Thank You Ms. Downing For Calling Attention To My Email To The Anchorage Assembly

Yesterday I sent an email to the  Anchorage Assembly.  I've been concerned about the disruptive behavior of a number of people who give testimony at Assembly meeting.  It's frequently demeaning and racist (calling Assembly members Faggots, using Jew as an epithet) and who otherwise attempt to prevent the Assembly from getting their work done.  There are also reports of people verbally and physically intimidating others who testify, both inside the Assembly chambers and out. 

I'd started a letter to the Assembly back in July.  Yesterday, after reading the ADN article about the man who made a long racist diatribe about Alaska Natives and homelessness,  I went through it, edited it a bit, and emailed it to all the Assembly members.  

This morning I got a comment on my last point that was simply a link to a Must Read Alaska* post.  

Actually, it was a relatively decent post by Must Read Alaska (MRAK) standards.  After discussing the incident and reactions, it then turned to my email (which was sent to all the Assembly members.)  In fact 85% of what I sent the Assembly was in the post.  Over 50% of the the MRAK post was my letter.  (I'm sure there is a check in the mail to pay me for my contribution.)  

The first part is a report of the incident and other people's reactions.  Then she gets to my email.  Mostly it's direct quotes, but she does say in the headline "university professor suggests ‘people’s brains have been polluted.'  She also says I want censorship 

"a letter to the Assembly about how to handle speech that is racist, hateful, or not welcome. He wants the public censored."

I never use the word censorship nor do I talk about unwelcome speech.  But I did use hateful and racist.  I guess she thinks those things are good.  That seems to be her biggest issues and you'd miss her comments if you blinked. 

I'd note 'pollution' was a metaphor here.  But I think it is apt and I explained it in the email.

What's telling is the tiny, but important, part she left out:  The conditions for participation in Democracy:  

• Sincerity - authentic discourse requires trust between participants that they are being honest and truly wish to find a solution. 
• Focus on specific issue - not simply ideological posturing without reference to some specific situation.
• Willing attention - Sincerely interested in the problem, willing to do the work necessary to get through the issues seriously, including listening attentively to what others say.
• Substantive Contribution - having a unique point of view, specific expertise, or something that helps the discussion move along - even just the ability to express the concerns of a class of people.

I quoted Fox and Miller who were examining what was needed for the public forum to work, that is to come to decent solutions to the problems the public faces.  

I have to thank Suzanne Downing for giving my email this much attention - much more than it would get from the Assembly members.  Much more than it would get on my blog.  

And she doesn't actually say anything negative about it.  I'm not sure whether she disagrees with the idea that brains can be polluted or whether she just thought that was an idea that would rile up her readers.  

She does also suggest that I'm proposing to censor people who speak at the Assembly.  I'd point out that I recognize that people have First Amendment rights to free speech.  But the Assembly has an interest in having orderly meetings and speakers who add to solving problems, not speakers whose intent is to spread hate, disrupt, and, yes, pollute the public forum.  Perhaps her intent was to rally the troops against what I see as a reasonable and logical attempt to honor people's free speech rights while also maintaining some semblance of order at Assembly meetings.  Maybe she recognizes it for what I intended and that's precisely why she's flagging it and hoping her loyal readers (some of whom are frequent Assembly disrupters) will  attack the suggestions and make it harder for the Assembly to use it.  We'll see.  

So my suggestions allow them to help people organize their thoughts better and to ban folks who cannot follow the rules.  It's not about what they say, but whether it furthers the Assembly's objectives to come up with ways to deal with the issues that arise or if it makes it harder to do that. 

And since Assembly meetings are online people can still view them.  And since people can send in written comments (or even leave voice mail messages), their freedom of speech is preserved, while allowing the Assembly to have orderly meetings.  

A note I did leave out of my letter, was that judges in court have this power to eject people who disrupt the proceedings.  While the courtroom and the Assembly chamber are not the same, both have an interest in conducting public meetings so they can come to a fair and reasonable resolution.  The point of public testimony is to get input from the public about the issue at hand.  It is not just an open forum to talk about anything, or to insult those you disagree with.  Just as the judge in a courtroom has the right and power to limit how information is introduced, the Assembly members have the right to limit speech that does not lead to resolving the issue at hand.  They don't have the right to simply cut off people who advocate solutions they disagree with.  But if someone's speech is not on topic or is disruptive, they can cut them off from oral testimony.  Written testimony can be submitted without disrupting the meeting and allows for people to get their ideas on the record.  The Assembly is not a Speakers Corner at Hyde Park  where anyone can say most anything.  The Assembly is taking testimony to add to their understanding of how to resolve issues facing the Municipality.  

I'd also like to clarify the Fair Use Doctrine here. From Stanford University:

"What Is Fair Use?

In its most general sense, a fair use is any copying of copyrighted material done for a limited and “transformative” purpose, such as to comment upon, criticize, or parody a copyrighted work. Such uses can be done without permission from the copyright owner. In other words, fair use is a defense against a claim of copyright infringement. If your use qualifies as a fair use, then it would not be considered an infringement.

So what is a “transformative” use? If this definition seems ambiguous or vague, be aware that millions of dollars in legal fees have been spent attempting to define what qualifies as a fair use. There are no hard-and-fast rules, only general guidelines and varied court decisions, because the judges and lawmakers who created the fair use exception did not want to limit its definition. Like free speech, they wanted it to have an expansive meaning that could be open to interpretation.

Most fair use analysis falls into two categories: (1) commentary and criticism, or (2) parody."

She only appears to comment/criticize a very limited part of what I wrote.  If it were parody there would be some transformation of what I wrote.  BUT, emails to the Assembly aren't copyrighted, so she can probably do what she wants with it.  

So, below is the full text of what I wrote to the Assembly.  The parts that appeared in the Must Read Alaska blog are in green.  The parts I sent to the Assembly that she did not lift verbatim are in black.  I'd note that she did give credit and she did use quotation marks.  

"Suggestions for the Anchorage Assembly on ways to get public testimony focused on the issues and to avoid disruptive and hateful testimony.

I offer this as a contribution to the discussions ignited recently in response to David Lazer’s recent racist testimony.  First there's an introduction to the concept of pollution of public discourse.  Then there are specific recommendations.  

Steven Aufrecht

Professor Emeritus, Public Administration

University of Alaska Anchorage

Underlying concepts for good public discourse  

Charles Fox and Hugh Miller, two public administration scholars, many years ago suggested some conditions for participation in a public discourse.  Without these, democracy cannot thrive.

The participants should all possess the following:

• Sincerity - authentic discourse requires trust between participants that they are being honest and truly wish to find a solution. 
• Focus on specific issue - not simply ideological posturing without reference to some specific situation.
• Willing attention - Sincerely interested in the problem, willing to do the work necessary to get through the issues seriously, including listening attentively to what others say.
• Substantive Contribution - having a unique point of view, specific expertise, or something that helps the discussion move along - even just the ability to express the concerns of a class of people.

Pollution of Public Discourse

What's that? If toxic chemicals get into the water system, the whole system has to be cleaned out before people can drink the water again.

When people come to the public forum, but insult their fellow citizens, spout half truths and complete lies, don't learn the complexity of issues, they are really civic outlaws who pollute the public forum. 

Our progress to finding alternatives that we can all reasonably live with is thwarted. Instead, the public forum is cluttered with rhetorical litter - lies, falsehoods, innuendo and clear cut slanders - that have to be cleaned up before we can go on. 

But it's not as simple as picking up trash. People’s brains have been polluted, misinformation has been planted, and people have lost trust in others, healthy debate dissolves into hostile conflict.    

The point of civic debate, theoretically, is to work out our disagreements. We:

1.  share ideas about the problem, the possible solutions 

2. identify facts, 

3. forecast consequences and costs. 

That’s the ideal. Separating the objective from the emotional is never easy. We want to allow for emotion in testimony, but we also must draw a line when emotion becomes polluting of the discourse and derails sincere attempts to deal with issues.

Recommendations

Point of the Assembly having the public speak is:

1. Hear their preferences
2. Hear the reasons for supporting one action/path over another
3. Gain additional facts about the costs (financial or other), impacts, etc. about one option versus another
4. Identify options that meet the needs of the most people, or minimally inconvenience the fewest people 
5. Get a sense of how many people support a position (though good polling would be more accurate than counting people at meetings)

Actions that pollute the public discourse:

1. Repetition of the same information
2. Addressing unrelated issues
3. Intentional misinformation 
4. Personal insults and attacks
5. Trying to get one’s preferred outcome through physical or verbal abuse and intimidation rather than reason and information

Strategies to encourage good public discourse and to discourage pollution of public discourse.  

1. Clarifying what is expected of speakers
1. Written guidelines for oral testimony
2. Video guidelines
3. Written public testimony form to help people focus their presentation
1. State your preference - A, B, C etc.
2. Facts supporting your preference
3. Reasons for your preference 
1. How does it affect you?
2. How does it affect others?
3. Costs/Savings it might entail
4. Additional facts/points that have not been raised

2. Offer the public a summary of the basic options, supporting data, costs, and impacts and ask speakers to address those points - particularly if they have something to add or refute
3. Assembly chair or members ask questions guiding the speaker toward answering the questions on the public testimony form - “Do you have any new facts to add to the discussion?”  
4. Use of technology to get the public’s views

1. Electronic surveys people can take live at meetings to show support for one or another option or point - these can be done via cell phones and can show results on the screen.  People watching from home should also be able to participate.  
2. Online written, possibly audio and video, options that people can use to submit their testimony.  The Alaska Redistricting Board had this option on their website which allowed people to submit written testimony online.  The testimony was then made available for all to see online.  Board members got packets of the testimony.
3. Investigate what other participation technology options are already in use in classrooms, in government public hearings, in  business settings

5. Consequences for people who violate the Assembly ground rules

1. There’s a difference between people who genuinely have trouble organizing their thoughts and those who are intentionally trying to disrupt the meetings.  The former should be encouraged and given help.  The latter should be given alternative ways to submit their input other than oral testimony at Assembly meetings.
2. There can be a hierarchy of offenses.
1. Level 1: Worst
1. Intimidation - name calling, insults, slurs directed at other members of the public or at Assembly members or administration representatives.  This includes physical and verbal threats that occur inside and outside the chamber.
2. Intentional disruptions that unnecessarily delay the proceedings.  This is trickier, however the Assembly needs the power to keep order at meetings and to eject people who regularly disrupt meetings and do not stop when asked to, 
2. Level 2:  Bad
1. Regular harangues that are disruptive rather than sincere attempts at resolving an issue
3. Level 3:  Minor 
1. Repetition of things already said (this can be handled with electronic polls)
2. Difficulty organizing one’s thoughts - this needs understanding, unless it is something that happens repeatedly from the same person, in which case, moving to written testimony or referral to Public Testimony Guidelines
3. Hierarchy of penalties  - should be appropriate to the offense
1. Banning from public meetings (online access is available and ability to make online written testimony means the person can still hear what is happening and can still participate, but without disrupting the public discourse.)
2. Banning from making oral testimony at public meetings. Again, they can still submit written testimony, all of which should be available to the public.

This is a start.  Obviously there are legal issues to be resolved.  But I believe that the ability to watch the Assembly meetings online and to submit written testimony means that people who are banned from giving public oral testimony or even from attending meetings because of disruptive behavior, can still have access to their First Amendment rights. The rules, warning steps, and penalties have to be clearly stated, and even handedly meted out for this to work."

*I should note that Must Read Alaska is written by a former Alaska Republican Party communications director and she has been supportive of the disruptive actions of the group Save Anchorage. It is hard to find objective reviews online. Here is an Anchorage Press piece that gives some background.

Who Owns Your Tattoo?

Anthony's arm

This isn't a trick question.  This was the gist of an LA Times article last week.   I was already sensitized to this issue by a tweet from Mark Meyer over the copyright of the Korean War Vets Memorial.

The comments in the article he linked to, made it clear that people have very strong opinions about things they know nothing about.  Well, they are very ready to spout off without knowing any of the details involved.

There are legitimate arguments on both sides of this, and the tattoo example pushes this into serious conflicting rights, but when people start off just saying, "This is stupid," it's not a good sign.  They have a gut reaction - which probably has some legitimacy - but that's just a feeling and they haven't thought it through enough to know if their feeling is appropriate let alone to explain that feeling intelligently to others.  Often, it appears, the feeling was based on ignorance of the facts.

My photo,* not the one in question, which is much better

Below is Mark Meyer's original tweet about the rights to the image on a US postage stamp of the Korean War Vets Memorial.

[*sorry, I had the wrong link to the photo before.]

Such hostility toward copyright—everything that's wrong with the photo business is in the comments here: http://t.co/THulbUV5kC
— Mark Meyer (@markmeyerphoto) October 2, 2013

Mark is a very good professional photographer who lives in Anchorage.  As I read through the hostile comments he mentions,  it became clear to me that there are two key issues here regarding ownership:

1.  Who owns the physical object (a sculpture, a painting, a book, a cd, etc.)?
2.  Who owns the copyright to that object?

This has been an issue for artists.  Someone buys a painting for $1000.  Ten years later, the buyer sells it for $40,000. Should the artist get a cut in the resale value?

There's little debate that the buyer owns the object, but does he then get all the appreciated value of the object as the artist becomes known?  I'm trying to figure out the underlying world views that separate those who think the artist ahouls and those who think the buyer.

The capitalist would say there was a fair trade, and now the object and its potential value goes to the buyer.   After all, the artist had the choice of selling for that price or not.   But did she?  Perhaps her rent was due when the money was offered.  And even though the object sells for $1000, she's only getting, after deducting materials expenses, $5 or $10 per hour.  Of course, it's even much less if we count the time and money spent on her art school degree.

But it's not so easy.  Capitalists also believe in copyrights and patents.  Those rights are even enshrined in the US Constitution.    That's why Samsung and Apple have been in court recently and why (legal) drug prices are so high.  Drug companies argue that all the work that went into developing the drug needs to be recouped or there will be no incentive to develop new drugs.  Though consumers might question how much of a profit and for how long should the drug makers get, especially when they own the patent on the only drug that cures a particular disease, thus leaving some people with the choice of paying (if they can) or suffering or even dying.

Doesn't the artist have the same claim to recoup the investment?  Sometimes, according to the California Arts Council:

Civil Code section 986 (California Resale Royalty Act) entitles artists to a royalty payment upon the resale of their works of art under certain circumstances. 

Those who would put fairness as their highest value would probably argue that the buyer really owes the artist a portion of the appreciated value. The law may give the buyer the right, but human decency requires the buyer to give a share to the buyer. After all, the buyer merely made a purchase while the artist worked hard and long to create the piece.  But that too is an assumption.  What about an artist who pays his lunch bill by drawing a quick caricature on a napkin?  Or an athlete who autographs a ball?  One might argue it's different if it's for free, for a fee, or in payment of something else.  And one could argue that an art dealer, who spends a lot of time looking at art and buys a lot of paintings from a lot of aspiring artists, is making an investment to help the struggling artist, but also taking a risk.  Most of those purchases aren't going to gain value and the winners help pay for the losers.  And that putting the piece in his home or gallery will cause others to notice and buy art from that particular artist. 

Open source advocates offer an alternative to the capitalist emphasis on individual rights and ownership.  While capitalists advocate that competition and personal greed stimulate innovation and the economy, open source advocates argue that sharing and community spur innovation and spread the fruits of innovation better.  They see copyrights and patents and proprietary software as obstacles to human advancement.   This might explain the commenters who felt that the US government use of the photo of the Korean War Vets Memorial (the Post Office had the permission of the photographer) was a use that benefited the general public.  I'm not sure how this argument applies to the tattoo dispute. 

There's an issue here that you might notice underlying all this:  power.  In theoretical capitalism, a fair market is one in which both parties have the power to walk away from a deal they don't think is fair.  A cancer victim doesn't have much bargaining room with a drug company if the company owns a patent on the only drug likely to save his life.  (Though there have been organizations that have bargained for classes of poor patients to get discounts on such drugs.)

And power is an issue when we get to copyrights and patents.  In the case of the artist who created the Korean War Vet Memorial sculptures, according to the comments in the article Mark cited, the US government (maybe the US Park Service, but I'm not sure; it was the Post Office that got sued)  did not include the copyright when they signed the contract with the artist.

And that's the rub for many of the commenters.  They couldn't, it seemed, mentally separate the object from the copyright for the object.  Essentially, this argument says "You own the object for your personal use and enjoyment, but if you then market it to make a profit, I get a share in that profit." Arguments (in the comments) that the govrnment could have bought the copyright when they bought the object seemed to fall on deaf ears. So did arguments that they could have negotiated with the artist before commissioning the stamp. Mention of musicians getting paid every time their music is played didn't sway them either.  The basic response was, if you buy it, you should be able to use it how you want.  Especially the US government, which, apparently, made millions off the image in sales to stamp collectors.

Again, it gets down to power.  How many artists have the power to insist on an extra charge for the copyright and then fight for their copyright, even when they have it?  Only those who have enough knowledge and money to hire an attorney or can get one to take their case on contingency.

Tattoos  

Laotian Dragon Tattoo  Shot With Permission

But what happens when the art is imprinted on your body?  What rights does the tattoo artist have over money you earn because of the tattoo?  What rights do you have over photographers or others who make money off your tattoo?  Legally, it would seem that the same copyright principles prevail, with the warning to make sure they come with the tattoo.  This came up, after I read Mark's tweet, in an LA Times artcle:  

Late last year, for example, Stephen Allen, a tattoo artist, sued video game maker Electronic Arts and former Miami Dolphins running back Ricky Williams over a tattoo Allen put on Williams' bicep. The tattoo appeared on the cover of EA's "NFL Street" video game. Allen claimed that the reproduction and display of the tattoo violated his copyright.
That case was dismissed in April at the request of the plaintiff, but because so many NFL players have tattoos, it got the attention of the NFL Players Assn. NFLPA officials began advising players to get copyright waivers from their tattoo artists. George Atallah, an NFLPA official, told Bloomberg Businessweek that the union recently cautioned its players: We know you love your tattoo artists, but regardless of whether you trust them, regardless of whether there are legal merits to the lawsuits that we've seen, just protect yourself.
 

There are a lot of conflicting values and rights that come to play in this.  The contentiousness is only exacerbated by the commodification of everything.   The sculptor wouldn't be suing the Postal Service if they weren't making millions off his art work.  And the tattoo artist wouldn't have sued if his tattoo hadn't been used so prominently to market the video game.  I doubt I have much to fear about my own use of my own photos in this post - of the tattoos and of the Korean War Vets Memorial - because I'm not commodifying the originals. 

I continue to be amazed at how many people feel the need to voice their opinions so strongly about topics they know so little about. For those who want to be informed when they voice their opinion on copyrights, Mark posted another tweet with a link to an article called, "Why Copyright Infringement is Theft."

Politicians sometimes complain about being targeted by interest groups based on a vote on a particular bill.  They might argue that though it was called the Help Poor Widows bill, there were provisions in the bill that did exactly the opposite.  Like most situations that become controversial, the simplistic first reaction often doesn't take into account the details.  At times, we may have sympathy for the holder of the copyright.  At other times we may not.  It depends on the details of the situation. Unfortunately, in these days of tweets, most people don't get into those details.