Bruce Sterling, 2008. Photo by Guido van Nispen.
I've been ready Bruce Sterling's The Hacker Crackdown: Law and Disorder on the Electronic Frontier, because it really seems like "required reading" to understand the background of the Aaron Swartz case and that of Matthew Keys and other hackers and hacker accomplices. Read up on these on my other blog Wired State.
There's a lot there in this landmark book from 1993 and I'm even going to re-read it to think about it some more. It probably has more about Mitch Kapor than any other public source I know. There is very little else around about Kapor, especially in the years since about 2005-2006 when he stopped blogging and became more mysterious.
Basically, I found myself with this operating premise: had I known more about him and EFF -- had I read Sterling's book seriously in 2003, let's say, I would never have spent a dime on Second Life and I might not have invested as much time and effort as I did in trying to reform the society's rules and corporate practices or lobbying for various forms of progress in the TOS and policies.
Oh, it's easy to say with hindsight, and had I read this book in 1993 as avidly as I read, oh, The Soul of the New Machine, I might not have understood its real criminal dimensions without the intervening 10 years of experience. Even so, I doubt I would have been persuaded by its essential sinister argument: that the technological revolution, like the natural resources and transportation revolutions before it, with its ensuing tycoons, required the same kind of criminality to be built into it -- this time as "science" and "innovation".
Oh, I could see what Kapor and the rest of them were all about pretty early on -- not serious about intellectual property and avatar rights. I get all that. And it was all obvious in terms of the gambit Lawrence Lessig indulged in -- praising SL as a way of fighting the typical corporate TOS he didn't like as it grabbed people's IP and threatened draconian punishment for violating the corporation's IP -- he thought giving "the little guy" IP was something that was a wedge in that larger goal and that "the little guy" would just want to "share" stuff anyway. He dropped it all after awhile when a) his Creative Commons licenses were hardly ever used b) people preferred selling digital creations, claiming IP copyright and c) not sharing as much as he thought they would or could browbeat them into doing, in fact, despite the plethora of freebies. People like selling stuff; they like getting paid.
The IP problems and other political issues were clear, of course, and when Kapor said we were misfits and such and pulled away from much engagement with the world, speaking only of his own "liquidity event," I definitely didn't need a blimp to give me the message of cynical uncaring sheathed in betterworldism. Take from the middle class in fees and more fees in your business, give to the poor in your nonprofit foundation schemes, make yourself rich from the squeezed middle class' fees -- and promote socialist theories in your foundations the whole while that tend to undermine that middle-class small and medium business class that doesn't have the scale and the lack of ethics to do big-time capers like you do. It's Ebay's formula as well -- Pierre Omidyaar was also an early investor no longer involved. He got out. They all did or will.
But what I found more startling was the insight I got from Sterling was the sheer criminality being supported of hacking and phreaking (phone intrusion). There never is really much of a crackdown, in the sense that only a few people go to jail for more than a few months. Most of them get off. They get off because Mitch Kapor, John Perry Barlow, and their lawyers in EFF help them get off -- and therefore move the slider of legality over to their side -- sell the proprietary software, make the millions, then spend the rest of your life liberating everybody else's software, digital products, privacy -- and security!!! See if you can will utopia into existence!
When you read the elaborate and contrived arguments in Sterling's book used to exonerate people who really did commit crimes -- like hacking into and stealing the 911 manual for a phone service, exposing the people of the US to harm if they were attacked by enemies who could take advantage of this and put the 911 system into disarray -- you just boggle. They manage to take this very real threat -- threat taken very seriously today by government at home and abroad -- and they convert it into a non-crime like "the copying of a document that has no victims" or "exploring of a system" etc. If you prosecute this, why, you prevent bright kids like Philip Rosedale or Steve Jobs from exploring and tinkering and innovating.
The 911 document isn't really code anyway, they say; it's just an organizational document, it isn't worth much, it doesn't have much in it, etc. etc. Read it -- and you will the sinister logic all the way down. No company can have proprietary documents. Even companies with critical missions. If a hacker takes them and posts them on electronic bulletin board systems and hostile actors get them, too bad, it's not significant, and anyway, it's prosecutorial overreach to take those people's computers because hey, you took games and a PhD thesis along with it. And so on. Endlessly Tragically Misunderstood Artists.
John Perry Barlow claimed they were moving the Constitution online, so that "unreasonable search and seizure" in violation of the 4th amendment couldn't take place online more easily than it does offline. Yet the unreasonable search and seizure that hackers did of other people's individual or corporate private property was thereby sanctioned, as criminal law got left behind in the dust of Barlow's Wyoming ranch in the move to the Electronic Frontier. The Internet is a special autonomous realm so we get a pass with stealing stuff because you can't stop the copying of it, but oh, hey, we want the Constitution to apply to us and aid and abet us further in our criminality. It's a terrible, terrible racket. A racket that has set up our entire country to be weakened by our own hackers and then made us vulnerable to Chinese and Russian hackers. Thanks, guys!
What Sterling himself concedes is that this criminalization and exoneration of criminal hackers took place not as actual judicial decision, not as landmark judgements in court cases, but through pressure and even harassment from the community of hackers and their lawyers and friendly media -- and through cases merely being dropped, and a kind of social hack that Kapor and lawyers effected with media spin. We're going to be a long time in undoing the damage that Kapor and EFF has inflicted on our society by the criminalization of the fledgling Internet and perhaps we will never recover.
Meanwhile, I had an interesting chat inworld with someone who had a frivolous avatar name and a "I just want to have fun" description on her 2008 avatar profile, but who turned out to be a lawyer with the same default harsh opinion about IP in virtual worlds avatar rights that most corporate lawyers bring to the SL situation. Enjoy. The name has been removed.
[21:56] Prokofy Neva: Do you need help?
[22:09] Prokofy Neva: if you need help leave a detailed message and state your location
: User not online - message will be stored and delivered later.
[22:13] Prokofy Neva: you wrote to me
: I saw you at my 'Home" and notice you're form 2004! I was just commenting that is amazing
[22:16] Prokofy Neva: Yes it is, and I'm not even the oldest, there are some from 2002
:you must has seen and done some things Prokofy
[22:17] Prokofy Neva: well I was just thinking had I read Bruce Sterling's Hacker Crackdown back in the 1990s I would never have spent a dime developing anything here
: ummm.....nope I jave no idea what you;re talking about :P
[22:21] Prokofy Neva: well I'm thinking out loud, and I will write a blog post about it, but basically, I had no idea how much the owners of this company do not respect property rights, copyright, etc
: ahhh...isn;t it just a game?
[22:22] Prokofy Neva: well not for the people in businesses here
: isnt that justa business in a business?
[22:25] Prokofy Neva: sure but if you can't be sure of your equity because they don't prosecute thieves or provide any guarantees and enable griefers to harm your business by letting weapons to be sold, they're killing their own business customers
: by SL is the business....anything within SL is their IP
[22:31] Prokofy Neva: No, actually they grant IP to any user in their TOS in fact, and that has been long established, that's not at issue
[22:32] Prokofy Neva: what the issue is, is that they do not protect against copybotting sufficiently and griefing sufficiently and then there are other issues like their competition with their own customers, but that's not foretold by Sterling, it's more about their attitude toward other people's copyright other than their own
[22:32] Prokofy Neva: Mitch Kapor made his millions on proprietary software and was happy to litigate to keep his patents, now he wants "information to be free" and won't endorse SOPA
[22:32] Prokofy Neva: but I knew that about him
[22:32] Prokofy Neva: what I didn't realize is how methodical they were about trying to de-criminalize crime
[22:33] Prokofy Neva: had I known that, I wouldn't have dropped a dime here
: yeah, but isn't it like 'theirs'? it is not a bank, so if you put money into it, you're legally handing it over like any site you spend money on. I look at all the people who build stuff who think they own it and laugh. I am a lawyer and would have a hard time convincing myself that anyone has any rights to anything they make here. If they sell stuff and make money it is not a business. SL is the business and I am sure they are doing quite well out of it, investing all the $L that people give them every day.
[22:39] Prokofy Neva: Yes, but they get a percentage of currency sales and they make money on server rentals, and they need to do due diligence in order to ensure their customers are not hosed
: I disagree
[22:40] Prokofy Neva: I mean, if Seagate ran their server rentals or IBM ran their business machine consulting businesses with their prosumer customers and b2b customers like this, it would be a riot
[22:40] Prokofy Neva: Yes but the terms of service do spell out unlike many other services that you do indeed own your IP
[22:40] Prokofy Neva: they do indeed back that up and that is not the issue
[22:41] Prokofy Neva: they pride themselves as being pioneers in that regard
[22:41] Prokofy Neva: the "land ownership" is another manner, that they don't offer or imply any more after some lawsuits
[22:41] Prokofy Neva: they've now fixed their TOS to reflect that
[22:41] Prokofy Neva: back in 2004 they'd say "Own your own land!" etc
: the only business here is SL. When you use your credit card to buy $L that is the only transaction....selling a house for $2000L is not a business
[22:41] Prokofy Neva: that's now gone
: that is a game
[22:41] Prokofy Neva: No, they re-sell their servers to secondary b2b customers, and that's their bread and butter
[22:42] Prokofy Neva: the model is one of a IBM sellign business services or Apple selling
[22:42] Prokofy Neva: they do indeed conceive of those land barons they have as their prosumers
[22:42] Prokofy Neva: they even given them bulk discounts and special perks
[22:42] Prokofy Neva: and the businesses with content which make a lot of money -- they coddle those
: sorry, I thought you meant people who sell things in SL and on marketplace
[22:42] Prokofy Neva: to the extent they've done anything to protect IP here from griefing it's due to that lobby
[22:43] Prokofy Neva: well but them too
: if they have business outside SL I am not aware of it
[22:43] Prokofy Neva: read the TOS, they grant IP, they acknowledge the importance of these people generating revenue for them
[22:43] Prokofy Neva: they now have about 4 products they sell
[22:43] Prokofy Neva: the bulk renting of whole servers is in a sense the "land baron industry" of SL without which they would not survive
[22:44] Prokofy Neva: those are the people that give them their $75 mllion in profits every year
[22:44] Prokofy Neva: and each little business like mine or even if you have only a 512 piece of land, you are partaking in that model
: the land in SL you mean or server rental that has nothing to do with SL?
: but if I was to buy a parcel of land, I would not own it
: that was my point
: it is made up
: I'd own nothing....the only thing that would have occured is I have paid some money to play a game
: I might be able to pretend to sell it to somone, but that is only part of the same game
[22:46] Prokofy Neva: well but you should read the TOS and the history, they consciously made a different kind of proposition that most MMORPGs or virtual worlds
[22:47] Prokofy Neva: They consulted all the gurus in their day and had some of them on their board, and they created a different TOS unlike any in Silicon Valley before or since
[22:47] Prokofy Neva: they didn't have the Instagram TOS
[22:47] Prokofy Neva: and that is why they are still in business, they have a business model, they sell the invisible nothingness of the Internet this way in ways that Twitter can't
: no, they sell an expereince to people
[22:48] Prokofy Neva: You own your own IP, and you can seek protection from them of that even outside the DMCA process, but you do'nt own the frame it occurs in, the game itself, the servers; yet they concede that the server secondary market is vital to them and they have set up various practices regarding it over time
[22:48] Prokofy Neva: The people who rent 1000 servers from them aren't role-playing landlord
[22:49] Prokofy Neva: you might be roleplacing fairy princess on your 512, or landlady on your half of a sim
[22:49] Prokofy Neva: but people with 100 or 1000 sims are their business partners and they treat them as such
: stakeholders, not business partnser
: they own nothing
[22:50] Prokofy Neva: they are not selling "an experience" to the buyer of their sims, who then guarantee them customer care and return customers who raise their bottom line by buying currency and content they get a percentage of
[22:50] Prokofy Neva: They don't claim they give ownership anymore, but they don't say those people are fairy princes
[22:50] Prokofy Neva: they say they are their vendors, in a sense
: gave SL a lot of money I am sure and feel they have equity but it is not different to the guy you subscribes to a nude girl site, they own nothin
[22:50] Prokofy Neva: it's like the Apple model
[22:50] Prokofy Neva: You keep repeating "you own nothing" as if that's an excuse then to treat people like shit and gouge them
[22:50] Prokofy Neva: it's not
[22:51] Prokofy Neva: I rent my apartment from a landlord, but that doesn't mean he can shut off the water on a whim
[22:51] Prokofy Neva: in real life, there are certain contractual obligations in law
: differen contract
[22:51] Prokofy Neva: you can't just arbitrarily not lock the doors and allow thieves to steal all the tenants' belongings
[22:51] Prokofy Neva: and in simulated life they realize that too
: there is not contract in SL other than the offer of money in return for an expereince
[22:51] Prokofy Neva: because they take measures to enforce their TOS
[22:51] Prokofy Neva: just not sufficiently
[22:52] Prokofy Neva: no, read the TOS, it has absolutely different clauses than any other such service
: and there is not terms to that insofar as $ for return
[22:52] Prokofy Neva: it evolved over time to have major concessions to power users and vendors
[22:52] Prokofy Neva: read it and come back to me because I don't want to keep repeating this
[22:52] Prokofy Neva: lindenlab.com has it
[22:52] Prokofy Neva: there are like 6 clauses having to do with privacy, IP, etc. etc. that are unlike anything else on earth
[22:52] Prokofy Neva: certainly not like FAcebook
[22:53] Prokofy Neva: and other contracts of adhesion
: TOS is not a contrcat
[22:53] Prokofy Neva: well for all practical purposes it is
: all part of the same game
: except in law
[22:53] Prokofy Neva: by inviting people into Concierge status or Atlas status they are no merely "game players"
: contract is offer and acceptance pure and simple
[22:53] Prokofy Neva: the TOS has been pronounced "unconscionable" by one judge
: yes they are game players
[22:54] Prokofy Neva: google all the SL court cases they are interesting
[22:54] Prokofy Neva: yes but no one has been able to pull the Sony case norms on SL beacuse it has a different TOS
: no different to a hotel luring high rollers with helicopter ride to the penthouse
[22:54] Prokofy Neva: Bragg v. Linden could have been thrown out on the grounds of the Sony v. Mendez or whatever it was called
: no contract untiul the hand over the crdit card at reception
[22:54] Prokofy Neva: that estabilshed a game platform doesn't have to giev you first amendment rights
[22:54] Prokofy Neva: but in Bragg, the settlement (not decision) involved restoration of property and he came back in "the game"
[22:54] Prokofy Neva: that was significant
[22:55] Prokofy Neva: any other platform could have ejected him without a backward look for hacking the auction and selling hot sims
[22:55] Prokofy Neva: WoW would have instantly ejected him, end of story
[22:55] Prokofy Neva: but he got the settlement he did because of the representations they made
[: okay, let me as a question, if SL turn off tomorrow, where would you be?
[22:55] Prokofy Neva: I would be doing my regular full-time real life job
: and they'd have not obligation to give a cent back to anyone
[22:56] Prokofy Neva: I may not have realized the extend of the criminality of these people without benefit of Sterling's book (who sides with them) but I could see how they behaved on day one, which was not consistent with the rule of law
[22:56] Prokofy Neva: well they h ave made compensations in the past
[22:56] Prokofy Neva: they've made them to me
[22:56] Prokofy Neva: they have a history of offering compensations for excessive down time
: that is different
[22:57] Prokofy Neva: your zeal in defending the rights -- which are essentially politically-set norms -- of these New Age robber barons is touching
: that is more like the lure of the chopper
[22:57] Prokofy Neva: but life is evolving past your 19th century thinking
[22:57] Prokofy Neva: Facebook customers revolved and got the TOS changed
[22:57] Prokofy Neva: Instagram customers revolved and got the TOS changed
[22:57] Prokofy Neva: Long before them, SL customers revolved and got HUGE changes relatively speaking
[22:58] Prokofy Neva: the era when software producers can run roughshod over people is over
[22:58] Prokofy Neva: they are no different than vacuum salesman
[22:58] Prokofy Neva: people can and will sue and wrest out of them proper behaviour
[22:58] Prokofy Neva: This is America
[22:58] Prokofy Neva: It's not China
[22:58] Prokofy Neva: If these companies cannot self-regulate with their
[22:58] Prokofy Neva: TOS
[22:59] Prokofy Neva: they will see the regulation by the FCC and FTC, that day is coming, they fear that, that's why they pull back\
[22:59] Prokofy Neva: anyway this is an interesting convo but I have to go do my RL job now!
[22:59] Prokofy Neva: read the TOS and let's discuss again!
[22:59] Prokofy Neva: : )