We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

What’s going on with Facebook?

Over at Libertarian Home, Simon Gibbs (who is the proprietor of Libertarian Home) asks:

I’m asking you a question: have you been tuning into these pages and what do you think is going on? Are some of these legit targets based on some criteria of public safety that you feel is valid? Or are they legitimately operated venues of dissenting opinion which is being squashed?

“These pages” being a list of pages which a certain Justin Harvey (commenting on a Facebook posting) says have been taken down, by Facebook.

I have only very recently plugged myself into Facebook, and have so far only lurked. I have posted nothing. Facebook is useful to me for keeping track of the doings of a few actual friends of mine (this one in particular), but otherwise I find it confusing. They keep nagging me to stick up a picture, so that my “friends” can know that I am really me, but my actual friends know this already.

Besides which, whatever combination of rumour and fact it is that Simon Gibbs is asking about make me think that if Facebook really, really wants me “to take a few moments” to update all my info, they can take a hike. The regular question with which Facebook confronts me whenever I open it, “What’s on your mind?”, feels downright creepy, given what I am coming to believe about the utter duplicity of Facebook’s masters and commanders, wanting, as they seem to, all the privileges but none of the obligations both of a common carrier and of a freelance publisher.

But what does our Commentariat think? I am not so concerned about the mere experience of using Facebook. Nor am I now asking about privacy. It is Facebook’s political biases that I am asking about, as is Simon Gibbs. One of my biases being in favour of people being allowed to express political opinions that I don’t share. The way it looks, to me, now, is that Facebook will be delighted to convey whatever opinions I express on Facebook to the world, until such time as the world starts, in noticeable numbers, paying attention to those opinions, at which point those opinions, being what they are, will vanish from view.

It may well be that, as a freelance enterprise rather than a government agency, Facebook is entitled to behave as it pleases, and face the commercial consequences. But if that’s so, what sort of consequences should those of us who do not share Facebook’s biases be trying to contrive for Facebook, and how? Besides, which, maybe Facebook actually is now a government agency in all but name.

Libertarian Home is an enterprise I admire. I especially enjoy attending its meetings, which happily for me mostly take place a mere walk away from where I live. But the LH commentariat is not as impressive as the one here, and I would love it if our commentariat were to take a serious crack at the questions that Simon Gibbs poses.

65 comments to What’s going on with Facebook?

  • Fraser Orr

    I’m not a fan of FB really, though I do use it for the purposes you mention.

    FB though is nothing like a government agency. The essence of government is force. Facebook might as what’s on my mind, or what my relationships are, or what my job is. However, in all cases I can tell them to go stuff it, or I can lie, or do whatever. However, when the government asks those questions they demand that I answer, and do so accurately, and if I don’t they send big men with guns to either force me to comply or force me to pay a fine, or lock me up in a small room with murderers and thugs.

    If one doesn’t like FB one is at liberty to use an alternative. Sometimes in the commercial market there are challenges with alternatives. After all, you want competition in cable TV, people have to dig up roads, or use limited resources on lamp posts and poles. But FB? There is no such infrastructural limits. You just change the first four bytes of your IP data packet.

    What I don’t really understand though is that there really is a huge market for a liberty (or at least conservative) oriented google or fb. But I don’t see a viable competitor growing. Where is the foxnews of gmail, or the IBD of web search, or the Wall Street Journal of FB? Of course there are some, but they are not at all sizable.

    It fully understand the network effect of platforms like FB, but there really is not such effect on gmail or search. Ad revenue for sure is dominated by google, but these services aren’t particularly expensive to run, that is why google’s margins are so huge, and if a “fox news of search” can get its act together it could quickly grow to, say, 10% of the size of google. I’ll take 10% of google’s revenue any day.

    And even on the network effect things like fb, I think that these communities are already deeply fractured. Liberals regularly unfriend their conservative friends for suggesting that Brett Kavanaugh doesn’t eat cute puppies for breakfast. (From what I see the reverse is far less often true, but that might just be the circles I move in.) So if it is fractured anyway, what is the big deal with a fractured host?

    However, I don’t see these things emerging which makes me think that people don’t care nearly as much about privacy, censorship, bias and politics as they say the do. But perhaps there is another reason.

    There is a growing chorus on the right in the US for regulating Google, FB etc. You hear it a lot on FoxNews comentary shows. I find that deeply troubling. It is about the worst possible solution.

    If you are troubled with Google’s bias, speak about it loudly, embarrass them, and challenge their reputation. Or even better start your own search company. It is a lot less difficult that you might imagine, and GoFundMe will undoubtedly be a powerful source of seed capital.

  • Sam

    In my view FB, Twitter, etc have exactly as much power as you give it. So…don’t use them.

    Recently I met up with some friends from college that I’ve not spoken to in years, some for a decade. I found it fascinating that almost all of them had unplugged from FB sometime in the previous 5 years. I haven’t logged in personally for 6-8 years or so.

    FB was at first for college students only, and it was during that time period that I used it intensely. It was a crapfest long before the normies came along, and why people still use it – particularly people who complain about how it treats its users – is beyond me.

    Sorry I can’t offer a more nuanced and interesting take, but, as libertarians, isn’t the remedy for voluntary actors to disengage or go elsewhere?

  • jmc

    Ah. The innocents..

    Ever hear the phrase – If you are not paying for the product you are the product. Or rather all your personal information is.

    When you agree to be a Facebook customer you agree for all, and I mean all, your personal information to be consolidated, data mined, cross referenced. Not just anything you post on FB but all personal information that FB have access to. Public and private. Credit reports, wages history and all information shared by “business partners”. Such all your banking / financial info. Etc. Etc. Etc.

    If you use WhatsApp or the mobile app all personal messages and texts (plus SMS), everything, will be read by Facebook and sold on. Any photos of videos posted will be processed by image recognition / facial recognition software on all the people in them. On ID, whether they have FB a/c’s or not, they are added to FB’s database. The new people are then datamined through other data sources just like FB a/c people.

    The level of detail of Facebooks information on their a/c owners, and pretty much everyone else, would make Stasi weep with envy.

    And the supreme irony of all this is almost all of the information collected by FB is actually worthless to FB’s real customers, the advertisers. In the FB tradition of telling bareface lies to everyone, number of genuine a/c’s, number of actual a/c interactions etc, the number of real person views and actual sell through effectiveness of FB ads is actually pretty pathetic. Far far worse than traditional print ads. Which was pretty bad to start with.

    When it comes to who is the current EvilCorp Facebook wins hands down the title of most evil corp in the world. Admittedly against some very tough competition. But its a title they will hold until indicted, broken up and / or Zuckerberg goes to jail.

    Only been working in the Valley for 30 plus years so know how the game works.

  • Mr Ed

    I used to use Facebook to keep in touch with people, now I do not use it. In the last 4 years, starting with the Scottish independence referendum, I have seen politics spill over into it in a way that has put me off it and often people I know. As the late Auberon Waugh said, any right-thinking Englishman (or, I suppose, true Scotsman) would regard politics with scorn, and despise it, only being interested in it the way that holidaymakers are interested in food poisoning. With the 2016 US elections and the UK’s Independence referendum, and 2 x GE in the UK, more and more people pissed me off with their idiotic or evil views.

    If I were to post a picture of the Rialto Bridge, it would ask me ‘Where was this picture taken?’, as if it f***ing mattered. It would suggest that I follow Mr Z, as if I wanted to know whatever the oddly grinning, geeky, overgrown College boy/Shelob fan purported to be thinking. I found it useful to keep track of events in certain voluntary groups, but not much else.

    The one thing that I used to do on Facebook for fun was click on Lefty adverts so that (i) FB feeds me more and (ii) it takes money from them and (iii) if feeds me adverts that from people wasting their money. But it’s really beneath me to do that. I expect that advertisers will move away from it in time, it’s just a away to attract malcontents to a business like moths to a flame.

  • Julie near Chicago

    Quoth Fraser [with added boldface]:

    There is a growing chorus on the right in the US for regulating Google, FB etc. You hear it a lot on FoxNews comentary shows. I find that deeply troubling. It is about the worst possible solution.

    Exactly. Precisely.

    .

  • I think Facebook is even readier than Twitter to practice left-leaning censorship – and I speak as the writer of this. It’s a bit like the hate speech laws in the UK: you might say things from time to time and have no trouble – and then, one day, something you say is heard by the wrong person and you have a problem. Facebook can only take your page, your account, whatever, not your liberty, but the bias of who gets told they ‘violated norms’ is as blantant os the explanation of how you did so is obscure – when an explanation is offered at all. IIRC it has been experimentally proved: from memory (I seem to have lost my link to it; any commenter who know the story by all means give the link) a research group created two facebook pages, one pro-Palestinian and one pro-Israeli, then posted identical material of gradually increasing vehemence on each. You know without my needing to say which group facebook banned and which one they did not ban.

    On a technical level I found facebook more tedious than twitter – harder to brush past all the stuff it wants you to see to get at your posts and your friends – but there may be an element of (un)familiarity in that. I found facebook more tedious, so used it less, so kept up less as its interface evolved, so found it harder to brush past its ‘look at this’ stuff.

  • Julie near Chicago

    It just occurred to me to take a look at gab.ai.

    Yow! There is some really nasty stuff posted there.

    (I see our pal Alex J., of Prison Planet & Info Wars, also hangs out there. But then, A.J. is sort of like a hangnail…a nuisance and at times a bit painful, but not really life-threatening, and such that you can slice half your finger off with a manicure scissors, but the darn thing is so embedded all you’ll do is create a sore. SNARK)

    Still, I did see a couple of likeable scenic photos.

    .

    Social media. Let’s see. That would include the telephone, the paper-&-pen thingy that is transferred by a guy riding a horse, e-mail, and the face-to-face conversation mediated by the air.

    I don’t see any real need for the likes of FB, so I guess I’ll continue to make do without.

  • SkippyTony

    Slightly off topic, but I recently attended a data analytics conference (yes, sad bastard) where a chap from FB shared some interesting stats. He was talking about their predictive powers, based on “likes”. I can’t find my notes but from memory it was with 20 likes they could out predict your aquaintances, with 50 likes they can out predict your friends, with 100 likes they can out predict your workmates and with 250 they can out predict your family. Those specific numbers might be wrong, but you get the idea. Clearly, from a marketing perspective it’s all about driving transactions to feed these algorithms. The more you interact the deeper their understanding of you and, I guess, the more potential value you represent to them.

    If that’s all true, this Orwellian non personing of conservatives (which I accept is happening) seems self defeating, unless they have come to some realpolitik conclusion that they win more points by deplatforming conservatives than they lose by alienating this group.

    Their hate speech defence is laughable given they tolerate some incredibly extremist views from other, unnameable groups.

  • bobby b

    There’s a practical and timely issue at play here.

    We in the USA have some elections coming up in a month. Suffice it to say that the results of these elections could have an impact on the course of our country for some time.

    Two years ago, Trump’s win was at least partially due to the efforts of some to spread his word via social media. To the chagrin of Facebook and Twitter principals, Trump’s campaign used these platforms extensively to motivate and inform his voters.

    They are not going to allow this to happen again. We’ll see more and more bannings and deletions here in the USA as we approach election day.

    As a free-speech absolutist, I’m torn. We see platforms that have emerged as market-busters based on a fraud – that they are bias-less and content-neutral – but which ban and delete non-progressive content as elections approach. Normally, I would simply sigh and express a wish that someone would start up a new platform that would allow me to share my own thoughts, but such an approach is going to allow these people to game the system and these important elections.

    So, what to do? We can decry these platforms and their dishonesty, but I’ll bet half of the people here still use them, generate traffic for them, and help to foster their monopolies. I’ve never tweeted (damn, that sounds obscene somehow) but I do read tweets at times, and have even followed some tweeters.

    All I’m left with within my free-speech philosophy is to simply have nothing more to do with those who do go on twitter and facebook, and that’s pretty thin gruel as leverage. I’m sure that Perry can live with the disappointment if I say that, because Perry tweets, I can no longer visit his blog. Heck, I can no longer view about half of my normal internet list if I settle on such a course.

    We do allow for exceptions to free speech – libel, slander, fraud, etc. – and I’m wondering if the defrauding of the public (“we’re a neutral platform for everybody!” until it comes time to delete non-progressive speech near elections) is sufficient reason to violate principles and allow for . . . something.

    The best path that I can see so far lies in the DMCA’s Safe Harbor provisions that allow a common carrier to decry responsibility for its content. Once Facebook begins to disallow improper thought, it becomes responsible for the propriety of its remaining content. No one has come up with the killer way to use this principle, but I hope they do, in time for these upcoming elections. If not, I fear that all of the good steps taken in the last few years are gone.

  • bobby b

    ” . . . If that’s all true, this Orwellian non personing of conservatives (which I accept is happening) seems self defeating . . . “

    It’s only self-defeating if their primary motivation is to make money. What if ruling the world is more important to them?

  • Mr Ed

    bobby b

    I’m wondering if the defrauding of the public (“we’re a neutral platform for everybody!” until it comes time to delete non-progressive speech near elections) is sufficient reason to violate principles and allow for . . . something.

    I thought that you were leading to the fraud issue in that post before I got to that bit. Essentially, if FB obtains a benefit from X by selling his data, and gets X’s interaction in part on the basis of being a ‘neutral’ platform for X, when it is not neutral, could that be wire fraud with 30 years per rap….? 😉

    You must show Gandalf’s reluctance to touch or own the One Ring to eschew such temptation, were it presented.

  • Flubber

    The issue is Facebook enjoys a liability shield by portraying itself as a platform, but acts a publisher with a political agenda.

    The time has come for it to be forced, and I do mean forced, to choose to be one of these, not selectively both…

  • Mal Reynolds

    I believe I’m of a much lower age bracket than you but Facebook is a gravesite now. I log in every now and again and no one has posted or done anything in months aside from corporate accounts advertising. People have shifted to places like Instagram which offer slightly different ways to share. I know Instagram is also owned by Facebook but the point is that people will always shift onto the next thing. However much facebook’s political censorship is an issue, it won’t be an issue for much longer when no one uses it.

  • bobby b

    All shall love me and despair, Mr. Ed, for I’m not certain of my resolve to not violate my libertarian bent if the price is a Democrat Senate and House. I tire of losing because I have principles.

  • Darryl Watson

    I deleted my facebook account before they got around to censoring me.

  • Fraser Orr

    @bobby b
    All shall love me and despair, Mr. Ed, for I’m not certain of my resolve to not violate my libertarian bent if the price is a Democrat Senate and House. I tire of losing because I have principles.

    But not only is it a philosophical mistake to try to regulate these platforms, it is a practical mistake too. Were they to be regulated do you imagine the regulators would be fair? Do you think that they would not have political biases that they try to impose? How long before, for our own good, political correctness becomes the rule in these regulated platforms? How long before hate speech rules, defined so arbitrarily as to be at the caprice of the regulator? How long before the ban on “fake news” as defined by some activist peon with a high school education, a raging socialist agenda, and a massive chip on their shoulder. Moreover, if you regulate them then you have to regulate all their competitors, and so the only alternative is quickly lost.

    No, the only solution is competition. Competition to keep people honest. If I were in charge of FoxNews I’d spend a a few tens of million on software and data centers, and I’d eat FB and google for lunch. My biggest concern is why such an alternative hasn’t arisen. I can only think that people don’t hold their privacy, freedom of speech, or the freedom of speech of others in particularly high regard.

    I’m a software guy, and I assure you building a search engine and an email system is not all that big a job. Building a data center is a matter of money (and you can start out on AWS or Azure). Building something like Facebook isn’t a big job either, or Twitter. Of course you can’t necessarily capture all the nuances and all the functionality. But most people barely use 10% of the capabilities of these platforms. Do that. Throw some money into advertising. Go on Foxnews. Get interviewed by WSJ. Put your stuff up on Youtube. Tell the president and have him tweet. It is an expensive proposition, but not a difficult one.

    To me there is a massive, burgeoning demand for something like that. But that market isn’t meeting it, so I wonder if I am wrong. To me is is “spend a two hundred million dollars in exchange for a 10 billion dollar a year revenue stream.” Unfortunately I don’t have two hundred millions dollars.

    As to this election Bobby. I think it is a close call. The Kavanaugh thing was a big mistake for the Ds. It also depends on what happens in the next twenty or so days. Who the hell knows what these politicians will pull. Everyone always says about every election that it is the most important in a lifetime. But I think this one (and the next) probably are, in my lifetime anyway. It really is a choice of more of the same improvements we have been seeing, or more of the circus we have just seen. Nothing can be done about the social media platforms in the time available, even were it a good thing. We just have to hold our breath and hope that the current crazies keep power and that the batshit crazies don’t take over.

  • Julie near Chicago

    “… hope that the current crazies keep power and that the batshit crazies don’t take over.”

    I don’t know whether to laugh or cry. :>)(

    Agree, though.

  • bobby b

    “But not only is it a philosophical mistake to try to regulate these platforms, it is a practical mistake too.”

    I agree with you, and I don’t think that direct government regulation of these platforms is the way to go. Someone would have to be the governmental decider in such a situation, and that merely gives us a partisan fix that can be used by either side for advantage depending upon who holds the decider office at the time.

    I think there is far more mileage to be had from simply denying them the DMCA safe harbor that grants them the protections of government regulation. I would, in effect, regulate their behavior by deregulating them – by removing them from the government’s artificial protective umbrella.

    Once they make an editorial decision concerning their content, I think they lose the basis for claiming a lack of responsibility for what they do allow on their site, and that’s the essence of the safe harbor provision.

    The DMCA safe harbor was designed so that the internet can function as it was intended – service providers would set up the infrastructure that the rest of us can use to transmit our thoughts to others, and those service providers wouldn’t be forced to protect themselves by constantly policing every submission posted through them. Their valid excuse was that they simply provide the roads, and can’t be responsible for the drivers, so if we want roads, don’t sue them for the bad drivers.

    But now they’re choosing amongst drivers for those they deem fit to use their roads, and once they do that, they go outside of their DMCA-protected role, and ought to lose that protection. Once Facebook chooses amongst its users, and throws some out, they are no longer merely service providers – common carriers – and the DMCA protection should no longer apply to them.

    Which, of course, would quickly put them out of business, as every song, movie clip, book passage, and other protected work that was posted through their site would result in legal action against Facebook – all of those IP thefts that content creators hate and can now do very little about would become viable legal actions against Facebook.

    I just watched a full movie on YouTube. I know for a fact that the creators and owners of that movie did not grant permission for that movie to be on that site, and I’m quite sure it will be pulled very quickly, once a proper DMCA takedown notice has been delivered to YT, but countless people will have watched it and copied it for free before that happens, and the creators have no one to pursue for recompense, because YT enjoys the protections of the DMCA safe harbor.

    If it is determined that YT makes editorial decisions allowing such movies to be posted, YT loses that protection, and the creators can then sue YT for their losses. So, YT is very careful about how much it pre-screens posted items, so that it doesn’t lose the safe harbor protection.

    Facebook is making editorial decisions about who can post to their site. Facebook ought to either stop doing that, or lose its safe harbor. Since losing that safe harbor would kill FB, I imagine their editorial interference would stop instead.

  • I think Bobby B is talking about CDA s230 safe harbour rather than DMCA safe harbour

  • FRASER ORR

    @Bobby, you aren’t talking about compromising your principles at all!!! You are talking about deregulation, removing laws and special privileges. Now that is the sort of talk I can get on board with.

    FWIW, you are absolutely right from a moral point of view. I’d much rather people just had unadulterated free reign. But as soon as you say “A is not allowed on our site because we disagree” then you can’t say “B is on our site but we don’t judge the content.”

  • Eric

    If it is determined that YT makes editorial decisions allowing such movies to be posted, YT loses that protection, and the creators can then sue YT for their losses. So, YT is very careful about how much it pre-screens posted items, so that it doesn’t lose the safe harbor protection.

    Youtube was built on copyright infringement. Only the most well heeled copyright holders can afford to play whack-a-mole with different people posting their content around the clock and this fact isn’t lost on the company.

  • Apparently Facebook recently deleted a load of popular far-left sites as well. I can’t find the original link, but there’s this Guardian story about it.

    https://www.theguardian.com/technology/2018/oct/11/facebook-purge-page-removal-spam

    (In this article Facebook says they were fake accounts, but lots of very real pages were taken down.)

  • Albion’s Blue Front Door

    Keep away from fecesbook. Was once on it, thought it poo and wished I’d never set eyes on it.

    Whatever their alleged motives, it is simply there to harvest your personal information and sell to the highest bidder. You are, as they say, the product.

    Equally I am occasionally on Twitter, which I use a news aggregator mostly, given the unreliability and bias of Al-Beeb and The Groaniad. No doubt they have me pegged as a reactionary to all that is noble and good about progressive journey, but so it goes.

  • Runcie Balspune

    I never used Facebook or Twitter, but I’m part of some communities that resided mainly on G+, however, it has been recently announced that Google is shutting down G+ due to a security issue and they can’t be bothered to comply with legislation like GDPR. It looks like most people are migrating to MeWe, which I have heard described as a “libertarian Facebook”, has anyone here had any experience of this one?

  • Bruce

    Farcebook: The greatest personal data-mining operation in history.

  • Brian Micklethwait

    Thanks for the comments. Just what I was hoping for. Especially the recent ones from Hector D and Runcie B, and the one by bobby b about the upcoming American elections.

    The political bias is what interests me, for the purposes of this posting, as I said. Yes, I know I’m the product. But how does scrubbing stuff for being biased serve the data mining function? Is it part of a political deal, where they shaft the particular enemies (both left and right) of a politician or political cabal, in exchange for benign regulatory treatment?

    If you are pro Democrat, as Facebook seems to be, it would also make sense to scrub lefty stuff, if that lefty stuff is regarded as making difficulties, dividing the vote, causing the vote to stay home, or whatever.

  • bobby b

    Martin Keegan
    October 13, 2018 at 4:22 am

    I think Bobby B is talking about CDA s230 safe harbour rather than DMCA safe harbour.

    This is very possibly true. I do keep conflating the two. I’m definitely not an IP guy.

  • bobby b

    “But how does scrubbing stuff for being biased serve the data mining function?”

    From a lefty perspective, perhaps making your platform more comfortable and less threatening for the market that you think comprises the bulk of society – i.e., everyone but the deranged right – serves your purpose of expanding that market base? A true believer FB exec could see potential participants avoiding FB if they perceive that they might have to interact with racists, sexists, haters . . .

    Alternatively, one can have multiple drivers for their actions. Profit is wonderful, but so is saving society from people you think of as evil.

  • bobby b

    Martin Keegan
    October 13, 2018 at 4:22 am

    “I think Bobby B is talking about CDA s230 safe harbour rather than DMCA safe harbour”

    Having now thought about this distinction more, I think maybe I was correct originally about the difference between the DMCA and the CDA.

    The CDA – the Communication Decency Act – is aimed at civil and criminal violations contained within postings that do not implicate intellectual property. It is used to shelter pipelines from liability when someone posts something such as libel, slander, fraud, kiddie porn . . . Without the CDA safe harbor, if I post kiddie porn on my FB page, Facebook would face prosecution for that posting along with me. The safe harbor in the CDA shelters FB from that kind of liability.

    The DMCA safe harbor is designed to shelter pipelines from specific intellectual property liability, such as users posting pirated movies and songs and books.

    Both safe harbors are predicated upon the pipeline being exactly that – a neutral pipeline that doesn’t pick and choose among offered postings – a common carrier of the internet. But, for my purposes, denying FB the CDA safe harbor is of limited utility, as it only exposes FB to liability for individual postings that violate the “decency” standards. If FB were denied protection for the DMCA safe harbor – the intellectual property violations safe harbor – their liability and risk would be tremendous.

    But, like I said, I’m not an IP guy, and so would consider it very helpful if you could steer me right on my impressions about both of these Acts. If I’m getting this wrong, I’d rather stop doing it.

  • Bod

    One dimension that occurred to me while watching that Sargon video was that he claimed that “Trump needed to do something about this” – which is par for the course for Carl, his first instinct is that laws need to be adopted to create freedom – but given Google’s and other platforms’ global reach, there’s a fair case to be made that while their focus is to interfere in US national political debate, they’re also interfering with the internal politics of foreign nations, which clearly goes beyond some hearings in front of some EU panjandrams about whether they paid their taxes.

    While the primary victims of censorship seem at present to be US commenters and commenters closely associated with them, and we have a clear path to deal with this via established law and precedent (AOL anyone?) other nations have other practices, laws and courses open to them.

    In general, I try and use non-US firms to maintain my internet activites. I use an Eastern European VPN provider, a Russian anti-virus product, an Icelandic email host (among others) and so on. I don’t “do” social media, but if I did, it wouldn’t be American.

  • Flubber

    Bod – my earlier commencement on What Trump needs to do:

    The issue is Facebook enjoys a liability shield by portraying itself as a platform, but acts a publisher with a political agenda.

    The time has come for it to be forced, and I do mean forced, to choose to be one of these, not selectively both…

  • Shlomo Maistre

    Besides, which, maybe Facebook actually is now a government agency in all but name.

    Indeed. Twitter too.

    Ponder the implications.

  • for my purposes, denying FB the CDA safe harbor is of limited utility, as it only exposes FB to liability for individual postings that violate the “decency” standards. (bobby b, October 13, 2018 at 11:07 am)

    I’d be interested in knowing how far the following summary correctly represents your point.

    1) If political bias (in whom they ban and why) risks their losing both kinds of safe harbour (so making them liable for both copyright and ‘decency’ infringements in users of their service), that is a stronger incentive than if only one (especially the less costly one) were in danger of being lost.

    2) A realistic threat of a legal process that could take away their copyright and decency safe harbours may induce them to limit their political censorship and/or its one-sidedness.

    3) An actual legal process could either

    * oblige them to give formal sureties to end or limit their viewpoint discrimination, to retain their harbours

    or

    * actually take away their safe harbours, so costing them money and (by ordinary news reporting of the ruling) publicising their bias to more voters, but of course also removing what motive they still had to restrain it.

  • In general, I try and use non-US firms … a Russian anti-virus product … (Bod, October 13, 2018 at 2:37 pm)

    English-speaking intellectuals have a tendency to damn the failings of their countries while ignoring vastly more serious failings of their countries’ enemies. Bod, you may be committing an analogous fault. I trust you know who has a backdoor to Russian anti-virus products.

  • Bod

    Niall,

    At this moment in time, I see being profiled by the Russian government for my web activity as being preferable to being profiled by the FBI and the NSA, and particularly GCHQ.

    My objective is to be left the hell alone, and the only people who seem to have a problem with that are the signatories to the UKUSA agreement.

    To Flubber’s point – precisely. Either Facebook is a content delivery platform, or it exercises editorial discretion. It’s shouldn’t be permitted, even under current legislation in the US, to hold forth as both and avoid the responsibilities of either.

  • Paul Marks

    I have already commented over at the Libertarian Home site – but I will add the following here.

    Social Media is important – it was the main alternative to the leftist “mainstream media” in 2016, so the left is trying to drive off (or restrict – “shadow ban”) non leftists on Facebook, Twitter, YouTube and so on.

    The owners and staff of these Social Media companies have off-the-peg leftist political opinions they were taught at school and university – they were just too busy creating and running companies to have time to seriously question the political and social opinions they were taught from childhood.

    “But Paul their lives as capitalists are in contradiction with their politics” – some of these people, such as Jeff Bezos (the founder of Amazon and the richest man on Earth) know that perfectly well, which is why Jeff “Washington Post” Bezos is (to use technical and scientific language) a bit of scumbag – in that he finances politics (such as the, utterly evil, “Washington Post”) KNOWING that it is wrong – Jeff Bezos does this to APPEASE the left. The Winston Churchill line springs to mind – an Appeaser is someone who throws everyone else to be eaten by a tiger, hoping it will eat him last. I can not claim I would shed any tears if the richest man in the world shared the fate, at the hands of the very people he finances, that the richest man in France, the Duke of Orleans, suffered at the hands of the French Revolutionaries – the Duke of Orleans financed the Revolutionaries so I have no sympathy for him at all concerning how they (inevitably) turned-on-him.

    However, someone like Mark Z. of Facebook may not have a clue – after all, however intelligent and learned he may about the internet, this man was so utterly stupid that he flung many millions of Dollars of his own money at the New Jersey government schools (no surprise – they did not improve). Mark Z. may sincerely believe in statism (unlike Jeff Bezos who does not really believe a word of what his newspaper pushes).

    Half remembered school and college lessons about “Social Justice” and a guilty conscience about being “filthy rich” – that may well explain the politics of the internet company people such as Mark Z.

    However, there is also a LEGAL point – the Social Media companies make the LEGAL CLAIM to be “Neutral Public Forums” – and they clearly are NOT neutral (in that they push the left and hit the right), so unless the Social Media companies and the “mainstream media” succeed in defeating Ted Cruz and others in November (and the Social Media companies, like the mainstream-media, are doing everything they can to take the House and Senate for the Democrats) then stand by for a proper investigation of the Social Media companies. The scandal is the moral FRAUD of claiming to be a “Neutral Public Forum” whilst actually being no such thing. Either all opinions must be treated the same by Facebook and the others (no pushing one side and hitting the other side) – or they must drop their Legal Claim to be a “Neutral Public Forum”

  • Julie near Chicago

    Niall, I just re-read the piece you wrote in April, the link to which you give above.

    You gave a terrific analysis of a short piece by the Divil himself out of Twitter’s Leyden (in the horse-pedigree idiom). My compliments.

    The Leyden piece would make me lose my lunch, except that I haven’t yet had lunch. I have rarely seen such nasty, vicious stuff — it surpasses the Dems’ performance at the Kavanaugh hearings.

    And, as you point out, it is lies from start to finish.

    .

    I want also to note the comment there by Eric, April 10, 2018 at 5:43 am:

    I don’t want to hear about racist dog whistles from the party of Obama. The man never found a racial division he couldn’t make wider and deeper for political gain.

    This can’t be stressed often enough. It’s amazing how many people seem to overlook it, or to have forgotten it altogether.

    But it’s an immensely important factor in bringing us to where we are now. It made open race war a practice socially and politically acceptable to a large contingent of Democratic Party politicians, and I have to assume to the majority of the Dem constituency as well — in 21st-century America!

    Apologies for getting so far from the point of Brian’s query.

  • bobby b

    Niall Kilmartin
    October 13, 2018 at 5:26 pm

    “I’d be interested in knowing how far the following summary correctly represents your point.”

    Niall, you’ve nailed it, except for two relatively minor points:

    One, I’m not expressing a preference that FB et al. lose both safe harbors. Losing the CDA protections would not be a company-buster. Losing the DMCA protections would. So, I would simply prefer that they lose at least one type of safe harbor, and my strong preference would be for them to lose the DMCA safe harbor.

    Two, you mention that losing either safe harbor would remove “what motive they still had to restrain it.” I do not believe that FB/Twitter/YT/Google could survive losing the DMCA safe harbor, so there is little danger in my mind that punishing them that way would only be poking the bear. I think it kills and skins the bear.

    But, as I said, almost entirely correct.

  • Paul Marks

    I repeat that the Social Media companies (including Facebook) make the formal Legal Claim to be “Neutral Public Forums” – and they are NOT neutral (they support the left and they hit the right).

    No one forced the Social Media companies to make this FALSE LEGAL CLAIM – they CHOOSE to do so. Therefore if (a very big “if”) their campaign to hand the Senate and the House to the Democrats fails – and they find themselves facing Senator Ted Cruz next year, Mark Z. and co may be looking at serious legal difficulties.

    I suppose Mark Z. and co now have a real argument – instead of just backing ever higher taxes and so on (because of the ideology they were taught at school) they can now say “we have got to defeat Ted Cruz, we must twist Social Media and Search Engines (such as Google) in order to make sure that Ted Cruz is defeated in the election, or we will end up open to Civil Action and Facebook and so on will be BANKRUPT.

    So that is the argument of Mark Z. – “we have to defeat Ted Cruz and other Republicans in November, or they will leave us open to Civil Action and our company will be bankrupted”.

    Of course Facebook and co could actually become “Neutral Public Forums” (just as Google could stop RIGGING search results) – but actually being what they legally claim to be is unacceptable to people like Mark Z (Facebook), Jack D (Twitter) and the rest of them.

    Remember their collectivist politics is the only moral code they have – if they give it up, they have nothing else. Just a vast empty space inside themselves – and NO money can NOT fill that void for the people who control Facebook, Twitter, YouTube, Google and…….

    Ayn Rand would, if still with us, have a lot to say about this.

    By the way – I repeat that I think that Jeff Bezos is different to the others, I think (indeed I am certain) that he KNOWS that the line of the left is all nonsense. His backing of the left (via the Washington Post and in other ways) is a cynical act – indeed a truly incredible level of cynicism. I have no sympathy for this man at all – he deserves exactly what his “friends” would do to him if they came to power. He is reasoning that it would be (as with Obama) a gradual and timid process of “fundamental transformation of society” and that he would be dead-and-gone (by natural courses) long before the left were in a position to round up the capitalists and so on.

    Jeff Bezos is just being “practical” in backing the left without believing in any of the stuff he backs – very much like a corrupt businessman in an Ayn Rand novel. And his “practical realism” is not really “practical” or “realistic” at all.

  • lucklucky

    The birth of Political Company.

  • Rob Fisher

    Facebook is for cat pictures, baby photos and holiday photos. I recently posted some photos of some old model trains I have and another friend offered to give me some old toy trains they don’t want any more. That’s what it’s for.

    People trying to do politics on Facebook serves only to demonstrate how unsuited it is for that purpose.

  • Fraser Orr

    @bobby b
    One, I’m not expressing a preference that FB et al. lose both safe harbors. Losing the CDA protections would not be a company-buster. Losing the DMCA protections would.

    I’m unclear on this. Since the claim for both safe harbors is based on the non editorial approach then I don’t see how you could have one gone and not the other. Moreover, what is the basis on which one has or does not have such a safe harbor? Isn’t it merely an affirmative defense? So, if you post something I wrote on FB, then I sue FB and in the process of doing so have their affirmative defense tossed out because of their editorial activities, then isn’t it then game over for them? Or can the wriggle out of it by simply deleting your post?

    FWIW, I’m not sure I am a fan of libel, slander or copyright laws. But certainly they are more justifiable than trust busting laws.

  • Fraser Orr

    One thing that I find fascinating about this debate is the perspective of age. I remember when the idea of the Internet in your home was first taking off and a guy by the name of Shawn Fanning created an internet service called Napster. This software provided a platform by which users could share their MP3 music files. Allegedly even recording of their own little garage bands. This service was crushed by lawsuits and destroyed, leaving a pioneer in the field of peer to peer sharing ruined.

    How exactly is that different that what YT does every day? In fact on the contrary, Napster NEVER hosted copyrighted materials, all they hosted was links to people who made claims about what their music files contained. So Napster was in many ways far less liable for any copyright infringement than that YT does ever day?

    So why the different legal treatment? Are they simply being given a Hillary-esque pass because they are important or powerful?

  • bobby b

    Fraser Orr
    October 15, 2018 at 2:46 pm, 2:58 pm

    “Since the claim for both safe harbors is based on the non editorial approach then I don’t see how you could have one gone and not the other.”

    (Getting well out of my legal comfort zone here – I’m not an IP guy – so this is a rough explanation only.) Simply because they are different statutes, contain varying language setting out the parameters of their safe harbors, and have been interpreted by different courts and now have different precedential definitions and requirements for denying that safe harbor.

    “Moreover, what is the basis on which one has or does not have such a safe harbor? Isn’t it merely an affirmative defense?”

    Yes.

    ” . . . then isn’t it then game over for them? Or can the wriggle out of it by simply deleting your post?”

    Deletion of the post won’t cure the damages already incurred by setting out their property to the world for copying. If you write a book, and I post it to FB, how many people could have copied it by the time FB deletes it? Remember, it’s an exponential process – if one person copies it from FB, they’ll likely make it available to others, who make it available to others . . . There is presumably a limit to the damages that could be claimed by a quick posting, but then, also, once FB loses that safe harbor in the one case, it’s going to be easier to take it away from them in every following case.

    “Napster . . . How exactly is that different that what YT does every day?”

    By the provisions of the DMCA safe harbor, YT becomes responsible once they are validly served with a takedown notice. IOW, once someone who holds the valid rights to the work in question notifies YT that the posting is infringing their rights, YT must take the post down. That’s the extent of the safe harbor – they can claim ignorance only until they can’t claim ignorance anymore. Without the safe harbor, they are responsible from the moment of my posting of someone else’s work. That’s why I can watch complete new movies on YT – someone posts it, and we watch until one of the rightsholders to that movie notifies YT that it’s been improperly posted, and then it quickly disappears off of YT.

  • Julie near Chicago

    bobby, sort of in defense of a lot of people who do copy copywritten stuff when they know they shouldn’t, but are horrified at the idea of sending it on:

    “…if one person copies it from FB, they’ll likely make it available to others….”

    Assumes a fact not in evidence, Counselor. (Though I don’t know that you’re wrong; I don’t know how what proportion of people who illegitimately copy material for their own use are “likely” to pass it on illegitimately.)

    Although, you said “from FB.” I don’t suppose anybody has recently posted the entire LoTR movies to FB. I was thinking of UT and Internet websites.

    . . .

    Tangential to the point: There also quite a few people who hear the music, watch the movie, read the book, and as a result go out and buy the darn thing. Libraries, for instance, help those who market these works.

    This is a fact that small retailers, at least, often overlook.

  • bobby b

    “Tangential to the point: There also quite a few people who hear the music, watch the movie, read the book, and as a result go out and buy the darn thing.”

    Julie, I’ll confess here to my horrid hypocritical tendencies in this regard. I used to download lots of Napster stuff. I still watch the occasional YT movie before it disappears.

    But I firmly believe that that’s theft.

    Stealing the benefit of someone else’s work isn’t right, even when technology makes it easy. People talk about how information wants to be free, but, hell, our cows want to be free, but they’re still our property and you have to pay me if you want to eat one.

    Digital recording has made it simple to make an instant identical copy of anything that can be transmitted digitally, and thus has endangered my ability to extract all of the monetary benefit from my work. If we came up with a computerized method of instantly making a key to any house, would it then be acceptable to enter and rob houses? No. We’d recognize that technology had leapt over concepts of property rights, and figure out a solution, but we would never simply declare the contents of our houses to be free community property as we seem to have done with IP when digital copying came into being.

    Claiming that people might buy more of the creator’s stuff because they got some of it for free is akin to saying that I should let people steal stuff out of my home because they might decide I have good taste and come back and try to buy more of my stuff from me. If a creator decides to make some of his work free in order to build demand, that’s his right. It’s not our right to decide that for him.

  • Mr Ed

    YT becomes responsible once they are validly served with a takedown notice

    Strikes me that they ought to be liable, if sooner, once their search function allows any user to search for and find ‘Film X’, after all, they make it possible to find stuff that would otherwise be buried under an endless heap of drivel.

  • I was attempting to approach the matter quantitatively. How many of these pages, or other pages banned the same day, were legit libertarian pages?

    I regret that this venue has not yet assisted me with this errand.

  • Julie near Chicago

    bobby, I’m with you 100% (including that I’ve been known to copy lots of rented VCR tapes. I haven’t lent them to nor copied them for others; but I might buy them in DVD as gifts).

    But people do buy more of the creator’s stuff if they’ve developed a taste for it. Believe me, it’s true of me! If I take out a book from the library and love it, I want a copy of my own. If I have a copy and love it, I may buy more copies to give as gifts. Ditto for movies and records.

    Artist X creates artwork in this or that area. His stuff is shown in various smaller galleries or retail shops (especially in tourist towns). He decides to sell some of his stuff in a sidewalk operation for a few weeks, in one of these towns.

    The retailer gets all in a huff because he’s underselling the shop — no middle-man cost, you see. This completely overlooks the psychology of people who come upon the artist’s stuff at his sidewalk operation, buy a piece or six, love it, decide after he’s folded up and gone that they just have to have more of the stuff, and I mean now! So they go to the shop that carries his work … and buy more.

    Or maybe they got their first piece from said shop, which they like so much that when the artist shows up to sell his stuff direct, they buy some … and then, more from the shop after he goes home.

    Many of us are highly acquisitive, especially where there’s a line of stuff we love. Take it from me.

    .

    I should note: Your analogy w/ breaking in and stealing somebody’s stuff is inapt. Because in the remark you quote, I was talking about stuff I borrowed quite legitimately from the library, and having liked it, BOUGHT a copy for myself or others.

  • bobby b

    Simon, most of the pages on your list had a straight blog presence outside of their FB site, and these sites still exist. In fact, most of them are writing about the FB ban of their own FB site on their non-FB blog.

    I’ve found no such site for several of those listed, though, which strikes me as poor planning. When you know that your pipeline actively hates you, you ought not make it your sole path.

    A quick reading of the blogs on your list that remain shows them to be firmly on the free-speech, individual-rights side of the spectrum. Libertarian? Heck, I can’t always tell who on this THIS blog are libertarian.

  • bobby b

    “But people do buy more of the creator’s stuff if they’ve developed a taste for it.”

    Oh, I believe this firmly. I buy more myself having seen something I like.

    But that’s a marketing tactic, and the choice to do this belongs to the creator. Once we start excusing theft by saying “it helps them sell more”, we’ve removed the right to make decisions about the property from the owner and assumed it ourselves.

    And, yes, when you speak of library sharing, my analogy breaks down. A creator usually has acquiesced to libraries’ shelving of their book in the standard rights package per USA law.

  • Julie near Chicago

    OK, bobby, but I never intended to be “excusing theft by saying ‘it helps them sell more.'” And I’m not sure where you found that meaning in what I did say.

    Noting a fact or what one believes to be a fact is not to say that it is OK to use the fact for criminal or criminal-lite purposes.

    Although in some cases, it probably does “help [the creator] sell more.”
    .

    Also, there’s still a lot of debate ongoing and clarification needed about the legal situation. Here’s a single sentence by a prof at the U. of Michigan Law school, in an article she published in the Texas Law Review 2006-2007:

    Twenty years ago, when the Supreme Court’s decision in Sony Corp. of America v. Universal City Studios, Inc. was still fresh, people believed they were free to use copy-righted works noncommercially, and the law for the most part backed up that belief.

    I haven’t read beyond the first three pages or so, but you can read the whole paper at

    https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1218&context=articles

    . . .

    Lest anyone wonder, I’m that rare and reviled bird, a Copyright Absolutist, like J. Neil Schulman. I think copyright should be upheld in perpetuity, and if the mists of time or fortune eventually make the lineage of copyright inheritances or sales unknowable, then and only then let the work move into the public domain.

    To me, the only question is, What exactly does “copyright” in the sense of a legally protected right mean? That is the meaning to be used when deciding the practicable boundaries of copyright.

    . . .

    By the way, as an example of my claim: When I was first put onto Yes Minister (by llamas, I think), I hunted it up on UT and watched all they had.

    I then went online and bought DVDs of both of the original series, as published by the Beeb. That was BEFORE I discovered that the BBC had had most of the complete videos taken down from UT. (There are still episodes up with part of the width chopped off.)

    Having your very own, physically (as well as ethically!), is the only way to go.

  • Fraser Orr

    @bobby b
    Stealing the benefit of someone else’s work isn’t right, even when technology makes it easy. People talk about how information wants to be free, but, hell, our cows want to be free, but they’re still our property and you have to pay me if you want to eat one.

    But they aren’t the same at all. The very concept of property is based around the fact of scarcity — if I eat your cow you don’t have it anymore. However, if I copy your song you still have your copy. This distinction between property and copyright is inherent in the very nature of copyright — that it is for a limited time, and that it is granted by the government. Even the fact that there is a special category of law for Copyright tells us that it isn’t the same as other types of property. The property laws for other types of property are all basically the same. Our constitution does not talk about “intellectual property”, to me that is a term deliberately designed to obscure the issue — to make it seem like copyright and property is the same thing when they plainly do not share many of the same properties.

    The monopolistic grants for copyright and other such rights are NOT at all granted in the constitution to benefit or protect the producer, on the contrary they are granted to encourage the creation of works for the benefit of society.

    FWIW, although I don’t agree with Julie’s “copyright absolutist” stance, I do agree that it is a more logically consistent position.

    Now it might well be argued that the right to benefit from a work is similar to property in that if I start selling your book you are less able to do so. But there are perfectly adequate mechanisms for making that happen outside of copyright, licensing being the most obvious. All that wonderful technology could make the licensing extremely easy to implement. If I only license my song to ITunes, and ITunes puts a clause in their agreement limiting the song’s propagation in particular ways, then any copies outside of that agreement can be shown to be obtained in violation of that license.

    Would that work perfectly? Of course not, the law is a blunt instrument. But copyright hardly works perfectly either given the current content of YT.

    Copyright does indeed stimulate innovation, however, what is rarely discussed is that it also stifles innovation. Some studies on patent law in the poster child for that area of law, drug development, indicate that patent law actually on net discourages innovation, not encourages. (If you are interested I’ll try to dig up the link.) How much fan fiction, for example, is stifled by Jo Rowling’s aggressive assertion of her copyright to Harry Potter stuff? Aren’t more voices better?

    FWIW, I although I am not a fan of copyright, I think the arguments in its favor are not without merit, and I do favor trademark laws (though they are implemented really rather poorly.) Patents, on the other hand, are an abomination, and deeply damaging to almost everything that we do in the economy. If I were King, I’d shut them down immediately.

    You’ll all be glad to know though, in regards to that “me being King” thing that “I will not accept if nominated and will not serve if elected.”

  • Fraser Orr

    @Julie
    BTW, I also love Yes Minister, and I also watched the versions on YT. Although they are not on there anymore they are on another video site that I don’t remember off the top of my head — full episodes of all with the exception of “Jobs for the Boys” and the transition one to Yes Prime Minister.

    Having said that, I enjoyed them so much I bought them on Amazon Prime Streaming.

    I’m not sure what that means, or how it contributes to the discussion, except to say that I believe that Yes Minister should be required watching in all political science classes, to give the little luvvies in those classes a more realistic view of how government actually operates. In fact I would probably be in favor of having watched the whole series and answered a quiz on it before you were allowed to vote… Or is that taking things too far?

    I often wondered if a series like this would work set in the US Government. However, Americans are WAY too anal about and worshipful of their government, preferring nonsense like West Wing or Madam Secretary and other hagiographies of “big government” to be able to cope with such a dose or reality. It’d be like how the church reacted to “The Life of Brian.”

  • bobby b

    ” . . . if I eat your cow you don’t have it anymore. However, if I copy your song you still have your copy.”

    The tangible versus intangible, original versus copy distinction misses the point of ownership to me. When I create a song or write a book, I’ve used my labor and intellect to create an arrangement of words or notes that only has value when it is experienced by someone. If I write a song, it’s not like making a chair. I can deliver a chair to a buyer and take their money in return, and the chair changes hands, and is no longer mine.

    But the value of a song – the economic value – lies in me allowing someone else to experience it, in exchange for money. They pay me for my labor, and I grace them with my song, which they would never have experienced had I not wrote it and allowed them to hear it.

    Ownership is all about dominion. When I write a song in a capitalist system, I can then bestow the joy and enjoyment of hearing that song on others when they pay me. I may not lose the benefit of my song when I sell them the experience of listening to it, but that’s not what they’re paying for. They’re paying me to be able to hear my song, not so they can take dominion over it (unless, of course, I sell them that dominion, by my own choice.)

    If I can sell the fruits of my labor to millions of people, good for me! But if I sell it to you, and you then copy it and hand it out to those millions, you’ve deprived me of the economic value that I might have realized had my customers not disappeared. To me, that’s theft – depriving me of dominion over the fruits of my labor.

  • Fraser Orr

    @bobby b
    I’ve used my labor and intellect to create an arrangement of words or notes that only has value when it is experienced by someone.

    That may well be true. So provide that experience for them within a legal framework that you are comfortable with. Invite them to the local jazz club where recording is banned. License the song to them on terms you are comfortable with, perform a concert at Candlestick Park, play it on Netflix, first ensuring that Netflix has appropriate restrictions in their user agreement.

    Your song is about a relationship between you and the listener. So memorialize what sort of relationship you want to have.

    What I would ask you not to do is create some massive, complex framework of law that is entirely orthogonal to the law of actual property. And please stop calling it “property” because it doesn’t resemble property in most of the important aspects of property.

    Ownership is all about dominion.

    I don’t really agree with that… well I do, but I think it is misleading. The reason why property law is written the way it is is simply because a chair can only have one owner (approximately speaking.) A song does not have such a restriction, and so the rules that govern property are about who has the chair and who doesn’t. How the chair is transferred from one person to the other, what to do if a third party damages the chair, and so on. These are at the root of property law but none of them matter one whit when it comes to intellectual property. Possession, they say, is nine tenths of the law. If I have that chair in my possession then it is rightly assumed that I own it, unless you have some pretty good evidence to the contrary. However, if I have a copy of a song, you can have one too, and neither of us loses because the other has it.

    Except that is, insofar as you are an author and want to profit from it, in which case you can readily do so via the already existing mechanisms of contract law that have existed for a thousand years.

    When I write a song in a capitalist system,

    As a side note, I strongly dislike the word “capitalist”. It gives the impression it is all about money, and conveys the sense of big fat capitalists sitting on a pile of money smoking fat cigars, like the monopoly guy. But it isn’t about that. It is about freedom. It is about getting out the way where people can make freely entered in trades and agreements, ones where each judges that they profit from doing so, even if the profit is asymmetric. I much prefer the term “free markets”. But, just an irrelevant aside.

    I may not lose the benefit of my song when I sell them the experience of listening to it, but that’s not what they’re paying for. They’re paying me to be able to hear my song, not so they can take dominion over it (unless, of course, I sell them that dominion, by my own choice.)

    That may well be the voluntary transaction you and your listener want to engage in. So go ahead and make just such an arrangement. But why do we have to have a “one size fits all” law like copyright? Moreover a law that every thirty years or so moves the goalposts. Walt Disney is long gone, but I still, all these years later, can’t make a Mickey Mouse cartoon using my own creative energies. That despite the fact that the law, as it was written when Mickey first appeared, would have released him into the public domain decades ago.

    But back to your point, we do this kind of thing all the time. If I rent a car I sign an agreement that means I don’t get to keep it. I don’t get to drag race it, or paint it pink, or set it on fire. I have to abide by the conditions set by the person who owns it. I don’t really see how music or Mickey are any different.

    you’ve deprived me of the economic value that I might have realized had my customers not disappeared.

    But if I write a better book than you I do that too. You can’t measure the justice of something by its economic return. You measure it by what is right and wrong. At its heart copyright law is a deliberate restriction on freedom of speech. This is one of our most precious liberties and I think you had better have a darned good reason for taking it away. Britney Spears getting another Gulfstream doesn’t seem all that good a reason. However, Britney is perfectly at liberty to make her money using the standard methods of contract law if she so chooses. Will she have to do things differently? No doubt. Will she make less money? Perhaps she’ll have to downgrade to a Cessna. But as with all government granted monopolies copyright drives up prices and centralizes control in the hands of the powerful. And it might well explain why almost every song on the top ten sounds about the same as every other one.

    (Does saying “top ten” date me? I’m not sure.)

  • Julie near Chicago

    bobby, that’s extremely well put. Applause abounds!

    As a niggle in the interest of clarification, I’d edit slightly:

    I may not lose the benefit [of my own enjoyment] of my song when I sell them the experience of listening to it, but that’s [my enjoyment of my song] is not what they’re paying for.

    . . .

    Fraser, we are as one on Yes Minister et seq. And for me, it also nailed our own Gov. 😆

    .

    But as for your argument above at 5:47, when you state

    “The very concept of property is based around the fact of scarcity — if I eat your cow you don’t have it anymore”

    I disagree. In my view, it goes like this.

    In the first place, when economists talk about “scarcity,” “scarce resources,” etc., they’ve picked a highly inapt word for what they mean, which is “limited,” “finite.” To see this, consider that some resources really are scarce, such as water in Death Valley. But some resources really are not scarce at all, such as water within the banks of the Mississippi River. I understand that “scarce” is a “term of art” in economics, but it’s a rotten one; partly because it strengthens the idea that, in your words, the “concept of property is based around the fact of scarcity.”

    It is not.

    Property comes into being because its maker put a piece of his life — his time, his muscular and intellectual labor, his effort — into the making of it. Therefore it is the maker’s to use precisely as he wishes (within as broad boundaries as possible). It is yours either because you are the maker, or because you have given it either as a gift (including as a bequest) or as part of a trade for some other property owned by someone else.

    The Scarcity Theory of Property is no more valid than is the Labor Theory of Value.

  • Julie near Chicago

    Fraser, your latest comment showed up as I was composing my own. I stand by what I said in my comment, and by my assessment of bobby’s; but your argument certainly invites further discussion. I no longer make promises, but I hope to engage it tomorrow. Meanwhile, sleep tight. :>))

  • bobby b

    Thanks, Julie!

    @fraser orr

    “That may well be true. So provide that experience for them within a legal framework that you are comfortable with.”

    But I do. When we purchase music – a CD, say – the license agreement sets out the very framework you mention. I sell it to you for your own personal enjoyment, but you are prohibited from copying it. You can sell it, and divest yourself of it, but you cannot increase the number of copies in the world. That’s my prerogative, as the creator. All I’m saying is that we as a society ought to enforce that contract. Copyright was only devised because it’s impossible to tell which of my customers violated that contract when five million copies of my song show up on the net.

    “These are at the root of property law but none of them matter one whit when it comes to intellectual property.”

    I think you are confusing the root of ownership with the difficulties of enforcing it. In this digital age, you can create an exact copy of IP at the touch of a button, but you can’t do that with a chair. So, it’s easy and straight-forward to enforce our contract vis-a-vis that chair, but it’s harder with that song. The idea that it’s almost impossible to stop people from copying songs is not the same as saying that it’s acceptable for people to copy songs.

    “That may well be the voluntary transaction you and your listener want to engage in. So go ahead and make just such an arrangement.”

    As I said, we did make such an arrangement. But if I sell a copy to 1000 people, and one of them starts selling copies, it’s impossible for me to know which customer is doing that. Copyright was devised as a contract enforcement tool – it allows me to go after the recipient of the contract breacher’s benevolence instead of the breacher himself, because while I cannot know which customer breached our contract, I can know who now has a bootleg copy. Again, the issue isn’t a difference in some quality of my ownership rights – it’s an enforcement problem.

    “At its heart copyright law is a deliberate restriction on freedom of speech.”

    At its heart, a contract provision with which you agree to comply is a deliberate restriction on liberty, but we accept that. Calling the copying and selling of my song “speech” simply because the song is digitally recorded and easy to copy is too great a leap – it’s not speech.

  • Fraser Orr

    bobby b
    But I do. When we purchase music – a CD, say – the license agreement sets out the very framework you mention.

    Copyright is nothing like a contract. It is created by default, has terms defined by law rather than agreement, and the terms are constantly being changed without the consent of the contractees. Imagine your mortgage company decided as you were coming to the end of your mortgage payments to add another twenty years onto it. I don’t think you’d be terribly happy.

    Copyright was only devised because it’s impossible to tell which of my customers violated that contract when five million copies of my song show up on the net.

    You mean because people don’t take adequate measures to enforce the contract they should create a whole body of law to do so? Mechanisms can be designed to enforce this quite well, as technology to copy increases so does the technology to prevent it. In designing such a mechanism you as the producer must find the right balance between inconveniencing your customers (the higher the inconvenience the less customers you will have) and decreasing misappropriation of your work (the lower the inconvenience the more pirates you will have.) In my experience markets are extremely good at finding that balance and “one size fits all, written by the Senator from Disney” are absolutely terrible at doing so.

    If my company produces a secret document, and it is found in your possession, I can use the courts to find out where you got it to trace the culprit who violated his non disclosure agreement. I can also front load it by making it difficult for that culprit to expropriate the document in the first place. These choices are available to copyright holders too. They just chose the lazy way of a big law of nasty law to do their dirty work for them.

    The idea that it’s almost impossible to stop people from copying songs is not the same as saying that it’s acceptable for people to copy songs.

    Perhaps, but the fact that in the current system it is very hard to stop people from copying songs that that means any mechanism, no matter how damaging to our fundamental rights they might be, is acceptable to prevent people copying songs. People putting stuff on computers or user agreements or contracts is a civil matter freely entered into, copyright is a government matter which is not freely entered into. To me that is a pretty important difference.

    Calling the copying and selling of my song “speech” simply because the song is digitally recorded and easy to copy is too great a leap – it’s not speech.

    That isn’t what I was thinking of particularly. I was thinking about singing “Happy Birthday” to my kid at his birthday party, or writing my fan fiction of “Hermione and Ron: a Love Affair”, or my political parody cartoon “Mickey Mouse Goes to Washington.”

    It is certainly true that the composition of certain material takes time and effort. But taking time and effort does not in itself allow you to monetize your time and effort in anyway you chose, moreover it should not prevent me from using my time and effort to make my composition. The goal in our Constitution of these laws is to promote the progress of science and the useful arts. Our constitution does not talk about or treat copyright as property, in fact it specifically rejects the notion offering instead a different approach.

    Copyright surely does this “promotion” in some respects, but one must also recognize that it retards it too. You’ll never get to read my “Hogwarts: The Next Generation” because copyright prevents me from publishing it. There is supposed to be a balance, and as I say, governments are really terrible at balancing these sorts of things, which is why it needs to be put back into the marketplace.

  • bobby b

    @fraser orr

    Here’s my problem: I’d rather keep government regs to a minimum, but I consider the free copying of IP to be theft. My original point wasn’t that copyright is a wonderful thing – but that IP is the sort of property that deserves to be protected as a right of the original creator.

    Because tech has outstripped tech security, the route of contract enforcement is simply no longer effective in stopping IP theft. DRM doesn’t work; it makes tech unwieldy, and it has never been able to defeat a knowledgeable hacker.

    I have no love for copyright law as it exists today. I think its scope is too wide – e.g., your fanfic examples. But if John Prine makes a CD for sale to the public, specifically so that he can make money by selling it, I consider the free copying of that CD to be theft. His contract with one of his buyers has obviously been breached, but who could ever tell which buyer breached? The solution is to make the downloaders, who have an unpurchased copy of that CD, into the bad guys.

    I think that copyright needs to be reworked into something more limited. That’s one subject all by itself. But I also think – as a separate subject – that we need to protect the right for creators to retain dominion over their creations. Leaving it as “creators need to find a way to enforce their own contractual rights, it’s not our problem” doesn’t work for me. We allow for governmental regulation to help to enforce contract rights in all sorts of situations aside from copyright – we register land titles, auto titles, we prosecute fraud, we provide for central filing of liens, etc. – so why not fix copyright by narrowing its scope and continue with it?

  • Mr Ed

    bobby b

    All I’m saying is that we as a society ought to enforce that contract.

    What if I own land, and the copyright owner allows or suffers to occur a performance of an audible or visual work that comes over my land, be it audio or radio etc. Why can I not record that which passes over my land and do as I wish with it? Under IP law, I am in breach of the law for enjoying the fruits of electro-magnetic trespass or audible nuisance.

    There is no contract for me to breach, nor any tort relating to inducing a breach of contract. Any action against me is an aggression against my peaceful enjoyment of my property and its fruits.

  • Julie near Chicago

    Well, Mr Ed, I’d say that you are perfectly entitled to enjoy whatever Acts of God happen to hit your ears. Although in this case the enabler of the hitting is the Great Frog’s design of the laws of physics. The question is, with the foregoing understood, what if any laws should exist curtailing your possible further enjoyments deriving from the existence of these sounds — such as, for instance, recording them to sell to other people. Or so you personally can hear them again. Or to give to a few friends as gifts.

    Of course some argue that nobody has any business fouling your personal airspace with sounds (nor electro-magnetic phenomena, nor, say, water) anent your permission. Yet I cannot follow the hard-core doctrine quite that far. Much rather put it on T.G.F.

    However, depending on just what the copyright law says about copying (here, recording), there might indeed be such a “contract,” namely the contract you and all others resident in the U.K. have under which you will follow the laws; so if you don’t follow the copyright law, there is indeed a breach of contract.

    Also, consider another example. You are playing your foul music, with the biggest Boze speakers you can find and with enhanced woofers even so, at the maximum volume.

    (You are probably doing that just in order to make me, living in my own property just 12′ from the source of your insufferable racket, go nuclear: either because you hate despise and detest me, or else to enjoy the resulting radioactive glow. But that is beside the point.)

    In that case whether you are operating in breach of contract depends on whether there is law of nuisance against your aggression against my property and my very person, namely my ears and my entire CNS.

    .

    So the compromise we make on this issue is that, yes, within reasonable grounds I can cause you to hear sounds resulting from my production of them, even though per some people that is a case of trespass or aggression, and for others a case of nuisance. You are absolutely entitled to enjoy hearing these sounds (assuming you do enjoy them).

    But the other end of the compromise is that you do not get to copy them and transfer the copies to other people except under the conditions specified by whatever the copyright laws are. Whether said laws legitimatize your making copies for your personal use only depends on exactly what they say. That’s an issue much in contention, here at least, and is exactly the subject of the paper I mentioned above: “Lawful Personal Use,” at

    https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1218&context=articles

    .

    That 2007 paper is from a symposium, “The Frontiers of Intellectual Property,” run by the Texas Law Review. I haven’t looked at the others, but anyone interested can do a search on the symposium’s title.

  • Julie near Chicago

    Fraser, and bobby too, if either of you is still interested….

    First, there’s what I just wrote above in response to Mr Ed’s remarks.

    Second, to make headway in this discussion we need to decide whether we’re talking about copyright law as it exists today (and in the U.S. in particular), which is in theory based on the theory of the Framers when they signed onto the Constitution’s statement authorizing copyright laws;

    or whether we’re discussing an issue of political philosophy as such, which itself is a branch of ethical philosophy.

    Are we talking about the laws themselves, as they are today, or rather about what they ought to be?

    I’m certainly not competent to say much about the law as it exists. But in discussions of theory, I can speak authoritatively on what my views are.

    So, at this point I think I’ll just observe that nobody is entitled to use whatever comes his way, in any manner he chooses, to do whatever he’s moved to do. This is the basic fact that distinguishes liberty from license (in the philosophical sense).

    I don’t suppose any of us who frequent this parish finds that statement controversial.

    I’ll just observe that if I make a copy of your book or your painting or your performance and publish the results my own name as the author, the artist, the performer, than that is fraud and already a crime against whomever buys (or doesn’t buy it, but believes your claim that it’s by you nonetheless).

    And even if I publish it naming you as the original author or artist or performer, it’s still fraud if the public is allowed or encouraged to believe that I am publishing with your permission.

    That, really, is at the bottom of Professor Tolkien’s beef with Ace Publishing.

    And that’s it for tonight. :>)

Leave a Reply

You can use these HTML tags

<a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <s> <strike> <strong>