Update: Joshua Johnson’s KQED Forum on Rogue Sites

Update:  Ellen Seidler still has not recieved the promised call from Google lawyer and evidence expert Fred von Lohman.

I listened to an hour long discussion of the rogue sites legislation hosted by KQED’s Joshua Johnson today and had a few points that were not addressed directly or at all during the discussion among the host, Fred Von Lohman (whom MTP readers will remember as The Man 2.0 from the Electronic Frontier Foundation, evidence expert, and now a Google employee) and Rick Cotton of NBC-Universal, with Ellen Seidler and Rep. Darryl Issa joining briefly.

I got the impression that Johnson was new to the arguments and that he was not prepared to accept the enormity of what Google is up to–that’s understandable.  Even I used to joke about Eric Schmidt taking the Fifth at a Congressional hearing, I never thought it would actually happen.

Here are some points that either came up and weren’t fully addressed or in my view should have come up but didn’t.

1.  Jobs:  Johnson demonstrated a singular lack of interest in the fact that the AFL-CIO is backing rogue sites legislation.  Why? Because these sites steal American jobs–and these jobs are not just in “Hollywood”, not even the “Hollywood” diaspora that many states in the country are courting.  I realize that the Silicon Valley 1% of the 1% is proudly non-union, but surely Johnson knows that “collective bargaining” is not a bunch of VCs setting a valuation.

2.  Nobody Died From Rogue Sites:   This is actually not true.  An unknown number of consumers have suffered and possibly died from purchasing prescription drugs and counterfeit drugs online.  One example:  Ryan Haight. Senator Diane Feinstein (D-CA) authored the Ryan Haight Bill which became the Internet Pharmacy Consumer Protection Act–that would be Senator Diane Feinstein of the Senate Judiciary Committee that unanimously passed both COICA and the Protect IP Act.  Rogue sites legislation is directed at exactly the kind of behavior that the Ryan Haight Bill was designed to prevent.

A far as I can tell, Joseph A. Califano, Jr. coined the term “rogue sites” (former Health and Human Services Secretary in the Carter Administration and currently Chairman and President of CASA, the National Center for Addiction and Substance Abuse at Columbia University).  In a letter to Eric Schmidt in 2008, Secretary Califano implored Google to do something about the indiscriminate sale of drugs on the Internet promoted through the sale of advertising by Google (among others):

“This year, CASA found that 85 percent of Web sites selling these drugs do not require a legitimate prescription, and there are no controls blocking the sale of these drugs to children….CASA was able to find prominent displays of ads for rogue Internet pharmacies in a Google search for controlled drugs included in our analysis. This suggests that Google is profiting from advertisements for illegal sales of controlled prescription drugs online.”

Google ignored this letter according to Dr. Sanjay Gupta:

“For Califano, a longtime Washington insider, the ease and availability of online drugs is ‘a crime.’

‘To me, it’s an example of putting profits over people,’ he said. That’s what we’re talking about here. And it’s bad, really bad, because we’re talking about kids.'”

3.  Half A Billion Here, Half A Billion There:  Mr. Johnson (and Von Lohman, not surprisingly) brushed past Google’s stunningly large drug crime forfeiture of $500,000,000 under which it avoided being indicted. A few months ago, Google entered into a nonprosecution agreement with the U.S. Department of Justice to avoid being indicted for charges arising out of seven different sting operations conducted over eight years by the government’s prosecutors.  The conclusions of the multiple criminal investigations (and one assumes a grand jury investigation) was that Google was doing exactly what Secretary Califano suggested.

“Profiting from advertisements for illegal sale of controlled prescription drugs online.”

Google apparently thought so, too, because the company’s board authorized the payment of $500,000,000 of the stockholders’ money to keep the senior management of the company from being indicted.  So much so that on the advice of counsel, Eric Schmidt refused to answer certain questions on the matter under oath while testifying in front of the U.S. Senate Antitrust Subcommittee–although he did curiously admit that the drug advertising sales were made with his knowledge.

$500,000,000 of the stockholders’ money.  Half a billion.  And you can still go to Google right now and search for “buy oxycontin online no prescription” and Google’s Autocomplete will suggest you also might be interested in “buy oxycontin online no prescription cheap”.

4. “Censorship”, China and Iran

Von Lohman stayed on message that somehow the rogue sites legislation put the U.S. in the same trough with repressive regimes in China and Iran.  Aside from the fact that statements like these are directly contradicted by Secretary of State Hillary Clinton and by First Amendment authority Floyd Abrams, it should be clear to everyone now that this is a tactic by Google and others to wrap themselves in the First Amendment with new found friends the American Civil Liberties Union.  Aside from the fact that the ACLU received $7 million from Google in the Google Buzz case (May 31, 2011), why do I think this?

These tactics are best demonstrated in Winning the Web, an organizers manual for the anti-copyright movement sponsored by the Open Society Institute and written by an organizer of the UK group ORG, the UK based second cousin to the Electronic Frontier Foundation (see Stop 43).  A telling admission in that book is the following (at page 11):

“If [staying on message] means centring messaging on the IP mechanism itself, then is it easier, or harder, to find messaging that is suitably emotional as to appeal to the grassroots? Not all countries have a cultural history like Brazil’s which can easily accommodate the “remix” message. And as the ORG campaign suggests, campaigners are often faced with simple, instinctually appealing messages from the other side (“artists need to get paid”) that are difficult to beat with a focus on the IP mechanism.”

You will notice that opponents of rogue sites legislation in the US are fully aware of the need to shift the attention away from artist rights and onto something else that “is suitably emotional as to appeal to the grassroots”.  What might that be?

Again from Winning the Web, page 11 (emphasis added):

“Should IP reformists [sic] accept that the consumer rights agenda is the most appropriate home for their concerns, or is there room for IP-centred messaging that calls for action from citizens, and not consumers, that finds its home in the civil rights movement?”

So von Lohman‘s former (and if you ask me, present) cousins at the ORG suggest that their anti-copyright campaign should try to capture the “meme” of a noble campaign for fundamental rights–like free speech–to avoid having to deal honestly with the destruction they bring down on professional artists and members of the creative guilds and unions supporting the U.S. rogue sites legislation such as the Directors Guild of America, AFTRA, AFM, SAG, IA, and the AFL-CIO.

It should come as no surprise then, that we have seen this turn toward the absurd argument that rogue sites legislation is about “censorship” and the “Great Firewall of America”.  These messages are straight out of the Winning the Web playbook.

And guess who has the most to gain financially by deflecting attention away from that problem and onto “Hollywood”?  Mr. Johnson might have mentioned this because his entire program was, in its own way, a deflection.

5.  Proving the Counterfactual:  Johnson asked Seidler how much she lost as a result of illegal downloads of her film–that is, we know that your film was stolen, predict how much of what was stolen were lost sales?  This is a common question from those arguing that an artist’s claims of harm due to rampant digital theft are overstated.  If the artist cannot “prove” how much of the black market would have been income to them if not for theft, then the implied presumption usually is that there is no harm or that there is nothing that can be done about the harm because it cannot be “proved.”

This, of course, is fallacious reasoning and Johnson stepped right into it.  He also stepped right into another fallacy which is that theft is actually good for artists because it increases sales of legitimate goods, or as the Bloomberg editors would say, “relax and enjoy it.”  This conclusion is usually accepted uncritically although it is equally lacking in proof.  We’ve addressed this type of thinking many times on MTP, but the best example of how bad this really can get is the Government Accountability Office “study” of the harms of online theft that concluded the government should take into account the positive effects of counterfeit goods, i.e., crime, in setting policy.  Although the GAO denied that this was their intention in response to my FOIA request–despite the fact it is clearly stated in at least two places in their public study–the perception persists that there is no harm because the black market cannot be measured as easily as the Billboard chart.

Of course, if you ever tried to find out anything about those who are stealing your work, you would be condemned for invading the privacy of these anonymous thieves.

It was this part of the program that convinced me that Johnson was new to this, because these twin canards are so 1999.  Johnson seems like a smart guy–surely he did not think he was breaking new ground here?

6.  Free Expression and Boycotts

Much has been made of the boycott efforts of those opposing SOPA’s “censorship” to register their displeasure with companies like Godaddy.  Opponents transfer their domain registrations, a clearly defined set of property rights.  Godaddy does not require them to litigate their right to transfer their registrations, does not question whether the opponents “really” own these rights, or probably even check their identity.

Of course, artists can register their displeasure with Google by boycotting returning links to illegal copies of their works in search results, DMCA shakedowns, and the copying of their works by cyberlocker sites.

Oh, sorry–artists can’t do that.  Must be censorship.

Of course, Google is only too happy to disable a link when you get a final nonappealable judgement, file by file and pill by pill.

One thought on “Update: Joshua Johnson’s KQED Forum on Rogue Sites

  1. Good analysis of a program that I felt fell short in providing a true analysis of online piracy and Google’s role in fueling the anti-SOPA debate. At any rate, I’m still awaiting the promised phone call from Mr. Von lohmann. 😉

    In the meantime, despite his well-rehearsed talking points, I’m not impressed with Google’s efforts to disconnect itself from the profitable online piracy machine that sends dirty profits their way. Although I didn’t have the opportunity (time) to clearly say it on the program, my experiences with Google over the past year and half have consistently demonstrated to me that the company has no real interest in severing ties to pirate sites (and revenue). They are skilled at the requisite “spin” on the issue, but when push comes to shove, the “Google team” appears to do everything they can to obstruct artists who attempt to assert their legal rights. Were they truly concerned about our rights, a good first step would be to eliminate their tedious threats to forward DMCA complaints to Chilling Effects.

    As for the other examples cited by Mr. Von lohmann as proof of Google’s anti-piracy efforts, my blog posts pretty much sum up the true state of affairs on that front. Forgive me for sharing:

    Googlenocchio? What a Tangled Web They Weave: http://popuppirates.com/?p=1454

    The Road to Google DMCA Hell is Paved with Good Intentions…. :http://popuppirates.com/?p=1401
    “Show Me the Money” Mr. Schmidt :http://popuppirates.com/?p=1192

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