2014-06-01

On Intellectual Property and Other Random Thoughts

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This work is licensed under a Creative Commons Attribution 4.0 International License.

by Tim Widowfield

As we draw near to the anniversary of the death and resurrection of Vridar, a time of commemoration and solemn reflection, I’ve been thinking again about how easy it was for us to get shut down, simply on suspicion of a DMCA violation. We’re hardly unique, of course; these takedowns keep happening, and they’ll continue to occur, because the law holds the poster of the content (i.e., us) and the agency hosting the content (i.e., WordPress.com) equally responsible.

You may have read earlier this year how AIDS-deniers tried to censor Myles Power (a warrior against pseudoscience) by getting Google to take down some YouTube videos that debunk their false claims. As Techdirt put it, “This is censorship in its purist form, and it’s using the law to get away with it.” True, Google did eventually restore the videos, but this disturbing series of incidents shows how malicious people can use the law to their own advantage without any fear of repercussion. Cory Doctorow at boingboing wrote:

The DMCA’s takedown procedures have no real penalty for abuse, so it is the perfect tool for would-be censors. What’s more, the entertainment companies — who are great fans of free speech when defending their right to sell products without censorship, but are quite unwilling the share the First Amendment they love so dearly with the rest of us — are pushing to make censorship even easier, arguing that nothing should be posted on Youtube (or, presumably, any other online forum) unless it has been vetted by a copyright lawyer.

I used to bristle at the idea of lumping copyrights and patents into the larger category of “intellectual property,” but that ship has sailed. And in a larger sense the intellectual property that modern corporations jealously guard, as evidenced by the DMCA, which forces content providers to act first and ask questions later, is in fact real property of the purest kind. Specifically, I’m talking about possessions to which legal entities (i.e. people or corporations) claim exclusive title and which generate wealth.

In the not-to-distant past the only real property was land. If you owned land where you could grow sugar cane, tobacco, cotton or corn, or where you could extract water, coal, silver, or petroleum, then you possessed a source of wealth that made you economically independent. Many Americans in the colonial period and in the early republic equated such economic independence with political independence, which helps explain why several original state constitutions stipulated property ownership as a prerequisite for enfranchisement.

In some cases, the requirements varied, depending on the office in question. For example, according to North Carolina’s constitution of 1776, any free white male over 21 who paid his taxes could vote for members of the lower house. However, in order to vote for a member of the state senate, he needed to be “possessed of a freehold within the same county of fifty acres of land for six months next before, and at the day of election.”

Thomas W. Dorr, leader of the 1842 rebellion, ...

Thomas W. Dorr, leader of the 1842 rebellion, as pictured in an 1844 book frontispiece. (Photo credit: Wikipedia)

Things were even tougher in Rhode Island. You probably never learned about the Dorr War in high school — perhaps not even in your university studies. But well into the 19th century, the state continued to operate under the rules stipulated in the Royal Charter of 1663, in which only landowners and their first-born sons could vote. As Steven Mintz explains,

The charter lacked a bill of rights and grossly underrepresented growing industrial cities, such as Providence, in the state legislature. As Rhode Island grew increasingly urban and industrial, the state’s landless population increased and fewer residents were eligible to vote. By 1841, just 11,239 out of 26,000 adult males were qualified to vote.

When Thomas Wilson Dorr failed to reform the process through normal channels, he and his supporters organized their own “People’s Convention.” As the situation deteriorated, the governor finally declared martial law and asked the federal government to intervene. I encourage you to read the whole story, and if you’ve never heard of it before ask yourself why that might be. After all, Dorr was eventually tried and convicted of treason. The Supreme Court got involved, too, deciding against the Dorrites in Luther v. Borden. With all those juicy details (including class warfare with a dash of racism) you’d think this story would be more widely known.

The question of property ownership and the right to vote still sometimes rears its ugly head in the idiocracy wing of the Republican Party. A few years ago Tea Party know-nothing Judson Philips said that it was a good thing:

The Founding Fathers originally said, they put certain restrictions on who gets the right to vote. It wasn’t you were just a citizen and you got to vote. Some of the restrictions, you know, you obviously would not think about today. But one of those was you had to be a property owner. And that makes a lot of sense, because if you’re a property owner you actually have a vested stake in the community. If you’re not a property owner, you know, I’m sorry but property owners have a little bit more of a vested interest in the community than non-property owners.

His comments set off a bit of a firestorm on the web, especially on left-wing sites. Even the mainstream media got into the act. CBS’s Money Watch covered the story with this headline — “Tea Party: Don’t Let Renters Vote.” The story ends with this catty remark: “Republicans have always had a fondness for the past. But, do we really want to jump right back to the Middle Ages?

I have nothing against making fun of fools. However, we’re missing the point if we frame this argument as a war between renters and homeowners. (Need we point out that 1840 was well after the “Middle Ages”?) If you think you’re a property owner because you have a mortgage on a house, I have some bad news for you. First, unless you have the title, you’re not an owner; the bank is. Essentially, you’re renting from the titleholder until you’ve made the last payment. Second, your house is not real property. It doesn’t generate income. You may not even own the mineral rights under your land.

Your house, car, clothes, and other personal effects are possessions. They are not property. Marxists often explain the difference as “personal property” versus “private property.” The fundamental question is one of class; it’s the difference between earning a wage and generating an income. Should the owner class permit the working class to vote?

Our shared ignorance of the definition of property is no accident, nor is our historical amnesia. The owners of the United States and the people they pay to run it understand how the system works, but they have no interest in sharing that knowledge. It’s better that the tenant classes fight among themselves over crumbs.

Consider the issue of opening up immigration to more skilled laborers. The owners would like to relax immigration laws to allow more engineers to enter the U.S. to compete for jobs and thereby lower the prevailing wage. Or consider the issue of allowing jobs to move overseas. In these cases, the politicians at the behest of the owners tell us that American firms need to be able to compete. Labor has to be flexible. Protectionism is bad, they tell us.

When it comes to issues of labor, the system can’t help people. Their hands are tied. But when it comes to protecting property, it’s a different story. Intellectual property must be protected, even it if means throwing out the baby with the bathwater. Have you ever wondered how many DMCA requests Google gets a month? Would you like to guess? Well, they’re now dealing with over 1,000,000 takedown requests per day.

The Electronic Frontier Foundation’s report on the unintended consequences of the DMCA lists the following threats:

  • The DMCA Chills Free Expression and Scientific Research.
  • The DMCA Jeopardizes Fair Use.
  • The DMCA Impedes Competition and Innovation.
  • The DMCA Interferes with Computer Intrusion Laws.

As I mentioned at the top, we’re coming up on the first anniversary of the Vridar takedown. If you’d like to commemorate that date with Neil and me, don’t waste your time thinking bad thoughts about Mr. Watts. Instead, look into what you can do to guard all our rights. Start by checking out the EFF to see what you can do to protect freedom of speech, thought, and action.

Don’t give up without a fight.

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6 Comments

  • 2014-06-01 23:13:24 UTC - 23:13 | Permalink

    As I mentioned at the top, we’re coming up on the first anniversary of the Vridar takedown. If you’d like to commemorate that date with Neil and me, don’t waste your time thinking bad thoughts about Mr. Watts. Instead, look into what you can do to guard all our rights. Start by checking out the EFF to see what you can do to protect freedom of speech, thought, and action.

    -Exactly. False DMCA takedown requests are the bane of the Internet and they extend far beyond WordPress. Their notoriety on YouTube is great and they have caused much annoyance there.

  • Wentham
    2014-06-02 12:30:00 UTC - 12:30 | Permalink

    There’s one major existing protection: the “Fair use” doctrine.

    This allows very extensive quoting for academic, educational and research purposes.

    http://en.wikipedia.org/wiki/Fair_use

    Presumably a blog like your own – clearly oriented to education and research – would be protected normally by this right. Which is often invoked in academe.

    • Tim Widowfield
      2014-06-02 14:59:56 UTC - 14:59 | Permalink

      Yes, of course. But do you understand that we’re talking about illegitimate takedowns?

      When Neil extensively quoted Mr. Watts, he did so in order to rebut each point. Hence, it falls under the fair-use doctrine. More than that, since Watts had originally labeled all his work as protected by the Creative Commons License, Neil was well within his rights to copy his work as long as he clearly labeled it as belonging to Joel, which is what he did.

      We were theoretically protected, but in the real world all it takes is one dishonest complaint, and — boom. Because the DMCA has strict and scary language about “safe harbor,” nobody wants to take any chances. It’s much safer to assume the worst, and then deal with the aftermath. The burden of proof, then, always falls squarely on the accused.

      Suppose some guy off the street walks into a grocery store and says, “I think this brand of canned tuna is spoiled.” Now imagine the law says if the grocer doesn’t pull the cans off the shelf, he’s guilty of providing safe harbor. (I realize this is a far-fetched example. You’ll have to imagine a world in which governments protect people with the intensity that they protect property.)

      So he can either remove every can immediately or risk having his entire store shut down until he can prove the tuna is good. Now imagine that same joker can cry “Wolf!” over and over again with impunity.

      We’re all “protected,” as you put it . . . and as long as we can prove we’re innocent we might be allowed to reopen in a few days or weeks.

  • Kaelik
    2014-06-03 10:31:40 UTC - 10:31 | Permalink

    I am not sure what legal system you are (attempting?) to operate off of, but in most US jurisdictions real property is just the name for improved land, regardless of whether you own mineral rights or obtain income from the property. Likewise it is only that immovable defined property, so for examples stocks, regardless of producing income, are not real property, and nor is any form of intellectual property.

    • Tim Widowfield
      2014-06-03 15:19:33 UTC - 15:19 | Permalink

      I probably should have put quotes around “real” property, or perhaps written “actual property.”

      My point is that the current government obsession with intellectual property rights can best be understood as the propertied class protecting itself. We often still think of tangible assets as being “real,” but to the modern corporation, copyrights, trademarks, and patents play a crucial role in today’s capitalism. The DMCA is a byproduct of their struggle to compete and survive.

      Scott Lash puts it this way:

      [Neo-liberalism] is based on competition but this time on monopoly competition. It features not ‘real’ property, but intellectual property, as the basis for monopoly competition. Thus the intensive capitalism of invention, of the intensity of one-off, of informationalized intellectual property — of copyright, patent and trademark — is also the economy of monopoly competition. . . . This is not the cosy age of twentieth-century cartels but one of megaliths in competition with one another . . .

      (Lash, Intensive Culture: Social Theory, Religion & Contemporary Capitalism, p. 117)

      • Morten Hansen
        2014-07-14 14:25:18 UTC - 14:25 | Permalink

        I agree, but I am also concerned that it is a sign of a weakness at the core of the “new economy” – namely that it increasingly incentivises gaming of the system to the benefit of rent seekers. It is simply absurd to claim that the drastically increased duration of copyright are in any way an increased incentive for the actual “producers” of “intellectual property” to produce more or better IP. Do we get more or better novels now that copyright is the author’s life + 50-70 years, rather than, say, following the 1909 US copyright law when the maximum duration was 56 years (28 years + the option of a single 28 year prolongation) from the date of registering? And how many “producers” would refrain from producing such works if copyright was restricted to something on the order of the 1909 law? The inclusion of the author’s entire life as the baseline to which the copyright term is then added was a brilliant way of constantly increasing term length as average life expectancy continues to rise.

        It is probably not a coincidence that the US tends to prolong copyright every the time Disney’s classics are about to enter the public domain. The irony is, of course, that the self-same copyright extensions Disney and other entertainment conglomerates are lobbying for would have made it either impossible, or at least far more expensive to make, for instance, Disney’s version of “The Jungle Book” (1967). Had the current copyright law applied to Kipling, “The Jungle Book” wouldn’t have become public domain until January 18th, 2003, instead of in 1966. Likewise, Disney would have had to pay fees in 1999 to use Edgar Rice Burrough’s “Tarzan” whose copyright wouldn’t have expired until March 19th, 2020, had Burrough’s work enjoyed the same terms as Disney’s; and Disney would also have had to pay fees to make their version of “Treasure Island” (1950) as Robert Louis Stevenson’s copyright wouldn’t have expired until December 3rd, 1964.

        The constant extension of copyright is simple rent seeking from corporations and serves none of the alleged purposes, since we’re not going to get any more or new “intellectual property” no matter how long we extend the copyright of long deceased “producers”. The beneficiaries are mainly corporations which have bought up thousands upon thousands of copyrights, making copyright law increasingly an example of corporate welfare. The clearest illustration is the disgusting habit of retroactively putting certain works in the public domain back under copyright by applying new extended copyright terms retroactively.

        We have, in my opinion, entered an era of de facto perpetual copyright which, apart from allowing corporations to leech off long dead “producers”, encourage copyright trolling, not to mention the difficulty of finding the holders of the copyright of more obscure works one would like to use, which add a chilling effect to (re)use lesser known works of the past – unless they are old enough to already be in the public domain.

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