This article was originally published on Salon on July 7, 2010.

In which a newspaper columnist attacks little girls for the anti-American act of giving away lemonade. Really

Sometimes you can’t tell if someone is pulling your leg or being serious. So for a few minutes after I read this column from the Chicago Sun-Times I was sure it was a gag, but then I realized it was published on July 5 and not April 1.

To sum it up: The writer, Terry Savage, got all exercised because three girls in an upscale suburb had set up a lemonade stand but were giving it away instead of demanding payment. Here is my favorite part of the rant, in which the kids are instructed:

You must charge something for the lemonade. That’s the whole point of a lemonade stand. You figure out your costs — how much the lemonade costs, and the cups — and then you charge a little more than what it costs you, so you can make money. Then you can buy more stuff, and make more lemonade, and sell it and make more money.

But wasn’t this really about the spirit of giving, as another person suggested? Savage insisted:

That’s not the spirit of giving. You can only really give when you give something you own. They’re giving away their parents’ things — the lemonade, cups, candy. It’s not theirs to give.

Uh … Let’s follow the “logic” of the second quote just a bit, then return to the first. The girls did own what they were giving away: It had already been given to them by their parents. Surely that’s as easy for the kids (and maybe Savage) to understand as any mercantile notions, no?

The idea, more important, that the parents needed to teach them to approach this endeavor in mercantile ways — or, I guess, be scarred forever as incomplete capitalists — is laugh-out-loud loony. Voluntarism, and doing good deeds, are as American (or used to be) as getting rich.

Savage did have a reasonable point spinning off the initial premise:

America is getting it all wrong when it comes to government, and taxes, and policy. We all act as if the “lemonade” or benefits we’re “giving away” is free.

And so the voters demand more — more subsidies for mortgages, more bailouts, more loan modification and longer periods of unemployment benefits.

They’re all very nice. But these things aren’t free.

No, they aren’t. And it’s clear enough that our national sense of entitlement has led us into the worst kind of trouble. Someday, maybe soon, the reckoning will arrive, and when it does America’s grotesque debts will come due. My generation has stolen so much of the future from our kids and generations to come that we should be ashamed.

But we learned to steal from experts — especially from people like the Wall Street gang whose financial “innovations” were new kinds of paper that were only one step removed from the counterfeiters of yore, and apparently legal only because several generations of politicians were paid to make it so. Successive Congresses and presidents, except for a few years during the Clinton administration, spent our kids’ money with epic irresponsibility.

We learned to steal from the people who raided the treasury for billionsin cash that went missing in Iraq after the United States invaded. We learned from the epic corporate welfare of recent years, such as the telecom industry, which got exclusive use of our airwaves and street rights-of-way and then sold it back to us. As Cory Doctorow notes, in a different but fun take on the lemonade scandal:

Get that, kids? The correct thing to do with the stuff you appropriate from others is sell it, not give it away! Sounds about right — companies take over our public aquifers and sell us the water they pump out of them; telcos get our rights of way for their infrastructure, then insist that they be able to tier their pricing without regard to the public interest. Corporatism in a nutshell, really.

But, yes, let’s face it: We also learned to steal from each other as so many Americans demanded services we were totally unwilling to pay for. Some in the Tea Party crowd are hilariously hypocritical when they demand that government keep its hands off Medicare, but even before the economy went south we were collectively demanding that government (at all levels) spend or promise to spend money that could not possibly be repaid without higher taxes, which we then insist are off the table as even a possibility.

What America does need to do is recover our senses about responsibility. It will take a generation of investment and sacrifice, starting, one hopes, with the people whose corruption created the mess we’re in today, especially Wall Street and our political class, but also everyone else who’s been spending the next generation’s money so freely.

The investments won’t come only from the taxpayers, though we have enormous challenges we can only handle with national decisions. Shared sacrifice will mean a restored sense of voluntarism and civic duty.

People volunteer their services all the time, not looking for payment (ever heard of the barn-raising or a volunteer fire department in a small town, for example?). The “business model” for community theater is to enrich a community’s cultural life, and to give amateur actors a way to go onstage and fulfill something in their own lives. Maybe “free lemonade” that quenches some thirst and makes three girls happy has community-enrichment value, too.

We’ll need to learn more from the open-source and free-software folks, who produce often  valuable work without direct payment to themselves. Some are making a living off it by providing ancillary services. Others do it because they believe in the principle. They may or may not love capitalism as it’s practiced today, but they do believe in contributing a piece of their lives to a larger cause. (The title of this post is a riff on an often-cited line about the difference between free and open-source software, as seen by Richard Stallman: Free as in freedom speech, not as in beer.) (Thanks, whitenoise…)

I sense a latent but real understanding of what’s needed among the American public, which is waiting for a leader to ask the best of ourselves. Sadly we don’t have leaders like that.

(Corrected: Terry Savage is a woman. Stupid mistake by me…)

This article was originally published on Salon on July 6, 2010.

Technology’s points of failure — and control — remain a constant worry even in the Internet Age

The SEACOM fiber-optic cable is one of the major data conduits connecting Africa’s networks to the rest of the world. SEACOM has suffered a serious outage in the past 36 hours or so, and Internet users across a wide area are having problems as a result. Among those affected are the South African universities that use a SEACOM-reliant regional research networking service, TENET, which also means that I and about 800 or so other participants at a pair of international mediaconferences in South Africa are mostly disconnected from email and the other Internet services we normally find essential.

It’s easy to grumble in such situations, and we’re all doing that. And it’s essential that we work on ways to increase network reliability — and reduce our vulnerability to situations where a single point of failure can paralyze vital services.

Even as we realize how far we have to go before we can fully trust that when our online tools will be available when we need them, we need to remember how far we’ve come. A decade ago, on my first trip to Africa, dial-up phone access was the main way I connected to the Internet in my travels — if I could connect at all. And just decade before that, hardly anyone in America, much less Africa, had even heard of the Internet.

The problem we’re experiencing here will pass. Repairs to SEACOM are under way (though conferees may not be back online properly by the time we leave two days from now). And Africa’s telecommunications system, while far behind the rest of the world, is steadily improving in a general sense.

Meanwhile, I’m sending this column via the somewhat iffy WiFi connection at the B&B where we’re staying. The establishment subscribes to an Internet service provider (ISP) that either doesn’t depend, down the pipe, on SEACOM or, unlike the university system, has found a way around the affected cables via other fiber-optic lines.

Yet the outage here reminds us that our interconnected world — and the technology we’ve increasingly come to rely on — remains all too vulnerable to areas of control that amount to outright choke points. Accidents or deliberate actions can achieve the same result: Network services go down or are censored; market-dominating software and Internet companies have critical bugs or use their power to make unilateral decisions.

Sometimes our problems are of our own making. Big Internet customers typically have backup plans for network outages. Home users typically don’t. This is one reason why the epic consolidation of the ISP business in much of the world, including the United States, into duopolies or oligopoly is a dangerous trend. When Comcast or AT&T has a major outage, millions of people are stuck until service is restored. And the internet “backbone” system — the lines that carry the longer-distance traffic — is becoming more and more a fiefdom of a few big players.

Choke points are built into other parts of our culture and economy. We encourage single companies to control access to life-saving drugs. We have an energy ecosystem, especially the electrical grid, that’s scarily vulnerable to disruption. We invite huge financial institutions to make wild bets with other people’s money, grow too big to fail without bringing down the global economy, and then let them steal the rest of us blind when their insane bets go bad. A few thunderstorms in the wrong places create absolute havoc in airline traffic, in part due to an aging and nearly archaic Air Traffic Control system. Even a mild pandemic of a slightly more lethal virus than last year’s H1N1 would overwhelm our already-stretched hospitals. And so on.

The best solutions are redundancy and competition, of course. But there seems little political will to make the kinds of decisions that would encourage more of either. A rare exception was last week’s Obama administration proposal to expand wireless bandwidth; we’ll see if the telecom industry’s lobbyists find a way, as they always try, to scuttle any initiative that expands competition.

There’s not much individuals can do about the mega choke points except tell politicians that they care, and vote. But we have more choices about the control points that affect our daily lives.

This is why you should keep in mind that data you post online — in places like Flickr, YouTube, Google Mail, Yahoo, Facebook and so many others — is much more in their control than yours. Can you get your information out as easily as you put it in? Rarely. And if you’re using a small service that someday goes out of business, you might be entirely out of luck.

That’s also why you should be wary of doing business with companies that sell you gadgets or other technology and then insist that they, not you, have ultimate control over the ways you can use them. Apple is most famous for this kind of control-freakery in its iPhone/iPad ecosystem, but is hardly alone. You may recall that Amazon (a company in which I own a small amount of stock) drew well-deserved fury when, for reasons it considered compelling, it removed books from customers’ Kindles remotely. Apologies don’t suffice; the way to avoid such gaffes is to be open and non-controlling.

And the way for the rest of us to avoid being on the receiving end is to have a Plan B for the essentials. Do you?

This article was originally published on Salon on July 4, 2010.

On Independence Day, noting that the truly independent American journalists don’t work for big organizations

GRAHAMSTOWN, South Africa — Journalists tend to take themselves too seriously, and their craft not seriously enough. So it is apt that some famous and obscure quotations and aphorisms about the value and function of a free press adorn the tiled walls of the restrooms at Rhodes University’s African Media Matrix — the building that houses what is widely considered the continent’s top journalism school.

One of those quotes is from Nelson Mandela, spoken in 2002, and it feels dismayingly correct today:

“A bad free press is preferable to a technically good subservient press.”

In the wake of a major journalistic scandal in the United States, broken open in the last week, I have to say that America’s establishment press has never been technically better, but never more pathetically subservient. My hopes increasingly ride on an often bad free press that is getting better all the time.

Let me also say, upfront, that there are honorable exceptions in the top ranks of America’s major media organizations. But in what may well be seen someday as a seminal event in U.S. media history, senior people at the two newspapers widely considered to offer the most comprenensive political coverage have admitted — and, God help us, defended — their technically good subservience to the American government.

Salon colleague Glenn Greenwald has discussed in detail the truly disheartening response to a Harvard study showing that the Washington Post and New York Times skewed their coverage of America’s post-9/11 torture policy, using the Bush administration’s newspeak language — “harsh interrogation techniques” was a favorite — instead of plain old “torture,” the word they’d previously used to describe the same acts.

And then, when asked why, top editors and spokespeople at both papers effectively said that once the Bush administration and Republican allies had pushed for the new language, the news organizations were duty-bound to use it, too, or else be seen as slanting the news.

That the news organizations had changed their language was itself disgraceful. That they then compounded the damage, with a defense that was almost the definition of a subservient press, was heartbreaking.

But George Orwell was rolling in his grave — perhaps with joy that he’s been proved so right, but also pure despair.

***

I’m participating at a pair of conferences in South Africa this week,Highway Africa and the World Journalism Education Congress. (Some of the travel costs for me and a companion have been covered by theconference sponsors.) It’s my fourth time at Highway Africa, a gathering that brings together many of Africa’s most forward-looking journalists for conversations, among other things, about the way technology is enabling the future.

Africa is a huge and diverse place, and the state of journalistic freedom reflects the differences: nil to relatively robust. Guy Berger, head of the Rhodes University journalism program (and someone who’s become a friend), says there’s more and more bad free press, and a positive trajectory in terms of quality.

But he shows me a bulletin board, the old-fashioned analog kind, on which clippings describe the ongoing struggles for freedom in many places; jailings, beatings and assassinations are a growing reality for journalists around the world — the victims typically  people who are trying to shine a light on what their governments or other powerful interests are doing.

On my first trip to Africa in 2001, I was with a group of journalists who visited nearby Zambia to offer Internet workshops to media people who were just getting wind of the potential in the emerging networks. We were scheduled to meet Fred M’membe, editor of the Post, an independent newspaper there, but he was in court defending himself against government pressure. Now he is in prison.

I told the journalists I met then, and at the two other Highway Africa conferences where I’ve spoken, that I feel great humility in their presence. Like others around the world who risk their liberty, and sometimes their life, for their work, they remind us all of why telling the truth to and about the rich and powerful is so important.

***

Today is Independence Day in the United States. I’m proud of what we have done so right in America, and believe, more than ever, in the ideals of our nation. For me, it’s America, right and wrong. We do get it wrong, horribly so on occasion, but we have had the institutions in place to correct ourselves time and again.

One of those institutions is the press. When it does its job.

I’m not naive about the long-standing flaws of American journalism. It’s never been as great as our mythology. But it has often shone when the chips were down.

They are today. Never have we needed truly independent journalism institutions — which despite great progress in the developement of online media still convey most of what we call “news” to most of the people — more than we do now.

The honorable exceptions aside, they are failing. And they’re failing arrogantly, insisting that they are doing their jobs well when the evidence is so obviously to the contrary.

I have less and less confidence that the technically excellent journocrats who work in the newsrooms of most major media organizations, especially the ones that have become so embedded in the political and economic power structures, will ever recover their independence.

Bloggers and other entrants in the newer media were barely on the radar in 2002, but I suspect Mandela would agree that some of the “bad free press” today comes from their ranks. I actually believe some of the best good journalism is coming from the new media, but we have to acknowledge that most online conversations don’t hit the high points of our best journalistic principles.

So, yes, my hopes increasingly are with the free-for-all — call it the cacophony or whatever you want — that may frequently be bad but which is getting better. I have absolute confidence that people who join this new journalistic ecosystem for the right reasons, and who do it badly, can learn to be good, because they can learn why it matters to do things in a trustworthy way.

The New York Times and Washington Post have done wonderful work through their modern existence. But their failures are so profound in recent years that it’s hard to maintain any confidence in them.

So for all of the excellence they’ve fostered, the editors at these famous institutions who refused to call torture what it was — bowing to the bogus and odious idea that channeling partisan propaganda was serving their readers — harmed their organizations with those cowardly word games.

And when they defended their acts of cowardice and dismissed criticism as tendentious, they went beyond harm. Their pride in subservience was a disgrace.

What, I wonder, does Independence Day mean to them?

(Updated to fix originally misguided Orwell reference.)

This article was originally published on Salon on July 1, 2010.

Local dailies in Hollywood and Silicon Valley get counter-intuitive on copyright-vs.-progress story

Just as politicians tend to favor positions taken by the people who pay for their campaigns, local newspapers tend to editorialize in favor of the prevailing economic realities in their regions. That’s why it was surprising in recent days to see how the top daily newspapers in their respective regions of California handled Google’s victory, at least temporarily, over Viacom in a copyright case that’s one battle in the war over who’ll control the Internet.

You’ll recall that a federal judge slapped down Viacom’s claim that Google’s YouTube video service, by allowing its copyrighted videos to be posted on the site, was contributing to copyright infringement. The judge said YouTube was following provisions of the current copyright law that say, among other things, that a site owner is not immediately responsible for what others post there. However, once notified by a copyright holder that it’s hosting infringing work, the site is obliged to take it down.

On Tuesday, the Los Angeles Times, which has often pitched Hollywood’s angle on a variety of issues, published a surprisingly perceptive editorial, very much not taking the film studios’ side. The piece observed that the judge’s ruling was a needed rebuff to yet “another effort to shift copyright holders’ responsibilities onto the middlemen who have opened new distribution pathways online.” It went on:

Those efforts are understandable, given how quickly works can spread around the world, and how many sites can become unauthorized sources. But speedy, low-cost distribution is one of the great advantages of the Internet, not a flaw.

There was more than a little sympathy for the Hollywood dilemma — way more than the Copyright Cartel deserves, in my view — but the Times editorial page showed worthy independence of immensely powerful local interests in its analysis. Two cheers for the Times.

But it’s just one cheer for the San Francisco Chronicle’s editorial board after reading its day-earlier take on the ruling — and that’s solely because the Chronicle didn’t genuflect to the Bay Area’s dominant local businesses in Silicon Valley’s technology community. They overwhelmingly sided with Google in the matter, for sound reasons that go beyond money. (My view on the case, as posted here last week, is that the ruling meant progress for free speech and collaboration much more than a milestone in a corporate war.)

The Chronicle’s editorial grudgingly accepts that the judge knew what he was talking about regarding the law, but that seems to be the problem. For the editorial writer, this is really about who’s going to control content on the Internet — and for the Chronicle, control appears to be binary:  If the creator of media content can’t have absolute control, he or she will be forced to give it away.

The final line is the tip-off to what’s ultimately on the minds of the editorial board: payment for creating media. Calling for new copyright laws — though what they should contain never makes its way into the piece — the newspaper says, “We can’t expect people to create things for free — unless we believe that the only people in our society who can be creative are those who are already rich.”

Actually, we can expect people to create lots of things for free, even people who aren’t rich. They always have, and always will. And we can expect the creative destruction of technological and economic competition to bring us adapted or new business models that will accept technology’s realities and not try to push the proverbial toothpaste back into the tube.

This article was originally published on Salon on July 1, 2010.

Journalists should report rather than playing bit roles in what the nominee herself once called a “vapid charade”

UPDATED

By the third day of the Elena Kagan hearing before the Senate Judiciary Committee, the Washington press corps had pretty much moved onto other things. Two days earlier, journalists had crowded the room where Kagan, President Obama’s nominee to replace retiring Supreme Court Justice John Paul Stevens, faced committee members in what was billed as her only remotely serious public discussion of the court and her likely role on it.

Talking Points Memo mentioned the journalistic drop-off in a terse item titled “Media Losing Interest?” I promptly tweeted along with a comment about “Journalism’s short attention span” — and got a Twitter reply from Howard Weaver, who said, “I wouldn’t staff Kagan hearings if it were my call. It’s all Kabuki theater; if any news manages to emerge, it will be reported.”

Howard Weaver is former vice president of news for the McClatchy Co., and when he says something like this it’s worth thinking about. Keep in mind that McClatchy, which bought Knight Ridder a few years ago and has faced the same financial woes as the rest of the industry, maintained the high standards of the Washington bureau that consistently outclassed the rest of the Washington press corps in covering the run-up to the Iraq war (mainly by letting reporters do their jobs, not serving as bended-knee stenographers for the Bush administration).

So I did think about it, and ended up mostly agreeing with him. There is little point to sending platoons of reporters to largely ceremonial events where the players all know their tedious roles and do their absolute best not to stray into territory that might conceivably make actual news. In Kagan’s case, it was a non-surprise that she did a nearly total retreat from her 1995 law review article (pdf) in which she accurately called modern nomination hearings “a vapid and hollow charade.”

The senators, for the most part, are part of the charade. Like most politicians in front of video cameras, they preen more than probe. So, with live-streamed video capturing everyone’s words and live-bloggersfeeding tidbits to anyone who cares, why bother to use staff time for such affairs? Any news that emerges will reach the world soon enough.

The days when it made sense for every major media organization to be at almost anything have long since passed, especially given the traditional news industry’s well-chronicled cutbacks. Political campaigns are one arena where news folks have realized it’s not necessary to “compete” for tiny changes in stump speeches.

The worrisome cuts are in places like state capitals, where legislators, regulators and lobbyists are learning they can pretty much do what they want without the inconvenience of being observed. The same is increasingly true in the nation’s capital, as major agencies get covered sparsely by traditional media while specialized media with small, paying audiences pretty much take over what coverage there is.

Washington bureaus already know this, but maybe they’ll start acting on it: There’s plenty to keep an eye on in Washington without spending more time than absolutely necessary at the Judiciary Theater.

This article was originally published on Salon on June 30, 2010.

The political website, discovering serious problems with its pollster, comes excruciatingly clean with its audience

Here’s how Markos Moulitsas started a post yesterday at the Daily Kos:

I have just published a report by three statistics wizards showing, quite convincingly, that the weekly Research 2000 State of the Nation poll we ran the past year and a half was likely bunk.

If there’s a Mother of All Corrections, this comes pretty close. When the proprietor of a well-known and widely followed media organization brings something this awful to the attention of his audience, and in such a forceful and prominent way, he’s doing something fairly rare — and noteworthy.

My survey research and statistics skills aren’t strong enough to vouch for what the statistics wizards came up with, but the redoubtable Nate Silver is doing just that. In short, there is a huge problem — and that’s the best possible construction — in this data.

The Atlantic’s Max Fisher has an excellent aggregation about the fighting, legal and otherwise, surrounding this debacle. Lots of it, as you’d expect, is purely political, unsurprising given the Daily Kos mission. I suspect this will be a case study worthy of a masters thesis.

I cannot imagine a traditional media organization — and more than a few have used this pollster — showing the same level of transparency that Markos has done. (Speaking of transparency, I should note that Markos is a longtime friendly acquaintance.) I can only imagine how he must have felt when he learned of the problems with the polling.

It’s what he did next that matters here: He gathered facts and then issued, in excruciating detail, a report to his readers.

Let’s be clear on one thing: If, in fact, Daily Kos has been running fraudulent polls the past several years, the site has taken a credibility hit, a serious one. But that doesn’t mean I’m about to delete the site from my browser bookmarks or RSS feeds, and the main reason I won’t do so is that the site is being so up-front about what happened.

Media organizations have traditionally been among the most opaque of institutions. Trust us or don’t, they’ve said in the past — and what they’ve meant was, you can take what we say as The Truth. That’s no longer good enough, not that it ever was, and the smarter ones are opening up, though the notable examples tend to be exceptions, not the rule.

The more honest we are about our errors, and we all make them, the more we may feel we’re letting people assume that what we do is flawed. Well, in journalism and other fast-moving media, what we do often isflawed. The best we can do is to try hard to follow the other principles of journalism that include accuracy and thoroughness, and then own up, fast, when we get it wrong.

For those of us creating media, genuine transparency will lead audiences to believe us less. That’s fine, because healthy audience skepticism is the first principle of smart media consumption.

But transparency will also lead people to trust us more. That’s not a paradox.

This article was originally published on Salon on June 29, 2010.

Search giant gives Beijing half a loaf, but will regime be satisfied?

Clever dodge or capitulation? Google’s latest move in its ongoing battles with China looks like a bit of both.

When Google closed its search operations in China last March rather than obey government censorship edicts, the search company tried somecorporate judo: It redirected searches from Chinese customers to servers in Hong Kong, thereby providing more honest results than the ones it replaced.

Too clever by half, the Beijing regime decided — and it ordered Google to stop its tactic or lose its ability to do pretty much any business in the world’s most populous nation. Disappointingly but not surprisingly, Google has done just that.

But in what is clearly a concession to the latest Bejing must-censor edicts, Google offered half a loaf to China search users and a half-raised middle finger to Beijing: They can still get the mostly uncensored Hong Kong results, but now they have to do so via hyperlinks rather than automatically. David Drummond, Google’s top lawyer, explained it this way on the company’s blog:

We have therefore been looking at possible alternatives, and instead of automatically redirecting all our users, we have started taking a small percentage of them to a landing page on Google.cnthat links to Google.com.hk—where users can conduct web search or continue to use Google.cn services like music and text translate, which we can provide locally without filtering. This approach ensures we stay true to our commitment not to censor our results on Google.cn and gives users access to all of our services from one page.

But how long will this last? China is nothing if not peristent on its censorship, and it’s hard to imagine that the Beijing censors will sit still for what they’re likely to see as further insult.

Rebecca MacKinnon, visiting Fellow at Princeton’s Center for Information Technology Policy (as well as friend and former colleague at the Harvard Berkman Center for Internet & Society), sees the situation playing out in four possible scenarios, each of which feels plausible. I’m not making a guess, because the Google-China tussle is so fluid.

Eventually, one guesses, Google will have to make the most serious decision of all: whether to shut down China operations entirely or keep making concessions. Will its fiduciary duty to shareholders outweigh moral concerns? Right, silly question.

This article was originally published on Salon on June 28, 2010.

Soccer czars’ ban of in-stadium video replays only postpones reality

The czars of football (or soccer, as we call it in the U.S.), stung repeatedly by poor officiating in the World Cup tournament in South Africa, have come up with a way to mute protests inside the stadiums: pretend the mistakes aren’t happening by blocking any in-stadium video replays.

As the AP reports:

FIFA will censor World Cup match action being shown on giant screens inside the stadium after replays of Argentina’s disputed first goal against Mexico fueled arguments on the pitch.

The proximate event was a goal scored by a player who was offside before he took his shot. A spokesman for FIFA (the governing body of international football), Nicolas Maingot, regretted the “clear mistake.”

What mistake? Why, the video replay, not the actual officiating flub.

Yep, that’ll work. Actually it will, for now, if the majority of people inside the stadium are kept in the dark (assuming they missed the rules violation in the first place), which is the point of this exercise. Meanwhile, in living rooms and bars around the world, everyone else will have a close-up view of the officiating mistakes.

It’s not as if FIFA is alone in making this kind of decision. Salon colleague King Kaufman, who forgets more about professional sports every week than I’ve ever learned, tells me it’s fairly standard practice not to show big-screen replays of close calls in major U.S. professional and collegiate (OK, same thing) sports. No doubt Major League Baseball, which has its own prominent cases of staggeringly bad calls, is watching all this with interest.

But let’s consider where technology is heading to understand why the giant screens inside the stadiums aren’t going to remain the only issue.

Even today, it’s likely that some spectators could have seen the offside video almost immediately on video-equipped mobile phones. By the time the next World Cup rolls around, that will be most of the people inside the stadium. Will FIFA block mobile video access to ensure that official bumbles remain unseen by the people actually attending the events?

I’m sympathetic to FIFA in one respect. Soccer is a game of flow; it would change dramatically if officials repeatedly stopped the matches to review video footage — though correcting egregiously wrong calls on whether a goal had been scored would be an obvious place where it would make sense, as opposed to a missed offside, which happens all the time. But to pretend that the videos don’t exist isn’t going to work much longer.

This article was originally published on Salon on June 24, 2010.

Judge says YouTube obeyed copyright law in widely watched legal case

UPDATED

Echoing most news media, the New York Times called it “a major victory for Google in its battle with media companies,” but yesterday’s decision(pdf) by a federal judge in a closely watched copyright case was, most of all, a victory for free expression.

U.S. District Judge Louis L. Stanton tossed out a Viacom lawsuit against Google’s YouTube video site, in which the media conglomerate said YouTube, by allowing its copyrighted videos to be posted on the site, was was contributing to copyright infringement.

At issue, in its most basic form, was whether the “safe harbor” provisionof the Digital Millennium Copyright Act (DMCA) meant what it said. Boiled down and oversimplified, safe harbor means this: If you host other people’s work, you are not immediately responsible for what they post on your site. Once notified by a copyright holder that you’re hosting infringing work, you’re obliged to take it down.

This part of the DMCA — a law that has many otherwise terrible elements — has been a boon to speech in the Digital Age. Online, we live in collaborative spaces much more than the top-down, centralized media world of the past. If site hosts had to investigate and approve everything their users wanted to post, they’d be unable to exist as we know them today. That’s what the Copyright Cartel, of which Viacom is a charter member, would prefer. But it’s not what Congress voted to do.

Judge Stanton said the DMCA’s notification system worked fine in the case at hand. Even Viacom agreed that “when YouTube was given the (takedown) notices, it removed the material.” (Do read the ruling in full; there’s enough plain English that you can learn a lot even if you don’t understand lawyer-speak.)

I don’t mean to suggest that the DMCA’s notification system is perfect; media companies are famous for abusing the process, too often telling sites that all sorts of perfectly legitimate content is infringing on their copyrights. Check out the great Chilling Effects site for voluminous examples. If anything, the DMCA still gives copyright holders too many weapons to prevent legitimate expression. But the safe-harbor provision has been a big help in general.

It’s not the only time Congress has acted to encourage robust activity online. A related provision in a different law (Section 230 of the CDA, or Communications Decency Act) protects site hosts when people posting comments, for example, say things that others find defamatory. It’s the commenter, not the site host, who’s responsible for the speech.

Needless to say, the battles are not over. Viacom said it’ll appeal Stanton’s ruling, and Section 230 is constantly being picked at by those who want to shut down speech they don’t like.

Still, yesterday’s decision is a gratifying milestone. Congratulations to Google, but especially to the rest of us who believe in the widest possible online expression.

UPDATE: My friend Miguel Helft, who reported the decision for the New York Times, writes:

The NYT indeed said it was a major victory for G. But in the second graph we made the other point, which is that the ruling could have a favorable impact on the entire UGC world, which is in line with your argument. We later expanded on that with commentary from various analysts/legal minds.

Fair enough. But the story lede (for arcane reasons journalists call the first, or lead, paragraph in a story the lede) and headline were about Google. I looked long and hard for a lede in any news outlet, but didn’t find one, that focused on the victory for free expression along with the immediate Google win or Viacom loss.

Some comments here suggest it’s time for a remedial column or two on copyright. Whether copyright holders like it or not, they don’t have the absolute right to decide how their published work may be used, and by whom, through eternity. And those who believe we should ban tools that can be used for illicit purposes, not just beneficial ones, should ask themselves what would happen if we applied that standard widely.

This article was originally published on Salon on June 22, 2010.

Unfortunately, it takes abuses before we wake up to dangers of untrammeled executive authority

Last week, Secretary of Homeland Security Janet Napolitano declared the need for “legal tools to do things like monitor the recruitment of terrorists via the Internet.” She wasn’t specific about what she meant by that, but her remarks were widely understood, no doubt correctly, as a harbinger of yet another Obama administration encroachment on American civil liberties. (The most surprising part of Napolitano’s pitch, in fact, was the word “legal” — after all, the administration hasn’t bothered with such niceties in any number of other situations, as Salon colleague Glenn Greenwald has repeatedly pointed out.)

Yesterday, the Supreme Court upheld a law that can put you in jail for the “crime” of advocating lawful, nonviolent activity, if the government decides that your advocacy is somehow helping a group the government declares is engaging in terrorism. Authoritarian right wingers reading this may be pleased to hear that Jimmy Carter could be a criminal under this ruling. They should also be thrilled to know that the Obama administration fought hard for this ruling, and that Supreme Court nominee Elena Kagan, as solicitor general, argued for this gross encroachment on free speech and the First Amendment.

Again and again, this administration has endorsed and expanded on the Bush administration’s consistent stance that the Bill of Rights, apart from the Second Amendment, must take a distant second place to the “war on terror” that by definition can never end. Politicians and pundits who once claimed to believe in civil liberties are in hiding. It speaks volumes about our media today that Jon Stewart is one of the few commentators to speak truth to power on these issues.

So the more I watch Obama channel and extend Bush administration claims of essentially unlimited presidential power, the more I conclude that we have essentially one hope at this point — and it rests, in part, on an awakening among conservatives who are today so enamored of authoritarian rule.

True civil libertarians of all political persuasions should hope, perversely, that Obama will abuse the powers he’s claimed — and which, given Congress’ craven acceptance, appear to be a bipartisan Washington consensus. Moreover, we have to hope that he’ll abuse them broadly, against people who support him as well as those who don’t, and not just against the Guantanamo prisoners who seem to have dropped off America’s radar screen or in several somewhat random cases.

The bipartisan disdain for liberty breaks recent precedent. In the Clinton years, a significant number of Republicans hammered what they believed (accurately in some cases) was the White House’s tendency to claim executive powers that they were certain would be abused. Indeed, for a time it was the GOP that defended civil liberties — hypocritically in many cases, as it was mostly reflexive anti-Clinton paranoia, but useful nonetheless for those of us who were glad to see someone, anyone, pushing back.

During the Bush years, a few Democrats at least talked a good game, decrying the administration’s wholesale claims of absolute power. But the Democrats were craven in the extreme when it came to applying actions to words; almost every opportunity they had to take a stand for liberty, they went the other way.

Having turned cowardice into an art form, the Democrats seem to figure it’s OK to pander relentlessly to fear and expand presidential power because a good person is in charge at the moment — and because lots of Democrats have deeply authoritarian impulses as well. The latter may actually be the more important motivation.

What of the Republicans and their allies on the political right? There’s a huge amount of fury today about Obama’s policies, including what many claim is a takeover of the economy and other dictatorial powers being assumed by the president. Yet while the Limbaughs and Becks and their political followers rant and rave about “the regime” and its excesses, they’re applauding every time the administration insists on trulydictatorial authority in matters of national security, a term that has grown and grown in its scope.

This disconnect makes sense only if you assume, as I do, that the right wing has concluded that Obama actually won’t abuse his police powers, at least in ways they or their major supporters will find objectionable. They’re threading a needle. The right wing’s sane leaders must surely fear the possibility that some supporters might actually use their weapons to “take back the country,” because that would give Obama a reason to act against them using those police powers. Rather, they must want supporters to get organized at protests and political meetings and ultimately in voting booths. Their goal is for Obama to fail, in ways that have historically led to right-wing surges, so they can get back all three branches of government again. Actual violence by their supporters would make that much more difficult. But the political right is surely licking its chops, confident that when it returns to power there will be absolutely no constraints on their pro-authority agenda.

If that happens, Obama will have given them cover. He, as much as George W. Bush and Dick Cheney, will have laid the groundwork for a regime that goes all the way to the edge, if not over it.

Most depressing of all, the majority of the American people would probably welcome such a government. Our preference for the illusion of safety over the recognition and acceptance of risk has only grown. We are a society too afraid of our own shadows to confront reality, I fear. Someday, perhaps as soon as the next successful terrorist attack, we’ll get what we seem to want.

Which is why I come back to my perverse hope that Obama will abuse his powers enough to pull enough scales from enough eyes, especially in Washington, to make people understand what history teaches again and again: Untrammeled executive authority only seems like the easier road — until you’re in the way of the bulldozer.