Section 14

Russell Brown yesterday posted a piece on Disney’s attempt to acquire trademarks on, amongst other things, Alice in Wonderland and Pinocchio.

Copyrights and trademarks are legitimate restrictions on speech; they protect the intellectual property of an idea’s originators without preventing the expression of any point of view. The value of a book or film doesn’t come from the physical labour required to create the medium but from the ideas embodied in the medium and the law is there to protect the value created.

The problem with Disney’s claim to Pinocchio and the rest is that Disney did not create Pinocchio. Disney created an adaptation of Pinocchio in 1940 but the original story was first published in 1883 by Carlo Collodi, that story itself based on older sources.

Disney is perfectly entitled to have protection for the intellectual property that they created but they cannot claim blanket rights over original sources.

Their application to the Intelletual Property Office of New Zealand (IPONZ) would give Disney exclusive use of all of these characters names on virtually any kind of merchandise. Giving these rights to Disney would not be protecting a value that they created but it would prevent others from telling or adapting stories that are rightly in the public domain.

The CYFSWatch affair and the Ministry of Social Development’s flailing around trying to decide how to deal with the threat of people expressing themselves with a new technology (and the Prime Minister’s frothing last year about “right-wing bloggers”) brings to mind an earlier time when authorities grappled with a new technology in a similarly ham-fisted manner.

Rodney A. Smolla describes what happened in his book Free Speech in an Open Society (ch.11):

Censorship was logistically simple for the Roman censors and Church until Gutenberg’s invention of the printing press in 1450. Handwritten books were laboriously produced by a small number of persons under the strict control of authority; there was no opportunity for the mass distribution of printed material challenging the orthodoxy.

It is no accident that shortly after Gutenberg invented the printing press, official authorities invented the first censorship bureau. In 1485, only thirty-five years after Gutenberg made mass dissemination of the written word a technological possibility, the archbishop of Mainz - the city where Gutenberg lived - created an office of the censor. The precedent took hold.

In 1493 the Venice Inquisition issued the first list of banned books; in 1559 the Church established the Librorum Prohibitorum, or Index of Banned Books, binding on Roman Catholics (and thus virtually the entire population of Europe). The Index was administered by the Office of the Inquisition, which continued to operate in France as late as 1774 and in Spain as late as 1834. (Today there is no Inquisition, but there is still an Index, though the Church now regards it as advisory only.)

Governments around the world reacted similarly to Gutenberg’s new technology. Censorship was instituted in Germany in 1529. The British monarch in 1559 chartered the Stationers’ Company and limited the right to print to the Stationers’ Guild, thereby hoping to check seditious and heretical speech. A series of British licensing laws were passed on the Stationers’ model, provoking John Milton to write his famous tract on free expression, the Areopagitica.

Governments and the Church burned books and heretics alike, but to no avail. The Renaissance and the Enlightenment followed. Smolla continues:

It is futile and foolish to enact our fears into law; law cannot and should not attempt to hold back the enormous tides of technical creativity that are altering the world around us. But we are challenged to manage these changes; to take into account how technologies alter the way in which we communicate, and thus necessarily affect our rules of freedom of speech; to understand how technologies may alter even the relationship of the individual to the state, and thus affect our thinking about how to ensure basic protection for civil liberties.

To repeat a Karl Marx quote I was reminded of today: History repeats itself, first as tragedy, second as farce. So, come on, just try and stop this new technology. I’ll be watching. And laughing.

The Dominion Post has as its lead business item this morning the suggestion that TV2 be sold to take advantage of changes in Australian media ownership rules.

Goldman [Sachs JBWere] analyst Rodney Deacon suggests that, with TV2 sold, TV1 could be transformed into a BBC-style, commercial-free, public channel fulfilling TVNZ charter obligations. Mr Deacon values TV2 at $392 million but said that, based on recent media deals, it could fetch $436 million.

There is absolutely no reason for the government to own TV2, which is simply a light entertainment channel that already operates on a fully commercial basis. There is considerable support for keeping TV1 in the government stable and perhaps even reforming it into a commercial-free public broadcaster.

Baby steps have already been taken in that direction. TVNZ had a “charter” foisted upon it by the government in 2003, since when advertising revenue has fallen and the audience for TV1’s flagship 6 o’clock news had dropped 26 percent. Top presenters have resigned or been pushed out, taking top producers and technical staff with them and this series of disasters today claimed the job of Bill Ralston, TVNZ’s head of news and current affairs.

The biggest problem with state-owned television has nothing to do with money or programme quality, it goes to the very core of state ownership. A state owned broadcaster will usually (as TVNZ does) have a polticially-appointed board. This means there’s a far greater chance of the state interfering in the running of the broadcaster.

We saw an example of this in late 2005, when former TVNZ chief executive Ian Fraser resigned. At the time, he said:

“I should make it clear that this is not about the TVNZ board losing confidence in its chief executive. It’s about the fact that I have lost confidence in my board.

“The board of TVNZ is politically appointed. That makes it even more critical than it would be for a commercial board to stand well back from the day-to-day running of TVNZ, particularly our news and current affairs operation.”

It is imperative in a free society that the state does not control our news outlets and, for that reason, not only TV2 but also TV1 and Radio New Zealand should be sold.

Sergey Brin, co-founder of Google, has admitted that bowing to Chinese requests to censor search results was a mistake.

Google, whose motto is famously “Don’t be evil”, colluded with the Chinese Government in their construction of “The Great Firewall of China” by filtering Google’s search results to remove references to topics such as Falun Gong and the Tianenmen Square massacre.

Brin, speaking at the World Economic Forum in Davos, said that he regretted the decision to censor because the company’s reputation had suffered in America and Europe.

Michael Arrington at TechCrunch notes,

I’m glad that these remarks were made somewhat informally and without massaging from Google PR. It is a rare glimpse into the heart of an organization struggling with coming to terms with its own power, still only a few years old. But if Google wants to stay in the good graces of the smug western crowds, they need to say they regret working with the Chinese government because that government is evil, not because it turned out to be “a net negative” business decision.

Ministry of Social Development (of which Child, Youth and Family - CYF - is a part) CEO Peter Hughes’ decision to try and censor the CYFSWatch blog has badly backfired.

As of Friday afternoon, the site is still up and running. Google has so far stood firm - talking to the NZ Herald, Google spokeswoman Victoria Grand said,

We only remove content from a blog if it expressly violates the terms of service or if ordered to do so by a court order.

And public interest is huge. No one would ever have heard of this site if Hughes hadn’t launched his doomed censorship campaign.

As an indicator of how much interest there is in this now, traffic to this blog has more than doubled since I posted on the topic on Wednesday lunchtime. The top ten search queries landing here at the moment are:

1. cyfswatch
2. cyfs blog
3. cyf blog
4. cyf name and shame
5. cyfs watch
6. cyfswatch blog
7. name and shame
8. cyf
9. cyf watch
10. cyfswatch new zealand

and so on into at least the top thirty.

I would refer Hughes to my previous post on Scarcity and ‘psychological reactance’, which pointed out that censorship not only makes people far more interested in the information under threat, but also makes them more inclined to believe it.

Dr Philip Nitschke is planning to launch his latest book The Peaceful Pill Handbook in Auckland next month (Dominion Post, Jan 26, pA5) and there are concerns that the Office of Film and Literature Classification (OFLC) will “review” the book.

The book includes recipes for fatal drug cocktails and instructions on how to make a “peaceful pill” - a DIY suicide tablet.

Office of Film and Literature Classification spokesman David Wilson said it had not reviewed the book, but it was possible it would do so because of the content.

It would most probably be reviewed for criminal activity, he said.

Though suicide is not illegal, it is a crime in New Zealand to incite someone to take their own life.

The office could ban the book or place restrictions on its purchase, including an age limit.

When the book was published in the United States in September, it was classified as a prohibited import by Australian Customs. A more recent decision by the Australian OFLC has meant that the book can be sold to people over 18. Importing the book is still banned and the Australian government is seeking a total ban.

Dr Nitschke’s visit to New Zealand for the book launch is already under a cloud as the Medical Council of New Zealand has written to the Ministry of Health seeking Dr Nitschke’s prosecution here.

The Medical Council of NZ doesn’t want people hearing about euthanasia. They have written to the Ministry of Health claiming that Australian euthanasia advocate Dr Philip Nitschke would be practising medicine without a licence during a scheduled trip to New Zealand. He plans to hold two workshops for Exit International.

Dr Nitschke’s last visit to New Zealand in February last year was met with the same response from the Medical Council but the Ministry of Health declined to prosecute, citing insufficient evidence.

Dr Nitschke says that his visit is not illegal: “It’s ridiculous to suggest that the provision of general information about, for example, Switzerland - where assisted suicide is legal - or Mexico … in any way constitutes medical practice. This is a matter of free speech.” (Dominion Post, Jan 24, pA10.)

Following his experiences in Australia’s Northern Territory, Dr Nitschke claims he has given up on political efforts to legalise euthanasia. He is now focussing his efforts on the development and promotion of the “Peaceful Pill”, which would present doctors and politicians with a fait accompli, rendering euthanaisia laws obsolete.

His book, Killing Me Softly, promises “a future where a ‘Peaceful Pill’ could revolutionise euthanasia just as the contraceptive pill revolutionised birth control a generation ago.”

Dr Nitschke claims that doctors have a stranglehold on the dying process and regard death as an affront to their profession to the point that they will completely ignore a patient’s wish to die peacefully at a time of their own choosing. The Medical Council looks as if it’s keen to maintain that stranglehold and is quite happy to use the power of the state to silence its critics.

Lindsay Mitchell is reporting (UPDATE: So is NZPA and the NZ Herald) that Ministry of Social Development CEO Peter Hughes has “instructed lawyers to work 24/7 doing whatever they have to, to shut down the CYFS Watch blogsite.”

CYFSWatch is a controversial new blog that is attempting to hold Child, Youth and Family staff accountable for their allegedly destructive actions by publishing ‘name-and-shame’ articles about the individuals involved in various cases.

CYF is likely to be under pressure from the PSA, its staff’s union, to do something about the site (UPDATE: PSA press release), which is threatening to publish the personal details of CYF staff including photographs and home addresses.

If the allegations made on the site are true then the authors have every right to publish them, however “robust” you might find their methods. If not, the answer is not for an arm of the government to shut down the site but to sue the authors for libel although, given their anonymity, that could prove difficult.

It will be interesting to see what CYF does here and, if it comes down to it, whether Google (Blogger’s owner) will do the government’s dirty work and censor the site. Given the nature of the Internet, any information that is censored will no doubt just pop up somewhere else.

UPDATE: Around the blogs:
Not PC: When bureaucrats attack
Kiwiblog: The CYFSWATCH Blog
No Right Turn: No freedom to criticise CYFS

In Robert Cialdini’s book Influence: The Psychology of Persuasion there’s an interesting discussion of people’s reactions to censorship.

The chapter on scarcity talks about how a perception of scarcity makes something more desirable. It covers how “compliance professionals” (i.e. salespeople, advertisers, con-artists, etc.) use scarcity to push people into making buying decisions and how being told that we can’t have something makes us want it more (”psychological reactance”).

In the case of censorship, being told that we’re not allowed to read or view something makes us all the more eager to do so. Moreover,

The intriguing thing about the effects of censoring information is not that audience members want to have the information more than they did before; that seems natural. Rather, it is that they come to believe in the information more, even though they haven’t received it. For example, when University of North Carolina students learned that a speech opposing coed dorms on campus would be banned, they became more opposed to the idea of coed dorms. Thus, without ever hearing the speech, they became more sympathetic to its argument.

This raises the worrisome possibility that especially clever individuals holding a weak or unpopular position can get us to agree with that position by arranging to have their message restricted. The irony is that for such people - members of fringe political groups, for example - the most effective strategy may not be to publicize their unpopular views, but to get those views officially censored and then to publicize the censorship.

Perhaps the authors of [the United States’] Constitution were acting as much as sophisticated social psychologists as staunch civil libertarians when they wrote the remarkably permissive free-speech provision of the First Amendment. By refusing to restrain free speech, they may have been attempting to minimize the chance that new political notions would win support via the irrational cause of psychological reactance.

The Dominion Post is reporting this morning (Jan 20, pA3, not online) that the Smokefree Coalition is lobbying the Film Commission and NZ on Air to withhold funding from productions that “overstate or glamorise smoking”.

A ban would probably include TV3’s hit show Outrageous Fortune, which has received more than $22 million in NZ on Air funding and repeatedly featured its starts, including lead actress Robyn Malcolm, smoking.

This demand for withholding of state funding is a classic example of ‘censorship by privilege’ - the showing of smoking on TV would not be banned (direct censorship), but the state would favour programmes that toed the politically-correct line by funding them at the expense of others. Not PC posted an excellent article on just this topic back in December: “The establishing of an establishment” - a different kind of censorship.

NZ on Air active chief executive Bernard Duncan said it was unlikely the agency could ban smoking because that would influence editorial content, but warnings were a possibility.

Duncan has got it right. State funding of the arts, if it is to occur, must be done with a neutral point of view. Anything else would constitute censorship by privilege. Funding decisions must be made on the basis of artistic merit and other such considerations, not to push the values of a political lobby group.

Sadly, far more people are interested in Big Brother the TV show than in Big Brother the all-seeing state that punishes thoughtcrime.

The utterances of some under-educated, famous-for-nothing Londoner to Bollywood star Shilpa Shetty has caused international discomfort (of sorts) between Britain and India.

The show has precipitated a record 30,000 complaints to Ofcom, the British Communications regulator. (This may be helped by the fact that they have a great big “Complain to Ofcom about Celebrity Big Brother” link at the top of their homepage to drum up business.)

Comment of the day however, and advice that more people should listen to, comes from Conservative Party leader David Cameron:

“There’s a great regulator called the off button and I think we should use it.”

Sheik Feiz Mohammed’s call for his followers to “have children and offer them as soldiers defending Islam” has attracted deserved outrage in the days since his “Death Series” DVDs were posted on YouTube (they have since been removed).

Sheik Mohammed is already under investigation for his links to a group arrested in Sydney during an anti-terrorism operation and is now being investigated in conection with these videos. Australian officials are calling for the DVDs to be banned and for Sheik Mohammed to be prosecuted for incitement to violence, inciting racial hatred, sedition, or presumably whatever else can be made to fit.

Idiot/Savant at No Right Turn rightly points out that

Prosecuting Mohammed is likely to [turn him into a martyr for freedom of speech, and give his views far more prominence and credibility than they deserve], with the added bonus of symbolising Australia’s hatred of Muslims - something which is not exactly going to help in the battle for “hearts and minds”.

Freedom of speech cuts both ways, and applies to views you don’t like as well as those you do. Sheik Mohammed’s views are vile and hateful, but they do not in and of themselves harm anyone. They are offensive, but giving offence is not harm.

I/S also makes an “obvious” comparison to the David Irving case. I don’t think the comparison is as obvious as I/S makes out and it downplays Sheik Mohammed’s evil. Irving promotes a demostrably false version of history that many, particularly Jews, find offensive. As noted above, “giving offence is not harm”.

Sheik Mohammed, while causing no direct harm himself, calls for others to do just that:

“Teach them this: there is nothing more beloved to me than wanting to die as a mujahid. Put in their soft, tender hearts the zeal of jihad and a love of martyrdom.”

I.e., brainwash your children to kill themselves and murder others.

It is important that these words are said out loud, in public. Not so that people can follow his instructions, but so that we can truly understand the nature of freedom’s enemies; so that those who would claim that Islam isn’t that awful feel compelled to make their case in public.

The incitement to violence here is not direct enough to warrant a ban. There is still room to think between the impulse and the response. And the educational value of having the views of these so-called “leaders” aired in public is immense.

UPDATE 26/01/07: Dr Mirko Bagaric, head of the Deakin Law School in Melbourne and NZ Herald guest columnist, agrees in part.

President Hugo Chávez has taken a further step towards turning Venezuela into a Soviet-style socialist republic with his decision not to renew Radio Caracas Television’s licence.

Much to the bane of the government, [RCTV] also features Miguel Angel Rodriguez, whose three-year-old program, “The Interview,” makes mincemeat of Chavez’s government every weekday morning. Sitting before a giant screen where Chavez’s speeches are replayed, Rodriguez and his guests, usually staunch foes of Chavez, dissect the president’s statements and declare his government anti-democratic and incompetent.

“Could we say to Venezuelans that a person of this sort, Hugo Chavez, is rising up against the liberty of Venezuelans?” Rodriguez asked a guest on a recent morning. “Is this constitutional reform, the enabling law and this giant step to consolidate 21st-century socialism a method of finding a legal way to install totalitarianism?”

Chávez is certainly leading Venezuela down the path to Cuban- or Soviet-style socialism and his closing down of media that disagree with him illustrates his totalitarian leanings. Chávez’s cheerleaders will often point out that he was democratically elected. They would do well to remember that democracy is there to support human freedom, not the other way round.

UPDATE 31/1/07: Chavez’ power is about to become total. The National Assembly is ready to pass a law allowing Chavez to rule by decree.

Former Thai prime minister Thaksin Shinawatra is still having an influence on the country’s politics despite not having been back to Thailand since the coup that removed him in September.

The military government is unhappy about this and has attempted to block interviews with him from being shown. This week an interview he did while visiting Singapore was broadcast on CNN, which was blocked both on-air and online.

Thanks to YouTube you can see both sides (and with the speed that technology moves, the people of Thailand should be able to see both sides as well, no matter how many web-sites the government blocks).

Here’s what the rest of the world saw:

And here’s what was broadcast in Thailand:

Ironically, one of the original complaints that the military made against Shinawatra when deposing him was that he used his position to compromise freedom of the press. Plus ça change…

Hat tip: Boing Boing.