J. Marselus VanWagner: Book Burning in the Digital Age... and so it begins

The battle of the copyright is a long and sordid tale on the internet. Most folks are familiar with the old days of Napster, and the record companies suing the pants off of soccer-Moms because their kids had downloaded songs to the family computer. More recently as technology has continued to advance, we have seen movie companies also come into the fold along with the music companies, often suing to shut down websites that host torrent files of copyrighted material, as well as still going after the individual on occasion. At the end of the day though, most folks aren't overly concerned about those issues. Music and movies are creative expressions and public past-times for the most part, not exactly a priority in this day and age. It all sounds like a lot of hair-splitting over profits that no one really wants to be bothered with. Sure artists are entitled to make money from their work. But at the same time, when someone shells out $20 for a CD that has one good song on it, it's clearly a rip-off scheme by the recording industry too. A big ball of frustration and argument that is best left to the folks who have a vested interest in the fight. The whole debate has just soured many people to listening to music or watching movies at all. Easier just to flip on the radio or the TV and be done with it. Music and movies just aren't much fun as a hobby anymore, which is probably a bigger reason for any perceived loss of revenue for these big companies than anything else. Some folks have just decided to grow up faster than we would have liked to, wistfully leaving pop-culture behind to focus on more important issues. Like freedom of speech, perhaps.

Now anyone who has had contact with American society in the past fifteen years or so has heard all about these copyright lawsuits, and has probably heard the argument that it is all “really about freedom of speech.” Most of us never really bought into that though. It wasn't really about freedom of speech so much as buying a cable modem and ripping enough tracks to make a mix disc for the weekend, and to make it worth the money you were shelling out for the broadband connection. But as it turns out, these freedom-loving pirate pioneers might have had more insight than most of us ever gave them credit for. It's not just about ripping a free copy of some crappy pop jam anymore. The debates over sharing content over the internet are no longer the frontier of internet free-speech. The goalposts have been on the move it seems.

In 1993 there were about 50 corporations that controlled just about all of the media in the United States. Newspapers, magazines, radio, television, the works. By 2004, we were down to only five corporations controlling it all. Since the collapse of United Press International, the Associated Press has been the one and only national news service in the United States. This means that just about all the news you see is filtered through this one single company. Even local news from your home town is partially owned by the AP, as part of their agreement with smaller news agencies that make up their network. If there is a big enough story in your hometown, it gets handed up to the AP and sent out across the wires to be picked up by every other news agency across the country, as an AP article, not usually even giving a mention of your local hometown newspaper or reporter that broke the story. But in return, these smaller news agencies get to print other AP news, which accounts for just about anything that is being reported on any given day. This gives the AP a huge amount of leverage over how news gets reported, even if it does not originate with them. No news agency would dare defy the AP, and risk losing their agreement to print just about anything that is being considered news. It would be business suicide. The mainstream media in America is a network dominated by the AP. Not exactly an ideal arrangement for the promise of free speech. There was a time that we as freedom-loving Americans saw a singular state-controlled media as the hallmark of an evil totalitarian Communist regime, but would it really be any better to have a single corporation reporting all of the news rather than the state? Hardly. That would simply make it the hallmark of a Fascist totalitarian state rather then a Communist one. You see, Communism is what you get when the government controls business. Fascism is what you get when business controls government. In a nutshell anyway.

Thanks to technology, we still have a bastion of free speech with the internet. Even while your average American is content to sit back and zone out to regurgitated tabloid news, for many of us, the internet is as enlightening as it can be frustrating and confusing, navigating the back corridors of truth. The news here is not pre-packaged and heated in the microwave. It is raw, and requires critical thinking, cleverness, memory. In short, here you have to stop and think. If the truth is handed to you on a silver platter, it just might not be the truth, just like that might not be beef in that fast food taco. It's a shame that more folks aren't interested to look a little deeper into things, and are content to take the half-truths of the mainstream media as a complete source of important information. But at least the rest of us have the internet, this beacon of liberty and free speech. Well, for the moment anyway. It seems that our days may be numbered, and dwindling fast now.

Back in the summer of 2008, the Associated Press, a monolithic news agency with a litigious history decided it was going to set the precedent for how their material was disseminated across the internet, by issuing Digital Millennium Copyright Act takedown notices to bloggers and news aggregators they claimed were violating their copyright and additionally were accused of “hot news” misappropriation under New York State law. They had already slapped two companies with copyright lawsuits not long before, one in Florida. In essence, this was the beginning of the AP trying to force the entire U.S.-based internet to become another one of their subsidiaries under licensing agreement.

Now to really understand this, we need to have a look at what is called the “fair use” act. What it tells us first is that copyrighted material can be used without permission, for such purposes as “criticism, comment, news reporting, teaching, scholarship, and research.” Seems quite reasonable, but too bad it's not quite that simple. You see, there really are no set guidelines. Even from that list there can be any number of exceptions based on the nature of the copyright work, potential profits from someone who is citing the work, and so forth. It is all so completely ambiguous that they might just as well have said, “Use whatever you want at your own risk because it's all up to the judge anyway.” That's really no exaggeration. Rulings in one case will not necessarily be used as a precedent in the next, particularly in civil suits, though copyright violation can be a criminal matter as well. There are no set standards for selected content, length or proportions of quotations, or potential market impact. Nevertheless, it has still been used as a general guideline for everyone from internet bloggers to public school teachers. An example might be the playing of a movie in the auditorium of a public school for students. It may not be considered a violation of copyright because it is being used for educational purposes. But if that same movie were to be played in an auditorium full of families at the ice-cream social gathering where goodies were being sold to raise money for a field trip, that could very well indeed be ruled as a liability through public dissemination of copyrighted material. Many restaurants can no longer sing the “Happy Birthday” song to patrons on their special day because of the threat of copyright lawsuits.

Across the internet though, it has been generally understood by bloggers and members of discussion forums and so forth, that news reports are not treated with the same level of copyright scrutiny as other media such as movies and music. After all, news is a relatively public matter anyway. Granted, reporters work hard often risking life and limb to get their stories, other staff all do their jobs, the news agencies have their expenses and financial obligations to investors, but at the end of the day the events they are reporting on are public events that they are willfully sharing with the greater public. In print they share it with the public for pocket change, but on their own internet sites they even share the news for free, and quite often encourage viewers to share it on networking tools such as Twitter or an RSS feed. The profitability in news reporting is not in the news itself, but in advertising revenues from companies who know that people will see their ad when they come to find out the news of the day, whether it be in print, over the airwaves, or over the internet. So really, it is in the best interest of any news agency to get the news out there as far and wide as possible, so long as they are referenced in some way. Let's not forget the old adage “there's no such thing as bad press.”

Copying and pasting an entire article may be seen as not really acting in good faith on the part of the blogger, but so long as it is properly attributed, it really should not be of serious concern to a news company. It's not really going to cost them anything. No one is going to decide that they would rather see their mainstream search engine news in some backwater blog day after day where the articles may be missing pictures, related links, and be generally mutilated in a hack paste job. Most folks will want to go right to the source, and see a copy/paste job merely as reference for discussion. Adding a link to any pasted article is certain to drive traffic back to the original news site, with folks who might never have even bothered to check the day's news otherwise. When most internet users post these articles, they are not posting it to circumvent the original news services and are not claiming the articles as their own original material, they are posting for the purposes of discussion, not plagiarism. Whether it be to critique the report itself, the news source overall, or as a general discussion related to the news being reported, the news article itself still becomes secondary to our own expression of free-speech. In this way we see that even a fully copied article could be seen as fair use, as a reference in these discussions.

So understanding all of this, one really has to ask, what was really behind the aggression of the AP against bloggers and other websites? Especially when you have a look at some of the specific instances they had issued the DMCA notices for. Many did not even copy the same headline, all of them contained links back to the original AP source, and none of them were even full posts of the article. They were merely snippets of the article, with a link back to the original complete article. You would think that the AP would be thanking them, not trying to sue them. You can see that down in the corner here of the MSMReview we even have a host-provided widget installed that runs an AP headline ticker. Is that something that we can be sued for? Could we be sued if we posted those same headlines without the widget?

By the end of 2008 it appears that the AP decided to back off a bit, and admitted that they might have been being a bit heavy-handed in the protection of their media. But one really has to wonder what set them on in the first place to such an ill-conceived venture. The only potential loss of revenue might have come from the fact that many news outlets in their network will pull an article after a bit of time, and then charge a fee for retrieval from an archive. In this way, a blog or forum could be seen as archiving these stories and undermining a very minor potential source of revenue. How often do folks actually go ahead and pay for an article for which the link is no longer active for, and especially in comparison to the potential for referral traffic generated by articles posted outside of the original site? Moreover, do they charge your local library a fee for making old newspapers available to the public after the articles have been pulled from the website? Granted, the library already paid 50-cents for a copy of the paper, but if that token amount were really the issue, then why do they not charge to read the headlines on their own websites and the large search engine hosts?

It just doesn't make sense, there is something missing from this picture still. Now we come to more recent news. It seems that other news sources are now hiring outside companies to do their dirty work for them, having a go at the bloggers and forums this summer in a similar manner that the AP did back in 2008, but on a much wider scale, and even more aggressively this time. Are they really so desperate for quick profits that they are willing to cut off their noses just to spite their faces? Are they really willing to alienate readers, and in turn their advertising clients, to scrape a few bucks away from bloggers? Was the whole AP fiasco just a “testing of the water” to to gauge reaction to an assault on free speech?

Steve Gibson, CEO of Las Vegas-based Righthaven has been buying up newspaper copyrights for the sole purpose of scouring the web to find and then sue anyone who has posted material without permission. He is able to compel quick settlements based on the fact that even a single violation can be a penalty of $150,000. Righthaven already has hundreds of lawsuits in the works, but estimates that there may be billions of violations. That will not doubt put any nickel and dime blogs and web sites right out of business. Many blogs and forums that could be seen as a profit company because of ad placement through services such as AdSense, really are not actually profitable at all, and are generally operated for reasons other than profit, such as practicing free speech and engaging their fellow human beings in discussion on current events via the internet. But even for larger sites, the threat is potent, seeing how much they stand to lose for even a single violation if they fight it in court then lose. One large internet forum that generates about 5 million hits a month with their user-generated discussion forum on alternative topics has decided to fight the lawsuit on the grounds that the site itself did not actually post the material, but that a forum user did, and therefore rather than file a lawsuit Righthaven should have served the site with a DMCA takedown notice. So in this case, we see that this company operating on behalf of the Las Vegas Review-Journal has actually gone well beyond what the AP did two summers ago. They aren't even bothering with take-down notices, they are going straight for the lawsuit. It is also interesting to note that this representative of the media has gone after one of the largest alternative subject matter forums on the internet, where open-minded free-thinking is highly valued (even if critically scrutinized.)

In another case, one of the above-mentioned forum's primary competitors has also been the subject of an action by a company representing Reuters news service, the AP of the British-influenced world. Again coming under fire is a forum on alternative subject matter where open-minded free-thinking is courted (even if dreadfully manipulated.) That case is part of a campaign launched in March by California-based Attributor with their FairShare Guardian model. In one 30-day scan with this new model, they found 75,000 sites with copies of un-licensed articles. Rather than suing them in court, Attributor offers discussion on syndication, in which they can pretty much demand any price they want for the syndication rights from the alleged violator. If negotiations fail, they will contact ad agencies doing business with the site. In the case of the specific site mentioned here already, the ad agencies did indeed pull their ads, the site's primary revenue stream for covering operating costs. Attributor also notifies search engines and web hosts, who are obligated under the DMCA to take down material they know to be in violation. So in essence, these forums are forced to pay the licensing fee for what might otherwise be considered fair-use, or be shut down entirely.

Now we finally see a pattern emerging. First, the somewhat failed attempt by AP to shutter blogs and websites that they had zeroed in on for whatever reason. Now we see on one hand a venture to force settlements that will likely shut down many thousands of blogs and websites. And on the other hand, we see due-process completely circumvented by a company demanding what can be assumed to be exorbitant licensing fees, and also sure to shut down thousands, even hundreds of thousands of websites. But can all this really be seen as a measure to protect profits? Certainly not when you consider that these blogs and websites are what drive traffic to these news sources in the first place. So then, this really isn't about profits so much as consolidation. One doesn't need a hundred-thousand blogs directing traffic to a few news sites, if a huge chunk of the web is shut right down entirely, and traffic can be directed through a few select mainstream social networking sites. This is about control, not profits. Controlling what you see, how you see it, and even the discussions you have about it. Bloggers are being forced to report the news under the terms dictated by licensing agreements, and whatever fine print that might entail aside from kicking up a fee as if news reporting were some mafia cartel. That is not free speech. This is about controlling our collective memory by editing and pulling articles and by preventing accessibility to archived copies of original stories floating around on the web. And that folks, is the real heart of the matter. Digital book burning. Remove our collective memory, mold the present, and dictate the future.

Whoa now. Maybe that's a bit of a jump there. A few select very powerful media monopolies shutting down the internet piece by piece? Sounds like a bit of a stretch into conspiracy-theory land there, no? Surely the government would have something to say about this, would step in to defend liberty and the Constitution? We have been like Gunny Hartman in the movie Full Metal Jacket here, rummaging through the unlocked footlocker of internet dirty laundry to “just see if anything's missing here.” And suddenly we find the jelly donut. Or better yet, that something is indeed missing. Something big. Something along the lines of 73,000 blogs shut down in a single day, with the flip of a switch. Here we get a good look at the relationship between business and the government.

On July 9 of this year, Toronto-based Blogetry.com, an internet blogging platform and Wordpress host-provider with approximately 73,000 clients, went dark. Less than a week later, Ipbfree.com, a site used to create web message boards, suddenly went offline. The shutdowns came with no notice, no pending legal action, and no explanation at all for some considerable time. Since then, some information has come out about the shut-down of Blogetry.com, so we are going to focus on that, as the information surrounding the Ipbfree.com seems to be far more scattered and less reliable. It should be noted that no direct correlation between the two events has been confirmed at this point, but there were some interesting similarities between the two events. Both said they were shut down by outside influence and not coming back, that the user-generated content violated no copyright laws, and that those who ordered the closures were legally bound to non-disclosure.

Initial speculation was that the shutdowns were part of a sweep by movie or record companies cracking down on illegal downloads and hosting of related files, with the support of the Obama Administration who has vowed to support the entertainment companies. It was not an unreasonable conclusion to reach, as these shutdowns came right on the heels of a number of scattered seizures by the Department of Justice along with Immigration and Customs Enforcement of assets and websites related to alleged illegal file-sharing, as part of an ongoing initiative called “Operation: In Our Sights.” So there we are back to the beginning of this article, with the “menace of digital piracy” that we have all been hearing about for years. One sure-fire method for Federal agents to conduct a “witch-hunt” by going after alleged pirates.

Other speculation was that perhaps there was child pornography involved. Another fantastic boogie man to get the people all riled up while being the perfect cover for officials to go right ahead and do just about anything they please. Now please understand, MSMR in no way is trying to make light of child pornography, or excuse the activities of deranged persons involved in that garbage in any way, but having to articulate that point goes to show just what a raw nerve there is there in society for the powers that be to poke at when they want to distract us. Even when they yell pedophile, we still have the right, nay, the obligation to question authority. But in cases of illegal file-sharing, and even in cases of illegal pornography, due process must still be applied. No agency has the right to arbitraliy march in and shut down a whole chunk of the internet. There is a lot of legal wrangling that can sometimes go on for years to get a specific website shutdown, much less an entire server of 73,000 clients. The DMCA protects internet service providers from liability of user content, as pointed out in the case mentioned earlier with Righthaven. Not to mention the fact that these sorts of takedowns are usually very public affairs, with publicity being exploited as a deterrent as much as possible.
In these cases, the cloak of secrecy is disturbing to say the least. As it turns out, the owner of Blogetry.com was just as confused as his clients, and tried repeatedly to contact his web-host BurstNet, before their first enigmatic reply. In a message to owner Alexander Yusupov they stated, “We are limited as to the details we can provide to you, but note that this was a critical matter and the only available option to us was to immediately deactivate the server.” In another message they went on to say, “Please note that this was not a typical case, in which suspension and notification would be the norm. This was a critical matter brought to our attention by law enforcement officials. We had to immediately remove the server. “ They refused to give him any more information though, and would not even disclose the law-enforcement agency involved. Nor did they disclose the agency to CNET news, when they were granted an interview with BurstNet VP, Benjamin Arcus. The VP did disclose however, that the service was terminated at the direction of a law-enforcement agency that he could not reveal, and that it was not a copyright issue. So this wasn't about digital pirates after all?

The latest news coming out now is that the secret agency was actually the FBI. BurstNet has also reversed themselves and is now stating that it was their own choice to terminate the server, and that the FBI had nothing to do with the decision. So apparently BurstNet was not in fact restricted to this “only available option” as they had stated, but freely and willingly chose to terminate the server of their own accord, and have tried to justify the unprecedented action by leveling an accusation against Blogetry that there was a history of abuses, though the FBI has not accused Alexander Yusupov of any wrong-doing. What is being reported now is that the bureau had merely requested “voluntary emergency disclosure of information" regarding links to bomb-making instructions and an al-Qaeda hit-list of Americans which appeared on as many as one Blogetry hosted blog. Ah-ha! And there we have another boogie man folks. The ubiquitous yet imaginary al-Qaeda. (You will remember in a previous article here at MSMR where we pointed out that al-Qaeda is actually a government generated fabrication.) Mention al-Qaeda, bomb, or terrorist, and the FBI can instantly shut down 73,000 free-speech platforms without any due-process or oversight whatsoever because of what may have been one single alleged offender. In the post 9/11 era there is nothing “voluntary” about what is expected during an “emergency.” BurstNet has stated that they cannot restore any Blogetry data, even with the offending material removed. All of those blogs are just gone, completely wiped out. Of course we are supposed to believe BurstNet's revised position now, that they did not cave in under pressure by the FBI in the face of some alleged terrorist threat, and that they wiped out 73,000 blogs because of two alleged previous violations of their policies by Blogetry.. It doesn't seem that it really makes much difference anyhow at this point. Either BurstNet threw themselves under the bus, doing irreparable damage to their credibility and the future of their business to cover for the FBI, or they were in fact the ones who decided to pull the plug as they are stating now, making themselves the bane of free-speech advocates around the globe.

When all is said and done, it is now abundantly clear that these companies and government agencies working in concert, have begun dismantling large swaths of the internet this summer, with a three-pronged assault on liberty, through lawsuits, through cutting financing, and through direct action by blocking and terminating access to the internet. Make no mistake about it folks, this is the burning of books in the digital age. The only question is if you are going to accept the excuses ever-ready at the hand despots the world over, and then bow down to the march of the jack-boot, while gleefully chanting the rhetoric that it is all for our safety, all for our children, all for our own good as we spiral down into the pit of totalitarianism. This is it, our last chance, the end game. There is nothing else left for them to take, but these last bastions of free expression and liberty, where the news can be pondered and debated without censorship, where we can collect our memories and look back to them to see what our tomorrow has come to. Do not forget what you have read here today. Remember the burning of the books.