A Copyfighter’s Musings

[slightly updated 9/19, 9:45 AM] [also, clarified with this post.] Check out this AP report on the Digital Media Conference.  When discussing CLs, it doesn’t make clear that that would lead to a repeal of significant parts of copyright protection. In any case, see this key section:

“‘Are you seriously considering the [government] regulation of artists?’ asked John P. Barlow, a Grateful Dead lyricist and a co-founder of the Electronic Frontier Foundation. ‘That is so Orwellian. I’m astonished this is even on the screen.'”

I was hoping this would get quoted somewhere so that I could discuss it (what with the non-attribution policy).  The EFF’s not simply asking Congress to hold hearings about a purely voluntary, private compulsory license system – that’s a potential solution, but they’re asking the government to consider intervention in some form. Otherwise, what does Congress have to do with it?  Remember, “If we all band together and stand up for our rights, we can change the law.” It’s unlikely that they mean file-sharing will be made legal without any further government involvement.

So, does this Barlow quote illustrate dissent in the ranks? Or perhaps an inability to keep the message clear and consistent?

I think it’s the latter and indicative of a larger problem the EFF has right now. The EFF’s “Let the Music Play” campaign is a significant shift in the way they’ve approached P2P file-sharing. Before, they repeated: sue the infringer, not the technology creator. Sure, they did mention compulsories and such. Even so, they encouraged lawsuits as an alternative to suing the P2P services themselves.  They kept themselves as far as possible away from explicitly or implicitly supporting infringing file-sharing.

Regardless of what the EFF’s actual stance was then, a reasonable observer could conclude that the EFF’s bluff got called, and now they’re crying foul. From this perspective, beneath the EFF’s supposedly principled response to the suits against technology creators was really just a desire to protect infringing file-sharing. This new campaign looks even less principled if you take into account how the EFF has generally focused more on repealing various copyright legislation and keeping Congress out of things, rather than proposing affirmative legislative proposals themselves. Most people think of the EFF philosophically as somewhere closer to that Barlow quote’s libertarian undertones (obviously, think of John Gilmore here, too). One could still argue that this perspective of the EFF is inaccurate, but I do think the case can be made. 

In any case, even though I see a shift (not a wholly unprincipled reversal of positions, but definitely a change), I appreciate it because I think they should have been pushing for exploration of alternative legislative solutions much earlier. (I had mentioned this in the trusted computing context – I don’t necessarily agree with the particular contextual details of what I said in this post, but I do still hold the overall message about EFF policymaking). At the same time, I do understand why someone would be concerned that the EFF is acting in “bad faith” without consistent principles.

This concern is exacerbated by the EFF’s manner of condemning the RIAA’s lawsuits. As we discussed last week, condemning all lawsuits as an outrageous “attack” on “the public” seems peculiar. Why these lawsuits and not others? What lawsuits would be legitimate?

[added:] I understand that there are practical reasons why the EFF waited for the RIAA’s lawsuits to launch this campaign –   the argument becomes much easier to make to the public. Imagine the EFF launching this campaign when Napster was on its way out; few would have bought into it because there was still enough reason to be optimistic about how the music industry would deal with file-sharing. But those factors don’t really explain the underlying reasons and goals behind “Let the Music Play.”

The EFF needs to provide further details about this new campaign. Most importantly, what is the EFF ultimately seeking? What would they be content with and what principles underlie that choice?  Are they only content with a CL? If so, what are the details of this plan? Or (more likely), if there are a range of potential solutions, could a potential solution simply be a digital music market without these lawsuits? Would the EFF be happy if digital music services were so good that no one uses P2P? What if, to get there, the RIAA has to sue just these 261 people? What if it were only 50 people? Or 5? Would that make a difference? If digital music services had lower prices and lacked DRM, would these lawsuits have more merit? [added:] Is this all just about price points?

Without further explanation, the EFF will weaken its position, leaving itself open to further criticisms like those made by Scott Matthews in his recent Salon piece. At the very least, as long as someone like Barlow is deriding any government intervention while the EFF begs Congress for attention, they’re going to have more trouble than they need.

(Or perhaps these rhetorical problems will have no effect on the EFF’s target audience. The general public might not want a long explanation of why the EFF’s shifting to these principels, or how it’s before and now has been consistent, or exactly how the CL will work. Most people just plain hate the lawsuits, so that’s what the EFF’s appealing to. If so, that has it’s own philosophical problems, but it might be practically beneficial.)

See Mary’s piece from last week for more along these lines.

I might get back to these points a little later, because I meant to talk about them in relation to the Scott Matthews piece. The piece has this overall feeling about the EFF’s “bad faith,” but that gets buried under his specific criticisms of CLs.  In some ways, I think that the general feeling of uncertainty regarding where the EFF’s going was a far better point than Scott’s CL-specific criticisms. I discussed this with Scott via email this week, and I want to discuss a bit more about where he’s coming from and how I view his article. In any case, that will have to wait for another post.

Filed by Derek Slater at 1:37 am under General news
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