and we benefit indeed from their existence.

But as an important qualifier to the last statement, I am in favor of voluntary association. I insist on my right to choose who I cooperate with, and I fully grant this right to all others. I would not force anyone to join any organization that I’m a part of, whether it be my church, my neighborhood home owners’ association, or my local militia (note: at the time I write this, I am not currently a member of any militia, but I’m open to offers of membership).

Finally, and most relevantly to the current topic, I am in favor of the free exchange of information. Free communication is either a natural consequence of or a helpful support to the above things I favor. Self-ownership means that I own my eyes and ears and brain and mouth, so I can take in whatever information I see and hear and then tell it to someone else, or I can come up with my own information to tell people. Property rights means that I can own a pen or paper, or a camera, or a computer, and I can use all these to enhance my ability to receive, record, transmit, edit, and synthesize information. This ability to give and receive information allows us to communicate, which helps us discover truths we were unaware of. This kind of communication is what makes cooperation possible in the first place. The better we get at communicating, the better we are at cooperating, and the more we benefit from society. This communication also helps us determine who to cooperate with. By finding and sharing truth, we can figure out who’s a friend and who isn’t, and we can then properly choose who to associate with. This free communication also bolsters and clarifies property rights. We can discuss with each other to see who gets what, and to determine if an owner is taking more than they deserve, or if they’re being robbed and need our help, and so on.

With that said, I can speak more clearly about what I am against.

I am against monopoly and lock-in. I oppose any measure to reduce people’s right of voluntary association. Measures that force people to cooperate, whether they be legal or technical, are immoral and dangerous, and we should work to weaken, circumvent, and break such measures.

I am against deception and censorship. The highest purpose of communication is to discover the truth (though it has other fine purposes, too). Deception and censorship both wreck this process.

I am against complication. We should make our rules and our relations as simple as we can, then no simpler. We all have a human tendency to accidentally complicate things, and many of us have a nasty tendency to deliberately complicate things. We must push back against both of these tendencies.

And that’s what I’m for and what I’m against. A final note: None of these are unbreakable rules. They all have exceptions. But I believe that these are all excellent general rules, and I use them to guide my opinions and actions.