1st Amendment & 5th Estate vs. DMCA Repression

Washington, 9-15-20

Thank you for asking.  It’s a huge problem poised on the rotting foundation of 1st Amendment guarantees.  You’ve experienced and been to court over it.  So have I.  People are dying in the streets over it today.

Almost half of my articles are now dedicated to conflicts surrounding free speech/censorship and 5th estate journalism in all its many forms.  If the Civil War was fought, at least in part, over slavery, its contemporary manifestation is playing out in pitched battles between fully armed opposing camps struggling over who can exercise inalienable 1st Amendment rights, or whether the same is now a dead letter in all but name only.

Before the mid-80’s, copyright disputes were purely civil actions that could only be tried in Federal courts because of their exclusive jurisdiction over the subject matter. But everybody’s favorite boy nerd destined to become, for a time, the world’s wealthiest man, created a programming language called BASIC embedded on paper tape cassettes.  Floppy disks hadn’t been invented yet, but Bill dropped out of Harvard after 2 years to pursue his career as a software tycoon…and soon, Microsoft was born.  He never returned.

Bill’s father was a successful lawyer, his mother the director of United Way, and his grandfather the head of a national bank.  He attended the best private schools his family’s wealth could buy.  

Bill Gates’ post-Harvard path led him to develop BASIC as a programming language (essentially a series of recipes, algorithms/instructions for a machine…NOT a human!) for a PC known as  an ALTAIR 8800.  Before Gates, mathematical formulas, recipes (which is why books containing them are so relatively inexpensive), ideas, instructions, typing, or sweat of the brow couldn’t be copyrighted.

Truman Capote once panned Jack Kerouac’s book ON THE ROAD, said by its author to have been typed at one sitting, with “That’s not writing. That’s typing.” A Federal judge dismissed a copyright lawsuit brought against an alleged infringer who had distributed phone numbers from his purchase of an exhaustive set of discs purporting to have virtually every residential phone number in America when she opined/ruled copyright did not extend to sweat of the brow no matter how laborious.

In reality, Gates and Allen did not have an Altair and had not written code for it; they merely wanted to gauge MITS’s (the PC’s manufacturer) interest.  Microsoft’s Altair BASIC became popular with computer hobbyists, but Gates discovered that a pre-market copy had leaked out and was being widely copied and distributed. In February 1976, he wrote an Open Letter to Hobbyists in the MITS newsletter in which he asserted that more than 90% of the users of Microsoft Altair BASIC had not paid Microsoft for it and the Altair “hobby market” was in danger of eliminating the incentive for any professional developers to produce, distribute, and maintain high-quality software. This letter was unpopular with many computer hobbyists, but Gates persisted in his belief that software developers should be able to demand payment.

The spoiled little rich kid had plenty of powerful connections including Congressmen on Capital Hill where he has served as a page in the House of Representatives.  Almost single handedly, he succeeded in transmuting copyright law from a civil action to the gold of criminal litigation where Federal jurisdiction was no longer exclusive.  What was once a tort, but not a crime, became punishable by prison shepherded through the halls of Congress by Bill’s wealth and influence.  Holders of Microsoft stock subsequently became multimillionaires.  A 20th Century anachronism became a cudgel and the enemy of 1st Amendment principles.  Yours truly can be found in the annals of Washington case law precedent circa mid 80’s contributing to the criminalization of copyright violations.

But here’s a singularly most interesting footnote to the spoiled brat whining about what he insisted on calling copyright ‘theft’:

At 13, he (Bill) enrolled in the private Lakeside prep school.  When he was in the eighth grade, the Mothers’ Club at the school used proceeds from Lakeside School’s rummage sale to buy a Teletype Model 33 ASR terminal and a block of computer time on a General Electric (GE) computer for the students.  Gates took an interest in programming the GE system in BASIC, and he was excused from math classes to pursue his interest. He wrote his first computer program on this machine, an implementation of tic-tac-toe that allowed users to play games against the computer.

Gates was fascinated by the machine and how it would always execute software code perfectly. After the Mothers Club donation was exhausted, Gates and other students sought time on systems including DEC PDP minicomputers. One of these systems was a PDP-10 belonging to Computer Center Corporation (CCC) which banned for the summer Gates, Paul Allen, Ric Weiland, and Gates’s best friend and first business partner Kent Evans, after it caught them exploiting bugs in the operating system to obtain free computer time.

Ric Weiland & Bill Gates

Yeah, the rich kid who became the world’s wealthiest man due, at least in part, to labeling his peers as thieves started out stealing expensive computer time from his school while in league with his partners in crime.  Naturally criminal prosecution was out of the question for the scions, but a poor Black kid would have been taken to juvenile hall for shoplifting a candy bar.

Bill’s bill criminalizing copyright violations was followed by the DMCA (Digital Millennial Copyright Act) passed on 10-12-1998 at the height of the Dot Com Bubble.  This 20th century anachronism sought to protect Internet Service Providers (ISPs) and digital Hosts from copyright complaint liability if they’d take down the disputed content within 24 hours.  To be sure, the Act provided for a counter claim appeal, but virtually all U.S. Hosts and Providers went for the low hanging fruit as a cost saving measure, many not even providing any notice or explanation (SYNC) to their patrons before destroying their account and files, let alone provide an avenue for challenging false DMCA complaints. The upshot has been the streetwise have recognized what a convenient weapon false DMCA complaints are to harass a publisher for publishing what the miscreant doesn’t want the public to know. 

One would think, given the non-stop eulogizing of U.S. free speech rights and unimpeded journalism, the right to speak/write/document/publish one’s opinion would thrive in America more than any other land.  Not so!  The DMCA and mobs roaming our streets at night make it not so.  Tangentially, the police antipathy toward the press, who the cops also attack with regularity, can only be exacerbated by the news 3 dozen Chicago street gangs have joined in a threat to summarily execute any cop they see/videotape drawing their weapon on the street.

As it so happens, in contrast, many offshore nation states provide, in practice, MORE freedom to publish and expression, MORE protection of online privacy and file content.  These include, but are not limited to the likes of Mexico, Spain, the Netherlands, Iceland, and Cuba.  While said jurisdictions honor international agreements/treaties protecting intellectual property, they provide greater leeway to freedom of the press (especially the 5th estate) than does the U.S. or England.  They respect fair use principals and many won’t even acknowledge a non-commercial copyright complaint at all.  Even China has copyright laws it enforces though one can’t imagine it cooperating with the U.S. just now.  Their services are also cheaper and frequently more secure/reliable.

We all stand on the shoulders of giants who preceded us.  The 20th century anachronism of ill conceived U.S. copyright law now acts as a bulwark against progress in the age of information at light speed.  It does little to protect artists and writers, but much to enrich corporate balance sheets.
The displaced orthodoxy of soap boxes in town squares and public parks has been replaced by new 21st century commons consisting of online social media gathering spots such as FaceBook, Twitter, YouTube, Vimeo, Flickr, Tic Tock, MySpace, etc.  Indeed, while these powerful amplifiers reach hundreds of millions instantly, they’ve also become our new masters encouraging the most insidious form of all censorship: Self Censorship!

Congress has granted these titans virtual immunity from liability under the guise of common carrier status, reasoning tens of millions of daily posts can’t be monitored the way a periodical edits its articles.  Yet these behemoths not only appropriate our most personal data/interests far beyond even government’s reach, but enrich themselves in so doing while stifling every American who ventures into these modern day commons.

There is a fatuous argument that 1st Amendment guarantees only protect against government censorship, leaving employers, online/street mobs, Karens, SJW’s, and digital witch hunts to do so with abandon and impunity.  Photography, for instance, isn’t a crime, but you wouldn’t know it given how often photojournalists are openly attacked today in the streets–to the point some are now arming themselves for their own protection.  This was largely unheard of until relatively recently.  Now, a street photographer would be foolish to go alone or unarmed. 

After all, only a small fraction of our communications are directed to/from government agencies.  While no one doubts your front room, hallway, or bedroom/kitchen is your own to control, this does not (nor should it) extend to the commons whether technically ‘owned’ by a private party/company or not.  See the PRUNEYARD case which arose and was litigated in California for further analysis.

Starbuck’s may own the table and seats, but are you going to tolerate their dictating what course your conversation may take while you brunch with your familiar?  1st Amendment principles are hollow if they cannot enter these modern day commons of social discourse.  As the justices found the penumbra of the U.S. Constitution extended the right of privacy to a pregnant woman in Roe vs. Wade without explicitly saying as much, so too the penumbra of our U.S. and State Constitutions should extend our 1st Amendment natural rights into every commons where the public gathers, whether privately held or no, whether online or in the light of day.  Any other paradigm is a pretext for the thought police.  

Similarly, copyright, at least as we’ve currently constructed it in the U.S., is the antithesis and enemy of the press, particularly the 5th estate.  The Gorgons of the internet who bludgeon citizens and the press with specious DMCA claims are choking the the life out of a democracy dependent on a fully informed electorate as surely as a similarly arrogant badged monster did to George Floyd. 

It’s a bitter pill when we can more easily seek these freedoms abroad than in our own home in America.

How Social Justice Silences | Peter Boghossian

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