On the Supreme Court, the First Amendment, websites and wedding cakes

From the perspective of someone who supports LGBTQ+ rights, I am not exactly a fan of this recent SCOTUS decision. Simultaneously, as a web designer/developer, I think it is extremely important to recognize the difference between this type of work and a more commodity-oriented business.

Web design and development is creative work, requiring a personal input of time and energy, thought and consideration. It’s not a public storefront, selling premade goods. It’s not even a construction or contractor type job, where you may have disagreements with the client’s worldview, but the work itself is (generally) philosophically and politically neutral.

As a web designer/developer, I absolutely choose which types of projects I do or don’t want to work on, and I insist on maintaining the right to refuse to take on a project whose mission or purpose does not align with my values.

To put a finer point on it: I think it’s worth distinguishing between a web designer who is actively collaborating with their client to build something custom for them, vs. a DIY-type system where the client is provided with tools to build a site for themselves. In other words, for the type of work I do in client services, I should have the right to refuse to participate in a project whose purpose I disagree with. But if I were, for instance, Squarespace, selling access to a service I built, which lets users create their own sites, then I should not have the right to decide who can or can’t use the service. (As long as what they’re doing with it is legal.)

I can get even more specific to my own situation here. In addition to my client services, I also sell a product: a WordPress plugin for integrating calendars (e.g. Google Calendar, Office 365, etc.) into your website. I do not, and I strongly believe should not, decide which types of sites are allowed to use my plugin. I know there are customers of the plugin whose businesses/organizations do things I do not particularly agree with. But there I am selling a finished product — a commodity. Anyone who wants to buy it (again, as long as they’re not doing something illegal — although I won’t even know that, unless I specifically take the time to investigate them, post-sale) is welcome to do so. But if those same people approached me in my client services role to help them build their website itself, I would/should have the right to turn down the project if I didn’t want to do it.

Of course, there’s another layer to this: Why did this even become a court case? As I understand it, the designer here is the plaintiff, and doesn’t actually run a wedding website business yet. She is clearly doing this to make a political statement. I’m not sure how much the Colorado law was really pushed on her, or if it even technically applies to her (hypothetical) business. For me, and I think a lot of other people in my shoes, it’s a simple enough practical matter to turn down projects you don’t want to work on — regardless of why you don’t want to work on them. As a creative worker, you are essentially selling your time, not a commodity, and you have a limited supply. It’s a simple matter of being “too busy” to take on the project. There may be laws saying a business can’t discriminate, but surely there cannot be any laws that say a business has to work more hours than humanly possible.

So, what’s the upshot here? Well, it kind of seems like this case isn’t really about the First Amendment rights of business owners like me at all, because I’m skeptical that those were ever really under any threat. But it definitely opens the floodgates for business of all types — including those that truly are “open to the public” and selling commodity goods — to discriminate against potential LGBTQ+ customers. And that’s why I’m opposed to the current SCOTUS super-majority: their aggressive efforts at rolling back civil rights. That’s what this case is really about.

Memory holed

I originally posted this on Facebook, but for what should be obvious reasons, I think it’s worth reposting here.

John Gruber, today: Bing Censors Image Search for ‘Tank Man’, Even in U.S.

Interesting that Gruber mentions 1984‘s “memory holes” here. I think I’ve been affected by 1984 more than any other book I’ve read, and I re-read it at least once a decade.

Something I didn’t grasp when I read it back in high school: the long-term effects of the memory hole. I distinctly remember Tiananmen Square in 1989. I remember where I was when the news came on — my maternal grandparents’ house. You can “memory hole” something like that without ever erasing it from my memory, or countless others of us who experienced it first-hand.

But what of later generations? What do my kids know of events like this? And if actions are being taken to restrict access to information about events that people don’t remember first-hand, eventually it might as well have never happened. It’s been successfully memory-holed.

Please place this in your mind beside the link I shared yesterday, about bills being considered in many states (including Wisconsin) that will make it illegal to teach critical race theory. When I read that yesterday I thought about another element of 1984: Newspeak. The government was systematically re-engineering the English language to remove words it deemed problematic. As in, the kinds that could undermine its absolute authority.

The only thing Orwell got wrong was the year.

Some final (?) thoughts on SOPA/PIPA

We did it! Apparently. Whatever “it” is.

Wednesday’s “SOPA Strike” finally got the attention of Congress (and millions of confused high school and college slackers who had to endure 24 hours without access to Wikipedia, humanity’s only known source of information). In the wake of the protests, sponsors of both the House and Senate bills “shelved” the bills.

For now, they’re gone. But do you remember the end of Halloween, when Loomis shoots Michael and he falls out the window, and then when they look down a second time, he’s gone? Yeah, that.*

Before I move on to other topics (hopefully forever), I just wanted to share some final thoughts about SOPA/PIPA.

1. They’re not really dead. Sure, it’s entirely possible that we’ll never hear about SOPA/PIPA — by those names — again. But if you think the MPAA, RIAA, and their legions of highly paid lobbyists are going to let it all go this easily, you must be new here. As long as there’s any chance that anything the entertainment industry owns is being copied illegally, which is to say, until copyright law is forgotten during the zombie apocalypse (which might just be led by Zombie SOPA itself), old media dinosaurs will continue to fight for their lives.

Actually dinosaurs employing an army of zombies to fight Internet cyborg pirates sounds like a perfect Hollywood movie idea. (Copyright 2012 Scott Anderson. All rights reserved.)

2. Piracy is not really the problem. Sure, piracy happens. Sure, it’s illegal, and very probably even “wrong.” But what’s really wrong (as in, factually incorrect) is the idea that piracy translates directly into lost income for movie studios and record labels, or, as they (and their cronies in Congress) like to put it, lost jobs for gaffers and key grips and best boys and Foley artists and all of those other weirdly named jobs you see scrolling by in extremely small type at the very end of the ending credits of big Hollywood movies.

Yes, if Hollywood goes down, it’s going to take those kinds of middle class jobs down with it. But trotting these people out to get the average person to support this legislation is not unlike Prolife Across America’s billboards with pictures of babies and speech bubbles saying “I could wiggle my toes at 18 weeks!” Bear with me. Regardless of whether they’re right or wrong on the issue, both tactics are designed to appeal on a very simple, gut emotional level, and to discourage critical thought about what’s really going on, whose agenda is really being promoted, and what the implications of that agenda are.

Aside from the documented cases of entertainment industry lobbyists making egregious “errors” in their calculations of the numbers of jobs affected or the billions of dollars “lost” each year to piracy, there’s the simple logical fallacy that every pirated movie or CD equates to a lost sale. On reflection, this should be obvious: many, if not most, of the people who are pirating a movie or an album were not likely to buy it otherwise.

Then again, sometimes getting a copy of an album from a friend turns a person into a lifelong fan of a musician. A personal example: in my life I have purchased every album ever released by both Rush and Yes, which is a lot (there are 31 Rush albums and 29 Yes albums in my iTunes library right now), several of them multiple times, as each new remastered version is released. I have seen these two bands in concert a combined 8 times. I’ve bought their concert videos on VHS and DVD. In all I’ve probably spent over $2000 in the past 20 years on my Rush and Yes obsessions. And it all began because a friend made me cassette copies of A Show of Hands and Classic Yes (both of which I subsequently purchased on CD) back in high school.

So, you see, piracy is not really the problem in two ways: 1) an instance of piracy doesn’t necessarily mean a lost sale up front, and 2) copying now may lead to a lot of purchasing later.

3. Copyright is broken anyway. The other day I mentioned that copyright law had been changed to allow Disney to retain exclusive rights to Mickey Mouse. In fact, the Copyright Term Extension Act of 1998 was even referred to as the Mickey Mouse Protection Act! I’m not against copyright, per se. I believe that the creators of original works should reserve the right to decide how their works are used and distributed, and to profit from their efforts.

But I also believe that an ever-changing law that allows that protection to extend in perpetuity, long after the creator’s death, is counterproductive and harmful to the free exchange of ideas within a society. I’m firmly against software patents for the same reason. In fact, I’m even more against software patents than I am against indefinite copyright extension, but that’s a topic for another post. But I think it’s worth mentioning that I am equally, or even more so, opposed to protectionism in my own field than I am in the entertainment industry.

4. Adapt or die. That’s it, really. As I’ve noted previously, these bills (and any future legislation like them) are not really designed to protect the interests of content creators. They are intended to prop up a dying industry that grew fat on profits over a period (specifically the 1970s through the 1990s) when their business was built upon a model that is ultimately unsustainable, especially as new means of distribution have proliferated. Combine that with what is broadly regarded as a precipitous decline in the quality of their products, along with untenable pricing, and you have a perfect recipe for the kind of collapse and failure currently underway. Don’t blame piracy; blame yourselves for overcharging for a product of low value.

P.S. Boy, it feels good to be able to link to Wikipedia again!

* You seriously haven’t seen it, and I spoiled the ending for you? Whatever. Also, would describing a portion of a film in a blog post like this have been a prosecutable offense under SOPA/PIPA?

Recalling my brush with the DMCA, and how SOPA/PIPA would be immeasurably worse

This MetaTalk post concerning some erroneous DMCA* takedown notices reminded me of an episode from my personal experience that I had almost completely forgotten. It’s a good illustration of how even the DMCA — copyright holders’ current legal blunt instrument to wield against infringers, but nowhere near as powerful as SOPA/PIPA would be — can be used in harmful ways, either maliciously or mistakenly.

A geek, not a criminal

You see, I’m a geek. In particular, I’m a video game geek. I have a huge collection of 1980s video game antiquities. Over a dozen vintage consoles, hundreds of game cartridges. I even have a box full of instruction manuals and those catalogs Atari used to pack in with each game. And for a time earlier in the 2000s, I ran a website chronicling this obsession. I had meticulously compiled a spreadsheet of all of the games in my collection, and turned that into a page on the site, where visitors could (for some unimaginable reason) learn all about the contents of the bins full of 20+ year old plastic and silicon that I kept in my basement. It was harmless (if somewhat ridiculous) fun.

But, you see, there’s this thing called emulation. People have written computer software that emulates the hardware of these old game consoles. And people have also developed ways to “dump” the ROMs (programs) of those games as files that can be run in these emulators, allowing you to play long-lost vintage console and arcade games on your computer.

The nature of the Internet makes it very easy to share these emulators and ROMs. Except, under copyright law, it’s illegal. The emulators themselves are not illegal, and as I understand it, if you own the original cartridges, dumping their ROMs is fair use. But possessing the ROMs without owning the physical game is against the law, and sharing the ROMs online definitely is.

So, the copyright holders in these old games, at least the ones like Nintendo who still have lots of money and actually care about protecting those copyrights, have teams of lawyers scouring the Internet for sites that are illegally distributing ROMs. Under DMCA, they can demand that owners/hosts of infringing sites take down the infringing content, or face legal action.

And that’s where my dumb little video game collection site comes in. I never shared a single ROM on that site (and would never be stupid enough to try). But Nintendo’s lawyers didn’t bother to figure that out. They simply saw an HTML table full of the names of old video games, some of which were Nintendo’s IP, and they contacted my web host at the time, who also happened to be my former boss.

He called me on the phone (a rare occurrence) and was noticeably agitated. He couldn’t believe I was doing something so stupid. Because I wasn’t. Once I reassured him that Nintendo’s lawyers were barking up the wrong tree, his tone changed. He’s a Ron Swanson-esque libertarian, and was ready to fight back. And that’s the last I heard of it.

You’ve probably encountered some DMCA takedowns yourself. YouTube is the most common place to find them. Have you ever clicked a YouTube link, but instead of seeing the video, you were presented with a black box with a message explaining that the video had been removed at the copyright holder’s request? That’s the DMCA at work.

Much worse

Under SOPA/PIPA, YouTube itself could be taken down**. For that one infringement. Any any sites that were linking to that one infringing YouTube video could be taken down as well.

For a couple of years (up until word started spreading about SOPA), I was running another site called “Hall of Prog: A Curated Exhibition of Progressive Rock on YouTube.” Every post on that site was a link to a YouTube video. And given that it was all copyrighted music, most of the videos were probably infringing. Indeed, over the time I ran the site, a huge percentage of the videos on it (especially ones featuring Robert Fripp) were replaced with YouTube’s generic DMCA takedown message. When it started to look like SOPA might pass late in 2011, I decided it wasn’t worth taking any chances, so I took down the entire site. Now it’s just a redirect to americancensorship.org.

I was not making money on that site. There were no ads. And I was certainly not trying to deny the artists/copyright holders (which should be the same thing, but rarely are) their right to revenue. In fact, if anything, I was giving them free advertising. Yes, people make that claim whenever they share something. But I made sure to include links to both the artist and album page on Amazon.com for every video I posted. (YouTube sure doesn’t do that.)

Copyrights (and patents) stand at odds with the free exchange of information. There’s no way around that. As a creator myself, I deeply defend the rights of people who produce creative works to benefit financially from their efforts and to decide how and where their works are distributed. But those rights also have to be balanced with the greater societal good to be gained from freedom of speech and sharing ideas. For decades, if not centuries, means of communication changed very slowly, and copyright law could adapt (or not even bother to adapt) with them. But the Internet has changed everything, and old school copyright holders (especially corporate behemoths like the movie and music industries) have scrambled frantically for the past decade and a half not to lose their foothold — no, make that their stranglehold — over copyrighted content.

I personally believe copyright, as it is currently written, doesn’t work. (That’s why I release my work under Creative Commons licensing.) It doesn’t help that Congress keeps extending the lifespan of a copyright so Disney won’t lose control over Mickey Mouse. (No, seriously… Google it. Tomorrow***.) But I respect the law enough that I make a concerted effort to ensure that the things I do online do not infringe copyright, or are covered by fair use. I cannot, however, just sit back and let the entertainment industrial complex steamroll over my entire livelihood and way of life simply to fight (spurious claims of) piracy.

It’s not too late

The point of all of this is: we already have a law designed to allow copyright holders to take action (before resorting to legal recourse) against copyright infringers, the DMCA. And even that has already been shown to pose the risk of abuse. But the scope of damage the DMCA can inflict is at least mitigated such that it cannot significantly impede the free exchange of information and ideas so critical to making the Internet what it is — something that so many of us depend on every day. We cannot risk what SOPA/PIPA would do to our age of information. (See what I did there?)

Get involved! Go to americancensorship.org to learn more.


* That’s a Wikipedia link, so you’ll have to wait until after the SOPA/PIPA blackout to look at it.

** SOPA/PIPA is only supposed to apply to sites hosted outside the United States, but this would be hard to enforce, and could easily end up affecting U.S.-hosted sites as well.

*** Yes, I know Google’s “blackout” isn’t really a blackout. It was a joke.

Participate in Wednesday’s SOPA strike

Looking for an easy way to participate in tomorrow’s SOPA (and PIPA) strike? The SOPA Strike website has some code you can use to automatically load this page.

I’ve set up my own customized version, which you’re welcome to use. This does not completely black out your site. Instead, the page loads with a black screen. Then after a few seconds, the words "STOP SOPA" with a "Learn more…" link appear in white. The black box then fades to slightly transparent and animates to the upper left corner of the screen. It then stays fixed in the corner as the user scrolls around. The site is still usable, but the “STOP SOPA” message is ever-present. (Be forewarned: as I did not take the time to set up cookies, the entire process also repeats on each new page load.)

If you’d like to see how it works, I set up an awesome fake site to demonstrate the blackout animation in action.

If your site is already using jQuery, simply copy the code below into your page, ideally just after the <body> tag:

<script type="text/javascript" src="http://atomic.room34.com/sopa_blackout.js"></script>

If you’re not already using jQuery on your site, you just need to include it from Google Code first, like this:

<script type="text/javascript" src="http://ajax.googleapis.com/ajax/libs/jquery/1.7.1/jquery.min.js"></script>
<script type="text/javascript" src="http://atomic.room34.com/sopa_blackout.js"></script>

If you’re using PHP, you can even use this code to automatically make it appear at 8 AM EST and disappear at 8 PM EST. (Update the times as needed to represent your time zone, and remove the Google Code line if you’re already using jQuery.)

if (time() > mktime(8,0,0,1,18,2012) && time() < mktime(20,0,0,1,18,2012)) {
<script type="text/javascript" src="http://ajax.googleapis.com/ajax/libs/jquery/1.7.1/jquery.min.js"></script>
<script type="text/javascript" src="http://atomic.room34.com/sopa_blackout.js"></script>

Note: As indicated above, I built this quickly, and have not done a lot of cross-browser testing. It’s pretty basic, but it may not display correctly in some older browsers, especially earlier versions of Internet Explorer. Use at your own risk… just like the Internet itself!