Wednesday, January 18, 2012

the Wikipedia agenda: civil liberties at the expense of the facts

Having returned to North America from several months in China I can only shake my head at the intensity with which the Wikimedia Foundation (WMF) finds an enemy of freedom in... the United States Congress.

The US government has been an enormous friend of Wikimedia Commons. Last year the National Archives and Records Administration contributed over 100,000 historical photographs to the Commons. So why go after a legislative body that has historically passed legislation that has been such a great boon to the public domain?
The short answer is the WMF took its eye off the public domain ball. If the WMF could convince other governments around the world to adopt the US practice of deeming the work of government employees done in the course of their official duties public domain, it would have a huge impact on the amount of free content available on the Internet. For evidence that the WMF is just not interested, look no further than the fact that, instead of setting an example by having the work of WMF staff deemed public domain, it's deemed "all rights reserved".

Over at Wikimedia Commons I've argued on multiple occasions that although the standard uploading tools direct uploaders towards licenses that range from totally free (public domain) to mostly free, the philosophy of the Commons is undermined by evaders who create their own "custom" licenses in order to add additional restrictions or, at a minimum, add language that appears to discourage free re-use. With the WMF itself being one of the offenders here, my arguments have gotten little traction in discussions that are overwhelmingly dominated by content creators who have an incentive to protect author rights at the expense of users.

Is there any chance that the WMF might support a "Keep the Commons Free" effort in the future? At the moment they are not just distracted by their so-called "Keep the Internet Free" campaign but obsessed with it to the point that the rhetorical excess they have engaged in has created a climate of fear and hysteria about supposedly infringed civil liberties.

On January 18, the Commons ran a banner protesting the anti-piracy legislation. Is this going to encourage anyone in Hollywood to ever donate something to the Commons in the future? Wouldn't a boost to the Commons just create a bigger platform for future advertising against the content industry's interests?

Also on January 18, all editors were locked out of editing the English Wikipedia. Well, almost all. WMF staff reserved the right to keep editing, and did, in particular WMF Executive Director Sue Gardner. What did they edit? A page the WMF took exclusive ownership of, with no opportunity for community collaboration in its development, and, more importantly, no presentation of dissenting views. How did they edit? In violation of community developed policies that included:
- claim after claim, such as "as around the world, we're seeing the development of legislation that prioritizes overly-broad copyright enforcement laws, laws promoted by power players, over the preservation of individual civil liberties" is made with out a single footnote in the whole screed
- In the policy it says "Wikipedia should not offer first-hand news reports on breaking stories." Sue Gardner took it upon herself to advise her captive readers that "As of [update time here] PT, January 18, Google [News] has more than 4,600 articles about the blackout. Here are a few: ...."
- I couldn't help but notice the outrage some commentators on other websites directed at those who suggested ways of getting around the WMF-enforced January 18 censorship. No irony here if one is able to fully appreciate the "we had to destroy the village in order to save it" mentality, I suppose.
- "NPOV is a fundamental principle of Wikipedia and of other Wikimedia projects. This policy is non-negotiable and all editors and articles must follow it," says the policy. We now know that there's an exception for "Wikimedia projects" that politick for "individual civil liberties" and editors with Wikimedia Foundation logins (which are only granted by the WMF). On the blackout page that the WMF monopolized Sue Gardner directed traffic towards the website of the civil liberties advocacy group the Electronic Frontier Foundation (EFF). Who sits on the WMF's Advisory Board? A former founder and chair of the EFF. Former WMF general counsel Mike Godwin used to be an EFF lawyer.
- We're told that "Wikipedians have chosen to black out..." On what basis? A poll, and a poll of a small fraction of Wikipedians. The WMF tells us that "We are doing this for you" but "you", the non-Wikipedian reader, was never asked what you wanted. According to policy, "Elections and votes are only endorsed for things that take place outside Wikipedia proper" yet this "thing" most decidedly occurred ON Wikipedia. The WMF initiated a raw vote (in contrast with the more sophisticated preference rank sorting that personnel elections use) where ultimately the votes of apparent single purpose accounts counted for the same as that of veteran editors. When some editors attempted to steer the proceedings into more of a discussion, a WMF staffer shoved these efforts off into the obscurity of the poll's "Talk" page. That this Talk page was not considered relevant to the "community decision" as far as the WMF was concerned was further evidenced by the fact that the WMF blocked it on January 18 but did not block the poll page.

If Wikipedians have "chosen to black out" a global service and go to war with "Big media" it may be said Americans chose to invade Iraq in 2003. An ABC News/Washington Post poll taken shortly after the beginning of the Iraq war showed 62% support, higher support than for the global blackout of English Wikipedia (which was actually in the minority primarily because so many called for a US-only blackout). The fact of the matter is that the invasion of Iraq was not the culmination of a bottom-up grassroots movement. Likewise, the Wikipedia blackout was the brainchild of Jimmy Wales and the WMF. The editing community went along with it, in large part because they placed their trust in what they were being told.

The truth about SOPA/PIPA

What were they being told? That there was an existential threat to Wikipedia. Wikimedia general counsel Geoffrey Brigham did not mislead the Wikipedia community by painting a demonstrably false picture so much as by painting with strokes that went one way when it served the WMF's desire to politically mobilize the community and with strokes that went the other way when it didn't, such the picture that resulted was misleading and incomplete. He (and many other Silicon Valley-based activists) stretched the language of SOPA/PIPA to the breaking point in terms of breadth of interpretation, while simultaneously interpreting the language of the IRS' prohibitions against non-profit lobbying down to its narrowest. Had an advocate of equal standing been invited to present an alternative view to the Wikipedia community, there would, of course, have been far less reason for concern. Readers could have been pointed to Creative America's "Fact vs Fiction" with respect to the some of the provisions, to take but one example, and invited to draw their own conclusions. Instead, we get Brigham issuing a "call to action" that included directing readers to the virulently anti-Republican website Daily Kos (with DKos in turn directing its readers towards Jimmy Wales' poll). Brigham is also directing Foundation funds towards Washington lobbyists who are registered to lobby not only on "Copyright/Patent/Trademark" which is arguably related to public domain issues (I say arguably because, as I noted at the beginning of this post, there is a lot more that could be done to encourage content owners to voluntarily license their work for re-use as opposed to lobbying for the denial of legal remedies with the result that content owners are forced to allow re-use), but extends to "Civil Rights/Civil Liberties," which has no necessary connection to the definition of the public domain.

Partway throught the blackout Sue Gardner noted on the "Learn More" page (that the blackout page linked to) that the blackout page had received 90 million views and that there were more than a quarter million tweets an hour about #sopa. And just what was being tweeted? "If SOPA passes, there will be no more YouTube, Twitter, Google, Wikipedia, Facebook and many more sites you love to use!" or something similar. What happens when a lie is literally repeated more than a million times? Wikipedia, the information storehouse, played critical enabler to this massive misinformation campaign. According to Gardner, "in its current form, SOPA would require Wikipedia to actively monitor every site we link to, to ensure it doesn't host infringing content." Gardner's claim doesn't rise to the level of hysterical falsehood that the tweets rose to, but it's still highly dubious. If passed, these bills would require the search engines to put in some of the effort that Wikipedia currently puts in into avoiding links to sites dedicated to copyright infringement. Wikipedia is not a search engine and even if it was, the effort that is put in on Wikipedia to help protect copyright is more than enough to preclude Wikipedia ever running afoul of this proposed legislation. The only way Brigham was able to manufacture a threat to Wikipedia was by denying that these efforts exist, claiming that linking to the Pirate Bay is a "totally legitimate link" on Wikipedia.

This is not the case. WP:ELNEVER says that "editors are restricted from linking to the following, without exception: Material that violates the copyrights of others..." adding that "Knowingly directing others to material that violates copyright may be considered contributory copyright infringement.... Linking to a page that illegally distributes someone else's work casts a bad light on Wikipedia and its editors." Wikipedia's external links policy goes on identify "content that is illegal to access in the state of Florida (since Wikipedia's servers are located there)." If your internal constraint is to follow the external constraints imposed by the United States government, by definition the government would not be imposing any incremental coercion. The immediate response to this last point, of course, is that Wikipedians have absolute standards. To this I'd make two observations: 1) This is a moral argument, not a legal one, such that Brigham's legal opinion should be downweighted to that of the rest of us 2) Where were these absolute standards before? "Fair use" images are not hosted on the Commons, but they are on English Wikipedia. Why? Because most non-US jurisdictions are more restrictive about "fair use." Where is the protest to shut down various Wikipedias until foreign governments liberalize fair use? This has a direct and indisputable impact on the content of these non-English Wikipedias, yet they have apparently just passively accepted their legal environments.

The Left Coast Agenda

The obvious explanation for this anomaly is that the WMF has a US-centric view. Jimmy Wales insists that the anti-piracy laws would set a "precedent" for censorship yet the Attorney General can already order U.S. Internet service providers to block access to child pornography. As the Boston Herald notes, "thank goodness, Google and Wikipedia have thus far raised no objection [to that]. This week Jimbo told CNN that "this law... at least the Senate version, would include the creation of a DNS (domain name system) blocking regime that's technically identical to the one that's used by China. " First of all, besides the fact that the House dropped DNS blocking from its bill and the Senate bill will eventually have to be rendered compatible the House's bill, the Senate bill's sponsor indicated prior to Jimbo making his charge that he's prepared to drop it, saying "I regret that law enforcement will not have this remedy available to it..." When somebody is waving the white flag in my view the proper course of action is to hold fire and discuss surrender terms. Secondly, see this editorial from December 29 on the DNS issue, which I need not repeat here. Thirdly, while the rest of Wales' claim here is technically true, it doesn't have what I'd call truth value, truth value being that it would support the point trying to be made if all the facts were out there. I walk on two legs. So do the Chinese! Does anything sinister follow from that? For Wales to have an argument it would have to be the case that DNS blocking is somehow exclusive to authoritarian regimes. In fact, the Netherlands, Austria, Belgium, Denmark, Finland and South Korea all engage in DNS blocking. Where was Jimbo and the rest of the WMF earlier this month when two Dutch ISPs were ordered to block access to the Pirate Bay? Out organizing Dutch Wikipedians in order to protect their right to link? Correct me I'm wrong, but the WMF didn't so much as even put out a token press release. Did you know the dastardly Danes censor or ban over 3,500 sites? I do, but no thanks to any WMF awareness raising effort. Where was the WMF when the Sydney Morning Herald reported in late 2010 that Australia's list of blacklisted sites could increase from 1,370 to around 10,000 sites? Or when the "Australian communications regulator [] issued a stark warning that websites who link out to 'banned' hyperlinks are liable to fines of up to Aus $11,000 a day." Why hasn't the WMF complained about Wikipedia's blacklists in the name of free information, e.g. from a unanimous ArbCom decision dated 20 October 2006: "A website that engages in the practice of publishing private information concerning the identities of Wikipedia participants will be regarded as an attack site whose pages should not be linked to from Wikipedia pages under any circumstances"? Is this not censorship?

Answer: in San Francisco. As the Financial Post has reported, after former CBC documentary producer Sue Gardner became Executive Director of the WMF, Wikimedia moved to the west coast "where it would be in close proximity to the bright minds -- and big wallets -- of Silicon Valley." Today, of course, the WMF is furiously denying that these "big wallets" have anything to do with anything. Today CBS News reported that "behind the protests and public posturing, both Hollywood and Silicon Valley spend generously to lobby causes in Washington. According to the Center for Responsive Politics, the movie, television and music industries spent a combined $91.7 million on lobbying efforts in 2011, compared with the computer and Internet industry's $93 million." One of the Q and As the WMF put up on the "Learn More" page that got millions of views today was "I keep hearing that this is a fight between Hollywood and Silicon Valley. Is that true?" "No," we are told. Don't trust these mainstream media reports. We're Wikipedia and we're on the side of the angels! Never mind that there's no citation for this claim. Trust us! It's the little guy vs the Corporate Agenda; that we happen to be pushing Google's interests is irrelevant, as is the fact Google's founder bankrolls the WMF. What's particularly dodgy about this monied interests line is the fact that it would have cost an enormous amount had this colossal PR exercise been paid for by anti-SOPA advocates at market rates. That market value was created by the cumulative, collective effort of an enormous number of editors over several years, a small fraction of whom then decided to follow the WMF and take Wikipedia away from editors like me to use as they saw fit.

The Financial Post story goes on to note that "to many outsiders" Gardner's mixing of fundraising efforts with selected editors and writers of Wikipedia could create dubious optics with regard to how independent Wikipedia's content is. Not a problem, in Gardner's view. Zack Exley, the longtime leftist activist and internet rabble rouser, has the file firmly in his non-partisan hands. Gardner recently cited Exley's activist history as a likely asset in the lead up to today's blackout. For her own part Gardner joined Occupy Wall Street in November and afterwards called on Wikimedia to "copy OWS tactics." In a blogpost she recommended that readers consult Feministing and The Nation, a self-described "flagship of the left."

Given this background, was there any way to stop the WMF initiated propaganda campaign that went down this week? The one opportunity I saw for something of a correction was ensuring some balance in Wikipedia's SOPA and PIPA articles. It was announced on Monday that these would remain unblocked. Concentrating on the PIPA article, I added some of the observations of people who were in a position to have an informed understanding of the bills. I noted that US Chamber of Commerce executive David Hirschmann, who is also President of the Global Intellectual Property Center, said the talk of freedoms and censorship "has nothing to do with the substance of the bills." I added the fact that a 2009 paper by the Information Technology and Innovation Foundation (ITIF) titled "Steal These Policies" formed the basis of the current anti-piracy bills. What I didn't make entirely explicit but independent readers should know is the fact that ITIF is largely funded by Silicon Valley, not Hollywood. I added ITIF fellow Robert Bennett's observation that "[t]he critics either don't understand what the bills do or are misrepresenting what the bills do. There's sort of a hysterical climate of criticism where people are objecting to something the bills don't do and are promoting noble causes like free speech and democracy but there is not much connection between what they are complaining about and what's in the legislation."

There was, of course, still a lot of material from expert sources that were out there that I didn't have time to add before the blackout. For example, Hillel I. Parness, an intellectual property lawyer who also teaches at Columbia's School of Law, looked at SOPA/PIPA back in November and concluded that the US government could not take down a website unless it demonstrated, to a judge, that the intention of the allegedly rogue site was to "willfully" violate one or more specific instances of copyright. Parness has also debunked the notion that the government could "go after YouTube" (even though Google's internal documentation once identified Youtube as "completely sustained by pirated content" and a "rogue enabler of content theft"). On top of this, of course, is the fact that since Parness' review the DNS blocking provisions have become all but defunct.

Parness points out that the legislation proposed here does not break new ground,"Therefore, if there was a risk of abuse, that risk has always been there. And I have confidence in the structure of our court system, that the prosecutors and the courts are held to certain standards that should not allow a statute such as this to be manipulated..."

A question I ask of Wikipedians who want to use Wikipedia for political lobbying is why they have so little confidence in America's prosecutors and judges and so much confidence in the WMF. The WMF's spending has soared since 2007 and less than half of the current spending goes towards the Technology Group. According to Gardner, this blackout "open[s] the door for more advocacy."

If there is to be any pushback against the censorship hysteria that has been manufactured, it would likely come from mainstream media scrutiny, ie some of the same "power players" the WMF denounced today. Why? Because besides the fact the major papers are serious about fact checking, network TV in particular often invites two guests whereby viewers can get both sides of the story.

As one music industry spokesman said, "It’s a dangerous and troubling development when the platforms that serve as gateways to information intentionally skew the facts to incite their users and arm them with misinformation." Just because I entirely agree does not mean I'm in Hollywood's pocket.

UPDATE (January 19):

I asked Sue Gardner, Zack Exley, and Geoff Brigham if they had any corrections to this account. Mr Brigham objected to some quotes, insisting he was "joking." I accordingly removed the quotes as I had not presented them as jokes.

I've asked Mr Brigham if he sees any possibility that the IRS, in reviewing the WMF's tax status, could consider the blackout to be an "in kind" contribution to the anti-SOPA lobby (ie assess the promotion at its fair value in the online advertising market).

Yesterday RIAA CEO Cary Sherman observed that "it's very difficult to counter the misinformation while the disseminators own the platform."

I tried, Mr Sherman. I really did. Even a fat cat executive like you doesn't deserve to be effectively censored. I followed Sue Gardner's editing of the message during the blackout, noting the changes by updating the history page. But I was locked out of editing as was everyone else who wasn't a WMF person.

She owned the platform and I didn't.

UPDATE (January 21):
See Nick Poole's remarks in this comment thread of a Wikipedia blogger.

UPDATE (February 7):
Bill Keller has written one of the most even-handed reviews of this issue that I've seen.