Seven Lessons from SOPA/PIPA/Megaupload and Four Proposals on Where We Go From Here

Seven Lessons from SOPA/PIPA/Megaupload and Four Proposals on Where We Go From Here
BY YOCHAI BENKLER
Wednesday, January 25 2012
<http://techpresident.com/news/21680/seven-lessons-sopapipamegauplaod-and-four-proposals-where-we-go-here>

We are pleased to publish this guest post on the lessons of the SOPA/PIPA/Megaupload fight by Yochai Benkler, Berkman Professor of Entrepreneurial Legal Studies at Harvard, faculty co-director of the Berkman Center for Internet and Society, and author of The Wealth of Networks and The Penguin and the Leviathan.

Lesson 1: The Networked Public Sphere comes to Washington.

On Wednesday, January 18, 2012, a new model of politics succeeded in bringing to a halt legislation that had been pushed by some of the most powerful industry lobbies in Washington, which began its life with broad bi-partisan support in both chambers of Congress. The Stop Online Piracy Act (SOPA) and the Protect IP Act (PIPA) were to be the most significant changes in intellectual property law since 1998, when a slew of laws, most importantly the Digital Millennium Copyright Act (DMCA) and the No Electronic Theft (NET) Act, first set the terms of engagement between the twentieth century incumbent cultural industries—mostly Hollywood and the recording industry—and the new forms of culture and creativity in the networked environment. By Friday January 20th, as Harry Reid announced that PIPA was not going to the floor of the Senate, Chris Dodd was raising a flag of truce on behalf of the Motion Picture Association of America (MPAA); suddenly, in the face of overwhelming political power the likes of which he told the New York Times he had not seen in forty years, the MPAA was ready to talk. But he wanted to talk to the tech industry; ignoring the fact that while the industry played a critical role in the opposition, it was the coalition combining for-profit and nonprofit; organized and decentralized; social-networked and blog/twitter-based action that successfully blocked the power of concentrated money on K Street.

It’s not up to the tech industry to negotiate on behalf of the millions of people who came to care.

Sure, Silicon Valley upped its lobbying game, and that was an important part of the story. But the turning point came when people who cared harnessed the network to concentrate human action. Whether it was the consumer boycott that put pressure on GoDaddy to abandon its support for the legislation, which caused other technology firms to shy away from supporting it; the constituents writing letters to their senators and representatives; or the remarkable democratic debate among hundreds of committed editors that preceded Wikipedia’s decision to shut down for a day, what we saw was that even in this day, when money is so powerful in American politics, people acting in concert can have a real impact.

For almost twenty years, the copyright industries have pushed hard against weak opposition, and extended the scope, reach, and aggressive enforcement of copyright to contain networked technology and resist networked culture. The political calculus seems to have changed drastically this week, and we need to understand how to exploit and harness the changing winds to expand and lock in this initial victory.

Lesson 2: Hollywood and the recording industry don’t like traditional copyright law, balanced by courts under due process constraints.

Copyright seems to be too balanced for the industry’s taste. Traditional copyright law has too many balances; too many reasons judges might prevent Hollywood from just shutting the whole thing down so people can be made to sit quietly on their couches and pay up. The bills were designed to try to create new pressure points that would allow either copyright owners or their associated functionaries at the Justice Department to kill threatening sites, without having to go to the trouble of identifying specific infringements or proving anything to a court. From the very beginning, in September of 2010, the first Senate bill, the Combating Online Infringements and Counterfeits Act (COICA), each successive version of the Act tried to avoid the inconvenience of actually having to prove that the site being targeted violated copyright law before inflicting mortal damage on that site. In that earliest version, the Justice Department was supposed to create a blacklist of “bad actors” by mere allegation; no proof necessary before these sites would start to be blocked. By the time SOPA was introduced, that power was directly granted to copyright owners for blocking payment systems and advertising, and again to the Justice Department, with slightly higher constraints, for blocking DNS service to the sites. Fundamentally, the aim of these laws was to replace the balance of copyright with a unilateral power to hobble or shut down whole sites suspected of helping piracy before a final determination of actual copyright liability, subject to all the balances that copyright has traditionally required between the rights of copyright owners and the rights of the public and later creators to use and build on the culture in which they are immersed.

Lesson 3: As the networked environment resists control, more of the flow of networked economy has to be sucked in to the enforcement vortex.

The Net is proving much harder to control than the industries anticipated when they got the Digital Millennium Copyright Act DMCA passed in 1998. In order to actually control materials on the Net, SOPA and PIPA tried to harness a range of technical, economic, and bureaucratic platforms, aimed to impede the functions of an ever-more-vaguely defined set of targets. Technical platforms included most prominently the DNS service and registrars and the search engines. Business platforms included payment systems and advertising systems. In order to achieve effective enforcement in a global digitally networked environment, Hollywood seems destined to try to draw an ever-larger set of platforms and actors into the risk of potential copyright and near-copyright liability.

[snip]

In China, Human Costs Are Built Into an iPad

January 25, 2012
In China, Human Costs Are Built Into an iPad
By CHARLES DUHIGG and DAVID BARBOZA
<http://www.nytimes.com/2012/01/26/business/ieconomy-apples-ipad-and-the-human-costs-for-workers-in-china.html>

The explosion ripped through Building A5 on a Friday evening last May, an eruption of fire and noise that twisted metal pipes as if they were discarded straws.

When workers in the cafeteria ran outside, they saw black smoke pouring from shattered windows. It came from the area where employees polished thousands of iPad cases a day.

Two people were killed immediately, and over a dozen others hurt. As the injured were rushed into ambulances, one in particular stood out. His features had been smeared by the blast, scrubbed by heat and violence until a mat of red and black had replaced his mouth and nose.

“Are you Lai Xiaodong’s father?” a caller asked when the phone rang at Mr. Lai’s childhood home. Six months earlier, the 22-year-old had moved to Chengdu, in southwest China, to become one of the millions of human cogs powering the largest, fastest and most sophisticated manufacturing system on earth. That system has made it possible for Apple and hundreds of other companies to build devices almost as quickly as they can be dreamed up.

“He’s in trouble,” the caller told Mr. Lai’s father. “Get to the hospital as soon as possible.”

In the last decade, Apple has become one of the mightiest, richest and most successful companies in the world, in part by mastering global manufacturing. Apple and its high-technology peers — as well as dozens of other American industries — have achieved a pace of innovation nearly unmatched in modern history.

However, the workers assembling iPhones, iPads and other devices often labor in harsh conditions, according to employees inside those plants, worker advocates and documents published by companies themselves. Problems are as varied as onerous work environments and serious — sometimes deadly — safety problems.

Employees work excessive overtime, in some cases seven days a week, and live in crowded dorms. Some say they stand so long that their legs swell until they can hardly walk. Under-age workers have helped build Apple’s products, and the company’s suppliers have improperly disposed of hazardous waste and falsified records, according to company reports and advocacy groups that, within China, are often considered reliable, independent monitors.

More troubling, the groups say, is some suppliers’ disregard for workers’ health. Two years ago, 137 workers at an Apple supplier in eastern China were injured after they were ordered to use a poisonous chemical to clean iPhone screens. Within seven months last year, two explosions at iPad factories, including in Chengdu, killed four people and injured 77. Before those blasts, Apple had been alerted to hazardous conditions inside the Chengdu plant, according to a Chinese group that published that warning.

[snip]

The Tech Industry Has Already Given Hollywood The Answer To Piracy; If Only It Would Listen

[Note:  This one is well worth reading!  DLH]

The Tech Industry Has Already Given Hollywood The Answer To Piracy; If Only It Would Listen
from the stop-shooting-yourself-in-the-foot dept
By Mike Masnick
Jan 25, 2012
<http://www.techdirt.com/articles/20120123/03464717508/tech-industry-has-already-given-hollywood-answer-to-piracy-if-only-it-would-listen.shtml>

While many in the press have really enjoyed claiming that the SOPA/PIPA fight has been about Hollywood vs. Silicon Valley, we’ve been pointing out for a while just how silly that is. Months ago, we pointed out that it’s a strange “fight” when one side (Silicon Valley) appears to give the other side all the weapons it needs to succeed (only to watch Hollywood then aim those weapons at its own feet). It’s been pointed out time and time again that Hollywood has a habit of looking a gift horse in the mouth… and accusing it of piracy, when it later turns out to be the answer to Hollywood’s prayers. 

When the White House came out against the general approach in SOPA and PIPA, it still said that a legislative response was necessary… and asked for the “best ideas” from the tech community and people online:

Washington needs to hear your best ideas about how to clamp down on rogue websites and other criminals who make money off the creative efforts of American artists and rights holders. We should all be committed to working with all interested constituencies to develop new legal tools to protect global intellectual property rights without jeopardizing the openness of the Internet. Our hope is that you will bring enthusiasm and know-how to this important challenge.
But, here’s the thing: as many of us have been saying for quite some time, the “best ideas” have nothing to do with legislation, because legislation is tackling thewrong problem. No amount of legislation or enforcement stops piracy. That’s been shown over and over again. What does help deal with infringement is offering a better service that gives consumers more of what they want in a reasonable and convenient manner. 

[snip]

Woz: iPhone – Best Overall Smartphone, But Android Has Leapt Ahead in Some Areas

Woz: iPhone – Best Overall Smartphone, But Android Has Leapt Ahead in Some Areas
Posted by iPhoneHacks
Jan 16, 2012
<http://www.iphonehacks.com/2012/01/woz-iphone-best-overall-smartphone-android-leapt-ahead.html>

Apple’s co-founder Steve Wozniak in an interview with Dan Lyons (aka Fake Steve Jobs) compared Google’s Android with Apple’s iPhone. He also spoke about the issue with Siri and iPhone 4S battery issues.

Here are some of the highlights from that interview:

• Woz thinks Apple’s iPhone is the best overall smartphone, but he says there are ways in which Android has leapt ahead of Apple. “My primary phone is the iPhone,” Woz says. “I love the beauty of it. But I wish it did all the things my Android does, I really do.”
• Woz says voice commands work better on Android. Android’s built-in navigation system, where the phone acts like a GPS system, is another advantage, he says.
• Android phones aren’t as simple to use as the iPhone, but they’re not that much more complicated, and “if you’re willing to do the work to understand it a little bit, well I hate to say it, but there’s more available in some ways,” Woz says.
• Woz says he’s been using Siri for a long time and used to love it when it was an independent application created for the iPhone. But ever since Apple bought Siri and built the software into theiPhone 4S, it doesn’t work as well as it used to.
• With the iPhone 4 I could press a button and call my wife. Now on the 4S I can only do that when Siri can connect over the Internet. But many times it can’t connect. I’ve never had Android come back and say, ‘I can’t connect over the Internet.’”

[snip]

The 3-D Printing Pirates Who Could Render SOPA Meaningless

[Note:  Another take on the Pirate Bay going 'physibles' as the story starts to hit the mainstream tech press.  DLH]

The 3-D Printing Pirates Who Could Render SOPA Meaningless
BY KIT EATON
Tue Jan 24, 2012
<http://www.fastcompany.com/1810904/in-the-printable-3d-object-world-piracy-of-ip-gets-even-trickier>

The Pirate Bay loves to be controversial–how could it not be, with its very existence an affront to much of the political mechanisms of American government? And now the organization is suggesting something that, in the light of the semi-failed SOPA/PIPAattempt to regulate the Net and squash piracy, casts an interesting light on the future of file pirating: What will happen in terms of IP rights and piracy when 3-D printed objects become commonplace?

Pirate Bay has labeled these 3-D objects “physibles,” “data objects that are able (and feasible) to become physical,” and suggests that in the near future it’s files of physibles that’ll be the hottest pirated data online, in the same way music, movies, and TV shows are nowadays. That’s because the file for a physible is effectively the recipe for making the final object–which could quite possibly be a handbag, a mug, or ultimately something as complex as a sneaker.

The legal and intellectual wrangling goes like this: If you’ve got a sophisticated 3-D printer on your desk, sometime around 2020, say, pirating a physible from a site like Pirate Bay and then printing it out is almost the same as stealing the object from a store. Almost. Because no physical “theft” has happened, and you’re merely borrowing the idea, the IP. Yet you are still denying the company that originally came up with the idea any payment. That argument is at the core of the SOPA/PIPA debate, and it’s partly why the U.S. just crashedMegaupload’s party so very enthusiastically.

[snip]

Justices Finally Notice Naked Statues In The Supreme Court While Arguing Why Nudity Should Be Censored

Justices Finally Notice Naked Statues In The Supreme Court While Arguing Why Nudity Should Be Censored
from the oops dept
By Mike Masnick
Jan 16, 2012
<http://www.techdirt.com/articles/20120116/03412317416/justices-finally-notice-naked-statues-supreme-court-while-arguing-why-nudity-should-be-censored.shtml>

We’ve been covering the various court fights over the right of the FCC to fine TV networks overindecency — including “fleeting” expletives and nudity. The Supreme Court heard the latest case last week (we got behind on coverage due to CES), and it certainly sounds like the Supreme Court Justices are perfectly happy with censoring the public airwaves. Reading the quotes from the transcript, it’s really quite ridiculous. The Justices seem to spend a lot more time prudishly discussing what they think is appropriate, rather than the actual legal issues. Take, for example, Justice Antonin Scalia — the supposed constructionalist who goes by the word of the Constitution:

“Sign me up as supporting Justice Kennedy’s notion that this has a symbolic value, just as we require a certain modicum of dress for the people that attend this Court and the people that attend other Federal courts. It’s a symbolic matter…These are public airwaves, the government is entitled to insist upon a certain modicum of decency. I’m not sure it even has to relate to juveniles, to tell you the truth.”

I’m curious where in the First Amendment it says that Congress shall make no law… except wherein it involves requiring a modicum of decency. But the best part of the hearing came when, after the Justices got worked up about the idea of nudity on TV, one of the lawyers, Seth Waxman wondered about all the nudity right in the Supreme Court itself:

He said government often fails when it gets into the business of trying to understand context, as it purportedly did when it fined ABC for showing fleeting nudity on NYPD Blue. 

“Right now, the commission has pending before it… complaints about the opening episode of the last Olympics, which included a statue very much like some of the statues that are here in this courtroom, that had bare breasts and buttocks,” he told the Supreme Court. 

Waxman then pointed around the room. “There’s a bare buttock there and there’s a bare buttock here.” 

As the crowd snickered, Scalia admitted that he hadn’t noticed it before now.

[snip]

Obama: Foreign Internet piracy is ‘not right’

Obama: Foreign Internet piracy is ‘not right’
The Hill
By Brendan Sasso

President Obama did not refer to the recent controversy over Internet piracy bills in his State of the Union address Tuesday night, but he argued that other countries must protect American copyrights.

“It’s not right when another country lets our movies, music, and software be pirated,” Obama said.

<http://thehill.com/blogs/hillicon-valley/technology/206331-obama-foreign-internet-piracy-is-not-right>

‘SETH GODIN’: If You’re An Average Worker, You’re Going Straight To The Bottom

‘SETH GODIN’: If You’re An Average Worker, You’re Going Straight To The Bottom
By Vivian Giang
Jan. 19, 2012
<http://www.businessinsider.com/if-youre-an-average-worker-in-this-forever-recession-youre-going-straight-to-the-bottom-2012-1>

The way we do business is changing fast and in order to keep up, your entire mentality about work has to change just as quickly.
Unfortunately, most people aren’t adapting fast enough to this change in the workplace, says marketing guru Seth Godin in an interview with the Canadian talk show”George Stroumboulopoulos Tonight” (via Pragmatic Capitalism).

According to the founder of Squidoo.com and author of 13 books, the current “recession is a forever recession” because it’s the end of the industrial age, which also means the end of the average worker.

“For 80 years, you got a job, you did what you were told and you retired,” saysthe former vice president of direct marketing at Yahoo! People are raised on this idea that if they pay their taxes and do what they’re told, there’s some kind of safety net, or pension plan that’s waiting for them. But the days when people were able to get above average pay for average work are over.

If you’re the average person out there doing average work, there’s going to be someone else out there doing the exact same thing as you, but cheaper. Now that the industrial economy is over, you should forget about doing things just because it’s assigned to you, or “never mind the race to the top, you’ll be racing to the bottom.”

[snip]

Ignorance is bliss

Ignorance is bliss
Forensic scientists know too much about the cases they investigate
Jan 21st 2012
<http://www.economist.com/node/21543121>

AS ALL fans of crime fiction know, DNA is the gold standard of forensic science. Or is it? Itiel Dror, a cognitive psychologist at University College, London, thinks this doctrine of infallibility needs to be questioned. His problem is not with the technology itself, but with the way it is deployed. For he has gathered evidence that DNA examiners’ interpretations of their results are, at least in complex cases, open to subjectivity and bias.

When America’s National Academy of Sciences produced a report on the state of forensic science in 2009, it criticised many of the methods then in use. Citing earlier research by Dr Dror, the report’s authors stated, for example, that fingerprint examiners’ claims of zero error rates were scientifically implausible. DNA, however, was spared their criticism. Now Dr Dror and Greg Hampikian, a forensic biologist at Boise State University in Idaho, have published a study in Science & Justice that suggests all is not shipshape in the domain of the double helix either.

Do Not Adulate

Dr Dror’s and Dr Hampikian’s experiment presented data from a real case to 17 DNA examiners working in an accredited government laboratory in North America. The case involved a gang rape in the state of Georgia, in which one of the rapists testified against three other suspects in exchange for a lighter sentence, as part of a plea bargain. All three denied involvement, but the two DNA examiners in the original case both found that they could not exclude one of the three from having been involved, based on an analysis of swabs taken from the victim.

As is almost always true in forensic-science laboratories, these examiners knew what the case was about. And their findings were crucial to the outcome because in Georgia, as in many other states, a plea bargain cannot be accepted without corroborating evidence. However, of the 17 examiners Dr Dror and Dr Hampikian approached—who, unlike the original two, knew nothing about the context of the crime—only one thought that the same suspect could not be excluded. Twelve others excluded him, and four abstained.

Though they cannot prove it, Dr Dror and Dr Hampikian suspect the difference in contextual information given to the examiners was the cause of the different results. The original pair may have subliminally interpreted ambiguous information in a way helpful to the prosecution, even though they did not consciously realise what they were doing.

[snip]

Watts next

Watts next
By The Economist online
Jan 25th 2012
<http://www.economist.com/blogs/graphicdetail/2012/01/energy>

What will be fueling the world in 2030

THE world will consume 40% more energy in 2030 than it does today, according to BP’s World Energy Outlook, though the rate of growth will decrease from around 2.5% a year over the past decade to an annual rate of 1.3% in 2020-30. One source of power has always dominated the energy mix—wood in the pre-industrial age, coal in the industrial revolution and then oil in the 20th century. But by 2030 trends in the energy mix will see fuel shares converge for the first time as gas gains in importance.The amount of energy needed to produce a unit of GDP will also converge as globalization drives energy efficiency, making economic growth far less energy intensive everywhere in the world.

[snip]