Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators [...]]]> Thanks to Danielle and the CoOp crew for having me! I’m excited.

Speaking of exciting developments, it appears that the Stop Online Piracy Act (SOPA) is dead, at least for now. House Majority Leader Eric Cantor has said that the bill will not move forward until there is a consensus position on it, which is to say, never. Media sources credit the Obama administration’s opposition to some of the more noxious parts of SOPA, such as its DNSSEC-killing filtering provisions, and also the tech community’s efforts to raise awareness. (Techdirt’s Mike Masnick has been working overtime in reporting on SOPA; Wikipedia and Reddit are adopting a blackout to draw attention; even the New York City techies are holding a demonstration in front of the offices of Senators Kirstin Gillibrand and Charles Schumer. Schumer has been bailing water on the SOPA front after one of his staffers told a local entrepreneur that the senator supports Internet censorship. Props for candor.) I think the Obama administration’s lack of enthusiasm for the bill is important, but I suspect that a crowded legislative calendar is also playing a significant role.

Of course, the PROTECT IP Act is still floating around the Senate. It’s less worse than SOPA, in the same way that Transformers 2 is less worse than Transformers 3. (You still might want to see what else Netflix has available.) And sponsor Senator Patrick Leahy has suggested that the DNS filtering provisions of the bill be studied – after the legislation is passed. It’s much more efficient, legislatively, to regulate first and then see if it will be effective. A more cynical view is that Senator Leahy’s move is a public relations tactic designed to undercut the opposition, but no one wants to say so to his face.

I am not opposed to Internet censorship in all situations, which means I am often lonely at tech-related events. But these bills have significant flaws. They threaten to badly weaken cybersecurity, an area that is purportedly a national priority (and has been for 15 years). They claim to address a major threat to IP rightsholders despite the complete lack of data that the threat is anything other than chimerical. They provide scant procedural protections for accused infringers, and confer extraordinary power on private rightsholders – power that will, inevitably, be abused. And they reflect a significant public choice imbalance in how IP and Internet policy is made in the United States.

Surprisingly, the Obama administration has it about right: we shouldn’t reject Internet censorship as a regulatory mechanism out of hand, but we should be wary of it. This isn’t the last stage of this debate – like Wesley in The Princess Bride, SOPA-like legislation is only mostly dead. (And, if you don’t like the Obama administration’s position today, just wait a day or two.)

Cross-posted at Info/Law.

Anyone who believes the Internet to be exclusively, or even primarily, a site for the democratisation of the media or a mechanism to enhance participation in public discourse needs to read this book. This outstanding collection tackles the dark side of the Internet, its use by ‘cyber mobs’, liars, aggressive misogynists and purveyors of hate to distribute their views largely with impunity, while their targets [...]]]> Katharine Gelber offers a thoughtful review of The Offensive Internet in the Australian Review. (David Levine conducted an interview with the book’s editors, Martha Nussbaum and Saul Levmore, available here.) I contributed an essay to this volume, and I found both the other essays in it and the conference it was based on very illuminating. As Gelber notes,

Anyone who believes the Internet to be exclusively, or even primarily, a site for the democratisation of the media or a mechanism to enhance participation in public discourse needs to read this book. This outstanding collection tackles the dark side of the Internet, its use by ‘cyber mobs’, liars, aggressive misogynists and purveyors of hate to distribute their views largely with impunity, while their targets suffer the consequences of this predominantly unregulated arena for speech. . . .

The ubiquity of the Internet, the permanence of posts, and the accessibility of data through search engines that do the looking for you mean that material that makes its way online can affect people’s lives over the long term and in profound ways. When you combine these features with the anonymity of posters and the difficulty of regulating the Internet, it means that people do things and say things on the Internet that they would not do or say in face to face conversations, or at least if they did there would be legal and moral consequences. The Internet as a medium provides a uniquely powerful and wide reaching mechanism with which to do bad things, yet relatively little work to date has acknowledged this aspect of it.

A growing feminist literature, ranging from the work of co-blogger Danielle Citron and that of Ann Bartow, to interventions in social web and other communities, also highlights these problems.

Some will say: if you don’t like a given online community, just join another one. But the ubiquity of options on the internet often amounts to little more than a mirage of choice. You may really like Google+ or Instagram and find it to be a more congenial environment than Facebook or Twitter. (As Liz Kelley put it, “Instagram is homey; Twitter is noisy.”) But just try dragging all your friends or followers to them.

Moreover, digital networks aren’t just leisure activities for many people. Public deliberation occurs on them. Entities like Klout have started a competitive game of influence accumulation with career implications. And they can be important forums for the development of identity, as Rob Horning explains:

The more effort we put into crafting identity online, the more material we supply to Facebook and search engines to associate with contextual ads and other marketing initiatives. For this organizational work we are compensated not with wages but with a stronger sense of self, measurable in hard, quantifiable terms. How many friends do you have? How often do they update? How many photos have you shared? How many times have they been looked at? And so on.

All of this is to say that as Web 2.0 has infiltrated our everyday life, it has transformed our habitus — sociologist Pierre Bourdieu’s term for our manifest and class-bound way of being in the social world — into an explicit productive force without our conscious consent. By continually enticing us to produce more and enrich our self-concept, it presents a clear danger to our ability to maintain a coherent sense of ourselves — to sustain a feeling of ontological security, as Anthony Giddens puts it. Inundated with digital information from all sides — from friends, marketers, and the fruits of own unbounded curiosity — we can fritter away our time shuffling and reshuffling the little bits of novelty without performing a synthesis.

The data deluge and constantly shifting metrics of digital capitalism are hard enough to deal with. The types of civil rights concerns raised by The Offensive Internet shouldn’t be burdening anyone.

X-Posted: Madisonian.

Furious [...]]]> If you missed the story Very Tough Love when it aired last March on This American Life, it put a new spin on that old adage about local politics mattering most.  When you are a drug court defendant, the judicial philosophy and temperament of the judge who manages your case matters a lot, particularly since entering the drug court means waiving many procedural rights.  The story, which focused on a drug court judge who had recently won reelection to a sixth term, was remarkable for its laser focus on judicial discretion and how much can go awry when that discretion is abused.  It was also impossible to listen to the story without speculating about how furious the judge must have been when she heard it.

Furious enough, it turns out, to threaten to sue This American Life and reporter Ira Glass for libel.  She sent her letter,  Glass responded, and for a while all seemed to be quiet.

This past week, however, Georgia’s Judicial Qualifications Committee filed a formal complaint against the judge—Amanda Williams, who presides over the drug court in the Brunswick Judicial Circuit.   Among other allegations, the complaint states that Judge Williams jailed defendants indefinitely, ordered a suicidal defendant into solitary confinement for more than two months, and ordered a defendant jailed when he disputed the results of a drug test.

Judge Williams has the opportunity to respond to the charges in writing.  Unless she and the Committee settle (which usually results in a judge stepping aside), the Commiittee will hold a trial-like proceeding on the charges.

We’ll see what happens next.  But if you haven’t been following this, it’s worth clicking on the links to get up to speed.  Reality radio is way more interesting than reality television.

Photo Credit:  Krista Johansen

Bay Area radio struggles to have decent music. I tend to cycle through the few stations that may have something of interest. A recent addition to the dial focuses on 60s. 70s, and 80s. As a competitor points out, the new comer tends to repeat the same track several times a day. Recently the song Escape (The Pina Colada Song) has been playing quite a bit. The funny thing to me is that yoga and health food seem to have been dating and compatibility differentiators for more than 30 years. The style of the song and especially the attire, however, may not be as timeless; just reminders [...]]]> “If you like Pina Coladas, and getting caught in the rain.
If you’re not into yoga, if you have half-a-brain.”

Bay Area radio struggles to have decent music. I tend to cycle through the few stations that may have something of interest. A recent addition to the dial focuses on 60s. 70s, and 80s. As a competitor points out, the new comer tends to repeat the same track several times a day. Recently the song Escape (The Pina Colada Song) has been playing quite a bit. The funny thing to me is that yoga and health food seem to have been dating and compatibility differentiators for more than 30 years. The style of the song and especially the attire, however, may not be as timeless; just reminders of the end of the seventies and the start of eighties (It was the last number 1 of the seventies and first of the eighties). Oddly that decade seems a bit more sane regarding taxes.

It took more than two years to produce that tax code overhaul. During that time, Reagan went on the road to plead his case for the plan. At a high school in Atlanta, Ga., in 1985, Reagan said they were going to “close the unproductive loopholes that allow some of the truly wealthy to avoid paying their fair share.”
Meanwhile in Congress, Democrats and Republicans worked together to merge competing proposals for tax reform. Still in office today, Democratic Sen. Patrick Leahy of Vermont was there during the passage of the bill. He says it was a different era.
“We had a lot of grownups in both parties, people who actually wanted the government to work,” Leahy says.

All of which makes me wish there was a world where I could write a personal ad seeking a new politician and find that the one who turned up was already in place. Now that is a fantasy.

Anyway, enjoy the song. Oh as moment of who knew: The song was released on September 21, 1979. The movie “10” which is a rather similar story and also a huge hit of the era was released October 5, 1979. As far I know they were not connected directly; yet they stuck together in my head because of the story lines.

Like previous protests, this one has claimed public space in order to make a public statement — of discontent and dissatisfaction so far, and perhaps a more affirmative statement in the days to come.  (Interestingly, the most prominent space in lower Manhattan — Zucccotti Park — is privately owned, and thus not technically one of the quintessential public forums open for [...]]]> The “occupation” of wall street and other spaces across the country originated online, and the protesters have set up their own media camps to disseminate videos and other information to the public.  These are some of the unique features of contemporary protests.  But what has been striking so far is the extent to which these protesters have relied on older forms of contention and information dissemination. 

Like previous protests, this one has claimed public space in order to make a public statement — of discontent and dissatisfaction so far, and perhaps a more affirmative statement in the days to come.  (Interestingly, the most prominent space in lower Manhattan — Zucccotti Park — is privately owned, and thus not technically one of the quintessential public forums open for public assembly and debate.)  The occupation is  physical; like other demonstrations, a substantial part of its power derives from the visual solidarity of its participants and the disruption the occupation is creating (of course, these things may have downsides and costs in terms of the efficacy of protests).  The occupation is relying on traditional protest repertoires such as marches and sit-ins — indeed, the Wall Street occupation is in one sense an extended outdoor sit-in.  Many of the protesters, though tech-savvy, carry makeshift placards and signs.  Some dress in costumes.  Some sit in drum circles.  Some advocate anarchy.  They have trouble finding suitable bathrooms, and have clashed with merchants.  To this point, the protesters have sought to move by consensus — a method of organizing that has led to frustration in past movements.  They even have their own newspaper , which they circulate to passersby and others (who says the traditional press is dead?).  The press and police have dutifully played their roles too — the cops have used escalated force and the media have demonstrated conflict reporting biases. 

This reliance on traditional forms of public contention should not come as a complete suprise.  Technology is undeniably useful to protest movements.  It can facilitate organization and dissemination of information.  It can help protesters bypass media filters, at least to some extent.  It can even facilitate sousveillance, or surveillance from the bottom.  But as I argued in Speech Out of Doors, online protests simply do not have the same communicative impact as those that take place out of doors.  That impact derives from their physicality, their presence, their human dimension.  As one veteran journalist observed with respect to the fledgling newspaper:  “[N]ewspapers convey a sense of place, of actually being there, that digital media can’t. When is the last time somebody handed you a Web site?”  In a broad sense, that is what traditional protests provide — a sense of place.

Economics is not a technique in search of problems but a set of problems in need of solution. Such problems are varied and the solutions will inevitably be eclectic. Such pragmatic thinking requires not just deductive logic but an understanding of the processes of belief formation, of anthropology, psychology and organisational behaviour, and meticulous observation of what people, businesses and governments do.

In this post, [...]]]> It’s becoming clearer that classic Keynesian stimulus—ranging from Obama’s minimalist jobs program to the robust visions of a Krugman or Delong—won’t be enough to get us out of the Great Recession/Lesser Depression. The exhaustion of conventional macroeconomic thought (chronicled in outlets like the Real World Economics Review) has cleared some space for more imaginative thinkers. As John Kay observes:

Economics is not a technique in search of problems but a set of problems in need of solution. Such problems are varied and the solutions will inevitably be eclectic. Such pragmatic thinking requires not just deductive logic but an understanding of the processes of belief formation, of anthropology, psychology and organisational behaviour, and meticulous observation of what people, businesses and governments do.

In this post, I want to briefly highlight Bernard Harcourt’s work in crossing disciplinary boundaries to engage in the synthesis necessary to truly understand our plight.

Consider the following paradoxes or contradictions, which will also be highlighted at a conference that Harcourt is keynoting:

1) Dahlia Lithwick argues that GOP frontrunner Rick Perry “is skeptical of everything the government does—except when it executes people.” (And that privacy is on the rise for companies, but not for individuals.)

2) There is political passion for slashing government, except in criminal and military functions where its effectiveness is highly doubted.

3) Dana Priest and Bill Arkin have uncovered evidence that domestic intelligence agents are closely monitoring Tea Party groups. But the monitoring has stirred very little protest among such groups.

4) Banking law experts tell us that the Volcker Rule is trivial and counterproductive, because it would not have stopped the last crisis. They also tell us that rules that would have stopped the last crisis are trivial and counterproductive, because genius financiers have already cooked up new methods that can’t be touched by those “fighting the last war.”

Harcourt’s work puts all these positions in a larger intellectual perspective, helping us explain (if not forgive) them.

I highlighted Harcourt’s Illusion of Free Markets last year, and I’m pleased to see it reviewed on the History News Network. The reviewer, Eric Laursen, connects Harcourt’s work to current controversies over banking regulation:

Last December, Wall Street’s leading banks were fighting tooth-and-nail to keep federal regulators from setting rules governing the vast market in financial derivatives contracts – the market that helped turn the 2008 mortgage-backed securities meltdown into a global catastrophe. . . . Then an article appeared in the New York Times that seemed to blur the outline of this reform scenario. Titled “A Secretive Banking Elite Rules Derivatives Trading,” the article, by Louise Story, detailed how nine big banks had virtually captured the new regulatory regime before it even got started. One of Dodd-Frank’s provisions called for most derivatives to be traded via clearinghouses, putting buyers and sellers in closer touch with each other and cutting out middlemen.

According to Story, nine big banks, including such familiar names as JP Morgan Chase, Morgan Stanley, Goldman Sachs, and Citigroup, had already checkmated this plan by setting up their own, secretive clearinghouse to trade credit default swaps, and cut a deal with the Chicago Mercantile Exchange that gave them effective control of another new clearinghouse. Result: nine elite banks, operating out of public view, have cemented even tighter control of the derivatives market than they had before. If anything, Dodd-Frank has helped them to do it.

Now comes The Illusion of Free Markets, a dense, groundbreaking book that explains why such things happen: why the supposedly freewheeling capitalists of the post-New Deal decades can get away with operating a tightly controlled system geared primarily to generate profits for a small group of big players. “At the end of the day, the notion of a ‘free market’ is a fiction. There is simply no such thing as an unregulated market.” . . .

Harcourt calls The Illusion of Free Markets a “prolegomenon” – a first step in creating a new analysis that asks who benefits from the supposedly “free” economic system that’s been built to regulate us. The next step, of course, is to figure out what we want instead. By exposing the flawed ideological roots of what’s taken for “expert” social and economic thinking today, Harcourt’s book may help us avoid the pitfalls in getting there.

Harcourt’s work is a sustained reflection on the “two paradoxical tenets” that seem to rule contemporary politics: “of government incompetence when it comes to regulating the economy and government competence when it comes to policing and punishing.” He doesn’t try to separate out either trend as a dependent or independent variable, eschewing the trend toward “clean identification” in social science explanation. Rather, he adopts a more hermeneutical approach, examining how “neoliberal ideas were born — and remain today — joined at the hip with the Big Brother state.”

His recent interview with Scott Horton reveals some of the problems arising out of the elective affinities between neoliberal economics and an increasingly harsh policing regime. President Reagan “tripled the debt, increasing it by $1.9 trillion, and . . . oversaw the prison buildup and the war on drugs.” Bush fils further ballooned the debt, in even more costly foreign wars. Blocking tax increases on the wealthy to pay for these initiatives, they have left middle and lower class citizens more desperate and bereft of services.

That leaves a workforce willing to take any job to stay afloat. And when some scrambling workers use drugs like meth to keep themselves going, that just creates more work for the police apparatus. Can Hungarian-style labor camps for the unemployed be far behind? Forced evictions are also a tool of some multinational corporations, and are objectionable whether accomplished by paid mercenaries or bribed government officials. These trends reveal the invisible hand to be more than a little “iron fist,” even when covered in velvet glove rhetoric of freedom and contract.

Harcourt’s work also connects nicely with James Boyle’s critical work on the rise of intellectual property and the shriveling of antitrust law:

We appear to have a kind of bipolar disorder in our view of the state. When it comes to breaking up high tech monopolies through antitrust, we are deep sceptics. We point out the unanticipated consequences and deadweight losses to state intervention. We say the state is a blundering second or third best to the genius of the market, its efforts to establish limits and quotas will create a mess that even the Invisible Hand cannot sweep clean.

But when it comes to setting up some of those same quotas, limits and monopolies in the first place – in this case, by overly broad intellectual property rights that clog the channels of competition and allow companies to leverage their existing property into a control over tied services – we are much more sanguine. This, after all, is property, not regulation. Here there seems to be an optimism about unintended consequences, a willingness to believe that vague state regulatory schemes have got it right – even when existing market leaders can twist them to prevent challenges to their position.

In one view, the state is a bumbling idiot, in the other a scalpel-wielding genius, carving just the right pound of flesh to satisfy our debts to creators without shedding a drop of the blood of competitors and future innovators. Can this be the same state we are talking about?

Given Harcourt’s work, we should expect trends toward criminal enforcement of IP law to displace government sponsored efforts to subsidize (or compulsorily license) IP. DC elites roll their eyes at the idea of a government using its bargaining power to get a fairer deal for all here, but jump at the chance to police piracy.

Finally, I’m glad to see that Harcourt’s next book may focus on national security. These words from James Madison remind me of Washington’s and Eisenhower’s Farewell Addresses. Even the founding fathers anticipated that a garrison state could become a banana republic:

Of all the enemies to public liberty war is, perhaps, the most to be dreaded, because it comprises and develops the germ of every other. War is the parent of armies; from these proceed debts and taxes; and armies, and debts, and taxes are the known instruments for bringing the many under the domination of the few. In war, too, the discretionary power of the Executive is extended; its influence in dealing out offices, honors, and emoluments is multiplied; and all the means of seducing the minds, are added to those of subduing the force, of the people. The same malignant aspect in republicanism may be traced in the inequality of fortunes, and the opportunities of fraud, growing out of a state of war, and in the degeneracy of manners and of morals engendered by both. No nation could preserve its freedom in the midst of continual warfare. (“Political Observations” (1795))

And yet “continuous warfare” seems to be the foreign policy consensus. There are ways to channel that martial energy toward better purposes, ranging from William James’s “Moral Equivalent of War” to “Mr. Y’s” ideas about redirecting military expenditures toward projects that truly enhance national security. But, as Harcourt argues, there are also many connections between the growth of DOD and DHS and the cruel, cronified capitalism of leading firm/government combines.

[O]n this flight she was sitting by chance in a row with two Indian-looking passengers, neither of whom knew the other or knew her. But collectively they aroused the suspicion of other passengers or crew, and when the plane landed, heavily armed troops stormed aboard, handcuffed the three of them, and took them off for extensive questioning. After which they were eventually released with “no charges filed.” Which is fair enough, considering that [...]]]> You may have heard about “multiple passengers holed up in the bathroom” of a plane flying on Sunday, which “led to F-16s shadowing . . . it [as it] neared Detroit.” Turns out that the false alarm was sparked by a “half-Arab and half-Jewish” woman who sat between two South Asian passengers:

[O]n this flight she was sitting by chance in a row with two Indian-looking passengers, neither of whom knew the other or knew her. But collectively they aroused the suspicion of other passengers or crew, and when the plane landed, heavily armed troops stormed aboard, handcuffed the three of them, and took them off for extensive questioning. After which they were eventually released with “no charges filed.” Which is fair enough, considering that like everyone else on the plane they were simply trying to travel from Denver to Detroit and had done absolutely nothing wrong except to have “suspicious” looks.

Here is her first-hand account:

Someone shouted for us to place our hands on the seats in front of us, heads down. The cops ran down the aisle, stopped at my row and yelled at the three of us to get up. “Can I bring my phone?” I asked, of course. What a cliffhanger for my Twitter followers! No, one of the cops said, grabbing my arm a little harder than I would have liked. He slapped metal cuffs on my wrists and pushed me off the plane. The three of us, two Indian men living in the Detroit metro area, and me, a half-Arab, half-Jewish housewife living in suburban Ohio, were being detained.

The cops brought us to a parked squad car next to the plane, had us spread our legs and arms. Mine asked me if I was wearing any explosives. “No,” I said, holding my tongue to not let out a snarky response. I wasn’t sure what I could and could not say, and all that came out was “What’s going on?”. . . .

What is the likelihood that two Indian men who didn’t know each other and a dark-skinned woman of Arab/Jewish heritage would be on the same flight from Denver to Detroit? Was that suspicion enough? Even considering that we didn’t say a word to each other until it became clear there were cops following our plane? Perhaps it was two Indian man going to the bathroom in succession?

Combine this with Vance Gilbert’s “flying while black” story, and any number of others, and you do have to wonder about how easily the racialized paranoia of a few can be given the full backing of the government (if only for a few hours of fright for the victim while he or she is cleared). Having recently looked into some aspects of the surveillance state, I have to wonder: do these incidents generate secret “Suspcious Activity Reports” for the publicly vindicated victims? Are they a mark against them in some undisclosed TSA or fusion center databases? The FBI justified its Detroit action by stating “The public would rather us err on the side of caution than not.” Is there any way for targeted minorities to assure that the public’s irrational discrimination is not empowered and advanced by law enforcers who are willing to “see something” when anyone “says something?”

Flash mobs have been eliciting wide-eyed excitement for the better part of the past decade now. They were playful and glaringly pointless in their earliest manifestations. Mobbers back then were content with the playful performance art of the thing. Early proponents, at the same time, breathlessly lauded the flash mob “movement.”

MGK leads a movement (Youtube)

Today, the flash mob has matured into something much more complex than these early proponents prophesied. For one, they involve unsupported and disaffected young people of color in cities on [...]]]>

Like Professor Zick, I am grateful for the invitation to share my view of the world with Concurring Opinions. I’d like to pick up where his post on strange expressive acts left off and, along the way, perhaps answer his question.

Flash mobs have been eliciting wide-eyed excitement for the better part of the past decade now. They were playful and glaringly pointless in their earliest manifestations. Mobbers back then were content with the playful performance art of the thing. Early proponents, at the same time, breathlessly lauded the flash mob “movement.”

MGK leads a movement (Youtube)

Today, the flash mob has matured into something much more complex than these early proponents prophesied. For one, they involve unsupported and disaffected young people of color in cities on the one hand and, on the other, anxious and unprepared law enforcement officials. A fateful mix.

In North London in early August, mobile online social networking and messaging probably helped outrage over the police shooting of a young black man morph into misanthropic madness.  Race-inflected flash mob mischief hit the U.S. this summer, too. Most major metropolitan newspapers and cable news channels this summer have run stories about young black people across the country using their idle time and fleet thumbs to organize shoplifting, beatings, and general indiscipline. This is not the first time the U.S. has seen the flash mob or something like it. (Remember the 2000 recount in Florida?) But the demographic and commercial politics of these events in particular ought to raise eyebrows.

But as Nick notes, equally important is a debtor’s will to pay.  The differences appear in the contrast between the United States and Greece.When  Standard & Poor’s recently lowered its credit rating of the U.S. Treasury by one notch, it registered doubt not so much about the country’s ability to pay its debt, but the will [...]]]> In this week’s New Yorker, Nick Paumgarten, in the Talk of the Town, kindly draws on my work  about the cultural contingency of financial reporting; he quotes me on the need to update the idea of insolvency.  Usually defined as the ability to pay debts as they come due, or assets exceeding liabilities, there has always been a strong objective thrust to the notion.  The emphasis is on measured financial activity reduced to a verifiable expression of ability. 

But as Nick notes, equally important is a debtor’s will to pay.  The differences appear in the contrast between the United States and Greece.When  Standard & Poor’s recently lowered its credit rating of the U.S. Treasury by one notch, it registered doubt not so much about the country’s ability to pay its debt, but the will of its incumbant political class to do so. In contrast, Greece’s political elite seem committed to finding ways to meet that country’s debts; alas, its resources compared to its obligations raise real doubt about their ability to do so. 

Another example of the difference between the ability and the will to pay debts arose in the September 2008 tussle over what to do about American International Group. It was then the world’s largest insurance company and shortly before the crisis  boasted a market capitalization of $180 billion. Much of its trillion-dollar balance sheet was securely housed in walled-off insurance subsidiaries. 

The roiling financial crisis infected two dozen banks with which AIG had financial contracts.  The U.S. Treasury, reeling from a series of bank failures and criticism of its responses to them, feared that those banks could disintegrate one-by-one. It had run out of good ideas to boost their solvency. 

So Henry Paulson, then Treasury Secretary, and his successor Tim Geithner, then head of the New York consortium of private banks misleadingly called the New York Fed, opted to wrest control of AIG in order to rescue those banks.  The government loaned the company $85 billion and the government siezed 80% of its equity.  The government then used that money, along with additional loans about twice that, to pay the two dozen banks off, dollar for dollar, under the financial contracts.

AIG may have been facing a liquidity squeeze while at the center of the financial crisis. But it had ample capital. And it was engaged in heavy negotiations with its counterparties about settling payments under the financial contracts–whose value was highly uncertain given the frozen capital markets.   AIG, in short, had the ability to pay its debts.

AIG’s shareholders, of course, including Hank Greenberg, who built the company from the 1960s to 2005 when he retired as CEO, objected vigorously to the Paulson-Geithner move.  Not only did AIG command ample capital internally, at its super-solvent insurance companies, many investors around the world were lining up to invest more. 

What divided the government and the shareholders was less the question of whether AIG had the ability to pay its debts, but whose will mattered.  The government’s will won out.  It was an ironic result, considering that U.S. culture is generally against governmental nationalization of private business, and that AIG had stood for the principle in fighting nationalization of its property and that of its customers around the world for decades.

1) Barbara Ehrenreich on “How America Turned Poverty Into a Crime:” It’s hard to believe that Ehrenreich’s Nickeled and Dimed came out 10 years ago. As she’s written in the book’s re-issue, things have only gotten worse for the struggling families whose plight she chronicled in the book. Ehrenreich describes how officials at public assistance programs treat many beneficiaries with contempt.  One needy mom named Kristen says caseworkers “treat you like a bum. They act like every dollar you get is coming [...]]]> The fourth Class Crits conference will be held in DC in about a month. Titled “Criminalizing Economic Inequality,” it focuses on the US’s “increasing reliance on the criminal justice system to make and enforce economic policy.” A few recent items highlight the conference’s timeliness:

1) Barbara Ehrenreich on “How America Turned Poverty Into a Crime:” It’s hard to believe that Ehrenreich’s Nickeled and Dimed came out 10 years ago. As she’s written in the book’s re-issue, things have only gotten worse for the struggling families whose plight she chronicled in the book. Ehrenreich describes how officials at public assistance programs treat many beneficiaries with contempt.  One needy mom named Kristen says caseworkers “treat you like a bum. They act like every dollar you get is coming out of their own paychecks.”

Nationally, according to Kaaryn Gustafson of the University of Connecticut Law School, “applying for welfare is a lot like being booked by the police.” There may be a mug shot, fingerprinting, and lengthy interrogations as to one’s children’s true paternity. The ostensible goal is to prevent welfare fraud, but the psychological impact is to turn poverty itself into a kind of crime.

Another impact is to permanently estrange many of the temporarily needy from government. In Griftopia, Matt Taibbi interviews members of the US Tea Party. He reports that their views of government arise out of their interactions with officials at the IRS, DMV, TSA, zoning boards, or similar agencies: stressful, one-shot interactions with bored, inattentive, hostile, and/or underpaid bureaucrats. Is it any wonder why many so many of those in economic distress may want to turn their back on government altogether?

Dismissive attitudes from frontline bureaucrats end up corroding state action generally.  The worse they do, the less voters want to fund their agencies; and the more strapped agencies are, the less likely they are to retain qualified and motivated workers.  Corey Robin puts it well as he assesses the immense popularity of anti-tax movements:

Liberals often have a difficult time making sense of these movements – don’t taxes support good things? – because they don’t see how little the American state directly provides to its citizens, relative to their economic circumstances. Since the early 1970s, with a few brief exceptions, workers’ wages have stagnated. What has the state offered in response? Public transport is virtually non-existent. Even with Obama’s reforms, the state does not provide healthcare or insurance to most people. Outside wealthy communities, state schools often fail to deliver a real education. In such circumstances, is it any wonder ordinary citizens want their taxes cut? That at least is change they can believe in.

Matthew Yglesias questions whether there is still much anti-tax fervor left.  But whatever the current polling numbers are, both Ehrenreich and Robin show how the weakness of our social welfare state is self-reinforcing.  Ehrenreich also shows how social silences about poverty are imposed, down the very youngest children:

At school, [Kristen's] seven-year-old’s class was asked to write out what wish they would present to a genie, should a genie appear. Brianna’s wish was for her mother to find a job because there was nothing to eat in the house, an aspiration that her teacher deemed too disturbing to be posted on the wall with the other children’s requests.

That teacher’s reticence is re-enacted daily on a happy talk MSM that leaves it to the World Socialist Web Site to report on the US’s soaring child poverty rate. If the middle class is invisible to them, how can they glimpse those barely keeping their heads above water?

2) Martha McCluskey, From the Welfare State to the Militarized Market: Losing Choices, Controlling Losers: McCluskey is one of the ClassCrits organizers, and her book chapter puts Ehrenreich’s observations in a broader historical perspective:

The triumph of market freedom has been accompanied by increasing authoritarian government control in many spheres. . . . [For example, in the] welfare reform policies of the 1990s . . . restrictions on poor mothers were rationalized as expanding their “freedom of choice” by making their power to bargain for better choices appear pathological. . . . [F]ree market rhetoric identifies welfare state protections with market losers who threaten others gains, so that security seems to come from controlling rather than supporting those who are most insecure.

As with the market fundamentalism in Lochner v. New York, constrained choices can be reconstructed as free choices by masking the role of law in coercing and penalizing many peoples’ choices in the interests of privileging some interests. The ideology of market freedom contains a contradiction: if freedom comes from maximizing unconstrained self-interested gain in a harsh world of zero-sum competition, then maximizing one’s freedom can mean imposing the most constraint on others. Market winners will not be those who best make the tough choices necessary to maximize resources within given constraints, but those who create better choices for themselves by mobilizing government power to constrain others. This strategy permeates foreign policy that links military and corporate power to control global competition, and it shapes domestic policies controlling struggling workers and racialized groups through mass incarceration and the criminalization of immigration.

McCluskey’s deconstruction of free market rhetoric reminded me of the paradoxes explored in a recent article titled Monopoly and Competition in 21st Century Capitalism.   The authors note that, today, “most of the examples of competition and competitive strategy that dominate economic news are in fact rivalrous struggles between quasi-monopolies (or oligopolies) for greater monopoly power.”  The authors back their ideas with empirical data about the degree of concentration in many US industries.  More importantly (given the endless contestability of such data), they give a fascinating account of competition as an essentially contested concept in the history of political economy.

3) Glenn Greenwald on the surveillance state: Greenwald believes that a sprawling surveillance apparatus is becoming increasingly focused on political “radicalism,” rather than the terror threats that were its founding rationale.  This is a real problem, made all the more menacing by economic instability.  The state could address it by embracing the bold experimentalism of the New Deal. That nurturing and supportive role is being increasingly eclipsed by a domestic state remade in the image of its foreign roles.  Alfred W. McCoy has argued that “the crusade for democracy abroad . . . has proven remarkably effective in building a technological template that could be just a few tweaks away from creating a domestic surveillance state—-with omnipresent cameras, deep data-mining . . . biometric identification, and drone aircraft patrolling ‘the homeland.”  The “Secure Communities” program may be validating McCoy’s (and Greenwald’s) fears.

I think all of this work is an important “reality check” as we consider the patterns of privilege and burden created by the modern economy.  Don Peck recently observed the self-serving two-step that many at the top have used to justify their accelerating affluence:

As America’s winners have been separated more starkly from its losers, the idea of compensating the latter out of the pockets of the former has met stiff resistance: that would run afoul of another economic theory, dulling the winners’ incentives and squashing their entrepreneurial spirit; some, we are reminded, might even leave the country. And so, in a neat and perhaps unconscious two-step, many elites have pushed policies that benefit them, by touting theoretical gains to society—then ruled out measures that would distribute those gains widely.

Peck is mostly comfortable with the idea that those at the top are a legitimate meritocracy, though he does note that “some of the policies that have most benefited the rich have little to do with greater competition or economic efficiency.”  John Kay of the Financial Times ups the ante, suggesting that we must always be careful to assess whether fortunes spring from productivity (a sign of a well-ordered society) or brute power (an indicator of injustice):

Two broad economic theories describe the allocation of income and wealth. The power theory states, broadly, that people get what they grab: from the forest, the markets, or the shop window. The distribution of income reflects the distribution of power. . . .The alternative theory is that what people earn reflects their marginal productivity – how much they personally add to the value of goods and services. The marginal productivity theory has many attractions, especially to those who are well paid: if what they receive is a product of their own efforts, their rewards are surely well deserved.

Kay worries that, among elites, the “ethic of just reward through effort gave way to the culture of present entitlement from possession.”  If, as McCluskey, Ehrenreich, and Greenwald all suggest, today’s low wage labor force is being pressed toward privation by the state’s “guard labor,” then the edifice of industry built on a cheap workforce owes as much to state discipline as it does to managerial genius.

When the dragnet replaces the safety net, workers have fewer options and are more desperate for any position they can get.  Instead of developing better technology, methods, and innovations, business leaders can count on profits from squeezing workers.  Prosperity based on that kind of sweating can’t last forever, as dollar stores are now learning.  But when CEOs’ average pay is $9.8 million per year, they need only keep the game going a few years to earn the fortune of a lifetime.

Image Credit: Flawka.

What explains this apparently counterintuitive result?  Why don’t I patronize this nearby beloved eatery more often, or at least some of the time?  My reason is simple:  The wait is way, way too long.  Pink’s doesn’t  just have a 15-20 minute wait at meal times like many [...]]]> There is a great hot dog joint here in Los Angeles called Pink’s Famous Hot Dogs.  I love their delicious chili dogs.  I am a huge fan of the location’s classic L.A. style (parts of the best film ever made were filmed on the site, and there’s a probably false rumor that Orson Welles got obese because he was addicted to Pink’s chili dogs).  They’re located a quick drive from where I work.  And I never, ever go there.

What explains this apparently counterintuitive result?  Why don’t I patronize this nearby beloved eatery more often, or at least some of the time?  My reason is simple:  The wait is way, way too long.  Pink’s doesn’t  just have a 15-20 minute wait at meal times like many local eateries. Rather, at almost any time of day, the line to get a Pink’s chili (or any other) dog snakes through a few switchbacks, up La Brea, and back into their parking lot, frequently lasting a good hour.  At peak times, the line has been said to approach 1.5 or two hours (and here, I’m going on word of mouth because, as you’ll gather from this post so far, I’m deterred by the long line and haven’t actually experienced it).

Classic L&E would suggest that this isn’t a paradox at all, and that the line merely reveals the unusually strong preferences of the public for Pink’s chili dogs, meaning that they really are worth the interminable wait.  And while this is an empirical question, and while tastes are subjective and highly variable, I can’t buy that account.  I can understand waiting in line for hours, say, to obtain critical medical services, or in a bread line in Soviet Russia where the only alternative is starving.  I can even imagine waiting in line for a couple hours to get tickets for a once-in-a-lifetime chance to see your favorite performer appear live.  But for chili dogs?  No way.  Something more than simple preference satisfaction has to be going on.

So what explains the Pink’s paradox?  Why is it that demand for these chili dogs continues to grow, even as the experience costs and actual costs associated with its food increase at an even greater rate (and appear to swamp the benefits of eating even the tastiest chili dog)?  And what does this tell us about the rationality (or irrationality) of line-waiting generally?  I discuss possible conjectures responding to each of these questions below the fold.

First, perhaps the Pink’s line is an example of simple groupthink, or herd behavior.  The simple, and less charitable, version of this story is that people tend to mindlessly repeat the common behavior of others, so that people unthinkingly wait too long for Pink’s chili dogs because others unthinkingly wait too long for Pink’s chili dogs, causing the line to creep ever longer, almost independently of the quality of the food.

But there’s a more charitable version of this argument that goes something like this:  With so many food choices in a large city, we can’t taste them all, and instead have to depend on signals to indicate what the best options are.  Our preferences are typically strongly influenced by what others already visibly prefer, and Pink’s line gives a hugely visible message that one could quite reasonably be influenced by.  Seeing a line of consumers snaking up La Brea is a more compelling advertisement than some print ad written by the restaurant’s own publicist, since it reflects actual, aggregated preferences.  It’s not crazy, and perhaps even reasonable, to at least want to try Pink’s to see whether a hot dog could be good enough to justify an hour-plus wait (though doing so more than once would be harder to explain).

Second, I’ve been assuming that waiting in line is just another cost to be weighed against the appeal of Pink’s hot dogs in a cost/benefit analysis.  But perhaps the story is more complicated.  It could be that there are nonobvious benefits to being in line.  One possibility is that the experience of waiting might make the subjective experience of eating the chili dogs seem better, because any food seems more “earned” after standing along a crowded L.A. street for 1.5 hours.  And others might actually find that waiting in line is an experience benefit, not an experience cost.  Someone could find that the wait for a Pink’s dog is a classic Los Angeles experience, something that allows people to watch the life of the city blur past, and makes for nostalgic stories to share in the future.  (Indeed, one news outlet recently reported that the Pink’s line is a great pick-up spot, apparently because you’re stuck there so long that you have to talk to the people around you just to pass the time.)

Third, if one regards Pink’s as both highly desirable and truly unique, then waiting in the line might make more sense than it initially appears to.  After all, a truly unique experience might merit more waiting (and other cost expenditures) as compared to one that’s more readily substitutable.  Hence the long lines at Disneyland, for example.  It’s not like you can go to the competitor across the street and ride their Matterhorn or see their Captain EO.  If you want Disneyland, you have to suck up the wait or skip it altogether.  Perhaps Pink’s is in this truly-unique category.  (NB:  It’s not clear whether Pink’s can be rightly thought of as truly unique.  While they have only the one classic location, and while that location requires a long-line-wait for dogs, they have also placed their food on offer at lots of other locations, as their home page indicates.)

Finally, in fairness to Pink’s (and kind of related to the above point), maybe they’re just that good.  As I’ve said several times, and as we all already know, preferences (especially preferences for food) are variable and highly subjective.  Perhaps the line-waiters know their preferences perfectly well and have concluded that Pink’s chili dogs are so unfathomably delicious that even an hour-plus wait is well justified for them.  I’m skeptical of this explanation, but it’s not so completely implausible that it shouldn’t at least be proffered.

Is there a general lesson here?  Maybe something along these lines:  Restaurants’ success and failure (like films’ success and failure) is starkly divided.  A few succeed spectacularly.  Most fail.  This may be because those few successful restaurants really are that much better than the rest, but I’m skeptical of this.  I think it may be more that a few restaurants gain advantages over others for reasons including quality food, effective PR, and good luck, causing customers to flock in droves to them (as true of Pink’s and many other eateries in LA and, I’m sure, other cities) and leaving other establishments to struggle.

What does this mean for the consumer?  My conjecture is not that lines are a useless signal of quality.  Very popular restaurants may well serve marginally better food.  But I also suspect that their massive popularity, evidenced by the queues surrounding Pink’s, is out of all proportion to this difference in quality.  Very long lines, then, could be an overly strong signal of merit, so that waiting in them is more costly than the restaurant’s somewhat higher quality warrants.

So if lines really do overstate the quality of the food there, then the wise gourmand might be well served to avoid any place with a long line and pick a B-list place, secure in the conclusion that the gained experience benefits of avoiding lines at the less popular restaurant will usually swamp the marginal costs in terms of slightly less good food.  (Just as some commentators recently suggested that S&P’s credit ratings of nations overdetermine public opinion, so that betting against them may be a wise move.)  This is, of course, an empirical question that would require some research to answer.  But I suspect that it would be the most delicious research ever.

And so you can imagine my delight when the perfect opportunity presented itself.  Just a couple weeks back, the U.S. District Court for the Western District of Wisconsin issued a decision in a copyright infringement matter pitting the creators of South Park against the owners of the copyright in the immortal viral video “What What (In the Butt)” (hereinafter, in the interest of both brevity and something like tact, “WWITB”).

The utter, fascinating bizarreness of WWITB itself strains my narrative capacities, so I’ll only suggest that you check out the three-minute video [...]]]> As those of you who have seen my guest posts so far can likely surmise, I consider it particularly important to focus on crucially important social issues that affect all of us, deeply and profoundly.

And so you can imagine my delight when the perfect opportunity presented itself.  Just a couple weeks back, the U.S. District Court for the Western District of Wisconsin issued a decision in a copyright infringement matter pitting the creators of South Park against the owners of the copyright in the immortal viral video “What What (In the Butt)” (hereinafter, in the interest of both brevity and something like tact, “WWITB”).

The utter, fascinating bizarreness of WWITB itself strains my narrative capacities, so I’ll only suggest that you check out the three-minute video here, though probably not at work.  While this video was enjoying its fifteen seconds of internet fame in 2007-08, an episode of the TV show South Park featured a minute-long (and unauthorized) variation of WWITB in which the character Butters Scotch performed an animated simulacrum of the song and video.  The assignees of the rights in WWITB sued for infringement of their copyright in the work, and the district court granted the defendants’ motion to dismiss the complaint on the theory that their video was protected under the statutory affirmative fair use defense.

What makes Brownmark interesting is not that it was wrongly decided (quite the contrary–my sense is that it reached the right result).  Nor is the case interesting because it took an atypical approach to analyzing the fair use issue.  Rather, what’s interesting to me about Brownmark is that it’s very typical in its approach to fair use.  The district judge formally marched through all four statutory fair use factors (as section 107 requires), but the analysis was driven almost entirely by transformativeness (part of the first-factor analysis, which has become along with the fourth factor almost conclusive of fair use issues, as some really good recent empirical work has shown), and the analysis of transformativeness in turn was driven almost entirely by the judge’s conclusion that the South Park clip was a parody (rather than a satire) of WWITB.

I say more about why I think the approach to fair use epitomized by Brownmark is flawed, and suggest a different way to locate parody/satire within the fair use skein, below the fold.

Courts considering fair use as an affirmative defense to copyright infringement are required to consider all four of the statutory factors outlined in sec. 107, though usually, one of two of these factors (factor one, purpose and character of the use; and factor four, effect of the use on current or future markets for the work) tend to dominate the analysis.  Courts increasingly use as a touchstone of their factor one analysis whether the use is “transformative” of the work, following on an idea developed in an influential article by Judge Pierre Leval and elevated to the level of doctrine in the Supreme Court’s 1994 decision Campbell v. Acuff-Rose.

But invoking the idea of transformativeness merely relocates, rather than solves, the problem of fair use’s notorious murkiness.  To that end, courts have seized upon an analytical tool introduced in Acuff-Rose as a means of determining what kinds of works are sufficiently transformative to warrant a finding of fair use (or, more accurately, to have the first factor weigh strongly in favor of fair use).  This notion is that many defendants’ uses can be divided into parodies (which poke fun at the plaintiff’s work, as well as other social themes), and are more likely to be fair use; and satires (which use the plaintiff’s work merely as a vehicle for commenting on social issues, without commenting on the work itself), which are less likely to be fair use.

The foregoing is, I think, the way Justice Souter characterized the parody/satire distinction: as a factor that was relevant to, but not dispositive of, the question of transformativeness.  But in the sixteen or so years following Acuff-Rose, courts (understandably wanting some kind of objective metric for analyzing the famously slippery fair use issue) appear to have transformed the notion of a suggested consideration into a rock-solid, and often apparently dispositive consideration.

Brownmark provides an example of this approach to fair use.  The court begins with a detailed parody/satire analysis, and then pays formal lip service to other fair use considerations.  The conclusion that the South Park clip parodied WWITB (a trickier factual issue, I think, than the court let on, and one that may not have deserved resolution at the pleadings stage) pretty clearly dominated the court’s consideration of the issue.

This raises a number of concerns.  One relates to the coherence of the parody/satire dichotomy, which some writers have objected to as failing to reflect a meaningful distinction.  (Don’t all uses inevitably and to some extent comment on the underlying work?)  Another relates to judicial method, to the extent that what the Acuff-Rose Court intended to be one aspect of a multi-factor consideration has come to predominate and overdetermine fair use analyses.

But I want to focus on an aspect of the evolution of parody/satire within fair use, emblematized but by no means limited to Brownmark, that lies apart from these other well-aired issues:  Whether parody/satire rightly deserves to be part of the first-factor transformativeness inquiry at all.  The conventional understanding of the parody/satire distinction in this context is that parodies necessarily transform the underlying work substantially, while satires do not.

Nothing about this distinction works for me, because both parodies and satires seem to work transformative changes on the underlying work.  For one thing, if we broadly understand transformativeness in terms of substantially changing the underlying work, then many satires achieve this end.  The (very tasteless) Dr. Seuss-themed satire about the O.J. Simpson trial may not have been making a comment about the works of Dr. Seuss (as the 9th Cir. held in Dr. Seuss Enters. in 1997), but it doubtlessly transformed those works into a vehicle of dark social commentary rather than light children’s fare.

One might suggest that parodies deserve heightened fair use deference because they necessarily contribute more to social discourse, since they not only make a general social point but also say something about the underlying work.  Here, though, I’m still not convinced about the validity of the underlying empirical assertion.  A sophisticated satire might make an enormously insightful point about an important social issue, while a parody might, say, be nothing more than silly mockery of a derriere-themed viral video like WWITB.  Here again, a use’s status as parody or satire doesn’t seem a relevant driver of whether it is transformative of an underlying work.

Many others have questioned the coherence of the parody/satire distinction, often suggesting that its incoherence warrants rejecting it as a part of fair use analysis.  I want to suggest instead that the critique of parody/satire shows instead that it is misplaced in the fair use strain.

Parody/satire may not track well onto the idea of transformativeness, but I do think it tracks well onto the idea of necessity.  Necessity is a familiar defense to property torts.  In the context of trespass, for example, emergency can entitle yachters stranded on a stormy lake to tie up at a stranger’s dock without permission, on the theory that avoiding the loss of their lives is more important than respecting the owner’s negative liberty (remember Ploof v. Putnam?).

One theory of fair use leverages this idea of necessity.  The notion is that we need fair use to create space for uses that would not be allowed were users expected to negotiate a license with owners.  Consider film reviews:  If unauthorized uses in the context of movie reviews were not permitted, critics would have to negotiate a license with the owners of film copyrights to pen reviews.  The studios would likely not license negative reviews, meaning that reviews would lose all credibility (because they would all be positive).  So fair use sustains the objectivity and distance that allows critical reviews of films to exist, to take just one example.

Applied to the parody/satire distinction, the notion of necessity has similar leverage.  Parodies, which comment on the underlying work, require some kind of taking in order to make sense.  You can’t parody a work without using it in some way.  Satires, which seek only to comment on a broader social issue using the work as a vehicle, don’t require use of the work in order to make their point.  The work is only one of various means to an expressive end.  So law needs to protect parodies as fair uses more than satires, because if an owner refuses to license a satire, the satirist can use some other work to make their point; but if an owner refuses to license a parodist, the parody simply won’t happen.  If the owners in the copyright in WWITB simply didn’t want their video commented on by South Park or anyone else (regardless of whether one buys the Brownmark court’s assertion that the South Park clip did amount to commentary on WWITB itself), they could shut down such commentary on the video, but South Park would remain free to lampoon the phenomenon of viral videos in other ways.

This idea of necessity is by no means alien to fair use analysis.  One the contrary, it’s at least implied in one of the two less-important factors, factor three (amount and substantiality of the taking, which seems to get to whether the infringement was needed to achieve the end of the use).  And Justice Souter’s opinion in Acuff-Rose spoke of parody/satire in the context of factor three as well as factor one.  Hence my suggestion that the parody/satire not be scrapped entirely, but merely that it be reconceived by courts in a different, and more coherent part of the fair use analysis (and then, only as an aspect of this analysis rather than a dominant consideration).

Finally, it remains to ask, of course, why it matters that parody/satire belongs more rightly in one factor than another within the fair use skein.  I think this is more than just a formal suggestion for how to organize the multi-factored fair use analysis for two reasons.  First, if it’s right that the parody/satire distinction doesn’t relate much to transformativeness, then locating it in the context of that factor obscures the core question whether a use transforms the underlying work.  The transformative effect of parodies is exaggerated, while the transformative effect of satires is understated.  Removing parody/satire may lay bare the transformativeness inquiry rather than allowing it to be reduced to a simplistic, and possibly also irrelevant, dichotomy.  Second, relocating parody/satire firmly within the factor-three analysis might provide more balance among the four fair use factors, pushing back against the current dominance of factors one and four, and vivifying the idea of necessity that is already immanent in the statute.

I have found that Comic-Con is a prime beneficiary of the decline of anonymity in online social networks.

Facebook may be leading the way in the fight against anonymity, but digital communities built around shared interest in science fiction are [...]]]> Comic-Con is many things: awesome, hilarious, tragic, fun, hilarious, expensive and hilarious. Every July, San Diego becomes the homeof more than just balmy temperatures and the alt-rock tones of Jason Mraz; it hosts Comic-Con, an extraordinary pop culture event that brings together Trekkies and Chris Evans (the 2011 Captain America), Jedis and Ryan Kwanten (of True Blood) and more than a few people who have never picked up a comic book. I’ve joined the crowds the past two years because, well, it’s what you do in San Diego this weekend.

I have found that Comic-Con is a prime beneficiary of the decline of anonymity in online social networks.

Facebook may be leading the way in the fight against anonymity, but digital communities built around shared interest in science fiction are giving Mark Zuckerberg a run for his anti-anonymity money. To be sure, online games like World of Warcraft (WoW) allow you to create fantastic identities and personae for yourself, but I had a feeling they have become so much more than that. I did not know from experience: I enjoy Sci Fi and have my share of SyFy shows waiting on my DVR, but I’ve never played WoW. I was never a big gamer, even when “Where in the World is Carmen Sandiego” actually came on those large black floppy discs. So, I did what any nerd would do: I went to Comic-Con to test a theory.

I looked for groups where members were of similar ages (thus excluding families), but did not restrict myself to any particular age, race, gender or costume. I spoke to about 100 people. I wanted to know where they met their friends: online or in person? If online, on what platform? If not on a traditional social networking site like Facebook, where? Did they ever have pseudonyms or online identities that hid their real identities? If so, how and when did they come out of the closet to meet each other? In other words, I was trying to understand the role of online anonymity in social interaction among people at Comic-Con, many of whom are highly wired.

Of 107 people, 67 met the friends they were with at the time online. Notably, that is not the same as saying that nearly 2/3 of respondents came to Comic-Con with people they met online, but still, that is a staggering number! In any event, all of them eventually ”met” or “found” each other on Facebook, but some initially linked up through sci-fi themed groups. But, since it all happened through Facebook, no one was anonymous. 

Not all relationships started on Facebook’s science fiction corner. A few knew each other as frequent commenters on Gateworld.net, an all-things-Stargate fan website; some were WoW buddies who “never kept [themselves]hidden. He sounded cool, so whatever. It’s all on Facebook or MySpace anyway.” Another young man met his Jedi-clad friend “playing a few different online games. In the chat rooms, he mentioned he was from China and I thought that was so cool, especially since I live in Georgia.” He meant the country, not the state. The two struck up a friendship, became MySpace “friends,” then Facebook “friends” and then decided that they both should meet each others’ friends at Comic-Con. I also met a few young women who lamented that I wasn’t in costume and said that they too bonded online as three of the precious few females to comment about the show Warehouse 13 with any frequency. “As soon as I saw another girl, I immediately asked who she was and where she was. She then friended me on Facebook and I had a friend in a place called Riverside, California. I live in Oklahoma.”

Comic-Con attendees bear the brunt of a lot of stereotypes, none more common than of the adolescent, nonathletic boy who projects the kind of person he wants to be into his WoW elf. But, my initial research suggests that these men and women are not hiding behind the perceived anonymity that their online games could provide. Instead, they see their digital selves as extensions of their physical selves and their online identities as ways to help them meet people in real life. It is difficult for all of us to meet new people, so while an elf-self may be a foot in the door, the man behind the elf wants nothing more than to drop his mask and allow his digital community to supplement his physical community.

Admittedly, my tiny sample set answered informal questions in an unscientific survey. But, this concept — who we really are online and what are we really doing — has implications for the kind of policies websites, intermediaries and users would want to adopt to make the Internet a safe community for all. If we don’t want to be anonymous and have less and less need for it, why should we put safety and certain rights at risk in the name of protecting absolute anonymity? If even elf-selves are eschewing anonymity because of the community-building possibilities of Facebook and Gateworld.net, perhaps anonymity is not part of the liberating potential of the Internet. Perhaps community-building is.

One of the staunchest foes of PIPA is Demand Progress, a political advocacy group that favors privacy and internet freedom.  Yesterday, the founder of Demand Progress, Aaron Swartz, [...]]]> The PROTECT IP Act (PIPA) is a currently pending Senate bill that seeks to reduce online piracy by shutting down domestic access to foreign ‘infringing’ websites (inverted commas because there’s much dispute about what ‘infringing’ means in the context of the Act).  Proponents of PIPA, primarily content industries and affiliated entities, claim that the Act is an essential bulwark against growing threats to piracy from rogue websites, especially foreign ones.  Opponents of PIPA, primarily internet-freedom advocacy groups and some industry players, such as Google, respond that the Act represents a threat to internet commerce, innovation, and free speech.

One of the staunchest foes of PIPA is Demand Progress, a political advocacy group that favors privacy and internet freedom.  Yesterday, the founder of Demand Progress, Aaron Swartz, was arrested and charged with an indictment in U.S. District Court for breaking into MIT’s computer network and illegally downloading information from the internet archive JSTOR.  These charges are no joke—they could carry a penalty of up to 35 years in prison and fines of up to $1 million.

What I found most interesting about the news reports about Swartz’ arrest was not the details of these reports (given that only a complaint has been filed, it’s a bit early to have a fully formed opinion on the strength of or motivation behind the federal government’s charges), but rather the strikingly different tenor of the news reports themselves.

This account from Politico.com paints Swartz and the charges against him in a sinister light.  This account from ArsTechnica.com, by contrast, portrays Swartz as a hero, and the charges against him as “bizarre”.  I say more about these two very different accounts of Aaron Swartz’ arrest, and what the difference between them means for the morality of and social norms surrounding intellectual property, below the fold.

Politico’s version of these events (“Copyright Bill Foe Charged in Theft”) reads like it was dictated by the Justice Department.  It accuses Swartz of “theft” in the first paragraph, and goes on to feature a money quote from U.S. Attorney Carmen Ortiz:  “Stealing is stealing whether you use a computer command or a crowbar, and whether you take documents, data or dollars. It is equally harmful to the victim whether you sell what you have stolen or give it away.”  Swartz’ substantial accomplishments as an internet prodigy, the possible internet-freedom-related motives for his conduct, and Demand Progress’ opinion of the charges, get brief and limited billing only late in the piece.

By contrast, ArsTechnica’s version of the same events (“Former Reditt Co-Owner Arrested for Excessive JSTOR Downloads”) reads like an encomium to a young freedom fighter wrongly accused by an overzealous government.  The piece leads off by referring to Swartz as a “24-year-old wunderkind,” and emphasizes that he co-created both the RSS specification and co-owned the site Reddit before his 20th birthday.  Rather than characterizing Swartz’ conduct as “theft”, the piece gives a careful (and often critical) factual account of his making unauthorized downloads from JSTOR based on the complaint.  The U.S. Attorney is nowhere to be heard, but Demand Progress’ criticism of the charges (that the arrest is like “trying to put someone in jail for allegedly checking too many books out of the library”) is featured prominently.

Each article’s rhetorical posturing pushes it to use inapt and misleading analogies.  Politico’s repeated invocation of the term “theft” doesn’t come from the charges themselves (which are mostly about fraud, with one charge of unlawfully obtaining information from a computer), but rather from the U.S. Attorney’s equivalence between physical and intellectual property—“Stealing is stealing.”  But despite the surface allure of this comparison, as a practical matter, unlawful acquisitions operate very differently in physical and virtual spaces.  If you steal my car, you deprive me of my means to drive entirely.  But if you copy my protected work of authorship without authorization, you don’t deprive me of my capacity to use and enjoy the work, you simply deprive me of possible royalties or license fees for unauthorized use(s).

The quote from Demand Progress that ArsTechnica features also understates the scope and seriousness of Swartz’ actions by equating it to a simple oversight by a library patron, and suggesting that Swartz was merely using “unorthodox” methods to express his “passion” for “open access to information”.  Swartz didn’t simply or inadvertently download a couple JSTOR articles in excess of the site’s terms of use.  According to the complaint, at least, he broke into an MIT computer closet, hiding his face behind a bike helmet, and hacked into MIT’s computer network, using an IP masking technique to facilitate the download of 4.8 million documents from JSTOR.  At one point, JSTOR responded to these efforts by simply blocking access to their site for the entire MIT network.   And not only were MIT students harmed by Swartz’ efforts, but JSTOR was well within reason to suspect that the attempt to download their entire library might result in the library’s being made available for free download, undermining their ability to recoup profits from their service.

Each side’s rhetorical posturing is clearly not to be taken seriously in a denotative sense.  But that’s not to say that this rhetoric doesn’t matter.  The Swartz arrest is just one in a series of episodes that emblematize the growing rift between content industries (who push for, and usually get, legislation expanding and protecting their rights) and groups concerned about internet freedom (who almost always manage to stay a step ahead of attempts by industry and government to create free access to content).  Part of this rift is a war of words—are the Aaron Swartzes of the world dirty thieves or valiant freedom fighters?—but this war of words affects social norms about the morality of intellectual property.  However much government and industry may win legislative battles, these wins may be hollow if they don’t convince the general population that infringement (or, in the Swartz case, other information fraud crimes) are morally important.

Hence my frustration with each of these narratives of the Swartz case.  It’s impossible to get a complete sense of the content and context of Swartz’ actions, or the possible social costs of those actions, without reading both pieces together, and this strikes me as a concerning shortfall of each of them.  The media outlet whose coverage I found most satisfying of this episode was actually in the Boston Globe, which presented a responsible, balanced, and accurate account of the matter.  In this case so emblematic of the digital age, it’s more than a little ironic that the best coverage may be found in a stalwart of the old media regime.