A Spoonful of Cash
Finally stepping up to the plate on promises of curbing cronyism and undue influence of corporate cash, the Obama Administration has acted to interdict the often-too-cozy relationships forged by lobbyists and decisionmakers. Only in medicine rather than in politics.
The Obama Administration has moved to introduce new disclosure requirements requiring doctors and medical device/pharmaceutical companies to disclose any money or other compensation (e.g., free lunches, paid trips to professional conventions, etc.) paid by the companies to doctors. This would give consumers access to a database that shows whether their doctor is getting paid by the drug company he or she’s now telling you you need. Which might mean that doctors’ dignities may start getting in the way of accepting “perks” too freely.
Poor doctors. It’s almost a definitional oxymoron. But that’s the gist of what Christopher White, executive vice president of the Advanced Medical Technology Association, wants you to think.
Some companies fear that doctors may no longer want to engage in consulting arrangements, and such reluctance could chill innovation.
Their argument appears to claim that doctors are worried that their patients might look down on professional, clinical work in drug discovery and development…or something? Stripped of bullshit, it really means that drug companies won’t be able to sit doctors down, and give them a physician’s version of a hard sell so that the doctor can tell you to get some. The notion that any kind of wheel-greasing would be necessary is absurd when you remember that your doctor would seek out whatever medicine is proven most effective on its own merits regardless of whether or not he or she was given a free trip to the Bahamas to learn more about it.
ProPublica, an awesome, independently-funded investigative journalism group, has already made the empirical case in favor of disclosure in their coverage in Dollars for Doctors. They’ve found actual, causal relationships between the amount of lobbying money spent by device manufacturers or pharmaceutical companies and the choices of which procedures doctors use or the prescriptions they prescribe. And these findings were only based on limited data that had been made available through small, private databases that had been created in the wake of class-action settlements. Yet they still found pretty concrete evidence that there is a definite relationship between the drugs doctors prescribe and spending by those drugs companies.
In the economic sphere, however, this may even reduce overall spending on health care since medical practice is basically oriented around doing every possible thing to prolong life no matter the cost or quality of that life. In a weird way, if our biggest goal were to control health care costs, we’d be rooting for doctors to have fewer tools in the tool-belt, just to blunt their effectiveness a little bit away from the absolute cutting edge. Of course, the converse of that argument is that it is “good for the economy” since the pharmaceutical companies are raking in tons of money as a result of the prescriptions on the cutting edge (the ones without generic competitors yet). But “good for the economy” may still mean a tax that is imposed on the consumer in the form of decreased overall welfare through monopolistic extraction by the device/drug companies.
And so the old saying goes, “sunlight is the best disinfectant.” Let’s just see if it’s also a decent antibiotic.
More Taxation with More Representation
Obama’s State of the Union Address was pretty great. Sure, he took too much credit for killing bin Laden. A few lines seemed like missteps (in particular, copyright/trademark enforcement through customs [aka ACTA] and putting “boots on the border”), and a few proposals seemed highly unlikely to pass through a Republican-controlled House (e.g., most of them). What’s more, I expect that I will disagree on the specifics of a lot of his proposals to “bring jobs back home,” given that they sounded like they were based on a form of tariff-driven mercantilism rather than free markets and free trade (e.g., “stopp[ing] a surge in Chinese tires” helps domestic producers, but hurts consumers in the form of higher prices and limiting what they might have otherwise spent on other goods and services). Let’s not even talk about the “spilled milk” “joke.”
And even though I have been burned by Obama’s grand overtures and lack of follow-through before, and even though this is an election year, I think that Obama did do what he needed to: wax philosophical on broader questions of how government and society should coexist. Because that’s where we are as a country. The now-received wisdom is that gov’ment can’t get any darn thing right and that it’s “class warfare” to raise taxes on the rich (as though it is self-evident why the vast majority of Americans should not engage in “class warfare”). So apparently, we need to have an adult conversation about whether taxes may ever be raised or whether government regulation is proper.
Specifically, Obama was at his strongest in focusing on the disparate tax treatment afforded to people depending on their level of income or industry of employment (in terms of available deductions and other tax loopholes like the treatment of carried interest). A minimum basic tax on millionaires and corporations would do a lot to “level the playing field” between regular taxpayers and corporations or the super-rich (or at least create that perception, which is perhaps equally important). So too would Obama’s proposed ban on Congressional insider trading, for that matter.
Taxation: it’s that one unifying force (other than death) that brings Americans together to demand a level playing field from government.
But when you look at the breakdown of how income actually gets taxed in this country, it’s clear why there is a perception that the super-wealthy (like Mitt Romney) are given special treatment. Romney’s tax returns for the last two years (all 550 pages of them!) show that his income was almost entirely profits, dividends, or interest from investments, which is taxed at the 15% rate. None of that money came from wages or salaries like the vast majority 0f the rest of America. Those wages and salaries, unlike Mitt’s profits and investments, get taxed for FICA and Social Security (payroll taxes, which are around 15% on their own) as well as income taxes (once a wage-earner reaches the minimum income threshold). So, by having enough money to invest for a living, Romney is able to make more than $20 million each year that is taxed as investment income levels rather than salary-earner levels. No wonder people assume that government is irretrievably captured by the wealthy.
On the other hand, most Americans pay less in tax than they think they do, and that amount is significantly less than the value of the services they demand that the government provide.
When people heard that Mitt Romney’s federal income tax rate was about 15 percent, the immediate reaction of many was to assume that their own rate was higher. The top marginal rate is 35 percent, after all, and the marginal rate on a couple with $70,000 in taxable income is 25 percent…Many Americans see themselves as struggling under the weight of a heavy tax burden (partly for the understandable reason that wage growth has been so weak). Yet taxes in the United States are quite low today, compared with past years or those in other countries. Most important, American taxes are not sufficient to pay for the programs that many people want, like Medicare, Social Security, road construction and education subsidies.
…
All told, most households pay less than 15 percent of their income to the federal government because of tax breaks, like the exclusion for health insurance, and because marginal rates apply to only a small part of a taxpayer’s income. On the first $70,000 of a couple’s taxable income, the total federal income tax rate is only 13.8 percent.
And the understanding of just how much/little taxes are collected isn’t a frivolous example of the discontinuity between what voters think and the actual facts (see, e.g., the oft-cited percentages people think we spend on foreign aid [25%] vs. what they’re comfortable with [10%] vs. what we actually spend [0.5%]). Instead, our oft-uninformed griping about taxing and spending has colored the entire tenor of American politics leading into 2012.
The Tea Party deserves at least a little credit for opening the debate on what levels of either taxation or spending would be tenable in the long term (even if their substantive answer to that question is infantile in its provincial interpretation of the range of desirable government activity). So too does the Occupy movement deserve some credit for calling attention to our hypocritically regressive economic attitudes, and for calling into question the desirability of culture organized around mass consumption and perpetual “growth” into oblivion.
And yet, none of our popular political discussions have really addressed the proper scope of either taxation or government spending in a holistic matter. It’s either “shrink it down to the size where we can drown it in the bathtub” or “ummmmmmmmm.” We don’t talk about how we’re paying dramatically less in taxes than the majority of the 20th Century, or about whether increasing spending on monitoring for corporate or individual malfeasance would result in geometrically increased tax revenues (hint: it would). We don’t make voters figure out whether or not the services they demand are justified by the tax burden they shoulder, or even what services would be demanded if one didn’t already know what economic or social situation he or she would be born into. We don’t ask voters to wax philosophic or political. Instead, we ask them to make a binary decision between two candidates who will have institutional incentives to frame things in short-sighted and/or narrow frames to avoid having the passing buck stop with them. This dynamic excuses voters from having to actually understand any issues; they need only “understand” the candidate, whatever that means.
In essence, this is the Baby Boom mentality at its zenith. It’s the doublethink-ish amalgam of “how dare you attempt to take what is mine by rights since the outside world did nothing to create what my paycheck and accumulated wealth represent” and ”government should spend on people now (while I’m alive) because these are the birthright spoils we have attained along with our empire.” We assume that unadulterated Capitalism is the baseline correct answer in every circumstance, that all government spending is per se less efficient than if the private sector had spent it (and that efficiency is the only value worth looking at), that regulation is mostly composed of arbitrary and undue burdens, and that all taxation is an evil to be minimized to the greatest extent possible. But when a politician doesn’t have to respond to the general populace’s demands because he or she knows that those demands will melt away come election day, those demands are contorted and twisted in the service of those interests that are more persistent in pushing for their own special carve-outs.
So, I applaud Obama for taking to the bully pulpit and encouraging Americans to demand some basic fairness in the way they are treated by government. If the state of our union really is strong, we will need to start rising above the behavior of our government.
The Light at the End of the Blackout
At this point, I don’t think I have to tell you about SOPA or it’s slightly less evil twin PIPA. Wikipedia is blacked out in protest of those bills today, as are Reddit, BoingBoing and dozens of other sites hosted by good netizens who care about the vibrancy of the speech ecosystem that is the Internet. Google, Craigslist, and others have at least taken the step of prominently displaying their opposition to the bills (if not gone for the full blackout). So I’m guessing if you’re reading this, you’re at least aware of SOPA/PIPA at this point.
Nor do I think that I can do a whole lot by continuing to elaborate on what I’ve already said about why SOPA/PIPA are terribly misguided and wrong, especially because there are other far more detailed legal and technical analyses out there, infographics both simple and complicated if you like your information arranged visually, and animated gifs involving kittens–this is the Internet after all–to make the case to anyone with an open mind.
So, given that all of these other players have stepped in to illustrate that SOPA/PIPA are a Big Fucking Deal, I would point out that we could be thinking about alternatives to the overly coercive and litigious intellectual property regime we currently live in. After all, SOPA/PIPA are simply the drastically overbroad enforcement mechanisms for an already overbroad Copyright law, and it is that combination that would break the Internet. Just consider how overbroad Copyright must be if many of its Congressional supporters have infringed copyrights in their own websites and campaign materials.
The problem is that Copyright affixes to anything and everything, and lasts for the entire life of its author plus an additional 70 years (on the arguably implausible grounds that these crazy long protections inspire creators to create more). Prior to 1978, it used to be only a 56-year term, and back in the days of the Founding Fathers (when sales of creative works moved considerably slower), it was only 14 years. The reason is that Copyright has slowly morphed into a tool for rent-seeking by the creative industry, which is much more industrial than it is creative.
Indeed, if we’re actually thinking about what might constitute a good ecosystem for creation (and not just whether the latest iteration of industrial rent-seeking would break the Internet), we would have to think about why we are using a one-size-fits-all approach to incentivizing creation. Some things are obviously better suited to shorter Copyright terms (such as speeches or news or other current events), while some are more suited to longer terms (like movies). We used to have a system where a creator would have to take a few simple steps to ensure copyright protection, but those steps would at least allow a few things to slip through to the public domain if they were deemed worthless, and thereby inure to the public’s benefit.
Consumers greatly benefit from having works pass into the public domain. Not only do consumers get cheaper access to works that are unnecessarily protected, but new creators can pull from these older inputs without having to worry about the threat of litigation from these same rent-seeking industrial firms that are trying to squeeze every last dime from everything created since 1923.
As Alex Tabbarok points out, there are ample amounts of creative inputs that could have passed into the public domain if only we let them. And they should have, were it not for ex post facto copyright extension (passed for the sake of the heirs and assignees, hence the name the Mickey Mouse Protection Act), even though it’s pretty implausible to think that creators who had already created the works would somehow have retroactive incentives to have created works over 56 years ago.
Under the old law, the above works could not only have been consumed they could also at low cost and without requiring the express permission of the original copyright holder have been remixed, reworked and extended in new directions. Under the new regime, innovators will not be able to easily build on these works until 2051 and it could be well into the 22nd century before we get Star Wars prequels worthy of the name.
With a more robust cycle of works falling into the public domain, the Raiders of the Lost Ark (and every other film or creative work that stands on the shoulders of countless giants) might not be so terribly ironic.
So while I still expect that SOPA/PIPA will be eventually defeated, I hope we don’t squander our precious moment of illumination and clarity that apparently only comes during a blackout.
Criticisms United
Montana has quickly vaulted up the ranks in the yet-uncompiled list of States I Love For Reasons That Have Nothing to Do With Liveability. It did so in one fell swoop with the Montana Supreme Court’s decision in Western Tradition Partnership, Inc. v. Attorney General, which was basically one big fuck you to the United States Supreme Court’s Citizens United decision. Citizens United is normally referred for the proposition that “corporations are people,” but what it really decided was the validity of corporate campaign finance regulations, which most observers (on the inside and out) agree is a corrupting and dangerous influence that has dominated congress.
The problem posed by Citizens United is one of presumptions, as is so often the case in constitutional law: because lower courts have to read the tea leaves of the scant Supreme Court decisions that may govern a topic in order to determine how the law should apply, a line in a Supreme Court decision may have serious effects on subsequent decisions. For example, Citizens United posed the dilemma of how corporate campaign finance regulation facially regulates speech in a discriminatory manner. As corporations are tantamount to people in terms of their enjoyment of constitutional protections, the Supreme Court reasoned, these laws should receive a level of judicial review called “strict scrutiny.” Strict scrutiny is where the Court weighs the government’s interest against the constitutional right or principle, which comes with a heavy burden that the government must meet to justify the discrimination or infringement of rights (note: strict scrutiny is usually the Court’s code for “we’re not going to let this bill survive”). The most infamous instance where strict scrutiny was applied and the Court found the government’s interest sufficiently compelling came in Korematsu v. United States, where the Court–in an abundance of deference to the Executive Branch to conduct war–allowed the government’s internment of Japanese Americans during World War II.
In striking down the regulation at issue in Citizens United, the U.S. Supreme had to say that the government doesn’t have a particularly compelling interest in regulating corporate speech. Justice Kennedy’s line of logic that dictates the difficulty for a legislature to justify campaign finance regulation of corporations is:
independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.
Which brings us to the Big Sky State, where a law on the books since 1912 provides that “a corporation may not make a contribution or an expenditure in connection with a candidate or a political committee that supports or opposes a candidate or a political party.” The Montana Supreme Court upheld the law, even after applying strict scrutiny, on the grounds that Montana had a compelling interest in regulating corporate speech, given Montana’s “unique history” in dealing with corporate influence in politics.
Noting that, back in the last Gilded Age, Montana’s wealthy “Copper Kings” bought judges and senators, picked the location of the capital, and owned the media, McGrath pointed to Montana’s vast size, sparse population, low-cost elections, and long history of having its resources plundered by foreign corporate interests to emphasize that the state has a compelling interest in maintaining its ban.
And Montana’s move may be much more interesting in contexts apart from the Citizens United kerfuffle. The Montana Supreme Court grounded its decision in an survey of the applicable facts (rather than relying on a legal presumption irrespective of the factual considerations that went into a given decision) in order to find that the government’s interest in promoting democracy compelling enough. This tactic could be applied in other instances, especially if the reviewing Court is inclined to give any deference to the legislature.
So what do we do with this kind of precedent? Maybe we can start by saying that the government has valid and compelling interests in regulating corporate campaign finance as a method to guarantee that our country maintains a healthy and republican form of government? You know, like it says in Article IV, Section 4 of the Constitution that the government is required to:
The United States shall guarantee to every State in this Union a Republican Form of Government…
The fact that the Guarantee Clause has been held to be a non-justiciable issue is just one more reason the Courts might consider exercising some judicial prior restraint.
You Say You Want a Resolution?
I was trying to figure out what to write about for an inaugural blog post for 2012 (seeing as one of my resolutions this year was to blog more frequently than Obama breaks campaign promises), and it occurred to me that Resolution Season™ itself sums up a lot of what I’ve had to say about the past year, and what I should be saying in the year to come.
For one, holidays and other annual events can be productively used to remind ourselves to take a moment to shock ourselves out of our ambivalence and inertia every once in a while. The most productive use of a holiday (aside from gratifying the evolutionary impulse to load up on pre-hibernation calories) is that we ought to take a moment every once in a while to make sure that we are on the right course, whether it’s in life, career, relationships, or whatever. Hence the forging of resolutions for the year to come; we constantly strive to improve that which is within our reach to fix or at least improve.
And yet, there is a problem that when we that cold hard stare in the mirror, we tend to see only ourselves and not our society as a whole. After all, that’s about all of what’s within our reach.
But we do ourselves a huge disservice by allowing that assumption to pervade our politics. We see politics as fundamentally broken, and we let Congressional approval ratings hover around 5% (if you subtract the 1% that leaves 4% of the country as congressional staffers and relatives, I guess?). But despite the very vocal response of certain groups, the majority’s silent response of acquiescence has been deafening.
We have let ourselves defer to the experts because we have forgotten how to ask ourselves the right questions about anything beyond ourselves. We’ve grown either too polite to believe that it would be appropriate to impose our opinions on others or too ignorant to believe that it might be impolite to do so. We’ve seen that someone else would be happy to step up and give their clever or slanted version of the an answer for us because that’s what they’re getting paid to do, perhaps by organizations with selfish interests and purposes antithetical to their own. “And in this economy, who can expect them to do anything else,” we ask rhetorically, forgetting what the words mean. We forgive ourselves the need to ask big questions because we have “enough” trouble taking care of ourselves.
And even when we listen to authors discuss the Arab Spring or Occupy Wall Street or the end of the American Empire [Chris Hedges is especially worth a listen if you have three hours to spare] with solemn approval, we let ourselves continue complacently down the path of comfortable entrenchment.
Corporate culture absolves all of responsibility. This is part of its appeal. It relieves all from moral choice. There is an unequivocal acceptance of ruling principles such as unregulated capitalism and globalization as a kind of natural law. The steady march of corporate capitalism requires a passive acceptance of new laws and demolished regulations, of bailouts in the trillions of dollars and the systematic looting of public funds, of lies and deceit.
Of course, The People have stood up in a significant way this year; Occupy Wall Street has demonstrated the power of the crowd in an age of digital democracy. After all, a crowd that’s always “connected” can never really be dispersed; it’s always still out there. But what the has crowd been able to do is still largely in flux. We have yet to see what policies will change, what political self-examination may occur.
Perhaps what Occupy Wall Street really says right now (at least until we have some more electoral evidence to discuss) is that political talk is cheap, but hard to convert into action. Whether it’s campaign finance reform, infinite surveillance, or indefinite detention, there are no fewer than a dozen issues that are each like fifteen extra pounds America hopes to drop in the coming year. But somehow America always seems to end up gaining five more pounds on a fad diet in the process.
And meanwhile, here I am, at the crossroads of a new year, not at a writer’s block but in a writer’s loop. I have been repeating myself without much forward progress because I am writing from the comfort of my own prejudices to a small, self-selected audience. If anything I write is to have any greater purpose, I should be pushing it on a change-resistant public like free samples of bourbon at an AA meeting. So here’s a resolution: I’m going to participate in a discussion broader than this blog’s loyal, supportive readership. Hopefully, that’s one resolution that I don’t blow off by February. Or 2013.
Keeping the Ha in Hanukkah
Happy Hanukkah to all my Hebraic friends and family out there, and even to those of you who are not. Yes, that’s right, I’m going to impose my wishes of a happy holiday that you may or may not celebrate, and I think I’m justified in doing so. No, not for the reasons you hear shrill, uptight women in pantsuits screaming on about on Fox News (I assume). I’m not talking about that prideful “I am going to wish you the seasons greeting that I want to receive, and you can just take it and not be such a whiner about it if you think differently” or the “as a society, we need to put the Christ back in Christmas” or anything like that.
My justification for wishing you a happy holiday (that you may not celebrate) comes from the same reason that I myself found to celebrate the holidays and continue to keep them in my own life, even if I have not exactly embraced the canonical mythos of the supernatural ramifications of that celebration. It’s that I want you to have happiness, and maybe in a way that thoughtfully honors history and tradition.
Having been religiously educated, last night I performed all of the rites and rituals with a historical perspective, and explained to my girlfriend last night what each and every part of the Hanukkah tradition comes from and why those values might still be relevant today. I explained to Janet that, as with all Jewish holidays, we start by lighting the candles to indicate that the sun has set and that the holiday (which begin at night in the Jewish tradition) has officially begun. As I began lighting the candles and saying the prayers, I explained that Hanukkah means “rededication” in Hebrew, and is so designated because of the Jewish recapture of the holy temple after having been desecrated by the Assyrians (Syrian-Greek) in the 2nd Century B.C.(E). The Jewish troops were said to have won a miraculous victory over the much more powerful surrounding forces, and when they got to their temple, they were trying to celebrate Sukkot (which they had missed through the course of the battles), and such a celebration requires the temple’s menorah (a seven-pronged candelabra) to be lit for 8 days (when you include Sh’mini Atzeret) with only pure, religiously sanctified oil. Hence the story of the miracle of the oil that burned for 8 days and enabled the Jewish re-conquerors to celebrate the holiday they had missed, and hence the nine-pronged hannukiyah (one candle is there to light the others).
Other contextual explanations could have included that the dreidel traditionally includes the first Hebrew letters for each word in the sentence “A Great Miracle Happened There*” (*Substitute “Here,” if in Israel), which mostly refers to the miraculous battle, but the oil as well. Really, the miracle of the oil is more directly honored by the tradition of eating of fried foods like latkes and doughnuts, but a tradition is really only important to the extent that it provides meaning or other context to one’s life.
And that’s really the moral of this story of Hanukkah celebration: traditions need not have the most unimpeachable pedigree in order to have meaning in one’s life. Valentine’s Day may not have come from anything more than a Hallmark executive’s scratch-pad, but that doesn’t mean that its existence doesn’t prompt people to do nice things for one another (though it can create anxiety and stress if people don’t have the same level of importance ascribed to the same tradition). And regardless of whether or not I believe in the Hanukkah story or whether I care about whether some deity cares about whether or not I believe, the point is that I can create a historical and cultural connection between myself and tradition, and link myself to that people, and feel some joy and unity in the simple fact of celebration and appreciation for what one does have in life.
As a younger person, I think that too often I felt like those “Gotcha!” moment of finding some fault or inconsistency in a tradition were sufficient to invalidate its meaning to me. But those were Pyrrhic victories. The synthesis of belief and skepticism is instead to understand and appreciate why the traditions developed in the way they did, examining what values those traditions fostered, and finding a way to emulate whatever could still work to promote the values that you would like to see in the world. It doesn’t matter what religion you were born into; it matters how your actions (and traditions) in this world get you where you want to go and turn you into the person you want to be.
Apparently, emulating my elementary school teachers instills in me the value of sappiness.
Life, Liberty, and the Pursuit of Terrorists
Oof. Even though I have certainly become numb by now and I should have known better from the start, it still hurts. No, I’m not talking about the fact that I just had my phone stolen from out from my hands (AGAIN!), I’m talking about the fact that the National Defense Authorization Act is one of the scariest pieces of legislation I’ve ever even heard of, let alone the legislation that will have been passed by Barack Obama. Forget the PATRIOT ACT; this is pure Orwellian crude.
In the most scarily relevant part, the NDAA would enable the Executive branch to not only indefinitely detain any individuals classified as “terrorists,” but also much more. As Glenn Greenwald put it:
Section (2) is a brand new addition. It allows the President to target not only those who helped perpetrate the 9/11 attacks or those who harbored them, but also: anyone who “substantially supports” such groups and/or “associated forces.” Those are extremely vague terms subject to wild and obvious levels of abuse (see what Law Professor Jonathan Hafetz told me in an interview last week about the dangers of those terms). This is a substantial statutory escalation of the War on Terror and the President’s powers under it, and it occurs more than ten years after 9/11, with Osama bin Laden dead, and with the U.S. Government boasting that virtually all Al Qaeda leaders have been eliminated and the original organization (the one accused of perpetrating 9/11 attack) rendered inoperable.
In layman’s terms: the military can arrest anyone who they think (or can justify) may have supported “the terrorists.” Does kind of logic ring a bell to anyone who lived through the Bush administration? Does “Either you are with us, or you are with the terrorists” sound familiar? Do you think that such a Manichean worldview is consistent with American values such as the right to dissent or freedom of speech and thought? Did you know that protests are considered “Low-Level Terrorism” by the Department of Defense? Yes, Time Magazine’s “person” of the year may be considered a terrorist, as long as the military personnel say that the protester was getting “violent” of course.
The ability to indefinitely detain has always been sold to the public and the Courts as necessary to wage the war on terror, even though such tactics violate our most basic conceptions of human rights, let alone rights we normally accord to our own citizens (see, e.g., Guantanamo Bay, Abu Ghraib, Hamdi v. Rumsfeld, etc.). Where is the idealism that Obama promised he would bring to the Oval Office to cleanse it of the stink left by the Bush Administration?
While my own interests in technology and copyright make me passionate about terrible legislation like SOPA (especially given that it will–according to the engineers who know anything about the subject–break the Internet), the implications of the NDAA are far more terrifying, given the interests that hang in the balance when either piece of legislation comes up for judicial review.
On the SOPA side of the equation, the interest being protected is mostly just the entertainment industry. Surely, this is an interest group to fear, given their appeal to both Democratic legislators (for filling their campaign coffers) and to Republican legislators (who will take any opportunity to decry illegal acts and subject them to harsh punishment). However, the Courts stand as a strong potential bulwark of this interest gone greedy; the Courts have a historical inclination to invalidate a law as overbroad as SOPA, and the necessary historical jurisprudence to back them up. What’s more, even if Congress doesn’t understand the implications that SOPA will have on the architecture of the Internet, a Court can take the time to learn and understand the implications of overzealous takedown notices. At that point, a Court can weigh the competing interests and, in all likelihood, find SOPA to be an unconstitutional infringement on Freedom of Speech.
However, the set of competing interests and questions on the table for the NDAA is completely backward. National security has long been an opaque black box that the Courts have not been able to effectively review thanks to the assertion of the State Secrets privilege by the Bush and Obama administrations. Under this doctrine, the Executive branch says, “we can’t tell you why we need this extra power because telling you why would reveal information we need to fight The Terrorists®.” The Court is thus faced with the dilemma of forcing the administration to divulge potentially life-threatening information or allowing them to proceed in dealing with the War on Terror® on their own terms and without an effective check. Such courts are often been inclined to let the government slide instead of creating life-threatening risks. It’s a lot harder for a Court to enable needless deaths than it is to allow speech to go a little unpunished.
Therein lies the microcosm of Hobbesian philosophy in today’s politics. As early as the mid-17th Century, Hobbes had argued that the human imagination’s capacity to generate nightmare scenarios is essentially infinite, which thereby justifies the retention of unlimited power by a Leviathan government in order to guarantee the safety of its citizens (security being the number one obligation of the government to its people pursuant to a social contract). The government had to have the right to enter or possess one’s property at all hours in order to guarantee its safety.
Of course, America is often thought to be premised on different assumptions; Locke diverged with Hobbes and said that we collectively and voluntarily designate the powers that the Government will retain. When America granted powers to its government, it tried to limit them by never granting such broad powers to the government in the first place, and in the second place by explicitly retaining rights to assembly, peaceable petitions for redress of grievances, freedom from unreasonable searches and seizures, and so on.
However, over the last two centuries of crises, there has been a continual erosion as the infinite fears of the populace become more realized. Whether it is the Civil War or the War on Terror, the threat to human life is a powerful force that can induce Americans to prefer the sacrifice of our liberties, which Hobbes would be quick to note as an essential condition of humanity. That’s why, when the American people gave to the Executive Branch the power to wage war, America gave the corresponding “check” to Congress, and required them to declare when war should be waged. However, the NDAA is not a declaration of war; it is a declaration of perpetual war.
Both the NDAA and SOPA are tragic examples of how government action is frequently subjected to the Politician’s Syllogism:
Something must be done.
This is something.
Therefore, this must be done.
This logically fallacious line of thinking lies at root of each problem. SOPA is the industry-approved version of copyright enforcement, and of course it’s overbroad because the industry wrote it for themselves, not the public’s benefit. By the same token, the NDAA was written to appease people who have the responsibility of waging war against a very difficult and clandestine enemy, and the NDAA could provide one more weapon in that fight even if it means that America has to give up a lot of freedom in the trade. There are many, many reasons to critique either of these proposals, but those critiques rarely come with an alternative magic bullet solution to the problem that the legislation purports to solve. At that point, the people who want to have the problem solved often win the day because their interests are much more wrapped up in the legislative process than the dispersed majority of Americans who aren’t paying for lobbyists to protect their generalized interest in freedom.
Part of the problem seems to be that both democratic politics and democratic peoples have a gut reaction that requires them to prefer any kind of bold action (even if it’s reckless) to criticism of that policy if that criticism doesn’t come bundled with a more compelling alternative course of action. People want to believe that we can succeed if we just show our will to fight.
But what of the end goal of all of this? America seems to have forgotten that what we wanted for ourselves in the first place was more freedom, not more government-provided security at the expense of those liberties.
Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety.
–Benjamin Franklin
Louis, Eat Cake
Democracy may not be a truth-producing machine, but it seems to succeed when the product need not be exclusive or universal. Take Louis C.K. as an example, the latest big, fat data point in my unceasingly told-you-so argument on what it means to produce in the digital era. Because I’ve made the argument more times than I care to count, here it is in short: big studio productions used to be necessary to produce entertainment because the means of production and distribution were expensive and scarce (i.e., high barriers to entry); now, everyone has a high-quality camera on their phone and the internet is a sufficiently large platform to allow anyone to share anything with anyone at costs approaching zero (i.e., low barriers to entry). The digital era is thus democratized for content as inputs and outlets have proliferated, allowing people to pick and choose content with much greater specificity.
Louis C.K. has benefited from this fractured media because has a specific brand of humor that may not be for everybody, so he would have never made it on broadcast TV back when each station had to try to get as big a market share as possible. After all, some people don’t have a sense of humor or triple-digit IQs. But that strong sense of specificity and individuality makes him a lightning rod for that segment of the population who do share in his comedic sensibility.
And Louis combines that strong artistic perspective with an incredible work ethic; he famously develops a new hour of material every year and then never performs any of those jokes again after video-taping an hour-long special. And that’s not counting writing, directing, producing, acting and editing his amazing FX show “Louie,” which is basically the most profound thing on TV (or raising his daughters).
Louis’ deal with FX is famous within the comedy industry; he has almost complete control with essentially no veto power by the network, meaning it is basically entirely his vision that makes it onto the airwaves. As he told Reddit in an AMA (i.e., Ask Me Anything):
I got [almost complete control] by demanding it and refusing to do the show any other way at all and by having the leverage that I was completely willing to walk away without doing the show and by agreeing to an extremely low budget so that they could offset the risk of giving me this freedom becuase they are risking less money. [sic]
I have had conversations with them about very few moments in the show but zero battles.
The resulting combination is that Louis is a one-man industry, capable of bringing ready-to-consume content to market with a relatively small budget, especially since most of the content is based around normal, everyday human interactions. He is the paragon of what a comic can achieve with a little bit of financing and total independence.
Now, Louis decided to take things all the way to the grand experiment: he decided to put up his own production budget and produce and distribute an hour-long special all by himself (with some hired hands for taping and a website of course). This is the kind of thing that would normally be financed by HBO or some studio like that, and it would normally come with the usual bells and whistles that come with a huge marketing department and the other bloated vestigial remnants of the studio production model in days of yore. By contrast, all Louis had was a small social media campaign run entirely by himself (including the aforementioned Reddit AMA and the outtake clip below). Which left people wondering, could Louis actually turn a profit by selling it to the people directly (and for only $5 no less)?
The short answer: yes. The long answer: and then some. In a statement released after just four days of sales, Louis said:
The show went on sale at noon on Saturday, December 10th. 12 hours later, we had over 50,000 purchases and had earned $250,000, breaking even on the cost of production and website. As of Today, we’ve sold over 110,000 copies for a total of over $500,000. Minus some money for PayPal charges etc, I have a profit around $200,000 (after taxes $75.58). This is less than I would have been paid by a large company to simply perform the show and let them sell it to you, but they would have charged you about $20 for the video. They would have given you an encrypted and regionally restricted video of limited value, and they would have owned your private information for their own use. They would have withheld international availability indefinitely. This way, you only paid $5, you can use the video any way you want, and you can watch it in Dublin, whatever the city is in Belgium, or Dubai. I got paid nice, and I still own the video (as do you). You never have to join anything, and you never have to hear from us again.
Louis proved what was more or less predicted: that a big studio is not necessary when the quality of the content is there and there is a sufficient built-in audience willing to consume the stuff, if you’d only serve it up to them in a convenient manner that doesn’t impose other ancillary costs (like a subscription to HBO for the year). What’s more dramatic is that the disintermediation of not needing an HBO as a middleman means that artists now have a model to make their own “Louis C.K. deal,” and bring their product to market without running it past the dreaded censors.
Others, including Bill Maher, are already following suit. Who knows, maybe the revolution will be televised, after all? Just on YouTube instead of network TV.
Legal Ease
For those of you who, like me, can get frustrated at how much idiocy pervades the legal system (whether or not you’ve voluntarily taken a position to be exposed to it constantly), there is a blog you should know about! Lowering the Bar has some delightful snippets that lawyers and non-lawyers can appreciate, even if–or perhaps especially if–you never want to even hear of another lawyer again. Think of it as the Darwin Awards for lawyers. For example, who wouldn’t appreciate a gem like this?
Joan Newberger v. Department of Wildlife & Fishery, State of Louisiana, Case No. 2:11 cv 2996 (E.D. La. (New Orleans), filed Dec. 8, 2011). Lawsuit for American with Disabilities Act violations and wrongful seizure. The plaintiff’s four service monkeys were taken from her as she attempted to change their diapers and feed them on Bourbon Street.
Or this other lawsuit filed, also by a pro seplaintiff (i.e., the person doesn’t have a lawyer):
Ray Miles v. State of Kansas; Kansas Highway Patrol; Capitol Police, Case No. 5:11 cv 4180 (D. Kan. (Topeka), filed Dec. 8, 2011). Petition to be ‘left the f*ck alone’ where the defendants harassed the plaintiff for ‘no reason.’ $100 million demanded.
Dec. 9, 2008: The Minnesota Court of Appeals rejects Senator Larry Craig’s argument that his airport-bathroom-stall conduct is protected by the First Amendment. The court holds that “even if Appellant’s foot-tapping and the movement of his foot toward the undercover officer’s stall are considered ‘speech,’ they would be intrusive speech directed at a captive audience, and the government may [therefore] prohibit them.”
Or
Mar. 9, 2009: The California Court of Appeal rules that a contract for which there is no consideration is not enforceable even if it is written in blood.
Or
June 30, 2009: A California court holds that a man who tripped and fell into the giant bonfire that ends the Burning Man festival in Nevada cannot sue the organizers for failing to keep him away from the fire. The man admitted he knew “fire was dangerous and caused burns” before he approached one, and the court holds that he therefore assumed the risk of injury.
Or
Sept. 14, 2009: The U.S. Tax Court rules against tax attorney William Halby, who has claimed amounts he spent for what he calls “intimate therapy” services as deductions for “medical expenses.” The court points out that paying for this kind of “therapy” is illegal in New York. It also criticizes Halby for failing to get itemized receipts.
Or
Oct. 1, 2009: The Wall Street Journal reports that Justice Scalia has praised counsel appearing before the Court but expressed concern that so many good people are becoming lawyers: “[T]here’d be a . . . public defender from Podunk, you know, and this woman is really brilliant . . . . Why isn’t she out inventing the automobile or, you know, doing something productive for this society? I mean, lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table . . . . And I worry that we are devoting too many of our very best minds to this enterprise.”
Oh.
Copywrong and the Long, Overreaching Arm of the Law
Last year, Hollywood (aka “Big Content”) failed to get Combating Online Infringement and Counterfeits Act (COICA) rammed through a Congress distracted by debt and budget crises. Most of us breathed a sigh of relief that Big Content didn’t manage to foist the responsibility of enforcing online copyright onto the federal government or require the government to kill apparently infringing websites. The inherent murkiness of claims of copyright infringement (i.e., is this content copyrighted [or copyrightable] in the first place, does this person have the right to reproduce the content, is this a fair use, etc.) is particularly worrisome if you care at all about the chilling effects that such ruthless enforcement would have on free speech. Such enforcement would be even more scary if you also cared about access to justice for people who cannot afford to pay the legal fees that might be necessary to vindicate their claims (and which Big Content would be saving by shifting the burden to the federal government).
Well, while Congress was gone, Big Content had a chance to regroup and reformulate their strategy. Enter the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA). Both bills have been described as bills that will “kill the Internet.”
More specifically, SOPA prescribes Internet “blacklists” whereby a copyright holder can simply claim (without verification) that a suspicious site is infringing on their copyright, and add that site to the blacklist. After adding the site to the blacklist, the copyright holder needs only send notices to credit card companies and advertising networks to shut down all payments to the site. Cutting off the flow of money to these small sites would cripple them, despite having no opportunity to be heard on whether there was even an infringement in the first place. Such a site would then have to use its dwindling resources to take the battle to court over legal questions that are usually far from clear (especially when fair use is at issue).
Or the copyright holder can just sit back while the Attorney General’s office gets a court order to force Internet Service Providers to block people from viewing the site, to force search engines to remove those sites from their results, and so on. Before you ask, “are we in China or something, with all this proposed site-blocking?” there’s more: the purported infringement does not need to be direct, and SOPA reaches sites that may merely “facilitat[e] the commission” of copyright infringement (goodbye YouTube, user-generated content sites, and many parts of Google). And even more ironically, the kinds of privacy/circumvention tools supported within human rights communities and by the U.S. government as part of Internet freedom initiatives against authoritarian censorship are also targeted for elimination under SOPA.
But let’s say you just want to promote artistic creation. SOPA fails at that measure too as it prescribes up to five years in jail for one infringing upload such as a YouTube video of you singing a pop song. Even a Justin Bieber fan visiting http://freebieber.org/ can realize the implications of this inexplicably broad provision: the videos that teenage Justin Bieber posted of himself singing songs by his favorite artists would be felonies under SOPA. This is a particular irony, since those videos launched Bieber’s career as a musician – exactly the people SOPA is intended to protect.
Predictably, SOPA has already been the target of a massive campaign to stop its passage. Google has even threatened to leave the United States Chamber of Commerce over the issue (and Yahoo! already has). And with the lightning storm of negative attention SOPA has gotten, PIPA (which was originally a rewrite of COICA, which is now sounding like a less harsh alternative) has been modified to now include almost all of the same terrible aspects of SOPA. Perhaps Big Content is hoping to confine negative attention to SOPA, so that PIPA can slip through relatively undetected.
Now, before I go any further, of course I recognize that it’s entirely reasonable and fair to expect content producers like Fox, Viacom, Universal or BMI to get a return on their investment, and it’s even more understandable that Big Content would want to prevent people from consuming and distributing such intellectual property without paying. My concern is not whether or not these creators deserve to get paid; it’s a question of whether they should be allowed to destroy freedom of speech and expression to protect their investments.
In the same way that drug use may be deplorable and something that everyone recognizes is illegal, SOPA proposes an all-out drug war, but with the collateral damage being your freedom to communicate.
Copy machines were a boon to business when they became widespread. Goodbye carbon paper, hello inappropriate office humor. Fax machines were an excellent invention too. A document could be sent across the country without having to transport it. These inventions made it much easier to reproduce and send copyrighted material. Doing so was illegal. But we didn’t respond by holding office hardware or telephone companies responsible for any user who broke the law.
And, as Matt Yglesias pointed out, there is a legitimate and open question of whether we want an intellectual property system that cracks down on all copying whatsoever. Do we want a system “that gives the first company to stumble on a basic user interface concept like the graphical user interface or multi-touch tablet computing to have a 20-year monopoly on those concepts.” Or do we want the benefits from innovation to flow to the people?
Copying of business concepts is integral to the “invisible hand” model of market competition. The idea is that firms want to become more profitable. So they think up ways to cut costs or raise prices or increase sales or whatever. Profit! But then other firms look at those ideas and copy them. The result is a Red Queen’s Race. Firms need to be constantly copying other firms’ best ideas just to avoid going out of business. The ultimate beneficiaries end up being consumers, who take advantage of the more/better/cheaper products.
Indeed, with such a massive imposition on the people’s ability to communicate and learn (as well as the huge costs of monitoring and enforcing this scheme), there isn’t exactly an issue of whether SOPA/PIPA would enhance the welfare of the people at large. It’s pretty clear that SOPA/PIPA are for the benefit of Big Content, thrashing about in a world where their business models have become increasingly obsolete (thanks to the democratized world created by the sites they’re trying to squelch). It’s therefore no surprise that record executives make arguments about starving artists, even though artists have made more money, on average, after the rise of online tools that enable self-production, free distribution, and self-promotion.
Instead, Congress is merely the current venue for the latest demands of corporate entitlement, just as the Treasury and even the Federal Reserve were conduits of secret tax-fueled bailouts that large banks treated just like income, and just as the Judiciary is the arena for the patent trolls and the patent trolled to duke things out. The proof is in the fact that the MPAA is now openly negotiating what language should make it into the final form of SOPA.
Back in the old days, Congress was a branch of the federal government, separate from corporations, that wrote and passed laws to defend the general welfare of the United States. These days, however, that work is being outsourced to private interests while the actual members of Congress, quaint as they are, spend their time fundraising for their next re-election campaign.
When you hear that both Nancy Pelosi and Darrell Issa are agreeing that a bill is bad you know that there’s something seriously devious is afoot.
