October 28, 2003

Caveat Emptor

One thing I hate about blogging sometimes is that bloggers are, whatever their political persuasion, a bit lazy and reactive. They find a source of information and they link to it and treat it more or less as gospel: there’s very little investigative spirit, very little curiosity. More than a few bloggers (and blog readers) have gotten burned by that tendency over time.

I’m seeing that now a bit with the Swarthmore-Diebold story. Let me say at the outset that 1) I’m proud of both the student groups involved for posting the memos in the first place and 2) these memos are of urgent public concern and Diebold has no business trying to suppress their circulation.

In fact, you couldn’t imagine a better confirmation that Diebold is not to be trusted to manage an election for dog catcher, let alone something important, than their conduct at the moment. I don’t care what your corporate interests are: if you’re involved in the business of provisioning technological infrastructure for voting, then everything you do should be one hundred percent transparent at all times—as well as everything you do wrong, which Diebold appears to have done plenty of. (The latest news, that Diebold is maintaining that their filings of DMCA notifications do not necessarily mean that these documents are authentic, is especially hilarious: if that’s so, Diebold has no legal right whatsoever to be filing DMCA notices.)

However, I see a number of websites (Ernest Miller and Sivacracy.net among them) repeating what they’re finding at the Why War? website as if it’s the absolute gospel truth, and exhibiting zero curiosity about the totality of the story. In so doing, I think they’re falling for a very self-conscious bit of agitprop mythmaking by Why War?, agitprop that I think is a good example of a common and characteristic mistake of campus activists in general.

I say that as someone who made that mistake myself once upon a time—which I know is the most infuriating, condescending, insulting thing that a rapidly prunifying aging fart like me can say. Ok, so I’m being a jerk. Sorry. Anyway, it’s still a mistake. The mistake is, when denied easy or straightforward access to the target of your activism, when involved in an activist project that takes laying a lot of foundations and settling for methodical achievements, to get impatient and decide to stick it to The Man Upstairs instead, aka the college administration.

Here’s the deal. Posting the Diebold memos: good idea. Everybody should do it: it should be a national fad. So Why War? did it. Good job. Then we got the inevitable takedown request from Diebold.

Swarthmore’s current policy on DMCA takedown requests is as follows (it’s pretty standard). If we get a notification of copyright violation, we notify the offending party that they have to take down the violating materials. The DMCA states that we must promptly notify the notifying party that the material has been removed, which shields us from liability. The person who had the material can file a counternotification. The party who believes they hold copyright then has a set period of time to file a court order, at which point it’s between the two parties, with Swarthmore shielded from civil liability and uninvolved in the dispute. If the party claiming copyright doesn’t file a court order, the counternotification entitles the original poster of the material to return it to where it was at the outset.

Now I am not a fan of the DMCA in a great many ways. But complying with these provisions of the DMCA seems like a pretty good idea to me on two fronts. First, no college administration is going to deliberately eschew compliance if that opens the college to civil liability, nor should it. I don’t care if you’re Leon Botstein. Hell, you can be Kevin Mitnick for all I care: you aren’t going to do it, and you ought to be canned if you do. In fact, you ought to be open to legal action yourself, given that the trustees of a college like this one have a legal obligation to look after the assets of the entity which they oversee. (I might mention that our nice big fat endowment is why we have the generous financial aid that we do, not to mention the low faculty-student ratio, but that's probably laying it on thick).

Second, the safe harbor provisions are one of the few things in the DMCA that have a progressive side to them, in that by shielding ISPs from liability, they allow ISPs to not care about what their customers do up until the moment they receive notification. If ISPs were open to liability for any content a customer might distribute, every web page and email would require prior approval from an ISP to disseminate. Including this blog. Bye-bye Internet. It's true that the notification procedure can be and often is being scurrilously abused--as Diebold is doing--but the safe harbor part is important, and challenging the abuses of notification is going to take statutory reform, in my opinion.

We have two student groups here interested in this issue. One of them, the Swarthmore Coalition for the Digital Commons wants to comply with DMCA (like the college wants to) in the hopes that Diebold will back down, which I think is a reasonable hope born out by circumstances elsewhere (and it’s a hope that I think at least some in the college administration share). This group is prepared, possibly with the help of the Electronic Frontier Foundation, to follow with a legal challenge should that prove necessary.

And then we have a second group, Why War?, that not only wants to violate the college’s DMCA compliance policy, but that publically announced at a meeting with administrators that they were going to do so, and has continued to do so to announce this on their web pages. This is a group whose leader asked Slashdot readers to mailbomb the Dean of Students, by the way, which isn’t exactly Brilliant Move #101 in the manual on creating alliances, including with people who care about netiquette who might otherwise be sympathetic. I’m sure the “college administrators side with the forces of darkness” narrative is a comforting and instinctively persuasive one for many reading about the story, but it doesn’t fly in this case. It’s pretty classic activist-martyr stuff.

When you announce you’re going to ignore a compliance procedure that shields your institution from civil liability, I think there’s a pretty good case to be made that the institution ignoring that announcement would reopen the institution to liability. Under those circumstances, I’d do the same thing as what the college administration is doing, shutting down people inside the swarthmore.edu domain as they post the Diebold documents even before the college gets a notification from Diebold, because the DMCA standard is if the ISP is clearly aware of a violation, if a violation has been brought to its attention. If Why War? had been discreet enough to keep its movement of the documents subrosa (as Internet-aided activism brilliantly allows) then that would have been different. That would have been smart mob stuff; right now they’re acting more like a IT-challenged mob.

It’s also very different from passing the material along to the next .edu domain you can find, where the DMCA clock starts all over again. That’s brilliant civil action, because it uses the law in its favor. Activism is not about breaking the law because the law is always a good thing to be broken. It’s not about picking fights with the nearest available straw man (the college administration) because you know that the hapless administrators are going to have to meet with you and listen to you—unlike Diebold representatives. Activism is about results. Why War? is, as it has sometimes in the past, preferring high drama over results, and not thinking much about the consequences in the meantime.

It’s also interesting to see how the story mutates as it moves along. Now Sivacracy has the students being “punished” because they link to the documents. No, their Internet access is being disabled until they’re in compliance. I suppose you could gloss that as a punishment if you want to, but it is neither intended to be, nor I think fairly described as such. We'll find out if the college is "punishing" anyone merely linking to the Why War site, because I've done so here.

If Swarthmore could do one thing differently, it would be to move to a DMCA interpretation that assumes liability only over content hosted directly on the site. At the moment, the college’s IT administrators are using an interpretation that encompasses direct links to copyright-violating content as well as directly hosted content. I think that’s a mistaken (if common) interpretation of the requirements of the law, and so do a lot of other scholars and observers. But even then, I’d rather we make that change in policy in a considered way, with a full awareness of what we’re doing.