Report from the Verizon v. RIAA Court Hearing

Judge John D. Bates heard arguments this morning in RIAA v. Verizon, the “test case” for the subpoena provisions of the DMCA (section 512(h)). Both parties were given upwards of 45 minutes to develop their arguments and rebuttals, and the Judge permitted amicus Motion Picture Association of America to make a brief argument which for the most part said that the Motion Picture Industry had a large financial stake in DMCA enforcement.

Both parties and the Judge seemed to agree that the critical issue was one of statutory interpretation. They also agreed that the statute was poorly worded and there was a paucity of legislative history to answer the question unambiguously. Specifically at issue is whether the subpoena provisions apply equally to 512(a) service providers (where the provider is a “conduit” for user communications) as to 512(b), (c), and (d) providers. Verizon argued that the subpoena provision was specifically targeted at 512(c) providers, where the allegedly infringing material actually resides on the provider’s servers (e.g., pirate website hosted by provider) and does not apply to 512(a) providers; which is the function they are serving when peer-to-peer applications use their network. The RIAA argued that this distinction didn’t make any sense, and in fact they were unable to tell the Judge how many 512(h) subpoenas they had issued on 512(a) providers vs. 512(c) providers. No one could really clarify the status of 512(b) or (d) providers.

The Judge was particularly interested in the “constitutional avoidance” issue; that is, when in doubt, a statute should not be interpreted in a way that raises constitutional concerns. The RIAA argued with the Judge as to what the constitutional avoidance doctrine actually was; they insisted that it would only be raised with a facial challenge to the statute, not a challenge to the statute as applied. Of course, it seems more likely that Judge Bates will agree with his own interpretation of the doctrine.

The Judge questioned the parties repeatedly about the distinction between 512(a), (b), (c), and (d) providers with respect to the Constitutional issues. If a subpoena of 512(a) provider raises significant First Amendment privacy/anonymous speech concerns, why wouldn’t this apply equally to a 512(c)? In fact, it appears the Judge was looking for a Constitutional challenge to the entire subpoena process but Verizon wanted to focus on potential Constitutional issues with subpoenas of a 512(a) provider.

It didn’t seem to me that there was a clear winner today, and the Judge didn’t clearly indicate which way he was leaning, although he was quite solicitous to the Constitutional arguments. He does seem to have a very good grasp on the underlying issues and the technology involved, and promised to issue a decision quickly. I’m sure we’ll see some news reports and press releases later today.”

Statement of Purpose

On January 15, 2003, the Supreme Court issued its opinion in the Eldred v. Ashcroft case. In a 7-2 decision, the Court upheld the Constitutionality of the Sonny Bono Copyright Term Extension Act (CTEA) of 1998. CTEA retroactively extended the duration of copyright from the life of the author plus fifty years, to the life of the author plus seventy years, thereby guaranteeing a handful of multinational corporations another 20 years of proprietary ownership of cultural icons such as Mickey Mouse and Robert Frost.

Three months earlier, on the eve of the oral arguments for the Eldred case, I was on coop in Washington, DC, attending an evening party for the plaintiffs. I sat across from Eldred himself at dinner. Counsel Larry Lessig even made a brief appearance. People had come from all over the world to celebrate the possibility of a renewed public domain. One group drove from California in a “bookmobile”, an old van with several laptops connected to the Internet through a satellite dish. The bookmobile stopped at public schools along the way, particularly in poorer urban areas, and students could request any book in the public domain that would then be beamed down, printed out, bound, and distributed for free. We were giddy; we were witnessing the birth of a movement.

The Court’s decision against Eldred did not shock anyone. The Act in question was passed in 1998 by unanimous consent in the Senate and a voice vote in the House, in the midst of the Monica Lewinsky scandal and the Kosovo war. Few activists outside of certain narrow interest groups organized against the law, and those groups did a poor job of reaching out to the broader social justice movement that was taking root across the country and would burst into the national consciousness at the WTO meeting in Seattle a year later. Although the social discourse surrounding intellectual property has changed dramatically since the passage of the Sonny Bono Act, many people working in the labor, environmental, and anti-globalization movements have yet to see the profound connections between intellectual property law and the struggle for global justice.

My decision to come to law school arose out of an unexpected collision with intellectual property law while working in the labor movement. Part of my job, prior to law school, involved creating websites for a local union’s corporate campaigns. When an employer attempted to bust the union, we responded by targeting other stakeholders of the company in order to build leverage for the workers. In one campaign, we were organizing independent insurance agents suffering from rapidly escalating premiums imposed by a subsidiary of the parent company of a particularly anti-union employer.

About a week after the website went up, we received a cease and desist letter from the company’s lawyers, claiming trademark infringement. While the website provided only accurate information and explicitly disclaimed any connection with the company, the company’s trademarked initials appeared in our domain name. Fortunately, the union’s legal representation was familiar with these sorts of silencing tactics, and after a few letters back and forth, the company relented in their threats. Meanwhile, the pressure created by the website allowed us to make significant gains at the bargaining table, and ultimately the employer recognized the union.

Many others are not as fortunate. Various areas of intellectual property law, originally conceived to provide incentives for creativity, are increasingly used to silence criticism and destroy potential competition. Several other laws enacted in the past five years have given multinational conglomerates potent tools to restrict access to information and culture to the elite. The consequences of these laws go far beyond the chilling effect on speech: strong international patent protection denies essential medication to hundreds of millions of people around the world, particularly with respect to the AIDS pandemic; small filmmakers find themselves deprived of raw materials as exorbitant licensing fees are required for any copyrighted work that might even appear in the background of a scene; rap artists are hauled into court because the essence of their music, like all other music, is to draw from our popular culture and make new creations from it; finally, the software copyright system has created robber barons that make the Rockefellers and the Vanderbilts look like small business owners.

Disruptive technologies have a tendency to threaten entrenched interests. The Internet is now a powerful communicative and organizing tool for movements ranging from the Zapatista revolution in Mexico to the anti-globalization protests in the United States. The enormous potential for the free flow of scientific, medical, and cultural information is under attack by those who profit from denying access. I will use my legal and technical skills to work for free speech, civil liberties, and equal access to these emerging technologies.

Particular Car

 blue moss covered night sky seen through my fiber liquid window smooth bright moss and I capitalize! and I tremble without reason to impress my friends that i am a tortured soul and realize, too harshly now be born without rhythm! the gift of pure ignorance, racism, speed limits the sky again, long blue moss, rolls gently by? is gone then. 

Why They’re Wrong About Critical Mass

Published in Critical Mass: Bicycling’s Defiant Celebration [Powell’s Books], printed by AK Press.

“I have no problem with waving and smiling. I have no problem if the entire flow of traffic is going the speed of the Mass. I take offense at the times you run red lights, the times there are open spaces in front of the Mass and you still take up four lanes. I take offense at the claim you are celebrating biking, when you’re really trying to take revenge on what you perceive to be wrongs visited upon bikers by motorists.”

Mr. Hat, Frequent Pseudonymous Poster to the Boston Critical Mass E-mail List

“The reason I didn’t like it is because many cyclists did not follow respectful share the road rules. They were out to harrass cars. If i were in a car, I’d be really pissed. … They went against all the Effective Cycling rules.”

Rebecca Kushner, 4/11/00 (Public Posting to CM E-mail List)

“Their act is violence perpetrated upon the community. If their intent is to [resist by non-violent means], I invite them to join an advocacy group such as the Bicycle Federation of Wisconsin which is working daily to eliminate the barriers and reduce the frustration felt by all cyclists and lots of motorists.”
Charles Gandy, Executive Director of the Texas Bicycle Coalition.

“The Critical Mass rides […] are misdirected, childish efforts at bicyclist advocacy.”
Kenneth O’Brien, Maine Area Effective Cyclist Advocate

“But which unjust laws are CM riders fighting against?”
Paul Schimek, Effective Cycling Instructor #422

A robust Critical Mass movement inevitably bumps up against fairly vocal folks who would prefer we stay off the streets at rush hour and not ruin the meager gains that have been won for bicyclists over the past few years. Disapproval is particularly acute when Critical Mass is just getting started in a city, where the staunchest CM critics are often the most dedicated bicycle advocates. After a while, some of the grumbling dies down and these advocates begin to accept CM’s presence, if not actively encourage it.

These criticisms present a useful gateway into how and why CM works. They bring to the forefront contrasting models of social change and particularly highlight the difference between so-called “liberal” or “reformist” modes of change and “radical” or “revolutionary” modes. I will discuss how CM brings out distinctions between these modes while at the same time encompassing them.

First, I’d like to make the usual apology that this is just my take on things. Anyone who claims to know the one true nature of Critical Mass is probably missing the point.

There is, in my view, a widespread misunderstanding, reflected in some of the quotes above, that a Critical Mass ride is trying to ‘demonstrate’ something to someone or convince people to change their minds about things, as if it were a novel form of reasoned argument. If we were to accept this view of the ‘purpose’ of Critical Mass, we would indeed be fair targets for a lot of criticism. If we’re trying to change people’s minds, why do we get in their way? Shouldn’t we be doing everything possible to make everybody like bicyclists? Sure, we hand out flowers and hold up funny signs during the ride, but wouldn’t it just be nicer if we would keep to one lane and refrain from impeding the ‘regular flow’ of rush hour traffic? We could still ‘make our point’ but at the same time broadcast ‘a more positive message’.

From the point of view of an urban bicycling advocate, the ride event itself has an overall neutral effect on the state of infrastructure, education, and enforcement favorable to bicyclists. There are numerous positive effects: people see a lot of bicyclists having fun, who hand out informative flyers that do influence people’s opinions, and so forth. Maybe a few pro-bicycle politicians jump on the bandwagon and take advantage of the opportunity for publicity about a sustainable transportation initiative. There are also, of course, some negative effects in terms of traditional bicycling advocacy, which are described in great detail elsewhere. In my view, these positive and negative effects balance each other out.

If your main concern is bicycle advocacy, the main difference CM makes emerges in the time between rides, when otherwise depoliticized cyclists are inspired to take action; to write letters to their representatives and city councillors; to argue with their neighbors, families, and friends; to become increasingly aware of the primary role that auto-centric transportation and land-use policy plays in setting foreign and domestic priorities, in separating out rich from poor and black from white, in causing more deaths, injuries, and illnesses than all of our other major epidemics combined. If the point is to advocate for better policies via widely accepted democratic channels, Critical Mass contributes to this mode of change by building an army of better advocates.

I’ve spent a great deal of time at meetings of regulatory agencies, planning and zoning boards, and other decision-making bodies that determine what our environment is going to look like, which in turn has enormous impacts on our daily lives and social interactions. It is absolutely clear to me that these organizations do not make their decisions based on reasonable arguments, on trying to do the right thing ‘for the citizens of the city’, whether environmentally, socially, or economically. Zoning, development, traffic planning—all are politically driven. This means they are reflective of the underlying distribution of power in society. And I can assure you that bicycles as a mode of transportation are totally off the radar (at the very best, a token afterthought). Until bicyclists are organized—and I believe Critical Mass is a powerful tool for organizing and politicizing otherwise disenfranchised bicyclists—there will be no sea change. We will celebrate excruciatingly small victories. But we can do much better.

Advocacy alone, however, is not how social change—or collective determination of uses of public resources—occurs. Few historical examples come to mind of an oppressed class of people winning over the general public on the basis of their likeability. Nor does progressive change occur as a result of convincing, well-reasoned arguments and good-natured debate. The labor movement was not built by a concerted effort to convince capitalists that the workers were friendly people who deserved better pay. De jure racial discrimination did not end because of an effective public relations campaign highlighting the merits of African-Americans. Struggles for democracy and human rights under dictatorial regimes have never been won because the underdog rationally convinced the dictator to abdicate power.

Why should the situation be any different for the Critical Mass community? Although our interests are varied—bicycling seems to be only one small but essential part of what unites our movement—our situation is clearly that of an interest group that traditionally has been poorly represented in the American political system. Our success is linked to our numbers, our strength, our power, and ultimately our unity, but it is not particularly dependent on good public relations and a non-threatening demeanor.

Even some in the mainstream acknowledge the critical, more radical, role the Mass plays in effecting change. A highly respected professor of urban planning at UC Berkeley recently published an article in which he said that the prospects of achieving bicycling advancements in the US are specifically tied to the ability of grassroots political pressure brought on by such groups/movements as Critical Mass (Martin Wachs, Transportation Quarterly, “Discussion of ‘Bicycling Boom in Germany: A Revival Engineered by Public Policy’ by John Pucher”, Fall 1997).

Social progress—whether in civil rights, environmental protection, economic justice—never occurs without a group that pushes harder, that reframes the questions and recenters the debate, that occasionally acts ‘as if’ what they wanted to be true were true. This is the more radical role Critical Mass plays in social change. I do not ride with Critical Mass (necessarily) to make a good impression on people, to convince drivers of anything in particular, to ‘advocate’. I ride because I find the mass creates a temporary autonomous zone (to borrow a slogan from Hakim Bey); a place where bicycles do have the right of way—and not just on paper; a non-imaginary safe, quiet, clean, and fun use of the public good, the streets which we all pay for and the air which we all breath; a place where the streets are designed for bicycles, not cars. Critical Mass does not ask the question of whether bicyclists should have ‘equal rights’ to the streets, where ‘equal rights’ means ‘just like cars’, instead it presumes that the public space should be for us, the people, and then gives the cars a chance to figure out how to fit in.

The transformation that occurs on the streets during Critical Mass rides is not the result of more bike lanes or bike racks, traffic calmed streets or better signage, nor does it come from better laws on the books or better enforcement of existing laws, nor does it even come from increased respect for bicycles from those operating motorized vehicles. Instead it emerges from the fact that we are present in large numbers, and we have made a collective decision that this is how we want things to be.

Activists often refer to ‘direct action’ as a means of accomplishing political goals. In fact, this can mean two different things: in one sense, direct action is ‘taking to the streets’, demonstrating and protesting. In its more powerful sense, however, it is the action of taking control over the conditions that we live in. Inasmuch as the mainstream media has provided positive coverage of the recent wave of anti-globalism actions initiated in Seattle in 1999, it has focused exclusively on the first sense: large numbers of people demonstrating their beliefs and protesting against the powers that be. Participants in these demonstrations, however, often return with a much more profound sense of empowerment from the decentralized consensus decision-making processes that have evolved around these events. They realize that the world we envision may be possible on a large scale; not only that, but that this world exists on large scale, in various pockets at various times. CM is powerful as these protests are powerful, not simply because it demonstrates some idea, but because it enacts that idea.

CM’s radical nature lies in its process. It is a means of moving, not a particular destination. It claims, first and foremost, that we do things ourselves, and that this way of doing things is fundamental to liberty. Effecting change ourselves, rather than urging the duly-elected representatives to do something about it, is a very dangerous way to do things, and has certainly met with a good deal of resistance from the police. Some would argue that it less democratic: isn’t this the few imposing their will on the many? Others predict that legitimization of this mode of social change will inevitably lead to anarchy, where everyone who wants to accomplish anything will take to the streets, break windows, and set fires.

It’s important to remember, however, that democracy is not necessarily premised on majoritarian rule. Sometimes extraordinary counter-majoritarian actions are essential to protect the very mechanisms upon which democracy depends. It is quite clear that the Supreme Court, in ordering the desegregation of Southern public schools in Brown v. Board of Education, was not enacting the will of the majority. Even though the body politic would not have voted to eliminate segregation, the action was essential to the furthering of democracy, something that even the most conservative have finally come to admit. Similarly, even if we live in a society that is predominantly based on auto-centric and environmentally unsustainable patterns of development, where we might even vote for the policies we get, doesn’t mean it’s not more democratic for a small, determined group of people to make a difference for positive change, even if it happens to go against the will of the majority. As Margaret Mead says, “[i]ndeed, it is the only thing that ever has.”

CM’s critics often focus nearly pathologically on the degree to which CM does or does not follow ‘the law’. They claim they would support and even participate in CM, if only we stopped at all red lights, kept in one lane, and followed the rules set out for us. Of course, it’s not the occasional misdemeanor or traffic violation that causes all the tumult: it’s the fact that there are hundreds of bicyclists riding together in what is traditionally car territory, having fun. Although we might be able to get some sanctimonious reward out of reminding the drivers that we are just following the rules of the road, I doubt it would make any difference in making the ride less controversial, nor even in reducing the incidences of conflict with the police.

There is a deeper issue at stake here, though. Laws are only as powerful as we allow them to be. The decisions as to what rules we are to live by are not passed down, engraved in stone, from the gilded halls of the legislature. They are fluid; we make them every day by deciding which rules to respect and which to ignore. For example, a local religious group recently attempted to press charges against a movie theater screening an allegedly blasphemous film. The court clerk asked the group several times if they really wanted to pay the filing fee. Because they believed the law to be what was contained in the officially published state statutes, they paid the fee and eagerly approached the Judge with their argument. They were sent promptly out the doors, minus their filing fee. Why wouldn’t the Court enforce the Law? Because the people had stopped believing in it a century ago.

When CM is attacked as leading to anarchy, we might at some level have to agree. CM does not delegate decision making power to duly-elected officials; it is not always entirely law-abiding; and the unplanned, spontaneous nature of the rides might accurately be described as ‘anarchistic’. But anarchy is much more of a method than an ideology, a way of experiencing the world rather than a political system. Most importantly, it realizes that the force which stops us from breaking windows and setting fires is not the threat of violent police retaliation but rather mutual respect and voluntary adhesion to practical norms of behavior. In my experience, CM has only become ‘anarchistic’ in the negative sense when faced with extraordinary violence from the police, which is much more the exception than the rule. If we learn anything about the potential of large scale anarchistic movements from CM, it is that they are predominantly non-violent, and do a much better job at self-policing than any group depending on outside forces to keep them in line.

Environmentalists are often accused of being motivated by a ‘social agenda’. They will deny the accusation, claiming that their arguments are based in scentific fact, are in fact grounded in demonstrable ‘truths’. But I think we would do better to admit the accusation. It is precisely our ‘social agenda’ that can make the movement appealing and powerful. What good is saving the world, if you don’t first create a world worth saving? CM grasps this reality and engages in it, by pulling the social agenda in the forefront. Sure, we want cleaner air and more efficient transportation, but we only want it if we can radically restructure our relationships and our work in the process.

Of course, the critics are welcome to disagree with anything I’ve said here. If they want to shift the direction of Critical Mass in a more ‘positive’ sense, they can bring more of the type of people they’d like to see riding, the last Friday of every month wherever their local mass convenes. Fundamentally, CM organically adopts the character of those who contribute most to it. It is powerful not because of the message it sends or the image it conveys, but because it engages and empowers its participants, welcoming anyone who wants to chip in.

Gypsy Life

John Gorka is a master of the songwriting craft, perhaps enough to make me reconsider my statement that Paul Simon may be the only truly great songwriter.

Travel becomes meaningful when we move on to the next place. We live to create memories, both for ourselves and for others. So long as we are in a place, the possibilities of who we are are limited to the perceptible. We are gone, and those we leave behind can imagine us however they like; as we them.

My favorite line is “People love you when they know you’re leaving soon.”

 There is nothing in my head today Nothing awful there to ponder or confuse me Go ahead in what you have to say And I will listen as I listen to the news I know the whole truth there is horrible It's better if you take a little at a time Too much and you are not portable Not enough and you'll be making happy rhymes You might like the gypsy life You judge your progress by the phases of the moon Get your compass and your sharpest knife People love you when they know you're leaving soon If you choose to settle in one place You may be harder over on the ones you love Like a tree without the growing space You will be taking from below and from above There is nothing in my head today I'll cross the river people as I cross my heart The pigeon bridges are a place to stay I will go under as I try to do my part 

Father of Night

This song is really an original psalm, from Bob Dylan’s 1970 album New Morning (a gift from my Uncle Glenn many years ago). I just recently “rediscovered it”, perhaps because I’ve conquered my prejudice against Dylan’s Christian inclinations. [His so-called “Christian phase” was actually not until ten years later.]

The descending female backup vocals haunt me (presumably Hilda Harris, Albertine Robinsin, and Maeretha Stewart); Dylan’s strikingly clean piano playing sustains his gravel voice. The song is over in less than a couple of minutes, but it leaves you silent, maybe fearful.


 Father of night, Father of day, Father, who taketh the darkness away, Father, who teacheth the bird to fly, Builder of rainbows up in the sky, Father of loneliness and pain, Father of love and Father of rain. Father of day, Father of night, Father of black, Father of white, Father, who build the mountain so high, Who shapeth the cloud up in the sky, Father of time, Father of dreams, Father, who turneth the rivers and streams. Father of grain, Father of wheat, Father of cold and Father of heat, Father of air and Father of trees, Who dwells in our hearts and our memories, Father of minutes, Father of days, Father of whom we most solemnly praise. 

The Only Living Boy in New York

I’ve recently been on a quest to find underappreciated songs by great musicians. Of course, it’s hard to truly believe anything by Paul Simon hasn’t received fairly widespread attention, but this one at least hasn’t made it onto any “Greatest Hits” albums.

I’ve come to believe that Paul Simon may be the only truly great songwriter.

This song, written in 1969, appeared on the Simon & Garfunkel album, Bridge Over Trouble Water, which (among other things) documented the demise of the duo.

My understanding of the song (based partially on this interview from SongTalk Magazine) is that it describes Simon’s feeling when Garfunkel left for Mexico to act in Catch 22. Early in their career, Simon and Garfunkel were known as Tom and Jerry, and “Tom” in the first and last verse refer to Garfunkel. “…your part’ll go fine”—since Garfunkel was just starting out an act career (which apparently didn’t go too far), Simon is reassuring him that he’ll do fine.

This bittersweet loneliness shows up in a lot of Simon’s work. Cities hold lots of people and little company. When your old friend or lover goes away, you wander city streets on a Sunday morning feeling unbearably light [Milan Kundera]; you are so close as to be vicariously lifted by your friend’s exhilaration, but at once you know longer know them, where they are, or where they’ve left you.

It’s interesting how many superficially opaque Simon songs become lucid with just a couple of “hints”; in this case, Tom & Jerry and the filming of Catch 22 in Mexico.


 Tom, get your plane right on time I know your part'll go fine Fly down to Mexico Da-n-da-da-n-da-n-da-da and here I am, The only living boy in New York I get the news I need on the weather report I can gather all the news I need on the weather report Hey, I've got nothing to do today but smile Da-n-do-da-n-do-da-n-do here I am The only living boy in New York Half of the time we're gone but we don't know where And we don't know where Tom, get your plane right on time I know that you've been eager to fly now Hey let your honesty shine, shine, shine Da-n-da-da-n-da-n-da-da Like it shines on me The only living boy in New York The only living boy in New York 

Chung King Express

Kar-Wai Wong (people say “Wong Kar-Wai”) made Chung King Express (Chong Qing Sen Lin) in 1994 as a break from an epic film that he was having trouble finishing (I believe Ashes of Time). The film was shot in about two months, without a script.

The film is visually astonishing; the stylized cinematography is a transformative experience regardless of whether you understand the story. I’m not sure there really is a story, actually. At first, you’re following a woman involved in a complex international crime operation; but then it’s about a love-struck police officer; and then finally, about another love-struck police officer.

Although quite different in style and substance, Chung King Express conjures a visceral experience akin to Chris Marker’s Sans Soleil. If the imaginary and the visionary provide you with spiritual sustenance, this film will satisfy.

Wilco

I just don’t get Wilco. So many of the people I love and respect see them as the next Beatles. It’s not that I find their music unpalatable, it just doesn’t “do it” for me. Perhaps some kind soul will take pity on me and help me see the light.