Specifically, I mentioned that

It is not going to be fought over territory, or politics, or religion. It will be an economic war, a cultural war, a global war, and one in which the civil populations those beliefs support the power base of the status quo will shake those institutions to their very core. Issues over DRM are not the opening shots fired. They are a wake-up call that something radical needs to change – that the fundamental nature of how we value and distribute knowledge and ideas will, in the long run, not be subject to the traditional economics of today’s society.

SOPA is the next round in that battle and is evident proof that the wake-up call has not been heeded. In a nutshell, SOPA is an attempt to reinforce traditional values of copyright and ownership on a system that doesn’t want to be forced in that direction. Rather than trying to work within the direction the socio-informatics wants to naturally go, large corporations are trying to bring those values back in line with the establish processes because that is what they know. Laws, policy, policing.

What is missing is the human element. It is also what makes SOPA so dangerous as a framework from which individuality and the expression of ideas could eventually be eradicated.

Legacy is the essential problem.

The way you keep populations in control is by ensuring that their needs within a society are being met. Let’s take the simple example from Maslow. Those core needs being, in order of importance, physiological, safety, belonging, esteem, and self-actualization. To this list one has to add an additional more primal basic need that supersedes all of these others and that is the need to propagate.

The philosophical statement, cogito ergo sum, represents only half of what it is to be human. It is the rational side of the equation and doesn’t address this idea that within human culture it is not simply enough ‘to be’, one must have prove of one’s existence. That is, we define ourselves not just in terms of how we perceive the world rationally (a priori) but we need to have verifiable proof through external means that we exist (a posteriori).

Up until now, copyright has provided some measure of proof of our existence through the assignment of ownership to physical objects and the definition of legacy that it provides. But what happens in a virtual world where the right to create derivative works is superseded by mega-corporations whose only interest is the next fiscal quarterly report to their shareholders? When you no longer have the right to create works that provide proof of your existence? Or when you as an individually can be wiped out simply for not paying your ISP?

These may seem like extreme examples until you consider that most of what we say and do in the developed world now revolves around some type of electronic exchange of knowledge. The ability to express oneself to society is predicated not just simply on the physical expression of thoughts and ideas but also on their persistence. The creation of physical forms of self-expression be it a book, a record, a painting, a house, a chair, were easy to assign copyright to. The uniqueness of such self-expression was contained within definable geographic constraints. And even with mass production, copyright infringement through the development of substantially similar or derivative works was constrained.

There are only so many different ways you can mill a table leg. After awhile with 7 Billion people on the planet, people in various parts of the world are going to come up with similar solutions to similar problems irrespective of blatant intellectual property theft. So what do you think is going to happen once we add another 2.5 billion people to the planet between now and 2050?

In the last 20 years we have gone from a society in which the persistence of knowledge was predicated on activities that were understood to be one of two types, physical or vapor-ware, to a society which now has a reasonable right and expectation to every word they say lasting generations. Our root belief system has been fundamentally altered such that legacy is no longer about what you physically leave behind but what you virtually leave behind as well.

That is no small paradigm shift. And it’s not localized. It’s global.

Consider by 2050 9.5 billion people all wanting to establish a legacy of their own and wanting to have proof of their existence.

SOPA doesn’t account for this. The players behind SOPA don’t want to account for this. They don’t see it as their responsibility to speak to the future. They only seek to protect an economic system which is no longer viable in an information age.

So here is the fundamental problem: what happens in a society when its sense of self is under attack by those seeking, albeit maybe unintentionally, to eradicate proof of their existence?

Usually its revolution.

Unfortunately we are like the frog in the frying pan where the heat is being turned up slowly. Our hierarchy of needs is being eroded piece by piece under the guise of improved quality of life. The powers behind SOPA likely feel that so long as there are no signs of imminent collapse that all will be right with the world. But as any good doctor can tell you, to look after the care of a patient you need to also pay attention to the symptoms even if there are no outward signs of disease.

We could very easily take a page out of the medical handbook of practicing physicians as to the how to evaluate and assess a law’s ability to influence and improve the social condition. Unfortunately that hasn’t been done here. Which is a shame because an OPRQST assessment against the human hierarchy of needs is exactly what is called for here.

If SOPA passes, and mega-corporations start to use this to assault an individual’s innate ability of self-expression, regardless of what form that self-expression may take, then it will simply be a matter of time before the revolution starts. Similar to DRM, SOPA won’t be the shot heard around the world, but it’s definitely a sign that the musket is being loaded. SOPA is a very badly structured piece of legislation that should never become law.

That’s not to say that there aren’t legitimate issues at stake here. However, we need to start by realizing that our economic system needs a major overhaul. Any legislation needs to accommodate the way society functions today – not the way the nuclear-aged society functioned 60 years ago. That is going to require a heck of a lot more work than a quick fix solution created by the group of people that are at the root cause of many of these issues in the first place.

Revolutions don’t need to take place at the point of a gun. The transformation in society between 1979 and 1999 is ample proof that revolutions can be both transformative and peaceful. I just hope the transformation that needs to happen between 2019 and 2039 will be one of cooperation and not confrontation.

– Kevin Feenan

The general population has a right to be angry about what has been going on. However the rash of arrests, finger pointing, and blame is not showing leadership in solving the root cause of the problem. All these tactics are doing is to confound one problem with another.

Regardless of who knew what – the surface problem is the journalistic ethics which found it okay to violate individual personal privacy under the guise of the public’s right to know.  This really shouldn’t come as a shock to anyone that reads the daily news with an eye towards tearing down good people and who are only human. No one can stand up to the type of scrutiny that tabloid press puts on people. They take the private lives of individuals and then use every method at their disposal to “get the shot” – whether that means renting helicopters to invade weddings, or rummaging through someone’s garbage, or hacking someone’s voicemail.

This isn’t the root problem however. The root problem is a social culture that finds this type of tabloid news reporting to not only be mandatory, but rewards those organizations that can dig up the best dirt with a financial win fall in advertisers, subscribers, and ongoing rights.

The problem is us.

We demanded it and didn’t bother to ask what lines were being crossed so long as the news had that latest, greatest tidbit about Angelina Jolie’s thighs or who Jennifer Aniston is shacking up with this week. People give power to these organizations to do things we would otherwise find distasteful. And every time a news organization manages to up the bar – we buy more. The more we buy the more it gives credence to any ethical or moral standard so long as the public buys it.

It becomes engrained within those organizations as a culture which says “it’s okay to do this – you don’t need to ask permission so long as the ROI keeps going up”.

The problem quite often stems from “legitimate” uses of certain techniques, such as voice mail tampering, when the net benefit is for something that really matters. Such as political corruption. How many important public stories would never have seen the light of day if someone hadn’t used these techniques?

Originally, there may have been some initial public benefit with ethical and moral limits to the usage of some techniques over others to get a story. However over time the original intent of these limits become lost as people move onto new jobs and don’t pass on the lessons of the past to guide those making our future. In short – what once was only permissible in limited circumstances, quickly is adapted for other uses for which it was not intended.

I can envision a situation now where the people at the News of the World are sitting around with these dumb expressions on their faces – realizing that some people went too far – but also trying to figure out how they were suppose to change a situation that was ingrained into the culture of the organization.

Think about this for a moment – how many things happen in your place of work that are morally or ethically wrong but you feel powerless to do anything about. If you raise it as an issue you are quickly put down, or worse – fired for being a trouble maker. If you do nothing, then you are guilty by association. If you take ownership and try to fix the situation you are again quickly put in your place for impacting productivity or the organizational brand.

People are not rewarded for doing the right thing – the are rewarded for doing the thing that benefits the most people in the shortest amount of time. And if that means stepping across the line a few times, well that is all well and good so long as the profits continue to roll in.

It is, in my view, a social injustice when organizations become so myoptic in their view of what they are doing that they fail to realize how important a strong internal culture is to long term productivity and growth. That means being willing to look at practices at all levels of the organization and say to themselves “what is wrong with this picture”.

I could excuse a small mom-n-pop organization as it is difficult enough to make ends meet without having the resources of an international bureaucracy at their beck and call. Multi-National organizations however have the resources to be asking themselves this question all the time. They should do so. It won’t necessarily catch every breach of ethical or moral standards but it will at least put in place a culture in which every member of the organization is trained to highlight problems rather than sweep them under the rug.

Do I fault New of the World for what they have done. No – as this type of scenario was inevitable with some news organization somewhere (notice no one is taking Fox News to task over what it may or may not be doing currently). What I do have a problem with is the lynch mob that has developed out of the turmoil when what we need is a solid discussion on journalistic ethics in all news organizations, not just News Corp.

— Kevin Feenan

For example, copying video, music, or graphical images for personal use. 

One of the essential problems within a society is the fact that once an idea is put out into a public space – it is there for everyone to see and make use of regardless of the mechanism by which it was originally distributed. You can’t stop an idea once it has been released to the universe.

One of the other problems is that for certain ideas, there are only a limited number of ways of expressing that idea  regardless of when anyone in the past 10,000 years came up with it. The law of additive identity in mathematics for example (a + 0 = a) is true in all cases and cannot be expressed in any other way. Once that fact is known and ‘turned loose’ in society, you can’t go back and start charging everyone a royalty every time they add zero to a number simply because you were the first one to come up with the idea or the first one to actually ‘codify’ that specific truth.

Similarly, for a society to work, there has to be agreed upon standards by which everyone knows what the heck everyone else is talking about or trying to say. For example, I could re-express the additive identity by saying ($ ~ 8 / a). If you refine the rules of what makes a mathematical expression understandable then you could, in theory, come up with hundreds of different ways of expressing mathematical formula that wouldn’t infringe upon the original owners intellectual property. Of course it would become quickly apparent that no one would understand anyone else. While this might be a great boon for Accountants, for the rest of us we would quickly start to adapt the way in which we felt our network of contacts was working irrespective of whether it was legal or illegal.

This is because the underlying require to understand each other and build community will always trump individual rights to make a living from intellectual property which it is unable to control the methods of distribution. Which, quite plainly, sucks if you are the one that comes up with the idea in the first place, but is essential for society as a whole to grow and prosper.

What got me on this topic was a twitter I received yesterday talking about Lodsys’s harassment of Apple App developers over the use of the “upgrade / buy now” button which Lodsys claims to own the intellectual property for. This bothers me on two very important accounts

Scales of Justice Don’t Balance

The fact that large corporations, in order to enforce their claim to a copyright infringement, which in many cases is dubious to begin with, will go after those people who are unable to fight back. As a society we deem that the right to prosecute or to undertake a defence should be born by the people who are involved in the case.

Unfortunately the cost of a legal prosecution or defence is so expensive that many people cannot afford to undertake such an endeavour without potentially going into bankruptcy. The justice may be blind but the scales are almost always tipped in the favour of those with the legal team with the greatest number of resources behind them (money, labour, etc..).

As a democratic society, it is in the best interests of everyone concerned that when issues go to trial, both sides have equal access to appropriate resources in order to properly represent legal research findings, case law, and opinions. When one side can bring to bear unreasonably overbearing legal representation, such as in the Sony vs. Hotz case, the results are devastating not just for the immediate financial settlements, but also for the in appropriate legal precedents that are now entrenched in case law which can be used by others.

When your view of the universe is so myopic that all you see is the immediate financial / commercial implication, what remains is the start of a slippery slope which others will use to their advantage regardless of the harm to society as a whole.

Abdication by Governments to Intervene in Cases of Fundamental Justice

This brings me to the second fact that bothers me about the implication of cases like this. The abdication by Governments to represent the long term interests of the societies that they govern.  In Canada for example, Section 7 of the Canadian Charter of Rights and Freedoms states:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

The principle of fundamental justice has many aspects which must be satisfied including principles of

• Arbitrariness (i.e. lack of)
• Vagueness (i.e. lack of)
• Requirement of Mens Rea (i.e. a guilty mind)
• Right to silence
• Etc..

Two specific aspects of the concept of fundamental justice are the principle areas in which governments fail to live up to their requirement to promote a healthy and prosperous society.

The first is the idea of ‘overbreadth’. This is usually defined in the context of government brining “disproportionate interference” with an individual’s rights. The problem here is that the concept needs to extend to all legal proceedings, not just those involving government stakeholders as the government holds in-trust the outcome of any proceeding for which overbreadth occurs.  While it may not be possible in all cases to identity which cases brought before the Court are more important than others, there should at least be some independent review which establishes the protection of the public from corporations and others whom would use the principle of overbreadth to their unfair advantage.

The second is the right to make full answer and defence which includes the right to consult a lawyer. The problem here is that not all lawyers are created equal. It would be presumptuous to assume that a public defender being retained through some form of legal aid is going to be of the same calibre, or have the same dedication, as one that is retained full-time within a given industry mega-corp including stock benefits and an indexed retirement pension. While the technicalities of the right may be preserved, the balance is certainly not.

Level Playing Field

The principles of justice should include a level playing field. Whether these types of issues have always plagued society or it has just become something that has been occurring with increasing frequency since I started to notice this in the 1980s I don’t know. What I do know is that the legal system in many ways is broken and needs to be fixed.

For example, why should a company like Lodsys be allowed to railroad small independent application developers when the intellectual property they are claiming the right to was originally developed by Xerox PARC back in the 1970s, subsequently improved upon by Metaphor Computer Systems in the 1980s and eventually sold to IBM in the 1990s. Anyone with the intelligence of a fried noodle and an internet connection can find this out in 5 minutes.

It shouldn’t take Apple and a small army of lawyers to figure out how wrong lawsuits like this are and to have them thrown out of court. While I’m not a big fan of Apple Corp, at least they have the kahunas to stand up and do the right thing for their development community on occasion.

– Kevin Feenan

Certainly there have been other attacks on global civil liberties beyond this simple area. Net neutrality and digital rights management has been a central theme of copyright and internet law for years as political systems have been trying frantically to keep up with the pace of change. It appears however that we are entering a period of time where these institutions are starting to catch-up and, as has been referenced here in the past, are mired in a mindset that is 50 years out of date.

Symbolic of this change is a bill before a Senate committee S. 3804 Combating Online Infringement and Counterfeits Act. This bill on the surface provides for some sweeping changes to the way information freely flows across the internet by creating a series of “blacklists”. The Internet equivalent of a “no-fly list” with all the pros and cons associated with the way the US Government handles it current “no-fly” policy.

The bill states “On application of the Attorney General following the commencement of an action pursuant to subsection (c), the court may issue a temporary restraining order, a preliminary injunction, or an injunction against the domain name used by an Internet site dedicated to infringing activities”.

Allow me to put this into plain English. Anyone that sues in court can petition the Attorney General to blacklist the site until such time as the guilt or innocence of the organization being sued has been established. In other words, defendants can be punished without due process.

This is a major assault on net neutrality if the bill is allowed to pass as is. Beyond the ramifications for copyright violations, which our society is still trying to resolve in a fair and equitable manner, this bill could very easily serve as a basis for opening the door for more severe curtails of free speech. Remember that the legal system works on a basis of precedents that establish the moral and ethical implications of an action and whether such action can suitably be used to justify other potential actions in the future.

For example, Wade vs. Roe is the classic example of how, as social morals and ethics change, the nature of right and wrong within the legal system is drastically altered. Let’s assume for a moment, that at some point in the future Wade vs. Roe gets overturned. In addition to a whole series of legal adjustments around Roe’s central argument of involuntary servitude comes the ability of the pro-life movement to argue that materials which promote an illegal act are more substantive than copyright infringement and therefore should be subject to similar blacklisting.

That is not to say that such a reversal would lead to massive book burning but certain you just know there is some redneck judge in the Southern US which is just itching to make new law on the back of a Wade vs. Roe reversal the moment it comes about. This is of course the extreme position but the law doesn’t get to be as screwed up as it is by consider what a death by 1000 cuts means as, similar to science, every tenet of fact needs to be proven even though the fundamental nature of human beings is very predictable in certain circumstances when taken as a social grouping rather than as individuals.

So back to the matter at hand — It would seem that we are now entering a period of relative calm with regards to the social implications of an online virtual society whereby legislators can reasonably look at the social implications and start to make law around it. The danger however is that this progression of innovation is not stable nor complete. Essentially law makers are trying to develop policy using stone age tools without knowing what the end product is going to look like, thereby missing the point of how good law should be written.

I’m not claiming here that the principles behind why this bill came into fruition are illegitimate. What I am claiming however is that the world is still dealing with a lot of chaos and uncertainty which has led to a more fundamental shifting of the way people think and interact with each other such as at no other time in the history of our planet. Certain aspects of this bill I can’t see going through as is. There needs to be some protection from malicious prosecution. But beyond that, almost any bill, policy, or law that is trying to define what society will look like 25-50 years from now once things have become more stable should contain a sunset provision as part of the make-up of those bills. This would allow legislators to see if the provisions born out of current social chaos really are social trends or whether they are simply a knee jerk reaction to something that is much larger than people wanting to create derivate works as a means of self expression.

At least they got one thing right – There is rampant online infringement being carried out. I only hope that at some point the lawmakers come to realize how much they are infringing on society’s ability to find its own way into the online future without undue restriction from bureaucracies or multinationals.

– Kevin Feenan

Case in point. Residents of a virtual world environment called Second Life enjoy a certain amount of anonymity when it comes to revealing who they are. You sign-up for a free profile, select a name, and away you go. This is nothing new or subversive in any way. People have been using alternative identities to tell their stories for hundreds of years. Consider the game dungeons and dragons (the old school one – not the electron versions). People are often known by the characters they choose to represent and assign names of historical or personal importance as part of the role playing experience.

Gamers do this all the time. From XBOX to Playstation to World of Warcraft to Second Life. It is a means of developing confidence in oneself by insulating yourself from looking foolish during the learning and development process. This is a very common psychological phenomena that people are often more at ease with risk taking when they don’t have to put all of themselves on the line.

Then there is the aspect of personal privacy and security. Some people just want to be able to interact with others without having to worry that some nutcase is going to wind up on their front door step. Only once they are comfortable with someone are they willing to go that next step to provide more information. Sound familiar? It should because its something that everyone who has gone to a bar or college has done or experienced at some point in their lives.

The idea of a virtual personae will often times extend beyond the limited circumstances of the role play scenario and cross over into everyday life. Those people who go to work dressed up as Captain Kirk for example. For the most part its harmless. More importantly however it allows us to tell our stories, those narratives that are important to us as individuals, in a ways that are imaginative, unique, and memorable. Everyone has a fish story, but we remember the ones by “Old Man McKinley down the road yonder” because the personae is larger than the individual and in so doing provides a contextual means of connecting with others that just doesn’t happen under ordinary circumstances.

So – back to my case in point. There has been a series of recent terms of service violation reports by some anonymous person (who I’m not about to justify by stating his/her name or website – check Google if you are really that interested) who is searching almost every Facebook profile seeking out Second Life residents for the expressed purpose of having those accounts banned. To be fair the Facebook TOS does have a provision that says people are expected to use their real names in establishing a profile. However this is not the way the service is being used and I would hazard a guess that at least 50% of the profiles on Facebook are bogus if you were to compare birth records.

You don’t need to look at Second Life residents to see this principle in action on Facebook. Look at any number of the applications and groups related to things such as World of Warcraft, Triumph, Plane Crazy, etc. A good percentage of the profiles used are clearly alternates to a main profile or just simply in no way representative of who the person is in real life. This is probably one of the most broken TOS aspects of Facebook imaginable. Nor does Facebook have a mechanism by which people can verify their identity. To say that Second Life residents with profiles on Facebook are corrupting the moral fabric of the online community is akin to suggesting that children watch Saturday morning cartoons are going to grow up to be violent offenders. Is there an influence, sure. Is it corrupting the moral fabric of society, absolutely not because at the end of the day most rational people understand the difference between constructive social interaction regardless of whether you are dealing with Kevin Feenan or Phelan Corrimal.

I would in fact take this one step further. Linden Lab, the developers of Second Life, actually have very strong identity proving processes included as part of their environment. Something Facebook doesn’t have. The likelihood that a hard core Second Life resident has been both age verified and confirmed their identity through an independent 3rd agency is greater than 1 in 3. Beyond this, all educators have to provide proof of having gone through a police background check if they have any intention of working with those under 18 years of age on the teen grid. If there was a true argument to be made that any particular group needed to be the front edge of the wedge for deconstructing the “avatarism of the nation”, Second Life is not it.

So what is driving this move? Fear maybe. Paranoia of what a world might look like where you could be defined not only by your legal name but by the personae you choose to wear in telling your story the way you want to. In point of fact however we are already there. Virtual world environments are simply providing a much more visible look into what lies beneath social norms and values in our society at large whether you are talking about bars, gaming, virtual worlds, social networking platforms, or personal ads. There has always been this undercurrent of people wanting to risk while at the same time not wanting to be hurt in the process.

I would think that anyone who fears what the future holds should really take a very strong look in their own backyard first before using a measuring stick that changes scale based on context. If you are fighting for a fundamental concept of human-social interaction then you can’t eradicate a single symptom and assume you’ve found a cure. You need to understand what it is you are fighting for and then need to realize that fundamental paradigm shifts in social paradigms are not fought on a single battlefield.

Clearly this person doesn’t understand what it is they are fighting for and that is unfortunate because even if they are somehow right, they have already lost the war despite the havoc they are wreaking on the battlefield. They have also lost any potential to open up true dialogue on what their issue is really about. And that I feel diminishes us all regardless of which side of the argument you are on.

Essentially what he was talking about here is the right of avatars to be declared legal entities under the law. While this may seem inappropriate under the law, the precedent for this has already been established in the form of corporations who have for centuries been considered to be legal persons. In fact the opportunity for the creation of new law in this domain isn’t quite as far off as people would generally think.

Consider the ongoing practice in Second Life of corporations to establish one or more avatars whose function is specifically to hold land and create content (terraform land, buildings, programming, graphics development, etc..). While this is specifically against the Second Life terms of service the practice is becoming more wide spread owing to the not so unique issue of employee turnover within corporations.

On a small scale it has been an ongoing issue that when two or more business partners in SL split, the assets go to the owner irrespective of copyright and intellectual property. So for example, if I create a development complex for a business and the person to who I turn the creation over to leaves the company, that person could technically walk away with copyright and intellectual property that was never specifically contracted to him/her in the first place. However, because they are the owner, they could take everything and run leaving the business high and dry with very little recourse.

To combat this, businesses have taken to setting up ‘administrative’ accounts for which the organization has a greater degree of control rather than the individual. So when an employee leaves, the organization can ‘lock out’ someone from their various accounts and once a replacement is hired, put that new person into the same avatar role as the previous person. As an aside: Yes I’m aware of the complexities that involves and how easy it would be to circumnavigate however at the moment this is the level to which the technology allows us to establish some level of audit and accountability.

So herein becomes the problem: I have an avatar which I use for both work and off hours. And lets say just for fun that I created my avatar first and the company I work for developed a presence after the fact. I create some form of intellectual property using that avatar which then develops to the point where it can be monetized – who owns the IP?

Immediately we are into a turf war over legal terms of service because ever since Mr. Gates pulled out the rug from under IBM with the introduction of DOS, most organizations now include terms in their employee contracts that say any IP developed using company resources belong to the organization and not the employee. Loosely translated this applies to pretty much everything someone does so long as a single dollar of value can be traced back to the organization for which that person works. So once an avatar which is used for both work and play starts to create things the organization’s terms of service and Second Life’s terms of service immediately are irreconcilable as they contain two mutually exclusive provisions for copyright and IP.

The assignment of legal standing of an avatar then gets called into question and is something that eventually needs to be clarified in terms of a right to own and control IP. However businesses have a genuine need that such rights must necessarily survive the death of the agent behind the avatar – essentially having the requirement to treat an avatar as a business within a business each of which have the same set of legal rights, privileges, and obligations.

This opens up a whole new level of complexity within society then because if an avatar has the right to control copyright and IP independent of the agent behind the avatar, then it is not too far a walk to establish that such avatars would necessarily have the right to purchase real assets (land, other businesses) for which current legislative and regulatory rules and regulations are not adapted to address.

For example: Persons can marry; Businesses can merge; so Avatars with legal status as individuals under the law and whom are necessarily neither persons nor businesses can …. what ?  marge? Its not exactly going to be simple having to sort out all of these issues at a time when technology is the driving force behind social adaptation rather than social narratives. It is no wonder post-modern ideologies have replaced traditionalism as the dominate mechanism for adaptation as it seems to be the only mechanism by which individuals (real individuals) can cope with ideals that have no easy method for reconciliation.