Guest Post by Alec Rawls
As Congress considers vastly expanding the power of copyright holders to shut down fair use of their intellectual property, this is a good time to remember the other activities that Obama’s “regulatory czar” Cass Sunstein wants to shut down using the tools of copyright protection. For a couple of years now, Sunstein has been advocating that the “notice and take down” model from copyright law should be used against rumors and conspiracy theories, “to achieve the optimal chilling effect.”
What kinds of conspiracy theories does Sunstein want to suppress by law? Here’s one:
… that the theory of global warming is a deliberate fraud. [From page 4 of Sunstein’s 2008 “Conspiracy Theories” paper.]
Freedom of speech requires scope for error
At present, limits on speech are governed by libel law. For statements about public figures, libel requires not just that an accusation must be false, but that it must have been:
… made with ‘actual malice’—that is, with knowledge that it was false or with reckless disregard to whether it was false or not. [New York Times v. Sullivan, 1964]
The purpose of the “actual malice” standard is to leave wide latitude for errant statements, which free public debate obviously requires. Sunstein thinks that room-for error stuff is given too much weight. He’d like it to see errant statements expunged. From Sunstein’s 2009 book On Rumors (page 78):
On the Internet in particular, people might have a right to ‘notice and take down.’ [T]hose who run websites would be obliged to take down falsehoods upon notice.
Further, “propagators” would face a “liability to establish what is actually true” (ibid).
Suppose you are a simple public-spirited blogger, trying to expose how Michael Mann, Phil Jones, Tom Wigley, and other Team members conspire to suppress the research and destroy the careers of those who challenge their consensus views. If Sunstein gets his way, Team members will only have to issue you a takedown notice, and if you want your post to stay up, you’ll have to go to court and win a judgment that your version of events is correct.
Today that should be doable, at great expense. But before the first and second batches of climategate emails were released there were only tales of retaliation, with one person’s word against another’s. Thus at the most critical juncture, when documentary proofs of The Team’s vendettas were not yet public, even a person who was willing to run Sunstein’s legal gauntlet might well have been held by a judge to be in error.
Escalation
The path from Sunstein’s 2008 “Conspiracy Theories” article to his 2009 On Rumors book is straightforward. According to Sunstein’s 2008 definition, a conspiracy theory is very close to a potentially libelous rumor:
… a conspiracy theory can generally be counted as such if it is an effort to explain some event or practice by reference to the machinations of powerful people, who have also managed to conceal their role. [Abstract]
At this time, Sunstein’s “main policy idea” was that:
government should engage in cognitive infiltration of the groups that produce conspiracy theories….
… government agents or their allies (acting either virtually or in real space, and either openly or anonymously) will undermine the crippled epistemology of those who subscribe to such theories. [“Conspiracy Theories,” pages 14-15]
Government funding of trolls? Sounds like a bad joke, but Sunstein quickly upped the ante. In On Rumors he followed the conspiracy theory as slanderous rumor angle as a way to justify adopting the “notice and take down” artillery from copyright law. So Sunstein already has a history of escalation in his legal crusade against ideas he does not like. If SOPA and PIPA are enacted and the machinery of copyright protection becomes vastly more censorious, its pretty much a certainty that Sunstein will want to use these more powerful tools against rumors and conspiracy theories as well.
Sunstein’s target has always been the very core of the First Amendment: the most protected political speech
In On Rumors, the rumor that Sunstein seems most intent on suppressing is the accusation, leveled during the 2008 election campaign, that Barack Obama “pals around with terrorists.” (“Look Inside” page 3.) Sunstein fails to note that the “palling around with terrorists” language was introduced by the opposing vice presidential candidate, Governor Sarah Palin (who was implicating Obama’s relationship with domestic terrorist Bill Ayers). Instead Sunstein focuses his ire on “right wing websites” that make “hateful remarks about the alleged relationship between Barack Obama and the former radical Bill Ayers,” singling out Sean Hannity for making hay out of Obama’s “alleged associations” (pages 13-14).
What could possibly be more important than whether a candidate for president does indeed “pal around with terrorists”? Of all the subjects to declare off limits, this one is right up there with whether the anti-CO2 alarmists who are trying to unplug the modern world are telling the truth. And Sunstein’s own bias on the matter could hardly be more blatant. Bill Ayers is a “former” radical? Bill “I don’t regret setting bombs” Ayers? Bill “we didn’t do enough” Ayers?
For the facts of the Obama-Ayers relationship, Sunstein apparently accepts Obama’s campaign dismissal of Ayers as just “a guy who lives in my neighborhood.” In fact their relationship was long and deep. Obama’s political career was launched via a fundraiser in Bill Ayers’ living room; Obama was appointed the first chairman of the Ayers-founded Annenberg Challenge, almost certainly at Ayers’ request; Ayers and Obama served together on the board of the Woods Foundation, distributing money to radical left-wing causes; and it has now been reported by full-access White House biographer Christopher Andersen (and confirmed by Bill Ayers) that Ayers actually ghost wrote Obama’s first book Dreams of My Father.
Whenever free speech is attacked, the real purpose is to cover up the truth. Not that Sunstein himself knows the truth about anything. He just knows what he wants to suppress, which is exactly why government must never have this power.
Soulmates (cue music)
You, on the other hand, are the enemy
In climate science, there is no avoiding “reference to the machinations of powerful people, who have also managed to conceal their role.” The Team has always been sloppy about concealing its machinations, but that doesn’t stop Sunstein from using climate skepticism as an exemplar of pernicious conspiracy theorizing, and his goal is perfectly explicit: he wants the state to take aggressive action to make it easier for our powerful government funded scientists to conceal their machinations.
Cass Sunstein may be the most illiberal man ever to present himself as a liberal. He also holds the most powerful regulatory position in existence, overseeing every federal regulation. For a sample of his handiwork, realize that he oversaw the EPA’s recently issued transport and MACT rules, which will shut down 8% of current U.S. electricity generation.
Maybe you don’t think it’s a good idea to unplug critical energy infrastructure just to achieve marginal further reductions in micro-particulates that have already fallen to well below half of their 1980 levels:
Sorry but there is no place in Sunstein’s EPA for such doubts and, as far as he is concerned, no place for them in the realm of public debate either. The environmental bureaucracy has everyone’s best interest at heart. To question that is the very definition of conspiracy mongering.
Next people will be claiming that Obama actually intends for energy prices to “necessarily skyrocket.” Such vile rumors need to be silenced, and this can easily be done. Once the SOPA/PIPA machinery is in place, it will only take one line in some future omnibus bill to extend it from copyright to criticism.
Smokey says:
January 20, 2012 at 10:19 am
Witness Ottmar Edenhofer, the UN/IPCC 3rd WG Co-Chair’s candid statement: “One must say clearly that we redistribute de facto the world’s wealth by climate policy. One has to free oneself from the illusion that international climate policy is environmental policy. This has almost nothing to do with environmental policy anymore.” That is clearly a UN conspiracy to use an environmental cover story to confiscate the wealth of the West.
A link to the source would be helpful!
David Jones,
There are lots of links to Edenhofer’s statement.
When the constitution was written, libertarianism was the mainstream underpinning of all parties. There was a basic line in the sand that was drawn regarding the long arm of government, likely fueled by the backlash against imperial rule forced upon the colonies and that fell hard on the individual citizen.
When imperial rule ended your business was your business, and your property was your property. You were king and queen in these domains with very little interference from government regulations. Now, small communities are bereft of small cottage, produce, and manufacturing industries and are prevented from doing all kinds of activities on their own land and in their own homes. Why? Regulations. Want to put in a country restaurant or store to sell your wares in your home or next to your home on your property? Want to bottle your well water and sell it? No can do unless you adhere to expensive profit killing regulations.
A case in point. I spent over $10,000 of ranch and personal funds on a new well on the ranch. As soon as it started pumping water, I was sent a letter telling me all the regulations and restriction regarding said well on my property.
That is just the tip of the iceberg related to ranching. Industry of any kind now comes with books and books of regulations and limitations. Add CO2 regulations.
I will vote for the person who will work toward undoing all that. A politician with libertarian views who is uncompromising on those views is the only way forward out of this regulatory mess. All others are too far away from the constitution, and therefore open to special interest persuasion, to be relied upon to get us there.
Please let me tell something about of my experience with copyright laws. In 2009 I have published my first book (poetry). The publishing house has given some background to the public. Google books has copied about 30% of my book and has published that pages, and the pulishing house has given an approval. A big online book (A.) company has done the same with a minor part of pages. I do not know the laws about this; I’m only the author and/or the translator and the editor.
I do run a private little web page on a U.S. server without any advertising, nothing to bye, only a source of information about special things and persons of the history of philosophy. Two years ago I got 16 pages as FAX on my old FAX from 1980 from the most popular lawyer chancellery of the town, specialised in copyright law, with the conclusion, I have to pay several thousand Euro to a copyright holder of a text about a short biography of Epictetus, because I have added the text of some lines at the bottom of a page with the full text of the handbook of ethics after Epictetus. Poooh. OK. We have a new law here for peanuts cases if a girl add a copy of a part of a city map, which is under copyright, on her page, and in such cases the payment to the copyright holder is limited to maximum 100,- Euro. So I have paid that money to the layer chancellery because the client has agreed to the deal and have deleted the biography text. Next day the promoted (female) lawyer claims again by phone on the case and several thousand Euro, and I have said ‘Sorry, we have a contract, do you know what a contract is?’. Then I have told that Dr. Lady, that the biography text, her client claims a copyright to, is a straight German language translation of a text of the 11th Edition of the Encyclopedia Britannica published 1911, and that the text is not under copyright any more. I gave her the links and there were silence then.
Some of my pages are translated to other languages by people, who I do not know. No problem if there is a link to the source. Some years ago I noticed that there was a commercial event with songs and poems, and the German translations – I have translated – were taken from pages of my website. The leader of the group has said then, that he has downloaded the songs ‘somewhere from the Internet … ’.
I think in general it is a good practice to give credits to other workers work (if it is possible) and as long as there are no money or no commercial things involved, it is wasted time to pursue people who spread text or copyright material, not spoken on the money lawyers take if you give him a mandate.
Mostly strange final is the copyright case about the claim of commandments were the sage Moses was involved. The broken stone with the text ‘An eye for an eye’ is now owned by the Louvre in France and it is only a cover version of the codex of the ‘copyright holder’ Hammurabi (No. 196.)
Strange world.
V.
To Volker Doormann
The euros have gone copyright crazy. In europe you can pretty much copy right anything if your the first to file for a copy right on said word/phase/etc. Case in point a gaming company copyrighted “blitzkrieg”. Yeah no shat single common word. Well needless to say this word has been used in countless books, movies, games and this euro gaming company went around suing people using the term even games and books that had existed before the gaming company even existed. Thats socialism for you though… laying claim to everyone stuff even common use stuff. Which is the big problem with the MPAA/RIAA they want all fair use/common use stuff banned to where they hold forever the copyrights on anything and everything. I used to care that people would download music and such however the way they have attacked people over doing nothing more then what has been law for over 200 years in the US is insane. That combined with the crap they shove out at the theaters nowadays… not paying for a shotty product from tyrants.
No of course Moses did not infringe on Hammurabi’s Law Code copyright. 🙂
The two similar phrases, “If a man’s ox gores a man…” and “an eye for an eye” are only superficial similarities in the ancient texts. Hammurabi had different penalties for the same crime, depending on the class of the violator. The penalty received for a crime, in Babalonian law (as well as Assyrian and Egyptian) was determined by one’s class, weather wealthy, poor, or a slave.
Moses had the same penalty for all people, except in a few very exceptional instances.
[SNIP: Please, this sort of comment, while perhaps valid, never turns out well. Please. -REP]
Volker, your last line cracked me up. I wish all bible-thumpers had to read the Code of Hammurabi daily till lightbulbs finally clicked on in their heads.
@zeke
Not important here in this thread, but Moses? The bigraphical character of Moses is a cover version in an old tale taken from the bio of Sargon the Akkad. They have copied his biography into the torah, but nobody who knows it, was/is allowed to talk about. There never was a real Moses. Sorry.
V.
@Mr. Lynn
I think you need to wake up to the fact that your elections are nothing more than hoax these days to make you think you have actual influence.
There is really little to no difference between republicans and democrats these days and they are both funded by the same groups.
They are nothing but puppies with exception of maybe Ron Paul which of course will never be nominated.
Gallovidian says at 9:37 am
“That’s why your constitution wisely gives you the right to bear arms.”
Nope. Our rights are intrinsic, and are not dependent upon the whims of bureaucratic busy-bodies granting them via this or that document, law or regulation.
The U.S. Federal Government’s power is on loan from “We, the People”.
If the time comes to recall that power, it will not be a pretty sight for those few thousands of folks who believe they, and only they, should wield that power over the millions of us.
The Second Amendment does not function as the grant of a right. Its function is that of an enumerated limitation on Federal power and a warning that if Fed.gov busy-bodies push too far, they will be met with deadly resistance. The military cannot and will not save them, and they will not be half a world away from the carnage. It will come to where they live. We surround them and vastly outnumber them. (And many of us are armed to the teeth.)
Like a large number of folks in this country, I have no intent to go quietly into authoritarian slavery. I will resist to my dying breath.
“If heaven I cannot bend, then hell I’ll stir.” ~James Otis
[SNIP: This comment is way off topic and I apologize to all readers for having approved it. Please do not respond to it. Ed, if there is a thread where this is not off-topic, feel free to re-post. -REP]
The takedown of Megaupload is a perfect example of what I was trying to mention in the “blackout” thread earlier this week. There are now thousands, perhaps millions of people who have now lost legitimate content such as research data, personal artistic content, home videos, corporate information that was shared out with employees or customers, etc. So this draconian response has punished thousands of people who were not using the site illegally but their materials have now vanished. That is the problem with these regulations, they throw the baby out with the bathwater. In the process of taking out some illegal activity, a lot of legitimate activity is taken out as well.
To REP:
At least my comment, which is in the spam, was on topic and responding to another post (copyright infringement). Ed Mertin has not shown even that much consideration to your readers.
[REPLY: Your comment was snipped for advancing an opinion about a religious tradition that was likely to cause some serious diversion from the thread. You are correct about the Mertin comment, however. -REP]
To the Mod REP. Agreed, it was a good call on your part. I have no complaint at all.
I should have simply added that ancient near eastern law codes often had penalties involving the disfigurement of the human body, such as cutting off a nose or a hand for theft. This is forbidden in Mosaic law and was yet another substantial difference. No need to bring up certain modern examples, which prescribe amputation of the hands or feet for theft.
[REPLY: Skirting the edge, but OK…. this time. -REP]
Warren @ur momisugly 9.45pm
Now reported in The Australian press more fully
The lavish life of file sharing kingpin Kim Dotcom
.’…Dotcom was charged with criminal copyright infringement and conspiracy to commit racketeering. The FBI shut down his Hong Kong-based website, which it claims was used to pirate half a billion dollars worth of entertainment content.
The husky Dotcom is a kingpin in a little-exposed side of the internet economy, who profited by tapping changes in technology, roiling the entertainment industry….’
http://www.theaustralian.com.au/news/breaking-news/the-avish-life-of-file-sharing-kingpin-kim-dotcom/story-fn3dxity-1226250461590
http://www.theaustralian.com.au/news/breaking-news
This is both true and not true. There are establishments and political classes whose interest in preserving their own prerogatives overrides any others. But there are also very considerable differences between, say, a Sen. Jim Demint and the current occupant of the White House, and in the directions they would take policy. To ignore those is folly. We can greatly improve things by supporting those who believe in the principles of America’s founding documents and working to defeat those who would abandon them. It is a never-ending battle.
/Mr Lynn
Actually Volker, there are several myths and legends from pagan cultures far older than Judaism with characters closely matching the alleged biography of Moses, and different archaeologists, anthropologists, and historians have attributed the origins of Moses myth to all of them at some point. Determining the oldest is probably impossible.
I think it’s great that people can believe whatever they want, but I think it would be even greater if they investigated the history and validity, or at least the value, of their beliefs before latching onto them. A single intelligent class in comparative religion is really all it takes to remove religious blinkers, but I don’t know what it would take to remove pseudo-scientific ones.
So if you say that the AGW theory is a result of incompetance and greed that will pass as OK?
No conspiracy required and AGW is still wrong.
@Anton
To come back to On Topic, it seems to me that a free speech – also in classrooms – about critical analysed text in books, which are claimed be holy by ~80% of the Americans, and who are claimed to be democratic, can result also in closing web pages (like mine), because the power tower never would be hurt by painful truth.
I agree with your last paragraph. But as a guest here I think it’s not the right place to go deeper in this matter of religion science and myths.
V.
What we have to bear in mind with free speech is that it has it’s downsides. It can start with rumour and conspiracy, and end with Timothy McViegh killing hundreds of innocent people. It can be seen in the paradoxical ideas of libertarians who wish to control how people live their lives (banning gay marriage,withdrawing choice for women, giving people the right to die from poverty) and in the ideas that the US is under threat from the left, when it appears far right groups such as the Ku Klux Klowns and skinhead groups can also kill many citizens from no other reason but hate. It could even be said that the threat to the well being of US citizens comes not from ideas of limitations on free speech or actions, but the racist, anti-semitic half wit in the bar after a few pints who convinces others to do bad things.
We know however how critical to the good governance of society is a free press, however should they be subject to the laws of libel? Apparently Newt has serious concerns about how they behave. My feeling is that it is not a black and white issue, it is neither right or wrong, as with most things in life it is how appropriately the right to free speech is used, and as many others have pointed out, that depends on your subjective view[point. Maybe our views on free speech say more about ourselves than the subject in question?
( This post has many elements of the post that was moderated as an anti-semitic rant. I don’t have an exact copy. Many thanks Anthony for allowing me to clarify the situation, I salute your fairness)
[Reply: Thank you for deleting the previous comments about jews. ~dbs, mod.]
ScottyM says:
January 21, 2012 at 5:07 pm
Gallovidian says at 9:37 am
“That’s why your constitution wisely gives you the right to bear arms.”
Nope. Our rights are intrinsic, and are not dependent upon the whims of bureaucratic busy-bodies granting them via this or that document, law or regulation.
The U.S. Federal Government’s power is on loan from “We, the People”.
===================
ScottyM – what the Americans did was to build on the Common Law, Natural Law, concept – fleshing it out as it were into a working system able to be referred to cogently, any problems with ‘interpretation’ must always revert to Common Law principle. From my earlier post:
“How did we get to where the Constitution, that document Prime Minister Gladstone called “the most wonderful work ever struck off at a given time by the brain and purpose of man,” is subordinate to judges and lawyers rather than the law of the land?”
The Law of your land is Common Law.
There’s been a lot of investigating Common Law in Britain recently, an important point to bear in mind is that all legislation is subservient to this which in Britain means no act of parliament is Law, in the US this would be congress role, regardless how some may wish to present these as if ‘legal’, they are in themselves not Lawful, they are acts.
Very good pages on the background history here as a start: http://www.britsattheirbest.com/freedom/f_british_constitution.htm
What we have in common, compare with European ‘Napoleonic Law’, :
“The British Constitution embodies the natural rights and freedoms of the people, which are theirs by birthright. The British Constitution and British liberties will only survive if the people defend them.”
Natural Law is intrinsic to birthright, it not something that can be given one by another.
As someone once put it, we don’t tolerate bullies at school, but somewhere along the line we lose that understanding..
Anton says:
January 21, 2012 at 9:07 pm
===
Anton – do you mean Noah?
Code of Hammurabi daily till lightbulbs finally clicked on in their heads.
Volker Doormann says:
January 21, 2012 at 2:18 pm
@zeke
Not important here in this thread, but Moses? The bigraphical character of Moses is a cover version in an old tale taken from the bio of Sargon the Akkad. They have copied his biography into the torah, but nobody who knows it, was/is allowed to talk about. There never was a real Moses. Sorry.
V.
========
You may be throwing the baby out with the basket here, using what might well have been a well known tale at the time to further one’s own interests by copying the means, could be more logical than turning Moses into a gardener.
Anyway, re eye for an eye and tooth for tooth, compensatory judgements were standard in Ireland, the Brehon Laws, but these didn’t give the offended the right of life for a life iirc, I think it was financial compensation and exile for murder. Some trace that ‘Celtic’ line back to an Egypt connection around that time when it had an extensive empire, the cosmopolitan power wielders of the day and for a considerable time, (and education to very high standard – Pythagoras and the other Greeks of reknown got their education there, see Thales http://www.philipcoppens.com/egyptgreece.html).
Something on law in ancient Egypt where men and women had equal rights, note that Solon adapted some for Greece: http://history-world.org/egyptian_law.htm
[Once something is deleted it is gone. Deleted comments are not saved. My apologies if you didn’t mean it like it sounded. ~dbs, mod.]
To Garethman says
January 22, 2012 at 3:11 am
Thank you for confirming again you are a complete idiot who knows nothing but propaganda racism, hate, ignorant and basis his world view solely on propaganda.