Archive for October, 2009

Digital Natives in the Digital Constituency: Secret Ballots Not Secret Voters

October 28, 2009 Comments off

Democracy versus anarchy

Have you ever wondered what would have happened if the Unabomber had the Internet? Or how many Unabombers are out there now finding each other online? How many times have you read anonymous comments to online news articles or blog posts and wondered who wrote the post? (Whether it’s particularly good or bad.) There certainly is a place for anonymous commentary in the more obvious cases of political speech or corporate whistleblowing, but unfiltered anonymous commentary seems more likely to re-enforce what I call comfortable mistakes. Comfortable mistakes are statements that we know are wrong, but that make us feel good, what Professor Louise Richardson referred to as “legitimizing ideology” of “the complicit community” in her outstanding book.

There is a place for anonymity, certainly, but do societies tolerate anonymous voter registration for the secret ballot? That’s like double super secret voting that would inevitably lead to gaming. When it comes to political action (including political contributions) by citizens in the context of legislation—as opposed to political commentary–I’ve seen no evidence that any political unit tolerates both anonymous voter registration and the secret ballot. Cities, counties, states or countries want to limit matters of citizenship to their citizens. That requires rules and does not recognize anonymous voters.

Because most laws in a democracy are passed in a complex system of checks and balances and are subject to public disclosure laws, knowing how representatives of the electorate vote is a matter of public record. In fact, there is quite a bit you can find out about the political affiliation and political contributions of almost anyone in the U.S.

When governments seek to draft legislation they frequently invite the public to comment and make suggestions about legislative subjects. This is done in a request for comments, public consultations, any one of a number of time-tested methods to ascertain the public’s view and to solicit their insight and commentary. When comments are solicited, the comments are generally written and are not anonymous. In fact, I can’t recall an instance where the comments were anonymous.

This greatly reduces the likelihood that the legislative process will be gamed. There is nothing like knowing who you are dealing with to reduce shenanigans. As we integrate the digital society into our civil society, the democratic promise of the Internet collides with its anarchic qualities.

“On the Internet, no one knows you’re a dog”

The wonderful Peter Steiner cartoon says it all. If we allow direct, unfiltered and essentially anonymous input by the public in the democratic process, society would have to trust every user to be self-regulating. There is no evidence that this unquestioned trust is warranted. Practically everything online from Limewire to Digg is or can be gamed online. Social media network friends can be helped along by “friend bots” (a rather sad commentary). If governments allowed this direct participation, a lot of dogs could be voting.

Even if direct anonymous voting is ruled out, there is still the possibility for 15 year old Bulgarian bot farmers to try to influence the legislative process by running bot-rooms or online boiler rooms spewing out roboemails to legislators.It is then incumbent on governments, particularly legislative bodies, to insulate themselves from roboemails—or even human emailers with a malevolent purpose—influencing legislation of interest to their masters when they themselves are not true constituents. Letter writing or phone call boiler rooms are nothing new—what’s new is that the process can be automated like never before and the virtual boiler room can be a diaspora of the alienated that doesn’t jump constituencies, but spans continents.

This is not easy, just like getting voter registration rules right isn’t easy. But there are some protections against phantom armies of “consumers” that legislatures can adopt. The U.S. House of Representatives, for example, utilizes a program called “writerep” that puts considerable effort into trying to limit the access to the chamber’s email program. Not perfect, but it’s something.

Unfortunately, the Canadian government has not learned this lesson and nowhere was that more apparent than in the recent copyright consultations, and nowhere is the audacity of corruption more pervasive than in the manipulation of the consultation process by the anti-copyright fringe.

So Much For Good Faith

Industry Canada recently undertook good faith consultations with the Canadian public regarding potential new copyright legislation. The consultations lasted three months and included meetings in all major Canadian cities. All sides in the debate had an opportunity to be heard—and there’s the problem.For years now, there has been much sound and fury about the ghostly army of anonymous or pseudonymous anti-copyright, pro-mod chip, anti-music industry folks in Canada who pass themselves off as representative of Canadian voters.

Remember—voters.One manifestation of this bunch was the Fair Copyright account on Facebook which has some large number of “friends”, over 88,000 at last count. Now why anyone would take having a bunch of Facebook friends seriously is beyond me, but apparently this matters to the Canadian government. (Never mind that the “Fair Copyright” group members are dwarfed by many Facebook groups – see “I don’t care if your crocs are comfortable you look like a dumbass” ([2.5] million members)).

If there really are 88,000 Canadian voters signed up for the Fair Copyright Facebook account, one would think that was an army that could be mustered at a moments notice and focused like a laser beam on the Canadian Parliament.

I would point out for reference that when significant matters of public policy are pending before the U.S. Congress, it is not unusual for there to be so many faxes that Congressional offices turn off their fax machines, servers crash and switchboards are rendered unusable. My guess is that takes about 15,000 people doing the same thing at the same time. (See “Callers unite against climate bill, crash phone system”)

So if Fair Copyright really has 88,000 dogs—I mean, “friends”–one would think that something as important as the copyright consultations would let the dogs out. So to speak.The interesting fact is that after 3 months, the total number of emails that came into Industry Canada did not top 10,000 woofs. Even if you assume that all the emails came from Facebook puppies, that’s barely over 10% of the total members.

Who Let the Dogs Out?

Fair Copyright Facebook is run by—guess who? The very well-funded Michael Geist. So if anyone let the dogs out, it would be he. One would think that if Geist could summon his friends from Facebook all he need to is say the word, and stalwart Canadians would step forward and engage in a democratic dialog with their elected representatives—on the record.

Yet Geist was out beating the drum on TorrentFreak trying to get anyone—anyone—to sign up to the CCER letter writing wizard. That wizard was so easily gamed it was a joke. In fact, I did it myself with no trouble at all.

One need only take a minute’s look at the Canadian Parliament website to determine the problem. The site lists each MPs email address. There is no attempt to qualify the sender of any email as even being from Canada, much less from the MPs constituency. That is one reason why Geist could game the system—easily. Not to mention CCER. All they had to do was look up the email addresses of the MPs they wanted to lobby and woof woof—the dogs were out, baby.

The truth is that the CCER letter wizard was so easily gamed and the Parliament is so easily gamed that the entire email campaign was corrupted. This is really an unfortunate result for the Canadians who were playing by the rules and sincerely thought they were responding to their representatives. For whatever reason, Industry Canada apparently has decided not to publicly post letters received through the CCER wizard—and for obviously good reasons.

According to the CBC, Geist said that “[n]ot posting those modified and individual letters [from the CCER] to the copyright consultation website is tantamount to altering the views of the authors….” Or good judgement given the inherent unreliability of the CCER wizard. It is likewise unfortunate for the Canadian government, clearly trying to bring transparency to the consultation. The problem for governments that don’t take sufficient precautions to keep themselves from being gamed is that it would be far too easy for unscrupulous operatives to engage in a harassment effort that dupes the MPs into thinking that there really was a significant section of public opinion on one side or another of an issue.

This is also an inherent problem with electronic media—it can all be gamed. Faxes, phone calls, emails, snail mail. Politicians get a high level of sophistication in ferreting out the dogs, and frequently send them barking up the wrong tree.

The Canadian government seems to have been victim to an intimidation scheme that is one step beyond the Bulgarian bot-farmers. This is the implied threat of a voter backlash based on the number of Facebook friends.

It is actually gratifying to see that this threat can be dispelled now—so few people showed up to make the anti-copyright argument compared to the number of Facebook friends that the credibility of the threat is immediately called into question. Who are these people on Facebook anyway? Is this a repeat of an MP’s Christmas party when a busload of out of towners crashed the constituency Christmas party to woof down some freebies and get their picture taken?

When someone has a real political movement of motivated activists, there is no question about it. Just ask anyone who was on the receiving end of Pandora’s well executed lobbying efforts, opposition to climate change legislation or health care. Throngs of people in the streets sends the unmistakable message that the issue isn’t Astroturf. There are limits, even to the dogs that the very well funded Michael Geist can let loose.

When you’re off the Internet, everyone knows you’re a dog. Especially a well-funded dog.

"The (legal) music fades out for Canadians"

October 27, 2009 Comments off

Interesting piece from Barrie McKenna, Washington correspondent for Canada’s Globe & Mail: “And the creative industries that produce music, software and the like – industries that contribute significantly more to the economy than BitTorrent sites – may also shun Canada if nothing is done.

That hurts Canadians, and most people don’t even know it’s happening.”

IPKat strikes out again: "Every Time a Phone Rings ASCAP Won’t Get Its Wings"

October 25, 2009 Comments off

For those of you who follow these things, there is an email list called IPKat that has a lot of cutesy pictures of kittens on it and really bad puns mixed in with decent coverage of international IP issues.

True to form, however, they follow Weejun Justice when it comes to music and completely miss the point in their zeal to curl up nice and kozy with their (apparent) fellow travelers at the EFF.

The latest misguided gibberish comes in the headline “Every Time A Phone Rings, ASCAP Won’t Get Its Wings”. Oh, really. Well, kitty cat, do you know what’s wrong with that sentence, hmmm, wanna guess? Neither will songwriters. ASCAP is songwriters.

The piece starts out with this sentence: “When someone calls the AmeriKat, Led Zeppelin’s Misty Mountain Hop blasts out (much to the annoyance [of] those around her) on her cellphone. If you are like the AmeriKat and have an attention-seeking ringtone on your phone, the American Society of Composers, Authors and Publishers (ASCAP) wants you to pay a royalty every time your phone rings. The AmeriKat joins Fred von Lohmann, a copyright lawyer with the Electronic Frontier Foundation (EFF, an amicus curae in the case) in welcoming Judge Cote’s decision.”

“AmeriKat” is the cutesy nom de plume that some recent law school graduate with 3 names has given herself. Aside from the creepyness of being around a three namer who seems to enjoy refering to themselves in the 3rd person, I have to wonder what it would cost to get a yuppie to not listen to music. There must be a market clearing price to get people to just leave you alone, right? Isn’t that the point of paying protection?

Or maybe we could get a special ringtone for people who profess to be music fans but who actually have it in for songwriters? There could be a little recording before the ringtone starts that says–on 11–“EVEN THOUGH THIS PERSON LOOKS LIKE SHE’S A FAN AND IS TRYING TO MAKE PEOPLE THINK SHE’S COOL BY ASSOCIATING HERSELF WITH OUR SONG, SHE’S ACTUALLY GOT IT IN FOR US AND WOULD LIKE US ALL TO STARVE AND MOCKS US IN AN INTERNET NEWSLETTER”. And wants to dance on our graves.

Now that would be “an attention-seeking ringtone” for those trying to attract a crowd.

Maybe not.

PS: Choppy, Directionless and Strident

October 25, 2009 Comments off

There are some books that I have seen frequently in book stores over the years that I know I will never read. Dianetics is one such book. I have no particular reason to read or not to read these books, but if I’m honest about it, I know that I’m not ever going to read them.

These are all books that One Ought To Read, if one wishes to be a Very Well-Rounded Person. I’m sure you could come up with your own list of books in this category. Another category of such books are the ones that are Just Too Absurd. Life of Brian would be one of these. The Companion to Oliver Stone’s “JFK” would be another or Zen and the Art of Black Helicopter Maintenance. A new addition I would make to my version of that list would be the latest by the “most prolific scholar in the history of copyright” (who is, in case you don’t know, Google VIP Patry. I think we can call him The Most Prolific Scholar for short, or perhaps “PS”).

From what I can gather, the upshot of PS’s book is that it is a hierarchical and status driven look at works of authorship and the laws that once protected them. According to PS, creators do not innovate, only innovators innovate, which is kind of a silly con if you remember things like jazz. But then jazz probably doesn’t count, because as we know art doesn’t scale.

Maybe multitrack recording might count? That at least involves a machine that has a carbon footprint, so Googlers should feel right at home. But wait–the innovation of multitrack recording (on which the entire modern recording industry is based, including Protools) is an invention generally attributed to…Les Paul. (For all you Silly Cons out there, and especially you Very Silly Cons, Les Paul was a…guitar player.) As usual with occupants of the Googleplex there are no dogs or actors allowed into the hierarchy so we will just define guitar player innovators out of the definition.

Now some may criticize me for only focusing on “bad” reviews–or as they may say in the Googleplex, “ungood”–and that may be, but PS has Google and all we have are each other.

Others have noticed the new one by PS, too. Tom Sydnor has a second installment of his “Worthless Book” review, an excellent critique of the PS book that is a delicious read, a fantastically 3 star feast for the truth.

And I’ve also read a PS review of interest by Jonathan Handel in the Los Angeles Times who observes: “Patry’s stature makes ‘Moral Panics and the Copyright Wars’ an ‘important’ book. Unfortunately, what the book delivers is a choppy and directionless narrative, sometimes illuminating but too often scattershot, unoriginal and strident.”

I don’t know as I agree that he’s “strident,” I probably would have said “oozing”. That’s what happens when the bile is so full and pungent it can’t quite get out quickly enough, it just kind of oozes into the sunlight like a vomitous marsh. But “directionless” sounds about right. Then again, not only have I not read the book, I know that I’m not going to read the book.

Just like I know I’m not going to read Dianetics.

The Pirate Party’s Gary Hart Moment

October 24, 2009 Comments off

I highly recommend Andrew Orlowski’s article about his encounter with the Pirate Party at In The City. If you have noticed a trend of conferences that used to be the domain of music fans becoming infiltrated by the anti-copyright crowd offering their special version of doublethink, you’re correct. But so far–no hard evidence that money is changing hands.

There are a few high points of the panel which featured a leader of the Swedish Pirate Party, namely–so to speak–the former “Dick Augustsson” who apparently changed his name to “Rickard Falkvinge” at some point in his life, at least according to the Records Department (aka Wikipedia). “Falk” means “hawk” in Swedish, and “vinge” means “wing”. Hawkwing, kind of a cross between Stan Lee and Rickard Wagner. Someone played too many videogames.

Orlowski provides an intriguing quotation from “Mr. Hawkwing

“Any group in society that has an information advantage will climb to power over other groups in society – if your group knows more about any other group than they know about you, you will have an information advantage in society’s competition for power.”

This sounds very much to me like Gary Hart’s challenge to the press to follow him around. While I somehow doubt that a Donna Rice is going to show up on Mr. Hawkwing’s knee, it’s rather interesting that a group that has shown so much interest in secrecy has become a political party, and that a political party continues to show so much interest in secret communications. “‘At our core we’re a civil liberties group,’ Falkvinge said, backing transparent government and the right to communicate in secret.”

Transparent government and the right to communicate in secret. Now these two ideas seem somewhat contradictory to me. But then, such is “…the power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them.”


It will be interesting to see how the secrecy part works out.

But you should read the article, especially the part from Dave Smith from Sparklestreet. A nice summary.

Recall that Mr. Hawkwing went on a fund raising tour of Silicon Valley including stops at Google and the Leland Stanford Junior Google University, where the crowd was encouraged to press “wads of cash” into his hands because political contributions are supposedly anonymous in Sweden and the Pirate Party prefers cash–possibly the way that the allegedly neo-Nazi backer of the Pirate Bay financed that pirate operation.

If a Pirate Party ever qualifies as a political party in the US or Canada, I’d love to see them tell the elections authorities that they prefer donations in anonymous cash. That may work for Google’s Adwords, but there are limits.

France protects creators with graduated response

October 23, 2009 Comments off

It should come as no surprise that a country that calls Google Books “cultural rape” is the first country to pass a comprehensive graduated response regime, currently called HADOPI that we’ve been following for quite a while.

HADOPI 2 which was opposed by a group led by the French Socialist Party was approved by Les Sages, the French Constitutional Council, and is the law. This is a far cry from the “global license” debacle promoted by opponenents of artists in 2005 that would have brought Terry Fisher-type justice to the world, and which was resoundingly defeated in the National Assembly in 2006, then again by HADOPI 1 and now by HADOPI 2.

In other news, “Euro-MPs have backed away from an amendment that would have protected citizens’ online freedom. Amendment 138 – which would have made internet access a fundamental right that could not be cut off – has been watered down after pressure from governments.”


October 20, 2009 Comments off

When I was a first year law student, I accompanied a crusty litigation partner to an interview with a client. In discussing my preparation for the interview in the car on the way to our meeting , I called the partner’s attention to a discrepancy I had found in our client’s statements and the documentary record. He asked me what my explanation was for that discrepancy. I said on the one hand it could be x, and on the other hand….you don’t think our client would lie to us, do you?

The laugh that got is still echoing somewhere around Yellowknife.

On October 2, 2009, counsel for Plaintiffs learned new information revealing that Plaintiffs’ assertions were incorrect. Mr. Fairey was apparently mistaken about the photograph he used when his original complaint for declaratory relief was filed on February 9, 2009. [It doesn’t sound like he was “apparently” mistaken to me.]

After the original complaint was filed, Mr. Fairey realized his mistake. Instead of acknowledging that mistake, Mr. Fairey attempted to delete the electronic files he had used in creating the illustration at issue. [Of course–that’s what all “mistaken” people do, isn’t it? Cover their tracks?]

He also created, and delivered to his counsel for production, new documents to make it appear as though he had used the Clooney photograph as his reference.”

So he “created” “new documents” for “production”. He “created” these “new documents” all on his own? All by his lonesome? And production to whom? The court, perhaps?

Said another way, “Shepard Fairey has now been forced to admit that he sued the AP under false pretenses by lying about which AP photograph he used to make the Hope and Progress posters….Mr. Fairey has also now admitted to the AP that he fabricated and attempted to destroy other evidence in an effort to bolster his fair use case and cover up his previous lies and omissions.”

If “clean hands” is not a de facto fifth prong of fair use, it sure seems like it. Oopsie….

So if Mr. Fairey’s probation includes the prohibition “break no law” (very common–we’re not going to give you probation on this violation only to allow you to break another), I wonder how a little perjury conviction would fit in? A revocation of his probation do you think?

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