Musing about unheralded heroes and heroines and accidental criminals and IPR

I love Auden’s poetry. I have particular fondness for The Unknown Citizen (or JS/07/M/378, the reference Auden gave to him), so much so that I tend to recall the closing lines of the poem almost weekly in one context or another:

 

Was he free? Was he happy? The question is absurd:

Had anything been wrong, we should certainly have heard.

 

Unknown citizens have fascinated me for decades. The amateur historian in me has a peculiar bent: I’m fascinated by stories of people whose impact on our lives is belied by their relative obscurity, people whose fifteen minutes of fame changed the course of a tiny part of history, while being largely forgotten by history in general. Take Tank Man for example.

Twenty-three years on, we still don’t know his name. We don’t know if he’s alive or dead or where he is to be found. History isn’t good at remembering people when you don’t know their names.

At least Tank Man knew what he was doing.

Sometimes (some would argue I should use the word “Often” here) people have their impact on history accidentally. Take William Huskisson for example. Statesman, Privy Councillor, MP for multiple constituencies, we remember him principally for being the first person to die in a railway accident: he was run over by Stephenson’s Rocket, and died despite being taken to hospital by Stephenson himself. Now there were people who died in railway accidents before that, but they weren’t the ones to make the news.

My passion for unheralded heroes started in a strange way. As a young boy, I was fascinated by what we then called “general knowledge” or “quizzing”, and as a result had amassed a vast quantity of “useless” information by the time I was 18. It all began with the story of Denise Darvall. You see? I’ve just proved something to you.

Most readers will be familiar with the name of Christiaan Barnard, the surgeon who performed the world’s first heart transplant. Some may even remember the name of Louis Washkansky, upon whom Barnard operated.  A few will remember that the operation was carried out by Barnard at the Groote Schuur hospital in Cape Town. Even fewer will remember that the operation took place on 3rd December 1967.

But who remembers Denise Darvall?

Denise Ann Darvall was the donor of the heart used by Barnard. A 24 year old killed tragically earlier that very day, run over by a drunk driver while she was out shopping for cake. A true accidental heroine, largely forgotten by history.

I could go on and on, but won’t. As you can probably see, I’m fascinated by stories of accidental and often obscure heroes and heroines, how history picks a random few up and puts their names up in lights, yet leaves unnamed and forgotten the many others involved. Every invention, every political event, every scientific idea, has its share of heroes and heroines, often unnamed, sometimes accidental, always obscure.

Sadly there is now a new branch of accidental and obscure for me to study.

The accidental criminal.

I’ve been concerned about digital rights management and intellectual property rights for some years now, deeply concerned. Those concerns rose to the fore during the infamous Digital Economy Act, a process with the singular, perhaps unique distinction of sullying and besmirching the reputations of politicians involved, in all three major parties.

Those concerns are now growing.

This, despite the relatively balanced and even-handed approach to intellectual property rights taken by Professor Ian Hargreaves in his report, commissioned by Prime Minister David Cameron. If you haven’t read the report, please do.

Why am I more concerned?

Firstly, because outcomes often tend to be disconnected to what the commissioned report said: we’ve been here before, as I document here. We’ve had consultations and discussions and reports aplenty, all saying largely sensible things, only to find that what actually happens has very little to do with the reports and recommendations; instead, it appears to be based on narrow, biased lobbying.

Secondly, this lobbying tends to be based on very questionable numbers, again something I’ve written about before in Numbers of Mass Distraction. Don’t believe me? Why not read what the US Government Accountability Office has to say on the subject?

Thirdly, the objective of the lobbying tends to be to enact law that is focused on getting the “low hanging fruit” of the accidental downloaders, the unaware, the weak, the unwary. Why? Because it’s easier to bully them.

I’m not here to defend karaoke-loving grandmothers convicted of illegal downloading. I’m not even here to defend grandmother 83-year old Gertrude Walton, sued by the RIAA in 2005. [At least her defence was impeccable. She didn’t just not have a computer, she’d died some time earlier.]

What I am here to do is to ensure that you understand what’s going on.

• We continue to have powerful people lobbying for changes in intellectual property law, changes that would criminalise a generation, perhaps two; generations that may not even be aware they were transgressing, as can be seen from this post.
• Their basis for proceeding with such changes is largely based on data that experts have repeatedly called bullshit on. The Hargreaves Report, like many before it, urges evidence-based approaches to the transformation of IPR.
• The changes are themselves technically impractical, often unfeasible, and are thought by many to infringe on basic human rights.

But more important than all this is the fact that a very questionable industry practice has been spawned, with very questionable practices. The ambulance-chasers of the IP world, nakedly going after, threatening, seeking to criminalise, the unknowing, the weak, the unaware, the unwary. A practice that needs to be looked at very carefully by all governments, in terms of what they do and how they do it.

Which is why I found this paper on the subject, by Kalika Doloswada and Ann Dadich, refreshing, interesting, an unexpected ray of hope. Please read it.

Some of their key takeaways:

• The preferred vehicle to prevent illegal downloading is litigation, but there’s scant evidence of this working.
• Where there is litigation, there’s scant evidence of the monies collected making their way to the creators.
• Technological advances: closed private networks, IP blockers, identity obscuring tools, anonymous file-sharing networks, encrypted systems: make it hard to get to the IT-savvy, particularly the IT-savvy with criminal intent
• Despite all this, the preferred mode of the ambulance-chaser is to go after, and to criminalise, the low-hanging fruit of the unaware, the unwary, the unable to defend.

I have over 2000 CDs. I’ve paid through the nose for all of them. I own the vinyl for a hundred or two of them, and have owned (and left behind in India) many more.

I have owned hundreds of cassette tapes, all pre-recorded.

I’ve never taped off the radio, copied someone else’s vinyl on to tape, or downloaded something illegally.

I thought I knew the law. Yet I may have repeatedly broken the law (apparently!) by buying a CD and transferring its contents on to ITunes over the years. As the Daily Mail says here:

People like Terry Fisher and Charlie Nesson over at the Berkman Center have been pushing for alternative ways to resolve the publishing/copyright/IPR impasse for some years now. People like Cory Doctorow over at Boing Boing have been writing about for years.

It’s time we all got involved: otherwise we’re going to get the future we deserve, with schoolyard bullies using questionable tactics, data and processes to go after the weak.

More importantly, as a result of the lobbying by these people, we’re going to destroy the ability of the digital world to live up to its promise: in education, in healthcare, in welfare, in government, and in business as a whole.

The lawmakers who allow all this to happen (DMCA, ACTA, DEA, Hadopi, et al) will make more bad laws and move on.

The lobbyists who use questionable data to influence the lawmakers will make their money and move on.

The cowboy firms that collect monies through threats and fear and because of the ignorance of those they prey on will make their money and move on.

The industries who need to change will have staved off change for a short while as a result.

Then everything will change. The laws will change. They must change. Because the law does not remain an ass for long.

But criminal records are forever.