Tag Archives: Congress

Education alliance urges Congress to support dedicated school library funding

Congress_large_extra_large.jpgThe American Library Association (ALA) has announced its support for “a coalition of more than 20 education businesses, associations and media groups―including Scholastic Inc., ESCO Information Services and the Association of American Publishers” which has just sent a letter to the U.S. Congress “to support dedicated school library funding in the reauthorization of the Elementary and Secondary Education Act (ESEA), which provides federal funding for national K-12 education programs.”

The coalition’s letter “asks Congress to incorporate the Strengthening Kids’ Interest in Learning and Libraries (SKILLS) Act in ESEA reauthorization, which would expand federal investment in school libraries in order to offer students the tools they need to develop critical thinking, digital, and research skills.” The letter reads: 

For our society and our economy to succeed, schools must serve as equalizers that provide all students with access to the resources and instruction they need to thrive academically and to become productive and engaged citizens. That goal cannot be met without strong, professionally staffed school libraries. In too many schools across the nation, however, school library budgets and school librarian positions are being cut. Including SKILLS in ESEA will meaningfully contribute to reversing that cripplingly counterproductive trend.

This pattern is all too familiar in the UK, but it’s sad to see it showing up in the U.S> as well. “Recent data available from the Department of Education’s National Center for Education Statistics (NCES) reveals that approximately 8,830 public schools across the nation do not have a school library and, among those that do, nearly 17,000 additional schools do not have a full or part-time state-certified school librarian on staff,” notes the ALA.

 

House first sale doctrine hearing written testimony: Public Knowledge, John Villasenor, The Software Alliance (BSA)

Previously in this series:

Here’s the last batch (so far) of documents from the first sale House subcommittee hearing. If any additional material becomes available, I’ll pick that up down the line.

Public Knowledge

The first document for this entry comes from Sherwin Siy, the VP of Legal Affairs for copyright reform lobby group Public Knowledge. This six-page PDF barely even touches upon digital resale, being mainly interested in the evils of shrink-wrapped or click-through licenses.

Siy begins by discussing the original first sale case, Bobbs-Merrill v. Strauss, and drawing a parallel between the way the publisher in that case sought to control what buyers could do with his book afterward and the recent decision by Aspen Publishers to implement a program that would demand the return of its legal textbooks after students were finished using them. According to Siy, Aspen demonstrates that publishers of today have the same incentives, and try the same techniques, to eliminate the secondary resale market. (I would note that the fact publishers hate resale is not exactly news.)

More and more commonly, publishers of all sorts of media but especially digital ones are using licenses to make an end run around the first sale right. Consumers believe they have “bought” a work (and indeed, usually acquire it through a button on a web site labeled “Buy”) but clauses buried in the fine print on the license make clear they’re only licensing or renting it. As in the Autodesk case, this can make infringers of people who never even opened the software box.

Siy points out that in 1980 lawmakers created section 117 of title 17 to allow for computers copying all or part of a computer program as part of the normal process of its use. But progress has led to this section no longer offering as much protection as it once did.

However, technology and business practices have led to section 117 covering less ground than it should. For one thing, the clickwrap and shrinkwrap agreements mentioned earlier have been used to claim that computer users were not the “owners” of copies, and therefore were infringing copyrights merely by using the computer programs they paid for in a way disfavored by the copyright holder. While consumers should be held to contracts they have fairly agreed to, the remedies for breach of contract should not be merged with copyright infringement.

Examples of this include the successful suit brought against a maker of Warcraft “bot” software, and the project to create third-party BattleNet servers (PDF) for running private sessions of Starcraft and other Blizzard games.

Another problem that has emerged as technology progresses is that a vast amount of digital media consists of things other than computer programs. The mp3s being played on a phone, the photos or movies being displayed on a tablet, or the book being read on an e-reader are all subject to the same digital processes that generate RAM copies, buffer copies, and cached copies that computer programs do—yet section 117 does not explicitly cover them.

Then Siy devotes a single paragraph (blink and you miss it) to noting that this relates to the problem of transferring ownership of digital media, given that making copies is necessary to do this.

The rest of the document is devoted to proposing potential solutions. One suggestion is not enforcing deceptive licenses, and requiring that “buy” buttons be replaced with “rent” or “license” buttons so consumers know more clearly what they are and are not getting when they purchase digital media. (Yeah, I’m just sure I can see the big retailers going for that.) Another is to adopt a “numerus clausus” principle similar to that in real estate of limiting types of ownership attached to certain property. A third is to update section 117 to cover modern digital media and protect users of works instead of just their owners.

John Villasenor

Though John Villasenor is faculty of the Brookings Institution and UCLA, he makes clear his testimony in this 11-page PDF is entirely on his own behalf.

Villasenor’s stance is that digital first sale would harm content creators, and that it is also becoming less necessary as most digital content is no longer being distributed under models that confer ownership of the content.

Many licenses today are overly complex and restrictive. Content providers should provide consumers with clearer disclosures regarding the permissible and prohibited uses of licensed content. Once consumers are better informed about license-based offerings, I am optimistic that market pressure will lead content providers to offer licenses that are more flexible, and that in some cases could permit dispositions of digital content analogous to those that have long been available to owners of non-digital content under the existing first sale doctrine.

(Yeah, because they’ve just been rushing to do that so far. See above link about publishers hating resale.)

Villasenor spends a couple of pages discussing first sale as it currently exists, and why it doesn’t apply to digital content. He discusses the ReDigi case, and the fact that the judge who decided it didn’t feel he could apply first sale to digital goods of his own accord given that Congress hadn’t done it yet. then he goes on to the unintended consequences of digital first sale and lending, such as decreased sales of music since they’d only need to sell enough copies of a song for everyone who wanted to listen to the song at random times to be able to play it at once. He points to Aereo as an example of the kind of extreme exploits of legal loopholes that could apply. He also brings up the “no degradation of used media” thing again.

Next he moves on into licenses. To be fair, he does acknowledge the ambiguity of the content model where customers click “buy” but actually only license the content. And he believes that content providers have the obligation to make sure that users are clearly informed of restrictions before they make their purchase. But he doesn’t feel that should be resolved via changing copyright law, or via retroactively turning licenses into sales via the courts.

Instead, they should be addressed by ensuring what in fact should be common sense: that consumers who license copyrighted works have access to clear up-front descriptions regarding the permitted and prohibited uses of the content.

(As if content stores are going to want to do that…or consumers are going to bother to read it unless they get up front in-your-face about it.)

BSA/The Software Alliance

Finally, we have Emery Simon, a Counselor for the BSA, formerly the Business Software Alliance, which kept its old acronym when it changed its name to “The Software Alliance” just to confuse everyone, I guess. As might be expected, his seven-page PDF is definitely anti-digital-resale, pro-licenses.

He begins by discussing what a huge part of the economy the commercial software industry is—hundreds of billions of dollars in annual revenue, millions of jobs, and so on. And it lets the people who use it be more efficient and make more money too, yay.

Licensing models, Simon says, let the industry stay flexible in how it serves its customers, confer substantial benefits (including ones that wouldn’t be passed on in a sale) such as updates, multiple computer installation rights, and customization for specific needs. The courts have rejected arguments that licenses are actually sales (the Autodesk case again), and applying first-sale to licensed copies would cause considerable risk to consumers. They wouldn’t be able to tell if they’re buying a real or counterfeit good, the used software could be infected with malware, and so on. Licenses also provide a means to fight piracy, unauthorized use, and other infringement.

And that’s that. I’ll write a separate post later on summing up my overall impressions.

House first sale doctrine hearing written testimony: Matthew B. Glotzer, New York Public Library

Previously in this series:

This post continues a theme from the last couple, in which one side’s statement is for preserving/extending first sale, and the other is against it. Which is kind of stretching a point, given that the “pro” post really isn’t about digital resale and the con post isn’t against physical resale, but still, I take what I can get. This time we hear from a digital media executive and from a library copyright specialist.

Matthew B. Glotzer

The first document on the agenda is from Matthew B. Glotzer, a media executive with plenty of experience working in the film industry and digital media. According to his LinkedIn resume, he negotiated the earliest video licenses with iTunes, was involved in founding Hulu, and helped establish Fox Digital Studio. Glotzer offers a five-page PDF which lays out his objections to digital first sale clearly and cogently.

Glotzer holds that first sale was intended to apply to physical objects, not the content within those objects, and allowing digital first sale would harm the balance between giving creators incentive to create new works and letting consumers get those new works.

The shift of media to digital delivery, Glotzer says, “yielded tremendous efficiencies, and most conventional costs could be greatly reduced, or eliminated outright.” (Funny, then, that publishers would charge as much for e-books as for print books if they thought they could get away with it, isn’t it?) As others have noted, they don’t degrade with use or time.

First sale, Glotzer explains, was intended to remove some of the friction associated with obtaining copies of physical media, but digital media has so little friction already that no such measure is needed. The biggest problem he sees with digital resale is that it would remove so much of the friction from acquiring used copies of a work that creators couldn’t set an appropriate price for their new works.

Under this arrangement, one single instantiation of a content license could provide utility to potentially hundreds of users; as long as only one user wanted the content at any given time. If such a mechanism were in place, a rational content owner would anticipate this and price each individual content license based on its capability to serve many, rather than one. But it is highly implausible to expect that a marketplace where film or television content costs 10-100x its “customary” price would find many willing buyers to begin with. The result would be a market failure.

In the end, Glotzer says, allowing digital resale would irreparably harm the creation of new content and new business models for selling that content.

New York Public Library

The next document is a 15-page PDF by Greg Cram, Associate Director, Copyright and Information Policy, The New York Public Library. Cram states that he is the only copyright specialist working at a public library in the United States, and that his testimony is also endorsed by the Library Copyright Alliance. (One of the members of the LCA is the ALA, who is also part of the Owners’ Rights Initiative. The LCA has also issued a one-page statement (PDF), summarizing Cram’s testimony.)

Cram first discusses the importance of plain vanilla first sale of physical goods to libraries, given that it is the thing that permits libraries to lend titles without needing to seek licenses from their publishers. He goes on to discuss for several pages how American libraries have “promoted democratic values” for centuries (yay Mom and apple pie!) and throws in some statistics about how often Americans borrow from libraries (4.4 billion times a year altogether).

In the next section, he talks about Kirtsaeng vs. Wiley again (a common refrain for this hearing, it seems) and how important it is to libraries that the ruling remain undisturbed. If it were overridden, libraries could be thrown into doubt about whether they could legally lend many of the works on their shelves. Discussing the appeals court decision that SCOTUS reversed, Cram states:

By restricting the application of Section 109(a) to copies manufactured in the United States, the Second Circuit’s decision threatened the ability of libraries to continue to lend materials in their collections. Over 200 million books in U.S. libraries had foreign publishers. Moreover, many books published by U.S. publishers were actually manufactured by printers in other countries. Although some books indicated on their copyright page where they were printed, many did not. Libraries, therefore, had no way of knowing whether these books complied with the Second Circuit’s rule. Without the certainty of the protection of the first sale doctrine, librarians would have had to confront the difficult policy decision of whether to continue to circulate these materials in their collections in the face of potential copyright infringement liability. For future acquisitions, libraries would have been able to adjust to the Second Circuit’s narrowing of Section 109(a) only by bearing the significant cost of obtaining a “lending license” whenever they acquired a copy that was not clearly manufactured in the United States.

The Supreme Court, Cram concludes, got it right here.

As far as digital first sale goes, Cram doesn’t address the matter of reselling e-books or music. Instead, he focuses on the difficulties posed to libraries by the vagaries of digital content licensing. The lack of consistency between licensors, or even from renewal to renewal from the same licensor, can make it extremely hard for libraries to figure out how to allocate their budget ahead of time.

Moreover, if the publisher or content provider goes out of business, or decides to discontinue access to certain products because it is no longer profitable, the library might no longer be able to provide access to the content at all under the original terms of the license. This, of course, would have serious preservation consequences, leaving large holes in the cultural and scholarly record. Libraries preserve materials to prevent the loss of vital cultural, historical and scholarly resources so that generations of users to come are able to use them. If libraries are unable to access and preserve digital content, then libraries may not be able to fulfill their mission to protect the record of our cultural heritage for future readers and knowledge creators.

He adds that, since 2012, the New York Public Library has served as test lab for e-book distribution pilot programs, which help libraries and publishers better understand new business models and how patrons use e-books. He concludes by calling on Congress to “closely monitor the evolving digital marketplace to ensure that it is sufficiently competitive to provide widespread public access to works.”

House first sale doctrine hearing written testimony: Graphic Artists Guild, Owners’ Rights Initiative

oriPreviously in this series:

Here are two more documents from yesterday’s first sale hearing. Like yesterday’s pair, they’re a half-and-half split: one in favor of expanding first sale, the other concerned over what the implications might be. We begin with the concerned one.

Graphic Artists Guild

Writing on behalf of the Graphic Artists Guild, Ed Shems explains graphic artist concerns over the possible expansion of fair use in a 5-page PDF. Graphic artists, Shems explains, frequently license their work rather than selling it outright. This allows them to tailor their fees to a client’s needs and not have to charge more than the client can afford for uses the client doesn’t need.

Shems expresses concern over the possibility of first sale’s expansion to digital goods, and also over a related issue he had heard the subcommittee was considering: “whether artists and other copyright owners should be able to write the terms of our license agreements with our clients based upon their actual needs without being subject to government regulation.”

That’s an interesting spin on things. I know there had been concern over shrinkwrap licenses and the effect they have on first sale (most notably concerning the Autodesk case) but hadn’t expected that to affect ordinary license agreements for creative works. But Shems is concerned that it might.

Shems’s objections to digital first sale are essentially the same as Wiley’s: digital goods don’t degrade over time, and “used” digital goods resales, as for e-books, would adversely affect his clients who use his artwork in their books.

Additionally, under the proposed change, I am concerned that because infringement will become even harder to police than it is now, once my artwork has been published, my work may then be altered by an end user in a manner to which I may object. This may include reworking of the art in an objectionable way or using it to promote or convey a message with which I do not agree. My artwork represents me and my point of view and changes unapproved by me might impact negatively upon my reputation and therefore my ability to attract work/clients. As a creative professional and small business owner, I am able to choose which clients I work with. Under an extension of the first sale doctrine, where copies of my work could be digitally sold to others I don’t know or work with, that right would be taken away from me.

He also notes that digital first sale is not something visual artists’ clients have been asking for either.

In regard to the issue of government regulation of license agreements, Shems holds that restriction of artists’ ability to license work to their clients will cause them to have to sell that work outright instead, and thus necessarily price their work out of range of potential clients who previously could just license that work on favorable terms, with price and payment options customized to meet those clients’ needs and ability to pay.

I’m not sure this is an entirely realistic concern, but nonetheless it’s interesting to hear how the question of first sale affects people outside the range of stakeholders who usually get all the attention when the first sale question comes up.

Owners’ Rights Initiative

The next stakeholder to have his say is Jonathan Band, counsel for the Owners’ Rights Initiative. ORI is an association of over twenty companies and trade organizations. These include library associations such as the ALA, Goodwill Industries International, and a number of e-tailers such as eBay, Etsy, Overstock.com, Powell’s Books, and Redbox. (We previously covered the Owners’ Rights Initiative here.) The ORI, Band explains, formed while the Kirtsaeng vs. Wiley case was pending before the Supreme Court, and has the goal of protecting and fostering first sale principles. (Given how many of its members deal with reselling used merchandise, it’s not surprising.)

This 15-page PDF reads in part like a mirror image of the Wiley one from my last post. Band starts out by explaining why Kirtsaeng was a good decision. It’s consistent with consumer expectations of being able to resell, give away, or destroy any legally-made goods they own, no matter where they bought them. (I’m amused he uses the example of someone giving a North Face jacket to the Salvation Army, given that Goodwill is one of the SA’s direct competitors.)

The ORI feels the Court made the right decision, and Congress should not intervene further, and devotes several pages to explaining why, looking at the different potential policy choices and reasons why among all the alternatives, the “international exhaustion” rule from SCOTUS’s precedent is the best option.

Next, Band discusses digital first sale. He actually only devotes one paragraph in support of reselling pure digital goods (the ORI supports it) but spends a few pages talking about a side issue concerning digital first sale that doesn’t get as much press as companies that want to let people resell e-books or music. This is the issue of physical goods that have a software component, such as a computer server or an automobile with an on-board computer. Manufacturers are able to use restrictive licenses on the software to prohibit or complicate transferring the hardware.

Preserving the resale rights of consumers of physical products that contain software is important for reasons that go beyond the protecting the economic interests of  these consumers and the secondary market consumers who would purchase these products. If the manufacturer refuses to provide to the secondary market consumer the security patches it provides to the original consumer, the security of the secondary consumer’s computer system could be compromised. Such security patches typically are provided to the original consumer free of charge. In essence, the original purchase price entitles the consumer to receive security patches and other patches that fix bugs in the program.

And it’s also helpful to the environment by keeping otherwise resalable products out of landfills. The ORI supports addressing this issue with “a relatively simple amendment to the Copyright Act.”

Band closes with a brief note praising the International Trade Commission for a report noting that overly-restrictive trademark enforcement can be a barrier to international trade.

This is proving to be quite an interesting set of documents so far. Everyone seems to have a different idea of what first sale ought to be, and even the stakeholders who are on the same side don’t always want the same thing or for the same reason. I look forward to reviewing more of them.

House first sale doctrine hearing written testimony: John Wiley & Sons, ReDigi

We’ve covered the history of efforts to implement resale of digital goods before (more than once, in fact), and there’s been quite a discussion of why it would be a bad idea. Now it’s Congress’s turn to talk about it.

Today a House subcommittee held a hearing concerning first sale and how it related to digital items. InfoDocket has links to the prepared remarks of a number of the attendees, as well as the opening statement by Representative Bob Goodlatte.

Noting the importance of the first sale doctrine, Goodlatte said

Although some legal doctrines may be invisible to Americans, the first sale doctrine is not one of them. First sale has been such an integral part of our economy that entire businesses have been built upon it such as Blockbuster video stores and Netflix by mail. Consumer expectations have also been built upon this doctrine. Laws and consumer expectations are developed independently, but they can help shape each other. This morning, we will hear about both as they apply in the first sale context.

He called attention to the challenge digital good represent concerning first sale, and the need to determine whether it is possible and whether consumers even want it at all.

Over a few more posts, I’m going to look at the contents of the filings. Here are the first two.

John Wiley & Sons

Stephen Smith, President and CEO of Wiley (the company that notably lost the Supreme Court case against someone who imported and resold cheap third-world editions of its textbooks), had a ten-page PDF (8 1/2 pages of text, not counting the title page) going into Wiley’s background and discussing what first sale means to the company. Smith makes clear Wiley sees benefits from first sale resale of physical goods, as long as it’s “properly applied” to avoid interference with selling goods cheaply to developing markets.

Smith devotes the majority of his statement to complaining about the Kirtsaeng vs. Wiley decision and its probable impact on the publishing industry.

In educational products, for example, allowing the importation into the U.S. of textbooks produced abroad for an overseas market is not leading to lower costs for students. Instead, publishers have either withdrawn from certain international markets completely or are obliged to work with fewer, more trusted distributors, thus lessening the availability of legitimate versions of their products in underserved foreign markets and reducing the overall number of transactions through which they can recoup their various production and dissemination costs. To prevent arbitrage, some publishers are now only offering their products abroad at higher, non-local prices which students cannot afford.

It also, Smith says, increases piracy as counterfeiters rush in to fill the market vacuum caused by the discontinuation of cheap third-world editions, and causes higher prices in the US as they’re no longer able to cover the cost of separate foreign editions given the loss of the foreign sales revenue. Wiley wants Congress to “clarify” the matter and make unauthorized importation of non-US copies illegal.

Only in the last two pages does Smith go into digital first sale. Not surprisingly, he’s against that, too. Digital copies don’t wear out, he explains, and any DRM-enforced regime is vulnerable to circumvention.

Wiley believes that creating a “digital first sale” would undermine existing businesses and halt the development of new businesses that use licensing to offer consumers an unprecedented variety of ways and price points for accessing and using creative content.

ReDigi

John Ossenmacher, founder and CEO of ReDigi, the digital music resale company currently embroiled in a lawsuit by Capital Records, submitted an 18-page PDF in a very small font. As might be expected, he begins by insisting that first sale should apply universally: “you bought it, you own it.”

Consumers are given the option to “buy” music, movies, and books on their computer screen the buy button looks the same for digital and physical items but in the largely illegible legalese (that no one reads) the rights of ownership are watered down or worse, dissolved all-together for e-books and digital downloads.

Studies show consumers believe that they own what they buy when downloading. Content producers are attempting to take away a fundamental consumer choice by styling what they call a long term lease/license into their less than forthright marketing strategies.

If the consumer wants a lease, and any benefits that might come with it, that’s fine. But ownership has been and should always remain an option as well.

If digital goods make piracy easier, he says, so what? We’ve got laws to deal with that. (Never mind that there’s no way to tell a DRM-cracker is breaking the law if they do it in the privacy of their own home.)

And he has a rebuttal for those who say that first sale only applies to the physical object containing the work, not the work itself:

It is historically apparent that the intent of the law is to have all Copyright goods protected regard of their delivery formats. First sale is not about the medium in which a work is held; it is about the exhaustion of the owner’s rights upon the collection of the first payment in consideration of a sale, or even a transfer of a particular copy without payment. Is a copyright good any more or less protected merely because it is on paper, rather than on tape or on plastic or on a magnetic disk, canvas or parchment? The answer is of course not.

Ossenmacher notes that the financial benefits to permitting resale of digital goods could be immense; the size of the used physical good marketplace dwarfs the size of that for new physical goods. Such a market would “lessen the divide between the haves and the haves-less” by allowing people who couldn’t afford new goods to buy used, and would free up billions of dollars in currently unusable value in locked-down digital goods.

Ossenmacher notes how limited the current options for digital sharing are, and suggests ways in which the laws could be reformed to make digital resale more clearly permissible. He also discusses a 2001 report that advised against permitting digital first sale, holding that the situation has changed enough in the 12 years since that report was issued that its conclusion no longer applies.

He also suggests that the lack of ability to resell digital goods is part of what has accounted for the explosion in digital piracy over the last couple of decades: “Many file sharers have openly stated, ‘Why should I buy it when as soon as I do, the file I purchase has zero economic value?’”

And, by underlining key passages in Title 17, Ossenmacher argues that it should permit digital resale of goods even now. (I suspect that this is also a key component of ReDigi’s defense in the ongoing lawsuit; we’ll just have to see whether the courts agree with him on that.)

The remainder of his testimony consists of a legal background and case analysis, which reads as if it were taken verbatim from a legal filing by ReDigi’s lawyers.

These two filings seem to represent the concerns of both sides of the digital first sale debate in microcosm, even though Wiley devoted far more of its filing to complaining about the Kirtsaeng case. It will be interesting to see how these play out in the courts and Congress. It will also be interesting to see if any of the other testimony offers any significantly different points of view.

Supreme Court rules Congress can remove material from public domain to comply with international treaty obligations

The Supreme Court yesterday issued a ruling on the Golan copyright case which we’ve discussed here a few times before. The case involved whether works that had previously been within the public domain in the USA could be taken back out of it in order to comply with the Berne Convention international copyright treaty.

Disappointingly, the court ruled that Congress could indeed remove the works from the public domain—Congress did have the power to retroactively extend copyright on these works in order to bring the US into treaty compliance. The court rejected the idea that the First Amendment applied for orchestras that had been making a living performing these works without paying royalties because they could still perform them by paying royalties.

It’s not too big of a surprise, really; this is mostly the same court that issued a similar ruling on Eldred vs. Ashcroft nine years ago. And while it is disappointing, there is a danger that we can make too big a deal out of it. Unlike with Eldred vs. Ashcroft, the public domain was not really the central issue here—the main import of the decision regards what Congress can do in general to enforce compliance with international treaties. Copyright was just the subject of this particular treaty.

What might be more worrying are the implications this might have for things like the ACTA treaty that was signed last October, which at one point included three-strikes and global DMCA-style language. If Congress can remove works from the public domain—something that by and large had not happened before—what else can’t they do?

SOPA not dead yet – keep fighting!

Lest we thought that SOPA was dead and buried, a couple of further developments today have shown that hope is premature. Bill sponsor Lamar Smith is moving ahead with plans to continue marking the bill up and bring it back to the House agenda in February. The DNS blocking provision will be removed from the bill (for now—that doesn’t keep them from trying to add it back after the furor has died down), but it still contains a number of other provisions that could prove harmful to the freedom that is the lifeblood of the Internet.

Meanwhile, former Senator Christopher Dodd, now the CEO of the MPAA, has blasted sites planning to participate in the blackout tomorrow. SF editor Patrick Nielsen Hayden, whose blog Making Light is also blacking out tomorrow, explains it best in a blog post:

The Motion Picture Association of America, chief sponsor and financier of SOPA and PIPA, addresses Wikipedia, Reddit, and other major sites going dark tomorrow, accusing them of “abuse of power.” “It’s a dangerous and troubling development when the platforms that serve as gateways to information intentionally skew the facts to incite their users in order to further their corporate interests.” In related news, the mutilated body of Irony was found washed up against a pier in the East River. She was pronounced dead at the scene.

Not incidentally, what a dreadful end for former Connecticut senator Christopher Dodd, once an idealistic young congressman of the Watergate-era “Class of ‘74,” to end his public life as the spokesmodel for a corrupt and frequently hysterical organization of fantastically wealthy media conglomerates, distinguished in American history for having attempted to persuade Congress to ban videocassette recorders.

It is more important than ever that we not let our guard down against SOPA. Tell your family and friends how bad this bill would be, and convince them to contact their congressmen in opposition to it. If you have trouble articulating why it’s so bad, here’s a great article explaining the many problems with it. This is our Internet—let’s not let paranoid media conglomerates use their made-up statistics to take it away from us.

Wikipedia, reddit, Mozilla to black out sites Wednesday in protest of SOPA legislation

A number of websites are going dark tomorrow to protest the SOPA legislation that could impose harsh restrictions upon the Internet. These sites include Mozilla, reddit for 12 hours, and Wikipedia for a full 24 hours. Google will also place a SOPA-related link on its homepage. Wales explained that the Wikipedia blackout comes as a result of feedback from the Wikipedia community,

Not everybody is sanguine about the blackout. On just-launched Silicon Valley news site Pando Daily, Paul Carr writes in agreement with Twitter CEO Dick Costolo’s tweet calling the decision “foolish”. Carr blasts Wales for “[making] a mockery” of Wikipedia’s fundraising appeals to keep the service up and running, and also points out that this conflicts with Wikipedia’s insistence on neutrality in its articles.

The trouble with taking a political stance on one issue is that your silence on every issue becomes a stance. Human rights abuses in Libya? Not as important as SOPA. Roe v Wade? Not as important as SOPA. Everything else that’s happened in the world until now, and everything that will ever happen from this day forward? Not as important as SOPA.

Wales defended the decision to UK paper The Telegraph, explaining that the Wikipedia blackout went world-wide instead of US-only as a result of a vote among members of the Wikipedia community and that the protest is international because the US law has the potential to affect the Internet of the entire world by giving the Department of Justice the ability to seek court orders against websites outside US jurisdiction. He hopes that those who live outside the US but have friends or family who are US voters will ask them to complain to lawmakers on their behalf.

Blackout or not, it seems that the groundswell of opposition to SOPA is making itself felt. Bill opponent Darrell Issa has said House Majority Leader Eric Cantor has told him that SOPA is effectively stalled until a “consensus” can be reached. Meanwhile, the bill’s sponsor, Lamar Smith, has announced he will be removing one of SOPA’s most controversial provisions, which would have allowed the aforementioned court orders against non-US websites.

And after being prodded by Internet petitions, President Obama issued a statement saying the administration would not support the online censorship that SOPA opponents feel the bill threatens, while apparently challenging those opponents to come up with their own solution that will meet the goals of fighting foreign piracy while not messing with Internet infrastructure or safe harbor provisions.

And even the head of the MPAA has been forced to admit that “DNS filtering is really off the table”—at least for now.

Still, this is not a time to let our guard down. And while I’ll be annoyed at losing access to Wikipedia for a day, given that it’s one of my few diversions at work, if the blackout helps hammer home the nails in SOPA’s coffin I will wholeheartedly support it.

For those who want to make a point on their own websites about SOPA censorship, CloudFlare has an app that lets people “self-censor” their websites in protest.

Scribd self-censors to stop SOPA

Wikipedia isn’t the only site considering a public demonstration of the evils of SOPA. Scribd has gone ahead and done it. Scribd has added a script to its page that blanks out documents word by word before users’ eyes, followed by a pop-up explaining what’s happening and why we should all be concerned about SOPA. This analysis of why SOPA is unconstitutional is cited as an example.

(At least, in theory. It didn’t work on my computer, nor on those of some others who posted comments on Scribd’s post.)

That puts me in mind of a tool I saw on BoingBoing the other day that allows people to “censor” their own blog posts with a link to show how people can fight SOPA censorship themselves. The nice thing about the Internet is that it’s very good at getting out word on things like this. The problem is, will that be enough to kill the bill?

(Found via TechDirt.)

Should Congress and the Internet understand each other better?

Congress_large_extra_largeAn interesting triad of articles has appeared over the last few days, talking about Congress’s deliberations over SOPA. The article that started it all, by musician and blogger Joshua Kopstein, puts into its title a sentiment with which a lot of people on the Internet can readily agree: “Dear Congress, It’s No Longer OK to Not Know How the Internet Works.”

Kopstein calls members of Congress out for not bothering or apparently even desiring to understand the impact that their legislation could have before passing it. A couple of representatives pooh-poohed security concerns that had been brought up about the bill, downplaying any need to bring in experts to explain to them what the problem was.

The fact that there was any debate over whether to call in experts on such a matter should tell you something about the integrity of Congress. It’d be one thing if legitimate technical questions directed at the bill’s supporters weren’t met with either silence or veiled accusations that the other side was sympathetic to piracy. Yet here we are with a group of elected officials openly supporting a bill they can’t explain, and having the temerity to suggest there’s no need to “bring in the nerds” to suss out what’s actually on it.

Another posted to his twitter account that he was so bored with the debate that he was surfing the Internet on his smartphone. (Hey, constituents, aren’t you glad you’ve got that guy working for you? He takes it so seriously…) Secure in their apparent complacency, the Representatives voted down all but two of the amendments SOPA opponents sought to add in the interest of preserving security and free speech. “This used to be funny, but now it’s really just terrifying,” Kopstein writes.

But author Clay Johnson takes Kopstein’s base assertion and turns it around, with a post entitled “Dear Internet, It’s No Longer OK to Not Know How Congress Works.” Pointing out that the lack of understanding cuts both ways, and using the pharmaceutical industry as an example, Johnson notes that the beneficiaries of legislation are usually the ones who did the best job “educating” Congress themselves.

If Congress is complaining that they don’t know about something that you care about, the right answer isn’t to tell them to go get educated. The right answer is to educate them. Congress mentioned the word "biologics" 75 times in a month because a lobbyist spent a long time doing their job: educating members of Congress on the needs of its industry.

Johnson notes that the winning team in Washington is usually the one with the deepest pockets. We can work to change the system—indeed, Johnson says that is what his whole career is about—but it doesn’t happen quickly or easily.

He also points out that congressmen would much rather hear from their constituents than lobbyists—but their official computer systems for managing constituent mail are so far behind the times and user-unfriendly that they can make it hard for congressmen to make use of it.

Here’s an area for both some disruption and some lobbying. Let’s build tools that allow members of Congress to aggregate messages being sent to them, and to associate those messages with congressional districts. Let’s come up with a way for a member to see what their constituency is saying about any particular issue they’d like, and let’s provide that as an open service so that anybody can see what a particular constituency is saying. That way, when a member has a track record of voting against the desires of a substantial portion of his or her district, we’ve got a record of it, and it can get brought up in the next election.

At the same time, it’s also an area for some great lobbying. Hardware and software platforms are no more or less secure inside or outside the walls of Congress. Let’s lobby for a rules change that allows our members to use the software they want to use. It’s a non-political no-brainer that could allow members to work with businesses in their own districts rather than in Washington, and could help government attach itself to Moore’s law like the rest of us.

Finally, Michael Arrington writes his own response on Uncrunched: “If We Play by Big Government Rules, We’ve Lost.”

It’s the libertarian in me (or the fact that I’ve been mesmerized by Starz show Boss these last few months), but all I see in Washington DC are a bunch of elected thugs with various overlapping crime rings beneath them. Their job is to get reelected and gain power, not help the country or do what’s right. Unless you have a lot of money and are willing to spend it lobbying, you’re going to lose your fight no matter how righteous your position.

In Johnson’s world, congress gives a damn: “The truth is that Congress would much rather listen to its constituents than listen to lobbyists,” he says. Maybe he’s right, but I’ve yet to meet an elected official or bureaucrat who actually gave a damn. The profession just seems to attract a certain type of person, and that person wants to talk to the money, not to the people.

He sees the attempt for tech firms to lobby Congress as Johnson suggests as a cure that might be worse than the disease. Most startups, he writes, don’t have the time or resources to do something like that and still concentrate on the business side of things.

In Congress’s attempt to regulate the tech industry, they risk destroying the fertile ground for innovation that has grown up in Silicon Valley. If the government would just leave Silicon Valley alone, Arrington writes, it will fuel growth in the economy and generally make the world a better place.

That may be true. But it seems to me, based on what we’ve seen with SOPA, that a copyright-paranoid entertainment industry isn’t about to let that happen. I can hope for the best, of course, but that doesn’t mean I’m really expecting it.

Electronic device use coming to House of Representatives

Seal-of-the-US-House-of-RepresentativesIn a follow-up to a story I mentioned several days ago, the New York Times has coverage of the new rules propositions for allowing electronic device use on the House floor. It seem these propositions will just formalize the way that people have already been using their devices—rules or not, Representatives and Senators are often seen furtively whipping out their gadgets to check messages.

The new rules are not meant to allow let congressmen listen to music or play games, though undoubtedly some will find less serious uses for the devices.

The intent, [Brendan Buck, a spokesman for the Republicans] said, was to let lawmakers look up the text of a bill, check a fact or keep up on the news of the day. Their advisers could also send them important messages. And, especially with the iPad’s bigger screen, lawmakers could abandon paper copies of bills in favor of electronic versions. Or they could use Google on their smartphone to check the accuracy of something a colleague had just said.

The article also points out other politicians’ uses of mobile device technology, such as Obama’s ubiquitous smartphone—and, amusingly, the adoption of a Blackberry by the wife of Obama’s predecessor.

“I had not used a computer in the eight years I spent in the White House, and I didn’t know a thing about BlackBerrys,” [Laura] Bush told Advertising Specialty Institute Radio. “And now, like everyone in the U.S., I have one in my hand every moment. I’m addicted to it.”

The Senate still does not allow open mobile device use, though a leadership aide said that the rules might be loosened at some point.

U.S. Representatives seek permission to use iPads on House floor

A few days ago I mentioned the uses that a couple of Supreme Court Justices were making of e-readers or iPads. It turns out that this is not the only place in government where the electronic devices might be used—but some existing rules of conduct might have to be cleared out of the way first.

Politico reports on the drive to modernize technological aspects of Congress, whose facilities are still somewhat technologically backward. The iPad has been finding favor with representatives, particularly Republican ones.

Indeed, when Rep. Jason Chaffetz (R-Utah) got one of the first iPads earlier this year, he and others with the mobile device bemoaned rules that barred them from using electronics on the House floor. No definitive ruling has been made yet, according to a House leadership aide.

However, there seems to be some misunderstanding about those rules, prompted by Representative Henry Cuellar (D-Texas) presiding over the house with his iPad on the podium—an apparent violation of the rules. But it turns out it was actually not a violation after all; House Parliamentarian John Sullivan explained that the devices should be all right as long as they are not being used to play sound or to transmit.

If the iPad is formally permitted on the floor, it could considerably change the nature of Congressional debates.

“There will be the ability to have real-time information brought to the floor in a readable, usable format,” said [technology expert U.S. Naval Academy professor Steve] Frantzich. “A member could make a factual statement, and someone with an iPad could say, ‘No, your data is two years old.’ All of a sudden, you have a member being able to one-up someone speaking on the floor.”

And Rep. Greg Walden (R-Ore.) has suggested replacing printed copies of bills with e-versions, which could potentially save quite a bit of paper if many Congressmen started adopting iPads or other tablets.

However, penetrating the famously technology-averse Senate may take a bit longer.

(Found via Engadget.)