FOSTA Supporters Come Out Swinging Against Critics

from the is-there-a-point-in-here-somewhere? dept

You may not have heard the phrase "bootleggers and baptists," in regards to how strange bedfellows join forces in favor of certain regulations, but it's a useful concept. From a 1983 paper by Bruce Yandle, it discusses the odd realization that many people in industry often hope for regulation in a certain area knowing that the regulations will actually limit competition and benefit themselves. More importantly, it notes that those industry forces seeking to support such regulations will often hide behind those espousing moral reasons for the regulations. For the industry folks, it's a win-win: they get the regulation they want, without it appearing to be for their own benefit, but rather for the benefit of some righteous moral cause. Here's how Yandle describes the concept:

Indeed, the pages of history are full of episodes best explained by a theory of regulation I call "bootleggers and Baptists." Bootleggers, you will remember, support Sunday closing laws that shut down all the local bars and liquor stores. Baptists support the same laws and lobby vigorously for them. Both parties gain, while the regulators are content because the law is easy to administer. Of course, this theory is not new. In a democratic society, economic forces will always play through the political mechanism in ways determined by the voting mechanism employed. Politicians need resources in order to get elected. Selected members of the public can gain resources through the political process, and highly organized groups can do that quite handily. The most successful ventures of this sort occur where there is an overarching public concern to be addressed (like the problem of alcohol) whose "solution" allows resources to be distributed from the public purse to particular groups or from one group to another (as from bartenders to bootleggers).

This concept can be seen in many places. Indeed, the Econtalk podcast recently had on Dick Carpenter who discussed his book "Bootleneckers" which looks into a number of similar examples.

Paul Matzko has recently written an essay that specifically applies the "bootleggers and baptists" concept to FOSTA, the law that was recently passed overwhelmingly that claims to be about stopping sex trafficking, but as we've explained ad nauseum is actually putting victims' lives in danger. As Matzko notes, it's a classic bootleggers and baptists scenario:

Anti-sex trafficking activists play the “Baptist” role, earnestly contending for reforms that they believe will help women and children enmeshed in a web of sexual exploitation. While internet content providers like Facebook and Amazon are not “bootleggers” themselves, since they operate within the law, they are roughly equivalent to the licit producers of alcohol during Prohibition, who benefited from a competitive moat created by the new rules.

As we've been pointing out the problems with the law, and the fact that police are now admitting the law is making it harder for them to find victims of sex trafficking, while actual sex traffickers are finding the law has made their job easier, we've wondered about what happened to all of those "Baptists" who had been pushing for the law all along. They seemed mighty quiet in the face of reports of women literally dying because of the law they passed.

Last week, a group of FOSTA supporters finally released an opinion piece attempting to defend the law, while brushing off the concerns of those who actually see how it's putting victims' lives at risk. The opinion piece is incredible and incredibly dishonest.

Recently, there has been widespread confusion surrounding SESTA/FOSTA, the new legislation that enhances the Communications Decency Act of 1996 (“CDA”). In short, SESTA/FOSTA closed the loophole that gave blanket immunity to internet service providers who failed to take measures to prevent people from being sold for sex through their websites.

First off, during debates on the law, we were told by the bill's supporters that the new standard was not that it applied to those who "failed to take measures to prevent." Indeed, we were told that SESTA/FOSTA did not require active measures -- just responding to knowledge of sex trafficking or prostitution. So, just as an opening, this opinion piece is either admitting that they don't know what's in the bill or what it's supporters said during the run up to the bill, or they're admitting that the bill really does do exactly what many of us worried the bill would do and were mocked for saying as much.

Now, rather than trying to meaningfully understand the legal impact of SESTA/FOSTA, self-proclaimed “sex worker advocates” have used the flurry of misinformation to their advantage, perpetuating a false narrative about the law’s supposed effects.

The "flurry of misinformation" seems to be reports from the ground from people who are actually living the effects. To brush them off is fairly astounding.

The very text of § 2421A (a) reveals that the law was intended to apply to websites, and not target the people who post on them. In fact, those who post were never subject to the protections of Section 230(c) of the CDA in the first place. Yet sex worker advocates proclaim SESTA/FOSTA infringes on their ability to sell sex.

This paragraph is almost totally bullshit. It creates a strawman, and then knocks down something entirely different. Yes, FOSTA/SESTA applies to websites rather than users (that's why we've pointed out it's so mis-targeted in the first place, since it does nothing to target sex traffickers). The complaints from sex workers is not that it "infringes on their ability to sell sex." The complaint from sex workers is that by putting liability on websites who "facilitate" any form of prostitution is that it then prevents the many ways in which sex workers and victims of sex trafficking communicate and get information to protect themselves or get help. Because the law targets websites, those websites who provide ways for sex workers and/or victims of sex trafficking to communicate, are at a huge risk of criminal liability. And thus, they are shutting down or blocking the ability to use them. And, the problem is not that this "infringes on their ability to sell sex," but rather it makes it much more difficult for them to stay safe or to get help if they are victims.

Sex workers who post their own commercial sex advertisements were always (and still are) subject to applicable prostitution laws. SESTA/FOSTA did nothing to change this. Instead, the law is fundamentally concerned with websites who intend to facilitate “the prostitution of another person.” Therefore, individual people can continue to use the internet to discuss and advertise commercial sex on various websites, subject to the same applicable prostitution laws.

Again, this is discussing something else. Yes, the laws on prostitution are not changing, but by blaming websites, those websites are no longer letting these people who are at an extraordinarily high risk of violence, trafficking or death to better protect themselves. And FOSTA/SESTA forces those websites that they relied on to protect themselves to shut down. That's the problem, which these "advocates" refuse to acknowledge.

Simply put, SESTA/FOSTA holds internet service providers accountable for allowing their websites to serve as springboards for sex trafficking. Yet, sex worker rights advocates continue to push an alarmist agenda, mangling what the law actually says. They argue that it will increase the deaths of prostituted people everywhere because it will prevent screening efforts, “force” them “back out” on the street, and prevent them from earning a “livelihood” from this “empowering” career choice. These vain arguments were made bolstered by the fictitious proclamation that “survivors” said so.

Prostitution is incredibly dangerous. The admission by sex workers who claim to use certain websites to screen violent and homicidal sex buyers acknowledges the inherent danger of commercial sex. The passage of SESTA/FOSTA does not make prostitution more dangerous, because unless the websites used for screening were intended to promote or facilitate the prostitution of a person other than the one posting on the site, the screening websites and the users remain in the same legal position as they were prior to the passage of SESTA/FOSTA.

What?!? This is either ignorance or willful blindness on the part of the FOSTA advocates. The law is written so broadly, that any tool where sex workers communicate may be seen as a tool for "facilitating" some aspect of prostitution, and thus would be criminally liable under FOSTA. How can they say with a straight face that those websites "remain in the same legal position" when a ton of them are already shutting down?

Furthermore, this argument relies on the premise that the information shared about commercial sex online is completely accurate. Meaning, all sex buyers use their real names and provide truthful information during transactions, that the people who sell sex always feel safe to use their identities to critique their customers, and that people who solicit sex via the figurative cover of the internet are inherently more trustworthy than those who do it in person. These presumptions are ludicrous.

None of the argument relies on this totally made up assumption. Instead, it relies on actual empirical data, like the fact that when Craigslist introduced its "Adult Services" section, female homicide rates across the board dropped by over 17% (not just the homicide rate of sex workers). In other words, here's actual data proving these FOSTA advocates wrong, and the best they can do in response is make up a nonsensical claim that sex workers are saying everyone is truthful online.

Now that websites are no longer immune from legal action for their part in facilitating sex trafficking, some have smartly opted to remove content that could trigger violations. Craigslist promptly deleted its personal ad section;. Backpage.com was shut down by the government in early April following indictment of the site’s founders on criminal charges including facilitating prostitution.

What an odd thing to note. First off, Backpage was shutdown before FOSTA was passed. So it makes absolutely no sense that these advocates are taking credit for it. Second, just moments ago, they were claiming that most sites shouldn't be impacted by FOSTA/SESTA, yet here they're excited about Craigslist taking down its regular dating site (i.e., not a hotbed of sex trafficking). And, I'll note that they don't bother to mention the fact that Cloudflare shut down a social network for sex workers called Switter. It's a convenient one for them to ignore, because earlier in the article they insisted that such sites would not be impacted by the law.

Once again, the FOSTA advocates seem to be living in a fantasy world where they can pretend they can just ignore reality.

SESTA/FOSTA won’t stop trafficking. But, it is an incredible blow to the commercial sex industry, - an industry that not even sex worker rights advocates can claim is fundamentally safe. To say otherwise is incredibly disheartening and politically distracting.

The "Baptists" have had their say here, but they can only make their point by outright misrepresentation and ignoring the facts.

Filed Under: fosta, morals, myths, prostitution, sesta, sex workers

Why The MPAA Can't 'Win The Hearts And Minds' Of The Public: File Sharing Is Mainstream

from the game-over dept

A few weeks ago we wrote about a new "digital music index" from London-based Musicmetrics looking at the popularity of file sharing by location in the UK. The results showed that the act of file sharing was mainstream, rather than a limited activity. The same group has now released a US version of its report, which more or less shows the same thing.

Americans downloaded more than 97 million albums and singles using BitTorrent during the first half of 2012, with Gainesville, FL named as the country’s “pirate capital” in an influential new report. Of the 97 million torrents downloaded across the USA, around 78 percent were albums and 22 percent singles. Assuming an album contains 10 tracks, the total number of songs downloaded would have surpassed 759 million in six months.

The report admits that not all of the songs being downloaded were unauthorized, but suggests that since many of them are, the characterizations are fair. Of course, just as we saw in the UK, all this really seems to show is how widespread file sharing is. It's not a marginalized effort hidden away from society, as some would have you believe, but something that a very large percentage of the population engages in on a regular basis.

A much more interesting (and relevant) report comes from Joe Karaganis who is teasing a larger new report that's about to be released concerning "copy culture" in both the US and Germany. The first tease discusses the attitudes of file sharers in the US about whether or not "it's reasonable" to do certain types of file sharing. And the results suggest that the MPAA's (and many politicians') belief that all they need to do is "educate" people is based on very little evidence. The key point is that, contrary to the assertions of some, the "moral" questions around file sharing are rarely black and white. Karaganis explains that some seem to think that there are just two views of file sharing:

Let’s recall that there are two conventional ways of talking about the ethics of copying–both in relation to the theft of material property. First: that copying is not like theft because it is non-rivalrous–making a copy does not deprive the owner of the use of the good.  For short, call this the Paley position–the defense of digital culture as a culture of abundance.  Second: that copying is like theft because it deprives the owner of the potential economic benefit from the sale of that good (in the case of downloading, to the copier).  Call that the MPAA position–the defense of culture as a market that depends on the scarcity or controlled distribution of digital goods.

Then, he notes that copyright laws were really built up around a specific type of copying: commercial copying rather than personal copying. And the data above certainly suggests that the views of people on any sort of "moral" question change depending on the context. But... also (and this is important) based on age. The younger generation just seems to believe that basic sharing with friends and family should be seen as perfectly reasonable. The different ways of slicing the data certainly suggest that the blanket argument that "piracy is theft" is going to completely miss its mark in educational campaigns. People just don't buy it.

First, that strong moral arguments against file sharing mistake the structure of public attitudes. Not surprisingly, the public engages in many of the same negotiations of context as the law. For most people, like theft and not like theft are not diametrically opposed moral judgements about copying. Rather, they operate on a continuum. They depend on the context and scale in which copying takes place. Copying, our data makes clear, is widely accepted within personal networks, reflecting a view of culture as not only shared but also constructed through sharing. Outside networks of family and friends, in contrast, a commercial and property logic tends to prevail. Support for more active forms of dissemination and ‘making’ available’ through such networks is quite low. Support for commercial infringement–selling copied DVDs–is minimal.

No matter what sort of "education" campaign you create, you're not going to convince most people that constructing a shared culture is somehow immoral. Furthermore, the generation gap issue is significant, especially given that much of the "education" efforts are aimed at the younger generation which seems a lot less willing to buy the argument.

...there is a strong generational divide in attitudes, with 18-29 year olds far more likely than older groups to view a wide range of copying practices as reasonable. This shift is strongest in relation to sharing within networks of ‘friends’–a category that has become very elastic in the last few years through the rise of online social networks. Among 18-29 year olds, sharing with friends is entirely normalized and large in scale. On average, ‘copying from friends/family’ accounts for nearly as much of music file collections as ‘downloading for free.’ What are the reasonable boundaries of such a network? My siblings? My five closest friends? My 500 Facebook friends? Or the 5000 music aficionados who subscribe to a private file sharing network? This is where the rubber hits the road as people develop their own digital ethics. The law has not begun to address it, and educational efforts to convince people that sharing within communities is theft are likely doomed.

This, of course, is the point that we've been trying to get at for many, many years. No matter what your personal feelings are, you're not going to convince everyone else just by making a blanket moral argument that they just don't buy into. Instead, it's time to move to a more reasonable strategy (more on that shortly...).

Filed Under: culture, education, file sharing, mainstream, morals, mores

Would You Rather Be 'Right' Or Realistic?

from the being-right-in-fantasy-land-doesn't-help-much-in-the-real-world dept

We recently wrote about the excellent comic from Matthew Inman's The Oatmeal to highlight how companies turn would-be buyers into infringers by not making the content available. Here's a snippet. In response, some folks sent over columnist Andy Ihnatko's response, in which he suggests the comic is actually representative of the sense of entitlement that people feel towards such content. Ihnatko's writeup is slightly amusing as he tries to mock those consumers for actually having an opinion on how they consume content and concludes with this basic statement:

The world does not OWE you Season 1 of “Game Of Thrones” in the form you want it at the moment you want it at the price you want to pay for it. If it’s not available under 100% your terms, you have the free-and-clear option of not having it.

I sometimes wonder if this simple, grown-up fact gets ignored during all of these discussions about digital distribution.

I was going to write a rather long response to why this is kinda silly, but Marco Arment did a better job than I ever would in explaining the difference between being "right" and being "pragmatic." You really should read the whole thing, because it involves a rather detailed example involving the physical layout of a restroom. I'm going to skip over that part and highlight the summary point, but it's worth reading the full thing:

We often try to fight problems by yelling at them instead of accepting the reality of what people do, from controversial national legislation to passive-aggressive office signs. Such efforts usually fail, often with a lot of collateral damage, much like Prohibition and the ongoing “war” on “drugs”....

[....]

Relying solely on yelling about what’s right isn’t a pragmatic approach for the media industry to take. And it’s not working. It’s unrealistic and naive to expect everyone to do the “right” thing when the alternative is so much easier, faster, cheaper, and better for so many of them.

This point could be seen as the central theme of many of the 40,000 plus posts that have been made on this blog: dealing with reality is always going to be a more effective way to go about things than taking some "moral" stand on how things "should" be. And, if you can deal with the realities and it actually solves the whole moral "I'm right!" part at the same time, what good is it to not deal with realities?

Taking the point even further, there's a simple fact of today's world, which is that consumers have power. Ihnatko's entire point seems to assume that this consumer power is "entitlement." I tend to think of it as consumers making their will known -- and that tends to lead to better products that should make everyone better off. What Ihnatko ignores is that a market is not determined by just one side. It's the interplay between buyers and sellers, and if the buyers aren't happy, they express that to the sellers in certain ways -- and infringement is one of those ways. It's a market signalling method. I'd argue that it's just as much an "entitlement" mentality by the "sellers" to pretend that only they get to decide what the consumer should be able to get, without listening to what the consumer wants.

Filed Under: business models, infringement, morals, practicality, realism, right

The Moral Argument In Favor Of File Sharing?

from the is-it-wrong? dept

I've discussed in the past the question of whether or not there's even a moral question to consider when it comes to copyright, if you can first show a situation where everyone is better off (i.e., if the end result of content being shared, willingly, is better for both the content creators and consumers, why should morals even be a question?). Separately, I have made clear that I do not engage in any sort of unauthorized file sharing -- noting that it is illegal and, I personally believe, wrong. Some people have pushed back on that latter point, suggesting that my labeling it as "wrong" is, in fact, a moral statement as well. A couple months ago (yes, I'm slow, but I'm catching up on some old "saved" submissions), SteelWolf sent over some thoughts on why file sharing is not wrong, and why there's actually a moral argument in favor of sharing:

It is through sharing that we develop a culture and advance humanity. Creative works like art and music are, at their core, about sharing with others. They tell stories, reveal personalities, or comment on the world in ways that others can appreciate, forming a part of our culture as they are spread around. Gregor Mendel's discoveries about genetics had no value while they were gathering dust on the monastery bookshelf; it is only when those discoveries were shared with the world that they became vital.

Infinite Goods Should Be Shared

Say you have something that is good for others, and it is infinite, so you will not lose any of it by giving some away. I don't think it's a stretch to say that most people's idea of morality would dictate that they should share that thing. In general, information is something that can be seen as a public good. If somebody has a discovery or an idea, it costs nothing to give it away, it is not scarce, yet it can potentially benefit the world.

On this, I absolutely agree -- but it is much more the argument for why the content creators themselves should share their content first. And that's where things get tricky. I do think it makes sense to share content. I think that content creators would find themselves better off if they share their works (and do so strategically, in combination with a business plan that takes advantage of it). But what if the original creator doesn't want the content shared? Then what?

SteelWolf argues that there's a moral imperative to share, but again, this seems to apply more to the content creator, than those downstream:

Faced with an infinity of good things in the form of content information, why would somebody chose not to give it away? What is gained by hoarding something that can help others and costs nothing to share? Let's say you figure out that you can protect people from a deadly virus, say, influenza, with a vaccine. While it costs something to manufacture physical vaccines and mail them to everybody in the world, sharing the information behind it is free. Others can chose whether or not they want to invest money in creating their own, but sharing has given them the option to do so where before it did not exist. Faced with this situation, who would chose to let thousands of people perish by denying them even the potential opportunity to save themselves?

Yet this is exactly the choice many people are making in the name of "intellectual property." They would rather see others suffer than share something infinite with them, desperately clinging to business models that depend on scarcity. In the 21st century, ideas, information, digitized content are all infinitely available. For these things, the Star Trek replicator has been made, and it's time to use that as a stepping stone to greater things.

Faced with an infinite supply of information that can potentially benefit billions of people, I chose to share. Those who try to hoard this information are both attempting to drink the ocean and doing wrong.

While I think this is interesting, and at times compelling, in the end I'm still not convinced there's a moral component here, except potentially for the creator/innovator. But, at the same time, I still believe that we're better off taking the moral discussion out of it. Perhaps a moral argument like the one above is helpful to convince some, but it leads right back to the economic discussion, where some will ask why anyone would bother in the first place, if they're just told they need to give it away for moral reasons.

Instead, I'm more convinced by economic arguments that show greater opportunity in sharing infinite goods, in that it decreases the cost of creation, promotion and distribution, while making it easier reach a larger audience for selling scarce products. Again, if you can make the economic argument, and then throw in the moral benefits of spreading information on top of it, that makes sense. But a purely moral argument still falls a bit short for me. Still, I'm sure it will lead to an interesting discussion here.

Filed Under: copyright, file sharing, morals

U2 Manager Says Google And Its Hippie Friends Should Pay The Recording Industry

from the still-haven't-found-what-i'm-looking-for... dept

While the IFPI and the RIAA have been actively pushing for ISP liability for file sharing, it appears some in the industry are taking it even further. U2's manager for 30-years, Paul McGuinness, gave a talk at the Midem conference where he blamed Silicon Valley's "hippie values" for creating the problem, and demanding that tech companies of all stripes start paying the recording industry. He's talking not only about ISPs, but also Google, Apple, Microsoft, Facebook and basically every other successful tech company. There are so many problems with this, it's difficult to know where to begin, but let's tackle a few of the quotes:

First he blames these companies who have "built multibillion dollar industries on the back of our content without paying for it."

This is a common refrain from those in struggling industries, but it's meaningless. Complementary goods are a natural for building bigger markets, but no one expects one side to pay the other just for moral reasons. The oil industry's success is built on the backs of the automobile industry, but does the automobile industry demand that oil companies have a moral obligation to pay them? Computer makers have built a multibillion dollar industry on the backs of the internet and software companies -- yet, no one says they have a moral obligation to pay those companies anything. Travel guides have built huge business based on hotels and restaurants around the globe, but does anyone think that those travel guides owe the hotels and restaurants money for doing so? Hell, the recording industry itself was built off the backs of complementary goods such as radio, yet when they paid radio stations, it was known as payola and outlawed.

These companies, McGuiness claims, need to help out "not on the basis of reluctantly sharing advertising revenue, but collecting revenue for the use and sale of our content."

Uh huh. And I guess that automobile companies should be collecting revenue for the oil companies. And, home builders should be collecting revenue for the electricity companies. And, airlines should be collecting revenue for the hotel industry. You see, these are all separate industries. They may be complementary, but it's up to each one individually to figure out the business models that work. None should be pressured into saving the other from its own missteps.

"I call on them to do two things: first, taking responsibility for protecting the music they are distributing; and second, by commercial agreements, sharing their enormous revenues with the content makers and owners."

This is beginning to sound an awful like journalists who claim that Google has a moral obligation to "share revenue" with newspapers.

He claims that what all of these companies do is the equivalent of a magazine that "was advertising stolen cars, processing payments for them and arranging delivery."

That makes for a nice soundbite but has nothing to do with reality. First there's the little problem that nothing is being stolen here, only copied. Second, none of these companies are "processing payment" for unauthorized transactions. Third, none of them are "arranging delivery." It would be like the same scenario, but blaming the guys who paved the road on which the car was driven.

"Embedded deep down in the brilliance of those entrepreneurial, hippie values seems to be a disregard for the true value of music."

First, this shows a misunderstanding about the difference between price and value. It also misunderstands the culture of Silicon Valley, which is generally more libertarian these days than "hippie."

On top of all this, McGuiness is whining about this at the same time that U2 is pulling in incredible profits, making $355 million on its last tour. You know what helped fuel some of that? The fact that a new generation of fans are learning about U2 from downloading its music for free. Not only that, since they don't have to stretch their entertainment dollars as far on buying the actual music, they can pay the exorbitant concert ticket prices that U2 is charging these days.

The problem here isn't that others are letting the recording industry languish. It's that just about every other industry has realized that there's plenty of money to be made in the music industry. As we've pointed out, just about every aspect of the industry is doing fantastically well. More money is being made on concert revenue than ever before. More artists are making music than ever before. More music is being heard than ever before. Even more musical instruments are being sold than ever before in the past. Yet, because one segment of the market (the one selling plastic discs) is unwilling to take some simple steps to change its business model, everyone else has to pay up?

Filed Under: blame, complementary goods, hippie values, morals, music industry, paul mcguinness, recording industry, silicon valley, u2