by Mike Masnick
Wed, Jun 6th 2012 8:30pm
by Mike Masnick
Tue, Jun 5th 2012 3:29pm
Vibram Boss: IP Enforcement Is A Waste Of Time; You're Better Off Building A Relationship With Customers
from the good-for-him dept
"Candidly, you have to realise that intellectual property only gets you so far," says Mr Post. "At the end of the day it's really about your relationship with the consumer."What the company realized was that focusing on lobbying and enforcement just wasn't effective. Instead, educating customers on the difference between real and fake Vibrams, and showing why they'd want to buy the real ones (i.e., giving them a "reason to buy") was much more effective. The company put up a page showing customers how to spot a fake, and saw that it worked.
Vibram offered vouchers to customers who had unwittingly bought fake Five Fingers, so that they could buy the real product at cost price.Amusingly, the article quotes Susan Scafidi, a professor who is well known for her support of ratcheting up intellectual property laws on fashion/clothing, suggesting that Vibram speaking out and connecting with its customers on this issue was a mistake: "It was a risky move, according to Ms Scafidi, who says that a company associating its name - however tangentially - with counterfeit goods could damage its brand." Beyond the fact that she was empirically wrong about this, that makes no sense. Being open and honest with fans, and explaining why they'd want to support the company whose product they like (and why counterfeit products are inferior quality) seems like a smart strategy. It's hard to see how that could "damage the brand" at all. In fact, it seems almost guaranteed to do the opposite, as it appears to have done here.
The company also put up a page on its website alerting customers, enlisted the help of bloggers and asked fans of its Facebook page to get the word out.
Within a year, the deluge of complaints from customers who had bought fake products slowed to a trickle.
While the company still does seem to be interested in some legislative changes (and is taking legal action against a competitor), it certainly seems like a case where a company has realized that there are better ways to deal with these issues than just using intellectual property law.
by Larry Downes
Mon, May 21st 2012 2:38pm
from the parallel-parking dept
The short answer: no one takes either very seriously.
According to a recent article in L.A. Magazine, only 10% of parking citations ever get written. Which is to say that 90% of the times that people park illegally, there are no consequences. Those who violate the increasingly strict parking rules in most U.S. cities are more likely to associate a ticket with bad luck or personal hostility against them than with the fact that they broke the law.
In other words, when you get a ticket, you don't feel guilty. You feel victimized. As John Van Horn, the editor of Parking Today, explains, low levels of enforcement undermine the deterrent intent of parking laws. "We break the law often and get away with it. Deep down inside we know that. What makes us mad is getting caught the few times we do. 'Ninety percent of drivers on this street got away scot-free today, but I get the ticket?' That makes us crazy."
Part of what drives us to rage at getting a ticket is that we don't actually believe parking should be illegal in the first place. The freedom to park wherever there's space is deeply ingrained in the American psyche if not the law. The invention of the parking meter in the late 1930's was greeted with near-riots across the country. Editorials railed against the new devices as "illegal," "immoral" and a "perversion." The Alabama state Supreme Court declared meters unconstitutional in 1937, and ordered them removed from Birmingham streets.
"I truly believe that when men and women think about parking, their mental capacity reverts to the reptilian cortex of the brain," says UCLA's Donald Shoup, perhaps the nation's only academic devoted to the study of parking.
A law that is rarely enforced—indeed, which is not cost-effective to enforce except sporadically—is no law at all. Which brings us to copyright.
Overprotective and largely unenforced rules, combined with a deep-rooted sense of entitlement, create an explosive combination. The problem is the same with parking and copyright. As copyright law becomes more strict, and its penalties more byzantine, Americans are less likely to make the effort to follow the rules, or to believe that new forms of technology-enabled copying are immoral in the first place.
We refuse to see our behavior as illegal, even when we know it is. Recent surveys by the Pew Research Center, for example, report that 72 percent of Americans between ages 18 and 29 "do not care whether the music they download onto their computers is copyrighted or not." Rightly or wrongly (if those terms even mean anything anymore in this context), the added penalties, extensions, and limits on copying, along with decreasing rates of successful enforcement, are making it less, not more, likely that Americans will obey the rules.
We are collectively living in a state of cognitive dissonance, uncomfortably embracing two conflicting beliefs at the same time. Copying is illegal. Copying is not wrong.
Where did we get the idea of a right to free content? In large part, from the content producers themselves. An older generation grew up with music, movies and television programs beamed directly to their televisions and transistor radios at no charge. Those consumers can't understand why saving content onto some medium and enjoying it again or later should suddenly transform a strongly-encouraged behavior into a felony.
A younger generation, raised on cheap Internet access, was likewise encouraged to enjoy all manner of copyrighted materials freely and frequently by content providers who wisely chose to rely, as their predecessors did, on advertising and other indirect revenue to pay their costs and generate profits. That's the message of newspapers, magazines, and broadcast networks who offer some or even all of their content without a paywall. And the movie industry teases consumers mercilessly with trailers, interviews, and production blogs that show just enough of upcoming movies to make us feel entitled to see the rest, one way or the other, the sooner the better.
Yet when fans enthusiastically encourage others to embrace their preferences by posting clips or copies of popular content to YouTube or by ripping CDs and DVDs to repeat their enjoyment on other devices, they instantly cross the legal line from well-trained consumers to dangerous criminals—even terrorists.
Copyright may be the law, in other words, but it no longer holds any moral authority with most consumers. There's no longer an ethical imperative to obey it or even understand it. Self-enforcement is fading, and the rules are so severe and so frequently violated that effective legal enforcement has become nearly impossible.
It's a meter, and we all know that the meter is rarely checked. Copyright is a law in name only—as obsolete and irrelevant as rules still on the books in some jurisdictions that regulate who can or must wear what kind of clothing.
Next: How making the law stronger makes the law weaker »
by Glyn Moody
Fri, Apr 6th 2012 12:23am
from the coming-your-way dept
ACTA and TPP have much in common. That's no coincidence, since they are both born of a common desire to move away from multilateral forums like WIPO that are relatively open to scrutiny, to invitation-only groups negotiating behind closed doors. That lack of transparency has allowed all kinds of extreme measures to be proposed without any countervailing arguments being heard about why they are neither fair nor sensible.
But in many ways, what's really interesting is how the two treaties differ, because it's clear that in many places TPP goes well beyond ACTA -- it's not simply a transposition of ACTA to the Pacific Rim. As such, those differences represent the next turn of the copyright enforcement screw, and give us a fascinating insight into where the copyright maximalists are likely to be pushing for more when it comes to drawing up successors to ACTA and SOPA, say.
That fact makes some recent work by Carrie Ellen Sager particularly useful. She has prepared a detailed comparison of the US proposal for a TPP Chapter on IP (the only information we have on TPP so far) with the relevant sections of ACTA. There are two versions: a full comparison table (pdf) and one with the highlights (pdf). In what follows, I'll be quoting from the latter.
Here's a typical way in which TPP is even more stringent than ACTA:
Under ACTA, a country may give its authorities the power to force an ISP to identify an infringer to rightholders, subject
to certain conditions. Under TPP, a country shall establish administrative or judicial procedures for forcing an ISP to identify an infringer to rightholders, without ACTA’s conditions.
That's important, because much of ACTA is optional in this way: TPP indicates how the copyright industries will be pushing to turn its frequent use of "may" into "shall" when it comes to implementation. They will be able to do that because ACTA sets a floor for enforcement, but allows signatories to go beyond its terms if they wish.
On "Technological Protection Measures" TPP has two nasty turns of the infringement screw:
TPP goes beyond ACTA by applying provisions on technological protection where circumvention is carried out unknowingly or without reasonable grounds to know.
TPP goes beyond ACTA by explicitly limiting the possible limitations and exclusions to the TPM circumvention rules, while ACTA gives a country free reign to create exceptions and limitations it finds reasonable.
The second of those is particularly troublesome, since it reduces the scope for signatories to introduce more balanced copyright laws even if they wanted to.
In the criminal penalties section, there are the following differences:
TPP goes beyond ACTA by omitting safeguard that such penalties shall be consistent with “the level of penalties applied for crimes of a corresponding gravity.”
The net effect of those changes is to make the criminal penalties much harsher, and to push for them to be applied in every case. The last of the above differences means that even casual copyright infringement caused by swapping files with friends might be subject to criminal penalties.
TPP goes beyond ACTA by requiring party members to establish policies or guidelines to “encourage judicial authorities to [actually] impose those penalties.”
TPP goes beyond ACTA by requiring criminal penalties for copyright or related rights infringements “that have no direct or indirect motivation of financial gain.”
There's also bad stuff on the civil penalties side:
TPP goes beyond ACTA by requiring pre-established damages to be "sufficiently high to constitute a deterrent to future
infringement." Additionally, unlike ACTA, TPP provides that in patent infringement cases, the damages may be increased up to three times the injury.
Applying ACTA to patents was made optional towards the end of the negotiations, and it's interesting to see TPP putting them back as compulsory. The other elements make losing even more expensive, which patent trolls will love when they come to make their threats against real innovators who will be forced to pay up rather than take a chance of being hit with crippling damages.
TPP goes beyond ACTA by adding patent infringement to the list of case types for which a losing party may be required to pay court costs and attorney’s fees (in addition to copyright and trademark infringement cases).
As these excerpts make clear, TPP effectively tidies up all the lose ends that ACTA left dangling -- generally imposing far harsher penalties, adding back patents, and making everything compulsory rather than optional. It also provides us with a clear sense of what ACTA 2.0 will be like unless it is negotiated with real transparency that allows all parties, including civil groups and the general public, to have their voices heard.
by Mike Masnick
Fri, Mar 30th 2012 2:58pm
White House's New Report On Intellectual Property Enforcement Should Get A Copyright As A Creative Work Of Fiction
from the maybe-hollywood-can-make-the-movie dept
However, as part of the job, she releases an "annual report" on intellectual property enforcement. Now, as you hopefully know, content published by the federal government cannot be covered by copyright and is automatically in the public domain. But, reading through the newly released annual report (pdf and embedded below), it makes me wonder if we should make an exception here, as it appears to be, in large part, a work of fiction.
There are plenty of questionable things in the report, but I'm just going to focus on a few (we'd be here all day if I dug into even more of the report, but feel free to read and guffaw along with the entire report). Once again, the report seems to assume that "greater enforcement = good thing," despite a near total lack of evidence to support that position. In part, of course, this is the nature of the job itself, so the report has to slant in that direction. But there are some whoppers in the report. Let's dig into a few:
- "Improved transparency in intellectual property policy-makings and international negotiations." Wait, what?!? Yes, this is the same administration that has been the most secretive when it comes to negotiating IP laws and international agreements. SOPA came out of a secret backroom deal in which the tech industry and the public were entirely left out of the negotiations. That's why there was a public revolt over SOPA/PIPA.
And, of course, ACTA and TPP negotiations have been significantly more secretive than traditional IP international agreements as negotiation via WIPO and the WTO. In those negotiations, positions are made publicly. With ACTA and TPP the US government has driven a policy of extreme secrecy, requiring special security clearance just to see drafts, and forbidding other countries from releasing reports. With TPP, the USTR has even agreed that the various documents surrounding the negotiations should be kept secret until four years after the agreement is completed and ratified. This is not transparency at all. It's the opposite of transparency. Saying you're transparent and actually being transparent are two different things.
This is a point where the White House and IPEC in particular could be a lot more effective. It could revamp the entire Special 301 process to make that more transparent and less of a black box where the USTR basically "remixes" the complaints of Hollywood into a report shaming other countries. It could tell the USTR to release its positions and drafts for things like ACTA and TPP publicly so that the public (you know, the real stakeholders) can comment. It could call out the USTR for doing things like participating in an industry-sponsored dinner for negotiators, and partying in Hollywood with MPAA studio heads while kicking civil service organizations out of the hotel where they were meeting. But, instead, it pretends that there's more transparency? That's simply fictional.
Patting itself on the back for including transparency when it's actually one of the most opaque administrations on such issues is simply ridiculous.
- What's not in the report. It's really quite stunning what's completely missing from the report. The omissions are quite telling, however. The report appears to completely skip over what happened with SOPA/PIPA. I mean, it's as if the widespread public backlash and outrage didn't happen at all. SOPA and PIPA are barely mentioned at all, and when they are, it's only to mention briefly how random parts of those bills (not the main parts) included little bits and pieces of the White House's legislative agenda on IP around "greater information sharing." How can a report on the state of IP enforcement completely leave out the biggest thing that's happened in IP enforcement in decades? The fact that the public has stood up and said enough is enough on greater expansion of making the government Hollywood's private business model protection service. That's a huge event and to completely ignore it is quite telling.
Similarly, the report completely ignores last year's realization of the serious problems with Homeland Security's ICE's Operation in Our Sites, the program to seize and censor websites based on mere shreds of evidence. While the report does mention Operation In Our Sites multiple times, it's only to self-congratulate itself for such censorship. What it does not mention is that the program resulted in the wrongful seizure and censorship of sites based on faulty evidence, or the fact that it is still illegally censoring a few websites, despite not having filed for forfeiture, as required by the law.
In fact, the report seems so ashamed of the November 2010 seizures -- which resulted in all three of the domains in question being seized -- is completely skipped over in the discussion. They discuss the seizures before that one (in the summer of 2010) as well as the operations in 2011 -- but the infamous November 2010 seizure round is simply being written out of history.
I'd have a lot more respect for Espinel and IPEC if it would actually admit that they fucked up royally with some of these seizures, and then was willing to publicly explain what went wrong, why it went wrong and what the White House is doing to prevent such bogus seizures and censorship from ever occurring again. Instead? It just pretends it never happened at all. That's shameful behavior.
- "Voluntary best practices." The report talks up how there have been a variety of private sector "voluntary best practices" that were "facilitated by the IPEC." This includes things like the infamous "six strikes" plan that the ISPs have agreed to. While "private sector" solutions are good, what this leaves out is that the "facilitated by the IPEC" part was more about effectively threatening the ISPs that if they didn't come up with a plan, that it might show up in a law instead. Separately, the problem with "voluntary best practices" like this are that they really do seem to border on government-sponsored collusion. Getting all of the industry's largest players in a room to make agreements on who to do business with, who to censor and why... and without having it go through government review to avoid abuse? That's generally something the government used to be against. Why is it for collusion in these cases?
- "A data driven government." The report tries to suggest that the government is being more data driven, and less faith-based in its efforts, but that's belied by the fact that nowhere is any effort being made to empirically look at the effectiveness of this enforcement on "promoting the progress." Instead, the "data" the report talks about is the data on how they've taken the same budget and "turned it into a more than 33 percent increase in seizures, arrests, and investigations of counterfeit and pirated merchandise in FY 2010." But if those seizures, arrests and investigations are doing more harm than good, or are leading to false accusations, censorship and bogus (taxpayer-expensed) lawsuits, isn't that a problem? Shouldn't IPEC be exploring that?
Separately, it notes that the federal government is conducting an "economic analysis." That's good, right? But it's not conducting an economic analysis on the effectiveness of this enforcement. Instead, it's conducting an economic study that, by the very setup of the study, is completely missing the point. It's actually designed to miss the point by starting with the assumption that greater IP is a good thing:
At the request of the IPEC, the U S Government is for the first time conducting an economic analysis, led by DOC, the Economic and Statistics Administration (“ESA”), and the USPTO, working with chief economists across the Federal government, to identify the industries that most intensively produce intellectual property and to measure the importance of those industries to the U S economy This broad study will examine all sectors of our economy We believe that improved measurement of intellectual property linked to measurements of economic performance will help the U S Government understand the role and breadth of intellectual property in the American economy and will inform policy and resource decisions related to intellectual property enforcementAnd, no, I don't know why the report seems to do away with the grammatical icon known as "the period" at the end of sentences. Perhaps it was too expensive to license. Either way, notice that this study seems to assume, without evidence, that industries that "produce" intellectual property automatically require intellectual property laws and protectionism. Figuring out which industries produce a lot of intellectual property says nothing about whether or not those industries actually need intellectual property laws, or if those laws are helpful or harmful. When you set up to study something based on faulty assumptions, the end results will not be helpful.
by Glyn Moody
Tue, Mar 13th 2012 4:12am
European Commission Blames Social Networks For ACTA Failure; Worried About Its Imminent Directive On Copyright Enforcement
from the still-not-listening dept
Now that the EU's ratification of ACTA has departed from the original script of everyone just waving it through, the European Commission is clearly trying to come up with Plan B. Some insights into its thinking can be gained from the minutes (pdf) of a recent Commission meeting, pointed out to us by André Rebentisch.
Here's what the President of the European Commission, José Manuel Barroso, said about ACTA:
The President introduced the topic, commenting on the intensity and scale of the public debate and the organised campaign against the Anti-Counterfeiting Trade Agreement (ACTA). There were those in particular who felt that the agreement would lead specifically to an unwarranted restriction on freedom of expression and democracy on the Internet, and would distort the reasonable balance between intellectual property rights and other fundamental rights.
The suggestion that the anger over ACTA was somehow part of an "organised campaign" looks like a continuing failure to grasp that the protests were about all Internet users across Europe coming together to defend their online community. As for the "common approach" with the European Parliament, it's easy to see why the European Commission would want this: it would allow the referral of ACTA to the European Court of Justice to be framed in such a way as to increase the likelihood of a positive response from the court. It will be interesting to see whether the European Parliament acquiesces in this, or continues to take a hard line on the need for more searching questions to be asked.
He therefore felt that the Court of Justice of the European Union should be asked to confirm the Commission’s position in this matter, namely that ACTA was consistent and compatible with the Treaties and with the Charter of Fundamental Rights of the European Union. He suggested that that day’s discussion should consider that point, but also the question of when would be an appropriate time to refer the matter to the Court, and the possibility of consulting Parliament and the Council with a view to adopting a common approach in this matter.
Barroso's comments were followed by some observations from Karel De Gucht, the European Commissioner with direct responsibility for ACTA, who made some revealing remarks:
He noted that opposition had increased in the run-up to January’s planned vote in the US Congress on two legislative initiatives -- the Stop Online Piracy Act (SOPA) and the Protect Intellectual Property Act (PIPA) -- aimed at increasing the protection of intellectual property rights on the Internet; in the end the vote had not been held, following a hostile campaign by social networks and the loss of White House support.
It's interesting to see De Gucht linking the growing hostility to ACTA with the storm generated by SOPA/PIPA, and giving the credit for stopping those US bills to a "hostile campaign" waged by social networks. You can tell this really worries him, because he says something similar about social networks and ACTA immediately afterwards:
Despite the signature of ACTA in January by the Commission, the Union Presidency and twenty-one other Member States, the intense media campaign which was unleashed in Europe, instigated largely by the social networks, had since led a number of Union Heads of State or Government to decide to delay signature or ratification of the agreement by their national parliaments. He added that the campaign had also had a considerable influence on Members of the European Parliament and, following recent contacts with various political groups, he now felt it would be difficult to muster a majority in favour of ACTA within the EP.
What's extraordinary is that no less than three other commissioners also spoke at the meeting about the importance of social networks, and the need to grapple with them.
She concluded by highlighting the rising influence of social networks on the Internet and the need for the Commission to take account of this in its communication policy and in dealing with various dossiers. Instructions had already been given to the communication units in the Directorates-General.
She concluded by stressing the need for appropriate communication on the agreement, without waiting for the Court’s opinion, targeted particularly at the various stakeholders involved and social networks.
was also of the opinion that the key role of social networks in public debate in Europe forced the Commission to think carefully about adapting some of its means of communication and that Members should discuss the matter as soon possible.
What emerges very clearly from this is that the most senior politicians in the European Union are completely nonplussed by the power of social networks to mobilize not just Net activists but ordinary Internet users, and are struggling to deal with it. I think we can expect to see attempts to neutralize that new force by "reaching out" to social networks in a variety of ways in the coming months. One area where that will clearly happen is for the forthcoming update on the EU's "IPR Enforcement Directive", generally known as IPRED. The Commission meeting referred to it explicitly:
As regards the planned revision of the 2004 Directive on enforcement of intellectual property rights, the Commission needed to adopt a prudent and balanced approach to this politically delicate exercise, and take account of existing texts on the protection of data and privacy in the areas of telecoms and fundamental rights.
The EC knows that it must be very careful here, because the measures already mooted for the next version of IPRED are very close to some of SOPA's bad ideas -- for example, turning ISPs into copyright cops. The European Commission has observed what happened in the US, and is clearly very concerned that the IPRED update will meet the same opposition from those mysterious, uncontrollable social networks as SOPA/PIPA did and ACTA is now doing.
by Mike Masnick
Tue, Feb 28th 2012 12:03am
from the all-stakeholders?-you-mean-we-have-to-hear-from-the-other-side? dept
The African Intellectual Property Forum, originally slated for April 3-5, 2012 in Cape Town, will be rescheduled. Organizers are committed to ensuring that all stakeholders – in government, private business, the arts and the development community – are represented and engaged in the conference organization and agenda.The organizers apparently also sent emails to those who had registered, apologizing to people who had already made travel arrangements.
While it's nice that the Commerce Department has recognized that the original program was no good and that all stakeholders should be heard from -- it would have been much nicer and a hell of a lot more convincing if they had done so originally, rather than just a few weeks before the scheduled event when people started protesting...
by Glyn Moody
Wed, Nov 23rd 2011 5:10am
from the more-is-never-enough dept
The IP Forum is a new platform that intends to trigger a dialogue among parties, experts and policymakers in the areas of copyright and industrial property.In other words, this is designed as another talking shop to give industry lobbyists an opportunity to bend the ear of European politicians. Conspicuous by their absence, of course, are any representatives of those most affected by legislation -- the public.
The main objective is to bring together policymakers and stakeholders from different industries and to reflect on the upcoming legislative and non legislative proposals of the European Commission that are of paramount importance for the competitiveness of the EU economy.
It's also a chance for copyright maximalists to get together and repeat the same unsubstantiated claims about the "damage" caused by piracy and the need for urgent action, as Gallo's first conference, "IPR enforcement in the digital era", makes clear:
Thanks to the Internet, dissemination of copyrighted works has never been so easy. At the same time however, several studies have demonstrated the negative impact of piracy to the cultural and creative industries and to the economy altogether. The transfer of the European Observatory of Counterfeiting and Piracy to the OHIM will enable policymakers to dispose, in the future, of data on the effects of piracy that may not be put into question. In the meantime there is still a pressing need to act.But there simply aren't "several studies" that genuinely demonstrate the negative impact of piracy; the UK's Hargreaves Review looked for some, and this is what it found:
During this conference, we will have the opportunity to listen to Victoria Espinel, the US IP Enforcement coordinator, who will give us an outlook on the current state of play in the United States of IPR enforcement on the internet. We will also exchange our views with several associations and companies on the possible review of the IPR Enforcement directive and also on the specific changes that policymakers should bring about.
The Review team has examined numerous studies, including those in the table above, and a supporting paper looks at the methodological strengths and weaknesses of this work. With the exception of the Industry Canada study, we have either not been able to examine the methodology of the studies or, where we have, we have discovered problems with the methodology. Consequently, we have not found either a figure for the prevalence and impact of piracy worldwide or for the UK in which we can place our confidence.Translated from British English, that roughly means "they're all garbage."
In fact, Gallo herself touches on this key issue when she writes of future "data on the effects of piracy that may not be put into question" -- tacitly acknowledging that the current data can be put into question.
She has more to say about the international angle on her Policies page:
Our industrialized trade partners ... have taken all necessary measures to protect effectively their companies from counterfeiting and piracy. These measures have been welcomed by trade unions. At the same time, through its trade policy the European Union participates internationally to the creation of an appropriate legal framework in order to enable our companies and their employees to benefit fully from globalization.This gives a hint of some of the likely aims of Gallo's new forum: helping to push ACTA's "legal framework" through the European Parliament and perhaps even drumming up support for a European SOPA, just as the US DMCA was transposed into the EU's EUCD. Once again, Gallo's new initiative shows that no matter how much the copyright maximalists get in terms of legislation and treaties, they always want more – and will work in concert to get it.
Follow me @glynmoody on Twitter or identi.ca, and on Google+
by Nina Paley
Fri, Sep 2nd 2011 6:37pm
from the put-the-weapon-down dept
Mon, Jul 25th 2011 12:12pm
from the chaos-theory-at-work dept
I saw information. I saw jokes. I saw supporting views and dissenting opinions. I saw trolls, academics, lawyers, techs, etc. etc. etc. It was true chaos theory at work, with the article setting up a comments section sensitive to the conditions discussed but open to the topological mixing of the wide open world. More than anything else, I think I was most amazed at how this tumultuous soup of free communication provided surprising and useful information, laughter, and references. I was hooked. This was the place for me to offer my view on stories I cared about, read responses from others, get opposing views, and most of all, make more phallic-related jokes than an Adam Carolla on meth.
So that was the background I brought when I read Anil's piece, which he conservatively and open-mindedly titled, "If Your Website's Full Of Assholes, It's Your Fault." Let's dive in:
"The examples are already part of pop culture mythology: We can post a harmless video of a child's birthday party and be treated to profoundly racist non-sequiturs in the comments. We can read about a minor local traffic accident on a newspaper's website and see vicious personal attacks on the parties involved. A popular blog can write about harmless topics like real estate, restaurants or sports and see dozens of vitriolic, hate-filled spewings within just a few hours."I'll thank Anil here, because we immediately get to my baseline issue with this viewpoint. I read all of the above, hear all about how rudeboy knuckle-draggers will show up on the most innocuous article and scream racist nonsense, spout uninformed conspiracy theories, and call you the kind of names that would make Sam Kinison do that screaming thing he did, and all I can think to myself is so what? Words don't hurt unless you let them. I, as someone with an Irish background, can be called a dumb potato-farming mick, and I can ignore it. More importantly, the idiot that calls me that loses all credibility in the formed community. Even if he's anonymous, all such behavior does is provide a reason for the community to couch their faith in comments provided by ACs in skepticism. The community provides a reason to identify yourself, in the hopes that you'll be taken more seriously. In other words, from the chaos emerges order. And not an unnatural kind of order provided by head-in-the-sand policing and moderation. Assholes exist, both online and in real life. So what?
In any case, Anil prescribes us his wisdom-medication on how everyone should run their website:
"You should have real humans dedicated to monitoring and responding to your community."I happen to agree. As does Techdirt, actually. You know who is dedicated to monitoring and responding to our community? Our community! As long as we aren't working from a supposition of "words can hurt," we see our community policing itself just fine. Trolls get called trolls, true. But I've seen dissenters stick up for Techdirt supporters. I've seen Techdirt contributors and those with like-minds stick up for dissenters and their opinions (I know this one in particular, because I make a point to do this, though I'm not the only one). ACs have a tougher road in the realm of credibility because of the way the community polices itself. Those with accounts and names have a tougher road because we have a comment history we have to own up to. It's as simplistic as it is beautiful. And it's all emergent behavior, meaning it's natural and not forced or faked. That's what open comments do: they create fertile ground for emerged behavior. And it's amazing how productive that is.
"You should have community policies about what is and isn't acceptable behavior."Bullshit. And here's why: one man's asshole is another man's prophet. Who am I, or Mike, or anyone else to say what is acceptable and what isn't? Are there things that most can agree suck? Sure. Racism is just plain stupid and ignorant. What does a policy against racism do? Really? "Don't be racist, Techdirt community." Did I just end racism? Did I somehow change the minds of anyone who would read a racist comment and think of it as anything other than pure stupidity to be rebuked or ignored? No, I didn't. So why bother? Remember, words don't have any power unless we give it to them.
"Your site should have accountable identities."No, it shouldn't. It should certainly offer that option. But I've seen value from both sides of the debate on this site coming from Anonymous Cowards. And I know that some of the folks that contribute anonymously here do so because they're afraid of real repercussions in having their names associated with their words. Does that make their words any less valuable? No, it doesn't. And would making some racist, trolling, or ignorant jackwad sign in with a name make his/her words any different? No, it wouldn't. So why bother with this at all? What's the upside?
"You should have the technology to easily identify and stop bad behaviors."Again, unless it's just flatout illegal or automated annoyance, what's the point of this? I think we can all agree that a relatively intelligent spam filtering system makes sense, but that isn't the kind of "bad behavior" Anil appears to be discussing. He's talking about controversial speech. Who is getting hurt when someone exhibits "bad behavior"? And how do you define that? If the site is community driven, shouldn't they be the ones to decide what is "bad behavior" and respond accordingly?
"You should make a budget that supports having a good community, or you should find another line of work."It isn't a matter of cost, it's a matter of reason. What's the point? You're killing off all the good you get from the anonymous and semi-anonymous chaos, and what are you getting in return? People don't have to hear certain words that make them itchy?
I apologize for repeating myself, but I can't say this enough: words do not hurt. They never do. When someone says something designed to inflict pain, you get to choose how to react and respond. If an anonymous coward calls me an idiot and my response is, "Nice argument there, captain logic", then what has that person accomplished? I'm not hurt, they've put themselves on display being a jerk, and the community at large will react accordingly.
Don't lock down your comments. Don't kill off anonymity. Don't pretend the trolls and jerks don't exist. Do the opposite. Open it all up and trust in your community to be smart enough to react accordingly. I know that's largely what occurs here at Techdirt and elsewhere.
And I can't tell you how thankful I am for it and for everyone here, from those that generally agree with us to those that don't. You're welcome here. Forever and always.