Politics, language and the Eldred decision

I’ve been reading Orwell’s essay, “Politics and the English Language” which is partly about how politics can corrupt language. And then my colleague, Ray Corrigan, pointed me to an acute piece in the American Open Technology Consortium Blog by Doc Searls. It’s worth quoting in full:

“I’ve been trying to collect my thoughts about the Eldred decision. At this point I think there are several contexts that need to be explored.

One is legal — constitutional, really. Larry and the lawbloggers (sounds like a good name for a band) are all over that one.

Another is political. The Sony Bono Act was a political creation in the first place, and the Supreme Court decision in its favor was a political victory for Hollywood (yes, print publishers had some interest in it, but the story plays as a Hollywood victory, complete with quotes from Jack Valenti and Hillary Rosen).

The third is metaphorical. I believe Hollywood won because they have successfully repositioned copyright as a property issue. In other words, they successfully urged the world to understand copyright in terms of property. Copyright = property may not be accurate in a strict legal sense, but it still makes common sense, even to the Supreme Court. Here’s how Richard Bennett puts it:

‘The issue here isn’t enumeration, or the ability of Congress to pass laws of national scope regarding copyright; the copyright power is clearly enumerated in the Constitution. The issue, at least for the conservative justices who sided with the majority is more likely the protection of property rights. In order to argue against that, Lessig would have had to argue for a communal property right that was put at odds with the individual property right of the copyright holder, and even that would be thin skating at best. So the Supremes did the only possible thing with respect to property rights and the clearly enumerated power the Constitution gives Congress to protect copyright. ‘

Watch the language. While the one side talks about licenses with verbs like copy, distribute, play, share and perform, the other side talks about rights with verbs like own, protect, safeguard, protect, secure, authorize, buy, sell, infringe, pirate, infringe, and steal.

This isn’t just a battle of words. It’s a battle of understandings. And understandings are framed by conceptual metaphors. We use them all the time without being the least bit aware of it. We talk about time in terms of money (save, waste, spend, gain, lose) and life in terms of travel (arrive, depart, speed up, slow down, get stuck), without realizing that we’re speaking about one thing in terms of something quite different. As the cognitive linguists will tell you, this is not a bad thing. In fact, it’s very much the way our minds work.

But if we want to change minds, we need to pay attention to exactly these kinds of details.

“The Commons” and “the public domain” might be legitimate concepts with deep and relevant histories, but they’re too arcane to most of us. Eric Raymond has told me more than once that the Commons Thing kinda rubs him the wrong way. Communist and Commonist are just a little too close for comfort. Too social. Not private enough. He didn’t say he was against it; but he did say it was a stretch. (Maybe he’ll come in here and correct me or enlarge on his point.) For many other libertarians, however, the stretch goes too far. Same goes for conservatives who subscribe to the same metaphorical system in respect to property.

So the work we have cut out for us isn’t just legal and political. It’s conceptual. Until we find a way to win that one, we’ll keep losing in Congress as well as the courts.”

Doc’s right: rule one in public debate is never allow your opponents to capture the language in which the discussion is conducted. He also points to another interesting site, “Metaphor, Morality, and Politics: Or, Why Conservatives Have Left Liberals In the Dust” by George Lakoff.

The war in Washington: between Conservative realists and Conservative idealists

Fascinating article by Ian Buruma, who was invited to Washington to take part in a discussion about Iraq. His reflections on what he heard in the US capital suggest that if we want to undrstand what happens next, the best thing to do is to look back at how the US handled post-defeat Japan. He came away also convinced that the die is cast:

“On the merits of the war itself, there could be no question. That was settled. Scepticism on this score was met with the kind of eye-rolling impatience with which committed Marxists treat people who still fail to understand the laws of history. In the course of this eye-rolling, I learned a new expression for the word “aesthetic”, as in: “Oh, you’re only against the war for aesthetic reasons.”

The assumption here is that one is a namby-pamby European wimp, too squeamish for the necessary task at hand. Sure, a few tens of thousands may die, but what is that compared to the glories of democratic revolution? This goes beyond anti-European prejudices. It is where the neo-conservative ideologues reveal the now distant, but still unmistakably Trotskyist antecedents of their dogmatism. One cannot afford to be sentimental if one is to change the world. ”

Big Brother marches on: ACLU report on the US situation

‘SAN FRANCISCO (AP) — The United States is evolving into a Big Brother society as technology advances and post-Sept 11 surveillance increases, the American Civil Liberties Union said in a new report.

“The reasonable expectation of privacy has been dramatically diminished,” Barry Steinhardt, an ACLU director, said in an interview following Wednesday’s release of the report Bigger Monster, Weaker Chains: The Growth of an American Surveillance Society.‘

[More.]

US Supreme Court sells out to Disney

A ridiculous 7-2 decision in which the Court refused to take seriously its Constitutional duty to constrain Congress over the extension of copyright terms. Here’s Larry Lessig’s sombre reflections on his defeat:

“So I’ve got to go get onto a plane to go to my least favorite city (DC). My inbox is filling with kind emails from friends. Also with a few of a different flavor. It’s my nature to identify most closely with those of the different flavor. David Gossett at the law firm of Mayer Brown wrote Declan, ‘Larry lost Eldred, 7-2.’ Yes, no matter what is said, that is how I will always view this case. The constitutional question is not even close. To have failed to get the Court to see it is my failing.

It has often been said that movements gain by losing in the Supreme Court. Some feminists say it would have been better to lose Roe, because that would have built a movement in response. I have often wondered whether it would ever be possible to lose a case and yet smell victory in the defeat. I[base ‘]m not yet convinced it[base ‘]s possible. But if there is any good that might come from my loss, let it be the anger and passion that now gets to swell against the unchecked power that the Supreme Court has said Congress has. When the Free Software Foundation, Intel, Phillis Schlafly, Milton Friedman, Ronald Coase, Kenneth Arrow, Brewster Kahle, and hundreds of creators and innovators all stand on one side saying, ‘this makes no sense,’ then it makes no sense. Let that be enough to move people to do something about it. Our courts will not.

I will always be grateful to Eric Eldred, and our other plaintiffs, for putting his faith in this case. I will always regret not being able to meet that faith with the success it deserves.

What the Framers of our constitution did is not enough. We must do more.”

More comment…

Disney Wins, Eldred (and everyone else) Loses [Slashdot]. News.com’s brief take and more from AP. On Lessig’s own blog: “The Supreme Court rejected our challenge to the Sonny Bono law.” Doc Searls is angry. Halley empathises with a Right On Alpha Male. Megnut growls: “Just another example of government of the corporations, by the corporations, and for the corporations.” The Shifted Librarian is unimpressed: “What I’d like to know is if the Bono Extension doesn’t exceed constitutional limits, what does?” Dave says, “ Donna Wentworth is gathering links on the Eldred case.” I’m worried. [[ t e c h n o c u l t u r e ]]

NYT editorial: “The Coming of Copyright Perpetuity”.

At last someone says it: US media have lost the will to think for themselves

I’n no great fan of the British media — especially the UK tabloids. It seems to me that they have a relentless dumbing-down effect on political debate and public argument. And I was taken in for years by the conventional wisdom that US journalism had higher standards of objectivity and editorial quality. But since 9/11 I’ve been rethinking that position. Firstly I see precious little real diversity in the mainstream US media: the only newspaper which still seems capable of publishing stuff which is seriously critical of the ‘war’ on terror and the upcoming campaign against Iraq is the venerable old NYT. Secondly, a lot of mainstream US journalism is, well, boring and uninspired. Last time I was in Washington, for example, the Post used to send me to sleep.

How nice to see, then, that an English hack resident in the US, Matthew Engel, has finally penned a piece which is highly critical of US journalism. “The worldwide turmoil caused by President Bush’s policies”, he writes, “goes not exactly unreported, but entirely de-emphasised. Guardian writers are inundated by emails from Americans asking plaintively why their own papers never print what is in these columns (in my experience, these go hand-in-hand with an equal number insulting us for the same reason). In the American press, day after day, the White House controls the agenda. The supposedly liberal American press has become a dog that never bites, hardly barks but really loves rolling over and having its tummy tickled. “

Good stuff. And there’s lots more in the same vein. The bottom line is this: a working democracy requires vigorous, independent and critical media that reach the majority of citizens. The US doesn’t have those at present. The Fourth Estate has emasculated itself: an important check on political and corporate power has evaporated. And it’s not just in relation to political power that this matters: look at how the corrupt hyping of dot-com companies went unremarked; and where were the watchdogs of US financial journalism when Enron’s swindling was at its height? And as for the Savings and Loan scandal of the Reagan years, well… words fail one.

How are the mighty fallen: Steve Case dumped
NYT story.

“Stephen M. Case, the former chief executive of America Online who engineered its acquisition of Time Warner, resigned tonight as chairman of the combined company, AOL Time Warner, bowing to shareholder anger over the disappointing results of the merger. He will remain as a board member.

Mr. Case’s sudden resignation is the culmination of an 18-year rise on the crest of the Internet boom that took him from founding an obscure start-up betting on the future of an unknown medium to becoming the top executive of the world’s largest media company. Now he becomes the latest media empire builder to resign from the helm of a communications conglomerate, following the departures of Jean-Marie Messier from the chairmanship of Vivendi Universal and Thomas Middelhoff from the top job at Bertelsmann. ”

Steal This Book? A Publisher Is Making It Easy. Prentice Hall is publishing a line of computer books under the Open Publication License which allows people to copy, modify and redistribute works.  [New York Times: Technology] [[ t e c h n o c u l t u r e ]]

The Irish browser story:

From Karlin Lillington’s Blog: Ok folks, here’s the scoop. I am just back from talking to one of MIT Media Lab Europe’s researchers, who both checked out the browser and talked to Adnan. He says the browser is ‘absolutely extraordinary’. He says that what Adnan has done is re-engineer the efficiency of how a browser operates, which allows it to run up to six times faster (but usually not that much faster — two to four times faster is more common). So it’s not managing bandwidth but managing the way the browser itself handles and presents information.  The researcher (whom I know and will vouch for) says that instead of simply tinkering with existing code he went down to the socket layer and reworked it at the protocol level (now, many of you guys will know the significance of this better than me, I’m just reporting the conversation). He added that it is incredibly clever work and stunning that a 16 year old has done this (I am not scrimping on the superlatives because that is what was said). (NB: A conversation in a group ensued that this work perhaps suggests that because the browser market is a virtual monopoly, there’s been little incentive to improve efficiency in this way — indeed, it might be beneficial to product development to just eke out a leeeetle more efficiency now and then and advertise it as continuing innovation… but I leave that to further discussion among the well-informed).

And Adnan has indeed worked in all the existing media players AND a DVD player so you can watch a DVD while surfing. And incorporated in a voice agent that will speak web pages, for young children or for the sight-impaired. The improved efficiency angle got the notice of the few media reports done on this so far, but it’s really not what Adnan himself was emphasising — it’s the whole package, said the MIT guy.

Not surprisingly Adnan now has more than one university interested in him. And he has apparently told the numerous companies who saw the browser in action and who wanted to commercialise it that, at least for now, he has no interest in commercialising it.

I will note that the MIT researcher had a big grin on his face and it was clear he found the whole project a pleasure to talk about. He also said he’d heard about the browser before he arrived at the Young Scientist exhibition and made a beeline to see it. Adnan apparently didn’t really think it would necessarily win an award –the researcher told me it was clear that it HAD to win. So there you go. I’m sure we’ll hear a lot more about all this soon.

And yes, he has copyrighted it.

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1,001 useful things you can do with a DMCA: Number 65

According to The Register, “Lexmark has invoked the controversial Digital Millennium Copyright Act in a legal action against a firm that makes chips that permit third party toner cartridges to work in its printers.

The printer company is suing Static Control Components for violation of the Copyright Act and the Digital Millennium Copyright Act regarding the Static Control’s Smartek microchips. Normally litigants would use patent laws in such cases but here we see another example of the surprising applications of the DMCA.

In November stores used the DMCA to defend the copyright of pricing lists, now its been applied to printer cartridge microchips.”

“What next?” asks The Register. Just so.

Kim Jong Il — crazy name, crazy guy?

His country’s broke and descending in to the Dark Ages, yet this cookie seems to have the world’s greatest power on the end of a string. How come? This Newsweek profile is an attempt to explain what lies behind the moniker.