Redefining Language, and a Culture That Invites Prosecutorial Overreach

I’m still blogging about Aaron Swartz.

Something I’ve been thinking about a lot since I heard news of his death and started reading about his case is how successfully American culture has demonized people who believe in freedom of information.  I can’t believe our societal condemnation of copyright infringement as THEFT THEFT THEFT! isn’t what enabled the U.S. Attorney to go after Aaron like she smelled blood.

I am not disinterested in the intellectual property debate, personally, professionally, or financially: I work in film, and I make my money off people paying for creative endeavors.  I believe in freer information because I believe it’s better for creators and better for society, that artists will earn more money and have greater longevity for their work in a freer culture, that the public sphere will benefit from the dissemination and mixing of ideas and knowledge encouraged by greater freedom of information.

I have these opinions because I’ve read extensively on the subject and come to a decision on what attitudes toward intellectual property I feel are appropriate and beneficial.  I’m very reasonable about my opinions.  I am happy to discuss the ramifications of less stringent reservations of rights and why this might or might not work for different business models, I enjoy discussing statistics and studies, and I don’t accuse anyone who believes in more stringent copyright of DESTROYING SOCIETY!!1 or what have you.

And yet.

And yet I’ve pretty much stopped discussing intellectual property and copyright issues online.  Because every discussion I’ve seen or been party to has dissolved into (what feels like) a large majority—or possibly a very loud minority—of the posters screaming, “THEFT! THEFT! THEFT! Filesharing is STEALING and media pirates are no different from CAR THIEVES OR SHOPLIFTERS!”  (Seriously, complete with caps.  I’m not exaggerating.) People who admit to the occasional download are reamed as pariahs.  There’s no willingness to discuss the fact that theft of physical property has a fundamental difference in the sense that someone else is being deprived of that physical property, and that this point is important, because freedom of information advocates consider it fundamental and it is the reason we differentiate between the two.  People turn deaf ears to the fact that copyright infringement is not even equivalent to theft under U.S. law.

Instead, people keep crying, “STEALING! THEFT! STEALING!”

When I have conversations about this in person in the film industry, the assumption among my colleagues is always that we all realize how wrong piracy is.  We all get it how horrible it is that people steal, because we make our living off media, and pirates are killing our business, doncha know.  (I’m usually the lone person who objects.  A lot of things are killing the movie business, but piracy ain’t one of ‘em.)  Hollywood and organizations such as the MPAA and the RIAA have managed very successful PR campaigns condemning filesharing, and the public has reciprocated with a rabid acceptance and encouragement of such ideas.  Copyright law in our country has never been more stringent, the penalties for violating it never more absurd.  The fact that we even entertain the notion of horrendously overreaching legislation such as SOPA and PIPA is an indication of how far down the rabbit hole this country has gone.  What are we chasing?  Where are the abused victims?  Why are we so concerned with ruining the lives of college students who download a movie—do we honestly consider them such vicious criminals that we need to flay them with the might of Zeus?

There’s not even evidence copyright infringement does any harm.  We don’t have firm evidence it does good, either, but many people, including myself, believe it to be neutral or beneficial to creators on average.  I’m not saying that’s a reason to abolish IP law, but I’m trying to put things in perspective.  How much sense does it make for a society to demonize an act so thoroughly and severely when it’s possible it doesn’t even hurt anyone?

And here we get into the realm of appropriate response.  Because, come on.  For the crime of downloading (but never distributing) a bunch of academic articles, the U.S. government wanted to make Aaron Swartz a felon and lock him away for decades.  The U.S. Attorney levied thirteen felony indictments against him that could have carried up to a 50-year jail sentence, and released a statement saying, “Stealing is stealing whether you use a computer command or a crowbar.”

That statement should have been met with ridicule.  The level of charges should have been shouted down by everyone who saw it for the gross overreach it was.  Instead, such a mad prosecution was allowed to go forward unhindered; in fact, our cultural mentality encouraged it rather than hampering it.  And that scares me.

I read a fascinating article this morning about the cultural push to redefine the word “hacktivist” as black-hat and criminal (hat tip to Bruce Schneier for the link), and it aligned perfectly with my feelings on how it seems our culture is going guns blazing after hackers, pirates, and filesharers in the court of public opinion, how we’re redefining terms and using loaded language like “theft,” which has never been equivalent to copyright infringement.  And it’s working.  It’s allowed for injustices like what the government did to Aaron Swartz.  And if we can’t start having sane conversations about intellectual property law and the appropriate consequences for breaking it, it will allow for more.

There’s a petition to remove U.S. Attorney Carmen Ortiz from office.  I’ve signed it.

6 thoughts on “Redefining Language, and a Culture That Invites Prosecutorial Overreach

  1. Magic

    I read about U.S. copyright law and its obsession with it. I wrote an essay on the United States’ obsession and how it has changed and practically forced its insane laws across the globe. My opinion: it’s only gonna get worse.

    U.S. corporations actually spends money on programs in schools to teach students a discourse on copyright law, including much of what you discuss here. The ‘demonizing’ of downloading information.

    I myself do not download movies and music any more. I don’t want to give the USTR or the Entertainment any more firepower to push for stricter copyright law. I also think that if consumers support legitimate and accessible outlets for movies and music (and acedemic sources), then perhaps the Entertainment industry will be more inclined to invest in more accesible distribution models.

  2. slhuang Post author

    I totally agree with everything you said here.

    U.S. corporations actually spends money on programs in schools to teach students a discourse on copyright law, including much of what you discuss here. The ‘demonizing’ of downloading information.

    Wow. Talk about a misuse of resources . . .

    The weirdest thing for me is that I’ve never seen any evidence this sort of PR is even effective at making people stop filesharing.

    I myself do not download movies and music any more. I don’t want to give the USTR or the Entertainment any more firepower to push for stricter copyright law. I also think that if consumers support legitimate and accessible outlets for movies and music (and acedemic sources), then perhaps the Entertainment industry will be more inclined to invest in more accesible distribution models.

    YES to all of this. I was floored by the way Hollywood decried Hulu as useless and headed for failure when it was exactly the type of television distribution I’d been WAITING for! I watch all of my television legally through Netflix or Hulu or the network websites, and if a show isn’t offered that way, I don’t watch it. The entertainment industry needs to adapt to changing distribution channels, not try to wipe them out, and I like supporting the shows that do adapt with my viewership.

    (Sorry it took me a little while to get to your comment — Gmail decided to start spamming my comment notifications for some reason!)

  3. Layla Lawlor

    Gah, this is one of those things that is SO frustrating to discuss with other creative people, because so many of them seem to have drunk the Kool-Aid and bought into the entertainment industry’s hype about copyright, in a very dogmatic way. You’re right, you just CAN’T have a thoughtful discussion on this topic with most people. Which is frustrating, because I really do think it’s a nuanced issue. I think there is a really obnoxious sense of entitlement out there among a lot of the viewing/reading public, especially people who’ve grown up with the Internet, where they feel entitled to get anything and everything that they want for free. And yet, the solutions that have been tried don’t WORK, and the regulatory overreach is so blatant and appalling.

    Even though I am a person who seeks to make my living from creative work, I feel much more threatened by the possibility that I might be slapped with a felony conviction for some song I (allegedly) downloaded back in 2002 than I feel threatened by the possibility that people might download my books and thereby deprive me of some hypothetical income. Or, hell, how about the fact that copyright is set up so that I can quite legally (and easily!) sign away the rights to my own books, or the right to ever create derivative works with those characters? The fact that this can happen, DOES happen, is horrifying to me. Did you know that if you have to declare bankruptcy and have published novels, the copyright to your novels is one of the assets that can be sold off without your permission? This was a complete gut-punch when I ran into one author’s biography talking about having this exact thing happen to him. Even if you do everything right, and study the fine print on every contract, you can still have your own creative works pulled out from under you like that.

    And with the current (ridiculous) terms of copyright, this loss of rights may as well be forever. You can’t rectify a stupid contract mistake by simply waiting for the terms to lapse and then picking it up again.

    I don’t know how many times I’ve heard authors lament that their older (or even very recent!) books have gone out of print, but the publisher still owns the publication rights, so the author can’t do anything with them that might make money — such as make ebooks or offer them to a publisher who won’t just sit on them.

    Don’t get me wrong — I support copyright. I think it’s a fundamentally good idea. But I think it’s been twisted and abused in horrendous ways that are entirely antithetical to the original idea — to allow authors to make money from their creations and thereby encourage them to make more creations. Illicit downloading is a fact of the marketplace that creators are going to have to adapt to, but I feel much more threatened by the measures that are being taken to stop it than by the “problem” itself. (And looking at the entertainment industry, it doesn’t exactly seem to be curling up and dying, either.)

  4. slhuang Post author

    Gah, this is one of those things that is SO frustrating to discuss with other creative people, because so many of them seem to have drunk the Kool-Aid and bought into the entertainment industry’s hype about copyright, in a very dogmatic way.

    YES YES YES. Oh, you feel my pain!

    I feel much more threatened by the possibility that I might be slapped with a felony conviction for some song I (allegedly) downloaded back in 2002 than I feel threatened by the possibility that people might download my books and thereby deprive me of some hypothetical income.

    Me too! And I didn’t know about all the ways you listed by which creative people can lose their rights — that is TERRIFYING! And you’re right, these types of horrible things happening seems so much more plausible than BitTorrent putting me out of business.

    I think there is a really obnoxious sense of entitlement out there among a lot of the viewing/reading public, especially people who’ve grown up with the Internet, where they feel entitled to get anything and everything that they want for free.

    Hmm. You could be right, and I agree that is annoying. The thing is, I’m not sure that the outcome of this is even necessarily bad for creators, regardless of how obnoxious the attitude is (and I do agree it is!). I know I read somewhere (I forget where, citation needed! *g*) about a study that found that when people do more downloading, they tend to spend a larger proportion of their income on media and creative works, which makes sense to me, because there are definitely artists I’ve found for free whom I never would have checked out otherwise but whose work I later bought (Jonathan Coulton comes to mind as a perfect example of this). So, obnoxious, yes, but . . . bad for us financially? I honestly don’t know. (And it might even be different for different artists — I don’t think Stephen King benefits much from piracy, but for less well-known people, I think the biggest thing we fight is obscurity.)

    There are also the complexities of class differences and international differences that I’ve seen mentioned a lot with regard to people torrenting ebooks, because my understanding is that a huge chunk of the torrenting happens overseas, and I’ve read a number of eloquent defenses of it that point out why this isn’t quite as entitled as people think it is. To clumsily summarize what I’ve read other people saying, well, we all know $6 US means very, very different things depending on where you live, which gives a little bit of a different context to when people say sweepingly, “If you don’t have the money, you don’t get to read it, that’s just how it is.” Because on the one hand, I’m very much in favor of people living within their means and not having that type of irritating entitlement to free luxuries, but I’m saying that as a middle-class American. If I instead think of a kid halfway around the world who lives in a rural town with either no library or an inadequate one, whose parents’ income is scaled so differently that a $6 US book is more on the order of the cost of a good chunk of the month’s rent, and the publisher won’t even agree to ship books to the kid’s country even if they could afford them — I mean, I think of how formative and important books were to me growing up, and what a large part of my education they were, and it feels very icky to tell those people that they’re being entitled by blithely torrenting things, even when those same people come online with a “pshaw, whatever, your books are too expensive and I’m downloading them” attitude.

    Which I know isn’t at all what you were talking about when you were mentioning obnoxious entitled people! *g* I’m just rambling. But yeah, nuance, so much nuance!

    Don’t get me wrong — I support copyright. I think it’s a fundamentally good idea.

    I’m not sure if it was clear in my post, but yes, I totally agree! We need to protect creators, particularly from things like plagiarism (EVIL EVIL STAB STAB STAB and can I tangent quickly to say it INFURIATES me when people conflate plagiarism and piracy?), and from other people profiting commercially from creators’ work without their permission. But yeah, copyright was supposed to protect creators while being limited enough to ensure enrichment of the public sphere, and the way it is now being wielded so often to do exactly the opposite of BOTH those things is . . . well, staggering. And saddening. And the fact that it’s so hard to have a reasonable conversation about it is just baffling to me.

  5. Layla Lawlor

    I should probably clarify that “entitlement” comment a bit. The thing is, I basically agree with you about the free advertising thing, and I’ll get into the access issue a little farther down, but … I guess I got to thinking about it awhile back, and even though *I’m* responsible about it (at least, I consider myself so), and most people I know who download are also responsible about it — they only download things they can’t get legally/easily otherwise — there are definitely people out there who are just … off the charts with piracy, and I know that because I know some of them. I worked with a guy who downloaded music constantly. Gigs and gigs and gigs of it, whether or not he was even interested in it — he just wanted to have it. I know someone else who downloads all the newest movies and video games the instant they’re available on the torrent sites.

    Now I guess the question is whether people like that are rare or whether there are a lot of them out there. Obviously the entertainment industry would like us all to believe that the majority of pirates are people like that. And I … don’t know. I don’t tend to move in circles where that’s a social norm. But I’m pretty sure there are social circles out there where it is a norm — downloading everything for free.

    Having said that, many of those people either probably would NEVER have spent money on anything anyway, or do actually spend quite a bit of money on game merchandise and collectibles and whatnot, so it’s not nearly as much lost revenue as the download figures would indicate. Still, that mentality does exist out there; I know because I’ve run into it, and I suspect that there is a lot more of it than I tend to see in my day-to-day (online) life, because my own social circle is pretty responsible about it.

    … and that’s my 2 cents on that. *g*

    But the access & privilege issue that you raised is a really important one, and yes, I agree 100%. I don’t begrudge people in the slightest for downloading things that are either unavailable in their country, or priced well beyond what they might reasonably afford. Even in countries that are not poor countries (Israel or Australia, for example) ebooks are stupidly expensive and imported American books are relatively hard to get.

    For me, and the rest of us in the US, it’s not that big an issue because even if I can’t afford to buy the book in hardcover, I can get it from the library. I never, ever download books; even back when I was sailing the internet high seas a whole lot more than I do now, I never downloaded books as a point of strict ethics. But it was awfully easy for me to do that, because even when I didn’t have much money, I still had access to those books; I just had to be willing to wait a bit and get them from the library. (And frankly, where media is concerned, it’s Netflix, iTunes, and the availability of streaming TV, not so much the threat of litigation, that have pretty much removed the temptation for me to download anything at all. Fear of getting caught is definitely *a* factor, especially as I get older and more responsible, but a much bigger factor is that I can get everything I want instantly, cheaply and legally, and the creative team gets compensated — it’s a win for everyone! The only situations in which I am still tempted to download are when I literally cannot get a show from any legal source — a lot of Canadian and some BBC shows are like that, for example.)

  6. slhuang Post author

    Hmm! I guess I sort of vaguely knew off-the-charts downloaders like that were out there, but my social circle tends to be pretty responsible too, and I haven’t actually run into any of them IRL. Personally, though, even though on one level I listen to your description and I sigh, in the whole grand scheme of things I think it’s more odd than irritating, because I think you’re right that they probably never would have bought the thing anyway, and since I can’t see that it’s actually hurting me, I kind of . . . can’t bring myself to care? *g* I can see why other creators would find it frustrating, though.

    Instead I thought you were talking about the people who think they somehow “deserve” to be able to watch/listen to/read everything — I have met some of those people, and usually it’s part of a larger attitude of “I deserve the nicest house and the nicest clothes and the nicest car and the nicest clothes even though I can’t afford them” which *does* bug me, especially since I think it fed into what’s caused America’s recent financial problems yadda yadda yadda. And plus there’s the insult of them thinking media doesn’t have some level of value, since they’re actually consuming it but in a non-socially responsible fashion.

    And yeah, I don’t know how many downloaders of any type are out there, either! I tend to think the people I know who torrent IRL are pretty responsible too (though who knows, I might be biased *g*), but if we’re talking policy opinions, intent can’t be a factor, right? Regardless, my experience has been the same as yours in that most people I know who used to download switched over to Netflix/Hulu/iTunes once they were available because they’re reasonably priced and easy — which I agree should be a lesson to the rest of the creative industries about adaptation! Changing business models seems to me the better solution than proposed legal enforcement anyway.

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