Limiting the Open Society: notes from a lecture

Today I was presenting on the FSCONS track of the GoOpen conference in Oslo and the topic for my talk was Limiting the Open Society: Regulation by proxy

To set the stage for my talk I began by asking the question why free speech was important. This was closely followed by a secondary question asking whether or not anyone was listening.

The point for beginning with this question was to re-kindle the listeners interest in free speech and also to wake the idea that the concept of free speech maybe is something which belongs in the past a remnant of a lost analog age which should be seen as a quaint time – but not relevant today.

Naturally it was not possible to present a full set of articles on the reasons for why free speech is important during a 20 minute presentation but I could not help picking up three arguments (with a side comment asking whether anyone could imagine a politician saying free speech was unimportant).

The main arguments were
John Stuart Mill’s truth argument presented in On Liberty (1869) from which this quote is central:

“However unwillingly a person who has a strong opinion may admit the possibility that his opinion may be false, he ought to be moved by the consideration that however true it may be, if it is not fully, frequently, and fearlessly discussed, it will be held as a dead dogma, not a living truth”

Basically Mill’s argument can be broken down into four parts:

  1. The oppressed may represent the truth
  2. Without criticism we are left with dead dogma
  3. Opinion without debate meaningless
  4. Deviant opinions may be unaccepted truth

The second argument I presented was from Lee Bollinger’s The Tolerant Society: Freedom of Speech and Extremist Speech in America (1986)

Bollinger argues that the urge to suppress disagreeable speech is part of a need to suppress all ideas and behavior that threaten social stability. While Mill argues that it is important to support speech because it maybe right Bollinger argues that habits of tolerance in all its forms (including speech) are important to combat paternalism.

“…the free speech principle involves a special act of carving out one area of social interaction for extraordinary self-restraint, the purpose of which is to develop and demonstrate a social capacity to control feelings evoked by a host of social encounters.”

The final argument I presented was one of positive law – free speech is important because the law says it is important. The high point of this argument can be seen as the Universal Declaration of Human Rights which created an international understanding of the importance of rights (including speech).

After this introduction I presented the concepts in an historical background. Again I needed to be brief so I could not really go into detail. I jumped straight into the period 300 years ago when the discussion on the rights of man in Europe was at a high point. The fear of censorship in advance (imprimatur) or punishment after the fact was of great interest. The results of these discussions were documents like The Rights of Man and the Citizen presented after the French revolution, the United States Declaration of Independence and the Swedish Freedom of the Press Act of 1766.

The problems with these documents and the regulatory acts which followed where that they presented potential rights but did nothing to ensure access to communications media. In fact the communications media became ever more centralized and access was granted to a more and more limited group of (similarly minded) people. The negative aspect of this situation were (1) centralized media can easily be controlled and (2) allowing small group access means that the individual members have to conform to remain in the in-group.

To re-enforce the concept of in-group and out-group I showed an image of the speaker’s corner in London where any individual may speak without being harassed its not a legal right even if it seems to be an established practice. Speaker’s corner is sometimes seen as an example of openness but in reality it is proof of the failure of our ability to speak openly anywhere.

Then we moved quickly along to the Internet as an example of where a technology was developed that made personal mass communication available to a wider audience.

The exciting thing about the Internet is that it carries within it freedom as a side effect of its creation. This freedom was developed by common agreement (of a homogeneous group) into the open end-to-end, packet switching “liberal” ideology that we experienced in the early days of technology.

Naturally the problem with any idea that is developed under a consensus is that any use, concept, idea or speech which falls outside the consensus is easily suppressed and lost. But more on this later.

In the early days we were overly optimistic and believed texts such as John Perry Barlow’s A Declaration of the Independence of Cyberspace:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone. You are not welcome among us. You have no sovereignty where we gather.

But naturally this was not going to last since the freedom we relied on was in reality a bi-product of corporate activity.

Our reliance on technology is a reliance on services created and provided mainly by corporate actors. And corporate actors have different priorities. It’s not about individual goodwill but it is about profit. Milton Friedman wrote in Capitalism and Freedom (1962)

There is one and only one social responsibility of business—to use its resources and engage in activities designed to increase its profits…

It is not evil for companies to be all about profit but if there ever is a clash between individual freedom and profit then the corporation has an obligation to focus on profit at the cost of freedom.

At this stage at the lecture I shifted on to the problem of censorship. First I addressed the issue of self-censorship and used a quote by George Orwell on the topic.

Circus dogs jump when the trainer cracks his whip, but the really well-trained dog is the one that turns his somersault when there is no whip.

It is very difficult for us to know that we are censoring ourselves.

The next problem is the fact that even if we have something to say this does not mean that there is anyone who will (or can) listen. Basically we are lost in crowds.

These first two hindrances to communication are inevitable but they also create a bias against speech and the spread of ideas. From this point I began to address issues that can be (and should be) addressed.

The first issue was affordances. I showed the image of by Yumiko Hayakawa of the ‘Anti-Homeless’ park bench. And as I always do I asked the audience to spot the ethical problem in the image. The problem is that the bench discriminates among users by allowing only certain types of use. People with weak legs (old people?) struggle to use this bench, no people will loiter on this bench, and naturally no homeless people can sleep on this bench.

image from Yumiko Hayakawa essay Public Benches Turn ‘Anti-Homeless’ (also recommend Design with Intent)

Without engaging in a wider discussion the park authority can implement regulation without rules. No law expelling homeless people is necessary and therefore no legal review is ever carried out.

On the topic of affordances I brought up the German engineer problem. Here is the story behind the creation of SMS messaging (LA Times)

Alone in a room in his home in Bonn, Germany, Friedhelm Hillebrand sat at his typewriter, tapping out random sentences and questions on a sheet of paper.

As he went along, Hillebrand counted the number of letters, numbers, punctuation marks and spaces on the page. Each blurb ran on for a line or two and nearly always clocked in under 160 characters.

That became Hillebrand’s magic number — and set the standard for one of today’s most popular forms of digital communication: text messaging.

“This is perfectly sufficient,” he recalled thinking during that epiphany of 1985, when he was 45 years old. “Perfectly sufficient.”

Since then Twitter was developed from SMS and therefore we see how a engineer speaking German is today controlling the way in which we communicate today.

Another form of censorship is the whole problem of the chilling effect of law when it’s law is applied in situations where it has the effect of limiting speech – even if the purpose of the law was something completely different.

As a final form of censorship I spoke about the negative effects of End-User License Agreements (EULA). Many of the platforms upon which we depend for our communication have demanded of us that we agree to terms of use which we may not understand or which may have changed dramatically since we last read them. The result is that users are stuck in a perpetually weak situation.

So what’s really going on? Why doesn’t the state act or react to the erosion of our rights. These rights which are apparently so fundamental and important.

Well in part its lack of knowledge. Many states do not know the problems we are facing. The second part is that these are contractual agreements and the state is concerned about intervening in agreements (between consenting parties) and finally – and more ominously – the state benefits from the system.

States are able to stand tall and use words like rights, democracy, speech without limiting or censoring. They don’t have to. What the state does is they require acts (like data retention or surveillance) carried out by our service providers. If the state needs anything it can then collect it from the providers. The good news is that the state can claim to have clean hands. This is regulation by proxy.

So what can be done? Here I presented three strategies:

First, keep focused; remember what free speech is for. A second quote from George Orwell, this time from his preface of Animal Farm:

If liberty means anything at all, it means the right to tell people what they do not want to hear.

Second a demand that the state should end regulation by proxy and return to its own purpose. And the protection of citizen’s rights should include limiting the rights of actors. Speech on any medium should be protected – not only from the acts of the state.

Thirdly. The third was not really a new suggestion but more of an alternative. If the state cannot protect our speech then it should declare free speech as a thing of the past a remnant of a bygone analog age. This will not help much – but at least it will stop the hypocrisy.

Facebook as censor

When I read that Facebook was censoring updates that include a rivals name – I was skeptical. Surely they wouldnt be so stupid? But then I tried it myself.  I logged into Facebook and wrote a status update: “Is it true that FB is censoring” and pressed enter.

According to a blog post in the New York Times in 2008, a Web start-up from Brazil with some prominent backers, aims to become the portal through which people access their online social lives. It’s up against no less than the world’s biggest Internet companies.

Facebook may be the biggest player in town but there are areas in the world where alternatives exist. Of course Facebook as a company has no obligation to play nice with others but let me quote Stan Lee: With great power comes great responsibility. If they do this then what is to stop Facebook from deleting people or other organizations?

Moral Courage & censorship

Its easy to lose your faith in institutions and so its nice to read that Cambridge University refused to censor a masters thesis. This is my favorite part of the letter (via BoingBoing):

Second, you seem to think that we might censor a student’s thesis, which is lawful and already in the public domain, simply because a powerful interest finds it inconvenient. This shows a deep misconception of what universities are and how we work. Cambridge is the University of Erasmus, of Newton, and of Darwin; censoring writings that offend the powerful is offensive to our deepest values. Thus even though the decision to put the thesis online was Omar’s, we have no choice but to back him. That would hold even if we did not agree with the material! Accordingly I have authorised the thesis to be issued as a Computer Laboratory Technical Report. This will make it easier for people to find and to cite, and will ensure that its presence on our web site is permanent….

Read more about the whole back story A Merry Christmas to all Bankers and the full Letter to bankers (PDF)

Nice to see an act of moral courage coming from the university. I know that they are supposed to be like this but its nice to see that they sometimes act this way too.

Censorship in EU (Malta)

The tiny island of Malta rarely pops up in my rss reader but when it does I usually pay the news more attention than it deserves. Malta is a tiny island with about 400 000 inhabitants and like most islands is fairly big on introspection. What makes Malta special (for me) is the fact that I spent the first 15 years of my life there so I have experienced the narrow mindedness first hand. Don’t get me wrong the Maltese are friendly and welcoming its just when it comes to politics they are positively rooted in the dark ages. Today an article in the Guardian did come up via my rss and it began

What if there were an EU country where abortion, divorce, and blasphemy in public were all still illegal? Where freedom of expression was limited to saying nothing critical of the Catholic church, nothing that the government could call “obscene”, and nothing against the few noble families who all but controlled it? Surely, given Turkey’s problems, Croatia’s lack of membership, and Iceland’s still pending application, such a place would be expelled? Welcome to Malta.

Of course size matters but it is strange that the island is able to maintain these politics within the framework for the European Union – we should not really be surprised as the EU is still fundamentally an economic alliance and not a organisation founded in human rights. But still Malta is pushing the envelope

In the last year, the Maltese government has banned the play Stitching from being performed, has arrested and put students on trial for writing and publishing an “obscene” story, and has prevented the artist Alexander Stankovski from exhibiting paintings which contained nudity. The updated criminal code will make public obscenity or blasphemy in public punishable by up to a year in jail, even if the words or sentiments are part of a work of fiction, theatre, or art.

What if this had been a Muslim country behaving like this? Wouldn’t the criticism be louder? Is the lack of energy spent in combating blasphemy laws  a form of lazy racism? All over Europe countries are going crazy about the Muslim dress. Clothes! At the same time we accept that we have laws against blasphemy! We are concerned about women’s freedoms and the oppression of religion and yet we support certain religions by silencing criticism.

How is it that Malta is the way it is? The historic and geographic isolation of the island has enabled it to maintain its bizarre positions. In the Guardian article on the censorship of a short story O’Mahony writes a paragraph that neatly sums up the situation:

The Maltese press covered the issue, but in a factual tone. A recent interview with another Maltese writer, Frans Sammut, in the Malta Independent, allowed him the space to say he agreed with the ban of the work. However, with editorials that celebrate the Pope’s stance on paedophiles operating within the Catholic church, one cannot expect the media to help artists that write about blasphemy and their perceptions of the church’s misogyny. Self-censorship is rife on an island where everyone knows everyone else, but general opinion seems to suggest that writers were simply not taken seriously enough before the events of last year to ever fear reproach for what they produced.

Wikipedia and editorial control

Wikipedia continues to experiment with access and control in relation to the most frequently vandalized pages. Previously it would simply “lock” the pages, removing the ability of anyone to just edit the page. This loses the advantage of dynamic creation which made Wikipedia great and now changes are afoot to enable editing. Instead of locking the pages the organization will have a system of tighter editorial control. As Buzzblog points out there seems to be a paradox between freedom and control but the systems goal is to limit “bad” edits. In an interview Jimmy Wales explained the position “These (pages) have had to be semi-protected for years just because they are too tempting for naughty people to try something funny. But semi-protection has prevented thoughtful and sincere newcomers from making good changes.”

A blog post from Wikipedia’s Moka Pantages explains the changes:

Over the next few days, English language Wikipedia users may notice a small change on some articles: a little magnifying glass where a lock once was. The icon, on the upper right corner of the article, represents an important step that Wikipedia volunteers have taken to open up articles that were previously protected from editing. Starting Tuesday at 11pm UTC, the English Wikipedia community will begin a two-month trial of a new tool called “Pending Changes” (formerly known as Flagged Protection).

Articles that are frequently subjected to malicious edits have long been locked, sometimes for years, and protected from editing by new and anonymous users. Over the last year, the Wikimedia Foundation and volunteers from the community have been working to develop Pending Changes, a softer alternative to these editing restrictions. At present, only about 0.1 percent of the 3.3 million articles on the English Wikipedia are under edit protection. This tool should help reduce disruptive edits or errors to articles while maintaining open, collaborative editing from anyone who wants to contribute.

The end of Hitler parodies…

Picking the strongest internet meme is impossible – but if there was such a list the Hitler bunker scene remix must be one of the most recurring. Check out this short list of examples from YouTube.

Unfortunately TechCrunch reports that Constantin Film, the German film company, who made the movie has begun removing the parodies. Attempting to see them on YouTube often results in the text:

This video contains content from Constantin Film, who has blocked it on copyright grounds.

The amount of files will rapidly disappear once YouTube’s smart content system begins to locate and remove the clips. The question is not whether Constantin has the legal right to act the way they do but the effect of the action. TechCrunch again:

Downfall is a great movie, but it’s also in German which sadly means that many people outside that country will never watch it. But I’d bet these clips have sparked an interest in the film beyond what any type of traditional marketing could have done.

One could also ask what damage the making of the clips has. The clips don’t make less people see the movie or affect sales in any way. Are the clips creating a negative image of the serious movie? This is a doubtful argument as anyone watching the movie will realize the enormous difference between the comedy and the tragedy.

Constantin Film has acted with questionable legality (parodies are within the law) and have definitely not helped in promoting creativity.

Naturally I fully expect someone to create a Hitler parody to express the outrage we all feel at the loss of this important social commentary!

Update: Read the commentary from EFF Everyone Who’s Made a Hitler Parody Video, Leave the Room

Enforcing Copyright to ensure heterosexuality

It’s always amusing (and a bit worrying) to read the reactions to claims that fictional characters may be gay. In the beginning of last year articles like Of course Tintin’s gay. Ask Snowy caused an uproar.

And now the pressure is on Sherlock Holmes. He has always been a bit suspicious. His relationship to Dr Watson a bit too much. Even if he does fall in love with a client in an episode of the tv series he never marries, never has a girlfriend. Watson is more of a ladies man, but never really leaves the relationship with Holmes. In the latest movie with Robert Downey Jr as the detective and Jude Law as Dr Watson the characters wrestle and share a bed.

In an interview on Downey Jr wondered whether Holmes was “a butch homosexual”. This has apparently annoyed Andrea Plunket the copyright holder who threatens to withdraw permission for a sequel if Holmes and Watson become gayer.

“I hope this is just an example of Mr. Downey’s black sense of humour. It would be drastic, but I would withdraw permission for more films to be made if they feel that is a theme they wish to bring out in the future. “I am not hostile to homosexuals, but I am to anyone who is not true to the spirit of the books.” (Times Live)

Using Copyright to ensure heterosexuality is an interesting application. I doubt whether this was the reason for the law. For us copyright nerds Arthur Conan Doyle died 7 July 1930 – in other words almost 80 years ago. But then on explains their licensing grounds and also has an interesting heredity of the Conan Doyle Estate.

In the EC, the entire work of Sir Arthur Conan Doyle enjoys copyright protection until 31 December 2000. After that date, a number of characters created by the author will enjoy trademark protection.

In the US, the Sony Bono Copyright Extension Act of 1997 (105th Congress, 1st Session H.R. 604 ) has extended the renewal term of Sir Arthur Conan Doyle’s works among others for an additional 20 years. This means that all works published after December 31, 1922 are protected for 95 years following the date of publication.

So no outing of Sherlock is allowed without Andrea Plunket’s permission. As for her argument about “not true to the spirit of the books” – the new film shows Sherlock doing many things that are not in the books so even this seems to be an arbitrary choice.


Claims by Andrea Plunket, the ex-wife of the late Sheldon Reynolds, who produced a Sherlock Holmes TV series in the 1950s, that she controls the Holmes copyrights and can withhold her approval of a sequel if she regards the content to be unacceptable were denounced Tuesday by Chicago attorney Jon Lellenberg, the administrator of the Estate of Dame Jean Conan Doyle. In an email statement, Lellenberg said that the estate signed three contracts with Warner Bros.: one for character rights in the Sherlock Holmes movie, another for merchandising rights, and  the third for a related Tom & Jerry cartoon. He noted that the estate has won numerous federal court cases filed by Plunket and is currently trying to collect on several judgments against her for attorneys fees and costs in those cases. Asked whether it is possible that Plunket also signed a contract with Warner Bros., Lellenberg replied that if the studio “paid her something re nuisance value … we will go after it to discharge the judgments against her.” Attempts to reach a spokesman for Warner Bros. to comment on the matter were unsuccessful.

ReTweet: the power of twitter

An interesting thing happened at a conference I was attending last week. The were three speakers giving talks to all the attendants (c:a 300 people). First up was the minister of communication (unexciting but well formulated explaining new broadband policy), the was James Boyle discussing Cultural Agoraphobia (an excellent presentation on the public domain). Finally was a CEO who was supposed to be talking about mobility but spent the entire time promoting his own company and explaining why they were great.

In most such situations the crowd fidgets but endures. But not with a crowd that has access to twitter. The first tweets were bored comments about ill concealed marketing but this was soon followed by harsher comments. The tweets were ReTeeted and commented upon. There was an amazing difference between the online/offline reaction to the speech. Like an iceberg, the real action was under the surface.

Obviously he should not have been invited as a speaker. Nor should he have accepted to speak. And at least he should have respected those sitting listening to him enough not to turn his time into a blatant advertisement.

One of the questions tweeted at the time was why there wasn’t a screen where the speakers could see the reactions of the crowd. But is this a good idea? What are the social conventions of twittering in lectures? In non-tech situations we may allow our minds to wonder, occupy ourselves, maybe talk to our neighbors. Or in a gesture of our dissatisfaction walk out of the lecture hall.

Angry tweets to the world seem acceptable – But would nasty comments flowing along on a computer screen in front of the speaker be considered ill mannered?

Twitter has already been the subject of discussion in academic circles. In October (2009) Laura Bonetta Should You Be Tweeting?

In May of this year, Daniel MacArthur, a researcher at the Wellcome Trust Sanger Institute in Cambridge…reported live from the Cold Spring Harbor Laboratory (CSHL) meeting Biology of Genomes.

A participant from the online news site Genomeweb protested that MacArthur was twittering and blogging about the meeting. The basis of there protest was that while media had to obtain permission to be able to report from the meeting but MacArthur was attending the meeting as a participant and therefore was not required to obtain permission. As a result of this complaint the CSHL notified a change of its rules:

“any participant intending to blog, twitter or otherwise communicate or disseminate results or discussion presented at the meeting to anonymous third parties must obtain permission from the relevant presenting author before communicating any results or discussion to third party groups, message boards, blogs or other online resources (other than your own lab or departments).”

But this seems to be an extreme way to go…

Olympics threaten photographer

In what is an incredible attempt at Copyfraud and general corporate bullying the nasty International Olympic Committee once again attempts to use its power of intimidation to stamp on an individual photographer (via BoingBoing).

On August 12, 2008 Richard Giles posted the photo Beijing Olympics Water Cube below onto his flickr account under a Creative Commons BY-NC license.

The act of uploading a photo flickr is nothing in unusual since there are over 120 million Creative Commons licensed images on flickr.

So imagine his surprised when he received a letter dated 6 October 2009 from the International Olympic Committee (IOC) in Lausanne Switzerland. This became even better when he read on and saw it was a Cease & Desist letter. Here are some excerpts from the letter

[THE IOC] …has recently become aware that you are currently licensing pictures from the 2008 Beijing Games on you flickr account…

…when entering any Olympic venue, you are subject to the terms and conditions mentioned on the back of the entry tickets, under which images of the Games taken by you may not be used for any purpose other than private, which does not include licensing of the pictures to third parties.

In addition, please be advised that the Olympic identifications such as the Olmpic rings, the emblems and mascots of the Olympic Games, the word “Olympic” and images of the Olympic Games belong to the IOC and cannot be used without its prior consent.

click to enlarge

Ignoring the whole issue of fair use the IOC has a very strange idea of what they are trying to protect and the methods with which they attempt to defend what they believe to be their rights.

First they argue that images can only be used privately and not be licensed. Displaying ones own images on flickr may not be exactly private but it is hardly a commercial activity. Also the fact that he licenses his photo’s under a Creative Commons license cannot be seen as a violation of “…does not include licensing of the pictures …” If he has copyright in the images his right to license them under a CC license cannot be limited.

The next problem occurs (well actually its probably the biggest problem) in the words “…when entering any Olympic venue…” and the problem is… the photograph was taken from outside the the venue.

UPDATE: So actually the IOC refers to all Richards photographs including those taken in the arena. The one’s taken in the arena make for a more complex legal discussion (the terms on the ticket and so on). But even here the main thing is that the IOC allows private use. Richards posting to flickr is included in such use. He is not commercializing his photographs he is displaying his life online.

The last issue is one of trademark. Trademark law naturally can prevent competitors from using others marks. But trademark law cannot be used to prevent a photographer from describing his photo as being from the Olympics. Neither can it, nor does it, prevent us from talking or writing about the Olympics – even without the IOC’s prior consent.

Searching Richards photostream with the search term Olympics gives 287 results. But if you do a general search on flickr you get 860 000 photographs that match the search term. There must be thousands more photographs with Olympic content but are not connected to the search term.  This is not an excuse or a defense but it does make me wonder what the IOC is going to do…