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.
I’ve been following Speak You’re Branes for a while, since a mate linked me to it, and it is made of win and awesome. We need a blog like it in NZ.
There’s an interesting range of responses to the Tony Veitch guilty plea of reckless disregard causing injury to Kristin Dunne-Powell, his conviction and sentence to a fine and community service.
Some are baying for blood. The KBR aren’t quite unanimous that he should go to jail, but they’re close (though there is a foul stench of `men have rights [to kick the shit out of people who don't behave]‘ as well). Haiku Dave is particularly grim:
Idiot/Savant is arguing it’s Bruce Emery all over again (and he’s not wrong). Commenter Alison at The Hand Mirror shows some sense, figuring that if prison isn’t a good thing for a random violent offender, it’s not going to be a good thing for Veitch either. Heather Henare, of Women’s Refuge, is similarly cool-headed. The Herald’s Your Views is divided, as are the talkback hordes. A particularly inspired friend and colleague of mine suggested he be made to front the ACC back injury ad campaign, needing to stand on a rickety chair or somesuch in order to reach something up high. Humiliation comes in many forms.
Judge Doogue told told Veitch he was the architect of his own misfortune, and I think that if he does genuinely intend to take legal action against the media for their treatment of the case this past year, then Tony Veitch will also become the architect of his own humiliation. The facts of the case are fairly simple: there is no possible justification he can give for his attack on Dunne-Powell, no argument he can make which will put him on the side of right, and any moral high ground he tries to occupy will come under sustained fire from more sources than he and his team of lawyers can possibly afford to shut down because public sympathy toward celebrities evaporates pretty rapidly when they are seen to be taking advantage of their celebrity status. At this point anything Tony Veitch says or does will play against him. If he tries to smack down the media establishment, any publisher who chooses to fight gets the chance to put the whole stinking mess on the public record. Tim Pankhurst, if he were still editor of the Dominion Post, would pick it up in a moment out of sheer bloody-mindedness. Veitch might be planning to go back to work for The Radio Network, and that might mean APN goes easy, but that’s a great risk to them – while NewsTalk ZB and Radio Sport might not need to demonstrate their lack of fear or favour, the NZ Herald surely does.
My advice to Tony Veitch: keep your head down and take your lumps like you made Kristin Dunne-Powell take hers [though you deserve yours, and she didn't]. If you want to show us you’re better than we think you are, there is no short-cut, no easy atonement which you can buy or create from words or gestures. You can’t fix this by becoming a legal bully as you are (or were) a physical bully. If you genuinely want to be known and recognised as a good and righteous person, then the time to undertake good and righteous action is now. For your own sake if for nobody else’s.
In the comments thread on my earlier post about whether the US was in decline, as well as in the comments thread on Obama’s Prague speech over at kiwiblog, and during an interview on Jim Mora’s show, I found myself correcting people with regard to US strategic doctrine. That got me to thinking about Obama’s promise to pursue global denuclearization. I decided to write up my thoughts as this month’s Word from Afar column at Scoop: http://www.scoop.co.nz/stories/HL0904/S00148.htm. The bottom line is that there are many reasons to believe that the promise, while apparently sincere, has many obstacles to overcome, and not all of them are located in Iran or North Korea.
I had prepared a thorough response to Chris Trotter’s Fiji Agonistes post, and was going to wait a few more days to see whether he reposted it on Bowalley Road before publishing it. Now Chris has saved me the trouble by redacting his post with an apology of sorts. Kiwipolitico is not the place for perpetuating such disagreements, and so I’ll leave it be with a few final words.
I remain a bit disappointed that Chris hasn’t bothered to engage with my previous critiques, and I agree somewhat with Lurgee’s assessment that he’s been dickwaving to try to gain status as “the alpha-male of the leftish bloglands”. While I was indeed furious enough with the personal attacks* to come out blazing against them, I was not behind the redaction; that’s Chris’ own doing. So, Chris, thank you – and while nothing is forgotten, I appreciate your good sense in this matter.
*The `kupapa Pakeha’ attack was the most offensive, and I can’t let it go unmentioned. I’ve heard that one before – a man with a bald head and steel-capped boots in Molly Malone’s once called me a `race traitor’ on account of my wearing a Tino Rangatiratanga hoodie. Not very progressive, that.
Although it may not seem likely on the face of it, there are some significant similarities between the political situations of Fiji and Thailand. To understand why, we must start with some background and definitions. Fiji and Thailand are modern examples of praetorian societies. Prateorian societies are those in which social group and political competition occurs in non-institutionalized fashion. Rather than use mediating vehicles such as courts, parliaments, collective bargaining and the like, inter-group competition assumes direct action characteristics: street demonstrations, riots,strikes, lockouts, blockades, and outright physical conflict. This can be due to the failure of such institutions to accommodate social group and political competition within established boundaries of rules and procedure, or it can be due to social and political group disregard for the institutions themselves. Where institutions such as parliament and the courts still function, they tend to microcosmically replicate the zero-sum approaches of the society at large: dominant groups manipulate the system to their own advantage and use it to punish their opponents. In turn, opponents attempt to wrest control of state institutions for their own gain. Compromise and toleration of difference are lost in the struggle.
The reason social praetorianism occurs is that there is not a shared majority consensus on the political “rules of the game.” This can be due to the lack of ideological consensus or disenchantment with the system as given. Either way, it spells trouble in the form of political and social instability. As a reflection of the surrounding society, this gives rise to something known as military prateorianism. Taking its name from the praetorian guard of Roman emperors, who were said to be the makers and unmakers of kings, a praetorian military emerges as the dominant political actor in socially praetorian societies by virtue of the force of arms. It s the default option given generalized institutional failure, and as such is characterized by an internal (rather than external) security orientation, high levels of politicization and a strong interventionist streak.
There are two types of praetorian militaries: arbitrator (or mediator) and ruler. Arbitrator military praetorians assume control of government when civilian institutions break down, but do so only to re-establish the constitutional order and provide the law and order that gives civilian actors the time and space to re-establish a consensus on the rules of the political “game.” They usually enter into power via relatively peaceful coups and set themselves a non-partisan agenda as well as a specific timetable for withdrawal from government. The point of the intervention in the political system is to stop political bickering and re-establish the institutional bases of civilian rule.
Ruler military praetorians have no such limitations. Often emerging in the wake of repeated attempts at military arbitration between competing civilian groups, the ruler military has no timetable for withdrawal and a political, social and economic agenda of its own. They tend to be more violent than their arbitrator counterparts, in no small part because they see civilian society as undisciplined and chaotic and civilian politicians as venal, self-serving and corrupt. The modern archetypes were the military-bureaucratic regimes of Latin America in the 1970s, the Pinochet regime in Chile being the most notorious of them. They tend to hold power for a half decade or more in order to transform, via the use or threat of force, the basic socio-economic and political parameters of the praetorian societies in which they are located. When they withdraw, they do so under rules of the game they set down for their civilian successors.
Thailand has oscillated between periods of arbitrator and ruler military rule, interspersed with numerous failed attempts at democratic governance. In the current political crisis, the pro-royalist “yellows” (of airport blockade fame) and pro-government “blues” are vying with anti-government “reds” (of ASEAN summit cancellation fame) to vie not so much for democracy (which is what they all claim) but for the favor of the Thai military when it finally steps back into power. The yellows are more elite and middle-class in social origin, whereas the reds are lower middle and working class in composition, so the historical odds favor the yellows (the blues are a cross-section of party loyalists of the current Prime Minister, disaffected yellows and hired thugs). But with an ailing King and more reds than yellows taking to the streets, the military may be swayed away from its traditional pro-royalist stance in the interests of securing majority support for a reformative coup. If this analysis is correct, it implies the inevitability of another Thai coup, most likely leading to a ruler military regime that embarks on a program of political reform that breaks with the partisan lines of the past. Given that it confronts a significant Muslim insurgency in the south of the country that has links to similarly-minded insurgent groups in the Philippines, the Thai military will be loathe to be drawn into politics and will only do so if the present levels of social praetorianism threaten to escalate into unacceptable levels of violence that challenge its monopoly of organized coercion within the territorial limits. It is for the Thai civilian elite to prevent this from happening, and so far they have shown no inclination to do so.
The Fijian military has repeatedly intervened in the country’s politics over the last two decades, and the Bainirarama regime is no exception. Fiji’s social praetorianism stems from the conflicts between indigenous Fijians and Indo-Fijians, a conflict that has socio-economic class as well as ethno-religios and linguisitic characteristics. Its civilian political elites have proven incapable of achieving consensus and have a strong penchant for corruption and nepotism. Thus the military sees itself as the “saviour” of Fijian society. With this latest “coup-within-a-coup,” (see Lew’s post immediately below) the Fijian military praetorians appear to be moving from an arbitrator to a ruler role, perhaps because they believe that the country is nowhere close to consensus on a reformed and reconstituted rules of the political game. I have written previously (“Bullying Fiji Part 2: The Inside Game”) some of the reasons why this may be so, but the larger point is that it appears that no amount of pressure from New Zealand or Australia will alter the conviction of Commodore Bainimarama and his colleagues in the Fijian armed forces hierarchy that it is in the country’s best interests to prevent a Thai-type scenario from developing. The UN may be able to exercise some pressure in curtailing Fijian military involvement in multinational “blue helmet” operations, but even then, with Russia and China on the Security Council, the likelihood of passing resolutions authorizing this form of sanction on Fiji for what is an internal matter is, to say the least, unlikely.
The are two dangers to ruler militaries, one specific and one general. The longer leaders of ruler militaries stay in power, the more enamored of the perks of the position they become. Whatever their good intentions at the onset, they tend to become increasingly despotic over time, losing sight of the original project in order to concentrate on their personal fortunes. That increases resentment against the regime and factionalisation within it, which essentially returns the praetorian situation to where it began. Moreover, the longer a military is in power, overseeing civilian ministries and involving itself in politics, the less its leaders are maintaining and honing their war-fighting command skills. This may not be an issue for a country without enemies, but for countries with internal or external threats, the erosion of a war-fighting capability strikes to the heart of the military raison d’etre and emboldens adversaries of all persuasions. Put another way, to remain in power is to lose war-fighting capability, and to lose war-fighting skills (including command skills) is to invite attack. This is especially true for the Thai military, but even the Fijians need to consider this given their regular deployment of troops to foreign conflict zones under UN mandate.
The final problem is that whether the military intervenes or not, and whether it does so in arbitrator or ruler guise, on-going situations of social praetorianism is the key element leading to state failure. One only need look at the recent history of Afghanistan, Somalia and Pakistan to understand the implications.
Lesson 1 for everyone:
The Fijian Court of Appeal has ruled that Frank Bainimarama’s coup was unlawful and that he should be removed from his position as the head of the interim government and replaced with an “independent person” appointed by the President. (No Right Turn has more.)
This is complicated. A few implications I can see (Pablo can probably do better than I, and anyone is welcome to suggest more):
Geopolitics is a funny beast. Everyone who’s honest with themselves has known this all along – but it’s taken a panel of Australian judges stating the obvious to pull away the fig leaf and (presumably) force a response.
Edit 20090415: Too much has happened over the long weekend for me to write cogently about given the other things I need to do this week, so I’ll refer yous to the excellent Idiot/Savant, with whose judgements I mostly agree on this matter.
Axe bounces off ministers – Tracy Watkins, The Dominion Post
Nice and cynical, that’s what we like. Pity it’s attached to something so trivial.
This blog is almost becoming Kiwipoliticoh, since given my limited time at present I’m having to pick my battles.
I’m pleased Chris Trotter has come to terms with his inner racist. His characteristically torrid column is basically a rehash of the bogus arguments I discredited here, which Chris has apparently not bothered to read, much less answer the questions I pose in it. His latest column makes explicit what I wrote in the first post on the matter and discussed in more general terms in another post – that people pick an ideological side on matters like this and employ whatever post-hoc rationalisations they need to convince themselves of that position. I freely admit I’ve done the same in this h debate – to me, as to most, it just seems obvious which side is in the right, and that’s a sure sign of ideological knee-jerk. The difference is that my position has some weight of philosophical and legal precedent and linguistic and geographic fact behind it, not just settler ideology.
The column is not pure rehash, though – it’s got some new hash thrown in for good measure, and none of it any more useful than the first lot. It is the canard that by changing a European name back to a Māori name the former is somehow “obliterated” or “expunged” from history. The very examples Chris gives to support this absurd contention disproves it, and moreover it shows the naked settler racism of the position.
Names are important, and to his credit Chris does not succumb to the smug `haven’t those maaris got more important things to worry about’ rhetoric, hoever he over-eggs his pudding a bit here. If, on its own, changing a name genuinely did obliterate and expunge it from history and this was a necessarily bad thing, then Chris ought for consistency’s sake to form a club to protect Beaulieu, Bewley and Baldie Roads, in danger of being so obliterated and expunged by the nefarious newcomer Bowalley Road. The fact is that those names have not been lost – they have faded from common usage but remain a part of the fabric of local culture, to be remembered and celebrated, as they are. If the change goes ahead, nobody except the fearmongers such as Trotter and Laws are suggesting that all historical references to Wanganui be struck from the records, or that a great terminology purge be conducted. The name and the fact of its usage for a century and a half will stand in the documentary record, as it ought to. The generations currently living here will mostly go on using Wanganui, and even many businesses will not bother to change their stationery, out of a dogged loyalty to the identity or out of simple inertia.*
Instead of mourning the loss of Beaulieu, Bewley and Baldie, Chris lionises the upstart Bowalley Road in the very name of his blog. This reveals that Chris accepts that some names have more intrinsic value than others, and on this point I agree with him. Where we disagree is on the basis by which we determine which of an exclusive pair of names should take precedence over the other, a simple matter of logic which I covered in the first post.
Now for the racism: having accepted that some names have more value than others, and having chosen to privilege the colonial name over the traditional name, Chris and others like him essentially say “the settler tradition is more valuable and important than the Māori tradition”. If the case were a marginal one, or if there were two equal competing claims, this would be fair enough – I’m not suggesting that all or even most names ought to be Māori names by right – but in a case where there is a clearly and obviously correct name which isn’t being used in preference to a clearly and obviously incorrect name, the implied statement changes from “the settler tradition is more important than the Māori tradition” to become “settler mistakes are more important than the Māori tradition”, which is much more pejorative. It essentially says “our ignorance is worth more than your identity”, and that, right there, is colonialism in a nutshell.
The battle will be an fierce one, and the troops are massing. The NZGB has signalled that numerical advantage – `preponderance of community views’ – isn’t enough to prevent the change, but it also grants significant weight to those views. In a bald attempt to strengthen their crude majoritarian argument before the NZGB, the Wanganui District Council (which, oddly, will not have to change its name even if the city name changes) has decided to seek a legal opinion on the NZGB’s decision, and to hold another referendum on the spelling of the name. As if there is such a thing, they plan to “conduct a neutral information campaign” on the matter beforehand, though it isn’t clear how they plan on ensuring even a fig-leaf of neutrality – will the council (who voted against the change) argue the sans-h case while Te Runanga o Tupoho (who brought the petition to the NZGB) argues the h case? Will the council pretend it can be neutral on this matter? And what is the purpose of an information campaign anyway, when they, better than anyone else, know that this isn’t a matter of logical, dispassionate assessment of facts and history – it’s a matter of picking sides. I watch the carrion birds circling with interest.
* Incidentally, the Wanganui Chronicle had a good laugh at itself and its readership on April 1 with a front-page story announcing that the name would be changed to the Whanganui Chronicle. Good on them! A few days later the editorial apologised to all those who had been taken in, saying that they’d thought the story too absurd to be believable.
Posted on 22:11, April 3rd, 2009 by Pablo
In my professional life I read as a matter of course the debates about so-called US “hegemony” and whether or its “liberal” view of its role in international affairs will continue for the forseeable future (in this context “liberal” refers to the American idealist tradition of trying to re-make the world in its preferred image, whatever that may be. It is an overarching view that supercedes neo-conservative, neo-realist, constructivist or institutionalist approaches to the international engineering project). I think that the issue is worth consideration by a broader audience.
Some believe that, as the sole military superpower and core economic cog in the global system of finance, production and exchange, the US, albeit over-extended by the military adventures in Iraq and Afghanistan and beset by its financial market melt-down, remains unassailable in its position of dominance in world affairs and will continue to be so for at least the next 30-50 years. If anything, the debacles of the W. Bush administration are seen to have taught US political elites the need for a more sophisticated, broad based approach to both foreign policy and state regulation of markets as well as domestic political representation, all of which have their crystalisation in the presidency of Barack Obama. For this view, the American capacity for self-renewal in the face of adversity is boundless, which is why it will continue to dominate world affairs in the 21st century.
Others think that the US century has past, and that the emergence of China, in particular, spells the end of its hegemonic position in the world. There is still a decade or more to run before it is eclipsed by the PRC, but in this contrary view the US’s days as the pre-eminent international actor are numbered, particularly given the emergence of other powers (India, Brazil, Russia, the EU, perhaps Australia, Iran and Turkey) and US inability to curb its consumption, dependence on fossil fuels and adherence to nationalist-conservative ideologies as the bulwark against the “socialist” tendencies of Obama and his purported ilk. Mired in arguments about gay marriage and abortion, viscerally fearful of (dark-skinned) immigration, beset by domestic “culture wars,” the US is seen as a self-absorbed, narcissistic giant about to be toppled by a global community sick and tired of its arrogance, ignorance, bullying and meddling.
I am of two minds on this. For all its military misadventures the US can still do what no other country or combination of countries can do when it comes to projecting force. Guerrilla wars may bog it down but will never threaten its core interests. Likewise, although its economy is stagnating, it still dwarfs any other regional, much less national market and still has a dramatic repercussive effect on all other markets in the global commodity chain. It may be somewhat bowed, but it is as of yet unbroken.
On the other hand, its cultural vacuousness, its myopia, its clear signs of decline on all fronts relative to a decade ago suggest that the US is, in fact, slipping from the position of superpower to that of just another major power amongst others, and that it can do nothing to prevent the international system moving from the the unipolar configuration of the immediate post-Cold War era to something that although as of yet unclear, will certainly be multi-polar in a decade or so.
Which leads me to ask three questions: 1) at the point that the US feels itself being eclipsed (should that occur), will it wage a last ditch war (or wars) to prevent that from happening, and if so, will these conflicts go nuclear (which is where the US arguably has its most decided military advantage in terms of delivery platforms as well as array of warheads)? 2) will the world be a better place in the event that it does cede its preeminent role to rising powers? 3) what is the “proper” class, environmental or otherwise “progressive” line to take on this?