The following is a rough transcript which has not been revised by The Jim Rutt Show or Cory Doctorow. Please check with us before using any quotations from this transcript. Thank you.
Jim: Today’s guest is Cory Doctorow. Cory’s a science fiction writer, an activist, and a journalist, and he’s the author of many books, including most recently, The Internet Con: How to Seize the Means of Computation, which we’re going to talk about today. Cory was on The Jim Rutt Show way back in the day, EP4. Damn, he’s an OG on The Jim Rutt Show, where we chatted about his very interesting collection of novellas called Radicalized. I’d recommend that you check it out. It’s pretty damn good.
I’ve also recently added Red Team Blues, and the not yet published, The Bezel, which Amazon says is coming out on February 20th, to my all too long reading list. So I’ll be reading a little bit more Cory here in the months ahead. If I like it, maybe I’ll invite him back. We’ll see.
Cory: Very good.
Jim: I first came across his writing back in the double aughts, when he wrote a number of very insightful essays about the intersection of internet culture, policy, regulation, law, craziness, et cetera for the EFF, and it was really interesting stuff. I noticed, Cory, that you’re still writing for the EFF.
Cory: That’s right. I am a special advisor to the Electronic Frontier Foundation. I’m in my 22nd year of service to the nonprofit. Very proud of that association, and it continues to be the defining affiliation of my life.
Jim: Very cool. I was member number seven of the EFF.
Cory: Oh, good for you.
Jim: Back in the days when they were small and poor, my wife and I were one of their more substantial financial backers for many years.
Cory: Oh, thank you very much. Well, we remain an organization primarily supported by individual members. So I believe it’s eff.org/join to find out more, and that is our primary means of getting supported. There are a few weirdos who say, “Oh, no, they get all their money from Google.” There’s a funny story there, which is that sometimes courts order Google to make restitution for their wrongdoing by giving us money. That does not make us Google shills, though. It’s about as far from that as you can possibly get. These are called cy pres settlements.
Jim: Oh, that’s interesting. I did not know about that. That’s cool. So EFF, a great organization. The internet’s fucked up enough the way it is. Without the EFF being out there fighting for us, it would be worse. That’s the only thing I could say. So eff.org, give them some fucking money, goddammit.
Cory: Thank you very much.
Jim: Salty Jim said so, right?
Cory: We’ll take your celibate money too.
Jim: All right. You could read more about Corey’s doings at craphound.com, one of the better domain names I know. He also publishes an old-fashioned blog at pluralistic.net, where he’s partying like it’s 1997. So welcome, Cory.
Cory: Well, thank you, Jim. What a pleasure to be back on your show. I can’t believe it’s been that long. We can’t let it go that long again.
Jim: Indeed, indeed. So let’s just hop in. Cory’s got a very limited time today. He’s doing five podcasts in one day, the Iron Man. I don’t know anyone’s ever done five in a day. So let’s-
Cory: Well, I also wrote eight books during lockdown. You actually missed another book in your list. There’s a book coming out in November called The Lost Cause. That’s the other thing I’m doing today is getting that all ready to go out with my publisher’s tour on Macmillan.
Jim: Damn, I’ll have to check that one out too. Anyway, let’s just hop right down into it. Cory does not pull his punches as anyone who’s been reading him for 20 something years as I have know. For instance, here’s how he starts the book, “This is a book for people who want to destroy big tech. It’s not a book for people who want to tame big tech. There is no fixing big tech. It’s not a book for people who want to get rid of technology itself. Technology isn’t the problem. Stop thinking about what technology does and start thinking about who technology does it to and who it does it for.” Goddammit. Boom, boom.
Cory: I sometimes say that this book is a collection of all the applause lines for my speeches, which is why when I did the audiobook, I narrated it myself because this is road tested material.
Jim: Indeed. You actually make the point later, I’m going to pull it forward just for giggles, is you make the point that these celebrated tech lords are not evil geniuses. In fact, they’re not geniuses at all, but various things have happened in the ecosystem that allowed these guys to consolidate their positions a lot better than some of their predecessors. I’m old enough. I’m an old dude. I remember the mini computer wars, Digital Equipment, Data General, Prime, Wang. Where are they now? I think they’re all dead except for Data General who makes some industrial controllers, and they used-
Cory: Well, DEC became part of Compact, and Compact is now part of HP, and HP doesn’t make anything anymore. So that’s a funny thing to have happened to them.
Jim: I was a heavy DEC dude back in the ’80s. My companies all ran on DEC VAX computers. I love VAXes. I still love VAXes. Still the best operating system ever.
Cory: My first computing experience was a teletype terminal my dad brought home from his university connected up to their PDP11 by an acoustic coupler. That was how I started off with computers in ’77.
Jim: So before we hop into some of the details, maybe you can give us the big, big, big, big picture, just a couple of paragraphs, on what has changed since, say, 1997 or whatever that has allowed these evil, not so genius maniacs to consolidate to the degree that they have.
Cory: Well, so the two things that changed and one follows the other. The first one is that we stopped enforcing antitrust law, and that affected every industry, not just tech, but tech was the first industry born as antitrust was dying. Ronald Reagan hit the campaign trail the year the Apple II Plus went on sale, and Carter tinkered with antitrust, but Reagan just started pulling Jenga blocks out by the fistful, and everyone who followed after just basically said it’s fine for companies to do stuff that violates the law. They can have predatory pricing, they can acquire their competitors, they can just do nakedly anti-competitive things that historically we would’ve really smacked them down hard for.
You have companies like Google that managed to make one good product, which was a very good search engine. Speaking of DEC, they put Alta Vista out of business. That was DEC’s great hope, and then proceeded to do nothing successful after that. Every product that they tried to launch internally, from videos to social media, to even an RSS reader, to say nothing of their whole smart cities moonshot, that all failed. The successful products they have that aren’t searched, whether that’s maps or documents or their entire ad tech stack, their mobile stack, their video platform, all of that, those are companies they bought that they would’ve been denied permission to buy up until the post-Reagan era.
So that has turned the tech sector into what Tom Eastman calls five giant websites filled with screenshots of text from the other four. So now we have this heavily monopolized or oligopolized tech sector, and oligopolies, they enjoy a lot of advantages, but the big one that they enjoy is that it’s really easy for them to agree on what to do. If you remember the Napster wars when there were a hundred squabbling tech companies and seven giant entertainment companies that together were much smaller than the tech sector, those seven companies, they all agreed on what should be done, and a hundred tech companies could not agree. As a result, all the policy fights were won by this pipsqueak entertainment sector and they just completely demolished the tech sector.
Well, today, the way that’s playing out is the tech sector has managed to get laws enacted that make it effectively impossible to compete with them, that make it illegal to compete with them, that create what Jay Freeman calls the felony contempt of business model.
Jim: I love that phrase. I love that phrase. That was a great phrase.
Cory: Me too. Just doing things that their shareholders becomes a crime, and that includes things like anti-circumvention and copyrights and patents and just this whole bestiary of things we call IP that don’t really have any connection to what we historically called IP, like the copyright I have in my novels and, in fact, actually trumps that kind of IP where people who hold copyrights because they created things can end up with fewer rights than the tech sector that intermediates between them. So you get those two things together, the monopoly that’s born by lax antitrust enforcement, and then the ability of monopolists to agree on how to screw the rest of us over, and you get the modern tech sector.
Jim: Yup. It’s goddamn shame. One of the themes that runs throughout the book is the idea of interoperability, whether voluntary or otherwise, and we’re talking about VAXes. I was just thinking about when I was preparing my notes for the show the good old days, 1985. Remember, our little ventures funded startup needed to get a new disc drive for our VAX, and it was either by the DEC, the digital one from DEC, which was $200,000 and about 250 megabytes. That was not gigabytes, that was megabytes, and it was slow as shit or there was the new thing, plug compatible digital discs. So we went and bought instead a Fujitsu Eagle from the Japanese tech company that was just entering the US at the time for 140 grand, which was, by the way, more than an adequate suburban house cost in Boston where we were located in those days, we got 440 megabytes and it was almost twice as fast.
Of course, the IBM mainframe sector was invaded by plug compatibles, and most famously, the Apple II was a totally open system. In fact, I bought an Apple II in 1980 and I loved it. You could do all kinds of cool things with it, but when the Mac came out, I said, “Hiss boo on Apple. You are the demon,” and they went the exact opposite route and closed everything down, and it was always vastly more expensive and more cumbersome and they had much less add-ons you could do, et cetera. So I switched my allegiance to the IBM PC, where it stayed ever since, and the IBM PC very much like a beefed up Apple II, basically, same back plane, same open standards, same simple-minded device drivers, et cetera. That was one of the, I think, key examples of someone figuring out how to try to fuck the user over with the MacOS.
Cory: You’re making some really good points here, and I’d love to throw in a little context here. So that plug compatibility, that was something that was really important to the transition not just from DEC to those other little companies, but from the IBM 360 to the DEC, that there was a lot of making things interoperate one between the other. That affected an enormous transformation and IBM did everything they could in their power to prevent it. So much so that eventually the Department of Justice actually dragged them into court on an antitrust charge where they spent 12 years from 1970 to 1982, a period they call Antitrusts Vietnam, where IBM outspent the Department of Justice on outside counsel every year for 12 consecutive years. They spent more than the entire US government was spending on lawyers to fight the US government, which highlights the importance of preventing monopoly formation in the first place.
If you let the monopoly form and then try to take care of it, it can outspend even Uncle Sam, but although IBM actually wriggled off the hook. When GW Bush was elected, he decided that he wouldn’t prosecute or rather when Reagan was elected, rather, he decided he wouldn’t prosecute IBM and let the charges drop. They were really scarred by the process, and that meant that when they wanted to make their first personal computer, they decided not to vertically integrate the components. They decided to go with standardized components because they knew that the DOJ didn’t like it.
They also decided not to integrate their operating system because they know the DOJ didn’t like tying software to hardware. So the chairman of the board had a friend whose son, William Gates, had a little company called Micro-Soft with his friend Paul Allen, and they bought someone else’s operating system and sold it to IBM. When a guy named Tom Jennings, who you may know as the founder of something called Phytonet, was hired by Phoenix to reverse engineer the ROMs on the IBM PC and make a ROM that compact who eventually bought DEC could use. Along with Gateway, Dell, and all the other PC companies, IBM decided they wouldn’t pursue them in court. They wouldn’t use those IP rights that they had because they were worried about the DOJ coming after them.
So the firms were disciplined by antitrust, right? That was what kept them in line. Now, that interoperability was so important to keeping tech dynamic, and you see it from IBM to DEC to the PC, where over and over again, companies got big, they got powerful, they figured out a way to extract ever larger sums from their users and their competitors popped up and said like Willie Sutton, “I’m going to rob the bank because that’s where the money is. I’m going to figure out where you’re making all of your money on overpriced hard drives, and I’m going to make a hard drive that’s plug compatible, one that will work with it,” and that meant that tech was always super dynamic.
My first experience with that DEC was quickly followed with an Apple II Plus, was quickly followed with an Amigo, was quickly followed with IBM Clones and Macs, and then the IBM Clone company bought out DEC, and then the IBM Clone company disappeared. Companies came and went, and if you didn’t like the technology being offered today, wait five minutes, a new technology would come along.
What happened was the giant tech firms that themselves relied on interoperability to get big, whether that’s Apple, Microsoft or Google, then turned around and said, “Well, when we use interoperability to raid the margins of the incumbents that we were going after, that was progress, but when you do that, to us, that’s piracy,” and they managed to made it illegal.
So we live in a world today where tech platforms can use the incredible flexibility of digital to change the rules from moment to moment and second to second, whether that’s how an Uber driver gets paid or what ink your printer is willing to accept. All of this is being changed in this high speed shell game where the quickness of the hand is deceiving the eye, but when we try to do something to take that back, like if you wanted to reverse engineer an app that you use to do add and tracker blocking the way one in four web users have for websites, you would get hit for violating Section 12-1 of the DMCA by reverse engineering it and bypassing the DRM, tortious interference with contract, maybe a software patent, probably a software copyright. There could be a trademark claim and so on. They just reduce you to radioactive rubble.
So they have all the flexibility and we have none of it. They can reconfigure the service as they feel like long after we’ve bought it and organized our life around it, but anything we do to defend ourselves or put things back the way they were when we started or make them better, all of that becomes a crime, and that’s how we got to where we are now.
Jim: Yeah, that is interesting that it used to be that, you make the point, that one of the very interesting things about computers is that they’re universal. The famous Turing proof that all computation within some very broad limits is equal. So if you can do it, if you can get an IBM mainframe to do it, you can get a third party to do it on their disc control or you can emulate it. That used to be rough, hardcore, nut-cutting competition out there, which led to better and better ratcheted up things, but somewhere along the lines, the guys figured out, as you laid them out, these layered defenses. If this one doesn’t get you, this one will or this one will or that one will, and even if it’s theoretically possible to get through all four of them, it’ll cost you $8 million worth of legal bills to do it.
So the idea of, and I remember a friend of mine is on our board of my first company, William Solomon, taught a famous course of entrepreneurial finance to Harvard Business School. He wrote a famous case about 104, five and a quarter inch Winchester hard drive manufacturers started up in 1982, and only five of them made it, but today, there was no way that anybody would get funded to compete in those kinds of marketplaces because of these layered defenses, which has brought us down to this very slowly changing tech world that we have today.
Cory: Venture capitalists call the lines of business adjacent to the ones dominated by the big tech platforms. They call it the kill zone, and they won’t invest in anything that they think a large tech platform might want to go into because they understand that those platforms have such a free hand in terms of their access to anti-competitive conduct, and so much capital with which to undertake that conduct that they don’t stand a chance
The canonical example here is diapers.com, which is a company that, as you might imagine from the name, sold tractor parts. No, they sold diapers. Diapers.com was very successful, so Amazon decided to try and buy them, and diapers.com said, “No, thanks. We’re not interested in selling.” So Amazon twiddled a knob on the backend because they have so much flexibility in terms of their pricing and how they run their service because it’s digital, and they can change prices at the click of a button, and they lost a hundred million dollars selling diapers below cost over the next three months.
Diapers.com went under and Amazon bought them for pennies on the dollar and then shut them down, and everybody learned the lesson that if you do a thing that competes with Amazon, Amazon will use its unlimited access to the capital markets to make you go broke. So nobody tries to compete head on with Amazon. Sometimes people start complimentary businesses they hope Amazon will buy, the famed acqui-hire, but it’s very rare that you will see capital for businesses that compete head on with Amazon or the other big tech platforms.
Jim: That’s much more true than it used to be even in the double aughts. I was quite active in the private equity investing space then, startup investing and such, and build a company, sold it to Google for $50 million, was a very standard model, and they were buying 30 or 40 companies a year because as you pointed out, they’re entirely inept at building anything themselves anymore, but I actually tracked the numbers, and where they used to buy 30 or 40 companies a year, now they’re buying two or three, and they’re no longer the little plugin companies.
Cory: Oh, no, no. In 2019, Tim Cook told Kara Swisher he’d bought 90 companies that year.
Jim: Yeah, that would be Apple. They’re doing it because behind in certain areas, but anyway, the plugin acquisitions still happen, but not the strategic ones.
Cory: Yeah, that’s right. That’s right. It’s basically, and this is one of the things that gives me hope, it’s the falling fortunes of the tech worker, which drove this bizarre form of tech development where it used to be that you would go to work for a big dumb tech company hoping that after a couple of years you could go out and start a business that would put them out of business. Then it became, “Well, I’ll work for a big dumb tech company for a couple of years and then start a business that they’ll buy,” which is just the world’s least efficient way of getting a bonus. Then it went to, “I’m going to work for a big dumb tech company and there’s no way I can start a business, but at the very least, I’m going to get free kombucha whenever I want it and massages on Wednesdays.”
Now, all you can hope for is, “I’m going to work for a giant tech company and they’re just going to fire my ass whenever they feel like it,” like Google did to those 12,000 engineers that they fired six months after doing a stock buyback that would’ve paid those salaries for the next 27 years. One of the things that gives me some hope here is that tech workers, like engineers historically, did not see themselves as part of a struggle in which they had solidarity with each other or with their users or were part of a wider economic framework. They thought of themselves basically as LLCs with BSs. They were small businesses negotiating across the table with another business and not workers. I think tech workers are finally waking up to the fact that they’re workers first and tech second, and that creates some opportunity for solidarity across the board.
Jim: Yeah, that’d be interesting to see if that actually happens. Of course, famously, the tech sector has never been unionized at all, but I would say it might be ripe for doing so, though I suspect that will be a lot of pressure from the automated programming, large language models or at least the 3x multiplier of effectiveness of techies. So at the moment, techies might not have as much bargaining power as they had two years ago.
Cory: Well, that may be so, although LLMs only work where you’ve got a unit test that is comprehensive enough that you can make sure that it hasn’t introduced all kinds of subtle, hard to find [inaudible 00:20:24]
Jim: I’m actually using LLMs right now to write software for my new company, and I would never let it write unsupervised software, but as a aid to a human over your shoulder, it’s 3x at least. It’s amazing, right?
Cory: Yeah, no, no, that’s true. The other thing is that every business is a tech business. I won’t sell my audiobooks on Amazon because they have this mandatory DRM thing, and I don’t want to lock my books to Amazon’s platform. So I self-finance them and then I sell them through Kickstarter because once the book comes out, nobody knows it exists. The audiobook exists because everyone just searches on Audible. If they don’t find it, they assume there’s no audiobook. So I have to do a big splash to pre-sell the book, and then that’s basically all the sales I get.
So I did this with my most recent book, and I also pre-sold hardcovers just because people who buy the audiobooks sometimes want to do that too. I have a local bookseller who fulfills those orders. So 500 people bought signed hardcovers, and then another thousand people bought unsigned ones. So for the signed ones, I went down to this local bookstore and I signed 1,000, 500 books, and every book’s dedication was written on it in a Post-it note that someone had manually transcribed from their inventory system with a unique number on the other side so that they could then look it up and do the packaging for it.
It was like, “This is bananas,” and they’re like, “Yeah, we just can’t integrate it.” Hypothetically, you could print out shipping labels that you filled it in half and on the other side was the dedication, and you just shove it in the book and then you tape the label to the outside of the wrapper. They just don’t have any technologists. There is so much work for technologists. There’s so much automation that could be done that the economy can absorb all those tech workers. It’s just that they’ve been built into thinking that they are tech workers who must work for a tech company as opposed to tech workers who have built tech for all kinds of businesses.
Jim: Yup, there’s some truth to that, and I had made that point that the demand for technology work is probably enough to take 3x more code.
Cory: I think that’s very true.
Jim: We shall see what happens. So let’s run very quickly through the history of IP and how it gets us to this day. I guess we can skip the fun story about sheet music and phonographs, but maybe take us up to Napster and then what happened thereafter.
Cory: Sure. Well, yeah, IP is this very broad category. There’s often a lot of argument about whether we should even use this phrase. If you hang out in sort of free software, open source circles like I do, there are a lot of people who say IP is a bamboozler of a phrase because it doesn’t refer crisply to any one thing, and the speaker can just play a shell game where they change what they refer to whenever they say IP. Obviously, IP could be copyright, it could be trademark, it could be patent, but it could be like trade dress.
It could be sui generis database rights, it could be non-competes, it could be non-disclosure, it could be trade secrecy, all of these other things that get lumped in, and it doesn’t make any sense. In one sense, it doesn’t make any sense to speak of this as a single category, but there is in business circles a very crisp meaning for IP, which is any law or regulation that allows me to reach beyond the four walls of my business and exert control over my critics, my competitors, and my customers or anything that lets me create a felony contempt of business model. In that sense, it’s got a very crispen and well-defined and well-trod meaning.
So prior to Napster, the rule for intermediaries, people who make systems that allow people who make copyrighted works and people who consume copyrighted works to consummate their desire to do business with one another, the rule had been set down in a case called Betamax, which as the name suggests, relates to early VCRs, Sony’s VCR specifically. In 1976, Sony sued over the existence of VCRs, and in 1984 got to the Supreme Court and they brought down the Betamax ruling, which says that any device that is capable of sustaining a substantial non-infringing use is lawful. That is to say if your device can be used in lawful ways, it is lawful.
That was the basis on which we got home cassette decks and floppy discs and hard drives and all these other technologies that could be used to infringe, copyright, photocopiers, but also could be used for all kinds of other purposes that were socially beneficial and didn’t really intersect with copyright at all.
When Napster came along, the argument was that Napster was capable of sustaining some pretty substantial non-infringing uses. In the lower courts, Napster lost those arguments. Their investors lost their nerve and Napster folded up, but that wasn’t the end of the story. After that, a bunch of other businesses popped up to make their own Napster-alike technologies. The most important one was one called Grokster. Grokster, unlike Napster, had no locus of centralized control. So there was no way that the people who made Grokster could know what files were being shared or stop files were being shared. It was all done purely peer-to-peer.
It went to the Supreme Court, and the Supreme Court said, “This is capable of sustaining a substantial non-infringing use, and therefore under Betamax, it should be fine, but when we look more closely at it, we find that the proprietors of Grokster were encouraging people to make infringing uses, that they advertised that you could use this in infringing ways, and they were explicitly setting out to benefit from infringing use. So this isn’t like the VCR and, therefore, we can ban it,” but that’s not a great argument.
If you look at the actual record on the VCR, you find that Sony advertised the VCR for uses that were every bit as infringing as Grokster was. They said you could record Hollywood movies off the air and then take them to your friend’s house to watch them, which is an infringement twice over a public exhibition and an unauthorized reproduction with no transformative use. The court said, “Well, we’re still not going to ban the VCR,” but in this case, they banned Grokster and they banned peer-to-peer.
This was a turning point in the relationship of technology to incumbent entertainment companies, and it meant that from then on, tech companies and entertainment companies colluded to build technologies that would in no way disrupt the existing order, the doctrine of disruption, which was always quite hollow in its own way. That doctrine went away and was replaced with what memorably one studio executive at a meeting that I was at once called Polite Competition, where the businesses would get together like Mafia bosses and agree among themselves what would and wouldn’t be done, who would have control over which lines of work, and what could and couldn’t be made.
So you get iTunes that launches with the slogan, Rip, Mix, Burn, but very quickly becomes a way that you buy music that has been authorized by the studios or the labels and not a way that you can make uses that they don’t like, even if those uses might be lawful.
Jim: I got to say, when I was reading the book and I was thinking this through, when companies are actively promoting the use of their technology for infringing purposes, that does seem a little over the line. It is surprising that Betamax, one, its case, I would say, on the historic nature of the English and American common law, that’s surprising. So it doesn’t totally shock me at all that Grokster was found the other way, actually.
Cory: Well, the question is … We can make a post-facto argument here, which is, what do you prefer, a world with hard drives, photocopiers, tape decks, and indeed VCRs in it or a world in which we said, “Well, Sony had unclean hands. They advertised this for uses that they knew were unlawful or should have known were unlawful,” and therefore we said, “You not only have to be capable of sustaining a substantial non infringing use, but you also have to be made by people who don’t intend it to be used ever to infringe”?
Jim: I think there’s a room in between those two, which is that you don’t actively promote it for infringing purposes. That’s, I think, a fairly clear and bright line.
Cory: Well, that could be the intermediate case, but if it were, we wouldn’t have VCRs and we wouldn’t have the body of law that universally Sony created that allowed all those other technologies to come into existence. So hard cases make bad law, and what the court looked at there was on the one hand, the unclean hands of Sony, and on the other hand, the gigantic social benefit that arose from these multipurpose or dual use technologies that could be used to infringe copyright but could also be used in other ways, and they said the intention of the maker is not as important as the outcome of the technology.
We had a similar record with file sharing, where there were some losers, there were some winners, there were lots of people who were using it in non-infringing ways. One of the things that was stipulated in the Grokster case was that there were more non-infringing works in the Grokster network than there were books in the Library of Congress, all of which ceased to be available through Grokster the day Grokster was shut down. So we can be instrumentalists or we can be hypothetical purists, and the hypothetical purists, I’m here to tell you, would’ve resulted in a world in which the VCR was banned and a lot of other technologies that you and I love would’ve been banned as well.
Jim: That’s a very good point. So let’s move on to where we are today with respect to online IP, the famous notice and take down.
Cory: So then comes this question in the 1990s as Bill Clinton and Al Gore are trying to figure out how to demilitarize the internet and create a consumer commercial internet, the so-called national information infrastructure hearings. In this time, the question was, if I host someone else’s speech, someone else’s communications, be that a video, a still image, audio or text, what duty do I have to ensure that this material doesn’t infringe copyright? Because it can be very hard to determine a priori whether a work infringe is copyright. I think many of us have heard the stories about people who brought their grandparents’ wedding photos to Walmart to have them blown up and put on a stand at a wake for their grandmother, only to be told, “I’m sorry, you need to find the studio photographer from 1912 to determine whether or not they would give a release for this, and I can’t trust your assurance that the studio photographer transferred the rights to this photo to your grandparents back before World War I.”
So if we said you can only host speech if you know for sure that it doesn’t infringe, then we would’ve been effectively saying you can’t host speech from the public. You would’ve been making something that looked a lot like cable television where everything that is aired goes through an errors and omissions process where people check the rights status of everything down to the spines of books on the shelves and backgrounds in which insurers underwrite that process and so on. You would not get a thing where you could just post, “Hey, guys, who wants to go to the movies with me tonight?” because no one’s going to pay to vet that to make sure that it doesn’t infringe copyright.
So the decision they came to was to rather than creating an a priori duty for people who host other speech to investigate that speech as copyright status before it was made public, they allowed them to be immunized from joint liability for copyright infringement if when they received an accusation of copyright infringement, a notice, they took down the material expeditiously, and if they did that, they were immunized from liability and they could not be held jointly liable for that copyright infringement, which is pretty important because copyright, it’s a strict liability statute, so that means that even if you don’t know your infringing copyright, and even if you’re not the primary party, if you have anything to do with it, you can be liable for it. The damages can run to $150,000 civilly and $250,000 criminally per copy per work. So getting people out of liability for that was pretty important because if you have liability for the things your users post, you’re basically not going to let them post anything.
So this notice and take down system, it was intended to be a system that would allow us to communicate with one another on the internet without having to roll our own servers and be our own hosting company, but it’s become a charter for the mass removal of content on a largely automated basis without any penalty for getting it wrong. So over and over again, you have companies that will enumerate all the files on a web server or the titles of files on YouTube, and they will say, “Based on that title, I think this is my work,” and they will fire off a robo letter to the hosting firm and have it removed.
You also have so-called reputation management companies that will fire off letters insisting that negative coverage of their clients, for example, coverage reporting on their client’s criminal convictions for rape or murder, that those are copyright infringements and get search engines to delist them. The more advanced version of this is that the reputation managers will stand up like a little WordPress blog, and they will make infringing copies of the news articles that are unflattering to their client and backdate those copies so that it looks like they publish them first and the newspapers publish them second or the bloggers or independent investigative journalists publish them second and they will get those writers original works de-listed from search engines so they disappear from the internet.
You also have in YouTube a homegrown takedown system, where Google, after being sued unsuccessfully by Viacom, came up with a system where it voluntarily allows rights holders to upload the audio tracks of files and then say anything that has the same audio track. You can choose whether it will be removed or whether it will be demonetized or whether the money that comes from it will go to you. You have, on the one hand, companies like Sony that own large numbers of classical performances through their record label, who have uploaded all these files, and individuals who record their own versions of Bach or Beethoven or Brahms or even classical composers whose names don’t start with the letter B. Their work is routinely taken down because it sounds too much like a Sony one, and Sony, in many cases, will actually go back in and say, “No, no, no. That really is a copy of our recording,” even when it’s not, and there’s no penalties for this.
You also have scumbag blackmailers who will send two bad takedowns over someone’s popular YouTube channel and then say, “I will send a third bad takedown unless you send me ransom.” If you get three takedowns on YouTube, YouTube deletes your channel with no appeal. So this is a way to get people who are earning their living through creative labor to cough up money to scumbags who use the copyright enforcement system that’s supposed to protect creative workers to actually deprive them of their income.
Jim: When I read that, I had never heard of such a thing, I go, “Holy shit, this ought to be like stealing a man’s horse in the old West. They ought to hang you if they catch you.”
Cory: Oh, yeah. I’m all for it. I think criminal sanctions would be fine. I also think that we could very easily have a one strike in your out system where if you’re Sony and you ever once falsely accuse someone of copyright infringement, you lose access to the automated notice and take down system, and from now on, you have to go to court and prove infringement. That expedited service is a privilege and not a right.
Jim: The other one, which I actually proposed in my essay called Musk and Moderation on Quillette, as a general purpose way to discipline the platforms because as you point out, they have no incentive to carefully check on whether something is fair use or not, for instance. I call it the 10x wager, which is that anytime a platform above some size, let’s say five million monthly uniques, take some moderation decision that you think violates their own standards or the law, you have the right to put down a wager, which they have to pay you 10x if an independent professional arbitrator rules in your favor. Further, because most people don’t have the means to raise enough money to make it painful for the platforms, that there must be a system for public syndication of these claims. Is that what they call that?
Cory: Yeah. It’s when someone else finances your lawsuit.
Jim: So you have a public syndication, and I think I proposed in that article that the rule would be that the syndicators get 80% of their proportionate share, and the originator, the victim gets 20%. So you raise a million dollars, you get 10x on that $10 million, you just made $2 million on winning your claim against Facebook. I find this to be a very … When I went through your list of things that are fucked up, I said, “If Rutt’s 10x wager rule existed, the system would tend to self-regulate itself pretty damn quickly because these guys get sick and tired of paying out hundreds of thousands and millions of dollars for bad decisions.”
Cory: Well, it’s an interesting idea. So my two immediate reactions. First is that it assumes that an independent arbitrator with relative ease arrive at a decision about infringement, and that might be true where we’re talking about holus bolus copying. Did I record this Beethoven’s Fifth or did Sony? The fair use questions are much harder to adjudicate. They’re very fact intensive, and they tend to involve expert dueling lawyers arguing in front of specialized judges for months at a time.
So there isn’t a good bright line test, and that’s by design. The point is when the Supremes ruled in Grokster, and then again in a case called Eldred, in both cases, they took some time to talk about the relationship of the First Amendment to copyright. Copyright is very hard to square with the First Amendment when you think about it because the First Amendment says Congress is not going to make any laws regarding speech, and then copyright says certain words can’t be spoken without permission from someone who’s given an exclusive license to them by the state.
The Supreme said, “How do we reconcile these two seemingly contradictory doctrines?” Both of which are in the Constitution. Copyright is in something called the progress clause, to promote the useful arts and sciences, the progress, the useful arts and sciences Congress may from time to time create these monopolies of limited time over works. It’s interesting because it’s the only thing in the Constitution that says may instead of shall. So the framers were like, “If you need a copyright, you can have one, but it’s not a requirement.” It’s one of two elements of the Constitution where the framers explained why they put it there. They don’t say, “You should have copyright because copyright’s good.” They say, “You should have copyright where promotes the progress, the useful arts and sciences.” The only other part of the Constitution where they explain why they put something there, can you guess?
Cory: The Second Amendment, the well-regulated militia.
Jim: Yeah, they did it and it convoluted. What the fuck were they trying say kind of way too?
Cory: Yeah, but it’s interesting that there’s these two things that are potentially quite dangerous where they say, “Let me explain why we’re putting this there. The rest of it is a truth that we hold to be self-evident. This is going to take a little explaining.” So there is so much flexibility in fair use that it can be really hard to know a priori whether use is fair, which makes things hard. There are a lot of things where people are adverse to going to court, and so they color within the lines. They don’t test the perimeters.
Jim: Well, see, I would say this. Let’s we did the following. The limit on what we’d pay an arbitrator is a thousand bucks, but we have the 10x wager. So the platform has to be willing to accept that they are well within the line so that a thousand dollars arbitrator can figure out that they got it right.
Cory: Oh, but then they just block everything that might be fair use.
Jim: Well, no, and then I come out-
Cory: That’s what we’ve got already.
Jim: Then I lay down my a hundred thousand dollars and say, “All right, I want my arbitrator, and if I win, I get a million.” So that if they do that, then they will be zinged because these thousand dollars arbitrators will find them in violation that the usage was fair use. So the fuzziness is okay so long as the penalty is asymmetric. It’s a complicated game theory problem.
Cory: I hear what you’re saying.
Jim: Unfortunately, there’s so many interesting things here. We could talk for three hours, but Cory’s got very short time. So I’m going to go into our last topic, which is as I was reading the book, particularly as you started getting later about things like Facebook and Twitter, et cetera, I said, “How would this actually work?” and I sent Corey an email asking if he’d be willing to have a little chat about how an open interoperability mandatory, open interoperability API with something like Facebook would work and what the implications might be. So why don’t you start with your thoughts there, and I’ll come in with some questions and such.
Cory: Sure. So I actually developed a little thing that explains how this would work for EFF called Interoperable Facebook, and it’s at eff.org/interoperable-Facebook. It’s a little UI wireframe of how you would obtain consent and maintain privacy and do all those other good things that we would want to see out of an interoperable social media platform because I think there are a lot of people who are angry about Facebook’s moderation policies and the moderation policies of all the other platforms. I think that there are definitely deficiencies in the official policies that they have, but there’s a more profound problem with moderation on the big platforms, which is that there just isn’t a three-ring binder thick enough to stick full of all the rules for regulating all the speech of, say, four billion people speaking a thousand languages in a hundred countries. So they’ve really set themselves this impossible task.
In Interoperable Facebook, we describe what it would be like if you could leave Facebook but continue to talk to the people that you left behind so that you wouldn’t be stuck to the platform because even though you hate the platform, you love your friends, which is a common refrain among Facebook users and users of other platforms too. So it would mean that when you left, you would have a little authentication step where the new platform that you went to, say you went to Cory’s Mastodon server, would send a message to your account on Mastodon saying, “Hey, Jim has just signed up on Cory’s Mastodon server, and can you please send him a unique serial code that he can then log in and paste back into Facebook so that you know it’s really him? Someone with his login is setting this up.”
Then once that’s done, when you want to read your friends’ messages, when you want to participate in the groups that you’re in, they will either, depending on how they set up their preferences, the first time that you try to message them or the first time that you try to read what they’ve posted, they will get a thing saying, “Hey, Jim is on Cory’s Mastodon server now. Do you want to continue talking to them?” or they might say, “Never ask me when my friends go somewhere else. I’m okay with talking to them wherever they are,” or they might say, “Never ask me, provided my friends are on one of these servers,” or they might say, “Never ask me, provided my friends aren’t on one of these other servers.” So you go to a server that allows you to say things that I find disgusting, and I say, “I just don’t want to hear from you anymore because I like the moderation rules that I have here.”
So you can go somewhere with stricter rules, you can go somewhere with looser rules, and then everyone in it makes a choice about whether they’re going to just talk to all their friends, whether they’re going to talk to the friends who are sticking to parts of the federation where they like the rules or whether they’re going to have a whitelist or a blacklist of which parts of it they want. You can always change your mind. You can reset those preferences. You can block people and you can follow people.
Then what you have is moderation policy set by the communities that are on the server. So the users of Cory’s server decide to go to Cory’s server because they like the things that I’ve said I will block or permit, and if they don’t like it, they have an easy time to move from that server to somewhere else. It’s the same two-click process to go somewhere else if it turns out that the rules aren’t the rules they were hoping for. What this means is that making sure I do the right thing is a lot less important as a server moderator because there are lots of other server moderators you can go to if you don’t like the way I’m managing things.
Jim: A quick question. If I’m Facebook, I’m another server in the Fediverse, right? So I might say, “I don’t like the attitude of those people over there in quarry land. I’m not going to let any quarry land messages come in,” because in Mastodon, that’s the way it works. You set up a Mastodon server and you can say, “I don’t want quarry land. I don’t want Neo-Nazi number 27 server. No.” So how can Facebook just say, “I don’t want any of these assholes,” and just turn everybody off? That would be within the rule, if not the spirit, of federated social.
Cory: Well, because Facebook would be here as part of a mandated remedy for anti-competitive conduct.
Jim: I see.
Cory: Whereas everybody else would be free agents. Facebook’s on parole. Everybody else is just making their own choices.
Jim: Because I was going to say, unfortunately, the rules of federated social would allow Facebook to refuse to federate, right?
Cory: That’s right.
Jim: So you’d have to have some illegal remedy to make that happen. Now, you talked a bit, quite a bit about things like harassment, child pornography, bomb making, terrorism, et cetera. How does that work in a federated social world, particularly where Facebook is mandated to support incoming messages from people that they have not authorized?
Cory: I’m sorry. I don’t know that I understand the question. Which part of that is a problem?
Jim: Let’s say that one of my friends agrees to accept inbound messages into their conversations from me, and I’m a total asshole, I just start throwing racial slurs around, et cetera.
Cory: Sure. Oh, well, if it’s a community, so say you’re in a user group. So the example that we use in I think both in the book and an Interoperable Facebook is it’s a real world example of some people that at EFF we actually did some representation for, which are women who are breast cancer previvors, so they have the gene for breast cancer, which means that they’re at a very high risk of getting sick, but also, it means that the women in their life are very often very sick, that they’ll have lost mothers and daughters and aunts and grandmothers. So it’s a really important group for them, and they have lots of sensitive needs. They want to have a high degree of privacy. They don’t want their membership enumerated or leaked because that could be used to discriminate against them and it’s sensitive personal information.
Also, they may have preferences about the kinds of discourse about illness and wellness that they’re willing to tolerate. They may say, “Look, this is just not the place to show up and tell everyone that they should be going on juice cleanses, and if that’s what you want to do, you need to join another group.” The group moderators might say to the user, “I’m sorry, you violated our policy,” and kicked them out of the group just as they might if they were on Facebook, right? Now, if you are an individual and it’s coming into your private mailbox and it’s full of racial slurs or whatever, you just need to block that person.
Jim: Yeah, I was going to say that too because you did mention harassment several times. I said, “Well, harassment, there’s a very simple fix for that. Block. Boom,” right?
Cory: Help with brigading, right? So that’s where you might see people being punished for mass conduct that goes beyond blocking. So I’ve been brigaded before. I had a fairly mild version of it compared to people I know who’ve been targeted by men’s rights activists and stuff, and it’s no fun. I don’t want to undersell how difficult it is to deal with a brigading attack. It’s a lot, but that in those cases, those individuals, I don’t know, they probably are going to have to appeal to the moderators of Facebook or Facebook may in fact have some remedy in the event that certain odious conduct is permitted.
Jim: Again, I want to take this example, try to make it a little sharper. Maybe I didn’t understand how the API works, but I leave Facebook. My friend John is still on Facebook. He’s having a conversation in public Facebook, which I have subscribed to, possibly, and I then respond to the conversation with something that violates Facebook’s rules, but my buddy John says it’s okay since he was the OP, he can authorize it into that post in the public Facebook.
Cory: So Facebook might block that material, but it would have to make some notation that says, “This has been blocked, and if you’d like to read it, you’ll have to join a different server.” So if you follow that person on another server, you’ll see it, but if you follow them on the Facebook server, you won’t. So again, it’s just about … I don’t think that individual choice is the be all and end all here. I think that there are some things that transcend individual choice or that individual choice can’t manage well like brigading, but in the same way that I think that revenge porn and other materials shouldn’t be about, “Well, I’m okay with seeing non-consensual pornography, therefore I should be allowed to see it,” but it’s more about whether or not you are saying things that are lawful but awful.
Jim: My view is that communities should be able to have their own standards. as you point out. For instance, The Wells, I’ve been a member of for over 30 years, has its own culture.
Cory: Yup, a ,ember as well.
Jim: Our Game-B World has 3,500 people on game-b.org. Very well-behaved place. We have 10 rules and we do boot people. So it is possible to have good high quality online culture in relatively small groups because as you point out, the N word, for instance, one could imagine let’s say an all Black community that says the N word’s okay but only if used by another Black person. Another one could say not at all or another one could say it’s okay, but only in quotes, if you’re referencing something else, and that’s all okay as far as I’m concerned, but of course, a three billion person company like Meta, what a name, can’t go there.
So one last thing, unfortunately, God, we have so much we could talk about, the politics, how we could make this happen. One final thought I want to give you is that I’m going to nominate Cory Doctorow to be the Secretary of Consumer Technical Rights in the next administration, and that probably neither Team Red or Team Blue would do it because they both suck, and they’re both bought and paid for. So maybe no labels will get rolling, and if they do, you should go talk to them and say they need to have a Secretary of Consumer Technical Rights and you’re volunteering for the job because I think you get this more than anybody else I know.
Cory: Well, I’m much more of a outside the tent pissing in guy than an inside the tent pissing out guy, I’m afraid, but I’m very flattered.
Jim: So anyway, very much enjoyed this conversation. As always, go out and give them the title of the book.
Cory: It’s called The Internet Con: How to Seize the Means of Computation.
Jim: As always, we’ll have links to it on our episode page at jimruttshow.com.
Cory: Thank you, Jim.