How this blogger became one of the most influential voices in tech policy
By Simon Owens
In May 2003, the legal website The Smoking Gun posted a short item titled “Barbra Sues Over Aerial Photos.” Kenneth Adelman, an environmentalist who takes aerial photographs of California’s coastline for the benefit of scientists and researchers, had inadvertently captured an image of singer and actress Barbra Streisand’s home. The lawsuit, filed in Los Angeles Superior Court, alleged that by posting the image to his website, Adelman had provided a “road map into her residence” and “clearly [identified] those routes that could be used to enter her property.” On page 9 of the lawsuit it states that “there is no telling how many people have downloaded the photograph of [Streisand’s] property and residence on their computer.”
In the coming weeks it would emerge that, up until the lawsuit was filed, the image of Streisand’s house had only been accessed six times, two of which were by her lawyers. And because of the engendered press from the lawsuit, it was then visited more than 420,000 times in just the first month after it was filed. Not only did Streisand later lose the lawsuit, but it had produced the very result her lawyers had set out to avoid: drawing attention to her property.
The entire imbroglio, humorous as it was, may have ended up a mostly-forgotten historical footnote if not for a seemingly unrelated incident that occurred two years later. A website called Urinal.net, which posts user-generated photos of urinals, had received a legal complaint from the Marco Beach Ocean Resort claiming that, because Urinal.net had mentioned the resort’s name in one of its photos, it had infringed on the company’s trademark. Mike Masnick, a blogger who covers issues dealing with intellectual property, wrote about the complaint on Techdirt, a website he’s run since the late 90s. At the end of the post, which is only a few hundred words long, Masnick reached this seemingly innocuous conclusion:
How long is it going to take before lawyers realize that the simple act of trying to repress something they don’t like online is likely to make it so that something that most people would never, ever see (like a photo of a urinal in some random beach resort) is now seen by many more people? Let’s call it the Streisand Effect.
Masnick didn’t realize it at the time, but he had just coined a term that would continue to endure to this day. On the neologism’s 10th anniversary last year, Gizmodo commemorated the event by documenting the most egregious examples of the Streisand Effect in action — examples that included the Church of Scientology trying to suppress an embarrassing video and Beyonce’s attempts to remove unflattering photos of herself from the internet.
Few of us ever get the chance to coin a phrase, much less one that enters the popular lexicon. The reason this one didn’t get lost in the ephemera of the internet is that Masnick by that point had spent more than half a decade establishing himself as a must-read source on all things tech policy. Whether it’s intellectual property, telecom and broadband policy, or digital rights, Techdirt has been at the forefront of these issues, covering them with a brand of fiery opinionated journalism that has made him no shortage of enemies. If there’s a consistent theme to be found in his work, it’s that large technology and media companies often wield their power to benefit themselves at the expense of consumers, and it’s only by shining a light on their abusive behavior that it can be stopped.
In recent years, Masnick has been one of the most prominent figures in a growing activist movement that advocates for digital rights issues ranging from net neutrality to open source technology. Most importantly, he played an instrumental role in the fight against the Stop Online Piracy Act (SOPA for short), a bill introduced in 2011 that was broadly supported by the media and entertainment industries. As Marvin Ammori, a lawyer who advocates on internet freedom issues, put it to me, “I’m not sure anyone did more to educate the public about SOPA than Techdirt.”
In its earliest iteration, Techdirt didn’t go by that name, nor was it even a website. In 1996, Masnick enrolled in Cornell University’s Johnson Graduate School of Management to obtain an MBA. “I was on the East Coast in the middle of nowhere, not near a major city or anything,” he told me. “I was hoping to get a job in the technology field after graduating, and I thought that actually writing about current events in technology from a business perspective would help me in getting a day job.” At the time, he was a big admirer of an irreverent UK newsletter called Need to Know, and so the newsletter he launched, called Up to Date, adopted a similar approach. “It technically started as the newsletter for the technology management club at the my business school,” he said. “I had been elected the president of that club, so that gave me an audience of 75 business school students. And with the first newsletter I put a little note at the bottom that said, ‘If you’d like to subscribe, send me an email.’”
Within three weeks, Masnick had over a thousand subscribers, and for the first seven or eight months it was simply a newsletter he sent roughly once a week. At some point, he decided it should be a website, so he spent much of his last semester in business school teaching himself how to build one. This is around the same time he became obsessed with Slashdot, the tech forum that is now considered one of the earliest blogs. After settling on the name Techdirt, he and a friend tried to install the open source code that Slashdot’s editors had released, called Slashcode Version 0.3. “It was a mess,” he said. “A friend and I took it and we spent months trying to get it to work, and we finally got it working in early 1999.”
Though not exactly a mirror image of what it is today, the early Techdirt still explored many of the themes that would later form the bedrock of its current worldview. Masnick became close to a grad school professor of his, Alan McAdams, who had served as senior staff economist with President Richard Nixon’s Council of Economic Advisers and provided witness testimony for the government in United States v. IBM. “He was ahead of his time,” he recalled. “This was ’95 or ’96, and he was really interested in open source and what that meant for the economics of software. He was very focused on broadband implementation and talking about getting fiber to the home applied universally.” Today, we call this broadband universal service, and it’s an achievement for which nearly every developed country strives.
I find it interesting how many of the earliest blogging pioneers, some of whom are now household names, didn’t consider themselves early adopters when they first started writing for the web. John Gruber, the writer behind the tech blog Daring Fireball, said recently that “when I got started in 2002 I had this sinking feeling in my heart that I was just way too late to the game.” Daily Kos, which is known as one of the earliest netroots political blogs, debuted a half decade after the term “weblog” was first coined. Similarly, Masnick thought by the time Techdirt hit the web in 1999 all the important tech policy issues had been dealt with. “The original encryption wars had already happened before we started. The DMCA” — Digital Millennium Copyright Act — “was already in place before we started. The Communications Decency Act was already done before we started. So I felt like I’d missed many of the big important things.”
He was wrong. The early 2000s would see the rise of the Michael Powell administration at the FCC and consumers trading in their phone lines for broadband internet. The internet’s transformation to Web 2.0 — first coined by Tim O’Reilly in 2004 — produced a Cambrian explosion of new content as millions of internet users suddenly gained access to publishing platforms that required no coding skills and were free to use. Network neutrality. Comcast v. BitTorrent. Viacom v. YouTube. SOPA. Smartphone adoption. CISPA. All had the potential to drastically shape how we use the internet for decades to come and all were aggressively covered by Techdirt.
It was in 2000 that Masnick first tried to turn Techdirt into a sustainable business. After grad school he’d moved out to Silicon Valley, and while there it dawned on him that many of these companies would benefit from the kind of analysis he was performing on his blog. “We called it Techdirt Corporate Intelligence,” he explained. “We helped companies better understand the issues we were covering. We were basically writing mini Techdirts for those companies — just writing a newsletter about different news and events that might impact our clients’ businesses.”
For several years, the corporate intelligence offerings were the only method by which Techdirt made money. In 2005, however, the site experienced a sudden explosion in traffic, and a year later it was able to diversify its revenue with ads. This was around the time Masnick began to revisit the very idea of what it meant to be a blogger. “For the first few years on the blog, I had this really stupid rule that I struck to that every post had to be only a single paragraph,” he said. “I couldn’t really dig in. It was only a few years in when I was like, you know, there’s no reason for this artificial limitation, and I can clearly write more.”
This new Techdirt began to cover issues in more depth, and those alarmed by abuses from ISPs, telecom companies, and patent trolls would turn to the blog as a tool for exposing these abuses, in some ways making Masnick a kind of unofficial spokesman for this burgeoning activist community. In 2009, the U.K. government proposed new legislation that would install a “three strike policy” and restrict repeat offenders of online piracy from accessing the internet. The singer Lily Allen then launched a blog, called It’s Not All Right, in support of the Digital Economy Act, and its chief aim was to shame online pirates. But shortly after the blog went live, Masnick was informed by one of his readers that Allen had reprinted, in full, one of his Techdirt articles without attribution, and he took to the web to point out her seeming hypocrisy. His blog post ricocheted around the internet, forcing Allen to dash off a quick apology. But then, two days later, another Techdirt reader alerted Masnick to a much more explosive example of hypocrisy: For years, Allen had been uploading “mix tapes” full of other artists’ work without their permission. The resultant ridicule was so fierce that Allen quickly deleted all her blog posts and announced she would no longer participate in the debate.
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That same year, Masnick traveled to Cannes, France to speak at a music industry conference about new business models for artists. The 15-minute presentation, the video of which was uploaded to the web, focused on Nine Inch Nails singer Trent Reznor and how he ditched his record label to experiment with several (ultimately successful) methods to get his fans to pay for otherwise free music. Though Masnick wasn’t the first person to highlight business models that rely on distributing free content, the speech struck a nerve and was covered by hundreds or blogs and news publications around the world (later that year, Free: The Future of a Radical Price, a book by then-Wired editor Chris Anderson, debuted on the New York Times despite being distributed for free online).
By the turn of the decade, Techdirt was a central repository for all news relating to tech policy, and Masnick was one of the most prominent figures in a growing but-still-mostly-unorganized movement that cared fervently about issues relating to digital rights. And thus he was perfectly positioned in 2011 when House Judiciary Committee Chair Representative Lamar S. Smith, a Republican from Texas, introduced the Stop Online Piracy Act with 12 co-sponsors, four of whom were Democrats. The next day, Masnick published his first post about the bill, titled “E-PARASITE Bill: ‘The End Of The Internet As We Know It’” He would go on to write over 520 more.
For those who opposed SOPA, those early days after the bill was first introduced were grim.
Marvin Ammori served as general counsel for Free Press, an organization that advocates for net neutrality and other open internet issues, from 2007 to 2010 before leaving to teach law at the University of Nebraska-Lincoln. He decided he didn’t enjoy teaching very much, however, and moved back to DC to launch his own law practice focusing on internet freedom. Since then he’s worked with pro-net neutrality coalitions, large tech companies like Google and Apple, and Engine Advocacy, a pro-startup organization. As the SOPA battle began to heat up, Ammori told me, he spoke to one of his contacts who worked in the Judiciary Committee. “They told me point blank that there was no way we were going to win on SOPA,” he recalled. “It’s clearly going to pass. There are 40 co-sponsors in the Senate. At the same time, my friends in Silicon Valley were getting calls from their friends in Hollywood saying you guys have to back off on SOPA, we’re going to win, there’s no way we’re going to lose this one.”
But by this point Techdirt and a growing number of tech blogs, many of which typically didn’t spend much time writing about policy, were providing drumbeat coverage of every new development relating to the bill, and there were signs that a seemingly arcane piece of legislation that wouldn’t normally generate much interest outside of the Beltway was attracting notice from a growing number of Americans. Within weeks, a coalition of major tech companies that included Facebook, Twitter, and eBay had come out against the bill, and soon you began to see political movements ranging from the libertarian Right to the liberal Left announcing their opposition.
Suddenly, anti-SOPA stories were appearing almost daily on the front page of Reddit and as trending topics on Twitter. More often than not, those posts linked back to Techdirt articles. “After SOPA failed, a Harvard Law Professor named Yochai Benkler wrote an analysis of the SOPA fight,” said Ammori. “And it was really the story of Techdirt. Things would pop up in different blogs and Masnick would give it attention and then the eyeballs were moving in whichever direction Techdirt was sending them.”
Ammori argued that Masnick has found success because he managed to run a tech policy blog that didn’t read like a tech policy blog. “Being able to explain arcane legal and technological issues to a blog audience is not easy,” he said. “Doing it day in and day out on lots of different issues is something he’s able to do, and I think no one else has been able to do it quite as well.”
“I read Techdirt every day, sometimes several times a day,” Corynne McSherry told me. “And I think everybody in this space relies on Techdirt regularly.” McSherry is the legal director at the Electronic Frontier Foundation, litigating free speech issues against what she refers to as “copyright maximalists.” The Electronic Frontier Foundation, or EFF, is likely the most well-funded and visible organization that fights on digital rights issues, and during her decade there McSherry has watched as the movement has gradually matured into what it is today. “I feel like there’s been a sea change,” she argued. “DC remains difficult to engage with if you’re not inside the beltway, and while it’s still true that lots of negotiations and discussions and horse trading go on behind closed doors, I do think Congress is more aware than they used to be that there could be a massive public outcry that they would have to deal with.”
Case in point: On December 15, 2011, the House held a hearing to address several of the issues raised against SOPA. As recounted in The Fight for the Future: How People Defeated Hollywood and Saved the Internet — For Now, the book by Edward Lee:
Reddit, the news-linking social network, put a link on its home page to the live stream of the markup from the House Judiciary Committee website. Reddit’s link helped to drive a great deal of traffic to the Judiciary Committee website, making the markup one of the most watched in recent memory. It was a spectacle…
…Far from being open to compromise, the sponsors of SOPA appeared to be digging in their heels. They rejected nearly every amendment that was offered to provide more due process to protect against erroneous claims. EFF live-tweeted the entire markup, while Techdirt live-blogged it. The hearings were a complete spectacle, in a frightening way.
The bill didn’t die that day, but it was clear the tides had turned. What may have been the final death blow occurred on January 18, 2012 when Google, Wikipedia, Reddit, and thousands of other websites participated in an internet “blackout” in which their websites became inaccessible save for anti-SOPA messages:
Two days later, the New York Times reported that Congress was shelving the bill. Congressional leaders vowed to one day return to it, but this was a clear victory for opponents. “The Internet Wins” declared a Techdirt headline. Never one to rest on its laurels, the blog continued to publish six more posts about the bill that very same day.
With the benefit of four years of hindsight, it seems clear that the SOPA victory signaled a legitimate shift in power. In early 2015, after more than a decade of internet advocacy for net neutrality, the FCC classified broadband providers under the same regulations that govern telephone networks, thereby allowing the agency to ban blocking, throttling, and paid prioritization. After years of successful lobbying, telecom and cable companies had definitively lost the fight.
That’s not to say Masnick feels his work is done. He still posts about new efforts to resurrect SOPA. Techdirt still covers issues with copyright abuse and defends encryption technology. He now has a team of freelance bloggers who help him produce dozens of posts a day, and, unlike most other news sites on the web that are seeing fewer homepage visits as more and more of their traffic comes from places like Facebook and Twitter, Techdirt saw its ratio of direct traffic rise from 30 percent in 2014 to 38 percent in 2015 (“direct” traffic is usually a sign of a more loyal readership). Yet Masnick still runs his blog with the same mindset as when it was just a newsletter sent to 75 business school students:
“I kind of operate under the assumption that nobody sees what I write,” he said. He recalled his days working at his college radio station. “There’s this interesting thing when you’re on radio and you’re speaking into a microphone out into the world, and you have no idea if anyone is listening. And so I always went under the assumption that nobody was. To some extent my blogging has been sort of the same way. I just assume nobody is reading, and I’m a little surprised when anyone does.”
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Image via Dennis Yang