Law – John Shiga

January 18-26 was a very busy week (well, eight days) for those of us following copyright reforms around the world. In just eight days, there were at least three widely-publicized conflicts between copyright owners, Internet firms and copyright reform activities. Here are three piracy stores that caught the attention of most major news outlets around the world:

January 18: Large copyright owners were disappointed when a pair of proposed anti-piracy laws in the U.S. became the target of an online “blackout” protest by Google, Wikipedia and other websites. The House of Representatives’ Stop Online Piracy Act (SOPA) and the Senate’s Protect Intellectual Property Act (PIPA) were hailed by copyright owners as effective tools for, among other things, eliminating the threat of “rogue” websites based in foreign countries, which are allegedly responsible for flooding the web with pirated material. Google and other opponents of the legislation largely succeeded in framing the proposed legislation in terms of censorship, and U.S. politicians were soon clamoring for a chance to show the media and the public how opposed they are to the legislation. The protest was remarkably successful, leading the Senate and Congress to postpone debate and discussion until the bills are amended to address the concerns raised by critics.

January 23: Copyright owners won a minor victory when New Zealand authorities arrested Kim Dotcom, the founder of cyber-locker MegaUpload. The arrest demonstrates that U.S. copyright owners appear to be able to mobilize police forces far beyond the United States. The arrest also seems designed to “send a message” that cyber-lockers or cloud storage sites are not immune to anti-piracy policing. This is also a test case for New Zealand’s new copyright legislation, which provides stronger protection for copyright by treating infringement as criminal activity. But it is a minor victory in the sense that there are many other similar sites which are still in operation and which will quickly fill the gap left by MegaUpload.

January 26: The Anti-Counterfeiting Trade Agreement (ACTA) — a proposed international agreement designed to clamp down on the global circulation of pirated and counterfeited goods — was met with opposition in Poland, where thousands took to the streets in protest. As Michael Geist notes, ACTA’s provisions for digital locks and its criminal sanctions for non-commercial infringement suggest that ACTA extends elements of the notorious U.S. Digital Millennium Copyright Act (DMCA) to the international level.

What does this series of events suggest about the ongoing struggle over copyright reform?

For many years, copyright owners have lobbied governments around the world for national legislation and international agreements which suit the interest of owners, and these efforts were extremely productive in the 1990s. Key 1990s international agreements such as the WTO Trade-Related Aspects of Intellectual Property Rights agreement, the WIPO Copyright Treaty, as well as national legislation such as the DMCA, all catered to the interests of copyright owners in “stronger” protection of intellectual property.

The online and offline protests, as well as the considerable news coverage devoted to them, suggests that copyright owners are finding it difficult to dominate lobbying and public debate about copyright. Scholars, activists and journalists can take some of the credit for raising public awareness of what is actually at stake in this formerly obscure area of law. But the “game-changer” appears to be the rapid expansion of Internet firms like Google, and their ability and willingness to use the many means at their disposal to shift public opinion on copyright reform.

In my view, the delay of SOPA and PIPA is largely the result of Internet firms’ recognition of their shared economic interests in distancing themselves from overly-protective copyright regimes. In this context, copyright owners needed a small fish to fry, and MegaUpload (for which there are many legitimate uses and users) appeared to fit the bill.

John Shiga

Most news stories about law and digital media are newsworthy fit one of the two following narrative frames: (1) digital media are empowering people to overcome legal constraints; or, (2) digital media are becoming tools of social control. What I find interesting about the news coverage of the Vancouver riots is that it doesn’t fit neatly into either of these narrative frames. Instead, the story has turned into a public debate about social media as tools of control, which are themselves out of control.

When tools of control spin out of control

A few journalists have entertained the possibility that, instead of fearing public shaming via social media, the desire for a few seconds of Internet fame may have motivated some revelers to riot. As Margaret Wente wrote in her column last week,

Mark Leiren-Young, a writer for The Tyee, has a different view. He thinks this riot was a new phenomenon, one in which the presence of the social media actually egged on the rioters. After all, if you can’t be famous on TV, then at least you can be famous on Twitter and Facebook, even at the cost of possible arrest.

It’s a long shot, but it’s possible that social media (or the desire for social media notoriety) encouraged some rioters to believe that smashing windows, burning cars, etc. would translate into online fame. None of the news outlets I’ve been following have suggested that social media facilitated the planning of the riots.

The story thus far does not fit the “digital media are empowering people to overcome legal constraints.”

What has emerged instead is a story about digital media as instruments of control. But with a twist ending.

The Vancouver police have had no trouble enlisting citizens in the identification of rioters on the police department’s Facebook page. The department did well to update the page fairly quickly with a thread devoted to citizens photos of the rioters. However, the police quickly realized (as have some legal scholars) that the feeling of empowerment associated with social media combined with the demonization of the rioters in the national news media created the perfect conditions for online vigilantism.

The Vancouver Police Facebook page seems unable to contain vigilante energy within official channels. That energy has instead spilled over into peer-to-peer policing — the use of social media by individuals to act out a fantasy of perfect justice where the wrongdoers (and only the wrongdoers) get exactly what they deserve.

One of the most viewed news stories on the CBC website today is a commentary by lawyer Daniel Henry on social media as an instrument of law enforcement in the Vancouver riot aftermath. Henry points out that there is a significant difference between labeling someone in a post as “criminal” and describing an act with other, broader, more subjective adjectives; the person being accused of a crime can in turn sue for defamation if the photos, videos or other evidence do not support the poster’s accusations.

Henry points out that “It’s easy to get caught up in the frenzy of getting the bad guys.” In my view, this shift from a concern about riots to a concern about “outing” the riots is where the story gets interesting. The “mob” mentality which Henry and other commentators worry about is online, not in the streets.

But for such commentators, social media have no impact on the communication of what we might call “shame messaging.” Social media are a neutral tool which convey sentiments but which do not provoke or shape those sentiments and their communication.

It’s time to consider another possibility. The bigger picture in this case might be that social media, especially their photo-sharing capabilities, provide users with a seemingly immediate, direct and appropriate response to this particular public threat. In other words, users do not participate in this kind of photo-shaming simply to help the legal system do its job. There is much less deference toward the law among the photo-sharers than police might have expected. Photo-sharing allows alleged rioters to be punished right now. The “swift justice” of online shaming is possible precisely because it is able to operate outside of the legal process. Among the problems raised by the “outing” of rioter online is that social media favours speed over all other considerations, including proportionality in its administration of justice.

Why do people use social media to “out” other people — and why do they do it with such gusto?

It’s plausible that social media vigilantism is the predictable response of an enraged public accustomed to Facebook and Twitter as a mode of self-expression and engagement with public issues. But it’s also important to consider the possibility there is more to this flurry of accusatory photo-sharing than a sense of civic duty.

Sarah Kember, in her 1998 book, Virtual Anxiety, draws on a long line of theorists who have attempted to explain the cultural obsession with photographic images and argues that photographs are highly fetishized objects, and that this the proliferation of imaging technologies in the legal system and other modes of social control is a manifestation of this fetishization of photographs as truth. Photographs are often treated as “tokens” or “trophies” of those whom they depict. In the case of individuals or groups who are regarded as threats to social order, photographic images can give the photographer and the viewer the sense that they know truth of the photographic subject (e.g., isolating and naming the individual in the crowd) which in turn provides a sense of control over the threatening person or group.

From a legal perspective, the use of images of the rioters on Facebook, blogs and other social media should be supported in so far as users are “facilitating justice,” as Daniel Henry puts it, “not working on substitute remedies.” But the point Kember is making is that photographs often perform a “substitute remedy” because the act of photographing is bound up with a desire to control the subject depicted. Photography renders the fleeting (and in this case, fleeing) subject in a form that seems durable, discrete, and fixed. The threat is reduced at least temporarily because the threatening person becomes an object which cannot look back at the viewer.

Vigilante uses of images and videos are an extreme (perhaps exaggerated) form of this urge to “capture” threatening subjects in photographic fetishism. Vigilante uses of images and videos in social media stem as well from the tremendous truth-value that law invests in photographic images.

The problem, as Kember points out, is that “Fetishism is always an inadequate and unstable means of control precisely because it is a compensatory mechanism” (p. 6). In other words, the more the act of photographing and displaying photographic images is invested with an almost magical ability to capture, punish and restore order (what Henry calls “substitute remedies”), the more that those images become reminders of what is actually lost. Henry, for instance, sees a very real possibility that the vigilante “frenzy” will further undermine “civilized democracy.”

In this way the technologies of control — in this case social media and digital images — can become intertwined with the threats which they are supposed to contain and neutralize. Digital cameras and social media — the new post-riot gear — are thus imagined to be as much of a threat to law and order as the riot itself.

John Shiga