intellectual property – Antenna Responses to Media and Culture Thu, 30 Mar 2017 23:48:47 +0000 en-US hourly 1 The Rise of Big Copyright: Content Protection and the Formation of Anti-Piracy Alliances Thu, 17 Dec 2015 12:00:53 +0000 Post by Paul McDonald, King’s College London

This post continues the ongoing “From Nottingham and Beyond” series, with contributions from faculty and alumni of the University of Nottingham’s Department of Culture, Film and Media. This week’s contributor, Paul McDonald, was Professor of Cinema and Media Industries in our department from 2011-2015. 

Image - Get It Right from a Genuine SiteA few weeks ago, the Get It Right from a Genuine Site anti-piracy campaign was launched in the UK. The campaign was run by Creative Content UK, a body formed the previous year to “boost consumer awareness of the wide array of legitimate online content services and help reduce online copyright infringement.” CCUK’s founding partners were the BPI (British Phonographic Industry), Hollywood’s trade body for international territories the Motion Picture Association (MPA), and the four main internet service providers in the UK: BT, Sky Broadband, TalkTalk and Virgin Media. Additional support for CCUK came from broadcasters (BBC and ITV), actors’ union Equity, the Film Distributors’ Association, the Independent Film and Television Alliance, the Musicians’ Union, Pact, the Premier League, the Publishers Association and UK Music.

CCUK is the newest arrival to the UK’s anti-piracy business and as such is representative of a trend now characterizing the modern media industries—the formation of inter- and intra-industry alliances to combat media piracy and protect copyrighted content. Over recent years, claims of escalating piracy have seemingly been accompanied by a concurrent escalation in the number of coalitions formed to combat it. Although not a new development, the formation of anti-piracy alliances has intensified over the last ten to fifteen years. As a way of grasping the implications of this trend, these developments might be described as the rise of Big Copyright, the emergence of new constellations of commercial-legal power in the media economy.

There are several reasons why this trend cannot simply be seen as a continuation of the oligopolistic tendencies of so-called Big Media by means of intellectual property. First, as a label for a concentrated cluster of private firms, Big Media has no formal collective identity other than perhaps memberships of trade associations for the film or music businesses. Big Copyright, on the other hand, materializes in a multitude of specific, named alliances that are the products of formalized agreements to collaborate. Second, Big Copyright brings together interests that spread far beyond the diversified holdings of even the largest, most diversified media and communication conglomerates. Big Media are part of Big Copyright, but the latter extends further, formed of unities among multiple copyright holders from across the business software, publishing, music, film, television and game industries, plus broadcasters, internet service providers, media retailers, marketing agencies, technology firms and in some cases police forces. These alliances have become power brokers in what Adrian Johns describes as the “intellectual property defence industry,” creating constellations of interests to aggregate social and political capital against piracy. While these groupings are led by the media industries, the raison d’être behind the creation of these alliances is to reach beyond the media sector by pressuring governments to act in the interests of rights holders, working with judicial and police authorities to enforce the protection of rights, and reaching out to the public by communicating lessons in good copyright citizenship. Finally, while Big Media largely means the major U.S. media firms, with the possible addition of Bertelsmann, Big Copyright is more internationally dispersed, comprising alliances formed around various national coalitions and including a few transnational members.

Image - FACT LogoBy way of illustration, I’ll briefly review here the alliances at the forefront of the content protection business in the UK. Formed in October 1982 through collaboration between the Motion Picture Export Association of America (MPEAA), the Society of Film Distributors, and the British Videogram Association (BVA), the Federation Against Copyright Theft (FACT) was established in the early years of the home-video boom, when Britain was regarded by Hollywood as a hotbed of video piracy due to the low fines imposed for first offenses and lenient sentences for subsequent convictions. FACT is part of the MPA’s international network of national non-profit “content protection organizations” (CPOs), which now extends to over 30 countries, predominantly in Western Europe but also in parts of Eastern Europe, the Asia-Pacific region, and North and South America. Through this network, FACT has equivalents in other major international markets for Hollywood film and television, including JIMCA (the Japan and International Motion Picture Copyright Association), Germany’s Gesellschaft zur Verfolgung von Urheberrechtsverletzungen (GVU, the Society for the Prosecution of Copyright Infringement), France’s Association de Lutte Contre la Piraterie Audiovisuelle (ALPA, the Association for the Fight Against Audiovisual Piracy) and the Asociación Protectora de Cine y Música México (APCM, the Mexican Association for the Protection of Movies and Music). Image - APCM LogoCPOs localize the MPA’s global fight against piracy, providing on-the-ground points of contact for links with national governmental departments, law-enforcement agencies, and companies or trade bodies in the media sector. Although operating as a kind of outpost in Hollywood’s global fight against film and television piracy, FACT is now networked into the broader UK media economy. Alongside the MPA and the six major Hollywood corporations, FACT’s membership includes the main terrestrial broadcasters (BBC, ITV), satcaster (Sky) and cable provider (Virgin Media), plus film trade bodies (British Video Association, Film Distributors’ Association, and UK Cinema Association), and a leading sports rights holder (Premier League). As an industry body, FACT holds no statutory authority but instead functions primarily to aid anti-piracy efforts by collaborating with national law-enforcement and customs officials to investigate and prosecute alleged infringing activities. FACT operates partnerships with HM Revenue and Customs, Border Force, the National Crime Agency, Trading Standards offices, and fifteen regional police forces.

Image - Alliance Against Copyright Theft LogoFACT therefore represents a point of mediation between the MPA CPOs and various national companies, bodies and agencies. For over three decades, FACT has remained at the forefront of anti-piracy efforts in the UK, but since the late 1990s, this network organization has seen developments with the formation of various new alliances. Operating as a kind of über-association, the Alliance for Intellectual Property exists to provide a single voice representing the collective interests of the copyright industries to the UK government. Formed in 1998, the Alliance aggregates the interests of two dozen “trade organisations, enforcement organisations and collecting societies from across the creative, branded and design industries.” Beyond its own business, the Alliance pays communications consultancy Luther Pendragon to provide administrative support to the All Party Parliamentary Intellectual Property Group (APPG), launched in 2003 as an interest group within UK government that, according to the Register of All-Party Parliamentary Groups, serves to “debate and highlight the value of intellectual property (IP) and the importance of its promotion and protection.”

Image - Industry Trust LogoOperating since 2004 with support from the UK film, TV and video industries, the Industry Trust for Intellectual Property Awareness describes itself as a “pro-copyright consumer education body.” Membership of the Trust extends to 44 entities, including all the major film/video distributors and cinema chains and their related trade bodies, plus marketing agencies (My Movies, Think Jam), pre-school entertainment company HIT, optical-disc manufacturer Sony DADC, digital-entertainment technology provider Rovi, home-entertainment metadata supplier West10, and leading online retailers (e.g. Amazon, eBay) and supermarkets (e.g. Asda, Sainsbury’s and Tesco). In addition, the Trust has 88 partners from across the UK’s film and television business, including FACT and the Alliance for IP. To promote awareness of the value of IP, the Industry Trust has run multiple campaigns, including the series of Moments Worth Paying For ads screened across cinemas, digital outdoor spaces and online media.

Following the model of the Center for Copyright Information in the US, CCUK was launched with two purposes. Get It Right from a Genuine Site is the first outcome of CCUK’s commitment to pro-copyright public awareness campaigning.

CCUK was also established to implement the Voluntary Copyright Alert Programme (VCAP), a system for rights owners to monitor transfers of infringing content over file-sharing networks, logging the IP addresses of infringers and notifying ISPs who send “escalating” warning letters to the relevant users. Issuing only a series of educative warnings means VCAP takes a lighter touch to deterrence than the enforcement of disconnections or financial penalties proposed by the 2010 Digital Economy Act. This has led to some questioning, however, particularly from the MPAA, over whether the program has any real teeth.

As the UK case shows, the landscape of anti-piracy alliance formation is confusing: not only has there been the proliferation of alliances, but many companies or organizations are also members of multiple alliances, and some alliances partner in other alliances. The formation of, but also the blurring between, alliances is particularly noticeable in how the presence of the Hollywood majors is unsurprisingly woven throughout these networks: the majors are individual members of FACT and the Industry Trust but are also collectively represented in these groupings and the Alliance for IP through the Film Distributors’ Association and the MPA.

AImage - Moments Worth Paying For-Anchorman 2s suggested earlier, Big Copyright grows out of nationally-configured coalitions of collective interests. So in the U.S., a similar array of alliances operates to those found in the UK. Representing trade associations across the copyright industries, the International Intellectual Property Alliance annually reports to the U.S. Trade Representative on the current state of IP regimes in foreign territories, with the aim of using the trading system to strengthen the international enforcement of rights. Copyright Alliance is a pan-media coalition that lobbies Congress for stronger copyright legislation, while CreativeFuture (originally Creative America) runs television, social-media and website campaigns on how piracy threatens jobs in film and television. Pulling back from the detail of these labyrinthine connections, at a level of abstract generalization we can see these coalitions serve a limited number of core functions in the fight against piracy: the political work of lobbying government for stronger legislative protections, the legal work of aiding statutory authorities to enforce rights, and the discursive work of public-awareness campaigning.

Frequently, analyses of the media industries focus on the organization of the conditions facilitating the production, dissemination and presentation of media content. Often this means concentrating on particular media firms. But the rise of Big Copyright demands we must now equally attend to how anti-piracy alliances are today very much part of the operational purposes of the modern media industries. By their very definition, these alliances are not companies but operate in the spaces between companies. For this reason, they may slip out of sight. This is not to say they are invisible or secretive, although knowledge of the precise workings is confined to industry stakeholders and is unavailable to the public. Rather they are just not an immediately noticeable component of the media business. With their proliferation, however, anti-piracy alliances have become a distinct category of player in the media industries. Thus, it is now vital we make these alliances visible for the roles they play in regulating the marketplace of rights and in shaping the cultural sphere.


Rethinking Media Distribution Wed, 20 Nov 2013 15:00:21 +0000 Tryon pic

The news that the subscription service Netflix now has more total subscribers than premium cable channel HBO further confirms that media industries are changing rapidly, especially when it comes to the practices of movie and TV distribution. Beyond altering the economics of media distribution, subscription services such as Netflix and Hulu have introduced a whole new vocabulary for both media consumers and industry professionals alike. Activities such as binge watching and “Netflix adultery” were unimaginable just a few short years ago, while more traditional practices—such as the weekly trip to the video store—have practically disappeared. With those changes in mind, Jeff Ulin, a media distribution expert who has worked at Lucasfilm, Paramount, and Universal, has substantially revised his 2009 book, The Business of Media Distribution, for the era of digital delivery, providing a fascinating and engaging road map for both media scholars and industry professionals.

The new edition of the book starts by spelling out how studios and networks manage media properties in order to create value—through managing intellectual property rights, for example—before tracing several different modes of distribution: theatrical, home video, television, and internet. The final sections of the book focus on aspects such as marketing and promotion, especially as those practices have been transformed by the emergence of social media tools. Ulin also reiterates one of the key observations discussed in his first book: the idea that studios are best understood as “financing and distributing machines” that seek to maximize value, in large part by managing the distribution “windows” when movies or TV shows are available through a specific platform. Ulin emphasizes the process by which studios carefully balance when movies are available theatrically, through VOD platforms, on DVD, and eventually through subscription services such as Netflix, in order to maximize the value of a given text.

In his map of the film distribution landscape, Ulin traces several of the key factors that drove the adoption of digital projectors, most notably the role of 3D in serving as a means for justifying surcharges to consumers. But another major factor identified by Ulin is the role of China as a major marketplace for Hollywood theatrical films. Specifically, Ulin points out that the U.S. government negotiated a deal to raise the limit on the number of international films screened annually in China from 20 to 34, with the stipulation that the additional movies be screened in 3D. While Ulin is less explicit on this matter, the clear implication is that China’s theatrical market will likely shape the choices studios make when it comes to picking projects for the foreseeable future.

But the strength of Ulin’s book is his thorough explanation of the changes in the home video marketplace, especially as online video sources are poised to upset DVD rental and sales. As Ulin points out, the conflicts between physical or bricks-and-mortar retailers and online sources including Amazon are often more complex than they appear, especially given incentives such as using DVDs as “loss-leaders” to draw shoppers into big-box retailers such as Walmart and Target. More crucially, however, subscription video-on-demand (SVOD) services such as Netflix and Hulu and transactional video-on-demand (TVOD) retailers such as Amazon and iTunes have upset traditional revenue streams and the distribution windows that were designed to provide various platforms (theaters, pay cable, basic cable) with periods of exclusivity that allowed studios and exhibitors to protect the value of the movie being distributed. These conflicts have played out in the ongoing debates over day-and-date distribution, especially for independent and low-budget movies, or shorter theatrical windows for studio films. But they also inform how TV shows circulate, especially when the interests of production companies and SVOD services such as Netflix compete with the interests of cable TV channels such as TNT and FX that are currently negotiating to extend their “broadcast window” to encompass the most recent season of a show, rather than just the five most recent episodes. Such battles are likely to persist in our current on-demand culture

One of the challenges that faces any book that focuses on the media distribution landscape is that it changes so rapidly. As I was reading Ulin’s book, Blockbuster Video announced that it would be closing its last 300 stores, resulting in the loss of over 3.000 jobs and leaving Redbox as, perhaps, the primary option for DVD rental for most US consumers. However, Ulin’s book remains relevant, in large part because he offers several key principles to describe the ongoing evolution of the media industries. With that in mind, we can read all of the recent changes—Netflix’s competition with HBO, Blockbuster’s closure of its U.S. stores, and China’s emergence as a crucial theatrical market—as part of a larger system in which studios and other media institutions use windows in order to generate and retain value for the films and television shows they distribute, no matter how we access them.


SOPA: Just Say NOPA Thu, 22 Dec 2011 16:07:28 +0000 Whatever you’ve been doing on the internet in the last few weeks, chances are you ran across something about SOPA. Whether it was in blacked-out tweets and status updates, at the top of Reddit, or ‘blocked’ access to Tumblr, online protests in opposition to the Stop Online Piracy Act that is being debated in the US House of Representatives have been all over the internet recently. And for good reason— SOPA is a big, big deal and it deserves the attention and action of anyone who cares about the future of the internet. In fact, SOPA— along with its companion bill in the Senate, the PROTECT IP Act— might just be the most dangerous internet legislation the US government has ever considered.

So what’s the big deal? What makes this bill so much worse than all of Congress’s other “anti-piracy” measures? Well, it would put in place an entire system of internet censorship that would empower the US government and corporations to block any website. The Department of Justice would have a blacklist of foreign “rogue sites” which fit a vague definition of enabling intellectual property infringement and would block American users from accessing these sites, in addition to cutting off the sites’ revenues from US-based advertising services and payment processors. All of this would happen within five days of the accusation of infringement, without any judge, any two-sided hearing, or any due process for the accused site. In fact, it further encourages pre-emptive “voluntary action” by offering immunity for internet service providers, browser producers, and search engines that block sites without even any infringement claims.

SOPA’s corporate backers in the recording and film industries focus on overseas sites that they refer to as “dedicated to intellectual property theft,” despite the fact that, for instance, targeted one-click file-hosting services like Rapidshare have been found legal in both American and European courts. In addition to plowing over such “rogue sites” that actually have substantial non-infringing uses, SOPA would also ensnare domestic sites that link to any infringing material or any “rogue site”— and would block the entire domain for even one link on one page. This means that any social media platform that hosts user-generated content— everything from Facebook, Twitter, and YouTube to Reddit, Tumblr, and Wikipedia— would become liable for everything their users post. SOPA, then, would overturn over a decade of precedent for internet law in the “safe harbor” provisions of the Digital Millennium Copyright Act that protect internet intermediaries from liability for what users do (an example of how prior copyright expansion legislation at least included some reasonable limitations).

SOPA would have a huge impact on freedom of expression, creativity, and innovation online. Doing away with safe harbor protections would place a massive burden on online services to police their users and more actively censor what they do online. This would have chilling effects on the free expression and creativity of users by encouraging self-censorship and would stifle innovative new start-ups with limited resources. Further, if whole platforms disappear from US access, the free expression of all other users becomes collateral damage. Of course, these very powerful tools for shutting down online activities hold great potential for abuse— especially when held by industries with a long history of using the law to expand their control and protect them from disruptive innovators.

Further, SOPA flies in the face of the principles of net neutrality and internet freedom that the US government evangelizes everywhere else around the world. While the US extols the virtues of free and open internet connectivity globally, SOPA would institute the same technical censorship system as China, Iran, Syria, and similarly repressive regimes. The only difference is that the American censorship system would instead be used to protect corporate profits— intellectual property now trumps all other rights. In addition to undermining American credibility in calling out authoritarian states’ internet censorship, SOPA would also set a precedent for other liberal democracies to further filter and block internet content. On top of all this, SOPA involves mucking around with the fundamental technical workings of the internet, with serious consequences for the stability and security of critical internet resources like the Domain Name System. By interfering with the connections between site addresses and the servers they are designed to connect to, SOPA’s blocking system would undermine the next-generation DNSSEC system being developed by the US government’s own internet security experts and all other internet protocols that depend on it working universally consistent.

SOPA is now in markup in the House Judiciary Committee, where the hearings have been laughably lopsided and the representatives have openly admitted their ignorance of the constitutional, economic, and technical implications of what they’re proposing. The bill’s sponsors were rushing for a vote before the holidays, but, after some last-minute jerking around with on-again-off-again sessions this week, it has now been delayed until some time in the new year. (PIPA has already made it out of committee and will be coming to the Senate floor in the new year.) This is a positive development: they weren’t able to ram it through committee around the holidays while fewer people are paying attention. However, SOPA’s supporters are surely counting on the large opposition effort losing momentum. If you find any of the above scary— if you don’t want to see your Facebook feed blacked out for real soon— you should help keep the pressure on Congress to stand up for freedom online.


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Waiting for Superman Sat, 11 Jun 2011 13:00:03 +0000 It is possible that Superman may be split in two.  Certainly he has been busy enough for two.  Already this year Superman’s originating text, Action Comics, reached issue #900 with the suggestion that Superman would renounce his citizenship, followed by the possible renunciation of that renunciation in Superman #711, followed by the announcement that Superman’s DC comic books would reboot (or “re-launch“– as will many other DC titles) with issues number 1 in September.  Meanwhile the animated straight-to-video All-Star Superman was released earlier this year even as details of the next live-action film, Man of Steel, have been leaking.  And then, just last month, television’s Smallville concluded after a decade.

Splitting in two, however, would not be a narrative gimmick invented by creative writers for the character, but instead a legal gimmick imagined by creative lawyers.  The U.S. legal system has been busy parceling ownership of intellectual property recently estimated to generate $1 billion annually.  The conflict between DC’s parent company Time Warner and the estates of Superman creators Jerry Siegel and Joe Shuster involves copyright and trademark, work-for-hire and rights termination.  But it also demonstrates the ways in which, for 21st century media companies, the value of intellectual property is forever and complexly entangled with the narratives it offers.

Consider Smallville:  after ten seasons of serial narrative featuring the adventures of an initially youthful Clark Kent learning to become what every viewer already knew he must become, the literally-titled “Finale” episodes finally returned us to where we started before Smallville ever aired: with Superman.

There are two ways to understand this inevitable if disconcerting return to the start.  The first was articulated nearly 40 years ago by Umberto Eco who argued that for Superman to remain Superman, the mythical character we know, he can never really do anything profoundly new.  Every Superman narrative must start over again at a “virtual new beginning” and essentially repeat the story that made him Superman.  If he were to move on from where the story last left off, our hero would be located in time, within a specific continuity, and thus he would begin a process of consumption that could only, ultimately, lead to death.  As a modern myth, Superman is instead meant to be eternal.  Smallville simply delayed this virtual new beginning for more than 200 episodes as the novel events of Clark’s life before he became Superman inched inevitably nearer the globally familiar, 73-year-old myth that is Superman.

As I have written elsewhere, Smallville‘s engagement of corporate property through the indefinite balance of iteration and attenuation has both semiotic and economic implications.  What holds for myth also holds for branding and the maintenance of trademark.  Superman’s story can’t really change much or he is no longer Superman.  As character or property, truly moving forward can lead only to the end.  To avoid this he must instead always start over.  This helps explain the logic of renumbering DC will put into practice this fall.  It is why the feature films continually revisit Superman’s origins.  It is why Smallville could only ever end with where we had already been.  It is why splitting in two would likely be devastating.  Superman is the myth attracting the audience and the property that Time Warner values.  But this value diminishes if his story is not told enough, so the trick is to render him inexhaustible, allowing him to be consumed without dying.

For the second way of understanding the finale, then, recall another set of comic heroes, Calvin and Hobbes, in a strip in which the eminently reasonable Hobbes asks Calvin how he can ever expect his comic books to become valuable if every kid in America is also carefully saving five copies, sealed in airtight plastic bags.  These books won’t be consumed, they won’t be rare, and they therefore won’t gain in value.  Calvin simply suggests, “We’re all counting on the other guy’s mom to throw them away.”

What Calvin implicitly understood was something Michael Thompson had called rubbish theory to explain why the value of some cultural objects is transient while for others it is durable.  Transient objects lose value inexorably from the moment they are first exchanged.  Durable objects, meanwhile, increase in value over time and are perceived to persist indefinitely into the future.

A transient object eventually loses all value.  Everyone (and their moms) will throw it out.  It becomes rubbish.  But its very lack of value suggests the possibility of transformation.  This is the paradox of Calvin’s insight—he knew that only after the comics are considered rubbish could they start to gain in value.  But as Hobbes intuited, such shifts can be riskily dependent on the uncertain actions of others.  Calvin was holding on to his comics to demonstrate they could persist indefinitely into the future even while hoping everyone else would perceive of their copies as losing all value.

Our current moment, as Smallville demonstrates, is characterized by corporate efforts to do Calvin one better.  Not satisfied with the uncertainty of allowing property to become rubbish, hoping it will be revalued, the culture industries are trying everything to instill their textual productions with built-in durability.  If Smallville leaves us where we started, with Superman again, it offers us Superman retroactively reproduced as the afterlife of a decade of the television series.

Thus the significance of the finale’s final reassertion of the property, the brand, and the character:  Clark atop the Daily Planet building, pulling his shirt open at the chest, revealing a red “S” on blue tights (filling the screen with a final realization of the promise obliquely made in the pilot episode’s much reproduced iconic image) while a version of John Williams’ indomitable theme from 1978’s Superman swells and the series ends.  Thus did Smallville finally catch the narrative up to the start of Superman’s story, his virtual new beginning now novel again.

Despite such extreme semiotic efforts to maintain intellectual property, is the revaluing process of cultural production that easy to short-circuit?  In point of fact, of course, value is not a quality of the text per se.  It is a quality the audience gives a text through interactions and social practices.  Durability is the side effect of labor at the point of consumption, around and about the object, the work of watching, that generates value.  Efforts to bypass the audience as the (always uncertain) source of value notwithstanding, the audience and the culture industries remain crucially interdependent.  If Smallville can teach us anything, then, it may be to both admire and shudder at Lex’s metatextual profundity: “We have a destiny together, Clark… only on different sides.”


The ACTA Retreat: Their Ignorance, And Ours Thu, 21 Oct 2010 17:14:30 +0000 Last week the U.S. apparently “caved” on the Anti-Counterfeiting Trade Agreement (ACTA), intended to protect corporate intellectual “property.”  Though only a partial retreat, it’s exciting that the content industries were denied their full wish list of mandatory three-strikes provisions, etc., and will have to settle for a few stocking stuffers like watered-down restrictions on DRM circumvention.

But the intriguing part of this weaker ACTA is:  we’re not exactly sure whom to thank. Canadian professor Michael Geist, tenacious as a wasp in keeping public pressure on negotiators?  The less gung-ho countries who, tired of being Yank-ed around (or perhaps just not seeing what was in it for them), insisted on scaling back the agreement’s ambitions? Maybe the U.S. Trade Representative blundered by pursuing the most undemocratic path available; as James Love suggested, the USTR’s circumvention of Congress may have cost ACTA important legislative buy-in. Or perhaps we should thank “You”—the Time magazine Person-of-the-Year You—for all Your watchfulness and activism.

But no matter to which address we should gratefully ship the Chivas, the ACTA retreat is indicative of a larger crisis in how the policy sphere works today. Specifically: we have no idea how the policy sphere works today.

Once upon a time, it was possible to imagine that we understood policymaking.  There was an official policy sphere comprised of the state (in the U.S., Congress, the FCC, etc.), business, and the public (either public interest groups or individual citizens making their wishes and displeasures known).  Policy emerged from these players working out differences using the (unequal) power at their disposal. To effect policy change was to work through established channels of regulatory authority.

It was never as tidy as that, of course, but the fact remains that today, the legible official policy sphere has been blown all to hell through a combination of new players, differently empowered old players, new technologies for policy, and new technologies of policy.

We also have, importantly, new ignorances. With previous technologies, policymakers may not have understood the technical details but they could usually grasp the basics of the questions they were grappling with, and even some of the implications of those questions.

Today, not so much.  Ted Stevens’ “series of tubes” became a sensation because it was the perfect metaphor for the profound ignorance driving policy today.  The recent Ninth Circuit opinion in Vernor v. Autodesk reaffirms that our policymakers—in this case, judges—are dangerously ignorant of fundamental technological and even legal distinctions. In the other direction, ACTA demonstrates the ignorance of negotiators who, incredibly, believed they could hammer out their agreement in absolute secrecy in this day and age.

But we need to acknowledge our own ignorance of policymaking power as well.  Instead of imagining that we still understand the policy sphere, we need new models, new metaphors for contemporary policymaking. Our old conception of a legible policy sphere won’t cut it anymore.

Some contenders:

The Fraserized Policy Sphere:  Remember how Habermas theorized a unified public sphere for democratic deliberation, and then Nancy Fraser pointed out the existence of subaltern counterpublics?  Maybe that’s what happened to policy: we need to contend with a proliferation of new (or newly visible) subaltern policymaking bodies, from local school boards getting into media regulation, to programmers building policy into their products (“code is law” and all that), to spammers driving policy from the bottom up.

The Networked Policy Sphere:  Borrowing from Yochai Benkler’s own reworking of Habermas, perhaps the better model analyzes networks and nodes of policymaking authority.  Like the Fraserized Policy Sphere but more complex and webby.

The Pains of Policy Stretch:  As discussed by Danny Kimball at the recent Flow Conference, we’re using legacy policy formulated for one set of technologies to govern a new set of technologies, and the resulting legal and regulatory contortions are dislocating a lot of joints.  Maybe we need new regulatory calisthenics to maintain policy fitness, to overextend a metaphor.

The “Spinning Pool Table” Model:  The added complexities of distributed power and technological multiplicity has led to an explosion of unintended consequences, and no one understands where the billiard balls are going, or even where the pockets are.  This is the case in the wrong-wrong-stupid-wrong decision in Vernor, which in the most dramatic interpretation just separated legal transfer from ownership.  That’s what we call a scratch.  How might we begin to establish a new physics of policy so that we can at least regain our ability to estimate the consequences of our policy shots?

I could go on, but the point is that, even if we figure out what really happened to ACTA, we’re left in a state of profound confusion about the range of forces at work in policymaking today.  May those working for the public interest be the first ones to figure it out.

[The photo above is modified from an original by Paul Goyette, released under a Creative Commons Attribution-Noncommercial-ShareAlike license.]


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What Are You Missing? August 15-28 Sun, 29 Aug 2010 14:12:36 +0000 1. Blockbuster will finally declare bankruptcy in September, with the TKO credited to Netflix. DVD sales are also struggling to get off the mat, leading studios to throw their backing behind the upstart video-on-demand.

2. Daniel Engber tackles the “Is the 3-D boom over?” question, and Daniel Frankel tackles the “Is the expensive movie ticket boom over?” question; Patrick Goldstein questions Hollywood’s business model, and David Poland questions Patrick Goldstein; Alex Wilhelm questions why Hollywood is going after advertisers on pirate websites, and Chris Thilk says there’s no question Hollywood should go with location check-in services.

3. indieWIRE profiles indie distributors, Cinematical highlights a theatrical opportunity for filmmakers who haven’t found a distributor yet, Anne Thompson wishes Edgar Wright had gone with an indie distributor rather than Universal for Scott Pilgrim, and Anthony Kaufman wonders what the future of mid-level indie film distribution will hold. Last-minute bonus link: Bill Plympton discusses self-distribution.

4. Paul McGuinness and Robin Millar offer ideas for how to save the music industry, Jac Holzman believes the internet can’t be the enemy, and Tim Anderson says the loss of music retail outlets has been a big blow. But nothing better illustrates the challenge of figuring out how to monetize music today than a wicked diagram of the flow of rights and royalties in the industry.

5. Entertainment Weekly is embracing digital initiatives, while USA Today is stumbling toward them, and many news apps are falling short. Paul Carr considers the possibility there could be ads in our e-books, and Newsweek infographically compares books and e-books.

6. The 8-bit Nintendo Entertainment System is 25 years old this year. Jeremy Signor looks back on those wonderful early days of Duck Hunt and Mario, and Tim Latshaw remembers how exciting gaming was as a kid when you could barely afford it. Kids today will be able to look back 25 years from now on the early days of App TV and digital distribution, playing games online, and playing games for college credit.

7. Facebook was in the news a lot this fortnight, for engineers leaving, a new location service, trumping advertisers, possible censorship, trying to trademark ‘face’, and, oh yeah, that movie. And if you love infographics and Facebook, you’ll be thrilled by this.

8. There’s a new Gawker and a new Digg, plus David (of post-dental fame) has a new gig. We’re still waiting on the new Chatroulette (and Erick Schonfeld worked overtime on the puns to get at what went wrong with the old one), and while the web may be dead, so is everything else.

9. The controversial Park 51 community center project in lower Manhattan has a Twitter account; Joe Pompeo introduces us to the man behind the tweets. If you’d like to track real-time Twitter discussions of such controversies, or search them back for months, you’ve now got Google Realtime to help you out. Twitter can also act as a support group, a social payment system, and a cat rescuer.

10. Some good News for TV Majors links from the past two weeks: One Million More Households, Levitan & Hulu, Emmy Uncertainty, Online TV News, TV For Rent, Indecency Status, Sorry Cable, TV Alternatives Everywhere, British Media Habits, Apple & Google Compete.


Keeping an eye on “Copyright Watch” Tue, 17 Nov 2009 04:08:17 +0000 The beta version of Copyright Watch was launched recently. The site gives users an overview of national copyright law in various countries across the globe. Each entry on Copyright Watch gives a brief overview of the geographic location and borders of the country, whether the country is a member of supranational organizations like the World Intellectual Property Organization or WTO, and currently only a few links to the legal documents which outline recent proposals or changes to national copyright law. Some entries include a link titled “local copyright monitor”. At a glance, the local copyright monitor tends to be an expert or organization that plays a role in commenting or keeping track of recent policy and legal changes or trends in the realm of intellectual property. For example, under the United States entry, the local monitor is recorded as the Electronic Frontier Foundation IP Team.

The site is run by members of the Access to Knowledge community but seems to allow for users to share information about national copyright law on the site once the comments and links are reviewed and approved by the administrators. Copyright Watch seems like it could become a useful resource for gaining an overview of current national IP policies once more information is added to the respective countries. At present, the site reads like a series of Wikipedia stubs but as the project develops hopefully the creators will focus on past law as well as present. Tracing the evolution of “the rules” and linking them to particular temporal, social, technological, and national contexts, which is no doubt equally important to understanding the end point and how we got there.

Though too early to tell, this could be a great resource. Yet, the dealbreaker might actually be the gatekeeping system, who desires to participate, and who actually gets to. In any case, it’s worth watching.