I think we all need to just admit that there will be policies that the next US President will implement that we will hate. It doesn’t matter if you support a Republican or Democrat candidate. You may even like some of their policies, but you’ll probably hate a handful and those may define what you really think about that President.
In my case I was an Obama supporter. I think overall, he’s done a pretty good job, but I hate his Mid-East policies, many which Clinton was the architect. I also hate his current stance on encryption, because I think it’s incredibly short sighted.I think we need our leaders to be long in vision, because it’s impossible to know who is going to be sitting in that chair when they finish. This is exactly the case we’re seeing with people incredibly alarmed about the policies that Obama has implemented in Donald Trump’s hands.
Techdirt raised this issue a few days ago in an article called “Abuse Of Power: Laws Should Be Designed As If The People We Distrust The Most Are In Power“. In the simplest terms the author calls for all laws to be written as if the people in charge right now expect to be replaced with people that are the polar opposites of them. In our current political climate that would be the conservatives being replaced as soon as they finish their terms with the most liberal democrats conceivable.
This is essentially how the Bill of Rights were written. Basically, the framers had a clear understanding of what the worst tyrannical rulers in the world do to their subjects. Consequently, they could immediately imaging what would happen if that person became the ruler of the United States, but still bound by the laws of the new constitution. In that case, they could see that the tyrant would be constrained by these laws in such a way as that they would be “comfortable” with them leading the country.
In our case, we have continually eroded the defenses in the Bill of Rights over the past 200 plus years. So now, we have many policies that a great deal of Americans don’t really trust either political party with the powers they’ve been entrusted with. This is further complicated by the fact that our intelligence agencies don’t magically realign with the wishes of a new elected official. Similar to any entity, they continue to pursue their overarching objective and changes in those behaviors require massive changes. In the case of the NSA/CIA it may require changes in laws restricting them from behaving in certain ways with very serious repercussions to those that don’t change their behavior.
As a result, Techdirt is correct. We need to develop our policies with the assumption that “the other” is going to be in charge at some point in our lifetime. The group that we don’t ever want to be in power, will be. We have to admit that. To ensure that they are never able to abuse fellow Americans is to ensure that we do not ever abuse Americans nor other international actors. This then must be codified into law, thus when the most unsavory candidate you can image has a solid chance of winning an election, they will not have powers that we would abhor in their hands. That’s what we need to be thinking about.
Ars Technica published a brief article about the woes of an average legal MegaUpload user suffering because he cannot access his legal content. At the same time Techdirt, points out that there are several large companies (NBC) and prominent politicians (Lamar Smith) using copyrighted material and will likely not receive any sort of punishment for these infringements.
This isn’t exactly the most surprising turn of events. Most of these companies will likely settle or just open up their large portfolios of copyrighted material to Apple or whomever and strike a deal. As users we typically don’t have the same rights and are expected to give up our rights when we use services.
In many cases the content that users generate are the value of the website or service that is being used. This network externality comes from other people using and building the network for the site. I like to argue that perceived value of the iOS and Android operating system aren’t the systems themselves or the hardware they are on or the cellular network, but rather the applications that are available within these environments. For example look at the problem that Nokia and Microsoft are experiencing with their phones and application stores. The quality of the OS is second to the application environment. Nokia’s N-9 that would have used their Meego OS appeared to be an amazing piece of machinery, but it was killed before it ever got a chance. Mostly because Nokia didn’t think that it alone could build the application environment needed to make the product a success.
How can this change? First there will have to be legal challenges. In the case of user created content being sold to a third party based on some esoteric terms of agreement, the validity of these sales are going to have to be challenged in court. In some cases they will likely be over turned in others they might not.
Users will also have to fight against these agreements and refuse to accept them and potentially sue places that abuse the content that users put on the site or that allow third party sites to take their content without permission.
Balance between the large players and the users needs to be restored.
Edit: This story about HuffPo also highlights this imbalance.
For those of you who aren’t aware the US and many other countries have signed the Anti-Counterfeiting Trade Agreement or ACTA. This law provides a legal framework for nations across the world to enact something similar to the US Digital Millennium Copyright Act (DMCA). This framework gives additional control to law enforcement and copyright holders. Something also abnormal about this trade agreement is that the US claims that it doesn’t need congressional approval. I find this extremely odd, as it’s part of the charter of the legislative branch to approve trade agreements. Additionally, as I’m not a lawyer, I don’t understand what’s inherently different in the ACTA from the South Korean Free Trade Agreement, which has been stalled since Bush II.
At this point the EU hasn’t signed the agreement yet. France and Germany have both enacted some already strict laws in regard to the number of strikes an infringer can have before they lose internet connections.Of course there are some serious issues with the approaches that are used to accuse copyright infringers. most of them deal with how to identify a suspected infringer. At this time France’s first three strike infringer doesn’t know how to do that. Additionally, in Germany, where a legislator wants a 2 strike law, the same legislator has already violated this before the law has gone into affect.
I believe that these cases really indicate that legislator really don’t understand how the internet and copyright works. It’s clear from the DMCA that they don’t and neither do judges. However, I think that Judges are starting to seriously figure out what’s going on with copyright and the controls that are being put into place. Recently in several districts judges have severed joint cases of copyright cases, because most of the IP addresses, which are typically associated to a region or city, were outside the jurisdiction of the court they are being tried in. Additionally, some judges are noting that IP addresses aren’t people and other people could be using the IP address. Even more recently a judge writes that in the DMCA suggest if you own a DVD it’s ok to rip it.Which is something that the DMCA is trying to prevent. DMCA was design to prevent circumventing the copy blocking technologies. It made it illegal.
Overall, the ACTA is a huge blow for advocates of reducing or eliminating copyright. I seriously hope that if this trade agreement does have to go through the US congress that it will be rejected. It’s a law that doesn’t take into account the current technologies and what culture really means.
Fortunately, not all governments support the ACTA. In fact Brazil has created an interesting framework that is the antithesis of ACTA. It is designed to support privacy, encourage usage of Creative Commons copyright(left) protection and have true net neutrality.