Stop Me Before I Vote Again

You know those Democrats, lying awake nights worrying about endangered species. The latest object of their insomnia is wealthy movie studios and record labels. Eight Congressional Democrats have joined forces with twelve Republicans in another move to promote the "Broadcast Flag," a copy prevention scheme for digital media that would make it against the law -- and seek to make it impossible -- for you to tape a TV show.

Of course you expect this sort of thing from Republicans, but there may be a couple of four-year-olds somewhere in the country who are still surprised when Democrats, representing poor districts in Brooklyn, the Bronx, Chicago, Pittsburgh and San Antonio, go to the mats for the swimmin'-pool-'n'-movie-star crowd in Bel Air.

The bare-faced eight joined their Republican colleagues in signing an "open letter" to the chair of the House subcommittee on telecommunications and the Internet, urging that the "broadcast flag" be written into law.

This is Round Two for the studios and the labels; they got knocked flat in Round One, when the FCC tried to mandate "broadcast flag" observance in cable boxes and TVs. That was back in 2003; two years later, last May to be exact, a Federal court issued the FCC a stinging rebuff, bluntly stating that the agency had exceeded its authority. But the intellectual-property totalitarians don't discourage easily. What an agency can't do, Congress can -- and probably will, since the two parties are both thoroughly convinced of the need to protect wealth and power.

So here are the infamous eight, the outriders of the Intellectual Property Inquisition:

Name	State	District	Median household income, $ thousands
Edolphus Towns	New York	10 (Brooklyn)	30.6
Eliot Engel	New York	17 (Bronx)	32.7
Michael Doyle	Pennsylvania	14 (Pittsburgh)	34.2
Charles Gonzalez	Texas	20 (San Antonio)	32.0
Bart Gordon	Tennessee	6 (Nashville suburbs)	44.5
Bobby Rush	Illinois	1 (Chicago)	34.6
Albert Wynn	Maryland	4 (Washington suburbs)	51.5
Frank Pallone	New Jersey	6 (Shore suburbs)	56.7

Kind of an interesting mix, very characteristic of the contemporary Democratic party. There are old urban soup hounds like Towns, Engel, Rush, Gonzalez and Doyle, representing fairly poor districts, and thus themselves available on the cheap. Then there are glossier, more upscale, more suburban Democrats, presumably in good standing with the soccer moms or whoever the current reference group is. Even among these, though, Gordon of suburban Nashville is the only one who could colorably claim to be representing his constituency; you could probably meet a fair number of record-label executives at his fund-raisers.

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It's baaack, and badder than ever, thanks inter alia to your your friendly Senate Democrats.

I refer to the iniquitous "broadcast flag," discussed briefly here last October. The "broadcast flag" is a copy-protection scheme, and if nice Democrats like Boxer and Inouye, and nice Republicans like Stevens and Smith, have their bipartisan way, it will be illegal for any device you may own or build, or any software you may download or write, to ignore it.

Nobody ever expected the Spanish Inquisition, either (shown above).

The Senate Commerce Committee just gave its blessing to the broadcast flag for TV and radio, without a recorded vote -- a sure sign of profound bipartisan consensus. No wonder, of course, since the RIAA and the MPAA have plenty of money to spread around.

p2pnet.net had a wonderful item about Kosnik sweetheart Barbara Boxer's sedulous support for the Broadcast Flag. A few excerpts:

The audio flag provision, written by Sen. Barbara Boxer (D-CA) and Sen. Gordon Smith (R-OR), has the full support of the Recording Industry Association of America.... By a startling coincidence, [media] cartel support for Boxer is rising. This year she's so far received a massive $750,660 from the movie, music and tv industries, says opensecrets.com. In the 2004 cycle, she clocked up $740,260, and in 2002, $485,340.

Full disclosure: p2pnet also picked up a thing of mine that originally appeared on CounterPunch.

Somehow I had missed the fact that Dan Glickman, the head of the Motion Picture Association of American, and a leading crusader for the inquisitorial "Broadcast Flag," was Bill Clinton's Secretary of Agriculture, and before that an 18-year Democratic Congressman from Kansas, until he lost his seat in the biblical deluge of 1994. According to his Wikipedia entry, he distinguished himself while in Congress by writing "landmark legislation providing product liability protection for small airplane manufacturers."

Who knows, perhaps the next President Clinton will make him Secretary of Commerce. Or invent a new post for him -- Copyright Czar, maybe.

I realize this is my own personal hobbyhorse -- but still, you know, it really tells the tale of whose side they're on.

The RIAA (the lobbying group for the recording industry) has Sen. Lamar Alexander (R-TN), Joseph Biden (D-DE), Dianne Feinstein (D-CA), and Lindsey Graham (R-SC) carrying their water again in the new Congress. They're sponsoring the "Platform Equality and Remedies for Rights Holders in Music Act" (PERFORM), which was introduced (and died in committee) last year, and re-introduced last week.

The bill requires Internet "broadcasters", as they are drolly called, to "use reasonably available and economically reasonable technology to prevent music theft," and it makes the Federal government responsible for determining the royalties paid to music companies for the use of music libraries over the Internet. It also requires all Internet, satellite, and cable "broadcasters" to implement "digital rights management", or in other words, pay attention to the infamous "broadcast flag," or something like it, presumably in every file they transfer. What exactly this means in practice is unclear -- the language is very vague and obscure. But the record rentiers have always wanted to make every Internet business -- or site, for that matter -- into a draftee intellectual-property enforcer, and that appears to be the thrust of this bill as well.

This is wild, overreaching, midsummer madness on the part of the copyright owners. It's hard to convey just how crazy it is. It's very much like Will Rogers' old joke about defeating U-boats by boiling the ocean -- then they'd have to surface, you see. Or King Canute telling the tide not to come in -- and this time Canute has a nice bipartisan consensus behind him, with Hollywood Dianne Feinstein sternly wagging her finger at the oncoming surf.

Quite apart from the craziness, there's a very stark confrontation here between property and people. It makes me think of the 18th-century enclosures of common land -- another historical moment when property owners, feeling their oats and giddy with the possibilities of plunder, undertook to fatten their purse by depriving ordinary people of rights they had long enjoyed.

And note, of course, that the Democrats are right there in the forefront -- not on the people's side, either. Surprise, surprise.

NPR yesterday had a rather tartly-worded story on the new intellectual-property KGB, overwhelmingly approved by our boughten Congress last month:

While Congress was embroiled in the battle over the financial bailout bill, both houses somehow managed to overwhelmingly approve legislation backed by the entertainment industry. The bill will help step up enforcement efforts against intellectual property theft....

One of the most notable provisions is the creation of an intellectual property coordinator. This is a White House-level position to be appointed by the president; some people are calling the new post the IP czar....

The bill also has a forfeiture provision that will allow law enforcement to seize assets from anyone accused of intellectual-property theft — even before they are proven guilty.

This remarkable expansion in secret-police power -- for the transcendently important purpose of protecting trademarks and song residuals, forsooth -- was sponsored by that white knight, Patrick Leahy, and cosponsored in the Senate by 21 other stooges, including some of our old favorites: Barbara Boxer, Sherrod Brown, Hillary Clinton, Dianne Feinstein, "Up" Chuck Schumer. The bill passed the Senate unanimously. It passed the House 381-41, and really, it's only surprising that that wasn't unanimous too.

Apparently the Nays tend to be in the pockets of technology providers rather than "content" providers; the former find their style rather cramped by the extravagant excesses of IP enforcement demanded by the latter. It's easy enough to see who has the Injun sign on Congress, though: it's not the people who have put that laptop in your lap -- it's the people who claim ownership, and want to exert control, of the bits on your disk.

These trolls would like to send armed men to break down the door of any Billy Goats Gruff they suspect of evading their bridge tolls; and the Democratic Congress it was so important to elect two years ago -- in the name of all that's good and decent -- has been, predictably, very happy to oblige.

"In order to understand the law of nature in regard to intellectual property, it is necessary to understand the principles of that law in regard to property in general. We shall then see that the right of property in ideas, is at least as strong as-and in many cases identical with-the right of property in material things....

"As a matter of public policy, the expediency of allowing a man a perpetual property in his ideas... is as clear as is that of allowing him a perpetual property in material things."

Provoked by a twisted piece of devilry by SMBIVA's own Al Schumann, recently I chanced upon this patch of whittled wisdom by the Sismondi of the hayfields, Sandy Spooner.

It's on the subject of our universal right to the fruits of our own intellectual products, and I strongly recommend it to any of you who haven't read it.

Like most "left-libertarian" logic rides, it has its fun moments -- not quite like crossing a raging river on ice cakes, but turveyish and strangely-cornered.

Then again, in its bottom-line utter wrongheadedness, it's a caution to all of us hedgehogs -- ultimately a warning against the seductions of socially isolated freethinking, no matter how fearless, decent, and bold.

Imagine a city of many millions of people who support themselves and their families solely by arranging words, images and sounds, or in the industries that make this work available to others.... what they do influences most everything, shapes politics and governance, provides a conception of our time, forges the culture such as it is, and stamps the imprint of the present for history to judge.

Thus, purply, the renowned fictioneer, satirist, Zionist and copyright ogre Mark Helprin, shown below about to be crushed, it appears, by a falling bookshelf -- talk about poetic justice.

Note well, in Mark's exordium, the slipped-in phrase "or in the industries that make this work available to others." We will have occasion to return to this idea.

Comes the meta-economics:

"Their work is peculiarly vulnerable in that it is easy to appropriate. If they were farmers, industrialists or surgeons, their problems would be different. It is not possible to copy instantaneously and in virtually unlimited quantities either potatoes, aluminum or gall bladder surgeries, as one might a song or a scanned book.

Were this vulnerability unaddressed, the producers of intellectual property would be put out of business unless they were independently wealthy or worked either as amateurs or drew salaries at the pleasure of, and beholden to, boards, committees and overseers of every type.Always at risk, the independent voice....

Marvelous, eh -- beyond satire. Being "beholden" to a board is a worse fate than abiding the whimsy of a corporate publisher? And "independent voices" -- there certainly are plenty of those around, including your humble servants here at SMBIVA, whose work, let the record show, appears under the Creative Commons License. Mark has a few choice words for the Creative Commons folks, who might as well be amply-funded Somali pirates, to hear him tell it:

So-called public interest groups serve the new information super powers, the Standard Oils of our age, whose interests would be advanced if they did not have to bother with permissions and payments for what they call "content." The Creative Commons organization, for example, is richly financed by Google, Microsoft, Yahoo, Mozilla, Sun, the Hewlett Foundation, and others of the type."

"Copyright is no more a ... monopoly any more than you have a monopoly on the sale of a watermelon you might grow in your garden, or the monopoly a seamstress exercises over her work."

Mark is very wrong on the facts here. Copyright is -- or rather, used to be -- precisely a monopoly, so understood and so called, a monopoly on reproduction, granted by the state for public policy reasons, good or bad as the case may be. The notion of "intellectual property" (rather than mere temporary sanctioned monopoly) as applied to copyright and patent is a recent innovation, ginned up to justify the enormous expansion in these monopoly rights granted in recent years.

"The opponents of copyright disingenuously maintain that it locks up ideas, comment and debate. Title 17 of the United States Code resoundingly says otherwise, that "in no case does copyright protection... extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described."

Right, Mark. It's patent law, not copyright law, that does that. You can now patent "business processes" and algorithms. Patent law is one arm of the world-bestriding and still-growing Leviathan of "intellectual property", and copyright law is the other.

More Burkean painted history:

"In previous eras, advances in the ease of replication were met by the consistent strengthening of copyright... This did not discourage the production of works, which advanced by orders of magnitude. In Thomas Macaulay's England of 1825, 600 books were published.... 206,000 books [were] published in England in 2005. "One might attempt to argue the counterfactual, that even more books would have been published without copyright, but one would first have to establish that the incentive of being paid for one's work is a disincentive to producing it."

Got that? Copyright is payment for original producing of -- copy?

Recall that earlier line: "or in the industries that make this work available to others".

Hmmm. Other shapes crowd into the frame now, alongside the hustling creatives of Mark's Symbol City -- oddly sterile grasping shapes -- corporate shapes. Could they have sponsored this clown?

Here's the final clarion blast:

"What have you done to protect your life's blood and to guarantee the continued independence of your voice? As distressed as you may be now or not long from now, should copyright go the way of all flesh, some of you may soon be unable even to recognize your own profession, if indeed it continues to exist.

Symbol string creation -- for pay -- may vanish from this browning planet! Aiiee!

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This post was a Paine/Smith co-production. Neither author is responsible for anything in it.

On the open-access, anti-intellectual-monopoly front, note this blog post by a favorite of mine, Rajiv Sethi:

"Theoretical Economics is among the most prestigious journals specializing in economic theory, with a stellar editorial board and high quality submissions. It is also an open access journal: every published article may be viewed, downloaded and printed freely worldwide without subscription. And authors release their work under a creative commons license that allows users to "copy, distribute and transmit" the work provided that this is done with proper attribution, in the "manner specified by the author."

"Under the open access format the size of the user pool (and the aggregate consumers' surplus) is maximized, but none of the benefits that accrue to readers can be appropriated by publishers. This would ordinarily make financial viability difficult. But in the case of journal articles there is very little value added by the publisher in any case:... the lion's share of the product's value is created by authors, referees and editors for little or no direct financial compensation. As a result, relatively modest fees for submission or the processing of accepted papers can be enough to cover the costs of production and online dissemination.... non-commercial... e-journal Economics... uses an innovative public review process involving a large community of registered readers.

So far, the major academic publishers have managed to maintain their lucrative subscription based model... libraries will be increasingly reluctant to pay for bundled journal subscriptions when much of the content could be accessed freely in any case. More importantly, when given a choice, authors will surely prefer retention of copyright, avoidance of exorbitant fees, and the broadest possible dissemination of their work.

Accordingly, if some of the major economic societies and associations make the transition to open access, the floodgates will open. Traditional publishers will find themselves in a pincer like grip, with highly prestigious society journals weighing down upon them and new entrants nipping at their heels.... "

My take is simple: any academic economics association that won't go over to one of these new open access journal formats has... well... a painted ass on its face and ought to be resigned from forthwith.

Rajiv adds:

"The proliferation of blogs is leading to a democratization of discourse in economics, as non-specialists and autodidacts bring fresh perspectives to bear on theoretical disputes and policy questions. This process depends critically on the ability of outsiders to eavesdrop easily on conversations among economists. Unfettered access to academic research not only increases the visibility of ideas, it also increases the scrutiny to which they are subjected. And this should result in the development of better, more interesting, and more robust ideas in the long run."

Some labels, first time ya hear 'em, belated or not, they just sing to you. Such a one for me is "Big Content", as in this mock-heroic headline:

Big Content rips into Google, the "corporate imperialist"

The barons of copyright, like Olympian gods, rise to the attack against the dark side of progress, as embodied by das Googleplex, global cloud monster extraordinaire:

"The knives are out for Google Chairman Eric Schmidt... major US rightsholders... brand Google... an arrogant, out-of-control company bent on ruining American creativity...."

Yes indeed, the brute's a liability hydra, "thinking itself above US law."!

Here's Mike O'Leary, brazen Celtic wormtongue and hireling of the Motion Picture Association of America, striking a full chord's worth of notes of indictment:

"Is Eric Schmidt really suggesting that if Congress passes a law and President Obama signs it, Google wouldn’t follow it? As an American company respected around the world, it’s unfortunate that, at least according to its executive chairman’s comments, Google seems to think it’s above America’s laws. We’ve heard this "but the law doesn’t apply to me" argument before—but usually, it comes from content thieves, not a Fortune 500 company. Google should know better. "

This scrap has erupted over a bill in the Senate, with one of those now-standard tiresome cute acronyms: PROTECT IP. I'll leave the details of this pending toll booth system enforcer to Father Smiff, who takes a banausic interest in these nuts and bolts. Suffice to say that it's wildly over the top and provides the US government and civil courts with the kind of ability to blacklist and block foreign sites that the Chinese currently try to apply through the so-called Great Firewall Of China, with some though not complete success. Search engines would apparently have to de-list blacklisted sites, for example, and there's some craziness with something callled DNS, which makes my eyes glaze over.

Chalk it up to Clio's weirdly entertaining use of unintended agency.

Catch this bold pentimento: Google, as beacon of liberty, hasn't overlooked the Chinese parallel, and waves the ultimate warning flag against PROTECT IP's implications: Chicom totalitarian fiends will exploit it for repression!

To which O'Leary blarneys away, with the insouciant dog-faced shamelessness that only the sons of Erin can pull off:

"Google should know better...the notion that China would use a bi-partisan, narrowly tailored bill as a pretext for censorship is laughable, as Google knows, China does what China does."