October 28, 2003
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: theres very little investigative
spirit, very little curiosity. More than a few bloggers (and blog readers) have
gotten burned by that tendency over time.
Im seeing that now a bit with the Swarthmore-Diebold story. Let me say at the outset that 1) Im 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 couldnt
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 dont care what your corporate interests are: if youre
involved in the business of provisioning technological infrastructure for voting,
then everything you do should be one hundred percent transparent at all timesas
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 thats
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 theyre finding at the Why
War? website as if its the absolute gospel truth, and exhibiting zero
curiosity about the totality of the story. In so doing, I think theyre
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 timewhich I know is the most
infuriating, condescending, insulting thing that a rapidly prunifying aging
fart like me can say. Ok, so Im being a jerk. Sorry. Anyway, its
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
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.
current policy on DMCA takedown requests is as follows (its 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 its between the two
parties, with Swarthmore shielded from civil liability and uninvolved in the
dispute. If the party claiming copyright doesnt 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 dont care if youre
Leon Botstein. Hell, you can be Kevin Mitnick for all I care: you arent
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 its 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 colleges
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 isnt exactly Brilliant Move #101
in the manual on creating alliances, including with people who care about netiquette
who might otherwise be sympathetic. Im 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 doesnt fly in
this case. Its pretty classic activist-martyr stuff.
When you announce
youre going to ignore a compliance procedure that shields your institution
from civil liability, I think theres a pretty good case to be made that
the institution ignoring that announcement would reopen the institution to liability.
Under those circumstances, Id 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 theyre acting more like a IT-challenged
very different from passing the material along to the next .edu domain you can
find, where the DMCA clock starts all over again. Thats 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. Its 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 youunlike 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.
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 theyre 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 colleges IT administrators are using an interpretation that encompasses direct links to copyright-violating content as well as directly hosted content. I think thats a mistaken (if common) interpretation of the requirements of the law, and so do a lot of other scholars and observers. But even then, Id rather we make that change in policy in a considered way, with a full awareness of what were doing.