Back in February, I reported how Dem leadership in Sacramento apparently just wasn’t all that into winning a 2/3rds majority this year.

Turns out 4 months later, not much has changed.

To review, thanks to redistricting and a new “open primary” system, Democrats have a realistic shot in 2012 at picking up the two seats in the Assembly needed to achieve a 2/3rds Democratic super-majority and overcome obstruction from Republicans. Without that super-majority, things will continue to deteriorate in Sacramento, with Democrats forced to make draconian cuts to education and the social safety net instead of finding ways to raise revenue to balance the California budget.

“California voter approval of the Democratic-controlled legislature slinks along between 9 and 20 percent in recent Los Angeles Times and Field polls,” writes former state Senator Tom Hayden in the Nation magazine. “Despite Democratic majorities in both houses and control of all statewide offices, the Democratic Party seems chronically unable to deliver the minimum that voters want from their government: results. College tuitions keep rising, and college doors keep closing. School funding keeps declining. Wetlands and redwoods keep disappearing. Billions spent on mass transit do not reduce congestion and air pollution. To a disillusioned majority, all the Sacramento fights appear to be about slowing the rate of California’s decline”

Yet Democratic leadership and PACs donated over a million dollars to two “incumbent” Assembly members running in super-safe Democratic districts while virtually ignoring other seats in swing districts (source ca.sos.gov)

Mike Allen in AD10 (+35 democratic voter registration) and Betsy Butler in AD50(+33 democratic) together received 5x more money than Al Muratsuchi – a non-incumbent Democrat running in AD66 (+3 democratic) against two better-known and well-funded Republicans.

He has received no money from the California State Democratic Party, while Allen and Butler combined have received over a $100K.

Eric Bauman, Vice Chair of the California Democratic Party, believes it’s a non-issue.

“Let’s not get caught up in misunderstanding or distorting the challenge. Muratsuchi’s race is a November race, not a June race – rest assured he’ll be fully resourced in the general election.”

Rick Jacobs, founder of the California Courage Campaign, disagreed, raising concerns that throwing resources at safe Democratic seats would damage the CDP’s credibility with grassroots activists.

“So then comes the question as to why, given priorities statewide, the leadership raises and spends hundreds of thousands of dollars in AD 50. How does that inspire people to work hard and raise money for 2/3?”

Susie Shannon who serves on the Executive Board of the CDP Progressive Caucus was similarly incredulous. “How do they expect to raise money from the grassroots in the future if they are just going to whittle it away on safe Democatic seats? Any way you slice it, the (money) spent on the Butler primary could have been saved for the Marutsuchi general election to defeat the Republican candidate, or any number of more productive endeavors. I would rather see this money going to overtime pay for the overworked CDP staffers.”

The question now is what happens after June 5th if “incumbent” Assembly democrats Butler and Allen end up running against “non-incumbent” Democrats in November instead of Republicans.

Will Democratic candidates facing Republicans in other districts be, as Bauman promises, “fully resourced”? Or will Butler and Allen continue to take the lion’s share of Sacramento’s and the CDP’s pie?

“I would venture many thousands will be spent to support the candidates endorsed by the CDP,  and that includes Butler and Allen,” said Bauman.

“The CDP and (Speaker John Perez’s) priorities should be to make sure we have 2/3 majority so we could actually accomplish some important things like generating revenue, ” said Agi Kessler, a delegate to the California Democratic Party and chair of the Democratic Party of the San Fernando Valley.

Concerned that party leadership would waste money on Democrat-on-Democrat races throughout the state, Kessler and other democratic party activists circulated a petition at the CDP convention asking Assembly Speaker Perez to prioritize winning a legislative super-majority when allocating limited resources. They submitted nearly 300 signatures from fellow delegates.

“As of today we’ve received no response from the Speaker or anyone in his office”, said Kessler.  

 Betsy Butler’s first campaign mailer of the 50th Assembly District election is the talk of the town. But not in a way the candidate hoped or intended.

That’s because Betsy Butler’s “mailers” weren’t mailed at all. Instead, they were wrapped around thousands of Mexican-made plastic baby bottles and hand-delivered by paid canvassers.

Reports of Betsy Butler’s baby bottle mailers started yesterday, when reports started flooding in of bottles mysteriously showing up on the doorsteps of voters all over Santa Monica.

Presumably, Butler chose to introduce herself to the 50th Assembly district via plastic baby bottles as a clever way to tout her involvement in a California law banning BPA from plastic baby bottles and sippy cups.

But whatever Butler’s intentions, voters in the district  were universally taken aback by the gimmicky mailers.

“When I came home, my first thought was it some sort of product placement,” said Rick Moore, who lives in the Sunset Park neighborhood of Santa Monica. He didn’t realize it was a campaign mailer until he took a closer look. “It’s just an odd thing to receive as a 59 year-old man. I mean, does she think this is the next stop for me?”

Abby Arnold, a voter in Santa Monica’s Ocean Park neighborhood was equally flummoxed. “I don’t have a baby. What am I going to do with a baby bottle except throw it away?”

One voter in the Wilmont neighborhood voiced similar concerns, writing in an email, “Clearly, the Butler campaign addressed a bottle for every unit in my (11-unit) building. This struck me as extremely wasteful, and since I don’t have kids and live in a small apartment,  I’m now confronted with the task of figuring out what to do with it.”

James Haygood of Sunset Park believes that Butler’s mailer sends the wrong message to voters, “Little things do matter. Leaving a bunch of plastic junk around the neighborhood definitely tweaks the sensibilities of people here that know that dealing with environmental issues means a lot of people doing a lot of little things.”

Another voter who lives north of Wilshire Blvd.  voiced surprise that a candidate reportedly endorsed by the California League of Conservation Voters and the Sierra Club would dump so much plastic into the district, plastic which would more than likely end up in the trash.

“This is just bizarre. It’s wrong. (CLCV and the Sierra Club) ought to look at how much landfill she’s taking up.”

Indeed, recycling statistics complied by Cal Recycle seem to validate this concern. The recycling rates for polypropylene plastics (the type of plastic the baby bottle mailers are made out of) is abysmally low, hovering around 5%.

“That’s not a very green message,” Rick Moore reiterated.

Voters also voiced concern about the Mexican-made Evenflo-brand bottles Butler chose to use.

Democratic candidates normally go to great lengths to make sure any campaign materials, including mailers and lawn signs, are locally manufactured by union shops. The issue could prove particularly problematic for Butler, who’s received tens of thousands of dollars in union PAC money.

“We always look for the union label on any printed materials a candidate hands out,” said Arnold. “It lets me know that keeping good manufacturing jobs in California is a priority for them.”

Evenflo, the company which manufactures the bottles Butler chose to use, could in an of itself also prove problematic for the candidate.

The company agreed in 2009 to stop using BPA in plastic baby bottles sold domestically (two  years before Butler’s BPA legislation was signed into law),  yet quietly  continued to ship plastic bottles made with BPA to other countries. The  company has also been repeatedly (and successfully)  sued for marketing defective products.  In 2007, a jury awarded $10.4 million to the parents of a four month old boy who died of head injuries sustained in a car crash while riding in a defective Evenflo car seat.  In 2008, the company had to recall a million child restraint seats when it turned out their seats could break off and fly around inside the car during collisions as slow as 38 mph.

The irony of Butler wrapping campaign literature touting her union and consumer protection endorsements around thousands of Mexican-made plastic bottles from a company with a track record of marketing products harmful to children was not lost on Arnold, the voter in Ocean Park.

“This is a highly informed, politically aware district. You can’t fool us.”

If Betsy Butler was hoping the baby bottle mailers would make an impression on voters, it can safely be said she’s achieved her goal. It certainly made an impression on the Wilmont voter whose apartment building was targeted by the campaign.

“I was undecided on who to vote for in the election until I received Butler’s baby bottle.” she wrote,  “Then I scratched her off my list.”

From the Department of Unforced Campaign Errors……

If your opponents’ biggest talking point against you is that you’re an outsider who’s abandoned her current district and constituents to move into a district you’ve never lived or worked in – chances are locating your campaign office out of the district is not the best tactical move your campaign could make.

But that’s exactly what AD50 candidate Betsy Butler’s campaign has done.

Yesterday, Butler sent out invitations asking supporters to come to an open house at her new campaign offices this Saturday at 11512 Santa Monica Blvd. in West LA.

The office is located several blocks outside the district (see this map for district boundaries)

During campaign season, it’s expected for politicians to set up their headquarters in the district. Not only does it make the campaign and the candidate accessible to his or her own constituents but also gives back to the district’s business community.

So, while Butler may not have done anything illegal by setting up shop outside the district, she certainly hasn’t done herself any favors.

The open house, which takes place this Saturday, also happens to fall on the first day of Passover, this even though AD50 is the center of Los Angeles’ Jewish community.

As my dear departed mother would say, oy vey.

Democratic activists hoping for big gains in the California legislature this year were dealt a serious blow after campaign finance reports released last Thursday raised troubling questions about Assembly Speaker John Perez’s strategic priorities and the California Democratic Party’s ability to achieve a two-thirds majority in the State Senate and Assembly.

Democrats would have to pick up at least two more seats in each chamber to achieve the super-majority needed to pass revenue increases over the objections of a Republican minority.

Yet campaign finance reports reveal that Speaker Perez, Sacramento Democratic lawmakers and PACs donated hundreds of thousands of dollars to safe Democratic Assembly districts while virtually ignoring new “swing” districts or defending others against possible Republican pickups.

In the 10th Assembly District (Marin, D+35) Sacramento Democrats gave  $80,600 to Mike Allen, an incumbent Assemblymember who moved into the open district when his existing district was carved up and  reapportioned. This, even though Mr. Allen is running against two other Democratic candidates and no Republican opposition.

In the 50th Assembly district (Santa Monica, D+33), Perez and Sacramento Democrats donated $88,750 to Assemblywoman Betsy Butler, who moved north to the Democratic stronghold after redistricting meant she’d have to run in the new, more conservative 66th Assembly district (Torrance, D+3). Butler is running against Democratic candidates Torie Osborn and Richard Bloom, both long-time residents of the district. The lone Republican in the race, Brad Torgen, is not considered a viable candidate.

Records also show that most of these donations were given to Allen and Butler during a three-week period last December, and that many Democratic Assemblymembers who donated did not give money to any other Assembly campaigns. The timing suggests a coordinated and conscious effort from leadership to funnel money to these candidates at the expense of other candidates running in more competitive districts.

But as Butler and Allen enjoy the largess of their colleagues in Sacramento while running in districts so safe a Democratic corpse could win,  two other candidates running in swing districts which could potentially lead to Democratic super-majorities enjoy no such protection.

In the South Bay, Torrance School Board member Al Muratsuchi became the Democratic candidate for AD66 after Betsy Butler left the district.  Election experts consider the race highly competitive for Republicans, giving them the best opportunity in two decades to pick up a seat in that area.

However, not a single Sacramento Democrat, including both John Perez and Betsy Butler have yet to make any financial contributions to his campaign. 

Even Democratic State Senator Ted Lieu, whose district overlaps much of AD66, gave $1,000 to Butler, but nothing so far to Muratsuchi.

Additionally, while PACs – including the Professional Engineers in California  Government, the State Building & Construction Trades Council and  the California State Council of Laborers – gave over $300,000 to Butler  and Allen, many of them presumably at Perez’s direction, Muratsuchi received only $11,900 in PAC money, including $1,000 from the California League of Conservation Voters –  $6,800 less than they gave to Betsy Butler.

Sacramento’s indifference means Muratsuchi has had to loan his campaign $45,000 to defend the new South Bay Assembly seat against two Tea Party candidates, Nathan Mintz, who ran and lost a close race against Butler in 2010, and Craig Huey, who ran an unsuccessful $500,000 self-financed congressional campaign against Janice Hahn last year.

In the Central Valley, where termed-out Assemblywoman Cathleen Galgiani is running for Senate District 5 (Stockton, D+4), only one Sacramento lawmaker, fellow Democratic Assemblymember Kevin De Leon, contributed to Galgiani’s campaign.

Galgiani has $140,000 in cash on hand while her two Republican opponents, Assemblymember Bill Berryhill and former County Supervisor Leroy Ornellas, each have twice that amount.

Galgiani represents much of the district now and is considered a popular moderate. AroundTheCapitol.com reports the race is “likely the bellwether Senate district for 2012….Galgiani came out as gay to the Stockton Record on November 1, and will be running in a district that voted 64% in favor of prohibiting same-sex marriages.”

If elected, Galgiani would be the first openly gay legislator elected from a Central Valley district.

Taken in their entirety, campaign finance records, along with reports of political maneuvering, clearly and consistently demonstrate Speaker Perez and Sacramento Democrats are prioritizing the reelection of “incumbent” Assemblymembers in safe, Democratic districts over obtaining a two-thirds majority in the legislature in 2012.

Political insiders will claim this just isn’t true, that Sacramento’s strategy will change after the June primaries, focusing less on incumbents and more on flipping swing districts.

However, even if accurate, considering California’s new top-two election rules, it’s a deeply flawed strategy.

In the case of both AD66 and SD05, there’s no guarantee Muratrsuchi and Galgiani will survive a June primary and make it to November. And even if they do, their well-funded opponents will have already had a six-month head start to rip the Democrats to shreds with negative mailers and media spots.

When the California Citizens Redistricting Commission upended the political landscape in 2012,   it opened up a unique opportunity for Democrats, but only if we have the foresight and political will to take advantage of that opportunity. Now is the time to stop paying lip service about achieving a two-thirds legislative majority and actually do something about it.

Until that happens, we’re just kidding ourselves that we can fix what’s really wrong with California. The best we can hope for is triage.

As our convention convenes this weekend in San Diego, I hope the delegates, activists, candidates and politicians assembled will take a hard, cold look at how the political landscape is shifting beneath our feet.

These issues are more important than any single election or candidate, they go to the very heart of what it means to be a Democrat in California in 2012.

UPDATE:

State Senator Ted Lieu responds:

 

Re: My $1000 contribution to Betsy Butler’s committee. As you know, I have not endorsed in the race. The contribution was made in April 2011, months before the first draft of Assembly maps were released, and months before Betsy Butler announced where she was running. In early fall, my Ted Lieu for Senate 2011 committee was frozen due to the Kinde Durkee case.

   Regarding AD 66, when the Kinde Durkee legal proceedings are resolved, I will contribute to Al Muratsuchi’s campaign. I endorsed him early and am helping him in a variety of other ways.

Grassroots activists in Assembly District 50 received a hard lesson in “Incumbent-Protection 101” this weekend. Despite losing every Democratic Club endorsement in the district, candidate (and current 53rd AD Assembly member) Betsy Butler managed to get 57% of the vote at yesterday’s California Democratic Party “pre-endorsement” caucus, beating her opponent, Torie Osborn, who had won the support of every local club who voted to endorse, often by overwhelming margins.

Welcome to the myopic world of hard-ball Sacramento politics.

Every year, CDP delegates meet a few weeks before their yearly state convention to “pre-endorse” (aka recommend) Democratic candidates they believe are worthy of their party’s institutional support.

Candidates who received between 50% and 70% of the votes at their local weekend meeting are now eligible for, but not guaranteed of, the state Democratic party’s seal of approval at the February convention. And if no one received at least 50% of the votes, Dems won’t offer any endorsement in that legislative or congressional primary.

(And don’t even ask me the rules for how Democrats in these local party meetings gained eligibility to vote. Instructions from IKEA make more sense.)

Again, these meetings and subsequent endorsements are notable because of the brave new world of party primaries, ushered in by 2010’s Proposition 14 top-two system. It’s a world unsettled, too, by new district maps that have left more open seats than at any time in recent history.

As such, a number of Democratic candidates are scrambling for an advantage. And the gold standard is thought (by many) to be the official “Democratic Party candidate” come June.

The CDP endorsement is particularly important to Butler, who has little name recognition in AD50, having moved from the South Bay to avoid running against Tea Party candidates in her home district.

Theoretically at least, the delegates voting in these caucuses are supposed to be from the home district of the candidate they’re voting to endorse. And actually, the delegates themselves are. However, the politicians who “own” these delegates don’t have to be.

Only about a third of CDP delegates are elected by popular vote. The other two-thirds are appointed by politicians or elected by Central Committees. And in contested races like the one for the 50th Assembly District, delegates can be traded amongst politicians like playing cards.

That’s exactly what happened yesterday in the AD50 pre-endorsement caucus.

Of the 64 votes Butler received, 5 of those came from delegates she herself appointed. Forty-two delegates were assigned by Assembly Speaker John Perez, who pulled them from assembly members in districts as far away as San Francisco and Riverside.

Torie Osborn, on the other hand, not being an elected official, could not assign herself delegates. The numerous Democratic club endorsements she secured weren’t particularly helpful either, since party rules severely limited the number of delegates they’re allotted. Some endorsing clubs weren’t eligible to send delegates at all.

Dorothy Reik, President of the Progressive Democrats of the Santa Monica Mountains – one of the clubs endorsing Osborn – attended the pre-endorsement caucus.

“John Heaner, the chair of the 13th District who was running the meeting, tried to claim that other electeds had a stong interest in our district and had sent the delegates on their own.” said Reik,”That is ridiculous. Those delegates were not even in the room for the most part. What should have been an example of local democracy in action turned into a farce.”

Butler failed to get the 70% needed for unanimous consent at the CDP convention, so she’ll have to wait until February for another endorsement vote at the convention to seal the deal. It’s entirely possible grassroots activists won’t let this go without a fight, and could organize to block Butler’s endorsement.

But such moves are rare, success rarer still. The grassroots are woefully underrepresented at the State Convention, the delegation an almost perfect microcosm of Sacramento itself – insular, inclined to protect the status quo and resistant to overcoming institutional inertia.

But in the age of “occupy”, grassroots activists seem less willing than ever to put up with the status quo. As one young Osborn supporter put it, “Folks in Sacramento should take note that AD50 supports Torie Osborn without a doubt,and will fight to make her voice heard”

Fasten your seat belts, kids, this could be a bumpy ride.

According to a report published by the AFL-CIO, online piracy costs content providers (mostly TV networks and movie studios) a lot of money. Around $20 billion annually. That, in turn, costs a staggering number of industry-related jobs – over 140,000 by some estimates.

As  a freelance film editor, this scares the hell out of me.  If the  networks and studios I work for don’t make money, sooner or later I’m  out of a job. And if I’m out of a job long enough, I lose my union  health benefits, my pension, the whole ball of wax.

I know it scares the hell out of my union, IATSE, judging by numerous emails warning how my livelihood is in grave danger from “foreign rogue sites” dedicated to wholesale theft of the intellectual property of my employers.

On the flip side, there were petitions filing my inbox from internet watchdog groups urging me to tell Congress to “preserve free speech”, and that if I didn’t, the “internet as we know it” would cease to exist.

Now, if you don’t know what they’re talking about, you’re not not alone. Until I started getting these emails, I too was blissfully ignorant about the alphabet-soup of anti-piracy  legislation currently grinding it’s way through the bowels of Congress –  the Stop Online Piracy Act (SOPA) in the House and the Protect IP Act (PIPA) in the Senate.

But as I researched the bills and clawed my way though mountains of evidence on both sides predicting internet Armageddon, I quickly realized online piracy (and the solutions being put forth to curb it) is something we don’t have the luxury to ignore. Because what happens in the next month could profoundly affect many aspect of our lives, not just how we interact online.

So I’ll make you a deal: If you’ll stick around to read this, I’ll spare you the hyperbole and techno-speak and explain what I’ve learned in plain English.

Please, let my pain be your gain.

SOPA and PIPA are designed to close existing loopholes in online piracy enforcement.  To explain how, I first have to talk about another law: the Digital Millennium Copyright Act,  otherwise known as DMCA.

Enacted in 1998, DMCA was Congress’s first attempt to deal with the brave new world of illegal file sharing. In a nutshell, it criminalized online copyright infringement while protecting “Fair Use” doctrine, as well as giving “safe harbor” to internet service providers (ISPs), websites and search engines which unknowingly hosted or linked to pirated material.

(I’ll circle back to “fair use” and “safe harbor” later,  but keep these terms in your head.  They’re really, really important – it’s why YouTube, Facebook, Flickr and even small sites like this blog aren’t sued out of existence every time someone uploads a photo or links to a movie clip.)

However, DMCA was limited. It only applied to domestic ISPs, websites and search engines. Why? Because US copyright law ends at our borders. Domestic plaintiffs can’t collect damages for overseas copyright infringement.

Of course, the first thing online pirates did after DMCA became law was set up shop overseas and out of the reach of US courts.

So ten years later,  Congress passed another law, the PRO-IP Act, which increased penalties and gave new enforcement powers to Immigration and Customs Enforcement, the agency most recently known for mistakenly deporting a 14 year-old girl to Columbia.

ICE could, with a simple affidavit, obtain a court order to seize the site’s domain name and IP address.  Anyone clicking on a seized site would see this:

Even though hundreds of domains were seized ( a partial list here ), critics complained PRO-IP didn’t solve the “foreign rogue websites” problem. Perpetrators – especially those operating overseas – disappeared easily, escaping fines and summary judgments, quickly setting up new and anonymous Internet storefronts at will. Even if found, there was often no way of tying the individuals who ran foreign sites to assets in the United States.

Got all that?

Good. Because this is where the fun starts.

SOPA and PIPA are designed to do one thing and one thing only – tie online pirates to assets in the United States so our justice system can get at them to collect civil judgments and cut off sources of revenue.

Of course, making that happen is not so simple. The internet is a complicated, borderless thing which changes faster than a teenager’s hormones on a Pepsi high.

So the bill’s authors tried to come up with a number of different ways to skin the same cat.

1. Extend the authority to seize domain names and IP addresses to foreign websites determined to be in violation US Copyright law.
2. Compel domestic ISPs, websites and search engines to block internet access to any foreign websites determined to be in violation US Copyright law.
3. Prosecute developers who offer products or services that could be used to  circumvent  the blockade of foreign websites determined to be in  violation US Copyright law.
4. Compel domestic financial service providers (Paypal,  Visa, Wells Fargo, etc….) and internet advertisers to close accounts and block payments to any  foreign websites determined to be in violation US Copyright law.

The bills also includes a provision the American Bar Association labels “a rather novel reinvention of online”market-based” enforcement”  by allowing copyright owners and their agents to initiate a “private right of action” to seek termination of an infringing site’s advertising and financial services.

Lastly, this legislation gives blanket immunity to any US-based financial service providers, advertisers, ISPs, websites, and search engines which voluntarily blocks internet access or terminates its services. It does this even if the site’s owners did not  knowingly host pirated material, or the  allegations later prove to be unfounded.

Even without SOPA/PIPA’s First Amendment implications (you can read some pretty good arguments here, here and here),  the bills as currently proposed are horribly flawed documents devised by people who either don’t understand how the internet works, or worse, understand it all too well and are trying to game the system for unfair competitive advantage.

SOPA’s sponsor, Texas Republican, Lamar Smith, thinks any fears are “completely unfounded”.

“The criticism of this bill is completely hypothetical; none of it is based in reality,” said Smith, R.-Texas, in a statement. “Not one of the critics was able to point to any language in the bill that would in any way harm the Internet. Their accusations are simply not supported by any facts…..they need to read the language. Show me the language.”

You’re on, Lamar.

As I said before, ICE has seized hundreds of domestic domains under the PRO-IP Act. Well, it turns out some site owners are fighting back, suing the government for violating their First Amendment rights, saying the law’s “seize now, ask questions later” enforcement equals prior restraint. In at least one case, a judge agreed, throwing out part of the government’s case and expediting the site owner’s suit.

And then there’s the Kafkaesque case of dajaz1.com, a popular hip-hop music site which had it’s domain seized in 2010, then restored over a year later – all without a single charge being filed.

As the details came out, it became clear that ICE and the Justice Department were in way over their heads. ICE’s “investigation” was done by a technically inept recent college grad, who didn’t even seem to understand the basics of the technology. But it didn’t stop him from going to a judge and asking for a site to be completely censored with no due process.

The site’s lawyer, Andrew Bridges, filed a motion to get the site back. Instead of responding as the law required, the government stonewalled Bridges while they secretly pursued multiple filing extensions from the court in order to hold on to the site.

The government was required to file for forfeiture by May. The initial (supposed) secret extension was until July. Then it got another one that went until September. And then another one until November… or so the government said. When Bridges asked the government for some proof that it had actually obtained the extensions in question, the government attorney told Bridges that he would just have “trust” him.

You can read the whole story here.  It’s not pretty. Eventually, the government unilaterally decided it didn’t have probably cause after all and just dropped the case without comment. 

Don’t expect oppressive regimes like Syria, Iran, or Burma to take our lectures about internet freedom seriously, not while Congress is proposing protocols for site blocking that China already uses  to restrict their citizen’s access the web.   

Worse, if ICE starts going after software developers, they’re going to have to go after contractors the State Department hired to do the very thing Congress just made illegal. 

Seriously. I’m not making this up.   Last June, the NY Times reported:

The Obama administration is leading a global effort to deploy “shadow” Internet and mobile phone systems that dissidents can use to undermine repressive governments that seek to silence them by censoring or shutting down telecommunications networks.

The effort includes secretive projects to create independent cellphone networks inside foreign countries, as well as one operation out of a spy novel in a fifth-floor shop on L Street in Washington, where a group of young entrepreneurs who look as if they could be in a garage band are fitting deceptively innocent-looking hardware into a prototype “Internet in a suitcase.”

Financed with a $2 million State Department grant, the suitcase could be secreted across a border and quickly set up to allow wireless communication over a wide area with a link to the global Internet……

Some projects involve technology that the United States is developing; others pull together tools that have already been created by hackers in a so-called liberation-technology movement sweeping the globe…….

“The cool thing in this political context is that you cannot easily control it,” said Aaron Kaplan, an Austrian cybersecurity expert whose work will be used in the suitcase project. Mr. Kaplan has set up a functioning mesh network in Vienna and says related systems have operated in Venezuela, Indonesia and elsewhere.

First, by mandating provisions completely incompatible with next-generation internet security standards and secondly, by throwing US software developers into legal limbo.

It turns out targeting software which could potentially be used for circumventing blacklisted websites also means targeting the same security software we use to keep our personal computers safe from malware, networked businesses safe from denial-of-service attacks and even payments to online financial service providers like PayPal safe from theft.

Meanwhile, as legitimate software developers sit around twiddling their thumbs, 20 year-old hackers have already created workarounds to domain blocking in anticipation of SOPA/PIPA.

Have fun with that.

Supporters, including my union, like to point out that SOPA/PIPA only affects foreign websites. This is demonstrably not true.

Remember, the Justice Department has no jurisdiction overseas, but it does have jurisdiction over domestic ISPs, websites, and search engines, domestic financial service providers and domestic software developers. SOPA/PIPA may target foreign sites, but all the legal liability and compliance costs would fall on American companies. As techdirt.com points out,

We’ve been trying to make this point for months, and the folks in favor of these bills just keep ignoring it insisting time and time again that this is just about foreign sites. Most of those people have never been entrepreneurs. They’ve never worked at a company where the threat of legal action is a BIG DEAL, that can massively disrupt operations (and cash flow). They don’t realize that increasing liability, compliance costs and legal risks isn’t just a nuisance — it can force an entire business to shut down. We’ve talked about how these bills change things so that it’s not just two engineers in a garage any more, but two engineers… who need a team of a dozen lawyers.

Remember how I mentioned “fair use” and “safe harbor” at the beginning of this post?  Let’s circle back to that now.

I use a lot of social media – YouTube, Facebook, and Twitter to share  information, links, videos and other online content. And I do this  under the “Fair Use” doctrine, which allows me to use copyrighted material without permission for “transformative” purposes such as commentary, criticism and parody.

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 rules 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.

Now, to illustrate my point, I’m going to link to this really cool video created by a fan of “Castle”, the ABC Television show I work on. Go ahead, have a look. I’ll wait.

http://www.youtube.com/watch?f…

Great video, isn’t it?

It also happens to be made up of hundreds of copyrighted clips I’m reasonably sure ABC Television never gave permission to use. But that’s OK, because I’m also reasonably sure the video is covered by Fair Use. But if I’m wrong about that, this is where DMCA’s “safe harbor” provisions come in.

Safe Harbor assumes I didn’t knowingly post anything which violates US copyright law.  So even if my ISP gets a take-down notice from ABC, Safe Harbor is supposed to protect me as long as I comply with the notice and remove the video.

Together, Fair Use and Safe Harbors allow for innovation because they create safe space for both free expression and honest mistakes. But content providers hate Fair Use and (more importantly) Safe Harbors because providers think these exceptions take the teeth out of enforcement, creating loopholes you could drive a truck through.

SOPA/PIPA gets rid of Safe Harbors. There is no safe space. A copyright holder can initiate a “private right of action”, convince a judge to issue an injunction (which we now know is way too easy to do) get your domain blocked, your advertising pulled and your finances frozen.

And thanks to to SOPA/PIPA’s immunity provisions, a copyright holder wouldn’t even need a court order shut you down, just a letter to your service providers threatening to.

This section says that anyone who takes voluntary action “based on credible evidence” basically gets full immunity. Think about what that means in practice. If someone sends a service provider a notice claiming infringement on the site under this bill, the first thing every lawyer will tell them is “quick, take voluntary action to cut them off, so you get immunity.” Even worse, since this is just about immunity, there are no counter notice rules or anything requiring any process for those cut off to be able to have any redress whatsoever.

Between blanket immunity, the loss of safe harbor, and the lack of any redress for impacted site owners, SOPA/PIPA actually incentivizes wholesale abuse.

It’s already happening. Entire legal industries have been built around responding to DMCA takedown notices in bulk. Thin-skinned businesses routinely ignore Fair Use to issue DMCA takedown notices against sites which criticize them. Unscrupulous content providers also sue legitimate online competitors for copyright infringement just to bankrupt them.

In 2007, Universal Music Group (UMG) brought a lawsuit against Veoh Networks (Veoh), a video hosting website, alleging that Veoh facilitated copyright infringement by providing a website that hosted videos containing music owned by UMG. On December 20, 2011, the Ninth Circuit Court of Appeals upheld a summary judgment in favor of Veoh and held that Veoh was protected by the Digital Millennium Copyright Act’s (DMCA) “safe harbor” provisions….

While Veoh’s website was found to be perfectly legal, its victory is bittersweet; the small startup company filed for bankruptcy early in 2010 from the high cost of defending its case.

At least under DMCA, Veoh could keep it’s business running while the case was litigated.

The SOPA/PIPA bills, however, would have immediately shut Veoh’s website down before it even had its day in court, thereby keeping Veoh from running its business which, in this case, was ultimately found to be perfectly legal. There is cause for concern when copyright holders abuse the law to stymie innovative new startups.

There are also some nasty implications for political campaigns. Implications that ought to give the bill’s Congressional supporters pause.

Imagine you are running for Congress in a competitive House district. You give a strong interview to a local morning news show and your campaign posts the clip on your website. When your opponent’s campaign sees the video, it decides to play hardball and sends a notice to your Internet service provider alerting them to what it deems “infringing content.” It doesn’t matter if the content is actually pirated. …. If you don’t take the video down, even if you believe that the content is protected under fair use, your website goes dark.

I’m sure nothing like that would ever happen, because, you know, it never has before.

During the waning days of the 2008 presidential race, there was an important but overlooked occurrence on the John McCain campaign. In mid-October, the McCain campaign awoke to find that its Web videos and online advertisements were disappearing from its YouTube page.

The culprit turned out to be a major television network claiming they owned portions of the videos and that posting the clips was a violation of copyright law. Even though the campaign, and many others in the online community, believed the content to be privileged under the “Fair Use Doctrine,” the videos were pulled down.

John McCain, by the way, is one of PIPA’s co-sponsors.

What do Darrell Issa, Nancy Pelosi, the ACLU, Daily Kos, RedState.com, Markos Moulitsas and Ron Paul have in common? They all oppose SOPA/PIPA.

Personally, I’ve never agreed with Darrel Issa on any issue ever, but I agree with him on this.

How is this possible? Because the divide over SOPA/PIPA isn’t political, it’s between those who understand how the internet works and those who don’t,  those who see opportunities for growth and innovation and those who fear change and are holding on to old business models for dear life.

During the House Judiciary Committee’s SOPA hearings last December, it became nightmarishly clear Congressmembers who support these bills are in the “don’t understand how the internet works” camp.

It’s exactly as we feared….this is like a group of well-intentioned amateurs getting together to perform heart surgery on a patient incapable of moving. “We hear from the motion picture industry that heart surgery is what’s required,” they say cheerily. “We’re not going to cut the good valves, just the bad – neurons, or whatever you call those durn thingies.”

This is terrifying to watch. It would be amusing – there’s nothing like people who did not grow up with the Internet attempting to ask questions about technology very slowly and stumbling over words like “server” and “service” when you want an easy laugh. Except that this time, the joke’s on us.

It’s been a truism for some time that you can tell innovation in an industry has ceased when the industry starts to develop a robust lobbying and litigating presence instead.

Which brings me back to my union,  IATSE.

I believe my union leadership is acting in good faith to look after the best interests of its membership. But I don’t think my union leadership understands how the Internet works. By backing the industry’s position on SOPA/PIPA, I believe they’re tying themselves to a business model that simply can’t be sustained and won’t be rescued by badly crafted legislation.

Look, you can’t un-ring this bell. Internet file sharing, streaming  video, and movies-on-demand aren’t going away.  Fans of American  television shows and movies use the internet to form international online communities, upload their favorite clips via YouTube and share them on Twitter and Facebook. As an industry, we should encourage them. Because today’s “pirates” are tomorrow’s customers. 

It’s a brave new world out there.

We’ve been down this road before with the music industry. Ten years ago, while all the major record labels responded to file sharing by locking up content and suing Napster into the ground, Steve Jobs quietly developed iTunes. By tapping into a market that was already habituated to file sharing and offering quality content conveniently and legally at a price point people were willing to pay, Apple dominated the music industry while the record labels tanked.

We either follow the path of the record labels or we follow the path Apple took.  I’d rather follow Apple. And frankly, I wish IATSE was leading the charge.

PIPA is scheduled for a cloture vote in the Senate on January 24th, meaning it would take 60 votes to break a filibuster. So far 49 Senators are on record as supporting PIPA, which means they’d need 11 more to advance the bill to the floor of the Senate for an up or down vote.

Opponents of SOPA/PIPA have set up this handy website so you can find out which lawmakers support the bills. If it turns out your Congressmember supports the bills, click on their name and the site will take you to a page with their contact information. Please call them right away.

Unfortunately, both Barbara Boxer and Diane Feinstein are co-sponsors of PIPA. (Feinstein seems particularly clueless, stating she thought the tech industry were just fine with the bills)

Click on this link to get Barbara Boxer’s contact information

Click on this link to get Diane Feinstein’s contact information

Less than 24 hours after Oakland police forcibly cleared the encampments of Occupy Oakland with tear gas and rubber bullets, Los Angeles City Councilman Bill Rosendahl is telling Occupy protestors in Los Angeles it’s “time to move on.”

“They’ve made their statement. I agree with their statement, but it is time to move on. The trees are in the process of being impacted. The grass is being impacted. Other activities that we need to do on the lawns are being put on the back burner,” said Councilman Bill Rosendahl.

In Oakland, where nearly 200 Occupy protesters had taken up residence, police moved in, claiming the encampment had become a health hazard. Police in riot gear arrested 85 protesters on Tuesday….

Some Los Angeles protesters said despite concerns about damaged grass and run-ins with police at similar encampments across the country, they plan to stand their ground on the lawn of City Hall…..

“I frankly think if we can be civil about it, they should get the message that it’s time to move on from our lawn at City Hall. It is everybody’s lawn, not just those with their tents right now,” said Rosendahl.

Only three weeks ago, Rosendahl and other City Council members were described as “giddy” in their support of Occupy Los Angeles.

Councilman Rosendahl when he still thought people were more important than lawns.

“It’s an entourage of peace makers!” Walsh said giddily as he walked toward the protest with Councilmen Bill Rosendahl, Eric Garcetti, Ed Reyes and Dennis Zine.

“It’s the right thing to do,” said Zine, who until recently was a registered Republican. “We could just drive by them, or we could go talk to them.”

The lawmakers, dressed in dark suits and surrounded by aides, caused  a stir when they approached the rag-tag collection of tents, tarps and sleeping bags just off of Temple Street. News media and protesters armed with video cameras swarmed as the officials shook hands and introduced themselves.

Rosendahl told one woman that he empathized with the demonstrators, especially with their complaints about the role of banks in the foreclosure crisis.

“We are not enemies with the people here,” Rosendahl said. “Many of us totally agree with you that the situation we’re in is truly intolerable.”

(snip)

Rosendahl and Garcetti, the two council members who remained, called for equality in fiery speeches. When Garcetti shouted, “This is your City Hall!” the crowd repeated, “This is our City Hall!”

“Stay as long as you need,” Garcetti told them. “We’re here to support you.”

Or, if Councilmen Rosendahl gets his way, until the lawn gets ratty enough to embarrass the neighbors.

Feel free to give my councilman a call if you think people are more important than lawns. His number is 213-473-7011

Remember, the meltdown in Oakland didn’t start with rubber bullets, but it didn’t take long to get there.

Yesterday, after nearly three hours of debate, the LA City Council approved a resolution formally endorsing the Occupy Wall Street Movement.

The resolution was introduced last week by councilmembers Richard Alarcon and Bill Rosendahl. It seeks to address “the City’s position to support the First Amendment Rights carried out by ‘Occupy Los Angeles,'” according to the L.A. City Council Agenda.

The recommendation supports the continuation of peaceful protests and advises the city departments to bring the already-approved Responsible Banking measure up for a final vote before the council by the end of October.

The council members saidthe Responsible Banking measure will alleviate some of the concerns of the downtown demonstrators. The measure demands accountability and results from banks supported by taxpayer dollars.

The responsible banking ordinance will score banks based on the number of home loan modifications accommodated, the number and location of its branches and how they contribute to affordable housing.

See more by clicking “There’s more.”

The Responsible Banking Ordinance is in direct response to the story of Rose Gudiel, a 35-year-old state government employee, who refused to leave her foreclosed home in La Puente..

Gudiel set off a massive protest and media frenzy when people got wind of the foreclosure of her home, which Guidel has shared with her disabled mother and other relatives for ten years. A coalition of activists kept a round-the clock vigil outside the Bel-Air mansion of the president of OneWest Bank that had initiated foreclosure proceedings. From there, they moved to the sidewalk outside Fannie Mae’s office in Pasadena, after discovering the government-sponsored lender had taken over Gudiel’s loan. Another group surrounded Gudiel’s house, pledging to risk arrest if sheriff deputies tried to evict the family, including her wheelchair-bound mother.

Police arrested Gudiel and five others when they refused to leave. In the end, Gudiel prevailed, bank executives relented and she remains in her house.

I shot the video above in downtown Los Angeles on October 8th and 9th, 2011. OccupyLA had already been camped out at Los Angeles City Hall for two weeks, hundreds of tents surrounded the building.

For a “leaderless” movement, the activists are incredibly organized. Already they have a media tent, kitchen tent, first aide center and a lender library. Monetary donations are meticulously recorded and receipts given back to the donors. Their A/V systems are solar powered. Crews of organizers patrol the grounds, cleaning up refuse, recycling cans and bottles. They hope to have a weekly newspaper up and running in the next few days.

I have no idea what’s going to happen next, but I was excited by what I saw. Thousands of people rallied or visited the tent city while I was there. Conversations were numerous, anger was tangible, and hope was still very much alive.

If we’re lucky, what we are witnessing is the rebirth of the American Dream in a new generation. The road will be long, the going hard. They will need our help, and we must not fail them.

Click on these links to find out what you can do to help.

On the web:

www.occupywallstreet.org

www.occupylosangeles.org

facebook.com/​OccupyWallSt

On Twitter:

hashtag: #ows

@OccupyWallSt

@OccupyLA