October 28, 2003

DMCA Exemptions Diary, a.k.a. more Why I Quit Censorware Research

Or, as a subtitle, "I tried it that way, and it didn't work"

[A friend suggested I add this clarification:
I post the following in the same spirit as I imagine one has when donating one's body to medical science: to help others who might be inclined to take a similar path. There are harsh realities in activism, especially if done without organizational backing and support. Let's hope that what happened to me won't happen to you.

I also checked with James Tyre regarding the mentions of him below, so I'm not breaking any confidences]

People say to me, "Seth, ignore the snipers and smearers. Don't let them get you down. Just work on building up your own reputation, and you'll succeed" (with sometimes, an unvoiced - or even voiced - addendum, that if I don't succeed, it's all my fault for not working hard enough or not doing things right). The problem with this advice, is that I've never known a proponent to ever be convinced they were wrong.

The Digital Millennium Copyright Act (DMCA) law has a provision where one can petition for certain exemptions to the "1201(a)(1)" anticircumvention provision. This is a process done every three years, starting in 2000. Then, there were only two exemptions granted, 1) malfunctioning software 2) censorware:

The [Copyright] office received 235 comments in 2000 during the first review of the DMCA, says Rob Kasunic, a senior attorney in the Copyright Office. Congress mandated a review process every three years upon approving the law in 1998. However, only two of those hundreds of comments in 2000 resulted in new exemptions, Kasunic says.

Previous Success

Seth Finkelstein, a computer programmer from Cambridge, Massachusetts, wrote one of those successful proposals.

Over the past several months, I've been carrying almost all of the burden of advocating for the censorware exemption to be renewed. This should have gotten me enormous reputation-building. Yet it's been next to nothing.

To start, I write a long renewal proposal. Then the nightmare begins. I'm offered an opportunity to testify in Washington DC in further support. I accept hastily, then privately begin to have severe doubts. I'm a programmer, not a lawyer or policy person. I'm setting myself up as a big target. James Tyre, a lawyer and long-time anti-censorware advocate, argues to me that it's important to do this. If the censorware exemption isn't renewed, that would be like an admission of error by the Copyright Office, that it shouldn't have been made in the first place. And as a carrot, there would be (reputation-building) press coverage, since this was one of only two granted exemptions and the first DMCA testimony session.

With great trepidation and wavering, I go through with it, though fearing I'm going to be demolished. I have a long hassle getting identification documents so I can fly. At this point, I've been unemployed for a long time due to the economic tech-wreck. But nobody will pony up the hundreds of dollars in travel expenses (yes, I asked various sources, nothing, I'm not representing any organization, the money isn't there). I have to pay everything out of my own pocket, and I am extremely unhappy about that, given my having been out of work for so long. I'm getting up at 4:30am in the morning to be on a 6:30am plane to DC, thinking all along how very little I want to do this. As I start to make my way through the Washington Metro, someone snarls the entire system by jumping in front of a train. Which would be an irrelevant detail except that it strongly adds to my sense of being in a tragic movie via portentous omens.

But fate smiles on my testimony. My opponent from the censorware companies, David Burt of N2H2, self-destructs. He ends up compared to the "Iraqi Information Minister" (not by me, by a lawyer, Jonathan Band, also testifying in favor of the censorware exemption). It's a great victory, for the exemption, and me.

But there's practically no PR coverage or credit at all. Oh, it's mentioned here and there, on a few specialty sites and blogs. But I don't get e.g. covered by the New York Times. That's disheartening.

When the transcript of my session is released, James Tyre mentions that it would be great to do an excerpt for a Censorware Project article, but for various good reasons irrelevant here, he can't do it himself, so could I? Likely we can get it publicized in Slashdot. But it has to go under his name, because of all the grudges against me. Since Slashdot is supporting Michael Sims as an "editor", if my name appears as the author, he'll abuse his editorial powers to trash it immediately as a submission, and nobody will go against him. We really do have to work around that problem.

I agree to write it this way, though I'm not happy about it. Note in what follows, I'm partly to blame. Right afterwards, though, I go through a two-hour long legal consultation, briefing a lawyer on all my censorware and DMCA issues, which I find emotionally exhausting (my joke about this is that sometimes I don't believe all that happened to me myself, and I lived through it!). Then in the next two days, I get bad job-hunting news twice in quick succession. While this is going on, I try to structure the article, but have trouble organizing it, and ask James Tyre more about how long it should be. It turns out we don't have the same understanding, just one of those failures of communication between two people about an editorial perspective. He wants not just some cut-and-paste excerpts, but to cover background, history of the exemption, on and on. I try, but I just can't do it. Every word seems to be rubbing my nose in my marginalization. Remember, I have to write all this, to be published under someone else's name, with Censorware Project getting the PR, all because the pettiness cannot be put aside in the slightest. I am not imagining this.

Why the hell can't it be under my name? Goddamn it, I think I do deserve Slashdot coverage Why do we have to play these stupid grudge-games?

But the upshot is that he's "miffed" at me, and I will get - no - credit - at - all here. Again, partly my fault, and I accept that. We don't hate each other. He's not wrong, I'm not wrong, But still a disheartening outcome all around.

Then I help James Tyre prepare his own DMCA testimony, which goes very well. Afterwards, he says to me, that when the transcript is posted, I'll find myself mentioned favorably in many places. However, in the context of my quest for coverage, I misconceive that remark as more metaphorical, that this time around the PR circuit, I'll get some reputation-credit. It turns out, no, he merely meant I'll be mentioned favorably many times in his testimony. Well, that's nice, I appreciate it. But in practice, nobody hears it. Not compared to the way I'm being attacked every single day.

Then I basically write all of our third-round joint reply. Everything has to be researched, referenced, footnoted with page and line numbers, on and on. Remember, I'm not being paid for any of this. David Burt, writing the censorware companies' reply, is being paid for it, it's his job. He takes the opportunity to use Michael Sims' domain-hijacking and smears, against me, to try to discredit my research via personal attack. All implicitly backed-up with famous net lawyer Mike Godwin's support of those attacks. The end of that little story is that privately, I end up being brutally flamed. But this piece is long enough so I'm going to skip over an account of that.

After all was said and done, I felt somewhere between suckered and deluded. As I thought of it, it's another case where for a project, I'd had credit dangled in front of me. But when it came time to pay off, well, nobody home. Yes, I willingly took upon myself the burden of advocating the censorware exemption. At the same time, all the talk about how it was important, how there would be coverage, i.e. I'd be building-up my reputation - in the end, it came down to a very familiar refrain: So sorry, you really did deserve better, wish it were some other way, tsk-tsk what a shame ...

The bottom line, of course, being that I don't gain in terms of myself, and insult to injury, if I write of my displeasure at such an outcome, that's accounted even worse (WHINER!, want some cheese with that whine, opening a whinery, etc. etc.).

This all was, to me, the ultimate proof that the build-up-yourself advice just does not work (at least for me). I'm putting in effort way above and beyond here, spending money out of my own pocket while unemployed, drafting DMCA reply after reply. And I can't even get favorably mentioned for it! In contrast, while I'm making myself a target, there's no downside whatsoever to any of the snipers shooting at me. Well, it's not as if, perhaps, I was doing important things, like annoying an airline captain on a plane via a "political statement" (or troll-pattern behavior) about being a suspected terrorist.

There is no organizational backing for me. There is no PR support for me. No, it is not enough for a few people to say they think it's wonderful that I do all this. After a certain point, from sheer practicality, it has to be appreciated in a manner that provides me with the means to buy food and pay rent. When potential lawsuits enter the picture, my censorware work is completely unsustainable. It's not worth it.

The next time around, as far as I'm concerned, the DMCA exemptions can go censorware'd themselves.

By Seth Finkelstein | posted in activism , censorware , dmca , memoirs | on October 28, 2003 02:19 PM (Infothought permalink)
Seth Finkelstein's Infothought blog (Wikipedia, Google, censorware, and an inside view of net-politics) - Syndicate site (subscribe, RSS)

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