WHACK THE GOPHER III: The Return of the Mutant Grandson

While the economics of posting copyrighted work for free on the internet should determine the effort to respond to it, that is not the thing that ultimately determines an effective response.

That is possibility. In other words, can you shut the posters down at any price, not just an economically justifiable one?

The short answer is no.

It doesn't matter whether the free posting of copyrighted work is legal - which it assuredly is not. It doesn't matter if it is moral - which it arguably is not. It doesn't even matter if it causes economic loss to the authors - which is apparently does not. What does matter is whether it can be stopped.

And it can't be. It's as simple as that. And this is point where SFWA vice-president Andrew Burt and his ilk are utterly, completely clueless.

(Burt, of course, is the one who guided the SFWA into filing a massive takedown request under the DMCA against a site in an effort to get them to remove copies of works by Robert Silverberg and Isaac Asimov. The thing turned into a farce when it become obvious that many of the works on the list were not by Silverberg or Asimov and at least one of them had been made freely available under the Creative Commons license.)

Given the structure of the internet there is simply no way to stop the free (in both senses) exchange of copyrighted works, be they music, games or the science fiction stories. There simply are far too many people posting them from far too many places all over the world.

This should be obvious, especially in the light of the Recording Industry of America Association's (RIAA) campaign and its results. RIAA has shut down dozens of web sites displaying pirated music, destroyed a couple of companies (notably Napster) which encouraged the practice and gotten judgments and big fines against dozens of people allegedly exchanging music. All of this, please note, at a cost of millions of dollars.

And the effect on the copying and exchange of recordings? Just about none whatsoever. For every site shut down, for every pirate sued, another, or two or ten spring up to take its place. After years of effort the RIAA is even further from its stated goal of stopping free exchange of copyrighted work than it was when it started. (The RIAA's claims to the contrary won't stand examination. They claim that they've slowed the growth of file sharing, not stopped it or reversed it. Even that claim is highly suspect considering how explosively file sharing grew in the years before the RIAA launched its terror campaign. For one things, explosive growth tends to slow naturally after a few years.)

Well, there has been one effect. In four years, the RIAA has gone from being a relatively unknown mouthpiece for record companies to one of the most hated outfits in America. This is due to a combination of idiotic arguments and fascist legal tactics which have turned even people who've never downloaded a song against the RIAA. Granted that's an accomplishment, but I don't think it's a positive either for the organization or the record companies it represents.

All this is so blatant that even the RIAA now admits the program can't stop piracy.

(The place where the RIAA has been most successful is shutting down paid services that encouraged the practice. That's significant for the real solution to the problem - and the subject for Part IV of this series.)

Half bright ideas

Now as I said before, Burt is misguided but he's not an idiot. He's also computer savvy enough to come up with his own approach to the problem. Burt proposed a half-bright scheme called Shades of Gray involving widely distributing damaged copies of works to swamp the (irony) 'legitimately pirated' (/irony) ones. His theory is that online readers won't be able to trust the copies they find online so they'll buy the books.

The scheme is half-bright because Burt apparently didn't consider what the people who wanted to post these works would do in response to this kind of sanctioned electronic vandalism. The first thing that will happen, of course, is that the pirate community will develop filters to detect the grayed copies. The response will be to develop more sophisticated graying methods - at considerable expense, and the pirates will respond with more sophisticated filters. The result is an arms race and to date such races have typically gone to the pirates.

Again the music and movie industry's example is instructive. They have poured huge amounts into developing copy protection schemes for DVDs and those are being broken almost as fast as they're put into use.

The failure of the DMCA

Even the DMCA, which started this particular thread of nonsense, is pretty much ineffective. As we saw with the SFWA idiocy, a DMCA notice will make a site take down a work, whether it is actually by the person who claims to have written it or not. But the DMCA can't prevent someone from re-posting the same work, especially if they do a little massaging first.

Let's take my story from Analog a few years back "And He Did Ride" about a rather bewildered young man who is sent onto a nasty planet on a rescue mission with an extremely unusual mount. Assume someone OCRs it and posts the file on a site. Then let's further assume that I, the author, in a fit of high dudgeon (and low madness) issue a DMCA demand that the story be removed. The site complies.

End of story? Not hardly.

A poster simply changes the title to "Through The Great Gruesome Swamp By Mechanical Frog", reformats it to fool the filters, says it's by "Fudrucker Q. Hudsucker" and posts it. Since these things are at best quickly scanned before they're posted, it's going to take a long time for someone who isn't in on the gag to find out. Meanwhile there are people out there on the internet spreading the word that Fudrucker Q. Hudsucker's latest opus is really that Rick Cook story about the giant mechanical frog.

Better filters, you say? What happens if I convert the story to a series of image files, one image per page, and give it a pretty, but non-distracting background? The result is much larger, but coming up with a filter to catch it is going to be damn near impossible.

And note the person doing the posting doesn't have to be a computer expert. The pattern for tools against copyright is that the experts write the software and distribute it. Ordinary, if dishonest, schmoes download it and use the easy GUI interface to process the stuff they want to post.

This is not, please note, theoretical. This kind of re-posting goes on every day on YouTube and a lot of other less-well-known sites. We saw an extreme example of this was model Daniela Cicarelli's attempt to block a YouTube video showing her and her boyfriend having sex on a beach in Cadiz Spain. A court ruled the couple's privacy had been violated and ordered YouTube to remove the video. YouTube responded that it had removed the video - repeatedly. People kept reposting it and the result was another round of whack the gopher. The Brazilian court then ordered the video blocked from appearing in Brazil and YouTube and communications companies responded by cutting off YouTube to most of Brazil because there was no other way to keep the video out. Finally some sanity prevailed and another judge overturned the ruling.

Now further note Ms. Cicarelli's net worth undoubtedly exceeds the net worth of SFWA. I don't know how much she and her banker boyfriend spent fighting this thing, but it was probably much more than SFWA could afford to spend on a similar exercise.

And the net result was nothing. The video is still out there and would have been out there even if there was some way to keep it off YouTube.

I don't feel too sorry for Ms. Cicarelli. Granted, her privacy was violated, but anybody having sex in public has to expect that someone will notice. But again, there's simply no way to prevent stuff like this.

The real answer to online posting of copyrighted works is to use common sense. Common sense in the first instance about what can possibly be prevented. And then common sense on what can be economically prevented.

Only after something has passed through those filters can we usefully discuss the moral and legal aspects of the situation.

Does that mean copyright is useless? No. It means you can't stop people from posting for free. Which leads to the next, and I hope, final installment of this thing.

COPYRIGHTS, WHACK-THE-GOPHER, AND SFWA -- WHY I QUIT

Just because you write about the future doesn’t mean you understand it. The case in point is the Science Fiction and Fantasy Writers of America’s recent foray into Piss-Off-Your-Customers-Like The-RIAA Sweepstakes.

Recently SFWA, under the leadership of its vice-president Andrew Burt, mounted a DCMA blitz against the document-sharing site Scribd. The organization demanded the site remove a pile of files that it alleged infringed on the copyrights of SF writers Isaac Asimov and Robert Silverberg under pain of prosecution for copyright infringement.

Problem was, a lot of the documents in the SFWA demand weren’t works by Asimov or Silverberg. The demand, which swore that the works named were copyrights owned by those two authors, included such things as a bibliography of science fiction aimed at junior high school students, a paper (not by Asimov or Silverberg) titled “A History of Intellectual Discussion of 'Accelerating Change', and a lot of gay fiction that the authors obviously never had anything to do with.

What the mental giants at SFWA apparently did was to go through Scribd and grab every URL that contained the words “Asimov” or “Silverberg”, bundle them into a shotgun complaint, swear every one of those works was by Silverberg or Asimov, and shoot the whole pile of poop off to Scribd as a DCMA demand. Apparently no one even bothered to read through the list of items they were swearing – mendaciously and probably illegally – were owned by those two authors.

If this strikes you as damn peculiar, you’re not alone. Science fiction author Cory Doctorow is livid .One of the works on the SFWA hit list was Doctorow’s “Down and out in the Magic Kingdom”, which he released under the Creative Commons license which specifically allows free distribution. Now Doctorow is receiving angry mail from fans accusing him of hypocrisy.

So why did Scribd take down the stuff that wasn’t by Asimov or Silverberg? Because the DMCA is pretty peculiar in itself. As Doctorow notes: “In the real world, you couldn't get a book taken out of a bookstore or an article removed from the newspaper without going to court and presenting evidence of infringement to a judge, but the DMCA only requires that you promise that the work you're complaining about infringes, and ISPs have to remove the material or face liability for hosting it.”

The DMCA is in fact part of the movie and record industry’s last gasp effort to protect an unprotectable position in the internet age. It was passed after heavy lobbying by those groups in a futile effort to curb the use of digital media to distribute copyrighted material. As a quick survey of the web will demonstrate it hasn’t worked.

The DMCA is draconian in its provisions simply because it is just about useless for its intended purpose – as the experience of both record companies and movie studios have shown since it was passed.

Anyone who attempts to seriously apply the DCMA to prevent free distribution of material ends up playing an endless game of whack-the-gopher. As fast as one ‘infringing’ site is taken down, two more pop up. In some cases the material reappears on the same site under a different name. YouTube is rife with examples of this.

The one thing a DCMA dragnet is good for is annoying the fans. The Recording Industry Association of America (RIAA) has managed to make itself one of the most hated organizations in the country by using the DCMA and similar tactics against people who share music files. Now SFWA is playing the same game.

The difference is, SFWA has a much smaller war chest and faces a much more tightly knit fan community. Science fiction fandom is a close group and active fans tend to be opinion leaders in SF and Fantasy much more than the fans of records and movies. Pissing off the fans it notorious for having an immediate, and detrimental, impact on sales.

So what in God’s name possessed SFWA to act like this? Like the original request and the DCMA, SFWA is pretty peculiar in its own right.

The first thing you’ve got to understand about the Science Fiction and Fantasy Writers of America is that it isn’t. Like the Holy Roman Empire, which in Voltaire’s phrase was “neither holy, Roman nor an empire,” SFWA is not an organization of science fiction and fantasy writers. While some of the leading SF and Fantasy writers belong, the vast majority of the members are people who barely meet SFWA’s extremely lax publication requirements. They are not professional SF or Fantasy writers in any meaningful sense of the term and many of them haven’t published a word of either science fiction or fantasy in years.

One result is that the real concerns of writers who earn substantial amount of their income from writing the stuff are largely ignored while the membership spends its time in endless debate on tempests in teapots like the quality of the food in the SFWA hospitality suite at the last convention they attended or rewriting the rules for the annual Nebula awards.

The SFWA publications where this stuff is discussed have (to quote Doonesbury) “all the subtle dynamics of a nursery school recess”. The meetings can be even worse.

Another result is that because the membership mostly aren’t writers they are easily swayed on issues they ‘should’ care about. Since they’re writers, they ‘should’ care about copyright, obviously.

To be perfectly fair to SFWA, back in the bad old days there were a number of unethical publishers who took shameless advantage of SF writers by violating their rights wholesale. The oldest magazine in the field went through a period (after many changes of ownership) where they republished stories from their back issues without further payment to the authors – who had received a pittance for selling all rights to the stories in the first place. This left a certain confused sensitivity to issues of copyright in some of the older members.

The third result of SFWA’s absurd membership composition is that when someone comes along with a strongly held opinion on something other than the Nebula rules or the quality of the food in the SFWA suite, he or she can often sway the membership into doing things which are silly, pointless or downright stupid. After all, why not? It’s not going to affect the average member’s livelihood and it’s not like it really matters if you haven’t had a story published in the last ten years and have no reasonable hope of ever having another published in a paying market.

That’s another characteristic of SFWA. If a tiny group is fanatic on a subject they can just keep bringing it up and bringing up and bringing it up until eventually they get the result they want, if only by a fluke. Of course the pendulum is then likely to swing the other way, but in the meantime SFWA is committed to a wrong-headed course of action.

All these things come together in the case of copyright to produce a Perfect Storm of Silliness.

This has been building for some time. The flap over free postings on the internet started about ten years ago when one or two people began to beat the drums against these awful copyright violations. Never mind that no one was making a dime off these postings. Never mind that, much more to the point, it was effectively impossible to stop.

As someone who was covering the internet and new media even then, I knew the limits on enforcement in the new environment. It was obvious to anyone who looked at the situation that as long as the posters didn’t try to charge for the work, there was no hope of stopping the practice. No matter how many sites you shut down there were always more.

And as a writer with several novels and stories already under my belt, I knew perfectly well the effect that this kind of campaign was going to have on the fans. They weren’t going to like it, a lot of them wouldn’t see the point of it, and science fiction fans being science fiction fans, they were likely to react very negatively, to the detriment not just of the individual authors but of the field as a whole.

I wasn’t alone in these realizations, but I was very much a rara avis. While a fair number of SFWA members are technically trained and a few of them are extremely knowledgeable about the web and the new media, it was obvious most members were not merely not aware of what was happening, some of them were best described as aggressively ignorant of the impact of the impending technological changes. They didn’t know, they didn’t want to know and by God, things were going to continue in publishing just as they always had. Now about the food at the last Worldcon…

I thought about pointing all this out, but I quickly realized it was futile. The exchanges in the newsletter made it obvious that reason had already gone by the board and I didn’t see any point in jumping into that particular hog wallow.

It was the final straw. I had become increasingly disenchanted with the organization because of its ineffectiveness as a voice for actual writers, its constant bickering and the bull-headed resistance to anything that might be a substantive change.

The irony of an organization made of up people who wrote about the future about to be blindsided by that same future was delicious, but it wasn’t enough to keep me in the organization. I let my membership lapse and I’ve never looked back.