Google and the evil that lobbyists do?

I'm looking forward to reading Robert Levine's Free Ride: How the Internet Is Destroying the Culture Business and How the Culture Business Can Fight Back, although I'll probably wait until our library here at ANU orders it. At $28.95 for a digital download (only $5 less than the hardcover), no one will be able to accuse Levine or his publisher of looking for a free ride. They have, however, priced themselves out of my market (too-high prices, ironically, being one of the main causes of unauthorized downloads, according to the definitive survey on the subject).

In particular, I hope he goes into a lot of detail on Google's attempts to influence public policy, as Chris Castle's favourable review of Levine's book seems to suggest:

One of the truly significant themes in the book is how Levine has laid out in one place all the different ways that Google influences public policy around the world. This is done through his discussion of the execuprofs, groups like the EFF and Google’s massive contributions to Creative Commons, as well as a history of the YouTube case. I mean the Viacom case against Google–sorry. (Saying “the YouTube case” alone is like saying “my brother is in the Army, maybe you know him.”)

As someone whose whole dissertation essentially came down to studying what groups influence copyright policy in North America and how they do it, this really caught my eye. I'd certainly agree that Google is lobbying for their point of view, but I find it hard to get that worked up about it, especially once we put Google's actions in perspective.

First off, all interest groups lobby for their preferred policies. The most direct way to lobby for your policies in Washington is to hire lobbyists to provide Congresspeople with money and research that supports your cause. On Capitol Hill, the content industries are widely acknowledged as the reigning champs at influencing policy. They've been very successful at wielding arguments (and money) to support their position. As for Google, they're still new at this game (the company isn't even 10 years old), but learning fast. In the second quarter of 2011, Google spent US$2.06 million on lobbyists. That's a lot, but the Recording Industry of America, in the first quarter of 2011, spent pretty much the same: US$2.1 million.

Second, lobbying involves battling to frame the debate, and everybody does it. Against academics like Lawrence Lessig and lobby groups like the Electronic Frontier Foundation, you have well-established groups like the Motion Picture Association of America. Google's relationship with academics (imagine!) like Lessig and agitators (which I say with respect; agitators drive debates) like the EFF is dictated largely by their position as upstarts. They're trying to promote a view different from accepted Washington orthodoxy. Right now, the dominant view of copyright on Capitol Hill is very favourable to the cultural industries; the EFF/Lessig/Google Axis of Infringement faces an uphill battle. For example, the U.S. position in talks like the Anti-Counterfeiting Trade Agreement and the Trans-Pacific Partnership is very pro-stronger copyright and cultural industries.

So, sure, Google is flexing its economic muscles, but it's not like they're going up against underfunded ingenues. And it's certainly not like they're running the show.

When I see Google's attempts to influence the copyright debate in Washington and elsewhere, I see an upstart group attempting to break past several entrenched lobbies to promote its point of view. When I look at copyright policymaking, I see a process that continues to be dominated by cultural industries that have been "fight[ing] back" against technological change since the Clinton White House issued its National Information Infrastructure White Paper on Intellectual Property in 1995. In short, I see politics as usual.

And copyright is nothing if not political.

A few other thoughts:

1. I'll be very curious to see how Levine recommends that the culture business (by which he seems to mean the companies that publish and distribute books, music, etc., and not the creators themselves) "fight back." I think pretty much everyone would agree that what they've been doing for the past 15 or so years hasn't been very successful in terms of staving off economic contraction.
2. I also hope his book includes a discussion about how copyright (and all forms of cultural regulation) and technology favours certain types of creation over others (see, Beastie Boys, Paul's Boutique). In other words, that different types of cultural products get produced under different regimes is a fact of life.
3. In his Guardian column touting his book, Levine doesn't seem to differentiate between the cultural industries and actual creators. The cultural industries are a means to the end of helping creators publish and distribute their works, and while historically economies have scale have made them necessary for creators to get their stuff out there, the two sides often have conflicting interests. Similarly, the objective of copyright historically has been to promote the creation and dissemination of creative works, not to support a particular industrial model.
4. Does anybody know why Levine seems to have changed the title of his book from Free Ride: How Digital Parasites are Destroying the Culture Business, and How the Culture Business Can Fight Back? Calling someone a parasite (especially since many of these "parasites" are the culture industries' customers) is a pretty sure way to preempt a civil conversation.

In praise of evidence-based copyright policy

When I started studying copyright policymaking several years ago, what surprised me most was the the almost complete lack of empirical evidence underlying both existing copyright law and copyright-reform proposals. I'm talking about impartial economic analyses of the effects of copyright. Read pretty much any report, from the U.S. White Paper that led to the Digital Millennium Copyright Act to the discussion papers that kicked off Canada's review of copyright policy back at the turn of the century and you'll find lots of talk about balancing interests and promoting growth, but very little in the way of quantification by disinterested sources of copyright's benefits and harms.

Sure, there are many thoughtful philosophical treatises evaluating the justness of copyright, and there are certainly plenty of reports filled with numbers produced by one side or another to justify a partisan position. But studies looking at the societal impacts of copyright? Not as many as there should be, and those that do exist never seem to find their way into government studies proposing copyright reform. The economist in me bristles at the fact.

Which is why it's so heartening to read today that the British government's intellectual-property reforms include a declaration that "evidence should drive future policy."

Be still my heart! For a debate that's been driven almost entirely by politics and lobbying for almost 300 years, this is a very welcome change of pace.

Glyn Moody highlights the good bits, including the following:

the Government will in future give limited weight in IP policy-making to evidence that is not sufficiently open and transparent in its approach and methodology, and we will make it clear where we are taking this view. IPO will set out guidance in Autumn 2011 on what constitutes open and transparent evidence, in line with professional practice. The Government is conscious that smaller businesses and organisations face particular challenges in assembling evidence and will assess their contributions sympathetically, with the same emphasis on transparency and openness.

Full report here. Anyway, read Glyn Moody's piece. I'll likely have more to say when the actual legislation is tabled. And it'll be interesting to compare the upcoming Canadian legislation to the principles spelled out by the Brits. But for now, three cheers for rational policymaking!

A Tale of Two Treaties

Big(ish) copyright news out of Canada and Mexico that serves as a timely reminder of the central role of trade negotiations in promoting harmonized intellectual property laws. Canadian and European trade negotiators are apparently closing in on a comprehensive economic and trade agreement, which will include intellectual-property provisions. Michael Geist reports that negotiators remained stymied on the agreement’s IP chapter, including copyright-enforcement provisions that the Europeans would like to model on the Anti-Counterfeiting Trade Agreement (ACTA). Any changes will require legislative amendments.

The lack of progress on IP is not surprising. For an IP importer like Canada, increased protection and enforcement costs represent a pretty unambiguous drain on the Canadian economy and will likely result in higher prices, as the European Union itself concluded in a study on the potential effects of a Canada-EU trade agreement:

The Canadian trade balance would not necessarily benefit from IP provisions in CETA. Trade in specific goods, that are currently freely marketed and exported from Canada, could be adversely affected. For example, several Canadian companies brand and export their products with labels that could be considered as European geographical indications. These companies could lose market shares in domestic and foreign markets if they are forced to abandon their commercially significant labels. Conversely, it is unlikely that Canadian companies would significantly benefit from an increased protection of geographical indications in the European market. In sum, both Canadian exports and imports might be slightly and negatively impacted, but only in specific sectors.

The flip side of this is that Canadian negotiators may simply decide to trade off a bad deal on IP in exchange for perceived trade gains elsewhere. Given the way copyright has become politicized since the first time the Conservatives tried introducing a copyright-reform bill, this is a somewhat risky proposition. Then again, having a majority government makes passing such an agreement much, much, much easier than it would’ve been under a minority government.

The news from Canada makes what’s happening in Mexico even more interesting. While Canada is inching toward ACTA implementation, the Mexican Senate voted on July 20 not to ratify the ACTA (document is in Spanish, but there’s always Google Translate). Reasons cited include concerns about the lack of information provided to the Senate during the negotiations (illegal under Mexican law), the lack of due process under ACTA and the cost of requiring ISPs to monitor and enforce copyright infringement in a way that’s currently illegal under Mexican law and the Constitution, as well as other issues like net neutrality, censorship and privacy concerns. They also raise the concern that ACTA could lead to restrict both freedom and Internet usage, potentially broadening the “digital divide” and restricting the introduction of beneficial new technologies that would support the development of the information society (a key Mexican development goal).

As I noted earlier, many of these findings support the view that the Mexican telecommunications industry is making its voice heard, and that concerns about economic development have trumped the previously dominant view in the Mexican Senate regarding the need to increase copyright protection.

So, for the time being, anyway, ACTA is a dead letter in Mexico. (Though it could come back.)

The different approaches of the two countries serves as yet another reminder of the effectiveness of using trade agreements to force copyright reform in partner countries (next example: the Trans-Pacific Partnership talks, whose IP aspects have been described as "ACTA the sequel", only with a WTO-like enforcement mechanism). At the same time, however, Mexico’s current debate suggests the limit of this strategy. In situations where market access doesn’t exist as an incentive and where the domestic politics do not favour reform, it is much harder for one country to reform another’s copyright laws.

In other words, the Canada-EU trade talks allow the EU to link something Canada wants (market access) to something that the EU wants (Canadian IP reform along EU- and ACTA-friendly lines). Even though such reforms are not on their own beneficial to Canada for the reasons the EU report suggests above, there’s a pretty good chance they’ll happen, the result of a trade-off needed to get an agreement done.

In Mexico, no such linkage is happening, although it is part of the Trans-Pacific Partnership talks, along with the United States (Canada is not). And so ACTA is rejected, the victim of the mobilization of domestic constituencies.

Which brings us to the big question. Most major countries now have relatively open access to each other’s markets, so market-access is less of a problem for most countries than it was even two decades ago. Copyright laws, meanwhile, are regularly undermined by things like technological change. In a world where the IP powers can’t offer countries improved market access, but where they still want stronger copyright protection, how likely is continued copyright harmonization? If we want to predict the future, do we look to Mexico’s rejection of ACTA, or to the Canada-EU trade talks? Maybe I'm underestimating the appetite for more trade agreements?

The difficulty of looking inward

Reactions to the horrifying bombing and shootings in Norway have demonstrated yet again how hard it is for us to acknowledge that our own societies might have their own dark side. This is nothing new: we all have the tendency to play up threats from without (Osama bin Laden) and play down threats from within (Timothy McVeigh).

Most obvious has been the kneejerk tendency to claim this was an act of Islamic terrorism. I first read about the attacks on my Facebook feed, where the New York Times’ Nicholas Kristof, without any evidence, wrote, “Looks like Al Qaeda.” The Atlantic’s James Fallows, Ta-Nehisi Coates and Steve Clemons also rightly take The Washington Post and writer Jennifer Rubin to task for writing the same thing in much more detail. Kristof, Rubin and the Post have yet to retract/apologize for what they wrote, although Kristof has since acknowledged on Facebook that the alleged murderer was actually a right-wing extremist.

That’s all par for the course. I think we all have a tendency to jump to conclusions. Rather, the more fascinating thing about people’s reactions is how the facts of the case – the suspect is a Norwegian (white!), Christian, right-wing extremist whose beliefs are more in line with Mark Steyn than bin Laden  – are incorporated into the widespread belief that Islamic terrorists pose an existential threat to the West.

Case 1: James Fallows, who shares an email from a “Norwegian friend whom my wife and I have known since he came to the U.S. for graduate school in the 1970s.” This friend, whose letter is run without comment, suggests that “we are seeing is a mutation of Al Quaeda / Jihadist tactics, to domestic political action and the surprise is that it happened in peaceful Norway. (Yes, there was McVeigh and Oklahoma city, but it feels different, and maybe it is different just because it happened before 9/11).”

There’s a lot in here, though the letter is interesting more for what it tells us about how the writer perceives the world than what it says about the actual event.

Start with the assertion that we’re seeing a “mutation of Al Qaeda / Jihadist tactics to domestic political action.” Can we really call the bombing of government buildings and the mass murder civilians to make a political point “Jihadist tactics”? That countless groups throughout history have used such tactics to further domestic political aims suggest that he’s just plain wrong about the novelty of such attacks, in Europe if not in Norway.

Paul Wells links us to Dan Gardner, who reminds us that non-Islamic terror groups are much more active in Europe than Al Qaeda and its sympathizers.

The overwhelming majority of the [failed, foiled or successful terrorist] attacks [in Europe in 2009] - 237 of 294 – were carried out by separatist groups, such as the Basque ETA. A further 40 terrorists schemes were pinned on leftist and/or anarchist terrorists. Rightists were responsible for four attacks. Single-issue groups were behind two attacks, while responsibility for a further 10 was not clear.

Bombing government buildings and murdering civilians to make a political point, or the desire to do so, is a commonplace among extremist groups, including domestic groups. Full stop.

Which brings us to why, for this person, this attack “feels different” from “McVeigh and [the] Oklahoma City” bombing. It can’t be the facts of the case: McVeigh bombed a building and killed a lot of people, too. He, too, was a Christian, right-wing homegrown extremist. My guess is it feels different because of our very human tendency to attribute evil acts to outsiders.

His comments put me in mind of a Canadian friend, living in Japan, whose apartment was robbed. (Luckily, he had hidden his money in a copy of Marx’s Das Kapital, which the thieves for some reason left behind.) As I remember the story, the police were sure that foreigners were to blame: they were shocked when some Japanese kids confessed to the robbery.

To non-Japanese it’s neither surprising nor a sweeping indictment of their society that some Japanese kids were to blame for the break-in. No society is free of criminals, just as no society is free of violent racists. I’ve never been there, but I would be shocked if Norway were any different. Suggesting that this alleged murderer is “an individual host for the Al Qaeda gene” is akin to claiming he had been infected by some foreign virus, contaminating the otherwise-pure body politic of Norway.

I don’t know how helpful this line of thinking is, considering that domestic political violence is nothing new (Canada has experienced its share of "homegrown" terrorist bombings, from the 1970 October Crisis in Quebec and the 1985 Air India bombings to the more recent bombings of oil pipelines in Alberta). It may be easier – and in these nationalistic times, more popular – to condemn evil foreign influences, imagined or otherwise, than to confront “homegrown” problems. But the ability to do so is a sign of national strength, not weakness.

(And I haven’t even gotten into his suggestion that this might not have happened if there had been an ultra-right-wing party there to moderate the alleged attacker’s views, since the party would moderate its views in search of votes. Exactly how does that work in a system prone to coalition governments?)

My thoughts go out to Norway, and the families of the victims of this atrocity.

The "b" is for bargain!

A small housekeeping note: I successfully defended my dissertation on May 26. It was accepted without revisions. Post-defence dinner at Town was excellent, as always. My wife, who's been in Australia since February working on her PhD, bought us a tasty bottle of Prosecco, which was enjoyed by all.

I will be posting a copy of the dissertation shortly. I might even write about the defence experience (very positive) at some point, but don't hold me to that. Thanks to everyone who supported me in my work over the past six years.

The Mexican vote against ACTA: A pretty big deal

I don’t know what the Mexican Congress’ formal call for the Mexican Executive not to sign the Anti Counterfeiting Trade Agreement means for the future of ACTA in Mexico (Techdirt story here). However, it does seem to mark a sea change in Mexico’s treatment of copyright in general. As I discuss in my dissertation, in 2003 a nearly unanimous Congress extended the term of copyright to a world-leading life of the author plus one hundred years with only a cursory debate. Going from reflexively approving a huge strengthening in copyright law to calling for the rejection of the latest attempt to strengthen said law: that’s a pretty big change.

What’s going on? Based on my dissertation field work, two things, I think. First, the telecoms are pretty strong politically and economically in Mexico, and I’m pretty sure their goal is to minimize ACTA’s burden on their bottom line (ACTA being driven by the content industries and all). As I've noted elsewhere, even though telecoms were largely excluded from what were secret content-industry-driven negotiations, they are too powerful not to have a say when it comes time to actually implement ACTA into domestic law.

Second, and most interesting, the traditional rhetorical argument for stronger copyright in Mexico – that it’s needed to support the national culture – is running up against an equally powerful narrative: the need for economic development. Mexico’s current National Development Plan emphasizes the need for improved broadband penetration. Along those lines, COFETEL, Mexico’s telecoms regulator, the rough equivalent to the CRTC here in Canada, argued back in November that ACTA could worsen the digital divide. Its view was supported by the Senator Carlos Sotelo of the left-leaning Party of the Democratic Revolution (PRD). He said that Mexico needs a balanced copyright law that guarantees a universal right of broadband access.

As well, Senator María Beatriz Zavala Peniche of the centre-right National Action Party (PAN) emphasized that copyright law should support individuals’ rights to the dissemination of knowledge and the sharing of culture.

So what we have here are a powerful economic interest group (the telecoms) and a potent counter-narrative (economic development). Anyone interested in copyright reform should be paying very close attention to Mexico. It will be very interesting to see the extent to which this copyright-versus-development narrative takes hold, both in Mexico and abroad.

No free pony for you

There are few things I love more in life than the music of Cracker and Camper van Beethoven. During a stint as the Arts editor at my undergrad student paper, I once drove our editor-in-chief half mad by commandeering the office stereo and playing Cracker's masterpiece Kerosene Hat nonstop for an entire month. (I also managed to get Cracker named the paper's official band, over the E-i-C's strenuous objections. Democracy's wonderful when you're good at vote counting and taking your opposition by surprise. Good times.)

So I couldn't help but link to Camper's announcement for their shows this weekend in California (they're also hosting a weekend festival in Virginia June 17 and 18) weekend shows. Especially since, as I'm sure you'll agree, it fits so well with much of what I cover here in the Orangespace.

Oh, and do pick up Cracker/CVB frontman's David Lowery's solo album. It's terrific.

Free Pony Giveaway. This weekend's shows
You realize I'm joking right? No free pony giveaway. I mean we were really ready to do it. Give away a free pony to everyone that came to this weekend's shows. But apparently there are problems with doing something like that. ASPCA and ASCAP both had a problem with pony giveaways. I mean I understand that the ASPCA having a problem with the free pony giveaway. But ASCAP?
Apparently The American Society of Composers and Publishers wants us to pay a performance royalty of 2 cents for every whinny that each "free" pony emits over it's estimated lifetime of 27 years. They have that calculated at approximately 571,590 whinnies per pony over it's lifetime. This comes to $11,431.80 for each pony. Given the fact that we are expecting over 250,000 people at each show this weekend this would come to a grand total of $8,573,850,000 (perhaps a little lower as people who attend more than one show might refuse a second or third free pony).
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Some of you may be wondering exactly how did ASCAP come to control the rights to a pony's whinny? It's a long and interesting story. Apparently most pony's whinnies are more than 8 notes long. This means they can be copyrighted and "published" as a melody. It turns out that in the early 1990s when Michael Jackson bought the rights to The Beatles catalogue he also had a team of UCLA musicologists catalogue, notate and publish every known horse whinny including the rare greenlandic horse's "Ed McMahon" whinny. As this was a work "for hire" Michael Jackson's estate now controls the rights to every public performance of a horse whinny. Michael Jackson's estate then assigned these rights to ASCAP to administer.

Although your gift horse's whinny in your own home might seem like a private performance it is not! Because the horse was gifted to you at a public concert all subsequent whinnying is considered the "fruit" of the original public performance. This has been challenged twice in the US supreme court and each time the Supreme court upheld it in an 8-1 ruling. Justice Ginsburg dissented both times. (see The Osmonds vs Sony/ATV 1996 and Mattel vs Sony/ATV 2004).
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**final note. That nearly soundless a-a-a-a-a-ack-ack ack that your cat makes while looking at birds through a window is also controlled by the Michael Jackson estate. Our attorneys have advised us not give away free kittens either.