metaphor

In an effort to keep beating a dead horse…

“Modern-day pirates are not like Errol Flynn or Johnny Depp swinging through the rigging, but well-armed militiamen equipped with rocket propelled grenades, assault rifles, global positioning systems and high-speed motorboats…” (The New York Times, April 20, 2008)

The Times is not talking about college students loading their iPods or high school students posting clips on YouTube. It’s talking about guys with guns storming boats, stealing things and killing people.

They are not the same thing.

Some copyright violations can be dangerous, and some can fund even more dangerous activity (like pirates). These violations tend to involve the reverse engineering of drugs and copying machined products like brake pads and selling the sometimes flawed counterfeits. Such efforts tend to be international and well organized. Conflating the theft of ideas and creating sometimes faulty products or the distribution of stolen ideas to fund illegal enterprises with bands of machine gun wielding thieves with RPGs diminishes the impacts of both.

Other copyright violations are well organized efforts to illegally reproduce and sell movies, music and television shows. These are most often also international, and rely on computers to pump out copies of stolen goods. Lots of money is lost, but no one dies.

These two areas of copyright violation need to be addressed. The PRO-IP Act working its way through Congress is a step in the right direction, as are the efforts of groups ranging from the Motion Picture Association of America to the Copyright Alliance and the US Chamber of Commerce.

A final common form of copyright violation seems more benign, feeling a little like sticking gum under a table – you probably shouldn’t do it, but whatever it’s only gum. This is the endless posting of TV and music clips on web sites like YouTube and Google Video, downloading and sharing songs, or creating video clips using music or scenes to which the user does not have rights. This is also bad, certainly worse than gum under a table, but it’s also not taking hostages and shooting people.

Those of us who are concerned about copyright protection (I am on the board of the Copyright Alliance and represent Vin Di Bona Productions) need to stop conflating these areas. We need new metaphors, new ways of talking about what we want to stop. Failing to do so diminishes the real threats posed by old-fashioned pirates and makes it more difficult achieve the policy goals we’re after: making sure that those who create something get rewarded for their work or ideas.

When advocates use the word “reform” they (we) tend to mean “burn it down.” We use the word reform because we think it sounds nicer and less hostile then “take it out back and shoot it.” “We don’t want to replace it or dismantle it, and we certainly don’t think you’re evil, we just want to reform it a little” is our argument. We try to make it sound as if reforming a process was like taking in suit or slipping a sugar packet under the leg of a wobbly table.

Of course it’s not. Of course what we mean is “you suck and we should be in charge.” Those at whom the reform is aimed know this, of course. Those at whom reform is aimed – prosecutors, the FCC, large financial institutions, etc. – think they are doing just fine thank you very much. They do not see themselves in need of reform any more than church leaders in the 16th Century thought Martin Luther made some interesting points they should all talk about some time over a nice Chianti.

Reform is not good. We don’t seek out reform, reform happens to bad things against their will – think of reform school, the reform party, and, well, the Reformation.

Several years ago I wrote a piece for the Drake Law Review called ”How to Talk Crimey and Influence People” in which I made this argument after hearing from a number of prosecutors that talking about criminal justice reform was not doing advocates any favors. Yet I continue to make this mistake, and continue to hear my clients make it. There is Farm Bill reform (which really means change the current system), health care reform (which generally involves significant overhaul), tax reform (which means go to a flat tax or find some way to ban the IRS), and so forth.

If we want allies across the spectrum, and intend “reform” to mean “make the good better” then we need to say that; make the case for improving, or using best practices. We need to start from the premise that things are good and can be better, not things used to be good and have gone awry or that the whole notion was misguided. If on the other hand by “reform” we mean “it’s broken” then we should say that.

Reform is a word that gets us half way to nowhere and strands us there.

Last week US Senator Byron Dorgan (D-ND) received the American Spirit Award from the Caucus for Television Producers, Writers & Directors. Among the efforts for which the Senator was recognized is his support for legislation requiring internet network management to be content neutral.

For many this issue is called net neutrality. The Senator said he preferred the term “internet freedom” because in his view the point of the legislation is to keep the internet free and open for artists, entrepreneurs and everyone else. He argued that without strong net neutrality provisions (or network freedom provisions) the next Google might not be able to make it because they might be locked out of a closed network controlled by a small handful of large companies.

The Senator’s point on language is a good one, though I’m not sure his preferred phrase moves the debate in the right direction.

Net neutrality is not a terrific phrase. It doesn’t mean much to most folks, and as those for whom it does mean something disagree about what it means. A good phrase is one that captures the entire debate and points to a clear resolution – “pro choice” and “pro life” define the abortion debate, they indicate the stakes, what is being weighed and point to an outcome. Net neutrality doesn’t accomplish these goals.

Network freedom has a nice ring to it, but it defines the issue as one that limited, largely lefty, interest groups take up. It rings of email campaigns and liberal rants. To be clear: there are a lot of largely lefty interest groups I like, and I rant with the best of them, but that is not always the best way to win in Congress or at the FCC.

What we’re talking about is allowing those who physically build, rent and manage the networks to be able to do so and make a reasonable profit, while ensuring that everyone who wants to use those networks for legal purposes has an equal opportunity to do so. That means that content can be slowed, shifted, privileged, etc. if that management is done in a content-blind way.

Importantly, the phrase needs to define the debate in ways that persuade those in power who do not already support this notion. Advocates have to talk to those with whom they don’t already agree.

In this light, what phrase should be used? Open internet market? Internet non-discrimination? Content non-discrimination? Open internet access? Free market internet access? There are lots of options that describe what activists are seeking that sound reasonable, pro-business and pro-consumer without sounding overly inside-internerdy our too outside interlefty and that may be able to reach those whose opinions are not already set.

Several friends of mine are in a pirate book club. They aren’t committed to only reading materially illegally posted on a secret bit-torrent site based in international waters. The book club (as one put it) is “a change to sit around and say aaargh a lot.”

Today’s Los Angeles Times includes the headline “Bill targets piracy at colleges”. Fortunately the story isn’t about cracking down on undergraduates wearing eye-patches and flying Jolly Rogers from their dorm rooms. Instead the piece talks about provisions in the House version of College Opportunity and Affordability Act (HR 4137), specifically section 494 (page 411 of the GPO pdf) that reads (I’ve cleaned up the formatting for ease of reading):

SEC. 494. CAMPUS-BASED DIGITAL THEFT PREVENTION.
(a) IN GENERAL.—Each eligible institution participating in any program under this title shall to the extent practicable—
(1) make publicly available to their students and employees, the policies and procedures related to the illegal downloading and distribution of copyrighted materials required to be disclosed under section 485(a)(1)(P); and
(2) develop a plan for offering alternatives to illegal downloading or peer-to-peer distribution of intellectual property as well as a plan to explore technology-based deterrents to prevent such illegal activity.
(b) GRANTS.—
(1) PROGRAM AUTHORITY.—The Secretary may make grants to institutions of higher education, or consortia of such institutions, and enter into contracts with such institutions, consortia, and other organizations, to develop, implement, operate, improve, and disseminate programs of prevention, education, and cost-effective technological solutions, to reduce and eliminate the illegal downloading and distribution of intellectual property. Such grants or contracts may also be used for the support of a higher education centers that will provide training, technical assistance, evaluation, dissemination, and associated services and assistance to the higher education community as determined by the Secretary and institutions of higher education.

Pretty benign stuff – the asserted potential penalties for not recycling at some institutions are harsher. This section pretty much says universities that get government money have to encourage their students and staff not to steal stuff, and to try to find ways to keep folks from stealing stuff, and if they find such ways the government will give them even more money. Seems like a reasonable – even generous – request. Basically some students are stealing a lot of intellectual property on college campuses and the government (that partially funds those campuses) is saying “you should probably tell your students to stop taking stuff that doesn’t belong to them.”

Unfortunately that’s not the debate we’re having. Instead we’re talking about pirates.

Those interested in copyright protection (as I am as a member of the board of the Copyright Alliance and an advisor on the issue to Vin Di Bona Productions) need to leave the arrghing to book clubs and costume parties, and find a new metaphor to describe our efforts to stop people from stealing our stuff.

Do we need copyright laws to protect the intellectual property of artists or creators?

The answer is of course “yes” – copyright laws are there to protect the ownership rights creators of art, as well as the creators of software, and other intellectual property that might not immediate be associated with “artist” or “creative artist.” And anyone who does anything well will rightly claim the title: Artist.

Yet the distinction is important. In the current debates about copyright rules, advocates need a way to talk about who is being talked about. We need to be able to say, “we need strong copyright laws to protect….” Who? “Intellectual property creators” is clunky. “Artists” brings to mind musicians, painters and sculptors but maybe not those who write software or design video games. "Content creators" leaves out sculptors, painters and others often associated with the "fine arts."

This is not (merely) an academic exercise. Words, as Kenneth Burke noted 50 years ago, necessarily offer a reflection, selection and deflection of reality – and as such words are necessarily persuasive, setting (in his words) “terministic screens” that act as filters on reality. Those who want to strengthen copyright laws and crack down on people posting stuff online they shouldn’t – an issue that concerns me as a member of the Board of the Copyright Alliance and the Washington representative for Vin Di Bona Productions (which produces America’s Funniest Home Videos) and the Caucus for Television Producers, Writers & Directors - need to define the issue in a way that makes success more likely. This means including allies outside of Hollywood, New York and Nashville, credibly increasing the numbers of people who work in the copyright industry and otherwise expanding the debate in ways that make it more likely more policymakers will care.

Doing this requires answering the question, “who do copyright laws protect”?

In a previous post I argued that advocacy groups can use their issues to help candidates demonstrate character traits as a way to advance the group’s policy agendas. The critical element is that issues are metaphors – they tell voters not just what the candidate thinks, but who the candidate is.

Several examples help explain this point.

AIDS Action recently highlighted National Black HIV/AIDS Awareness Day was on February 7th and included numerous events around the country. These events provided opportunities for candidates to advance their agendas and promote a view of themselves as people to voters.

Senator Clinton needs to demonstrate she is more than ambition and intellect, and demonstrate her ability for empathy. She also needs African American voters. TO take advantage of this, organizations could have invited her attend the candlelight vigil in Cincinnati. Senator Clinton standing with mothers who have lost children to AIDS would send a strong message that she is a caring mother who is concerned about the day-to-day struggles of real people. She would be promoting her policies and her concern for the broader issues of poverty, race and health care. The issue would be there as an issue and also as evidence of a broader personal theme she needs to highlight.

Senator Obama has the opposite problem – he needs to wonk it up. Groups could have invited him to appear at one of the community fora in Ohio to engage in policy talks. By being in a community policy setting he would be arguing for his approach to AIDS and also making the case his hope is rooted in experience.

March 3rd is the 50th anniversary of the discovery of oil in Saudi Arabia. A day later both Ohio and Texas hold primaries. This is an opportunity for groups like The Sierra Club and the The National Wildlife Federation to promote the connection between conservation and dependence on foreign oil. They could:

Invite Senator McCain to speak to entrepreneurs about the need to invest in domestic technologies for producing alternatives to fossil fuels. This would play to the Senator’s strength of practical solutions, show his independence by appearing with traditionally liberal groups to promote a business agenda and could be a good way to begin to court Ohio independents for the general election.

Invite Senator Clinton to a rally with Hispanics in Texas whose children are serving or have served in Iraq. This would burnish the Senator’s foreign policy credentials, reinforce the Hispanic base and put her in a setting that emphasizes empathy.

Invite Senator Obama to a forum at a graduate engineering program in Texas or Ohio to discuss alternative fuels. Such a setting would highlight his intellect, and by surrounding himself with experts in a field he would be arguing that he is a serious policy thinker and problem solver.

In each of these cases the underlying policies matter – but their force is in helping create the images the candidates need to get elected.

A focus on character issues in the 2008 election can be good news for entrepreneurial advocacy organizations.

The day before Super Duper Tuesday the Wall Street Journal wrote, ”In other words, the election of 2008, thus far, is less about ideology and ideas and more about governing style and leadership ability – intangible qualities on which voters are placing a higher priority than on issues.”

On the surface this seems like bad news for issue groups, after all if the focus is on intangibles like who will fight partisan gridlock or who is a strong leader, then how do you get people to vote on the budget deficit, judicial appointments or poverty?

The distinction between policies and personal qualities is an artificial one. Few of us think rationally about issues and cast votes based on who checks most of our boxes. The other extreme, that we are mindless followers of the cleverest sound bite, is equally misguided. Most of us, most of the time, use issues as proxies for values and personal attributes. When Governor Huckabee talks about eliminating the Internal Revenue Service and replacing it with a 23% national sales tax, he is suggesting a policy but more importantly telling voters that he doesn’t trust federal government power and that he will shake up the powers that run Washington at the expense of the rest of America. There are a lot of differences between mandating everyone purchase health insurance, as Senator Clinton does, and those who would make it easier to get coverage but not mandate it, as the other candidates suggest. One critical difference is one’s view of individuals, government and the marketplace. A mandate says “in some things people should not be given a choice to behave badly because that hurts the rest of us”, a choice says “given a reasonable chance people will do what is in their best interest and in the best interest of the community.” The policy difference matters as a policy matter, but in the context of the campaign it also matters for what it signals about the person suggesting it.

Advocacy organizations can align their issues with the images the candidates are trying to convey. The place the start such an analysis is not in the group with the issue (“what do we want?”) but rather with the candidates (“what do they want?”).

For example, Senator Clinton needs to demonstrate compassion and that she can draw Republican and independent voters. Senator Obama needs to prove that he is substantive as well as an idealist and also find ways to appeal to working class Democrats and Hispanics. Senator McCain needs to show he worthy of conservative voter’s trust while not scaring away the independents and moderate Democrats he will need to get elected in November.

The question then is not “how do I get the candidates to talk about my issue?” but rather “how do I align my issue with the image the candidates want to portray?”

Potential answers to follow…

Yesterday in this space I wrote that calling the unauthorized posting of copyrighted material on the internet “piracy” did not help solve the problem (Argh Is Not the Answer).

As the late Murray Edelman wrote, “The critical element in the political maneuver for advantage is the creation of meaning.” Language creates that meaning. Words define allies and opponents, options and outcomes.

Calling copyright violations piracy and those who do it pirates constructs a debate in which college and high school students (some of the most egregious violators) are swashbuckling, maiden chasing Johnny Depps. It also make the solution plank walking or stranding on a deserted island, both of which the Supreme Court is likely to take issue with.

Combating the unauthorized posting of copyrighted material on the web requires a new metaphor, a word or phrase that is less clunky than “unauthorized posting of copyrighted material” and less romantic than “piracy.”

If not piracy, then what?

Answering that question is a two-step process.

First, advocates need to agree on the outcomes they want. The answer to this seems fairly easy – no piracy (realistically less piracy). But here it is important to recognize that the outcome is no piracy. Laws can help, changing social norms can help, filtering technology can help, other things may help as well. Critically, the goal is not a law, court ruling, or software: it is less stuff being posted and viewed without the owner’s permission (of the two, viewing is the bigger problem – posting only matters in that people then view the material). Keeping a focus on the final goal can help prevent chasing down alleys that, at best, lead to partial solutions.

Second, advocates need to better understand both what and how those doing the bulk of the posting and viewing think about copyright on the web. Good focus groups with those who are doing the violating can help copyright holders concerned with the issue understand how those who illegally post view their actions. As Edelman and others have noted, it is far easier to persuade people of things they already believe to be true than it is to get them to think something new. If people think pirates are cool and don't think of themselves as pirates, don't try to get them to see themselves as committing piracy and that it's bad. It would be much easier to find something they already think is bad to which online copyright violations could be associated.

Those who want to protect copyright need to understand how those doing the violating view the issue. From their perspective, what are they doing? Who is being hurt and how? What arguments for not violating copyright make sense? Who are the victim, vanquished and victor? Larger public opinion research can then help test and hone the messages learned in the focus groups.

Armed with this understanding of how those who need to be persuaded think about copyright and the internet advocates can construct a campaign to protect it.

(In the interest of full disclosure, Milo Public Affairs represents Vin Di Bona Productions whose show “America’s Funniest Home Videos” is routinely posted online without permission and Milo’s Principal, Peter Loge, sits on the Board of the Copyright Alliance. The views here do not necessarily reflect those of Milo’s clients or the Copyright Alliance.)