Two years ago, Metro Vancouver held a failed referendum about transit expansion. I believe that with good communication it would have been possible to succeed. Regardless of whether there is another referendum, public support is essential to building and sustaining effective transit. Where the public leads, politicians will follow. This is my suggestion for how Metro Vancouver should think and talk about transit.
Values are the foundation of a powerful message. It is critical that people believe that your values are sincere, so that they will be open to the rest of what you have to say:
Everyone has a right to mobility, to economic opportunity, and to a clean environment.
TransLink and the Mayors’ Council are dedicated to achieving these things. They live, work and take transit here, just like us. (Lead by example: get those mayors and TransLink officials on trains and buses.)
Our task is to give people choices that maximize their ability to get where they need to go safely, affordably, and cleanly.
Establish mobility as a core value:
Mobility is the foundation of a modern economy. Our economy is our people. Mobility enables us to be productive.
Everyone has a right to mobility: workers, children, the elderly, the disabled. (Poverty has negative connotations. Don’t bring it up, but respond if raised: “I’m glad you brought that up, because low income groups benefit the most from better transit.”)
We benefit from the mobility of others: family, friends, workers, people who provide us with goods and services. Mobility brings people together. (Always talk about mobility, never about congestion.)
The importance of transit follows naturally:
Transit gives us choices, enhancing our mobility. Transit and roads work together to get us where we need to go. (Do not engage in us-and-them anti-car rhetoric. “People,” not “drivers.” “Use road space more efficiently,” not “take away car lanes.” “Give people choices,” not “get people out of cars.” “Free up road space,” not “take cars off the road.”)
Transit is an investment. A dollar invested in transit produces more than three dollars in economic activity.
Transit is an essential part of an active, healthy and green city.
This leads to a positive plan of action that includes citizens as active participants:
Our transit system is extremely successful relative to comparable systems elsewhere. We need to build on that investment so that we do not fall behind.
Citizens support transit expansion. They understand the importance of in mobility, choice, independence and wise public investment. (People give their support when they feel that they are part of a group or movement.)
Our democratic representatives have collaborated on a plan to invest in transit. Participation from the people who live here is essential to that plan, and to continuing expansion in the future. (Focus on a legitimate and inclusive ongoing process, not the technical details, trade-offs and winners and losers of a particular project.)
This argument is too long and involved for most communications. It is intended as a set of values and principles that underly communication, whether it be a poster showing an elderly woman taking the bus to visit her grandchildren (mobility and access for all) or a plan explaining how adding transit to a road will allow more people to travel. Consistency and integrity build up a set of values and assumptions that over time will help make transit a shared project.
I have uploaded my recently-completed Ph.D. thesis, Comment Space, which examines reader comment discussions on online news sites. I have also written a non-academic description of some of my analysis and findings.
Comments are important. A large proportion of Internet users read and write comments in response to news stories. Comment discussions are some of the few spaces where citizens with little in common take part in fierce arguments about political issues that affect us all. And studies have found that comments can influence readers: sometimes more than the articles they respond to.
I have developed techniques and technology for analyzing reader comment discussions to discover the sometimes unexpected things that are said, and to try to assess which arguments and points of view are most popular or have the most resonance. Commenters say things—sometimes important things—that journalists seldom do. I argue that some of the most widespread views about comment discussions, such as the idea that they should be like communities, are unhelpful.
Following my thesis research, I continue to examine comment discussions about important or interesting news topics. I have posted one such analysis. I intend to add more in the future.
With three weeks to go in the Canadian election campaign, the Conservatives are surfing on popular opposition to Muslim women covering their faces during the Canadian citizenship ceremony. This was entirely predictable. There is plenty of evidence that many Canadians are strongly opposed to immigration. The NDP and Liberal parties activated that opposition with their opportunistic promises to take in more refugees. It has now crystalized around the niqab. But there is still time to reframe the debate and take advantage of the passion the issue has aroused – without compromising principles.
Before I continue, I should say that I believe Canada should take in far more refugees, I am not concerned that immigration levels are too high, and I have no problem with women wearing niqabs during citizenship ceremonies.1 I disagree with the nativist and frankly xenophobic views of many Canadians. But these are not my top issues. I want to see evidence-based policy, reinforced democracy, and action to address climate change and inequality. I am not willing to sacrifice these things to debates about niqabs.
Do Canadians really welcome refugees?
The first place the opposition parties went wrong was in their interpretation of polls. Following devastating photographs of the bodies of Aylan and Galib Kurdi, washed up drowned on a Turkish beach came reports that the family wanted to come to Canada. Polls taken during the following week found most Canadians in favor of taking in more refugees. In the emotional aftermath of a front-page tragedy, a majority (54% in one poll) said Canada should take in more refugees.
Fifty-four percent is not a large majority. Would that support translate into votes six weeks later? Is the support soft? Is the opposition strong? The poll on its own gives a valuable indication about how Canadians were thinking at that moment, but more data is needed interpret its significance.
I study reader comments on news stories. Researchers have found that comments are one of the popular online means for citizens to comment on news stories, beating out social media and Twitter. According to CBC, about three quarters of their readers read comments, while a third have commented at some point. Of course I cannot know who these commenters are. They are presumably not representative of the population at large. But they are not cozy communities of like-minded folk: they often feature bitter disagreement. They may represent those who are more passionate rather than those who are less. In the context of an election, commenters on a given issue are probably more likely to vote based on it than are non-commenters. Taken over time and across sites, comments may reveal patterns and narratives.
I have been reading comments regularly for years. On Canadian news stories, particularly on the CBC (but also elsewhere), the strongest pattern I have observed is nativism and xenophobia. On any story about immigration, no matter how sympathetic, no matter how much red tape is damaging marriages or excluding children, the response is almost always unsympathetic: get in line, you have no right to be here, we don’t need more people. I recall only two exceptions. One was a child who had lived in Canada for years with his family and was faced with expulsion. The other was Aylan Kurdi, where empathy briefly emerged.
The images evoke an emotional response, but we can’t just throw open our borders to just anyone.
We simply cannot grant asylum every person on the planet that is being marginalized by events in their own region.
Why isn’t anyone screaming for Qatar, Dubai, Saudi Arabia, Bahrain or other middle eastern countries to take in some refugees?
Canada lets in more refugees proportionate to our population than any country on Earth. Canada has NOTHING to be ashamed of or apologize for.2
While this is a horribly tragic incident, policy cannot be driven by one incident. Knee jerk promises . . . may not be in the best interest of Canada.
These just aren’t any comments. Of the 2,000 on this article, these are the five that attracted the most Likes. Of the twenty comments with the most Likes, only one calls for more refugees. It is the very first comment, the comment with the opportunity to attract the most votes: yet six later comments rate higher than it.
These comments are the best indicators we have of the views of commenters at the moment when the story broke and emotions were highest. Perhaps there is a silent majority who disagree, but they do not appear to be passionate enough to comment, or even to Like those they agree with. Nor is CBC a Conservative site. Comments criticizing the Conservative government are consistently voted up. I would say that the views of most commenters are populist rather than ideologically left- or right-wing. In general, this is the pattern I have seen on other sites and on other issues. At the time, I thought it was a tragic error when Trudeau and Mulcair promised to bring in more refugees (even though I would like them to do that). They may have made momentary gains, but they are now paying the price.
Anti-immigrant sentiment has long been latent, with no politician to latch on to. I have long hoped that no political party would seize on it. Now they are: the Conservatives, in their hour of need, perhaps with the advice of Lynton Crosby.
The niqab debate, I believe, is not only about citizenship ceremonies or fear of Islam (though again judging by comments there is plenty of Islamophobia to go around). Rather the niqab stands in for a whole raft of nativist opinion. It is a socially acceptable way to signal a hard line, concealed behind concerns about sexism and security.
The opposition parties are going about this entirely the wrong way. Mr Mulcair says that we cannot force women to be independent by telling them what they can and cannot wear. I agree with him. But his argument does not matter. If I say the niqab should be banned in order to empower women, I am demonstrating that I care about equality between the sexes. I am saying that I a decent sort, not a bigot. From that perspective, it does not matter if I am mistaken: I have still established my integrity.
This makes for a perfect issue for the Conservatives. It motivates their base (who, according to the polls, are less interested in letting in refugees). It grows their coalition, splitting off some voters from their opponents. They don’t need most Canadians to agree with them, they only need a fraction to get that extra 10% support to give them 40% of the vote and a majority government. For opponents, the niqab is a no-win issue.
Hitting back on TFWs
I’m sure the opposition parties know this. That’s what political framing is all about. But I think that the niqab opens up an opportunity to strike back, to return the debate to issues where the Conservatives are weak.
When the government ratified the FIPA trade agreement with China, commenters were just as upset as terms that allow Chinese investors to sue Canadian governments over laws that threaten their profits. The Conservatives are on track to do the same thing with the Trans-Pacific Partnership (TPP). I wish the opposition parties would jump on this, but they won’t. Powerful businesses, the U.S. government and Canadian news media are pushing hard for TPP. Canadians are generally in favor of trade. Explaining why this particular trade agreement is bad is probably too complex for an election campaign.
Instead, the opposition should find a way to go after the Temporary Foreign Worker (TFW) program. It brings in workers who compete directly for Canadian jobs, without integrating them into our communities, often paying them less and subjecting them to abuse by employers. This expedient treatment is bad for the workers and for ordinary Canadians. This is a more important, more legitimate issue that niqabs. It activates the same people who are upset about immigration: only against the Conservatives, rather than for them.
The TFW issue also brings the debate back to economics, where the Conservatives have been weak. This must be dealt with carefully, as the evidence is equivocal: apparently many Canadians do feel better off than in the past. But a party that wins on the economy will win in the election. It is better to frame the debate than hope it will go away. Polls have made clear that Canadians are open to seeing the Conservatives as poor managers of the economy. Competing with under-paid TFWs underlines that message, draws on existing passions, potentially fracturing the Conservative base and remind everyone about their failings.
Right now, niqabs are in the news and TFWs are not. Why? Because of the court case, but also because the Conservatives, who basically refuse to comment on any issue, have decided to talk about this one. Their silence allows them to make news when they want to. The opposition parties need to put TFWs in the news. Interrogating the government on its record is their job.
1 Many Canadians are confused on the issue. The women in question have previously removed their face coverings for positive identification. Wearing a niqab during the ceremony cannot be used to conceal who they are.
My son wanted to go as a 1967 Doctor Who Cyberman for Halloween this past year. I have been meaning to take a good photograph of it, but part of the costume went missing. This will have to do.
He insisted the Cyberman be the design from “The Tomb of the Cybermen.”
Since prehistoric times children have huddled behind couches and boulders from the spooky Doctor Who theme music. My son was no different. His first complete story was “The Macra Terror,” a black and white second Doctor story from 1967. None of the episodes still exist, so we watched a telesnap reconstruction instead. (A telesnap reconstruction is like a slide show of screen shots from the original broadcast combined with the actual program audio. In this case it had brief fragments of footage mixed in, taken from censor clips and film recorded directly off the TV in 1967.) This was perfect: without motion he found it compelling but not terrifying. He immediately followed up with “The Celestial Toymaker” from 1966, of which only the final episode survives. He liked that one too, and soon graduated to full motion stories. He is not allowed to watch much TV though, so has only seen a handful of others.
Stuart Parker wrote a great article about the dynamics and strategy of the upcoming transit tax plebiscite in B.C. This is my quick analysis of reader comment discussion on CBC and what it shows about No supporters there.
The vote is about whether to pay for transportation improvements (including transit, roads and bike routes) with a 0.5% sales tax. I have argued that this isn’t really about transit: it’s about what kind of city we want to live in, and supporters need to communicate that vision to voters. On Gordon Price’s blog I argued for a positive message. One of my suggestions was not to hide the cost, but to own it: building a city means pitching in, making sacrifices and commitments.
Parker says this positive messaging won’t work. His experience is that voters in B.C. referendums always choose the option that they perceive as punishing the elites. Cynical that politics can achieve anything positive, they vote against, not for; to win the plebiscite, the Yes side needs to understand this anger and harness it. I won’t get into the situation in more detail here.
I study reader comments, and I participate in them. Though they are widely viewed as the cesspools of the Internet, it is there that I read things that give me tremendous optimism and hope. Even when they are bad, hateful, or wrong they force one to acknowledge the power of ideas we might rather not hear about.
I have been reading what CBC commenters have to say about the transit tax. They are not uplifting. I have been beginning to wonder whether a positive communication strategy could work. Then I read Parker’s analysis; it explains perfectly what I have been seeing.
First, to the significance of reader comments: In 2010, Pew found that significantly more Americans commented on news in comments (25%) than via social media (17%) or Twitter (3%). CBC reports that three quarters of their readers read the comments while about a third have commented at some point.
Comments are not representative. If they were, the Conservatives would not have won the last federal election. But they do show what narratives and arguments are out there and provide hints about their relative effectiveness. Examined over time they could potentially reveal changes in popular views.
Data & analysis
Last Sunday, CBC published a story about harmonizing the transit tax. In the reader poll attached to the story, 27% supported the tax while 66% opposed it.
Comments were even more strongly against. In a random sample of 30, 16 were against compared to 3 for. Comparison with the poll results suggests volume of comments is a poor indicator of the views of the readership. After all, most comments are motivated by disagreement with whatever they are responding to. Happy readers have little to say.
Still, four of the 10 most prolific commenters (including me) were in favor; we wrote 64 comments. The other six were against and wrote 93. Probably the top-rated Yes comment rates +4 (one of those votes is probably mine), with a rebuttal rated +8. One should expect fewer votes for replies: this result is consistent with the poll, pointing to opinion running worse than 2:1 against.
Why? All of the 34 comments with the highest rating are opposed. Targets of criticism or blame are: Translink (16), the province/Liberals (8); the mayors (1); other elites, including “smug Vancouverites” (5). Complaints include “hideous service,” “that scam called a zone system,” “jaunts overseas,” “the improvements dont go far enough,” “Port Mann bridge tolls,” a truncated Broadway subway for the wealthy(!). Elsewhere there are criticisms that it hurts the poor and that it subsidizes riders. As Stuart says, the No side makes strange bedfellows.
Two particularly bizarre top complaints stand out. “I live in Courtenay, will I be able to claim an exemption for any purchases I make in the Lower Mainland?” (+8), and “More taxes and there are no public washrooms?” (+9). In a story the next day a comment blamed Translink for a run of red traffic lights (+15). A reply elaborated: it does not matter whether they are Translink’s jurisdiction because synchronizing them would be a cheap alternative for reducing congestion.
These are rationalizations, not reasons. That does not make them wrong (many of the complaints are valid): it points to a deeper underlying motivation. People want to say No and are piling on justifications for that choice. They are angry; my impression is that positive claims only make them angrier.
I remain ambivalent because I don’t know how widespread the No views are. I do not know the representativeness or demographics of these discussion participants. A few angry commenters (most of the 134 participants in that discussion) are not that important. There are other people who are reading but not writing; perhaps they do not react the same way. But mightn’t that show up in the ratings?
I think a big part of the challenge is to get out the Yes vote, which I suspect is prevalent among a younger demographic who tend to stay home. They need to feel committed enough to act. Even if there are many opponents, focusing on them may be a misdirection of resources: just as with climate change (which CBC commenters generally don’t buy), where efforts to convert deniers has detracted from the more productive task of mobilizing supporters.
It seems to me to be easy enough to go full negative and blame politicians for this mess. I have done a little of that myself. Blaming them is fair in the narrow sense that they are responsible, but unhelpful in the sense that the pursuit of utopia only takes us away from the work of real politics. The problem I see is how to go negative without contributing to neoliberal efforts to undermine faith in the potential of collective action.
Whether you drive or not, you are paying a sales tax for parking amounting to about 1% of all your retail purchases.
I have long wondered: When I shop, how much am I paying for the parking lot? A supermarket lot is usually as large as the store itself, if not larger. That land doesn’t come cheap. Even plain asphalt has construction costs too. The only way the retailer can recoup that investment is by increasing prices. Free parking therefore amounts to a subsidy from non-drivers to drivers. But is it significant? Can it be calculated?
Calculating the Cost
The largest costs for operating a retail store are typically stock, staffing and rent. According to the Business Development Bank of Canada, rent amounts to approximately 8.5% of all costs.
The cost of rent is proportional to the cost of developing the building in the first place. This includes parking, regardless of whether it is in a parkade (spaces typically cost $40,000 and up) or surface parking (where costs are closer to $10,000 per space). The Victoria Transport Policy Institute cites 10% as the proportion of development costs that go parking for the typical building development.
If, on average, rent is 8.5% of costs, and parking is 10% of rent, then parking is 0.85% of the retailer’s costs. The retailer covers those costs by passing them on to the consumer. You and I are paying that 0.85%.
If, like me, you live in a fairly dense urban or suburban area where land is expensive, the cost of rent and parking is higher (VTPI cites parking costs of 18% in Oakland). One percent is probably too low.1
Of course this only applies to bricks and mortar stores. Amazon does not provide free customer parking. This is one factor making it possible for them to charge less. It also doesn’t apply to stores with pay parking or without parking lots. Free street parking, however, is no more free than store parking: we all pay for that through our taxes, whether or not we drive.
It’s a Tax
This subsidy is like a tax, as governments require developers to build parking. For consumers the effect is the same as if the government collected the tax and built the parking itself. This is effectively a privately administered sales tax.
As a result, drivers are being subsidized by those who walk, bike, or take transit. When you walk to your supermarket, 1% of what you spend is going to those who drive instead.2
I am hardly in the position to get on my high horse and lecture drivers. I am one of them. I drive regularly to stores where I park for free. I am not blaming drivers for driving. But some drivers assert angrily that they are already paying the full costs of the infrastructure they use and don’t want to contribute to infrastructure they don’t. They are wrong: there are mountainsofevidence that cars are heavily subsidized. I humbly suggest it is they who should dismount.
Then perhaps we can figure out what kinds of communities we really want to live in, and how to make it happen. Because there is no such thing as a free lunch. (Restaurants have parking too…)
1 In Oakland, parking also decreased density by 23%, obliging everyone to travel that much farther to shop. That means burning more gas, spending more money on bus fare, more time in transit rather than working or with family, and so forth. Parking has many costs; I am only trying to estimate those captured by the retailer and passed on in the price of goods.
2 When I say “you,” I am implying someone living in North America, where my statistics are from. There are many places in the world where the shops have no parking lots. First world problems, eh? (Not so much actually: climate change.)
Every week night when I was little, I watched The Polka Dot Door and dreamed of playing the piano just like Herbert Helbig. When it was over, my younger brother and I would race to turn off the TV before that scary music started up with the man with the spooky face. As we grew older, my brother became brave: ignoring my protests he would watch just a few moments of Doctor Who before we switched the set off. (He claims I was the brave one, but I do not believe him.)
A few years later we were watching fairly regularly, but we were not really hooked. Then PBS announced that they would show Doctor Who from the beginning. We weren’t home that night, so we set our Beta VCR to record it. This was the early 1980s: TV Ontario was showing nearly-current color episodes with the 4th and 5th doctors. But it was An Unearthly Child, a black and white episode nearly two decades old, that made us fall in love with Doctor Who.
In Canada at that time, Doctor Who was a fringe phenomenon; the existence of fans probably would have been a mystery to most people. My brother and I hunted down every bit of information we could get our hands on: target novelizations, the FASA’s Doctor Who role playing game, Doctor Who Magazine, publications describing early stories. The use of the term “season” was a mystery to me then, but I knew I liked the sound of Season 5. I was crushed to learn it no longer existed. I imagined schemes to recover the lost episodes: racing them into space to pick up the radio signals, reading them from the brains of viewers who remembered, and of course travelling back in time.
We joined the Type 40 Doctor Who club that met monthly in the National Research Council’s wood-panelled granite building out by the Ottawa river. We were the youngest members, surrounded by middle-aged men who huddled around a TV and VCR watching bootlegged tapes. Orphan episodes in particular had been copied so many times they were virtually unwatchable, messes of grey blobs and a rushing sound that drowned out dialog. When Patrick Troughton died, the club showed a degraded copy of The Enemy of the World 3. When Evil of the Daleks 2 was found, we watched that too. With a surplus VHS, my brother and I borrowed and copied tapes of everything we could get.
We taped episodes regularly on TVO and PBS; when we visited grandparents we took a VCR and grabbed episodes from other PBS stations (I saw Talons of Weng-Chiang in my grandparents’ dark house when everyone had gone to bed). VCR failure was a serious event; I learned to open up the machine to disentangle and re-align the tape. Eventually we managed to wear the machine out. We completed our collection when YTV broadcast one episode per day (with commercial breaks threatening to increase our costs: an L-750 Beta videotape at the high-quality Beta II setting could only fit 7 episodes). By 1991 we had the entire extant series on Beta videotape, including orphan episodes. I still have the tapes.
My favorite Doctor was Patrick Troughton (from The Five Doctors and Box of Delights); my favorite monsters were the Cybermen. The black and white episodes are the most special to me. Many of them show a foreign but familiar culture (British, 1960s) projected into an outdated imaginary future (contrasting strongly with the brash alien arrogance of Star Trek, now also fascinating as a reflection of its time).
When the new series arrived it didn’t hold my attention for long. With its extravagant season finales, humanized Doctor, focus on present-day Earth, indulgent self-importance and frenetic pacing it was not the show I had loved. I understand the producer was inspired by the genius of Buffy, but it didn’t work for me. Tenant in particular, though I can see why he is well liked, combined my two least favorite doctors, Davison and Pertwee. Regardless, I think the program would have been better with less money. The old series profited from a miserly budget that forced an emphasis on script, character, and atmosphere over action and spectacle. Look at the second Doctor’s face at the end of episode 2 of The Moonbase, when he realizes the Cybermen are right there in the room with him: I will take that any day over high-quality special effects, location filming, or armies of extras. Despite excellent episodes like Blink and Human Nature, I left Doctor Who behind me.
Then in October I read the rumors of whole rediscovered stories; I had trouble concentrating on other things. When The Tomb of the Cybermen was found in 1991, it was my most wanted story (though I was shocked and disappointed by the carton racism). If I had made a list of my next two choices, the stories recovered this year probably would have topped it. For years – perhaps decades – I have dreamed my own version of The Enemy of the World. It is wonderful to be able to see for the first time episodes made before I was born.
Now I have started watching Matt Smith’s portrayal. My Doctor is back: deceptive, arbitrary, unknowable, ultimately good but not always nice. I can believe this is the man who sabotaged the fluid links in The Daleks, whose curiosity led people to their deaths in The Tomb of the Cybermen, who tricked Ace into facing her fears in Ghostlight, who refused to save a dying cleaning woman in Cat’s Cradle: Warhead because she knew the evil her employer was up to, yet failed to sacrifice her livelihood in a futile attempt to stop it: the man who in that magical first episode, An Unearthly Child, toyed with the lives of companions he was later to come to respect. I have high hopes for Peter Capaldi in seasons to come.
This is my latest video, about the role of culture in science. Science is dependent not only on evidence and reason, but also on the collective judgements and consensus of scientists. This video provides an overview and critique of induction and falsification, and discusses the theories of Karl Popper and Thomas Kuhn.
My latest video illustrating with several examples how the recent tendency toward extreme copyright inhibits artists and ordinary people from creativity and participation in culture.
Note that this is not a video about weighing the merits of copyright, but looking at some of the more disturbing recent trends.
Here’s a transcript (added 2012-06-17):
In my last video I said there are a number of factors inhibiting ordinary people from participating in culture. Unfortunately today one of those is copyright. So in this video I will look at some examples of what I would describe as extreme copyright. I’m not trying to weigh the merits of copyright law here; what I want to do is focus in on what I think are some destructive recent tendencies.
Now in a way this seems cheap, because finding cases extreme copyright seems to me like shooting fish in a barrel. There’s a case almost every single day. I picked four cases and I’ll mention a few others because I wanted to give an idea of a range of what’s happening, and I oriented these around the United States. The United States is both perhaps the most active player in this area and also a powerful country that’s been pushing for changes to copyright law elsewhere in the world.
The first case I’ll look at is Capitol versus Thomas. For several years now, the Recording Industry Association of America, the RIAA, has been seeking out people who’ve been engaged in file-sharing and sending them letters demanding that they pay thousands of dollars or they will be sued for copyright infringement. The vast majority of people settle, and I think you’ll see why. But in this case the defendant didn’t settle, and the case went to court.
Jammie Thomas was accused by the RIAA of sharing twenty four songs. They don’t actually know whether anybody had actually downloaded those songs from her, but they did know that she’d made them – or they claimed that she’d made them – available for download by others. And juries agreed.
There ended up being three different trials. What I want to point to, however, is the jury awards, which were: for the first, twenty two thousand dollars, second one point nine two million, third one point five million. In two cases the judges said those numbers are absurd and reduced them to fifty four thousand dollars.
But in fact the RIAA said she didn’t actually share only twenty four songs: should actually shared seventeen hundred and two. They just chose to sue her for twenty four. If they’d soon her for all of those the penalties would have been extraordinary. Because they were using statutory damages – that is, not knowing exactly how much damage she might have done to their business, if any – the law provides for statutory minimums and maximums.
The minimum would be seven hundred and fifty dollars per count. Multiplied by one thousand seven hundred two, that produces about one point three million dollars in damages. So if they had sued her for all 1702, and the jury had found her guilty, the jury would have been obliged to hit her with penalties of at least one point three million.
But if we take the maximum figure that the juries picked out of the three awards, which was actually eighty thousand dollars per count, they would have awarded one hundred thirty six million dollars for sharing music for an ordinary person.
In reality there is not a lot of difference between these figures because if you’re an ordinary person and you get hit with penalties in the millions of dollars, it’s life-changing. That’s it: you can never pay it, it just turns your life upside-down.
Now the thing is, this is a civil case so although it it does look to me as if she was probably guilty, the burden of proof was only balance probability. So the jury thought it was probable that she had broken the law here, then they would have been obliged to award at least seven hundred and fifty dollars per count, and the penalties could have been as high as you see here.
What we’re seeing is that a law that was designed for institutions, designed to regulate the internal operation of industries, is being applied to individuals. And when that happens the penalties, I think, are extraordinarily disproportionate.
One of the reasons that is often given for such extreme damages is that infringement is so widespread that an example needs to be set of a few people. And that’s probably why the RIAA has said that they don’t want to accept the fifty four thousand dollar figure: they want a bigger example to discourage file-sharing. But despite several cases like this, file-sharing continues unabated. Fear of extreme penalties simply isn’t working.
The second case I want a look at is the dancing toddler. Stephanie Lenz was a mom. She was playing some music and her son was two years old. If you’ve had a two-year-old, the two-year-old hears music: he’ll start dancing. So she did the natural thing: she grabbed a videa camera and she taped it. And then she did the other natural thing: she wanted to share with friends and family, so she uploaded it to YouTube.
It turned out that the song was Let’s Go Crazy by Prince. Prince was not pleased, so he went to YouTube and said someone is infringing my copyright, take the video down. And YouTube did because in order to not be sued for copyright infringement under U.S. law, YouTube can protect itself by taking stuff down, simply based on an accusation – no proof needed. If that happens to you, though, and you want to get your material back up, you have to claim – under penalty of perjury – that you’re not infringing copyright.
Well, Lenz was incensed by this and she got a lawyer and she went to court and she sued Prince, or his record label, saying, Hey! This is ridiculous. This is reasonable under U.S. law. I should be allowed to do this. So far the court has been sympathetic. You can imagine, though, when it’s easier to get something taken down than it is to get it put back up, that this can be abused.
In the run-up to the 2008 U.S. election John McCain had this problem. Now John McCain actually voted for the law back in 1998. What happened in 2008 was that his campaign had some ads in which they use news footage. And the owners of the news footage, networks like CBS and Fox, issued take-down notices to YouTube. The material went offline.
McCain’s campaign responded and said, this is fair use under U.S. law: put it back
up. But there was a delay of ten days to two weeks. In an election that can be a long time. McCain’s solution was that, maybe politicians should have an exemption. You could imagine if this happens to John McCain, and an accusation merely needs to be made to to take something down, that there is a serious risk that ordinary people have stuff taking down frequently. And it has happened.
Now a similar problem has happened just in general with copyright being used to stop what are potentially creative works. So for example, Alice Randall in 2001 tried to publish a book called The Wind Done Gone, which was inspired by Margaret Mitchell’s famous Gone With the Wind. The Wind Done Gone, however, is from a slave’s point of view, and it avoids the names of the locations and the characters in the original Gone With the Wind. Nonetheless, her publisher was sued, and in the end she settled to pay an undisclosed sum to a charity, in return for which she was permitted to publish the book that she had written.
The point I want to make here is that it’s remarkably easy for copyright to stop artists and ordinary people from expressing themselves in original ways.
The third case i will look at is that of Mark Fiore. Mark Fiore is a political cartoonists, a caricaturist, which obviously I am not. Mark wanted to distribute his cartoons as an app in the App Store so that people with iPhones or iPads could download it. But the thing is, if you want to get something into the App Store you need Apple’s permission. And Apple said No.
One of the reasons they gave was that “it contains content that ridicules public figures.” Well, the guy is a cartoonist. If he’s not ridiculing public figures, he’s really not doing his job. In any case, he had also won a Pulitzer Prize for his work. When Steve Jobs found out about the uproar over this he said, Hey wait a minute – we’ll look at this one again. Resubmit your app to the App Store. And indeed it was approved.
Well of course the App Store belongs to Apple. Apple should decide what goes into the App Store. But: the App Store is also the only way to get something onto the iPhone or the iPad. If I am somebody who creates a piece of art or an application, and I want to give it to you know – so I’ve got a willing seller and a willing buyer – or perhaps i just want to give it to you for free, we can’t do it without Apples permission. Because Apple has a lock on the device They have a lock on what the iPhone you own or the iPad that I own is permitted to do. You can’t put software on those machines with Apples permission. Furthermore, if you try to work around the restriction that Apple has placed on the device – to work around their so called digital lock – you’ll be breaking copyright law: at least in the United States.
Here we have a case where copyright is being used to limit the ability of artists to distribute their work – and not at the behest of creators, but in the interests of the manufacturer of the technology. What Apple has done is it has used copyright law and digital locks to create a distribution channel over which it has complete control. Even if we own the devices, they still control them. Historically of course it’s through control of distribution that artists have been screwed over and over and over again.
In another case of this a couple of years ago, Amazon discovered that it had accidentally sold some copies of George Orwell books, Nineteen Eighty-Four and Animal Farm, that it shouldn’t have. So it went into the Kindles that people owned and it remotely deleted them without notifying them first. So this isn’t the first time that technology and digital locks is being used to control what people can read and what they can write and distribute.
Finally, I’m going to look at the case of Andrew Ainsworth, another creator. Now Mr Ainsworth in 1977 was involved in the design and the production of the original storm trooper masks for the first Star Wars movie. He’s not the only person who was involved in that mind you, there were other people: it was a collective effort.
To make a bit of money, recently Mr Ainsworth made copies the masks and he sold them and he made about thirty thousand dollars. When Lucasflim found out they sued him in California and the court awarded them thirty million dollars.
However, Mr Ainsworth lives in England, so this judgment was not enforcable there. So Lucasfilm went to England to sue. The court decided first that it was implied that the copyright, if it existed, would belong to Lucasfilm, even though there was no documentation to that effect. The second thing they decided was that the masks, in fact, were not covered by copyright – because they weren’t works of art. They weren’t sculptures. The masks, the court said, were tools. They were part of the process of making the movie. Therefore, as industrial designs their term of protection was much shorter, only fifteen years. So Ainsworth was not liable. Ainsworth, however, has a bit of a problem. If he ever goes to the United States, he could be hit with that thirty million dollar judgment.
Furthermore, it occurs to me that the mask looks to me like it could be a work of art. The court judged that it was effectively a tool. It could also be seen as fashion. If we see it as a tool, there’s no harm no foul here. If we see is the work of art, the penalty could be extraordinary. And if we see it as fashion – well fashion isn’t covered by copyright, so if it’s a hat, not a mask, there’s no problem.
What these four examples illustrate is that ordinary people and artists alike are vulnerable to having their lives turned upside down by copyright law. The line between being creative, which is good, and infringing copyright is a fine one that’s often decided only on a balance the probabilities. The consequences can be disastrous. Furthermore, while most ordinary people who infringe copyright are not caught, artists operate in public so they are. So they are either at most risk, or most likely be chased into the arms of corporations and organizations that can shield them from copyright.
How this happened, how did this come about? That’s something i want to talk about in a future video.
My most recent video is about the importance of cultural participation to the formation of community and the development of people as citizens.
Here is a transcript (added 2012-06-17):
I got into trouble with some of my friends in one of my previous videos when I suggested that Star Wars perhaps was better than most YouTube cat videos. So this time I’m going to talk about why cat videos matter.
You know the twentieth century was an exceptional time. It was a time of great cultural transformation, when culture, changed from something that we do into something that we consume. Where before we used to play sports now, for the most part, we watch sports. Before we would sing or make music with an instrument; now we listen to music that’s already been made by somebody else. Whereas before in the nineteenth century a good middle-class girl in the United States would be expected to learn a musical instrument, where I believe the United States government kept statistics about the percentage of families in which all the members could play a musical instrument, now most people can’t play an instrument at all and such statistics would come out being absurdly low – not the double digits that i believe that they were then.
But the change started even before that, back when people lived on the land. They sang songs; they told stories; they made their own clothes, their own furniture their own tools. Things that today we might see his art or design for them were simple traditions of how to live. Human beings throughout our existence have had rituals and traditions to bring us together into communities, and to establish identities as members of those communities.
But with the industrial revolution, this started to change. When the peasants were pushed off the land to go and work in factories, their new employers required long hours. They didn’t want work interrupted by people singing on the line or taking a day off now and then for a festival or a feast.
As I’ve described in another video, the idea of the romantic author arose, which separated art from society so that artists were someone special outside everyday normal life. In the twentieth century in the late nineteenth century we had the introduction of many technologies – sheet music, inexpensive newspapers, radio, the gramophone – that further professionalized culture.
I’m going to illustrate the change with a particular story set in New York in 1947, when a movie called The Naked City was made. I got this at my local library, and on the DVD you could see an interview with a guy named James Sanders. Sanders talks about why this is an important film. First because it was actually made in New York: until then, Hollywood usually mocked up New York in a back lot in California somewhere instead of actually going there. The other reason is because it showed what New York was like at the time. And New York at the time had a vibrant street life, where children were playing in playgrounds, people were leaning out of windows, people knew their neighbors – and this was a working-class neighborhood of immigrants. As Sanders says, it feels like Rome or Paris or some European city, not like what New York became about thirty years later in late seventies and early eighties.
But what sanders says that’s really important, he says, “what you see in The Naked City, in virtually its last year of existence, is a kind of a way of life . . . until that year or the year after and then it would all change.” The reason it changes, he says, is
because a couple of years later television came to New York city: and when that happened, instead of sitting out on their stoops and talking to passersby, many people went inside to watch TV. My wife grew up in China and she saw the same thing happen there in the late seventies in the early nineteen eighties. Her neighborhood is still pretty vibrant, but she says how she could see in the evening when the TV shows came on people left the streets to go in and watch TV.
In Robert Putnam’s book Bowling Alone, he details a steep decline in social participation, in social capital, community involvement in the last third of the twentieth century in the United States, from the nineteen sixties onwards. One of the chief factors he points to is the advent of television. In particular, he mentions a Canadian study of a community up in Canada’s north. When TV arrived there in the sixties a team of researchers went in to see what would happen: and indeed the community life changed and faded away.
What we’ve done effectively is we’ve outsource our culture. Where before it was something we did ourselves, now it’s something that’s done by others for us. So we come to see culture as something that we consume, and not something that we do.
Which brings me to cat videos.
Now cat videos are often seen as not being very good. But that misses the point. The point is not whether cat videos can compete with the output of Hollywood, but the active participation of the people who create them: that someone who makes a cat video is doing culture rather than simply consuming culture, and by doing that that person sees themselves as an active participant in making the culture in the society that he or she lives in.
Now it’s true that I’ve said as audiences we contribute significantly to the meaning and value of popular cultural works. But that situation is quite different, because by law, and as we see ourselves, we’re acting within somebody else’s world. As long as someone who creates a fan production based on Star Wars can only do so with George Lucas’s permission, then they can’t see themselves as acting publicly in the same way. It’s certainly possible that we can construct our laws and our culture differently, but that’s not how it is right now.
Historically we’ve had significant contributions that we’ve made to the communities that we live in. We used to physically build them. Barn raisings in the early United States in which people would get together to build a barn for a neighbor are one example. Historically also we’ve built the culture that we live in. But now the distance between our culture and our actions is quite great. Even the distance between the things that we do do for an employer is quite great; what I do for my job may only have an effect far away in the world and have very little impact on my community.
So we don’t see ourselves as investing in our lives and the society that we live in in the same way. But culture and participation in that gives us an opportunity to do so. This has a relevance for politics too. We often pretend that the vote of an individual makes a difference. But the truth is, as we know deep inside, it almost never does – and in any case voting is a very weak form participation in democracy. The truth is if we want to make a difference to how we are governed and the society that we live in, we need to collaborate with other people. And the relationships and values that we form around and through culture are fundamentals of that, just as is our identity and our sense of ourselves as people who act, who are active in our society and contribute to it.
Unfortunately, the habits of the twentieth century die hard. Corporations have become rich in a model where they are at the center and we are at the periphery; and they make the content and we consume it, often individually. They want a fight to maintain the profits that they’ve made. Where a model has worked they want to continue with it. Even if we contribute as audiences they want to capture and control that value for their own interest. So they’ve been warping the environment under which we can again participate in our culture. But I’m going to talk about that more in detail in other videos.