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1. Thank you for the opportunity to make a submission on the Copyright (Infringing File Sharing) Amendment Bill.




2. My name is Mark Harris. I am an IT consultant for my own company, Technology Research and Consultancy Ltd. (TRACS). I have previously been a public servant, working for the New Zealand Post Office, PostBank, Inland Revenue, the Ministry of Research, Science and Technology and the State Services Commission E-government unit. I was the convener of the Government Information Managers Forum (GOVIS) for 3 years and involved for many more at a committee level. I have served 2 separate periods on the InternetNZ Council, and managed the .govt.nz domain for 8 years.




3. I am also an actor, and have been involved with theatre in Wellington for over 30 years, becoming a writer (2 plays) and director, a lighting and sound technician and designer, props maker, set designer and builder, as well as being involved in administration and organization for BATS theatre, Wellington Repertory Theatre, Stagecraft Theatre and Backyard Theatre.




4. I believe in the value of copyright but do not believe in the overvaluing of copyright. I have made submissions to the Government on the Anti-Counterfeiting Trade Agreement and the original section 92A of the Copyright (New Technologies) Amendment Act 2008 which this amendment seeks to replace. I write an infrequent blog On the Gripping Hand, on which I comment on these and other matters (http://tracs.co.nz/gripping-hand/). I wish to appear before the Committee to make my submission in person and answer any questions that may arise from it.




5. Firstly, I’d like to say that, while this amendment is more acceptable than the previous Act, in that Guilt on Accusation has been removed, requiring a standard of proof and formal quasi-judicial process, this acceptability is only relative. The amendment still has problems but, more importantly, is still the wrong thing for this country to enact.




6. I’d like to briefly touch on some of the key problems I see in the amendment itself, though I do not intend to spend much time on them.




7. The definitions are still loose, by my reading of the bill, especially that for “filesharing”:
   

   “file sharing is where material— “(a) is downloaded from the Internet; or “(b) is made available on the Internet by a user in a form in which the material may be downloaded by 1 or more other users; or “(c) is transferred, directly or indirectly, via the Internet from one user to another user”

8. That describes email, where information and “material” is transferred from one user to another, and hosting any sort of website, where “material” is downloaded from the Internet and/or made available for download. This is the point of the Internet – to make “material” available to other people.




9. I’m sure the officials will tell us that it is not the intent of the legislation to prevent people from carrying out perfectly legal activities, but that will not prevent a lawyer making use of any ambiguity in order to press his client’s case in court. If the grey area exists, someone will attempt to use it.




10. If the purpose is to prevent illicit sharing of content, let the legislation say so. At present, it does not, in my opinion. Legitimate companies use filesharing technology to distribute patches and updates to their software, open source projects use these techniques and others, web-hosting companies, non-profit organizations, charities and ordinary businesses all use email and the web, and all these will fall under the definition of “filesharing”. I submit that the Committee needs to think very hard about what the Act is supposed to achieve and whether this looseness will do that.




11. There has been a tradition in legislation of being as technology-neutral as possible, i.e. outlawing activities based on intent, rather than the tools used. I submit that this Bill is not technology-neutral and therefore runs the risk of stifling genuine opportunities for innovation by being unclear as to what activities are actually acceptable. Even if an actual complaint would not be upheld in judgement, the threat of a complaint being taken against a small company may be more than they are able to sustain. Unintended consequences of poor legislation can be devastating to small and medium enterprises.




12. I am not going to comment on the Tribunal process I am not a lawyer and there are others who are more capable of analyzing that than I am. I think there are some potential issues, but my objections are not with the details of the process. I have no doubt that the designers of the process have worked hard to get one that is as robust and fair as they can make it




13. My issue is with the entire process of enforcing copyright infringement:
    What is the problem that this Bill is trying to resolve?
    Will this Bill, once enacted, fix that problem?




14. According to the Bill:
    

    While the damage sustained by a copyright owner from a single file sharing infringement is generally small, the prevalence of infringing file sharing in the current digital environment is having a negative cumulative effect on New Zealand’s music, film, and software industries




15. According to the Regulatory Impact Statement:
    

    We are unable to accurately estimate the costs to the industry from illegal P2P file- sharing since attempts to scale the problem have been fragmented or based on limited data sets. It is also complicated by the changing business environment. The industry is in the midst of a technological revolution with an explosion of channels, formats, and business models. As revenues drain away from the industry, businesses are struggling to adapt. Consumers have also reacted to these changes in ways that the industry has not anticipated, increasing uncertainty in the industry.




16. In fact, the Ministry and the “copyright industry” representatives such as RIANZ, APRA and NZFACT are unable to present ANY evidence of ANY costs to any of their industries. Globally, the recording and associated musing industries, and the motion picture industry, have all had record years in terms of revenues and profits. I note that there is a blank “omitted” portion on page 3 of the RIS – why any information should be omitted from a regulatory impact statement is beyond me but, if it contained verifiable evidence of the size of the problem, I would expect it to be presented.




17. Where are the musicians and songwriters who have been forced out of business by filesharing? Where are the former film-makers who no longer practice their craft because someone copied their movie online? Why are they not testifying loudly and with their bank statements in hand, to prove that this is a significant issue for the Realm of New Zealand, so significant that we must create repressive legislation? I submit to the Committee that they don’t exist. There are some creators (to use a broad-brush term) who have spoken out in various fora, but not with any evidence, only fears that something might be happening and that it may change how they operate. On the other side, there are many case studies from musicians and software companies testifying to the fact that they have made money from sharing files on the Internet – the bands Radiohead and Nine Inch Nails, and writer Cory Doctorow are often cited as examples, but there are many others, overseas and in New Zealand.




18. The only area that statistics show has been materially affected is the sales of plastic discs that we call CDs and DVDs. And the above statement points out why that is occurring: people are changing the ways that they choose to receive their entertainment. Rather than change with the market, these industries have chosen to attempt entrenching their business models in legislation, such as this Bill and its underlying Act.




19. The General Accounting Office of the US Government recently reported that the numbers used by the industries to justify their demands for stronger enforcement could not be verified. One of the problems signaled by the GAO is that government officials admit that they simply reply on statistics and reports from the entertainment industries without conducting research on their own. These reports naturally lack transparency about the source of the figures and are often written to sell a political agenda through lobbying efforts. The RIS continues this trend.




20. The fact that the industries most concerned with the ‘issue’ of filesharing cannot quantify any losses in a verifiable manner should be of extreme concern to policy makers and legislators. When I ask the question “What problem is the Bill trying to solve?”, I hear no answer from the Ministry of Economic Development except repetition of that which the recording and associated industries have told them.




21. I submit to the Committee that this is not a good enough basis for legislation. Without a clear understanding of a) what the actual problem is (if there is one) b) how big a problem it is and c) how much it will cost to implement a ‘solution’ for a problem that may not exist, then there is no way the Ministry can confidently predict that their ‘solution’ will actually resolve any matter.




22. The “3 strikes” concept (dressed up as “graduated response” and a few other euphemisms) is being pushed around the world as the solution to the undefined problem of filesharing. The recording and movie industries have issued report after report with dubious analysis and numbers that indicate that the creative world is dying because of copyright infringement and that only internet termination can save it (previously, the same logic was used to justify suing filesharers, or at least threatening to sue them). While Korea and France (and non-legislatively, Ireland) have implemented legislation around this, Germany has explicitly rejected it, as has the European Parliament. Significantly, suggestions that the US adopt such a measure can’t even get to first base on grounds of free speech.




23. I submit to the Committee that termination of an internet connection will do nothing to inhibit illicit filesharing and may well cause harm through other unintended consequences. Computer users shared files long before the Internet came around, as did music fans. We used floppy disks and cassettes then – now we have flash drives and MP3 players, which are often more efficient vectors than the Internet, given the substandard network infrastructure in New Zealand that is laughingly called “broadband”.




24. Additionally, the Bill summary states:
    

    This Bill provides a regime that aims to—

    • deter file sharing that infringes copyright:
    • educate the public about the problem:
    • compensate copyright owners for damage sustained from copyright infringement by file sharing:
    • provide sanctions for serious copyright infringers:
    • limit ISP liability that may result from account holders’ infringing file sharing




25. I submit to the Committee that the Bill will not do anything about the first point, as mentioned above, and will be unlikely to do anything about the second, given the amount of information that is already out there and yet the activities continue. The framers of the Bill do not seek to educate, they seek to frighten citizens into compliance. That’s a very sad place for a government to be, regardless of the political stripe.




26. I submit to the Committee that the Bill will not be able to compensate copyright ‘owners’ as there is no way of measuring what impact filesharing has had on their business. What the Bill seeks to do is establish a revenue stream that hasn’t existed before. If you can’t show figures that indicate actual damages, how can you estimate actual compensation?




27. I submit that the sanctions provide by the Bill are meaningless, in a true sense, because “serious copyright infringers” will have many other means of continuing their activities. Technologically, it is trivial to do so. Other commentators have discussed how simple it will be to get a new Internet account with a different provider. If a “serious copyright infringer” is taken to be one who is making money from infringement, this will be regarded as a business risk and they will make continuity plans accordingly.




28. I hope that this Bill, if passed as is without some last minute amendment, will actually protect ISPs as intended, but I sincerely doubt it. I anticipate it being a platform for litigation well into the next decade. The iiNet case in Australia recently is an indication of what we can expect.




29. Let me be clear: I fully understand that filesharing exists and that some material shared is covered by copyright and is therefore being shared illegally under laws written before the technology and culture around it existed. What I question is whether this has actually caused material damage to the holders of those copyrights. Independent studies have shown that filesharers actually spend more on music than non-filesharers, both from digital and physical sources.




30. As Doctorow has said, the problem for creators is not piracy but obscurity – filesharing has enabled many musicians and bands and writers and artists to put their material in front of new audiences who can sample it and decide whether or not to support the artist directly through donations, payments for higher quality content, non-digital scarcities up to and including the opportunity to perform on the artist’s next album. We’re seeing an expansion of business models and increased disintermediation of gatekeepers such as record labels and movie studios (in the case of EMI both at once)




31. The problem here is not filesharing or even copyright infringement under old rules. The problem is a disruptive sea change in technology that is causing old business models to become irrelevant. It’s not even about people wanting material for free – evidence shows that people will pay even when they don’t have to IF they want to, IF they feel that the object of payment is worthwhile.




32. The issue facing the content industries especially is an unwillingness to change their business models, even in the face of their irrelevancy. Content business models are about selling scarce things, such as albums and movies. When things can be copied at little or no cost, they are no longer scarce. These industries now want legislators like you to impose artificial scarcities through legislation such as this Bill.




33. In summary, I submit to the Committee that this Bill is:
    • a solution that won’t work for
    • a problem that doesn’t exist at
    • a cost that can’t be calculated
    • to suit business models that are obsolete.

[comment number 5]

Hi Rob, thanks for stopping by. Seems a little odd to me that it takes a public blogpost to get any sort of reaction from you, rather than email nearly 10 days ago, but at least you’re here. Not listening, though, it seems.

You confuse “entitlement” with “expectation”, and then use “entitlement” in a pejorative manner. Bravo! I never said I was entitled to post at BoingBoing – I said that, as a registered participant, I had an expectation that BB would behave in a fair and reasonable manner.

Your ad-meister, Mr Battelle, charges people who advertise on BB, and other properties, based on the number of visitors and pageviews that are generated. Whether I look at the ads or not, I am a part of the value chain that pays any remuneration you receive as Managing Editor.

“Whatever the merits of our comment policy, you broke it.”

You repeat this but you don’t say who was insulted or why they felt insulted by my comment. Let’s examine the comment:

On the Cusack non-story – it wasn’t his spelling or grammar that got me to eventually unfollow him, it was his inability to articulate or to tweet anything worth reading. Sorry, Xeni, we obviously have different definitions of “down to earth”. (Are you sure he didn’t have an assistant write the guest post?)

Love your acting work, Mr Cusack, but your writing? #notsomuch

Hmm,

• I don’t appear to be insulting Cusack’s spelling or grammar.
• I state that I did not find anything he posted worth my time to read (last time I looked, that was a subjective judgement, also known as “opinion” whether explicitly stated as such or not)
• I apologize in advance to Ms Jardin for disagreeing with her assessment
• I ask if she can verify that he actually wrote the guest posts BB lists him as writing
• I salute Cusack’s acting repertoire but reiterate that I don’t like his writing

Where’s the insult? Seriously, where is it? Now, I know that someone can take an insult out of someone else breathing loudly, and it appears that someone has taken some offense on Mr Cusack’s behalf (did anyone check to see if he felt insulted, by the way?), but I really can’t see an insult in that comment and, as it’s the crux of the matter, I’d seriously appreciate you pointing out the offending words and why they were offensive? Clearly it got some-one’s panties in a bunch, but I can’t work out who or why [please note that the "who" is unimportant to me, as whoever it was has tarred the whole of BoingBoing with the same brush. The "why" still remains of interest to me].

As I said before, last time I took math, 1 did not equal “the bulk of” 2. By your own rules, my second registered post (I believe there have been others, but I was probably in a hurry and posted anonymously) does not constitute the “bulk” of my postings. With only 2 postings to go by, I cannot see how you can look so far into the future to determine I will be a troublemaker. Especially given some of the comments that do appear on BB, disemvowelled and not, from the regular contributors. How can you determine from this one comment such a future risk?

You attempt to make some point about me “jumping in” to post – did you stop to consider the fact that I first registered in 2008? Which means I have been reading the site for at least 3 years (actually, more) and maybe I’m just not the commenting type?

You say that, in practice “barely anyone gets banned on these grounds, because even consistently oppositional commenters can be good contributors. And disagreement is welcome.” and yet I did get banned. Your moderation page indcates in its comments that others have similarly found themselves banned and don’t know why. Perhaps you feel, that on a percentage basis, this equates to “barely anyone”. I’ve already mentioned that I think your maths needs work.

“You were banned because your first comment not only broke our policies, but was whiny and smarmy and too personal about it with both poster and the subject. That your second comment was so belligerent only furthers the perception that it’s all you’re likely to offer.”

I’m a little confused here. I made one comment in June 2008  which said in total:

#35 POSTED BY NZLEMMING , JUNE 8, 2008 4:15 AM

Well said Teresa.

Torporous, the reason they’re so cheap is that then they can tell themselves that they didn’t sell out, they were only taking care of the interests of their supporters.

I’m guessing that this isn’t the one that “broke our policies”, but it’s hard to tell from your writing. I made another comment on 28 April 2010 which is quoted in full above and appears to be the one that you believe “broke our policies“. So I’m not sure what you mean by “your second comment was so belligerent”. Which comment are you referring to as belligerent? This is not a smart-arse throw-away – I seriously do not understand your accusation of belligerence, which seems to be the reasoning you used to ban me.

“We then saw a demand for answers on Twitter”

A “demand for answers”? I asked Xeni Jardin:

Did you just shut down my login to BoingBoing because you disagreed with what I said?

The question there is “Did you just shut down my login to BoingBoing” and I asked because I wasn’t sure if it had been shut down or whether there was a technical issue, and that’s because no-one at BoingBoing, not even a robot, let me know that I had been banned. Had I been able to DM Ms Jardin, I would have. That was not a possibility. I knew (as closely as one can know without being a stalker) that she was online, having just responded to my comment. It seemed reasonable that she could respond with a simple yes or no.

“A stern email explaining in great detail why you should get them”

It’s quoted in the original post, in full – I’ll let readers determine how “stern” it is.

“That you apparently expected a private reply even after inviting us to respond on this public post only highlights the huge sense of entitlement manifested in all this.”

Actually, given my experience so far, I expected no response and did in fact not ask for one. I barely thought anyone from BB would come to the blog, though I made the invitation to let you know that it would be happening. That seemed only fair and reasonable, not to mention respectful and courteous.

“Antinous also sent a perfectly polite explanation why your posting privileges were cut and an offer to have them reinstated. But you turned that down, because it isn’t what you really wanted: to quote, “You need to show a little more courtesy and respect.”

Ah, cherry-picking, thy name is Rob! ;-)

The actual quote was

But when you make your money by marketing the eyeballs of your readers, I think you need to show a little more courtesy and respect than BoingBoing showed to me (and others, if you look around the net – even on BoingBoing’s moderation policy page)

That’s an if/then argument. It’s quite clearly not a demand for special personal treatment that you make it out to be. It’s a statement in support of the main premise of my post, that there is an implied social contract when you start making money off people.

“That’s freely given to courteous and respectful readers, but we’re not obliged to offer the same to those who write insulting comments about our editors and guests.”

Again I ask, where did I insult your editors or guests? Put up or shut up, Rob. Post the words and how they insulted anyone.

“It isn’t disresepctful to ask you not to make more of them, and it isn’t discourteous if we choose not to reply to your adversarial tweets or emails. Tough cheese, old boy!”

You did not ask me to not make more of them – you banned me so that I couldn’t. You did not tell me I had been banned despite 2 polite (and they were polite – there’s no abuse or swearing – they’re quoted in the previous post) requests to enquire whether that was the case. For 5 days, you did nothing about it and even when it was finally acknowledged by antinous, there was no reason given beyond some sense of “insult”, no guideline on how to not offend again, nothing but an oh-so-gracious offer of a “fresh start”. As my response indicated, I do not choose to give BoingBoing a “fresh start”.

The tweet (singular – you really need to work on that math!) was not adversarial, and neither was the first email. By the way, when someone sends email to my address, yeah, it is courteous to respond to it, especially when it’s an inquiry about a service I offer. And especially if I hold a formal position with the organisation being communicated with.

******************************

A couple of hours later, Rob returned and posted this comment [number 8]

I’ve got no objection at all to criticism. Criticism is good and healthy. I love being insulted, too: there’s no better sign that you’re doing something interesting. But when it’s delivered in a way that oversteps the rules we’ve established, we’re not going to publish it *ourselves* at *our* site. Removing people’s posting privileges is the most straightforward way to make sure that remains so.

Now, you’re saying I insulted you, personally? Unbelievable. And, out of curiousity, how would I insult you, which you say you welcome, without breaking the rules of your site? You seem to have a very arbitrary view of what’s insulting and what’s not. Perhaps you need to consider that the rules apply as much to BoingBoing editors as to commenters. Or, if they don’t, you should explicitly say so.

Also, I sincerely appreciate Mark’s entitlement-from-social contract argument. It’s a shame that others have already interpreted it as a legalistic ‘free speech’ argument, which underplays its subtlety. But it’s still wrong, both fundamentally (whatever social contract exists, it can’t involve us being made to publish something against our will) and specifically (Mark, despite his protestations, did contravene the commenting policy).

Ah, I see you’re responding to Rick here. Actually, he’s not referring to a legalistic argument – he’s talking about free speech as a principle. If you bothered to research him, rather than just insult him, you’d find that he is indeed a respected lawyer and has geek credentials, and has been a major player in the NZ Internet world for some years. We were both on the InternetNZ Council managing the .nz ccTLD for many years, and Rick is the Chairman of the Board of Directors for Netsafe.  We have locked horns on many an occasion on matters of law and principle (occasionally robustly!) yet we remain able to respect each other’s strengths and selves. While he is far more thick-skinned and is unlikely to waste his time taking insult from you, you do yourself and your company no favours in taking such an approach. We have a saying in NZ: when the hole’s over your head, stop digging.

You’re trying to make this about “free speech” on your part, but it isn’t. ANY free speech argument goes against you completely. The question I raised is that I was arbitrarily banned and *not informed of the ban* and that was poor process. I used the social contract discussion point to highlight why the process was wrong. You say “Mark is wrong” but give no reasoning why. You also say, repeatedly, “Mark, despite his protestations, did contravene the commenting policy” but again, you don’t point out how, why or who was insulted.

This is like the Bush administration saying “There are weapons of mass destruction in Iraq. Take our word for it” #notsomuch

That policy is probably indistinguishable from any other large blog’s in practice and enforcement. It may seem thin-skinned, but what appear to be arbitrary decisions often rest squarely on well-tested assumptions of what a first comment suggests about a commenter’s likely future. Tone is very important.

Again, put up or shut up. Specify what the tone was, which words indicate the tone and why it was such a problem.

I’d say get your own blog, but you have one! And here we are.

And so we are. I know why I’m here. I’m still not sure about you.

******************************

And later, Rob came back (I can’t believe how much time he’s spending commenting when he couldn’t respond to a simple email with “yes, you have been banned”). He’s still arguing with Rick but, hey, it’s my blog and I’ll post if I want to ;-)

You claim that Mark has the right to publish ‘hostile personal insults’ at our own site, and suggest that our request that he not do so is hypocritical given our hostility toward others.

Still no evidence of “hostile personal insults” in there. I guess you think, if you say it enough, everyone will believe that it was. It wasn’t.

Also, there was no request to not insult anyone – you banned me. Without warning, without notification and without any basis, according to your own rules.

But the difference is obvious. When we insult something else, we’re publishing it at our own website. We’re not demanding that the the RIAA, for example, publish our attacks on it at their own venue.

Rick’s point is that you obviously feel that insult is okay as a communication style, so why ban someone who uses it, as I read it. However, I’m still waiting for some indication of who was insulted and how.

Likewise, Mark has every right to his criticisms here, at his own site, twitter, or anywhere else that chooses to publish them. Go for it, Mark! But Boing Boing isn’t Mark’s website. We have any no moral duty to publish such hypothetical hostility ourselves (even though we did, of course, publish the first of his comments!)

Wow! Thoughtcrime! I got banned for what I *might hypothetically say* – you should make a movie. I hear Tom Cruise is available.

So, you’re saying that no-one has any expectation that they can criticize BoingBoing or *anyone* who may have written for them or is otherwise a friend of the blog or a blogger and expect BoingBoing to publish that criticism as a comment on BoingBoing? But you’re not shutting down anyone’s right to free speech, yeah? Wow. That ‘logic’ is quite literally mind-blowing.

So, why do you have any policies at all, if everything is down to an arbitrary decision based on what you *think* someone *might* say in the future? Or is BoingBoing’s thinking that policies only apply to other people, not to BoingBoing? If so, fine, it’s your blog. But say so.

This notion that our defense of free speech means others have the right to be published by us, no matter what they say… frankly, Rick, it leaves the realm of credibility. Though Mark’s remarks to Xeni were mild stuff, to entertain your vision of ‘adherence to free speech’ would force us to publish practically anything anyone sent in.

Actually, that’s what free speech is all about [see below]. But never mind that.

BUT!  now, we discover that my comments to Ms Jardin were “mild stuff” which asks the question – how were they a bannable offense? Still, as we know now, I was banned for some future hypothetical offense, not because I’d actually broken any rules, despite claims made elsewhere by you, Rob. I wonder what I was going to say?

The most saddening part is, of course, that you’re the person who has chosen to reduce Mark’s argument to a simplistic issue of free speech. I guess it’s a lot easier to deliberately confuse free speech with the right to be published than it is to explore whether unspoken social contracts should overrule the commenting policies that Mark chose to break.

Free speech is not a simplistic issue. Maybe you should read up on it before you decide it’s so simple. [http://en.wikipedia.org/wiki/Freedom_of_speech]. It’s the fundamental bulwark against censorship and arbitrary authoritarianism. Ask anyone who hasn’t got it how simple it is.

Be that as it may, I’ve yet to see any exploration by you of anything to do with the social contract argument I raised, other than denying it exists. And I’ve still sto see any evidence that my ‘mild remarks’ were in contravention of the policy. Oh, that’s right – it’s my *hypothetical* remarks that got me banned. Sorry, it’s still such a new concept to me…

Our moderators’ reaction to his comment was exactly what you’d expect given our publicly posted moderation policies. That they exist and are enforced is our end of whatever social contract may exist between us and those who wish us to publish their submissions. These guidelines may be imperfect, but the reaction they generated here — a ban for insulting an editor, however mildly, in his first ever post — was only to be expected.

Still no evidence of insult, though an acknowledgement that it was “mild”, yet somehow so belligerent that it warranted banning. The math, however, shows no sign of improvement, but indicates you really don’t have a handle on what went on here and are being instructed by someone else. Is that the case?

Contracts aren’t a one way street, Rob. They bind both parties. If what you want (and seem to operate) is the capability to ban who you want, when you want, without question or criticism – just say so. Unpublish those policies and just put one up that says “we’ll decide what you can say here” and see how long those faithful readers stick around.

You know what’s really “the most saddening part”? If this was occuring at Gizmodo or TechCrunch, BoingBoing would be all over it like a rash…

This, in itself, is not huge news and I’m not weeping in my tea over it, but the incident is worth examination, I think, as a part of the wider “knowledge economy” and the implications of that. First, here’s what happened.

BoingBoing, for those who don’t know, bills itself as a “directory of wonderful things”. Wikipedia says:

Boing Boing started as a zine in 1988 by Mark Frauenfelder and Carla Sinclair. Issues were subtitled “The World’s Greatest Neurozine”. Associate editors included Gareth Branwyn, Jon Lebkowsky, and Paco Nathan. Along with Mondo 2000, Boing Boing was an influence in the development of the cyberpunk subculture. Common themes include technology, futurism, science fiction, gadgets, intellectual property, Disney and left-wing politics. The last issue of the zine was #15.

Boing Boing became a Web site in 1995 and later relaunched as a weblog on January 21, 2000, described as a “directory of wonderful things.” Over time, Frauenfelder was joined by three co-editors: Cory Doctorow, David Pescovitz, and Xeni Jardin. All four Boing Boing contributors are, or have been, contributing writers for Wired magazine.

On 28 April, Xeni Jardin published an article about Twitter and the advent of “twitter nazis”. The way BB generally publishes is to point to an article on another site, quote a little to get your appetite going, and offer a little commentary. In this case, the article featured was on the New York Times and quoted actor John Cusack who, the article claims, has suffered at the hands of the evil spelling nazis. Cusack has written guest posts for BB in the past, and this connection was mentioned.

The kicker for me was that the picture at the top of the page was of a Boston Terrier of my online acquaintance, Mr Charles Bird, canine possessor of Natasha and Ben Lampard of Webstock fame. Charlie is also the Director, International Markets and Business Development of Webstock, has his own Twitter account (@charliebird on which he generally posts matters of flatulence) and is inordinately cute. The BB article noted that:

This dog is not a Twitter cop, I just didn’t want to reward bad human behavior by reblogging the photos of Twitter cops featured in the article

and I’m guessing the point of including the picute was a) the cuteness factor and b) a reference to the oft-quoted “on the Internet, no-one knows you’re a dog”. Cue lots of “awwwwwww, how cute” comments. So I commented, identifying the source of cuteness. I don’t often comment on BB but I was feeling expansive. I then thought I’d comment on the substance of the article:

On the Cusack non-story – it wasn’t his spelling or grammar that got me to eventually unfollow him, it was his inability to articulate or to tweet anything worth reading. Sorry, Xeni, we obviously have different definitions of “down to earth”. (Are you sure he didn’t have an assistant write the guest post?)

Love your acting work, Mr Cusack, but your writing? #notsomuch

Jardin quickly responded:

Oh that seems unnecessarily meanspirited to me, having spent time in person with the guy. He’s a wonderful, thoughtful, creative being. Not everyone gets everything about the internet when they first plug in.

I’d give him a shot on Twitter again, if I were you, I think he’s got the hang of the medium more now.

Yes, I am quite sure the guest posts (we’ve published two so far) were not written for him by an assistant, or in any way not representative of his own true thoughts. That, too, is an unfairly meanspirited thing to say, and a slam against Boing Boing and myself and our guest which I do not welcome or appreciate.

Funnily enough, I didn’t agree, so I wrote a response back:

Cardinal sin on the Internets – he was boring. Maybe he got better, but there’s so much else to read that I don’t care.

Sorry that being honest is regarded as “mean-spirited”. He may be a lovely guy and all but my opinion is my own, whether you like it or not.

I could, perhaps, have had a smiley on the “guest post” comment but your response is illuminating, anyway. Are people not allowed to question items appearing on BoingBoing the way BoingBoing questions items appearing in other areas?  (and I quote: “So many stars of his stature farm out their tweets and Facebook interactions to assistants, publicists, PR handlers.”

Defensive much?

but when I went to post it, BoingBoing no longer recognised me as a registered member. I tried several different browsers and machines (with different IP addresses, just in case it was a caching problem) but still no go – obviously, it was the UserID causing the problem.

So I tweeted Ms Jardin:

@xenijardin Did you just shut down my login to BoingBoing because you disagreed with what I said?

10:17 AM Apr 29th via Tweetie

No response, which – well, she probably gets thousands a day so I wasn’t too upset at that. It was the same user ID – nzlemming – and you’d think she’d be a little sensitised to it having just responded to my comment – however, no biggie. I waited a couple of hours and then started searching BB for a support address to ask if I had been banned. It wasn’t easy, but I finally found an address for support that just said beschizza@gmail.com. Funny again, I can no longer find that page…

So I sent, on 29 Apr 2010 11:32:48 +1200:

Subject: BoingBoing User account: nzlemming

I do not appear to be able to log in any more.

Can you advise whether I have been banned? I have no indication from anyone that I have been, and I was able to comment earlier today (http://www.boingboing.net/2010/04/28/twettiquette-cops-an.html#comment-772506), but am unable to respond further in that thread.

I tweeted Xeni Jardin to ask if she had disabled my login as a reaction to my comment, but she has not responded.

On 03 May, I received this response from Antinous <antinous@boingboing.net>

Mark,

Insulting the guest bloggers isn’t welcome, particularly on only your second comment on BB.  If you’d like a fresh start, I’d be happy to reinstate your account.

Antinous

There’s no indication on BB as to who “antinous” is but he/she is listed as Lead Moderator

I wrote a response and copied it to the 4 BBers: Doctorow, Frauenfelder, Pescovitz and Jardin, and also Rob Beschizza, who I discover is listed as “Managing Editor”. It’s their blog, so I thought they should know:

Dear “antinous”
Are you saying you suspend the accounts of everyone who insults guest bloggers (not that I did – I merely criticised his writing)?

Because that is not the indication one gets from having read BoingBoing for a long time, regardless of how many comments I’ve made, or from someone who has contributed material (via Cory) to BoingBoing.

Firstly, as to banning for insult, the Moderation Policy (http://www.boingboing.net/2009/10/01/boing-boing-moderati.html) lists 4 reasons for banning:

• Offensive, inappropriate, or just plain annoying comments may be deleted or disemvoweled.

My comment was not deleted or disemvoweled, which would have been a simple way to remove any insult. Instead, it was left up so that Xeni could make comments about me being “mean-spirited”, which is a matter of her opinion but not, according to your own policies, grounds for banning.

• Spam earns an instant ban.  If you have a history of junk comments, plus promotional copy in your profile, you may be considered a spammer.

I posted no spam.

• Astroturfers will be banned.  Cut-and-paste or nearly verbatim talking points are considered astroturf.

I posted no talking points or other astroturf material (nice redefinition of “free speech”, by the way)

• Sock puppets (alias accounts created by previously banned commenters for the purpose of avoiding a ban) will be banned.

I posted from a handle I use across the Internet, which is easily
translated into my real name – perhaps more easily than “antinous”. At no point did I pretend to be anyone I’m not, the principal reason for a ‘sock puppet’ alias

• If the bulk of your comments are whining, hostile, insulting or otherwise annoying, you may be banned.

If, as you say, I  have only posted 2 comments, I can’t see how one equals “the bulk of [my] comments”.  I also dispute that it was insulting, as I stated my opinion of John Cusack’s tweeting as “shockozulu”. Am I allowed no opinions on BoingBoing? I also questioned whether, if the writing had been so good on his guest posts, whether he might not have got an assistant to write them, a point already made about celebrities in the article by Ms Jardin”:

“So many stars of his stature farm out their tweets and Facebook interactions to assistants, publicists, PR handlers.”

While Ms Jardin may be satisfied that he wrote it himself, are we not allowed to question, in the same way that BoingBoing itself regularly questions, whether things are always what they seem? Are we also not allowed to use sarcasm? Incidentally, I went back and read Mr Cusack’s guest pieces, which I had overlooked before. I stand by my opinion of his writing, which I find disjointed, unimaginative and heavily derivative of Hunter S. Thompson in style. The difference, I believe, is that Thompson could write.

I pointed out in my post that it wasn’t his spelling or grammar or even his irregular use of capitals that caused me to unfollow him. It was “his inability to articulate or to tweet anything worth reading” in my opinion. I even stated my opinion that I think his acting is excellent. I was playing the ball, not the man. How does one insult a ball?

On the matter of process, it seems odd to me, after umpty-mumble years on the Internet, that banning just happens – with no warning, no notification and no obvious recourse. From reading the comments on the Moderation Policy (including one from the thread in question), it seems I am not alone in finding this confusing and concerning.

I posted my comment at 1400 BoingBoing Time, Xeni Jardin responded at 1407 BBT and within 5 minutes, my access had disappeared as I was unable to respond to her comment. I sent her a tweet at that time, which was never responded to, and I sent an email to beschizza@gmail.com as that was the address on a support page – that I can no longer find – on that day, (29/4/10 on NZ time). It has taken you 5 days to even respond.

Amazing, given the promptness in banning.

You offer to reinstate my account for a “fresh start” – I don’t think so.

I may still read BB on occasion, though mainly for Cory’s copyright stuff, most of which can be found elsewhere, but I don’t think I can again be a part of a community, however peripherally, that behaves so arbitrarily towards the people that make it what it is, its readers.

Without readers, bloggers have no reason to blog. You may say “it’s our blog, we’ll behave how we want to” but you’ve amassed a web-savvy audience that has some expectation of participation, and you have a responsibility to meet that expectation in a fair and reasonable manner,
not on a whim. After all, you present advertisements to those readers in order to make money from their participation in your blog…

Finally, I find it incredibly ironic that this resulted from a post complaining about other people complaining about a “friend of the blog”, i.e. Mr Cusack, and his writing capability or otherwise on Twitter. It seems that there are still some sacred cows that may not be questioned or criticized.

I will be posting about this on my own blog (http:/tracs.co.nz/gripping-hand/) at some point, and you’ll all be welcome to comment there. I only delete spam.

Regards

Mark Harris

Former BoingBoing account holder nzlemming (since June 2008)

I have waited 4 days now, and have had no response, which I would happily publish if received.

So, what’s the point of this post? It’s not to garner “poor you” or “BoingBoing are wankers” responses, okay? So don’t do that, please.

It’s to point up a matter that I’ve been thinking about for some time – in a knowledge economy, knowledge is the currency. A knowledge economy is not about buying and selling knowledge – it’s about trading knowledge to get a result. Those services you access for no financial cost on the Internet generally aren’t doing it out of the goodness of their hearts. Entities the size of Facebook and Google are getting value from providing you with “free” services. They’re advertising to you – direct financial gain for them – and they’re aggregating your usage information and demographic data (at least, we *hope* that’s all they’re aggregating) and selling it to other players who see value in targeting their services and advertising. While the selling of info is an example of old economy, the trade of your information for the service provided is an example of the knowledge economy. Both parties get value out of the transaction. (We’ll be in this hybrid stage for some time, by the way). In 2006,  BoingBoing apparently made good money:

Today, Boing Boing’s roughly 325,000 daily visitors make it the most lucrative property in Battelle’s stable. Though not all of Boing Boing’s ad inventory is sold, the site will gross more than $1 million this year, based on CPMs and traffic. “It’s turned out to be a good business,” Frauenfelder says.

There’s very little out there to say what they’re making at the moment, but http://www.statsaholic.com/boingboing.net reports them as having around a million regular visitors a month and http://www.quantcast.com/traffic-compare.jsp?domain0=boingboing.net has them at around 200K a day. With rates of  http://www.federatedmedia.net/authors/boingboing, you do the math. This is, indeed, a good business.

Now, I want it clear: I’m not bitching about them advertising (I’ve clicked on their links) and I’m not complaining about them making money (good luck to them). But when you make your money by marketing the eyeballs of your readers, I think you need to show a little more courtesy and respect than BoingBoing showed to me (and others, if you look around the net – even on BoingBoing’s moderation policy page). If you have policies, and BoingBoing does, you need to abide by them and be up-front about applying them, not operate on a whim because your feelings have been hurt or someone you regard highly has been dissed, in your opinion.

I believe that there’s an implied contract between the blogger and the reader, especially where cash money changes hands *because* of the relationship. And I believe BoingBoing breached that contract. Researching around the net indicates that I’m not the only one. They may feel that “This is a directory of wonderful things. If we no longer think something is wonderful, we have every right to remove it from this directory.” but, once they take money for delivering me to advertisers, I think they owe me a little more than ‘it’s my blog and I’ll cry if I want to’ as a defence.

From a knowledge economy perspective, what BoingBoing did was prevent me from participating in that particular part of the economy, the exchange of knowledge with other users. In the long term, that’s even more disturbing to me and more ironic, given BoingBoing’s own stance on entities not living up to their terms of service (e.g MagicJack, Apple, Amazon) and the controversy around their previous censoring of blogger Violet Blue, and other commentators.

And, in the end, that’s why I won’t be taking up the magnanimous offer from “antinous” of a “fresh start”. I’ll be voting with my feet – there’s plenty of other stuff to read, after all, and there is no longer the same value for me in the BoingBoing brand or products.

If I want you to take anything from this saga, it’s that I think you should consciously evaluate the value proposition for every transaction you undertake online, whether it’s ‘free’ email or search from Google, ‘free’ hosting from rapidshare or ‘free’ information from a blog or article, including this one. Do the cost/benefit analysis and do read terms of use, so that at least you know the rules. Sometimes, even that’s not enough – be prepared to walk away, and be prepared to state publicly why.

Otherwise nothing changes.

France is also going through the process of such legislation in spite of the fact that the European Parliament has declared it not suitable to Europe. In Ireland, the IP industry has coerced the largest ISP and has sent demands to the smaller ISPs to put in place a graduated response mechanism without legislation. That’s their preferred tactic, I think.

Germany has recently knocked back such a proposal, but there appears to be a surge in United States and other countries for such processes to be put in place.

This has led some people to ask “is this just about the RIAA or are they just a useful stalking horse for wider goals of censorship and control?”.

In my view, that’s bordering on tinfoil hat territory. I’m not disputing there is a wider game being played globally by interested parties, and to some extent it’s about control. But I really don’t think censorship’s the driving force. However, I agree that the RIAA et al are front and centre, while machinations occur behind closed doors.
There is definitely a Charge of the IP Brigade to shut down what they see as infringements. What people forget is that the IP Brigade is not limited to the RIAA, the MPAA, or even our own RIANZ. I think that “graduated response” is an idea whose proponents feel its time has come (when all you’ve got’s a hammer…) but it’s only one aspect of the global pressure to secure “intellectual property rights” as physical assets.

We’re seeing a lot of action, globally, on this front, and have been for some time. There’s the SECURE working group, in the World Customs Organization, for one. Another example, although less well defined, is the ACTA — the Anti-Counterfeiting Trade Agreement. We don’t have a lot of details about ACTA. What we do know from leaked documents is that it’s as heavy on the IP side as it is on the counterfeiting — some might say more so.

The official line on ACTA is that it comes out of the United States and Japan because they feel that the WTO, and TRIPS especially, is not moving fast enough to protect their intellectual property industries. It actually goes a little deeper than that — with some major players who have kept well out of the spotlight.

In 2004, the first Global Congress on Combating Counterfeiting was held. Its major sponsor was the Global Business Leaders Alliance Against Counterfeiting (GBLAAC). Don’t go looking for them — they don’t exist any more. And their sponsorship was at one point removed from the official record of the Congress although it’s back now. The member organizations of the GBLAAC included Proctor & Gamble, Unilever, British American Tobacco, DaimlerChrysler, Philip Morris and Coca-Cola and speakers from those companies were on the agenda.

The other sponsors of the Congress appear to have been a global law firm called Baker McKenzie, and an IP and patents firm, Rouse and Co. International. Also participating were Interpol, the International Trademark Association (INTA), the International Security Management Association (ISMA), WIPO, and the World Customs Organisation.

The message was carried from the Global Congress to the 2005 G8 meeting and from there to WIPO but got no traction. They venue shifted to the WTO but likewise had no success. The banner was picked up again in 2007 by the USTR (United States trade Representative) who collaborated with Japan to present plurilateral negotiation process called ACTA, with invited participants including New Zealand.

The original sponsors are heavy hitters, and are used to playing a long game. These multinational companies with very deep pockets are the real drivers behind this wave of IP regulation. They stand to make or lose a lot of money. Tobacco and drugs (legal ones) are the focus of the counterfeiting side. Tobacco is regarded as counterfeit if it hasn’t got the appropriate government licence. The tobacco is as real, but it hasn’t been through the process.

The focus on the drug side is more about generics than fake drugs, although the safety aspect is what’s being pushed. And there’s enough truth in that to gain support.

An example of what’s at stake is that a counterfeit drug, in the US, is one that hasn’t been passed by the FDA, which can include foreign drugs and generics. You can buy it over-the-counter in Canada quite legally but if you are going on to the States, you should get rid of it as it will be regarded as counterfeit.

This part of the attack is aimed largely at India, a major source of generic drugs primarily because they can’t afford the “genuine article”. Another area that suffers is Africa, where HIV/AIDS and other killer diseases are rampant partly because they can’t afford the drugs to combat it. Generics could help them a lot but would reduce the profits of the companies, collectively known as Big Pharma.

In my opinion, the real source of this problem is the corrupt process that’s called the US Congress. In order to get elected, candidates except support from vested interests. Some of those interests drug companies, some Hollywood studios, some other music industry — all have IP they wish to jealously protect — and the legislators (some honestly) agitate to create and support legislation that their benefactors say they need to be competitive.

While a side-effect of all this protection may be a form of censorship and control, I don’t think that that is the main objective — follow the money.

“Graduated response” is only a weapon du jour. That’s why repealing s92A is only part of the solution. We need as a nation to examine what copyright means how cultural context, and how we relate to the rest of the world. We need a copyright regime that respects creators, consumers, and the businesses in between on a fair basis. And we need to examine just what copyright means from first principles.

3News has it here:

Government delays introduction of controversial ‘S92A’

The government has called for a delay in the implementation of Section 92A, the controversial Copyright Amendment Act due to come into force February 28.

John Key made the announcement at a post-cabinet press conference this afternoon, stating the implementation will be delayed until March 27.

“We are hoping that by that time we will have come up with a voluntary code of practice,” said Mr Key.

It is reported Section 92A will be suspended if no agreement is reached.

and Computer World has it here:

Finlayson John Key delays copyright law

[...] Computerworld spoke to technologist Nat Torkington who attended Finlayson’s press conference this afternoon at 4pm.

Torkington says the government may suspend the controversial S92a if no agreement is reached between the parties on how to implement it.

[...]Even if there is an agreement, Torkington says the government will monitor the first six months of the new regime and review the progress then.

My hearty thanks to everyone who has been involved in protests, and especially to Bronwyn Holloway-Smith and Matt Holloway of the Creative Freedom Foundation who, I have no doubt, are a big part of the cause of this. Well done guys!

Transcript (caveat – best efforts only, based on material copyright TV3 2008):

DRIVER: What’s at the heart of Section 92a?

HOCQUARD: It’s something that says, if you know it’s going on and we point it out to you, we want you to stop it. So it’s just aimed at the ISPs saying we think you know how to do this, can you stop doing it”

DRIVER: So, basically, if I’m accused of copyright infringement, and the ISP is then legally obliged to cut off my Internet access-

HOCQUARD: Nah, nah, it’s not going to work like that, it’s um if you have a look at the legislation itself, 92a is just one small part of a whole revamp of the Copyright act. There’s a whole series of provisions that go in that say how this whole thing’s gonna happen. And 92a is being phased in over about 6 months, the industry, the people that own the content, you know, the digital content providers, are sitting down even today meeting with the ISPs and working through a series of protocols to try and put a whole system together that will work. There’s also a set of regulations coming out. So no, it’s not going to be like that, it’s just blog hysteria.

DRIVER: Is it though? I mean -

HOCQUARD: yeah, yeah

DRIVER: Surely there should be some element of proof that needs to be put in place

HOCQUARD: There is , pretty simply there will be, it’s like there’ll be a high standard of proof , it won’t be just, you know ring up and say “I think Oliver’s downloading stuff” and they’ll turn your internet off, that’s just – that’s hysteria.

DRIVER: How do you prove it?

HOCQUARD: How do you prove it? You – the easiest way to prove it is to actually catch someone doing it and generally the record companies and RIANZ and things like that, they have got investigators and they’ll look. They’ll go and look and they’ll find people who are servicing a lot of files to the net – they’ll get the information and they’ll pass it on to the ISPs.

DRIVER: How do you get that information, though, because surely more and more of the illegal downloaders and providers will encrypt – [...] get that information

HOCQUARD: How do I get that information?

DRIVER: Not you personally

HOCQUARD: Well, yeah, no, I dunno, ummm, there was a thing the other night on the news about people stealing other people’s wireless connections and things like that, the technology’s there , you can, you know, your umm your number that you have for the internet , it’s not a confidential thing, they can track pretty much everything that’s going on

DRIVER: Is it greatly affecting the New Zealand entertainment industry at the moment?

HOCQUARD: Yeah, it’s decimating the music industry. It’s just being gutted by the whole thing. The umm as the broadband gets faster and faster it’s starting to cut into TV, it’s certainly cutting into DVD, um yeah, it’s terrible.

DRIVER: Is there any argument, because I’ve heard people who download music who say that they do it, they do it and then if they like the album, they will generally go out and buy it. And that they use it as sort of a taster . Is there any warrant to that?

HOCQUARD: That’s probably 5% of the people and there are 95% of the people who go “I like the music, it’s free, I’ll have it”. There’s some kind of ethos that’s developed that says if it’s on the internet and it’s free, I can have it. It’s not, it’s theft.

DRIVER: But do you think there’s going to be a way to solve this? Surely, as soon as they come up with one solution the internet’s going to come up with another one.

HOCQUARD: Yeah, and I think that’s always going to be a problem. You’re never going to be able to catch the people that are determined to do it. But there will be, there’s , you know, it may be a little naive, especially from a lawyer , but I do think that there is a vast mass of people who are quite happy to pay for things if it can be made easy for them.

DRIVER: Things like iTunes and things like this.

HOCQUARD: yeah. It’s starting. I think the record companies, to be fair, you know, didn’t handle this very well from the start and they’re slowly but surely catching up now, but, you know, 10 years ago, they probably could have taken a slightly different approach. If they’d licensed Napster, we might not be here now
[ENDS]

So, what’s the takeaway I get from this:

1. Proof will be required
2. Regulations are coming to back up the Act
3. The ‘industry’ will have investigators who can tell who is offending
4. There is technology out there that can do all this
5. The NZ entertainment industry is being decimated
6. 95% of people will “steal” music
7. The music industry could have handled this better from the start
8. Copyright infringement is stealing
9. Apparently, I’m hysterical

Point by point:

1. We don’t know the ‘proof’ is yet but it will apparently be a”high standard”. Why is the requirement for proof not in the legislation, where it should be?
2. You know, both Tizard and the PM could have talked more about this weeks ago. It is in 92D(a) of the Act, and there’s a brief mention in Tizard’s press release from 3 October, but as yet no indication of any draft regulations (there might be something on MED’s site, but how would you know?).
3. Ah, “industry investigators” – I wonder if RIANZ will use the same ones that the RIAA use?
4. I’d really like to know about that technology and who’s going to pay for it. The only way I know for ISPs to identify content in transmission is deep packet inspection and the tech ain’t cheap. And what I wonder is, how are the “investigators” going to get the information to pass to the ISP for action, without going to the ISP to get the information about data flows. The burden on ISPs is starting to become very onerous.
5. I keep hearing this and I’m seeing no stats to back it up. Let’s get evidence out here – actual situations where bands have had their music copied illegally, where they have had actual financial losses. If it’s happening, cases should be easy to find but we’re only seeing anecdotal evidence of “massive losses” that no one can accurately quantify
6. Way to go, Chris! Numbers from your fundament FTW!
7. Good gods, something I agree with Chris on. It won’t last, I’m sure.
8. Sad to see this from a lawyer who, as an officer of the court, should know better. Copyright infringement is an offence under the Copyright Act; theft is an offence under the Crimes Act. Sing with Cookie now: One of these things is not like the other
9. When this is the level of analysis, can you blame me? I feel like I’m (once again) banging my head against a brick wall of willful ignorance, from Tizard on down.

Still, well done again to Ollie Driver for getting this stuff in front of people. I can’t wait to see who he gets next.