FU-BAR

We’ve written numerous times about Scott Turow during his time as head of the Author’s Guild, and the amazing thing to me is that despite the fact he’s been getting blistering criticism from a variety of people — including tons of authors — he never, ever seems to even acknowledge the points of his critics, but continues to just say the same debunked crap over and over again. Last week, for example, we did a point-by-point debunking of his error-laden, factually inaccurate and totally misleading op-ed in which he argued that pretty much everything on the internet was harming authors. I was gratified to see our debunking picked up widely — with many of the tweets in support of our response coming from authors (including a few best selling authors). It made me wonder what sort of organization Turow is running.

Best selling author Barry Eisler penned an interesting response to Turow on JA Konrath’s blog, in which he pointed out that Turow’s position has consistently been in favor of “Legacy Publishing,” (i.e., the big five publishers in NY) rather than authors. A similar reply from author David Gaughran pointed out that Turow seems to be so focused on propping up the legacy publishers that he directly called for an antitrust investigation into price-fixing by those publishers to be dropped, regardless of the facts of the case. Yes, even though such price fixing would harm authors, Turow immediately sided with the publishers. Incredible.

But, perhaps more telling is how the Authors Guild has now completely shut itself off from the outside world. Gaughrin also notes that right before Turow’s NYT op-ed, he had also published a silly blog post about Amazon buying Goodreads, and got torn apart in the comments for the post. But if you look at the Author’s Guild blog post about the NYT’s oped, you’ll see there are no comments and that “comments for this thread are now closed.” Eisler notes that it was not always this way. In fact, he had submitted a comment to the blog post, apparently with a link to my piece, saying:

“That Scott Turow refuses to respond to this demolition of his facts, his knowledge of the law, and even his baseline logic tells you all you need to know about his integrity. And about the true function of the “Authors Guild” of which he is president.”

Eisler received notification that his comment was “awaiting moderation,” but obviously that comment never ran, and instead, the Authors Guild shut down comments entirely. It appears that not only are they unwilling to respond to the large number of authors who are complaining about how ridiculous Turow’s position is, they also want to stick their hands over their eyes and ears to pretend it’s not even happening. That’s not leadership. That’s cowardice.

In the meantime, even the libraries are punching back. The American Library Association responded to Turow, “taking issue” with his op-ed and pointing out how Turow is wrong about libraries and about the law.

The failure to respond speaks volumes. And it says that the Authors Guild does not represent authors at all, but rather the legacy publishers, and a very small number of authors who succeeded under the old system. Turow’s actions have done massive damage to the perception and credibility of the Authors Guild. And the Guild’s decision to stop hearing from critics, especially authors, is quite telling about how it views the world. It’s amazing any modern author thinks it’s worthwhile to be a member of such an organization.

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We’ve written numerous times about Scott Turow during his time as head of the Author’s Guild, and the amazing thing to me is that despite the fact he’s been getting blistering criticism from a variety of people — including tons of authors — he never, ever seems to even acknowledge the points of his critics, but continues to just say the same debunked crap over and over again. Last week, for example, we did a point-by-point debunking of his error-laden, factually inaccurate and totally misleading op-ed in which he argued that pretty much everything on the internet was harming authors. I was gratified to see our debunking picked up widely — with many of the tweets in support of our response coming from authors (including a few best selling authors). It made me wonder what sort of organization Turow is running.

Best selling author Barry Eisler penned an interesting response to Turow on JA Konrath’s blog, in which he pointed out that Turow’s position has consistently been in favor of “Legacy Publishing,” (i.e., the big five publishers in NY) rather than authors. A similar reply from author David Gaughran pointed out that Turow seems to be so focused on propping up the legacy publishers that he directly called for an antitrust investigation into price-fixing by those publishers to be dropped, regardless of the facts of the case. Yes, even though such price fixing would harm authors, Turow immediately sided with the publishers. Incredible.

But, perhaps more telling is how the Authors Guild has now completely shut itself off from the outside world. Gaughrin also notes that right before Turow’s NYT op-ed, he had also published a silly blog post about Amazon buying Goodreads, and got torn apart in the comments for the post. But if you look at the Author’s Guild blog post about the NYT’s oped, you’ll see there are no comments and that “comments for this thread are now closed.” Eisler notes that it was not always this way. In fact, he had submitted a comment to the blog post, apparently with a link to my piece, saying:

“That Scott Turow refuses to respond to this demolition of his facts, his knowledge of the law, and even his baseline logic tells you all you need to know about his integrity. And about the true function of the “Authors Guild” of which he is president.”

Eisler received notification that his comment was “awaiting moderation,” but obviously that comment never ran, and instead, the Authors Guild shut down comments entirely. It appears that not only are they unwilling to respond to the large number of authors who are complaining about how ridiculous Turow’s position is, they also want to stick their hands over their eyes and ears to pretend it’s not even happening. That’s not leadership. That’s cowardice.

In the meantime, even the libraries are punching back. The American Library Association responded to Turow, “taking issue” with his op-ed and pointing out how Turow is wrong about libraries and about the law.

The failure to respond speaks volumes. And it says that the Authors Guild does not represent authors at all, but rather the legacy publishers, and a very small number of authors who succeeded under the old system. Turow’s actions have done massive damage to the perception and credibility of the Authors Guild. And the Guild’s decision to stop hearing from critics, especially authors, is quite telling about how it views the world. It’s amazing any modern author thinks it’s worthwhile to be a member of such an organization.

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The lawsuits brought against the media monitoring firm Meltwater in both the US and the UK have not turned out too well for the company so far. In the US, the district court handed down a summary judgment against Meltwater, while in the UK, two courts came to a particularly worrying conclusion: that simply viewing copyright material online without a license amounted to infringement.

Fortunately, this judgment was appealed to the UK Supreme Court, which has just published its ruling. The judges recognized that the central issue is whether the temporary copies held on a computer in its memory cache, which are necessary to view a document stored on the Web, are covered by a clause in UK and European law that exempts temporary copies from needing a license provided certain conditions are met. In the judges’ view, copies held purely for browsing were indeed covered, provided they were not saved or printed out. Here’s why that is crucial:

if it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing. This seems an unacceptable result, which would make infringers of many millions of ordinary users of the internet across the EU who use browsers and search engines for private as well as commercial purposes.

That’s obviously just common sense — sadly, a rare commodity when it comes to copyright in the online world. However, the UK Supreme Court has asked the European Court of Justice to offer its own, definitive, ruling so as to settle the law for the whole of Europe. As the judge writing the verdict noted:

I recognise the issue has a transnational dimension and that the application of copyright law to internet use has important implications for many millions of people across the EU making use of what has become a basic technical facility. These considerations make it desirable that any decision on the point should be referred to the Court of Justice for a preliminary ruling, so that the critical point may be resolved in a manner which will apply uniformly across the European Union.

Of course, the legal status of temporary copies is a crucial question elsewhere, too. For example, in her speech at Columbia University back in March, Copyright Register Maria Pallante spoke of “the confusion over incidental copies”, which needed sorting out. More worryingly, one relatively recent leak of the TPP draft seemed to indicate that it would require all temporary copies to be regulated. The fact that we are still having this discussion about a technological necessity some twenty years after the Web was invented, shows just how out of touch with modern reality copyright law remains.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

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The lawsuits brought against the media monitoring firm Meltwater in both the US and the UK have not turned out too well for the company so far. In the US, the district court handed down a summary judgment against Meltwater, while in the UK, two courts came to a particularly worrying conclusion: that simply viewing copyright material online without a license amounted to infringement.

Fortunately, this judgment was appealed to the UK Supreme Court, which has just published its ruling. The judges recognized that the central issue is whether the temporary copies held on a computer in its memory cache, which are necessary to view a document stored on the Web, are covered by a clause in UK and European law that exempts temporary copies from needing a license provided certain conditions are met. In the judges’ view, copies held purely for browsing were indeed covered, provided they were not saved or printed out. Here’s why that is crucial:

if it is an infringement merely to view copyright material, without downloading or printing out, then those who browse the internet are likely unintentionally to incur civil liability, at least in principle, by merely coming upon a web-page containing copyright material in the course of browsing. This seems an unacceptable result, which would make infringers of many millions of ordinary users of the internet across the EU who use browsers and search engines for private as well as commercial purposes.

That’s obviously just common sense — sadly, a rare commodity when it comes to copyright in the online world. However, the UK Supreme Court has asked the European Court of Justice to offer its own, definitive, ruling so as to settle the law for the whole of Europe. As the judge writing the verdict noted:

I recognise the issue has a transnational dimension and that the application of copyright law to internet use has important implications for many millions of people across the EU making use of what has become a basic technical facility. These considerations make it desirable that any decision on the point should be referred to the Court of Justice for a preliminary ruling, so that the critical point may be resolved in a manner which will apply uniformly across the European Union.

Of course, the legal status of temporary copies is a crucial question elsewhere, too. For example, in her speech at Columbia University back in March, Copyright Register Maria Pallante spoke of “the confusion over incidental copies”, which needed sorting out. More worryingly, one relatively recent leak of the TPP draft seemed to indicate that it would require all temporary copies to be regulated. The fact that we are still having this discussion about a technological necessity some twenty years after the Web was invented, shows just how out of touch with modern reality copyright law remains.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

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Even though they don’t figure much in the US legal landscape, moral (non-economic) rights such as the right of attribution are an important aspect of copyright law in many other countries. Intellectual Property Watch has a fascinating account of a case from Argentina, where a judge decided that an individual’s moral rights could be overridden by the rights of the community.

The tale is rather complicated, so you’ll need to read the original article to follow all the twists and turns, but it concerns the works of Roberto Fontanarrosa, a cartoonist and writer who died in 2007. His widow signed a contract with a publishing house to bring out a posthumous collection of his unpublished short stories, but Fontanarrosa’s son by a previous marriage objected on the grounds that his father’s moral rights were being harmed:

he argued he was not sure his father was actually the author of the work subject to the publishing agreement and his motivation was to avoid damaging his father’s reputation by allowing the print of a work of an unknown author under his name.

The judge was therefore asked to decide whether the publication should go ahead or not.

In the end, the judge in charge of the Court of First Instance, Fabián Bellizia, decided the contract signed between the publisher and the widower was valid, thus authorising the publication of the work. Moreover, he deemed the moral rights argued by the son of the author were abusive. The judge stated that the tension between author’s copyright and community interest and explicitly favoured the latter over the former.

As the Intellectual Property Watch post notes, this is perhaps the first time that an Argentine court has limited the exercise of moral rights of an author by taking into account the interest of the community in gaining access to unpublished works. Moreover, the judge arrived at that remarkable decision that in some circumstances moral rights could be “abusive”, not by reference to Argentina’s Copyright Act, as might be expected, but to international treaties:

the American Convention on Human Rights, also known as the Pact of San José de Costa Rica, Art. 21, subsection 1 (the law can subordinate individual rights to social interests, i.e., the so-called doctrine of the social function of property), and the International Covenant on Economic, Social and Cultural Rights (adopted by the United Nations General Assembly on 16 December 1966), Art. 15, subsection 1 (right of every person to take part in the cultural life).

That judgement is not yet definitive, since the Argentinian Appellate Court now needs to consider the case. But it would set a remarkable precedent for considering the impact of copyright in a wider social contract, and weighing the rights of the creator against those of the community:

It seems this decision is a reaction against the perceived misbalance between incentive and access trade-off in contemporary copyright law. In any case, the ruling opens the door to many challenging interpretations. If the rights of the heir, as successor of the author, can be deemed abusive in a court of law, could the moral rights of a living author be considered abusive as well?

Now there’s a thought.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

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Even though they don’t figure much in the US legal landscape, moral (non-economic) rights such as the right of attribution are an important aspect of copyright law in many other countries. Intellectual Property Watch has a fascinating account of a case from Argentina, where a judge decided that an individual’s moral rights could be overridden by the rights of the community.

The tale is rather complicated, so you’ll need to read the original article to follow all the twists and turns, but it concerns the works of Roberto Fontanarrosa, a cartoonist and writer who died in 2007. His widow signed a contract with a publishing house to bring out a posthumous collection of his unpublished short stories, but Fontanarrosa’s son by a previous marriage objected on the grounds that his father’s moral rights were being harmed:

he argued he was not sure his father was actually the author of the work subject to the publishing agreement and his motivation was to avoid damaging his father’s reputation by allowing the print of a work of an unknown author under his name.

The judge was therefore asked to decide whether the publication should go ahead or not.

In the end, the judge in charge of the Court of First Instance, Fabián Bellizia, decided the contract signed between the publisher and the widower was valid, thus authorising the publication of the work. Moreover, he deemed the moral rights argued by the son of the author were abusive. The judge stated that the tension between author’s copyright and community interest and explicitly favoured the latter over the former.

As the Intellectual Property Watch post notes, this is perhaps the first time that an Argentine court has limited the exercise of moral rights of an author by taking into account the interest of the community in gaining access to unpublished works. Moreover, the judge arrived at that remarkable decision that in some circumstances moral rights could be “abusive”, not by reference to Argentina’s Copyright Act, as might be expected, but to international treaties:

the American Convention on Human Rights, also known as the Pact of San José de Costa Rica, Art. 21, subsection 1 (the law can subordinate individual rights to social interests, i.e., the so-called doctrine of the social function of property), and the International Covenant on Economic, Social and Cultural Rights (adopted by the United Nations General Assembly on 16 December 1966), Art. 15, subsection 1 (right of every person to take part in the cultural life).

That judgement is not yet definitive, since the Argentinian Appellate Court now needs to consider the case. But it would set a remarkable precedent for considering the impact of copyright in a wider social contract, and weighing the rights of the creator against those of the community:

It seems this decision is a reaction against the perceived misbalance between incentive and access trade-off in contemporary copyright law. In any case, the ruling opens the door to many challenging interpretations. If the rights of the heir, as successor of the author, can be deemed abusive in a court of law, could the moral rights of a living author be considered abusive as well?

Now there’s a thought.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

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The US government is already fighting wars on several fronts, including the perpetual War on Terror. “War is the health of the state,” as Randolph Bourne stated, and the state has never been healthier, using this variety of opponents as excuses to increase surveillance, curtail rights and expand power.

Bruce Schneier highlights a piece written by Molly Sauter for the Atlantic which poses the question, “If hackers didn’t exist, would the government have to invent them?” The government certainly seems to need some sort of existential hacker threat in order to justify more broadly/badly written laws (on top of the outdated and overbroad CFAA). But the government’s portrayal of hackers as “malicious, adolescent techno-wizards, willing and able to do great harm to innocent civilians and society at large,” is largely false. If teen techno-wizards aren’t taking down site after site, how is all this personal information ending up in hackers’ hands? Plain old human carelessness.

According to the Privacy Rights Clearinghouse, the loss or improper disposal of paper records, portable devices like laptops or memory sticks, and desktop computers have accounted for more than 1,400 data-breach incidents since 2005 — almost half of all the incidents reported. More than 180,000,000 individual records were compromised in these breaches…

By comparison, only 631 breaches were attributed to actual hacking, or at least hacking as it’s portrayed by the government. Private entities aren’t very worried about being hacked either, at least not from the outside. Their main concern, according to the Privacy Rights Clearinghouse, is “inside jobs” by disgruntled employees.

Nonetheless, the narrative advanced by the government (and passed along by the largely credulous mainstream media) of unstoppable hackers and their omnipresent threat to major companies, the government itself, average Americans and underlying infrastructure, continues nearly unimpeded. This narrative is essential to those in the government who wish to justify large-scale surveillance of anything and anyone connected to the internet. The scarier the image, the more it can get away with.

It is the hacker — a sort of modern folk devil who personifies our anxieties about technology — who gets all the attention. The result is a set of increasingly paranoid and restrictive laws and regulations affecting our abilities to communicate freely and privately online, to use and control our own technology, and which puts users at risk for overzealous prosecutions and invasive electronic search and seizure practices. The Computer Fraud and Abuse Act, the cornerstone of domestic computer-crime legislation, is overly broad and poorly defined. Since its passage in 1986, it has created a pile of confused caselaw and overzealous prosecutions.

We’ve seen the overzealous prosecution and expressed disbelief and amazement at some of the interpretations of this outdated law. (Amazingly, Sauter’s post was written before the most recent cases of overzealous prosecution.) And instead of fixing the CFAA, legislators are actively working to make it worse, even as overly-broad cybersecurity legislation is being negotiated in secret.

The “modern folk devil” image has become part of the mass consciousness. Anonymous and its various offshoots roam the internet, at turns wreaking havoc and helping the oppressed, like an electronic manifestation of Loki, the Distributed. These activities are duly reported by the media in ominous tones, further driving home the image of the hacker at Millennial Public Enemy No. 1. The acts and the perception of the damage caused by this hacking are miles apart, as is perfectly illustrated by xkcd.

Many members of the American public are already convinced something should be done about hackers. Many of our representatives feel the same way. A lack of knowledge of the underlying technology, much less the methods or culture, hasn’t deterred legislators from crafting an overbroad response with the CISPA bill. Examining the issues more closely or reconsidering the legislation doesn’t seem to be an option. After all, a “cyber Pearl Harbor” is all but inevitable, a conclusion confirmed by shouting “HACKER!” in the halls of Congress and hearing it echoed back by like-minded representatives, sympathetich government agencies, the media and a subset of the American public.

In the effort to protect society and the state from the ravages of this imagined hacker, the US government has adopted overbroad, vaguely worded laws and regulations which severely undermine internet freedom and threaten the Internet’s role as a place of political and creative expression.

The endgame is more control, and the “hacker” provides an ominous, omnipresent threat that, because of the hacker’s naturally secretive nature, can neither be confirmed or denied with any veracity. Much like the War on Terror, this War on Hacking takes rights from the American public, carves out huge chunks and sends the gutted remains back to citizens in a package marked “Safety.”

Permalink | Comments | Email This Story

The US government is already fighting wars on several fronts, including the perpetual War on Terror. “War is the health of the state,” as Randolph Bourne stated, and the state has never been healthier, using this variety of opponents as excuses to increase surveillance, curtail rights and expand power.

Bruce Schneier highlights a piece written by Molly Sauter for the Atlantic which poses the question, “If hackers didn’t exist, would the government have to invent them?” The government certainly seems to need some sort of existential hacker threat in order to justify more broadly/badly written laws (on top of the outdated and overbroad CFAA). But the government’s portrayal of hackers as “malicious, adolescent techno-wizards, willing and able to do great harm to innocent civilians and society at large,” is largely false. If teen techno-wizards aren’t taking down site after site, how is all this personal information ending up in hackers’ hands? Plain old human carelessness.

According to the Privacy Rights Clearinghouse, the loss or improper disposal of paper records, portable devices like laptops or memory sticks, and desktop computers have accounted for more than 1,400 data-breach incidents since 2005 — almost half of all the incidents reported. More than 180,000,000 individual records were compromised in these breaches…

By comparison, only 631 breaches were attributed to actual hacking, or at least hacking as it’s portrayed by the government. Private entities aren’t very worried about being hacked either, at least not from the outside. Their main concern, according to the Privacy Rights Clearinghouse, is “inside jobs” by disgruntled employees.

Nonetheless, the narrative advanced by the government (and passed along by the largely credulous mainstream media) of unstoppable hackers and their omnipresent threat to major companies, the government itself, average Americans and underlying infrastructure, continues nearly unimpeded. This narrative is essential to those in the government who wish to justify large-scale surveillance of anything and anyone connected to the internet. The scarier the image, the more it can get away with.

It is the hacker — a sort of modern folk devil who personifies our anxieties about technology — who gets all the attention. The result is a set of increasingly paranoid and restrictive laws and regulations affecting our abilities to communicate freely and privately online, to use and control our own technology, and which puts users at risk for overzealous prosecutions and invasive electronic search and seizure practices. The Computer Fraud and Abuse Act, the cornerstone of domestic computer-crime legislation, is overly broad and poorly defined. Since its passage in 1986, it has created a pile of confused caselaw and overzealous prosecutions.

We’ve seen the overzealous prosecution and expressed disbelief and amazement at some of the interpretations of this outdated law. (Amazingly, Sauter’s post was written before the most recent cases of overzealous prosecution.) And instead of fixing the CFAA, legislators are actively working to make it worse, even as overly-broad cybersecurity legislation is being negotiated in secret.

The “modern folk devil” image has become part of the mass consciousness. Anonymous and its various offshoots roam the internet, at turns wreaking havoc and helping the oppressed, like an electronic manifestation of Loki, the Distributed. These activities are duly reported by the media in ominous tones, further driving home the image of the hacker at Millennial Public Enemy No. 1. The acts and the perception of the damage caused by this hacking are miles apart, as is perfectly illustrated by xkcd.

Many members of the American public are already convinced something should be done about hackers. Many of our representatives feel the same way. A lack of knowledge of the underlying technology, much less the methods or culture, hasn’t deterred legislators from crafting an overbroad response with the CISPA bill. Examining the issues more closely or reconsidering the legislation doesn’t seem to be an option. After all, a “cyber Pearl Harbor” is all but inevitable, a conclusion confirmed by shouting “HACKER!” in the halls of Congress and hearing it echoed back by like-minded representatives, sympathetich government agencies, the media and a subset of the American public.

In the effort to protect society and the state from the ravages of this imagined hacker, the US government has adopted overbroad, vaguely worded laws and regulations which severely undermine internet freedom and threaten the Internet’s role as a place of political and creative expression.

The endgame is more control, and the “hacker” provides an ominous, omnipresent threat that, because of the hacker’s naturally secretive nature, can neither be confirmed or denied with any veracity. Much like the War on Terror, this War on Hacking takes rights from the American public, carves out huge chunks and sends the gutted remains back to citizens in a package marked “Safety.”

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