Archive for ‘Intellectual property’ Category
The TPPA signing came and went, as did the nation-wide protests against it. I did not think that the government was going to be swayed from publicly commemorating what it considers to be the crown jewel of its trade-dominated foreign policy, but I had hoped that the numbers turning out to protest would add up to more than 100,000. At least that way the government could be put on notice that a sizeable portion of the electorate were unhappy about the surrender of sovereignty to corporate interests enshrined in the 6000 page text. Alas, the numbers assembled came nowhere close.
One interesting sidebar was the decision to stage a parallel protest at the Sky City complex rather than join with the larger protest march down Queen Street. The specific objective of the Sky City protest was ostensibly to use so-called non-violent direct action (NVDA) and other acts of civil disobedience to block the streets surrounding the gambling complex. In the build up to signing (and protest) day the leaders of the two rival demonstrations publicly debated and largely disagreed on the merits of each. The Queen Street march organisers were concerned that any pushing and shoving at Sky City would feed into the government’s narrative that the matter was a law and order issue (following reports that the police had conducted riot control refresher training and door knocked activists warning them about the consequences of unruly acts). The leaders of the Sky City blockade argued that peaceful marches were simply ineffectual and were ignored by policy-makers. As it turns out, both were right.
The Sky City protesters, some of whom showed up in helmets and assorted face coverings, were forcibly prevented by the Police from effectively shutting down access to and from the venue and surrounding areas. The activists responded by engaging in a series of rolling blockades of major intersections, including the Cook Street on-ramp leading to the Harbour Bridge and Northern Motorway. This continued well after the signing ceremony was over and while the Queen Street march was still in progress. That had the effect of causing gridlock in the Auckland CBD.
Coincidentally or not, there was a bus strike that day. Although Auckland Council allowed its employees to work from home, many other entities did not. That meant that people who normally used buses to get to work had to use alternative transportation, including cars. That added to the number of cars on Auckland inner city roads at the time of the rolling blockades. Needless to say, motorists were not happy with the seemingly random temporary road closures in and around the CBD.
That is why things got too clever. As a tactical response to the police thwarting of the initial action, the move to rolling blockades was ingenious. But that bit of tactical ingenuity superseded the strategic objective, which was to draw attention to the extent of TPPA opposition. In fact, it appeared that the Sky City activists were trying to outdo each other in their attempts to make a point, but in doing so lost sight of the original point they were trying to make. After all, blocking people from leaving the city after the signing ceremony was over was not going to win over hearts and minds when it comes to opposing the TPPA. Plus, it displayed a callous disregard for the motorists affected. What if someone was rushing to a hospital to be with their badly injured child or terminally ill parent? What about those who needed to get to work on time so as to not be docked pay? What about cabbies and delivery people who earn their livings from their vehicles? None of this seems to have factored into the blockader’s minds. Instead, they seemed intent on proving to each other how committed they were to causing disruption regardless of consequence to others.
I have seen this before in other places, most recently in Greece, where anarchists and Trotskyites (in particular but not exclusively) infiltrate peaceful protests and engage in acts of violence in order to provoke what are known as “police riots” (a situation where isolated assaults on individual police officers eventually causes them to collectively lash out indiscriminately at protesters). Fortunately, NZ does not have the type of violent activist whose interest is in causing a police riot. Unfortunately, it has activists who seemingly are more interested in establishing and maintaining their street credentials as “radicals” or “militants” than using protest and civil disobedience as an effective counter-hegemonic tool. So what ended up happening was that the Sky City protestors were portrayed by the corporate media and authorities as anti-social misfits with no regard for others while the Queen Street march was briefly acknowledged, then forgotten.
On a more positive note, Jane Kelsey has to be congratulated for almost single-handedly re-defnining the terms of the debate about TPPA and keeping it in the public eye. As someone who walks the walk as well as talk the talk, she was one of the leaders of the Queen Street march and has comported herself with grace and dignity in the face of vicious smears by government officials and right wing pundits lacking half the integrity she has. I disagree about the concerns she and others have raised about secrecy during the negotiations, in part because I know from my reading and practical experience while working for the US government that all diplomatic negotiations, especially those that are complex and multi-state in nature, are conducted privately and only revealed (if at all) to the public upon completion of negotiations (if and when they are).
For example, the NZ public did not get to see the terms of the Wellington and Washington Agreements restoring NZ as a first-tier security partner of the US until after they were signed, and even today most of their content has been ignored by the press and no protests have occurred over the fact that such sensitive binding security arrangements were decided without public consultation. More specifically with regards to the TPPA, no public consultations were held in any of the 12 signatory states, and in the non-democratic regimes governing some of those states the full details have still not been released. Even so, I do think that it was a good opposition ploy to harp about “secrecy” as it simply does not smell right to those not versed in inter-state negotiations. In any event, what Ms. Kelsey did was exactly what public intellectuals should be doing more often–informing and influencing public opinion for the common good rather than in pursuit of financial or political favour.
I would suggest that opponents of the TPPA focus their attention on the Maori Party and its MPs. The Green Party’s opposition to TPPA is principled, NZ First’s opposition is in line with its economic nationalism and the Labour Party’s opposition is clearly tactical and opportunistic (at least among some of its leaders). So the question is how to wrestle votes away from the government side of the aisle when it comes to ratification. Peter Dunne and David Seymour are not going to be swayed to change sides, but the Maori Party are in a bit of an electoral predicament if they chose to once again side with the economic neo-colonialists in the National government.
For all the sitting down in the middle of public roadways, it may turn out that old fashioned hardball politicking may be the key to successfully stymying ratification of the TPPA in its present form.
Now THAT would be clever.
News that Chinese hackers obtained personal details of 4 million US federal employees dating to 1985, following on the heels of similar attacks on the customer records of private insurance companies and retirement funds as well as the internal email networks of the US State Department and White House, demonstrate that a guerrilla cyber-war is underway. Although it will not replace traditional warfare any time soon, this is the new face of war for several reasons.
First, it does not involve physical conflict using kinetic weapons, which removes direct bloodletting from the equation. Second, it can target critical infrastructure (power grids, water supplies) as well as the command, control, communications, computing and intelligence (C4I) capabilities of adversaries. Third, it can be masked so that perpetrators can claim a measure of plausible deniability or at least intellectual distance from the action. Fourth, it can be used for tactical and strategic purposes and the pursuit of short or long-term objectives.
Much like military drones, cyberwar is here to stay.
The war is not one sided: Russian hackers have penetrated Pentagon email networks and the 5 Eyes signals intelligence alliance has dedicated hacking cells working 24/7 on targets of opportunity. Many other nations also indulge in the practice as far as their technological capabilities allow them. To these can be added a host of non-state actors—Wikileaks, Anonymous, ISIS, among others—who have also developed the capability to engage in electronic espionage, sabotage, data capture and theft.
With the most recent revelations about the hacks on the US Office of Personnel Management (OPM) archival records (which include personal details of active and retired federal employees as well as identities of those who have had or hold security clearances, perhaps including myself given my prior employment by the Department of Defense) an evolution in cyber warfare is now evident.
Previously, most state-sanctioned cyber attacks were so-called “front door” attacks on government or corporate mainframes, servers and networks. The interest was in surreptitiously obtaining sensitive data or installing surveillance devices in order to engage in ongoing monitoring of targeted entities. “Back door” probes and attacks were the province of non-state actors, especially criminal organisations, seeking to obtain private information of individuals and groups for fraudulent use. However, the recent attacks have been of the “back door” variety yet purportedly state sanctioned, and the Snowden leaks have revealed that 5 Eyes targets the personal communications of government officials, diplomats, military officials and corporate managers as a matter of course.
The move to state-sponsored “back door” hacks is ominous. Accessing data about current and retired government employees can be used to blackmail those suffering personal liabilities (debt, infidelity) in order to obtain sensitive information about government processes, procedures, protocols and policy. It can target active and former intelligence and military officials and others with access to classified information. It can target former public officials that have moved to the private sector, particularly in fields of strategic or commercial importance. Likewise, obtaining sensitive personal data of employees working in private firms opens the door to similar exploitation for illicit commercial gain.
Advances in consumer telecommunications have made cyber hacking easier. Smart phones and their applications are considered to be the most vulnerable to hacking. Because many people store an enormous amount of personal data on these devices, and because they often mix work and personal business on them, they represent an enticing entry point when targeted. Yet even knowing this millions of consumers continue to pack their lives into electronic devices, treating them more as secure bank vaults rather than as windows on their deepest secrets. Not surprisingly, both state and non-state actors have embarked on concerted efforts to penetrate mobile networks and hand-held devices. Encryption, while a useful defense against less capable hackers, only slows down but does not stop the probes of technologically sophisticated hackers such as those in the employ of a number of states.
The bottom line is this: the smaller the telecommunications market, the easier it is for cyber hackers to successfully place backdoor “bugs” into the network and targets within it, especially if government and corporate resources are directed towards defending against “front door” attacks. On the bright side, it is easier to defend against attacks in a smaller market if governments, firms, service providers and consumers work to provide a common defense against both “front door” and “back door” hacking.
The implications for New Zealand are significant.
In this new battleground physical distance cannot insulate New Zealand from foreign attack because cyber-war knows no territorial boundaries. New Zealand provides an inviting target because not only is an integral and active member of Western espionage networks, it also has proprietary technologies and intellectual property in strategic sectors of its trade-dependent economy (including niche defense-related firms) that are of interest to others. Because New Zealand’s corporate, academic and public service elites are relatively small and the overlap between them quite extensive, hacks on their personal data are a valuable tool of those who wish to use them for untoward purposes.
New Zealand public agencies and private firms have been relatively slow to react to the threat of cyber warfare. The data they hold on their employees, managers, policy elites and general population is an inviting “back door” for determined hackers seeking to exploit vulnerabilities in New Zealand’s cyber networks. Since many Kiwis are lax about separating their work and private electronic correspondence and records, the potential to access sensitive personal information is high.
New Zealand has been the subject of numerous “front door” cyber attacks and probes on public and private agencies, including an attack by Chinese-based hackers on the NIWA supercomputer carried out in concert with a similar attack by the same source on the supercomputer run by the US National Oceanographic and Atmospheric Administration (NIWA’s US counterpart). New Zealanders have been the targets of numerous “back door” intrusions such as phishing and other scams perpetrated by fraudsters and conmen. Yet successive governments have been slow to recognize the new threat advancing towards it in the cyber-sphere, only recently creating dedicated cyber security cells within the intelligence community and just last year amending the GCSB Act to address vulnerabilities in domestic internet security. But it still may not be enough.
Until New Zealand resolves the problem of institutional lag (that is, the time gap between the emergence of a technologically-driven threat and an institutional response on the part of those agencies responsible for defending against it), there is reason to be concerned for the security of private data stored in it. After all, in the age of cyberwar there is no such thing as a benign strategic environment.
Jane Kelsey’s latest book on trade, an edited collection titled No Ordinary Deal, was launched last night in Auckland. Other launches will follow in Hamilton, Wellington and Christchurch this week before the road show heads to Australia. As a contributor to the book I attended the launch and enjoyed the speech given by another contributor, Lori Wallach, a trade specialist at the US research institute Public Citizen (founded by Ralph Nader in 1971). Lori, who wrote the chapter on the US domestic agenda and approach to the so-called Trans-Pacific Partnership (TPP) negotiations, noted that the model for the TPP is not the General Agreement on Tarriffs and Trade (GATT) but instead the North American Free Trade Agreement (NAFTA), which essentially is an investor’s guarantee agreement rather than one about free trade per se.
In her chapter and her speech, Lori noted that among many other downsides to the TPP, it would exempt foreign investors from domestic regulations in NZ, and should the investor be made to comply with those regulations by court order, the costs of compliance would be borne by the NZ taxpayers in the form of mandatory compensation. She went on to note how local pharmaceutical regulations and control boards would be circumvented in favour of US drug company standards, and explicated the dumping and market monopolisation efforts of US agri-businesses under this type of trade regime. As a sidebar she noted how NZ dairy exports would not appreciably increase to the US under the agreement, as well as the fact that the recent midterm elections have ridden on a backlash against trade because of presumed US job losses tied to it, which means that the possibility of the US ratifying the TPP in the next two years under the new congressional leadership (even if negotiations are concluded, which itself is unlikely) are improbable at best. Her basic premise was that she would not object to the TPP if it were about free trading of goods and services as per the Ricardian ideal. What she objects to is the use of free market rhetoric to cloak cross-border commercial arrangements that are less than free or fair and which contain pernicious costs for smaller national partners and wage labour-dependent consumers in general.
The bottom line is that the TPP is fraught and the public need to be aware of the very large downside to it. It is not a genuine “free trade” agreement in the proper sense of the term. Instead, it is a US-centric investor’s agreement skewed in favour of large (mostly foreign) corporate interests rather than consumers and local producers. Among other topics, chapters (there are 19 in all) explore the impact of the TPP on indigenous rights, climate change, intellectual property, cultural exchange and, in my contribution, security. They are well worth reading, and often eye-opening.
The book is designed to promote informed debate on the matter by offering a critical counter-point to the received wisdom of the policy elites who attempt to sell it as as “win-win” universal good for all involved. As I have noted previously when writing about asymmetric trade, this is a far cry from the truth and carries with it not only the potential for a loss of economic freedom and sovereign control of strategic assets, but also the very real danger of increasing both physical and emotional insecurity in the smaller partners involved in such agreements. Since insecurity breeds fear (be it fear of job loss, fear of environmental harm, fear of forced dislocation from one’s land or cultural roots, to say nothing of fear of physical harm by direct or indirect means), and freedom from fear is considered to be an inalienable human right, the downside of the TPP needs to contrasted againt the supposed upsides championed by those who stand the most to benefit from the deal, and who constitute an elite and often unaccountable minority among the constituencies involved.
More publisher information on the book and the launches can be found at www.bwb.co.nz. An information sheet on the book is here:
No Ordinary Deal
None of these arguments stacks up. All nine participant countries except Vietnam are heavily liberalised, deregulated and privatised.* They already have many free trade deals between them. Who really believes that US dairy markets will be thrown open to New Zealand, or that China, India and Japan will sign onto a treaty they had no role in designing?
No Ordinary Deal
Above all, No Ordinary Deal unmasks the fallacies of the TPPA and exposes the contradictions of locking our countries even deeper into a neoliberal model of global free markets – when even political leaders admit that this has failed.
*The US, Australia, New Zealand, Brunei Darussalam, Chile, Peru, Singapore and Vietnam. Malaysia joined in October 2010.
Distributor: HarperCollins, PO Box 1, Shortland Street, Auckland
The Contributors: Jane Kelsey, Bryan Gould, Patricia Ranald, Lori Wallach, Todd Tucker, José Aylwin, Paul Buchanan, John Quiggin, Warwick Murray, Edward Challies, David Adamson, Geoff Bertram, Tom Faunce, Ruth Townsend, Susy Frankel, Jock Given, Ted Murphy, Bill Rosenberg, Nan Seuffert.
From time to time I read bloggers who complain that there work is stolen by MSM “repeaters” and repackaged under the repeaters’ by-line or in a story under their name. This form of plagarism is hard to prove conclusively because unless the repeater uses phrases word for word, s/he can claim that fortuitous intellectual coincidence rather than malice was involved.
Then I read Kerre Woodham’s column in today’s HoS. The tone is similar to the thrust of my post earlier in the week about the rise and fall of Paul Henry. That’s OK, as a number of people have taken the view that TVNZ management is as much if not more responsible than Mr. Henry for the debacle that his “insensitive remarks” has turned into.
But what are the chances that she and I would both use the phrase “bullet proof” in paragraphs specifically referring to the moment at the Qantas Media Awards when Henry decided he was invulnerable? Since her version appears five days after mine did, is it a wonderful coincidence and example of great minds thinking alike or an example of the type of repeating that other bloggers have complained about? In other words, is this Kerre’s “Noelle moment” or am I reading too much into it and being too possessive of a widely used argument and phraseology?. Readers can compare both essays and decide for themselves.
Either way, I guess I should be flattered–except that she gets paid to write things that I dole up for free.
Just before the end of the university term last year, Peter McCaffrey and ACT On Campus gave the Victoria University of Wellington Student Association an object lesson in how democracy works. They successfully passed a resolution that VUWSA make a select committee submission in support of Roger Douglas’ Education (Freedom of Association) Amendment Bill (making student association voluntary) despite various machinations employed by the VUWSA members and officeholders there. These events were well documented in text by Jenna Raeburn and in video with a ridiculously triumphal soundtrack (irony noted by felix).
The fundamental problem of non-democratic (and poor-quality democratic) political systems is that they shelter those in power from the consequences of their actions. Authoritarianism (and authoritarian communism in particular) is deleterious not so much due to the economic failings of the system (such as the economic calculation problem) as due to the fact that in such systems there exists no mechanism to force, require or even encourage the leadership to act in its peoples’ interest. I’ve written a lot about the power transfer problem of orthodox Marxist pragma, and this is an aspect of it. When the leadership is invested with the monopoly power and authority to suppress a counter-revolution, how do you ever get them to relinquish it?
The effect of impunity is similarly evident in other fields; particularly in commerce, where the customary opposition of the terms “freedom” and “regulation” are little more than straw soldiers in a propaganda battle. Peter Drahos and John Braithwaite have written at length about the extent to which so-called free trade mechanisms such as TRIPS are instruments of international coercion more than they are of international trade, and how almost the entire intellectual property system of the modern world has been so thoroughly captured by existing rightsholders that it now functions as a form of privatised regulation by asserting near-impassable barriers to entry into the information marketplace. This suppresses competition, promotes the establishment and maintenance of cartels between existing participants, and all this breeds impunity, where participants have no (or few) reasons to develop their products and services to suit their users’ needs, and so they develop them to suit their own needs. The results are everywhere; for instance, in the fact that people are compelled to purchase Microsoft software with most new computers although they might hate and despise it, or simply not need it; or in the fact that those same users, having reluctantly purchased Windows since there are no easily-accessible alternatives (those having been shut out of the market years ago by patent thickets, bundling, cross-licensing, and so on) are then locked into using proprietary media formats, players, content distribution and communication systems with (in some cases well-known) surveillance functions and which are designed to restrict a users’ rights to their own hardware, content and communication, so that the system — and users’ participation in it — works in the provider’s interest, rather than the interests of its users.
That example is just one with which I’m familiar. Much more socially and economically important examples exist; particularly around medical development and crop research. But the point is that this whole system, billed as being about “freedom”, does not mean freedom for users so much as rightholders’ freedom from the need to cater to their users without fear of someone else eating their lunch.
Returning to student body politics. When a student union compels fees from its students, and when students who disagree with the union’s agenda are unable to withdraw their support, what incentive is there for the union to represent the interests of the student body? The political consequence of that system is a student body politic so complacent due to impunity in charge of millions of dollars a year in revenue that it literally cannot organise a SRC vote to save itself.
I am no great supporter of VSM; I view the threadbare rhetoric of “freedom” employed by Douglas, McCaffrey and so on with a jaundiced eye. I don’t believe people should simply be able to “opt out” of their society if they don’t like it, and I accept that the loss of revenue which will result from the (almost certain) passage of Douglas’ bill will place much of the genuinely good work student unions do in jeopardy. But the integrity of political systems is more important than discrete policy outcomes, and to be perfectly frank VUWSA, for its rank incompetence and duplicity in the face of legitimate challenge, deserves to be humiliated in this way.
I hope that the lesson about how democracy works will be well understood — that is: unless people make it work, it doesn’t. CSM as currently implemented promotes apathy and idiocy in student body politics, to a greater extent than it would exist in any case. That is bad for student body politics, and it’s bad for students. It depresses the quality of candidates and policy, and reduces the system to a comic farce which many students are justifiably ashamed of (if they care about it at all). Much better, for me, would be the the genuine politicisation of student politics, with groups organising and campaigning on their positions, winning a mandate and executing it, as in national and local body politics. If ACT on Campus want to campaign on “letting you keep more of your money”, let them do so, and good luck to them. (Of course, they have been, and it hasn’t been working out for them, so the parent party has resorted to regulation in the name of freedom. Plus ça change.)
So in my view the current threats to compulsory student unionism is largely the fault of the student unionists and their sense of entitlement to membership dues without the need to prove the value of their work to those who pay for it. The Douglas bill, while it will likely prove deleterious to the good work student unions do, may have a silver lining in that it will enforce greater discipline and competence upon student politicians, and require them to prove to their constituents that the work they do is actually valuable in order to win a mandate. If the work they do is genuinely valuable, as they say it is, such a mandate should be winnable. May they go forth and win it.
Postscript: Go and submit!
I was not going to post on the Witi Ihimaera plagarism scandal, having commented under my own name on another blog that covered the matter. But as I compare my summary dismissal for writing a rude email to an unqualified and underperforming student with the lack of even a cursory reprimand for his theft of intellectual property, and then find out that apparently it is not the first time that Mr. Ihimaera has appropriated someone else’s work as his own, I find myself wondering if indeed there is a double standard at play when it comes to our respective treatment by my former employer. Let me explain why, but first point to the one consistency in the handling of both cases.
The University has, as part of its collective contract with the union representing academic staff, a series of procedures and regulations that have to be followed before an academic staff member can be dismissed for serious misconduct. This includes receiving a formal complaint detailing the misconduct, attempting to mediate the matter using the offices of the Ombudsman, handling the matter within the department, issuing two formal written warnings before dismissal is sought…the requirements are pretty detailed and in fact were made even more so after my dismissal precisely because of the controversy surrounding it. Perhaps Mr. Ihimaera is not a member of the union so other procedures were followed, but that usually mitigates against favorable resolution for the employee.
In my case none of the internal procedures were honoured other than as a facade. No formal written complaint was ever made against me, but without getting my side of the story the Ombuds(person) immediately brought the issue to the attention of my department HOD, who without saying a word to me passed it on to the Dean, who after consulting with the student as to what should be done held a series of brief meetings with me and a union rep in which he shrugged off my apologies and assurances, ignored the fact I had no prior formal warnings, and sent me packing. In fact, he and his HR advisors attempted to use a couple of unrelated events from the past (an argument with a former HOD about managerial practices and an email disagreement with a colleague about a grad student who failed to attend a class) to argue that prior warnings had been given. Those were later found to be irrelevant by the ERA.
In Mr. Ihimaera’s case it appears that, upon hearing that news of the plagarism was about to go public, the University rapidly pushed through an “investigation” of the matter apparently involving his HOD, the new Dean of Arts (who was not the Dean the fired me) and Mr. Ihimaera. No disciplinary board with colleagues outside of the HoD and Dean was apparently convened. Mr. Itimaera gave apologies and assurances, and the case was closed.
What is consistent in both cases is that the lengthy rules and procedures for handling discipline cases involving academics were circumvented, in his case favourably to him and in my case not. This galls me not because I think that Mr. Ihimaera should be fired–I do not, and think that both of us should have received a final written reprimand about our respective transgressions–but because the University argued that I was fired because of the damage I did to its reputation. This line of argument continued after the dismissal was found to be unjustified, then into the settlement agreement by which formal reinstatement meant no actual reinstatement. But what about my reputation? Not only did the leaked email wind up on the front page of the national newspaper and then went global, but the University did nothing to prevent its release or demand its withdrawal when a student newspaper under its authority first published it (even though leaking the email was a violation of the email policy under which I was ostensibly fired). Moreover, the University knew well what the impact of the dismissal would be. As the Dean who fired me said to the ERA, “in a reputation-based business like academia, summary dismissal essentially means the end of a career.” In my case that seems to be proving true, and perhaps it was that knowledge that made for lighter treatment for Mr. Ihimaera–but I suspect not, simply because his association with academia was one of mutual convenience rather than professional necessity.
My major question is, if what I did was so injurious to the University reputation, what about Mr. Ihimaera’s plagarism? Plagarism is the single worst thing that an academic can do. Working in a genre such as historical fiction does not excuse the lifting of other’s words. Plus, being housed within an academic institution means adhering to its requirements on original work, so he was, in fact, more duty bound than independent writers in that regard. Students get failed and often expelled for plagarism. Academic staff get demoted or fired for plagarism. And Mr Ihimaera did not even merit a reprimand? Now, it seems that the case gets worse, as others have come forth to claim that Mr. Ihimaera has plagarised in his previous work. If so, and if the University knew about those previous incidents, then its absolution of the latest episode is even more alarming.
The University and Mr. Ihimaera say that his plagarism was “inadvertent” and thus excusable. Even if that were true–and it stretches credulity to think that a famous author would not know the difference between his own words and sentence structure and those of others– standard guidelines on plagarism, including those specifically used and distributed by the University to students and staff, state that inadvertent or unknowing plagarism is no excuse for it. It is the author’s responsibility to ensure his/her work is original and properly cited, and the crosses all academic fields and intellectual genres.
Some have claimed that because Mr. Ihimaera is Maori, famous and gay, he got off lightly. I initially thought that was ludicrous and that there were other mitigating circumstances at play. But the more I learn about the case and think about the differences in our treatment, the more I wonder as to why those differences. Certainly universal institutional standards need to be upheld over and above the specific identity and interests of any individual. That is what the University claimed in my case. Yet, was what I did worse than plagarism? Did my email to an individual student cause more damage to the University than the discovery by a book reviewer in a national magazine of the as of then unattributed passages in Mr. Ihimaera’s latest book? How can he not even receive a reprimand, and how can the University claim that in both cases its standard rules and procedures were followed to the letter?
The real shame is that it is not my actions or Mr. Ihimaera’s that have tainted the reputation of the University. Instead, it is playing loose with the rules and attempts to “spin” both stories in a way that gives the illusion of procedures being properly followed that sullies the brand. That has a negative impact not only on the managerial cadre that are the perpetrators of the double standard but also the staff, alumni, current and prospective students who share association with the University name. Yet, instead of being ashamed and contrite, University managers continue to obfuscate and bluster, refusing to reveal how their “investigation” of the Ihimaera case was conducted citing privacy concerns (concerns they were not so concerned about when my email went public). It appears that management are blissfully unaware that the ship is sinking beneath them or else are confident that no matter what they do, they will not be held to account by anyone other than themselves. Since the taxpayers ultimately pay the salaries of all involved, that should be a matter of public interest.
This morning’s Insight documentary on NatRad
Kim Griggs’ journalistic technique is fine – she’s talked to the major stakeholders, given both sides of the story and generally done very well at covering the issues. But she’s labouring under a delusion about what copyright grants. Specifically, she says:
My emphasis. But there is no copyright law anywhere which grants creators a right to get paid – all they have is the right to control the exploitation of their work, and if they can turn that into payment, then good on them. In the documentary John Key also makes this error, conflating “compensation and recognition” into the right to get paid.
It’s this false idea – that copyright owners have an inherent right to be paid regardless of how broken their business model might be – which prevents the development of better business models which mean they don’t need to treat their customers like the enemy in order to make money. Even the copyright lobby accepts this; they’re just so far behind the curve that their old models have failed before their new models are even off the drawing board. Of course, if they want to keep applying the stick, rather than employing the carrot, that’s their right.
Edit: Kim Griggs has emailed me to outline her extensive experience and expertise in the copyright industry in NZ, and Pippa makes many of the same points in a comment. On that basis I have apologised to Kim for the statement above about her expertise, and for suggestion she was fooled by the copyright lobby.
Nevertheless, my broader criticism stands: the statement I highlighted is wrong in fact and is unhelpful to the cause of reasoned debate because it blurs issues around economic rights, moral rights, contract law and industry practice into a blank statement that copyright == money.
I’ve offered Kim an opportunity to put her case here, if she chooses.
Swedish company Global Gaming Factory X claims to have bought The Pirate Bay, in a press release declaring the acquisition. At the same time, they purchased Peerialism, which has developed “peerialistic” content-sharing models; new models which keep content-owners as happy as consumers. Or so they reckon. The purpose of the acquisition appears to be a move away from a content distribution model of questionable legality and toward a “third way” model of sorts.
I don’t know how credible this all is; there’s no indication on the site that anything has changed. But if the news is legit, it is a major blow to the free content movement and the agenda which opposes rampant corporate control of information (about which I have written before). It could show that the fiercest ideological outlaws, people who have laughed in the face of legal and financial threats for years, are motivated by money after all. It also shows, perhaps, that losing a major lawsuit isn’t always a bad thing: it’s hard to see TPB, which has virtually no staff, assets or anything other than brand recognition being sold for SEK60m (NZ$12m) before the lawsuit and its Streisand Effect.
Edit: It’s now official, though they use the word “might” in a way the above-linked press release doesn’t.
Despite the price tag, that’s apparently not the point:
They also roll out a good lick of market-libertarian rhetoric in their favour:
Just a bit too pat. My skepticism about their motives stands.
Although I never got around to doing the follow-up post on the political-symbolic aspects of the Pirate Bay case (for which you can all blame my baby daughter), one of the consequences of the guilty verdict I considered has come to pass: the Swedish Piratpartiet has won a seat in the European parliament, gaining more than 7% of the vote in Sweden.
How much change they can make in that bureaucratic behemoth is another matter but their election as a Streisand effect-like result of the Pirate Bay verdict which gave them an immense boost in public profile, shows that this is a political issue with teeth.
Posted on 21:32, April 18th, 2009 by Lew
I’m very interested indeed in the roles which intellectual property mechanisms play in the world. This verdict has complex and possibly profound political, social, technological and economic implications. I won’t argue its legal merits, but, despite their claims, I don’t think this case or verdict is in the content owners’ best long-term interests, because it perpetuates a business model which has been proven unfit for its purpose.
Social and political implications
Online media consumption (sanctioned and otherwise) is largely the domain of the two generations born since the baby boom – quite distinct from those in control of the legal, business and political systems which produce that media and constrain its usage, who are middle-aged and older. There exists a significant disconnect between these generations, and the Pirate Bay verdict seems like it could crystallise that disconnect into an outright generational divide along political and philosophical lines. Those in their thirties and forties have been heavily involved in shaping the internet into the phenomenon it is, nurturing fledgling technologies (including filesharing) to meet their own needs and building cultures and identities around different types of participation. It’s theirs; they created it. The generation now in their teens and twenties have known nothing else, and they are the driving force behind its constant recreation, and are if anything even more strongly engaged. The content industry is currently trying the ‘stick’ approach – trying to dictate terms to two generations who’re used to having things their way and are more than capable of making it so. As those generations displace their pre-internet elders, and as the developing world begins to participate more strongly in traditionally-Western information communities, content owners will find themselves less able to dictate terms, not more so. Those in charge of intellectual property realise this and have been busy over the past few decades establishing and extending copyright, patent and trademark systems, conditional trade treaties, anti-circumvention legislation, privacy infringements under the guise of cyber-terrorism prevention, and other such measures under the auspices of TRIPS, the DMCA, the PATRIOT Act, IPRED and plenty of lawsuits, including this one – all in order to retain their existing, inferior business models rather than be forced to compete on the open market of ideas in order to develop better ones.
There are political implications for all of this, as well – the Pirate Party of Sweden, formed to reform copyright law, abolish the patent system and strengthen privacy rights, claims to have gained 3,000 new members in the seven hours following the verdict, giving it a larger membership than four out of seven current parties in the Swedish parliament (and if their online membership graph can be believed, it looks like they were up above 5,000 new members within 12 hours). Candidate Christian Engström said:
“The ruling is our ticket to the European Parliament,” concluded Engström, who expects a populist backlash against the ruling to help his party’s chances of gaining a seat in the EU’s primary legislative body. [source]
Now, single-issue parties have a particularly hard row to hoe (even TPB’s Peter Sunde doesn’t vote for the Pirate Party), and in terms of realpolitik few countries can afford to deviate from the intellectual property line established by TRIPS. Nevertheless there are big philosophical issues at stake here. Politicians ignore those two generations at their peril.
Technological and economic implications
If The Pirate Bay shuts down, it’s certain that something else will spring up in its wake, of course — just as The Pirate Bay appeared in the wake of the closure of other, more “moderate” services.
Content owners, by enforcing the discipline required to survive in a hostile environment, are granting clandestine distribution systems an enormous advantage: those systems evolve and improve while their own system stagnates. There are a few exceptions: Radiohead and Trent Reznor are at the forefront.
Of much more grave seriousness, however, is the chilling effect this verdict could have on the internet – search engines, ISPs and end users. Roger Wallis, Emeritus Professor of Media at Sweden’s Royal Institute of Technology (and an expert witness for the defence) warned:
This will cause a flood of court cases. Against all the ISPs. Because if these guys assisted in copyright infringements, then the ISPs also did. This will have huge consequences. The entire development of broadband may be stalled.
His point is that TPB’s technology meant their servers never hosted copyright files – those were hosted on its users’ home computers, and TPB simply provides a search engine to find content and a service which tells one user’s computer where to find files hosted on another user’s computer. If that makes one criminally liable, then those who are doing the actual distribution (te end users) and a whole lot of other people and organisations whose computers provide similar assistance including search engines and ISPs, are also criminally liable – and could even be more culpable than TPB were, since those computers actually host and distribute the copyright files themselves. Due to the highly robust, distributed, fault-tolerant nature of modern content-distribution systems made fit by nearly a decade’s worth of fine-tuning, there is simply no way to beat filesharing without targeting end-users and ISPs on a case-by-case basis. Any reluctance to roll out or use broadband internet services will have catastrophic flow-on economic effects, and given that media consumption is a major driver of broadband, content owners are in a catch-22 situation: either they aggressively prosecute ISPs and end-users or they fail to beat filesharing. In the former case, they get to keep their business model, at the cost of making criminals of their consumer base and ensuring that yet more complex, robust and powerful distribution mechanisms are developed – and possibly at the cost of the internet as we know it. In the latter case, they have to develop systems which are fit enough to survive on their own. The longer they delay, the harder it will be.
An upcoming post will look at the battle for hearts and minds which will fundamentally determine the winner in this contest.