No more Mr Nice Guy

[...]"What right has Bush to say that Iraq's offer is not genuine?" he asked on Monday. "We must condemn that very strongly. No country, however strong, is entitled to comment adversely in the way the US has done. They think they're the only power in the world. They're not and they're following a dangerous policy. One country wants to bully the world."

Having supported the bombing of Afghanistan, he cannot be dismissed as a peacenik. But his assessment of the current phase of Bush's war on terror is as damning as anything coming out of the Arab world. "If you look at these matters, you will come to the conclusion that the attitude of the United States of America is a threat to world peace."

And then there is the dreaded "r" word. Accusations of discrimination do not fall often or easily from Mandela's lips, but when they do, the world is forced to sit up and listen. So far, he has fallen short of accusing the west of racism in its dealings with the developing world, but he has implied sympathy with those who do. "When there were white secretary generals, you didn't find this question of the US and Britain going out of the UN. But now that you've had black secretary generals, such as Boutros Boutros Ghali and Kofi Annan, they do not respect the UN. This is not my view, but that is what is being said by many people."

Most surprising in these broadsides has been his determination to point out particular individuals for blame. As a seasoned political hand, Mandela has previously eschewed personal invective but has clearly made an exception when it comes to Cheney. In 1986, Cheney voted against a resolution calling for his release because of his alleged support for "terrorism". Mandela insists that he is not motivated by pique. "Quite clearly we are dealing with an arch-conservative in Dick Cheney... my impression of the president is that this is a man with whom you can do business. But it is the men around him who are dinosaurs, who do not want him to belong to the modern age."

In fact, behind the scenes, the White House is attempting to portray Mandela, now 84, as something of a dinosaur himself - the former leader of an African country, embittered by the impotence that comes with retirement and old age. It is a charge they have found difficult to make stick. Mandela has never been particularly encumbered by delusions of grandeur. When asked whether he would be prepared to mediate in the current dispute, he replied. "If I am asked by credible organisations to mediate, I will consider that very seriously. But a situation of this nature does not need an individual, it needs an organisation like the UN to mediate. A man who has lost power and influence can never be a suitable mediator."

In truth, since leaving office he has shown consummate diplomatic skill. In 1999, he persuaded Libyan leader Colonel Gadafy to hand over the two alleged intelligence agents indicted in the 1988 Lockerbie bombing. He was touted as a possible mediator in the Middle East - a suggestion quashed by the Israeli government, which was apartheid's chief arms supplier.

Last year he was personally involved in the arrangement - sanctioned by the UN - to send South African troops to Burundi as a confidence-building measure in a bid to forestall a Rwandan-style genocide. That does not mean he always gets it right. He advocated a softly-softly diplomatic approach towards the Nigerian regime when Ken Saro-Wiwa was on death row. Saro-Wiwa was murdered and Abacha's regime remained intact. Nor does it mean that he is above criticism. Arguably, he could have done more to redistribute wealth during his term in office in South Africa, and he maintained strong diplomatic relations with some oppressive regimes, such as Indonesia. In July, a representative of those killed in the Lockerbie disaster described Mandela's call for the bomber to be transferred to a muslim country as "outrageous". But it does mean that he is above the disparagement and disdain usually shown to leaders of the developing world that the west find awkward.

But if there is something wrong with Mandela it is chiefly that for the past decade he has been thoroughly and wilfully misunderstood. He has been portrayed as a kindly old gent who only wanted black and white people to get on, rather than a determined political activist who wished to redress the power imbalance between the races under democratic rule. In the years following his release, the west wilfully mistook his push for peace and reconciliation not as the vital first steps to building a consensus that could in turn build a battered nation but as a desire to both forgive and forget.

When he displayed a lack of personal malice, they saw an abundance of political meekness. There is an implicit racism in this that goes beyond Mandela to the way in which the west would like black leaders to behave. After slavery and colonialism, comes the desire to draw a line under the past and a veil over its legacy. So long as they are preaching non-violence in the face of aggression, or racial unity where there has been division, then everyone is happy. But as soon as they step out of that comfort zone, the descent from saint to sinner is a rapid one. The price for a black leader's entry to the international statesman's hall of fame is not just the sum of their good works but either death or half of their adult life behind bars.

In order to be deserving of accolades, history must first be rewritten to deprive them of their militancy. Take Martin Luther King, canonised after his death by the liberal establishment but vilified in his last years for making a stand against America's role in Vietnam. One of his aides, Andrew Young, recalled: "This man who had been respected worldwide as a Nobel Prize winner suddenly applied his non-violence ethic and practice to the realm of foreign policy. And no, people said, it's all right for black people to be non-violent when they're dealing with white people, but white people don't need to be non-violent when they're dealing with brown people."

So it was for Mandela when he came to Britain in 1990, after telling reporters in Dublin that the British government should talk to the IRA, presaging developments that took place a few years later. The then leader of the Labour party, Neil Kinnock, called the remarks "extremely ill-advised"; Tory MP Teddy Taylor said the comments made it "difficult for anyone with sympathy for the ANC and Mandela to take him seriously."

He made similar waves in the US when he refused to condemn Yasser Arafat, Colonel Gadafy and Fidel Castro. Setting great stock by the loyalty shown to both him and his organisation during the dog days of apartheid, he has consistently maintained that he would stick by those who stuck by black South Africa. It was wrong, he told Americans, to suggest that "our enemies are your enemies... We are a liberation movement and they support our struggle to the hilt."

This, more than anything, provides the US and Britain with their biggest problem. They point to pictures of him embracing Gaddafi or transcripts of his support for Castro as evidence that his judgment has become flawed over the years. But what they regard as his weakness is in fact his strength. He may have forgiven, but he has not forgotten. His recent criticisms of America stretch back over 20 years to its "unqualified support of the Shah of Iran [which] lead directly to the Islamic revolution of 1979".

The trouble is not that, when it comes to his public pronouncements, Mandela is acting out of character. But that, when it comes to global opinion, the US and Britian are increasingly out of touch.

[...]

http://www.guardian.co.uk/g2/story/0,3604,794757,00.html

Some background:
http://www.ce.org/press_room/press_release_detail.asp?id=10027
http://www.ce.org/press_room/speech.doc
http://news.com.com/2100-1023-958324.html?tag=cd_mh

File photo:
http://www.mccullagh.org/image/d30-25/gary-shapiro.html

-Declan

---

Speech by Gary Shapiro, President and CEO of the Consumer Electronics Association.

The Campaign to Have Copyright Interests Trump Technology and Consumer Rights

We are at a critical juncture in history when the inevitable growth of technology is conflicting with the rising power and strength of copyright owners. How we resolve this tension between copyright and technology will define our future ability to communicate, create and share information, education and entertainment.

Today I would like to share with you my views on this situation and the questions we must confront as we wind through this confusing, but historic maze.

There is no doubt that this era’s rapid shift to digital and other technology is changing the rules of the game. Reproduction, transmission and storage technology all are progressing exponentially, resulting in an unprecedented power to copy, send and save all forms of media. Reproduction technology has become incredibly cheap and reliable. Transmission technology, including satellite, cable, broadcast, wired or wireless, and often connecting through the Internet, has linked everyone at ever increasing speeds and competitive pricing. Storage technologies also quickly have expanded in capacity as total storage media costs have plummeted.

With each new technology, the fears of the music and motion picture industries have grown. With television and the VCR, it was going to be the end of movies. With CDs and cassettes, it was the supposed harm from real-time transfers and one-at-a-time copies. Today’s technologies make these perceived threats seem naïve and harmless. With high-speed connectivity and the Internet, it’s not buying a CD and making a copy for a friend; it’s downloading from a stranger or making available thousands of copies with the touch of a keystroke.

The growth of reproduction, storage and transmission technology has terrified copyright owners. The RIAA claims that 3.6 billion songs are downloaded each month. The RIAA also estimates that $4.5 billion has been lost by the music industry due to pirating. And the motion picture industry also sees the writing on the wall. Fox Group CEO and News Corp. President Peter Chernin in an August 21 keynote speech at an Aspen conference claimed that Spiderman and the latest Star Wars movie were downloaded four million times following the weekend after their release.

Based on these and similar threats the content community has gone on a scorched earth campaign attacking and burning several new recording and peer-to-peer technologies. They have used the Congress, media and courts to challenge the legality of technology and morality and legality of recording. In the same Aspen speech, Chernin attacked computers as untrustworthy and the Internet as primarily used for pornography and downloading.

I believe that hardware and software companies have a mutual interest in working together, so that they can sell more products. For years, consumer electronics companies have been working with both the recording and motion picture industries on developing technological measures that meet the needs of both industries. For instance, the DVD standard includes anti-copying protection. It also includes an anti-fast forward technology designed to ensure copyright warnings are shown, but instead is being used to require consumers to sit through movie previews. CE companies also have provided digital interfaces that allow consumers to share content among their own devices while restricting unauthorized redistribution to the Internet. By protecting content at the source, content providers can be assured their intellectual property rights are respected, while consumers can enjoy unimpeded personal use. However, source protection should not be used to mislead consumers to purchase CDs that can only be played on certain CD players.

Indeed, despite the cooperative efforts, the copyright community has declared war on technology and is using lawsuits, legislatures and clever public relations to restrict the ability to sell and use new technologies. Lawsuits have shut down file-sharing services like Napster and Aimster, and threaten peer-to-peer networks like KaZaa and Morpheus. They unsuccessfully challenged the legality of MPs recorders in the Diamond Multimedia case. They have challenged as illegal ReplayTV, a TIVO-like device, which allows television programming to be sorted and stored on a hard disc and which allows a consumer to skip commercials. In fact, one TV executive equated the skipping of commercials as “stealing” free broadcast television. The RIAA has announced that it will start suing individuals who engage in file sharing and has subpoenaed Internet access provider Verizon to identify a downloading subscriber.

At the urging of the content community, Congress has stepped into the act. Legislation has been introduced which requires all technologies to be shaped by a government-mandated copy protection system. Other legislation allows any copyright owner to seek and destroy the posting of copyrighted products on P2P networks via personal computers connected to the Internet. Still other legislation would allow a content owner to insert an embedded watermark into the work to determine if there was infringement and, at the content owner’s discretion, disable the device, even if, upon subsequent determination, the use was lawful.

The most recent and scary development is that the United States Department of Justice is threatening to jail millions of Americans who use file- sharing services. In a presentation at the Progress and Freedom Foundation’s Aspen Summit on August 21, Deputy Assistant Attorney General John Malcolm said that peer-to-peer sharing is piracy and a criminal offense.

With this pronouncement, along with similar euphemisms by the media, it is clear that the copyright community has reshaped the debate. All of a sudden, the downloading of a song to sample an artist’s wares, behavior most Americans between 13 and 25 engage in regularly, has been likened to a criminal act.

Consider the clever public relations campaign of the content community. They’ve changed the simple language that describes the acts at issue. It used to be called “taping”, “reproducing” or “downloading”, and advocates on both sides would call it “unauthorized reproduction” or “unauthorized taping”. Then somehow this use of technology shifted to the more pejorative and sinister “copying”. The word “copying” sounds bad. It got you in big trouble in high school on a test. “Copying” is a sister to “plagiarism” which is especially bad.

But in the past few months, Hollywood and the music industry have shifted to different words. They now only talk about downloading as “piracy”. They call it “stealing” and always use analogies to shoplifting products out of a store. The Justice Department has adopted this approach. “Stealing is stealing is stealing,” said Malcolm in Aspen.

At the same conference, Chernin echoed these themes and used the words “piracy”, “shoplifting” and “stealing” repeatedly to describe downloading. He even declared that those who disagree with his views on copyright are either “amoral or self-interested”.

Another way copyright owners have distorted the debate is to tie in downloading with our national goal of broadband deployment. They argue that broadband demand will not grow until this issue is resolved. Indeed, Senators Holling’s legislation is called “The Consumer Broadband and Digital Television and Promotion Act”. Yet broadband deployment has little to do with songs and movies, and more to do with fast Internet speed, always- on convenience, exchanging home videos, interactivity on the web and a range of potential uses for education, medicine, business, shopping and gaming. Yet, some legislators have become confused and convinced by Hollywood that there is a connection between broadband and copyright.

A third way that the copyright community has reshaped and redefined the debate is almost biblical in its reach. The entire theme of the copyright community is that downloading off the Web is both illegal and immoral.

But is it either? I submit it is neither.

Despite the assertions of the Justice Department, downloading is not illegal.

First, fair use rights are guaranteed to consumers by statute, and applied judicially on a case-by-case basis. This means that, while some consumer practices ultimately could be adjudicated as either fair use or infringement, there is scant basis for challenging them as criminal.

The music and film industries claim that there is no such thing as fair use "rights" in an attempt to disparage the term. They say that fair use is only an affirmative defense to copyright infringement and therefore not a right. But various recognized "rights" only may be asserted as affirmative defenses in a lawsuit. For example, in a slander suit, one may assert the First Amendment right but only as an affirmative defense; this does not diminish the fact that the right exists.

Second, time after time, practices of individuals that were initially equated with "piracy" or "theft" have been shown to be neutral or beneficial to copyright owners, and have either been tolerated or accepted as fair use. Think of the VCR and the Supreme Court decision holding that its use to tape full movies is fully legal.

Third, the 1997 NET Act's requirement of a total retail value of $1,000 per infringement should be taken seriously as a barrier to bringing cases against ordinary consumers. This law should not be re-interpreted, after the fact, as a criminal enforcement vehicle against consumer-to-consumer recording and "swapping" practices.

Downloading is not immoral either. To make downloading immoral, you have to accept that copyrighted products are governed by the same moral and legal principles as real property, thus the recent and continuous reference by the copyright community to label downloading as stealing. But the fact is that real and intellectual property are different and are governed by different principles. Downloading a copyrighted product does not diminish the product, as would be the case of taking and using tangible property such as a dress. At worst, it is depriving the copyright owner of a potential sale. Indeed, it may be causing a sale (through familiarity) or even more likely, have no impact on the sale. My son often will become familiar with artists through downloading their music on the Internet and then go out and buy the CD.

The comparison to real property fails for several other reasons. Real property is subject to ownership taxes. Real property lasts forever and can be owned forever. A copyright can be owned only for a limited period of time. Indeed, the United States Constitution declares this. More, copyright law must bow to the First Amendment that expressly allows people to use a copyrighted product without the permission of the copyright owner. This concern contributes to the statutory and judicial concept of “fair use”. The First Amendment includes, not only the right to send, but also the right to receive. Indeed, in 1984, the U.S. Supreme Court in declaring the VCR a legal product, said that it could be okay to copy an entire copyrighted product. So if the Supreme Court expressly held that VCR copying in the home for non-commercial purposes is a legal activity, how is it suddenly labeled as “piracy” because the device is a computer?

The major record labels concede that they totally have failed to transform their business models in response to the Internet. But then they whine that they “cannot compete with free”, referring to the free downloading the Internet allows. While I am sympathetic to the radical shift of selling a CD with a one good song for $20 to a marketplace where consumers pick and choose which songs they want, I am not sure this is the correct approach. For one thing, you can compete with free. Purveyors of bottled water do it. America Online does it. Book retailers do it with libraries. Independent online music services say they can do it, if they can clear the rights.

The Beatles 1 album, which contained 30-year-old songs that could have been downloaded for free from Napster-like services from day one, but nevertheless sold some 26 million copies. Why? Because people were willing to pay for the quality of a CD over the often barely acceptable sound quality of a download using P2P services.

Of course, recording artists must make a living and should be paid. Most consumers likely would pay a reasonable amount for quality downloads, access to full catalogs and maybe some promotional items such as concert tickets or hidden tracks on a CD. Artists even can get new revenue from the Internet by identifying their fans and promoting their concerts, new releases and other products. But the music industry has made little effort to look at new business models or provide a viable and attractive alternative to the downloading services.

The recording industry and motion picture industry should stop complaining so much and look for technological solutions to its own problems. Doesn’t it make more sense to protect content at the source, using technologies that maintain consumer expectations for personal use? Content providers would be served better by working with technology companies to deploy these solutions rather than suing everyone and lobbying Congress to legislate unreasonable and consumer-unfriendly mandates.

Despite a lack of hits and a recession, music and movie sales are holding their own. Compare this to real downfalls in other sectors from telecommunications to IT to broadcasting, and you must ask yourself if the Internet is actually a good thing for the copyright community.

So where does this lead us? I submit that policymakers should follow some basic principles:

First, do no harm. If we had previously heeded the concerns of the creative community, we would have no radio, no TV, no VCR, no computer, no e-mail and no Internet. Yet each of these technologies has enhanced the revenue stream for copyright owners.

Second, advances in technology should not be restricted. We cannot even imagine today what future advances we will choke off if we artificially restrict technology. If we can envision technology connecting the poorest in the world to medical information, to education and to a better quality of life, we should be careful about stifling its growth. Advances in technology also can supply tools to content providers to help them manage digital rights in a manner that takes into account consumers’ expectations.

Third, claims of harm should be greeted with great skepticism. Not every recording is a lost sale. It actually may represent a stream of future sales. Artists from Chuck D to Janis Ian to Courtney Love support home recording rights for practical business reasons.

Fourth, copyright owners have a high burden of proof before any technology should be restricted. Broadcasters and the motion picture industry have come close to making the case that redistribution of free, over-the-air broadcast television over the Internet is harmful to the concept of free over- the-air broadcasting. This is an area where careful legislation or regular legal review, respectful of consumer rights and expectations, may be appropriate.

Fifth, copyright owners should continue developing ways to protect their content at the source, rather than insisting that the burden should be on the device that plays it. Perhaps they should consider a more flexible business model that focuses on keeping honest people honest. But, the corollary here is don’t sell CDs that don’t work on many CD players.

Finally, any restrictions on technology should be narrowly crafted, define limitations on abuse by copyright owners and define legitimate consumer recording rights and expectations. For example, CEA supports the distance education bill presented by Congressman Darrell Issa of California and Rick Boucher of Virginia that addresses a specific IP concern rather than attempting to legislate through a one-size-fits-all approach. The Boucher- Issa bill reaffirms fair use rights and would amend the Copyright Act to ensure educators can use PCs and new technology to foster distance learning.

The collision course between copyright owners’ desire to preserve existing business models and the inevitable development of newer, better, faster and cheaper technologies need not be fatal. Our future is bright if we resist the temptation to restrict technology. Digital technology will foster a Renaissance of creativity. It will connect our world and soon allow everyone to have low-cost access to information, entertainment and education. If the play button becomes the pay button, our very ability to raise the world’s standard of living and education will be jeopardized.
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