digital rights – Techdirt (original) (raw)

The Barlowian Internet: The Faults Of The Internet Are Also Its Opportunity, But It's Up To Us To Embrace Them

from the a-remembrance dept

John Perry Barlow is all too frequently held up as the patron saint of a sort of “techno-utopian” internet, in which the internet will save us all and open up all sorts of wonderment and good feels — and all the bad stuff is whisked away on a rainbow cloud of TCP/IP. Critics of Barlow sometimes delight in mocking his flowery language or predictions that didn’t come quite true (though many did). They especially delight in pointing to the current internet hellscape as proof that Barlow’s vision of the internet-for-good was a vision through impossibly rose-colored glasses. As I noted upon his passing, this is a near total misunderstanding of Barlow, who saw both the promise and the peril of the internet, and his writings were designed as a call to action for those developing the future (i.e., all of us), to embrace the good and avoid the bad. His presentments were an attempt to urge us all in the right direction, not a suggestion that that direction was inevitable, or easy, or guaranteed.

That framing is useful context for reading through an amazing collection of essays and reflections on Barlow put together by Duke’s Law & Technology review, in what it has entitled The Past and Future of The Internet: A Symposium for John Perry Barlow. Edited by Jamie Boyle, with some amazing contributions from folks like Cindy Cohn, Cory Doctorow, Yochai Benkler, Pam Samuelson, Jessica Litman, Jonathan Zittrain and more, it’s absolutely worth reading, no matter where you stand on Barlow and his legacy. It is not — as you might think — a hagiography designed solely to praise Barlow. Indeed, it contains quite a few essays that are critical of Barlow — arguing that he was over-optimistic, that he didn’t recognize the downsides of the internet, and that he was misguided in his views of how the internet and (especially) copyright law might change over time.

There is much in this collection of essays that are thought-provoking and challenging (just as Barlow himself often was). Boyle’s own contribution, which I’d argue is incorrectly titled Is The Internet Over?! (Again?), might be seen as a summation of all the papers in the rest of the collection, but I actually think it’s much more important than that. Towards the beginning of his piece, Boyle laments the fact that so many of his law students don’t actually understand how the internet works. And, that’s a much bigger problem than you might think:

I teach at a law school that has world-class faculty and brilliant students. Their breadth of learning humbles me on a daily basis. But many of them do not understand the network architecture that is so central to their lives. Of course, it is not their specialty. Yet they understand the basic explanation of anthropogenic climate-change, the idea of externalities in economics, the broad strokes of the history of civil rights in the United States, the debate about whether minimum wages are good for poor workers and the issues raised by the use of drones in armed conflict. They fluently invoke the concept of noir cinema and make jokes about magical realist fiction when a faculty meeting turns bizarre. They are, in short, profoundly well-rounded, educated people, knowledgeable beyond their own specialties. But they do not really understand the internet or the world wide web. That is a shame.

It is a shame because understanding the most important communications network of our time, the network for our culture and news and search and flirting and shopping and politics, is central to knowing how?or whether?to regulate it. To build on it. To use it. As I will try to explain, some of the features of the internet that its critics view as its main problems?anonymity, the fact that anyone can connect to the internet and say anything, the difficulty of filtering it or managing it, its decentralized anarchic governance?are also among its transformative and engaging features. It is a shame for us not to understand all this because the network that shapes our cognitive world, defines our markets, and runs our infrastructure is as important as the rest of the things a ?well-rounded person? knows about. But it is also a shame because Berners-Lee?s idea was beautiful. It was an idea that a scholar would come up with and that a scholar would love. Now it is central to our world. Yet somehow it progressed from bizarre novelty to essential utility without ever passing through the intermediate stage of public comprehension.

And while he’s actually talking about the work of Tim Berners-Lee here, rather than Barlow, I think much of the same applies to Barlow and his vision of the world, and why so many are perplexed by it or misinterpret it. In the same sense that so many people see only the “techno-utopian” appeals of Barlow, they see only the downsides, negatives, and costs of today’s internet. What they miss is that these two things are, in many ways, connected at the hip. What enables all this good stuff is also what enables the bad. What enables boundless creativity and optimism and innovations… also enables surveillance, centralized dominant platforms, trolls and more.

Barlow wasn’t ever saying that we’d get one without the other. He was saying that we need to truly understand the upside to better protect against the downside — and his (reasonable) fear was that in trying to fight back against the very real downsides, people, who did not understand the overall system and how it worked together, would very much destroy the good of the internet in a short-sighted focus on the bad.

That risk remains more true today than ever before.

Indeed, to those who say that Barlow was just a purely techno-utopian dreamer, Doctorow’s piece has the perfect antidote:

When Barlow advocated for a free internet???free? in all the usefully overlapping and ambiguous senses of that word??he wasn?t doing so because he lacked an appreciation of the risks of a monopolized internet, or an internet that was under the thumb of a repressive state. Rather, he did so precisely because he feared that a globe-spanning network of ubiquitous, sensor-studded, actuating devices that were designed and governed without some kind of ethical commitment, without the pioneering spirit of the early internet and its yeoman smallholders who defended it from those who sought to dominate or pervert it, that we would arrive at a dystopian future where the entertainment industry?s Huxelyism was the means for realizing the nightmares of Orwell.

You don?t found an organization like the Electronic Frontier Foundation because you are sanguine about the future of the internet: you do so because your hope for an amazing, open future is haunted by terror of a network suborned for the purposes of spying and control.

But there’s a flip side to all of this, some of which comes out in the essays — though I wish there were more. Barlow’s hope is very much out of favor today, even if many of his claims about the good of the internet did, in fact, come true. Along with it came much of the bad, and the prevailing narrative today seems to dismiss all of the good and focus solely on the bad. The days of merely concerning ourselves with the fights over copyright online have mostly fallen by the wayside, with so much focus now on things like terrorist content, mis- and disinformation, human trafficking, illegal drug abuse, trolls, hate speech, and more.

But the key point is still there. The key, underlying truth behind what Barlow meant to the internet remains. Yes, the open and free internet has enabled all of this. But it has enabled so much more that is good and useful and innovative and powerful. And we should not forget that. Indeed, forgetting it, and focusing solely on the bad stuff is a recipe for destruction of that which is good on the internet. It is exactly what Barlow feared most.

Those of us who fight to keep the internet open and free don’t do it because we’re ignoring or downplaying the bad things that have occurred and do exist on the internet. We’re not blind to the power that a few large companies have taken in shaping the current internet. But we’re fearful of how misguided attempts to stop the bad are almost always being done without an understanding of the flipside. As Boyle notes in his essay, it’s that lack of understanding and recognition that, yes, anonymity can lead to trolling, but it can also lead to amazing communities where the oppressed and isolated can connect with others and work for a better world. Yes, the fact that the internet is open can lead to greedy surveillance or companies trying to observe our every move — but it also enables anyone to create something amazing, whether for fun or for profit, and has created tons of new jobs, new products, new services, and just plain fun. Yes, governments can use the internet for oppression and surveillance, but people can use it to organize and make change as well.

The point Barlow was pushing for was that we need to understand the good opportunities to know how to stop the overreaction in the other direction. Yes, it’s important to think about ways to limit all of the bad stuff described above, but we need to do it in ways that enhance the good, not kill it off. We should encourage privacy through encryption, not deputizing large companies to “protect” us. We should encourage competition through making it easier for new internet services to come about, not through locking in the dominance of Facebook and Google as “utilities.” We should encourage good behavior online by allowing for widespread experimentation in models to figure out what works for each community, rather than mandating a strict course of action that all platforms must follow.

John Perry Barlow saw the good and the bad of the internet, and recognized, inherently, that they were tied together. He promoted the utopian possibilities of the internet not because he was ignorant of the bad side, but because he knew that if people didn’t recognize those possibilities, they’d likely be snuffed out in an overzealous attempt to protect us from the “bad” stuff that came with it. As we’re now in an era where many of Barlow’s worst fears are within the realm of possibility, now is the time to revisit Barlow’s vision and understanding.

We need to understand the possibilities and opportunities of the internet — not because we’re utopians who think it’s coming naturally. But because we know that without understanding what’s possible, we’ll lock it away forever.

Filed Under: digital rights, free and open internet, james boyle, john perry barlow, opportunities, optimism, techno utopian

Don't Believe Those Who Wish To Diminish Digital Rights By Falsely Implying It's All Big Tech Lobbying

from the people-know-how-digital-rights-work dept

As we have been covering in the last couple of weeks, a controversial EU Copyright Directive has been under discussion at the European Parliament, and in a surprising turn of events, it voted to reject fast-tracking the tabled proposal by the JURI Committee which contained controversial proposals, particularly in Art 11 and Art 13. The proposed Directive will now get a full discussion and debate in plenary in September.

I say surprising because for those of us who have been witnesses (and participants) to the Copyright Wars for the last 20 years, such a defeat of copyright maximalist proposals is practically unprecedented, perhaps with the exception of SOPA/PIPA. For years we’ve had a familiar pattern in the passing of copyright legislation: a proposal has been made to enhance protection and/or restrict liberties, a small group of ageing millionaire musicians would be paraded supporting the changes in the interest of creators. Only copyright nerds and a few NGOs and digital rights advocates would complain, their opinions would be ignored and the legislation would pass unopposed. Rinse and repeat.

But something has changed, and a wide coalition has managed to defeat powerful media lobbies for the first time in Europe, at least for now. How was this possible?

The main change is that the media landscape is very different thanks to the Internet. In the past, the creative industries were monolithic in their support for stronger protection, and they included creators, corporations, collecting societies, publishers, and distributors; in other words the gatekeepers and the owners were roughly on the same side. But the Internet brought a number of new players, the tech industry and their online platforms and tools became the new gatekeepers. Moreover, as people do not buy physical copies of their media and the entire industry has moved towards streaming, online distributors have become more powerful. This has created a perceived imbalance, where the formerly dominating industries need to negotiate with the new gatekeepers for access to users. This is why creators complain about a value gap between what they perceive they should be getting, and what they actually receive from the giants.

The main result of this change from a political standpoint is that now we have two lobbying sides in the debate, which makes all the difference when it comes to this type of legislation. In the past, policymakers could ignore experts and digital rights advocates because they never had the potential to reach them, letters and articles by academics were not taken into account, or given lip service during some obscure committee discussion just to be hidden away. Tech giants such as Google have provided lobbying access in Brussels, which has at least leveled the playing field when it comes to presenting evidence to legislators.

As a veteran of the Copyright Wars, I have to admit that it has been very entertaining reading the reaction from the copyright industry lobby groups and their individual representatives, some almost going apoplectic with rage at Google’s intervention. These tend to be the same people who spent decades lobbying legislators to get their way unopposed, representing large corporate interests unashamedly and passing laws that would benefit only a few, usually to the detriment of users. It seems like lobbying must be decried when you lose.

But to see this as a victory for Google and other tech giants completely ignores the large coalition that shares the view that the proposed Articles 11 and 13 are very badly thought-out, and could represent a real danger to existing rights. Some of us have been fighting this fight when Google did not even exist, or it was but a small competitor of AltaVista, Lycos, Excite and Yahoo!

At the same time that more restrictive copyright legislation came into place, we also saw the rise of free and open source software, open access, Creative Commons and open data. All of these are legal hacks that allow sharing, remixing and openness. These were created precisely to respond to restrictive copyright practices. I also remember how they were opposed as existential threats by the same copyright industries, and treated with disdain and animosity. But something wonderful happened, eventually open source software started winning (we used to buy operating systems), and Creative Commons became an important part of the Internet’s ecosystem by propping-up valuable common spaces such as Wikipedia.

Similarly, the Internet has allowed a great diversity of actors to emerge. Independent creators, small and medium enterprises, online publishers and startups love the Internet because it gives them access to a wider audience, and often they can bypass established gatekeepers. Lost in this idiotic “Google v musicians” rhetoric has been the threat that both Art 11 and 13 represent to small entities. Art 11 proposes a new publishing right that has been proven to affect smaller players in Germany and Spain; while Art 13 would impose potentially crippling economic restrictions to smaller companies as they would have to put in place automated filtering systems AND redress mechanisms against mistakes. In fact, it has been often remarked that Art 13 would benefit existing dominant forces, as they already have filtering in place (think ContentID).

Similarly, Internet advocates and luminaries see the proposals as a threat to the Internet, the people who know the Web best think that this is a bad idea. If you can stomach it, read this thread featuring a copyright lobbyist attacking Neil Gaiman, who has been one of the Internet celebrities that have voiced their concerns about the Directive.

Even copyright experts who almost never intervene in digital rights affairs the have been vocal in their opposition to the changes.

And finally we have political representatives from various parties and backgrounds who have been vocally opposed to the changes. While the leader of the political opposition has been the amazing Julia Reda, she has managed to bring together a variety of voices from other parties and countries. The vitriol launched at her has been unrelenting, but futile. It has been quite a sight to see her opponents both try to dismiss her as just another clueless young Pirate commanded by Google, while at the same time they try to portray her as a powerful enemy in charge of the mindless and uninformed online troll masses ready to do her bidding.

All of the above managed to do something wonderful, which was to convey the threat in easy-to-understand terms so that users could contact their representatives and make their voice heard. The level of popular opposition to the Directive has been a great sight to behold.

Tech giants did not create this alliance, they just gave various voices access to the table. To dismiss this as Google’s doing completely ignores the very real and rich tapestry of those defending digital rights, and it is quite clearly patronizing and insulting, and precisely the reason why they lost. It was very late until they finally realized that they were losing the debate with the public, and not even the last-minute deployment of musical dinosaurs could save the day.

But the fight continues, keep contacting your MEPs and keep applying pressure.

Reposted from the TechnoLlama blog.

Filed Under: article 11, article 13, copyright, copyright directive, digital rights, eu, eu copyright directive, internet freedom

Germany's Leading Digital Rights Blog Netzpolitik.org Accused Of 'Treason' After Leaking Bulk Surveillance Plans

from the still-enough-disk-space dept

Netzpolitik.org is arguably the most influential German blog in the realm of digital rights. It played a key role in marshalling protests against ACTA three years ago. You’d think the German government would be proud of it as an example of local digital innovation, but instead, it seems to regard it as some kind of traitor:

> The president of the German domestic secret service has filed criminal charges with the public prosecutor because of two of our articles. The accusation: leaking state secrets.

Those two articles concerned a leak about extending bulk surveillance of online users (original in German), and plans to create a new department of the German secret service to extend its Internet surveillance capabilities (in English.) As Netzpolitik’s founder and Editor-in-chief, Markus Beckedahl, explains, he decided to publish this information because it showed that despite Edward Snowden’s revelations about NSA surveillance, the German government still thinks the best way of spending taxpayers’ money is by spying on them. He adds:

> Naturally, we uploaded the original documents relating to our article because there was still enough disk space and because it is part of our philosophy to enable our readers to inform themselves using the original source. Thus, they can scrutinise us and our reporting. > > Apparently, this suffices for a twice charge for treason because it seems to be confidential when the Federal Office for the Protection of the Constitution expands the Internet?s surveillance and keeps social networks under surveillance using the dragnet principle. This affects everybody, e.g. we could be under surveillance because we have sign up for the same Facebook event as a potential terrorist. But a public debate thereon is undesired.

This is not the first time that the German government has given Netzpolitik.org a hard time:

> Already in the autumn of 2014, the German Federal Chancellery (German: Bundeskanzleramt, translator?s note) has threatened us with a charge which was also announced but later on abandoned.

Like the present case, that seems a clear attempt to intimidate reporting. As Beckedahl points out, even though the new hunt for whistleblowers is not aimed directly at the blog and its journalists, they are likely to be caught up in any investigation, probably just to act as a warning:

> It is very rare that the German Federal Public Prosecutor investigates against journalistic sources. We could not find any case since 2005. Now we shall experience the full rigour of the constitutional state. The charge is not directed straight to our reporting but we are nevertheless affected. We are mentioned and have to expect to be under surveillance and possibly to be subject to a house search.

What makes this kind of bullying doubly outrageous is that there is a rather bigger story regarding the press in Germany: the fact that both the NSA and CIA spied on the news magazine Der Spiegel. And yet rather than investigate that fact, or that other newspapers seem to have been victims too, the German government is more concerned about intimidating journalists that dare to report on its own plans to spy on millions of its citizens.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: chilling effects, digital rights, germany, investigative reporting, surveillance, treason, whistleblowing
Companies: nezpolitik

Eric Holder's Near Total Lack Of Concern For Digital Rights

from the disappointing-legacy dept

We already discussed Eric Holder’s absolute failure on issues related to the press and media, but a great article by Tim Wu in the New Yorker details how Holder’s legacy is littered with him totally failing the digital world through a combination of ignorance, neglect and simply poor decision-making. Wu points to the prosecutions of both Chelsea Manning and Aaron Swartz as examples, noting Holder’s awful response when asked about the Swartz prosecution:

Holder himself did not run that prosecution, and cannot be blamed directly for it. But, in the aftermath of Swartz?s suicide, he was presented with an opportunity to step back and examine what had happened. He might have taken a careful look at how the Justice Department was enforcing the underlying law, the Computer Fraud and Abuse Act, which, as I and others have argued, is among the worst and most dangerous sections of United States federal law. If he had, he might have noticed that the Swartz prosecution wasn?t the first of its kind and wouldn?t be the last, and pushed for better enforcement guidelines for federal prosecutors.

Holder did not take that path?the kind of reflection, notably, that he would demand of the Ferguson police department. Instead, he blandly defended his prosecutors, and even testified before the Senate that prosecuting Swartz was ?a good use of prosecutorial discretion.? In that moment, he lost a good deal of the tech community?s goodwill and respect.

On the question of Ed Snowden and surveillance, Wu notes that Holder failed to uphold the Constitution in blocking the abuses, but rather appears to have signed off on them.

Holder didn?t initiate the bulk collection of phone or e-mail records; nor did he run the N.S.A. But Holder, as the Administration?s top lawyer for half a dozen years, nonetheless bears responsibility for these gross and repeated violations of Constitutional principles. It is ultimately the Justice Department?s duty to stand up for the Constitution when other parts of government want to abandon it, and this Holder failed to do.

There’s more in the article as well, but the key point seems to be that Holder just seemed fundamentally unconcerned about digital rights, and that’s a problem in an increasingly digital world:

Mainly, in the end, Holder seems to have not truly grasped that our rights matter online as well as offline. He never appeared sensitive to the idea that having our e-mails read by the government can be as intrusive and as unpleasant as having government agents rifle through our desks. Whatever the reason, and even if his commitment to civil rights did not waver, his disregard for digital rights was blatant and painful for those who looked to and hoped for an Obama Administration that would become the much promised ?tech Presidency.?

The fact that the rumored “leading” choice to replace Holder is current Solicitor General Donald Verrilli, the former top litigator for both the MPAA and RIAA — who handled the lawsuits against Grokster, YouTube and Jammie Thomas, among others, doesn’t exactly bode well that Holder’s successor will be much of a champion of digital rights either. There are, however, some other choices on the table apparently, and it would be nice if future attorneys general actually recognized the importance of digital rights as well.

Filed Under: attorney general, civil rights, digital rights, eric holder, privacy, technology

Kim Dotcom Forming New Political Party In New Zealand

from the never-a-dull-moment dept

Whatever your views about Kim Dotcom, you have to admire his dogged fight against extradition from New Zealand, not least because it has revealed some serious abuses of power against dozens of people. Now it seems he is taking things a stage further, if this recent tweet is any indication:

My embryonic NZ political plans leaked by whistleblower. Still looking for partners. Not ready yet 🙂 pic.twitter.com/azpTQm98kJ

— Kim Dotcom (@KimDotcom) August 31, 2013

In case you can’t read that, it says:

> My embryonic NZ political plans leaked by whistleblower. Still looking for partners. Not ready yet 🙂

TorrentFreak has more details:

> The photograph of the magazine [shown in the tweet above] suggests that Dotcom might become PM, but speaking with TorrentFreak today the Mega founder told us that at least for now, that won’t be possible. > > “I’m not a citizen of New Zealand and therefore I can’t be elected into Parliament myself but I can be the president of a new party,” Dotcom explained. > > So, with an eye on his presidency, work is already underway to form a brand new party. > > “I have created a draft political program and I am in the early stages of meeting potential candidates to join me,” Dotcom added.

Another tweet spells out what might be in that program:

> After the 2014 election I will get New Zealanders a new submarine cable [to connect New Zealand to the rest of the Internet], fair Internet pricing & no more data caps.

General elections don’t take place in New Zealand until November 2014, so he still has some time. He’s already mentioned that the party’s official Web site will be launched at a “big event” on 20 January next year — the second anniversary of the raid on his house that started everything.

New Zealand’s current Prime Minister, John Key, said on a breakfast TV program that Dotcom should call his political party the “nohope” party. It remains to be seen whether Dotcom follows through with this idea, and what traction he gains. But the success around the world of the Pirate Party, with a platform largely focused on copyright reform, and the rise of other non-traditional movements such as the fledgling Wikileaks Party in Australia, shows that dismissing Dotcom’s plans as hopeless may turn out to be unwise. While any individual party may not succeed, the fact that so many are popping up shows how little traditional political parties seem to grasp how important these issues are to many internet users.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: copyright, digital rights, internet freedom, kim dotcom, new zealand, political parties

Successful Self-Published Ebook Authors Sells Print & Movie Rights For $1 Million, But Keeps Digital Rights To Himself

from the it's-all-about-the-leverage dept

We’ve pointed out time and time again that there are still roles for the former gatekeepers in various content industries, but those roles are changing, because they now need to be enablers, helping to do things that content creators can’t do on their own. We’ve also pointed out that one thing that “direct to fan” and other offerings have done is give content creators much more leverage in dealing with those traditional gatekeepers. It used to be, if you were a first time author, you didn’t have very much leverage at all. You accepted the tiny advance and crappy book deal offered to you, in which the publisher basically took control over your work almost entirely, leaving a tiny royalty for you should you ever earn back the advance. However, the WSJ recently wrote about how self-publsihed ebook author Hugh Howey (who wrote the hugely popular Wool “postapocalyptic thriller” and sold half a million ebook copies) then sold the print rights to the book to Simon & Schuster and the movie rights to Ridley Scott for around $1 million but was able to retain the digital rights to the book for himself.

That is how leverage works. It’s also a recognition of where a publisher can actually help. Howey knows that he can sell the digital book himself. He doesn’t need any help with digital production, distribution or promotion. However, the physical book is a very different story, so having a big publisher handle printing and distribution for the physical book makes sense — and given the fact he didn’t need the help of a publisher, he was able to negotiate this more equitable deal. He notes that other publishers offered more money for a complete package, but it was easy to walk away, knowing he was making plenty of money on his own directly with the ebooks.

As the WSJ notes, it’s all about the shifting balance of power, such that publishers no longer hold all the cards:

It’s a sign of how far the balance of power has shifted toward authors in the new digital publishing landscape. Self-published titles made up 25% of the top-selling books on Amazon last year. Four independent authors have sold more than a million Kindle copies of their books, and 23 have sold more than 250,000, according to Amazon.

Publishing houses that once ignored independent authors are now furiously courting them. In the past year, more than 60 independent authors have landed contracts with traditional publishers. Several won seven-figure advances. A handful have negotiated deals that allow them to continue selling e-books on their own, including romance writers Bella Andre and Colleen Hoover, who have each sold more than a million copies of their books.

Simon & Schuster even admits that it wanted all of the rights, but that under these “unusual circumstances” it had no other choice. I get the feeling those “circumstances” will become less and less “unusual” going forward.

Filed Under: digital rights, ebook, hugh howey, self-publishing, wool
Companies: simon & shuster