machine-envy

(originally published on openDemocracy)

American free speech is being squeezed by bad case law and the disproportionate power of intellectual property owners. US citizens must be vigilant, says Becky Hogge.

While the Bush administration stands accused of complicity in torture, corrupting the political process, and spying on its own citizens, the average American may find it hard to summon up the energy to get angry about copyright law. But a report published in December by New York University’s Brennan Center for Justice should make any American possessing even a passing familiarity with the works of George Orwell choke on their coffee.

Will Fair Use Survive?: Free expression in the age of copyright control represents a year-long survey of the health of “fair use”, a provision in US law that exists to ensure First Amendment rights when handling material protected by copyright and trademark law. The prognosis delivered by the report’s authors Majorie Heins and Tricia Beckles is grim. It seems that legal haziness surrounding fair use, and an increasing will among intellectual property owners to pursue infringement-related grievances through a prohibitively expensive legal system, are combining to stifle free expression.

Fair use is what lets me discuss the Brennan Center report in the first place. By quoting its title I am technically infringing the authors’ intellectual property rights (or the Brennan Center’s, depending on the terms of Heins’ and Beckles’ employment contracts). But because I am engaged in what the 1976 Copyright Act describes as “criticism, comment, news reporting, teaching…scholarship or research”, I’m not expecting to hear from NYU’s lawyers anytime soon.

Copyright terms in the United States can extend beyond a century, thanks to the 1998 Sonny Bono Copyright Term Extension Act. Consider the sentence “I disapprove of what you say, but I will defend to the death your right to say it”. Often misattributed to Voltaire, it was written by SG Tallentyre (Evelyn Beatrice Hall) in her 1906 work The Friends of Voltaire. Thus it is most likely still protected by copyright law. Can I quote it under US law? It illustrates a key view of free expression – but I am not critiquing it here. Am I, therefore, stealing it?

As an artist, critic, activist or scholar, gaining a judgment of fair use in the US relies on four considerations:

• “purpose or character of the use” – is the new use of the “stolen” work transformative, in the artistic sense? Does it advance political debate? Was it “borrowed” for the good of society, or “stolen” to profit the “thief”?
• how special was the original work? Was it an act of pained creative gestation, or an office memo (of which more later)?
• how much of the original work was stolen?
• what effect has the copyright infringement had on the market of the original work?

So far, so good. Indeed, in a recent piece on openDemocracy, Michael Handler of the Australian National University’s law faculty, offered muted praise for US fair use, in contrast to its more restrictive cousin, fair dealing, which only allows for the borrowing of copyrighted work for specific purposes.

But with flexibility comes uncertainty. And legal uncertainty will often be exploited by the party with the most legal resources – which leads to bad case law, which leads to more legal uncertainty… The history of fair use judgments since the 1976 act is a troubled one. In 2003, on completing a survey of US fair use judgments, copyright expert David Nimmer concluded that “had Congress legislated a dartboard rather than the particular four fair use factors embodied in the Copyright Act, it appears that the upshot would be the same”.

Fair use, then, has become an unreliable tool for free-speaking Americans. This means that artists and critics are being intimidated as they go about their business of enriching society and pushing intellectual and creative boundaries through critique and appropriation of previous human endeavour.

Contrary to a stereotype popular among Europeans, most Americans would happily go through their entire lives without uttering the words “I’ll see you in court!” Pro bono lawyers are hard to find and the chance of losing a fair use case conjures the prospect of penury and occasionally jail. As a result, the Brenner Center report found, many copyright infringement claims for which a valid fair use defence might exist are never fought, and criticism of commercial, political and religious practices is silenced.

The floodgates for spurious claims of copyright infringement are propped open further by the 1998 Digital Millennium Copyright Act (DMCA), which holds internet service providers (ISPs) responsible for infringing material they host on behalf of third parties. This piece of legislation – akin to motorway owners being held liable for traffic accidents, or telephone companies for prank phonecalls – means that more often than not a disinterested party gets to choose whether to flick the censorship switch.

The US legal environment surrounding fair use has thrown up some truly Orwellian situations. In 2003, a manufacturer of electronic voting machines used in the US election, Diebold Inc, sent a DMCA takedown notice to the ISP of students at Swarthmore University. Their crime? They were circulating internal memos discussing serious defects in the company’s product, memos for which Diebold claimed to own the copyright. Confident they had a fair use case, the students stood their ground. With support from the Electronic Frontier Foundation, they sued and Diebold backed down.

But Howard Hallis was not so pushy. When his ISP let him know they’d received a DMCA takedown notice from Chick Publications, one of whose creationist cartoons he had satirised on his website, he complied almost immediately, with the rueful comment, “the piece was done in fun, but you got to realise that the laws can censor you”.

Should the American public be so complacent, the frontiers of free speech may well retreat. The Brennan Center report’s recommendations call for better education of artists and critics over their rights to use others’ speech, backed by a larger pool of pro bono lawyers ready to take on the big boys for the sake of the First Amendment. As for a change in the law? Don’t hold your breath. As Lawrence Lessig candidly observed last month: “The good stuff on ‘fair use’ just won’t stop coming (if only now we could get some good judicial decisions).”

(originally published on openDemocracy)

The debate about who governs the internet will dominate the World Summit on the Information Society meeting in Tunis this week – but the world’s web users have more important things on their mind, says Becky Hogge.

One of the biggest draws of the information technology scene is that, unlike nearly any other sector of civic life, it does not tend to attract argumentative people in the twilight of their careers debating aimlessly in closed rooms without having the first notion of what they’re talking about, just because they’ve come to feel very lonely when not accompanied by the sound of their own voice. If technology has one central piece of lore, it is “find it, fix it”. But times they are a-changing. Take a ringside seat at WSIS round two, starting this week, and you can say you were there when the tides turned.

Instead of getting down to the real business of pondering why, if this info-juice is so wonderful and free and everything, whilst I’m timestamping my political satire .mp3 downloads on the bus, there’s a whole village in east Africa sharing one mobile phone, at the UN’s World Summit for the Information Society in Tunis on 16-18 November we’ll be asking: who controls the net? That’s right, it looks like after all this time – why, we nearly had Mr Murdoch in a sweat back there – the world wide web was something that could be controlled after all.

The question being put to the floor is, should the US government cede its control of the Internet Corporation for Assigned Names and Numbers (Icann) to the UN? To most of global civil society, the answer seems clear. Of course the internet, a global phenomenon, should be controlled by a global organisation, no matter what we might think of the UN right now. Why leave it up to the Americans? What have they done for world peace recently?

But to every point comes a counterpoint. “Will the internet become the Unternet? ” screeched Tech Central Station last month. The headline (which, however misguided, possesses a beauty to make your average sub weep) captures perfectly American fears that its homegrown, freedom-delivering invention will become bogged down in geopolitical grey goo the moment it cedes control to the UN.

The minute you scrutinse what “control” Icann currently exerts over the net, both these arguments start to look a little premature. Because the holy grail of internet governance about to be debated at WSIS is a little thing called the root zone file – the system which controls the distribution of top-level domains (like .com, .org and .net) that make up the majority of the World Wide Web. Icann maintains the root zone file by virtue of a very tight, exclusive contract with the United States department of commerce. And the reason the DoC exerts control over the root zone file is because it bought it from a geek called Jon seven years ago.

As the Internet Governance Project so rightly point out in their recent report The political oversight of ICANN (no pun intended), this knotty arrangement with Jon (now deceased, who’s company, VeriSign, currently owns the largest domain-name registry business in the world) means that wresting control of the root zone file from the US commerce department would most likely involve a Congressional debate. US law and technology do not happy bedfellows make (the US Supreme Court recently outlawed the photocopier) and the prospect of a nationally-lobbied US Congress having ultimate say in the future of the root zone file is almost as haunting as that of a conglomerate of techophobe heads of state working out what to do with it.

A debate about the governance of Icann is long overdue. But what that debate is not about is freedom of speech, human rights, spam, or any other of the motley crew of concerns that have been brought to the negotiating table at WSIS. Icann may be an opaque and cumbersome organisation, but the root zone file is not the internet. George W Bush cannot delete it in a fit of neo-conservative pique.

True, religious lobbying of the DoC did result in severe delays in the assignment of a dedicated top-level domain name for pornographic material, .xxx. Further, accusations have been levelled at Icann that (rather unsurprisingly) it favours US business interests and has been slow to move on multilingual top-level domains.

But Icann is not watching you, nor is it scanning your correspondence for keywords like democracy. Icann is not partitioning off the bit of the web that tells you the meaning of life, or tomorrow’s outcome at the horse races. Just as American liberals are wrong when they opine that ceding “control of the internet” to an international body would allow repressive regimes like Saudi Arabia and China to cripple the net overnight, so civil society is misguided when it looks to UN “control of the internet” to bridge the digital divide (and in this respect it might well like to look at the UN-sponsored International Telecommunication Union’s record on competitive internet service provision in the developing world)

Throughout its short history, Icann has tried to find ways to “control” the web beyond the assignment of top-level domains, and Icann has failed. Now it’s the UN’s turn to fail. “Strong feelings about protecting the internet are to be expected” wrote Kofi Annan in a tempered Washington Post editorial comment (“The U.N. isn’t a threat to the net”, 5 November 2005), his attempt at calming everyone down. But feelings, no matter how passionately felt and how eloquently debated in Tunis, will not change the internet.

Whether we rent our space in the virtual world from a US-controlled Icann or a UN-controlled Icann, in the end we, the users of the internet, are the ones in control. And the World Summit on the Information Society would better spend its time this week working out how to get the next 5 billion users onto the information superhighway, rather than wasting our time erecting the kind of top-down policy roadblocks that the “find it, fix it” web has categorically demonstrated it can easily route around.

(originally published on openDemocracy)

Google is doing business with a communist China notorious for internet censorship. Not only techno-libertarians should worry, says Becky Hogge.

In December 1993, talking to Time magazine, technologist and civil libertarian John Gilmore created one of the first verses in internet lore: “The net interprets censorship as damage and routes around it”. But according to a report published by George Soros’s Open Net Initiative (ONI), the Chinese government are doing a great job of disproving this theory. On 11 May, Google announced it would set up shop in the People’s Republic by the end of 2005. What can this mean for the citizens of China, and the citizens of the internet?

The Chinese effort to censor the internet is a feat of technology, legislation and manpower. According to the BBC, which is almost completely blocked within the “great firewall of China” (as it is known among techies), 50,000 different Chinese authorities “do nothing but monitor traffic on the internet”. No single law exists to permit this mass invasion of privacy and proscription of free speech. Rather, hundreds of articles in dozens of pieces of legislation work to obfuscate the mandate of the government to maintain political order through censorship.

According to Internet Filtering in China in 2004-2005: A Country Study, the most rigorous survey of Chinese internet filtering to date, China’s censorship regime extends from the fatpipe backbone to the street cyber-café. Chinese communications infrastructure allows packets of data to be filtered at “choke points” designed into the network, while on the street liability for prohibited content is extended onto multiple parties – author, host, reader – to chilling effect. All this takes place under the watchful eye of machine and human censors, the latter often volunteers.

The ramifications of this system, as the ONI’s John Parley stressed when he delivered the report to the US-China Economic and Security Review Commission in April, “should be of concern to anyone who believes in participatory democracy”. The ONI found that 60% of sites relating to opposition political parties were blocked, as were 90% of sites detailing the Nine Commentaries, a series of columns about the Chinese Communist Party published by the Hong Kong-based Epoch Times and associated by some with the banned spiritual movement Falun Gong.

The censorship does not end at the World Wide Web. New internet-based technologies, which looked to lend hope to free speech when ONI filed its last report on China in 2002, are also being targeted. Although email censorship is not as rampant as many (including the Chinese themselves) believe, blogs, discussion forums and bulletin boards have all been targeted through various measures of state control.

What then, of China’s 94 million web surfers? One discussion thread at Slashdot, the well-respected and popular discussion forum for techno-libertarians, is telling. When a well-meaning westerner offered a list of links prefaced with “assuming that you can read Slashdot, here are a few web pages that your government would probably prefer you not to read”, one poster, Hung Wei Lo responded: “I have travelled to China many times and work with many H1-B’s [temporary workers from outside US] from all parts of China. All of them are already quite knowledgeable about all the information provided in the links above, and most do not hesitate to engage in discussions about such topics over lunch. The fact that you feel all 1.6 billion Chinese are most certainly blind to these pieces of information is a direct result of years of indoctrination of Western (I’m assuming American) propaganda.”

Indeed, the recent anti-Japanese protests have been cited by some as an example of how the Chinese people circumvent their state’s diligent censorship regime using networked technologies such as mobile text messages (SMS), instant messaging, emails, bulletin boards and blogs to communicate and organise. The argument here of course is that the authorities were ambivalent towards these protests – one blogger reports that the state sent its own SMS during the disturbances: “We ask the people to express your patriotic passion through the right channel, following the law and maintaining order”.

China will have to keep up with the slew of emerging technologies making untapped networked communication more sophisticated by the day – RSS feeds, social bookmarking systems like del.icio.us and Furl and fledgling Voice over Internet Protocol (VoIP, or telephony over the internet) packages such as Skype. Judging by the past record, it cannot be assumed that the state censorship machinery will not be able to meet these future challenges.

What does this mean for the internet? As the authors of the ONI report point out, China has the opportunity to export its censorship technology and methodology to states such as Vietnam, North Korea, Uzbekistan and Kyrgyzstan, to whom it already acts as a regional internet access provider. Further, as the second largest market in the world, it is a natural attractor for global web firms. The announcement that Google has secured a licence to operate in China has prompted many to ask how the US company will practice business there whilst staying true to its informal company motto “Don’t be evil”.

Already Google has been accused of collaborating with the Chinese government by omitting from its Google News service links blocked by the state. If these two experts in internet traffic – Google in cataloguing it and China in censoring it – start working together, what can we expect? Will Google attempt to persuade the Chinese government to open up the free flow of information? Could the Chinese government force Google to hand over search logs and other identifiable information?

It is not only repressive regimes that have an interest in the censorship of the internet. Technologies now used by the Chinese, like choke points for packet filtering, were advocated in the 1990s by rightsholder lobbies in the National Information Infrastructure talks in the United States. And the acceptance of VoIP as a mainstream telephony solution has been slowed by the concerns of US and British security services that conversations cannot be tapped. What the situation in China demonstrates to techno-libertarians is that they can no longer rely on John Gilmore’s old maxim: from now on, the internet may need a little human help routing around the “damage” of censorship.