As I said before, I want to talk a bit more about Scott Matthews’ column. I want to talk specifically about the article, but I also want to use it to frame broader aspects of the CL debate. Though this time I will focus on several things I didn’t like about the article and his way of treating CLs, I don’t mean this to diminish anything that I said in my previous post.
To me, Matthews’ column has two threads that, while linked in some ways, should have been treated separately. One is that the EFF’s campaign has not clearly stated its purposes and has said certain things that don’t match up with past principles. Another is why CLs in particular are not consistent with the EFF’s principles and thus the EFF should provide far more extensive details before proposing them.
The first point, I think, is a far more important and legitimate point. Indeed, given Scott’s follow-up letter, I think he also meant this to be his more important point, but it got buried under a lengthy, specific criticisms of CLs.
Certainly, CLs could invade privacy, and I suppose the free speech limitations Matthews imagines are possible [Footnote: However, I generally agree with Aaron Mandel’s criticism and Jason Schultz’s rebuttal of Matthews’ argument here]. What strikes me is the repeated declaration that these problems are “inevitable” – as if the EFF were proposing and supporting systems that will lead to these negative consequences. Or that the EFF should not be proposing any system because, no matter how privacy protective and free speech supportive the proposal is, Congress will inevitably tweak it to have these negative consequences.
Blaming the EFF for what Congress might do is wholly unfair. Surely, were Congress to consider a system with the free speech or privacy implications that Matthews outlines, the EFF would oppose it. Matthews wrongly construes these implications as “inevitable” and thus inherent in CLs themselves, when, in truth, one can oppose his speculative implementation of CLs without opposing CLs in general. Should the EFF also be blamed for the enactment and continuing support for the DMCA’s subpoena provision because that was an “inevitability” of defending P2P providers?
Matthews desire for details has more merit, but part of it comes from the wrong angle. The tone and substance in both his original article and the follow-up implies that the EFF shouldn’t even come forward with this plan until they have all the nitty-gritty details worked out. (Footnote: the first piece seems to imply that these details do not exist, stating conclusively: “The EFF and aligned academics blunder when they trade privacy and free speech for piracy and free music.” But, given Matthews’ follow-up, I doubt he actually believed that.)
I don’t think the EFF needs to have everything exhaustively figured out. First, several academics are working on different versions of this policy proposal, and it is reasonable to believe that the EFF would be content with any one of them. Second, while these proposals differ on the specifics, all of them propose some way to deal with the problems Matthews and others have cited. The EFF doesn’t need to, at present, exhaustively prove that a particular version is sufficiently protective. Third, the EFF can reasonably want to negotiate, both with private groups and in Congress, about the details – what they’re pushing is an overall framework to get it started.
Finally, there are practical advantages to staying away from the details right now. As SethF points out, the complexities of the copyfight do not “fit in a press release.” To succeed, the EFF must get the general public on board and that often means oversimplifying.
It also means, to some extent, the EFF has to use populism to its advantage. As Professor Solum has discussed, current “copynorms” treat file-sharing as perfectly legit and the RIAA’s lawsuits and proscription of file-sharing as unfair. Congress’ or the RIAA’s telling people that their norms must be corrected by law seems, to some, paternalistic. Thus, the EFF speaks of this copyfight as “RIAA v. The People”, and condemns the RIAA lawsuits in very general terms as an attack on “ordinary Americans” and “the public.” The voices of 60 million American file-sharers should not be ignored. Broad condemnations and simple policy statements work best here, for the rhetoric gets to the heart of the matter for many people – it provokes sufficient emotional response to get the petition signatures the EFF needs.
But it comes at some cost. If the EFF exclusively speaks in terms of populism, they’ll lose many who see that as an invalid or incomplete principle for change. Even though the EFF isn’t supporting CLs simply because of populist sentiments, the EFF’s rhetoric makes it seem that way to some. Or, at the very least, simplifying policy statements to appeal to people on this basis alone renders them confusing or overbroad. For instance, I took issue with the broad language of the petition because it seemed to say that all lawsuits are condemnable. (Footnote: whether you discuss this in terms of “bad faith” or not is beside the point. One could call it disingenous, or misleading, or unprincipled, or inconsistent, [added:] or perhaps just unclear. In any case, many will believe that the EFF is acting improperly).
Here’s where Scott Matthews’ first thread – that the EFF’s campaign has not clearly stated its purposes and has said certain things that don’t match up with past principles – does matter, as I discussed in my other post. The broader questions – what is the EFF’s goal, what would they be content with, and what principles underlie those choices – will remain important. The oversimplifying and populist sentiments can help get this campaign off the ground, but I doubt it’s sufficient to convince anyone of the need for change.
And, to some extent, providing and discussing more (not necessarily all) specific details remains important, too; like I said, that criticism has some merit. If the EFF will only be content with a CL, it is useful to know what they mean by a CL and to start educating people more about what that entails specifically. If the EFF is content with a range of solutions, defining what sort of things any solution would need to do would be helpful. However, providing all the nitty-gritty specifics of each plan is a lesser concern for the immediate future.
I do want to stress, though, that there are certain discussions of details that I specifically feel do not need to occur.
For instance, if we’re discussing how CLs can be made more privacy protective, and someone assumes that the neither the government nor a private organization can be trusted with this information in any way, then there’s really no discussion about details to be had. No matter what legal and technical solutions anyone proposes, the other person won’t be content. I’m not saying that it’s wholly unreasonable to reject CLs because you don’t trust the government collecting this sort of information, but it is unreasonable to have a discussion about the details of CLs if you’re opposed to them on absolute terms.
I also would like to caution against picking apart the CLs simply to find holes. Saying, “see, this has privacy implications” is important, but I’m not sure it’s grounds for rejecting CLs and opposing all those who support it. It’s grounds for nervousness, it’s grounds for asking and looking for a solution. But dialogue will be ruined if we focus solely on what we don’t like about any given proposal.
The sentiment of Ernest’s final paragraph in his “public domain lottery” post exemplifies what I see as a better way of starting a dialogue:
“[E]ven if the result [of some part of a proposal] is perverse, it might not be all that bad in the greater scheme of things. The benefits of a particular policy might outweigh its flaws. It might even be possible to rework the law (or social practice) so that such scenarios would be less likely. Still, it is the job of everyone in this debate over compulsory licensing to look deeply at the proposals and consider what the various ramifications will be, not simply how do we collect and distribute the money.”
Filed by Derek Slater at 6:15 pm under General news
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