AI & Ethical Determinism

Photo by moipokupkigmailcom.

As artificial intelligence (AI) moves from the realm of science fiction to everyday science, leading  technologists and scientists are asking themselves questions about how to write an ethical code. The most widely reported ethical dilemma involves the self-driving automobile and what’s known as the Trolley Problem.  This hypothetical challenge asks whether or not you would make the decision to divert a speeding train from one track to another knowing that doing so will kill one person but save the lives of several others.

This problem is transposed to the world of driverless vehicles and how a car’s AI should make split-second, life-and-death decisions. It’s a question that doesn’t just raise technological or ethical questions, but psychological ones as well.  Because the ways in which we cope with tragedy in modern, developed society—or the anticipation of potential tragedy—does not generally encompass the kind of determinism implied by this AI challenge.

Many cope with tragic accidents through faith—a belief that there is a deity with a plan, even if that plan cannot be known.  Those of us who are not religious cope without faith in a plan—by making peace with the fact that chaos and human fallibility can produce terrible outcomes.  In either case, there is a degree of comfort in the uncertainty—not comfort that lessens the pain of loss per se, but comfort that enables us rationalize terrible events or to step outside the door without living in abject fear.  The uncertainty coupled with probability, and maintaining a measure of control, allows us to confidently get into our cars and drive around without expecting to be wiped out.  Remove a factor, for instance the measure of control, and this likely explains why more people are anxious about flying than riding in cars despite the statistics proving that the opposite should be true.

In this regard, when the unforeseen event occurs—brakes fail, an obstacle suddenly appears in the road, etc.—the outcome of the split-second reaction of a human driver is arguably more the result of chance than of any kind of rational decision-making. Even in relatively common examples, drivers are told that they should almost never swerve to avoid wildlife running across the road and risk hitting an oncoming car or slamming into a tree and killing themselves rather than hit a squirrel. But that instinct to avoid is strong and gets stronger when the animal that suddenly appears is a stray cat or dog.  The point is that whatever the outcome—whether a flattened squirrel or several dead motorists—the whole series of events, including the driver’s reaction, can be chalked up to a degree of uncertainty, and in that uncertainty lies many of our psychological coping mechanisms.

But what happens when humans pre-determine the outcome of certain ethical dilemmas and encode these into machines that we then grant authority to make these decisions?  In the simple case cited above, the squirrel is killed and all humans live, but what about a split-second decision that will result in the death of a passenger versus the deaths of a mother and baby crossing the road?  In the Summer of 2016, MIT researchers, grappling with exactly these types of questions, launched a website called Moral Machine which asks users to make a set of lose-lose decisions in various hypothetical traffic scenarios in which some parties face certain death.  Anyone can take the “test”, and the site will reveal how you “score” relative to the ethical decisions made by others.

Of course, the Moral Machine tests present the user with information that a car’s AI would, in principle, never know—like the fact that some of the potential victims are criminals.  But in a more likely scenario, age is a factor in some of the scenarios, a condition that strikes me as being more credible—that a vehicle might know it’s carrying a septuagenarian couple and may, therefore, decide that it is more ethical to kill them rather than a young family. The senior couple might even make the same selfless decision themselves, but such calculations don’t really occur when a human operator is reacting to an emergency faster than he can think.

What’s eerie about some of these Moral Machine tests is the implication that the data set used to enable an AI to make ethical decisions could theoretically include more than mere numbers (i.e. that the machine would simply default to save more lives than it takes).  Age could be a factor, but what about net worth or relative “value” to society?  Does the AI wipe out a whole busload of kids to save one physicist or surgeon or even a Kardashian? What about race or sexual orientation? This then begs the question of whether or not these pre-determined decisions are public knowledge or trade secrets, both of which present huge and unprecedented moral dilemmas.

In this regard, an article that appeared just a few days ago tells us that the next generation of self-driving cars from Mercedes-Benz will be programmed to save the passengers regardless of circumstances.  On the one hand, this is an algorithmic variation on the theme that the privileged class enjoy a priority lane on the right to life ahead of everyone else; but there is also something to be said for Mercedes choosing not to become trapped in the moral miasma of programming an ethical AI. Perhaps if all vehicles are required by law to default to a single directive like try to save the passengers, then this would approximate the instinctive but fallible reactions of human drivers and still allow uncertainty to play a role, thus absolving engineers of the responsibility to “play God.”  At least until the AI becomes self aware and begins to make such decisions on its own.

After all, it’s hard not to notice the dystopian implications of a man-made, ethical determinism when we remove the element of chance and cede authority to carry out life-and-death decisions to machines.  When we remove the psychological buffer provided by chance, fate, God’s will, etc., then tragic events naturally beg explanation and, therefore, an instinct to assign blame. This of course raises the companion question about those who would inevitably try to game the system, people who would “jailbreak” their vehicles to override any code that might not favor them as the chosen survivors of an accident.  Suddenly, this places the civil libertarians who complain about the “right” to tinker with technological property on the wrong side of that argument insofar as the theoretical “greater good” is concerned.

The ethical AI question also becomes another factor leading to the conclusion that autonomous vehicles might not be private property for very long. Rationally, to have an AI shuttling all of us hither and yon, the system would have to be level in order for it to be remotely ethical, suggesting that the private property models from Mercedes or Tesla or Ford are merely stepping stones toward a public system, or a highly regulated one. But these outcomes are not what manufacturers or leading data companies investing in this future are going have in mind.

This is one reason I agree with President Obama, when he said in a recent Wired interview with Joi Ito conducted by Scott Dadich, that it is essential that public funding play a role in the development of AI.  “…part of what we’re gonna have to understand is that if we want the values of a diverse community represented in these breakthrough technologies, then government funding has to be a part of it. And if government is not part of financing it, then all these issues that Joi has raised about the values embedded in these technologies end up being potentially lost or at least not properly debated,” said Obama

Of course, the president is referring to developing an ethical AI beyond just vehicles, and his point is well taken.  The sci-fi future of AI is already here.  But the questions as to what values drive the decision-making are just barely being asked in the public debate. Meanwhile, the corporate rhetoric of “disruption” has already absolved many sins in the areas of privacy and intellectual property infringement.  Or as Sam Kriss put it so well in his excellent article for The Atlantic:  “Silicon Valley works by solving problems that hadn’t heretofore existed; its culture is pathologically fixated on the notion of ‘disruption.’ Tech products no longer feel like something offered to the public, but something imposed: The great visionary looks at the way everyone is doing something, and decides, single-handedly, to change it.”

NPR reported in late September that computer scientists from the major tech giants—IBM, Apple, Amazon, Microsoft, Facebook, & Google formed The Partnership on Artificial Intelligence to Benefit People and Society.  One of the goals of the partnership is to develop standards for best practices in the field of AI, including tackling ethical questions like the Trolley Problem for vehicles.  But it is essential that the public interest be represented in the development of these technologies, and as much as I may fault the Obama administration for being too Googley in various policy areas, I also credit the president himself for apparently thinking deeply about questions like how we develop an ethical AI. At the present rate of development and investment, let’s hope the outgoing president is not the last public representative to keep this conversation in the foreground.

Posted in Digital Culture, Law & Policy | Tagged , , , | 1 Comment

Are We Ruining Facebook with Politics?

Photo by Pond5
Photo by Pond5

Last week, Karol Markowicz, writing for The New York Post, said that we’re “ruining Facebook (and friendships) with political rants.”  Taking the position that Facebook is meant to be an environment for connecting with friends and family in traditionally gregarious ways—sharing kids’ photos and personal news, etc.—Markowicz makes a case that chronic political grandstanding is harming the social atmosphere of the platform, even citing a 2014 Pew study showing that roughly a quarter of users have blocked “Friends” because of political disagreements.

Markowicz’s observations prod consideration of a few different subjects, including the fact that even in an era of divisive politics, we’ve never had a candidate with the polarizing capacity of a Donald Trump before. And while it seems that our political climate has become more radical—and apparently less well-informed—over the last 20 years, is it more accurate to say that politics is ruining Facebook or that Facebook is ruining politics?   The latter notion has certainly been my bias since starting this blog—that the information revolution is generally a flop owing to the multitude of ways in which the electorate can now reinforce ignorance, racism, sexism, or xenophobia by fostering online communities predicated on exactly these sensibilities.  The so-called information age is one reason I believe fringe lunacy has gone mainstream.

With regard to Markowicz’s thesis, though, that political grandstanding is “ruining Facebook”, this presupposes that Facebook was somehow earmarked for a different destiny, which is a hard premise to accept a face value. For better or worse, social media is still an experiment—a catalyst only recently added to human interactions and which cannot fail to yield unpredictable results.  How can anyone say that Facebook is being ruined rather than come to the more reasonable conclusion that Facebook, for which there is no real precedent, was destined to become exactly what it is?  A social media platform itself is not society, which we do have a collective responsibility to maintain despite our differences.  Facebook is Mark Zuckerberg’s ant farm comprising a half-billion ant users, and it remains to be seen whether the farm thrives or dies, or if the ants just get bored.  Either way, how much does it really matter?

Society is outside my front door.  I don’t know who my neighbor is voting for, but I know he’s a hell of a nice guy, a great dad, and the kind of person who will do anything for you.  If he posted a Trump sign on his lawn tomorrow, yes, I’d think he has a serious disconnect, but am I going to walk over to his house and set him straight? Or will I suddenly be rude to him once he declares his intentions? Of course not. And to Markowicz’s point, if most of us would respect such boundaries in the real world, why do we feel it’s okay to cross these lines in cyberspace?

The answers are going to be found in the medium itself, in the nature and design of the platform.  The platform wants you to say something. That is its purpose.  And the environment fuses public and private behavior in ways that are relatively new in human experience, especially for the two generations who became adults before Facebook’s inventor was even born. Add to this the fact that most people don’t express themselves very carefully with the written word and that all other communication—facial expression, tone, body language—is obliterated, and of course friends and relatives are going to insult one another.

When I was a kid, most adults repeated the rule that one does not talk about religion or politics in polite company, and again to Markowicz’s point, social media often exemplifies why this was a pretty good rule.  It has been widely discussed—and it is empirically obvious—that people will say things on a social media platform that they would never say to someone, let alone a friend or family member, in person.  This phenomenon has provided grist for many a psychologist’s mill, but the actual effects on relationships within the confines of the platform itself are merely data in the ant-farm experiment. And it should be obvious that the farmers want Facebook to be as lively as possible—for the articles, memes, and comments we share to be substantive, political, and even self-righteous and bitchy because these interactions produce richer data.  If we shared nothing but baby pictures and snapshots of what we’re having for lunch, that would surely ruin Facebook from its owners’ perspective.

At the same time, while I could give a damn whether Facebook thrives or crashes, there’s no question the experiment is interesting.  If relatives or friends who would ordinarily get along by keeping their views generally hidden discover animosity for one another through a medium that fosters expressing those views, is there any value in this?  Maybe. Does the platform make relationships more honest, or does it just produce unnecessary conflict?  Presumably, it’s a bit of both.  Regardless, whether we’re talking about political ideology, tackling tough social issues, or cultivating interpersonal relationships, the question should not be what we are doing to the ant farm called social media, but what it’s doing to us.

Posted in Digital Culture | Tagged , | 1 Comment

Backpage Execs Arrested Because Pimping Isn’t Speech


On October 6, the CEO of Carl Ferrer, along with former executives Michael Lacy and James Larkin, were arrested in California on charges alleging involvement in prostitution, including conspiracy to commit pimping of a minor.  The classified ad site had been under investigation by the California DOJ for three years and on the radar of anti-human-trafficking advocates for at least a decade.  Citing the importance of these arrests, Polaris has recorded nearly 2,000 incidents of sex trafficking that involved Backpage and further states that the National Center for Missing and Exploited Children told a Senate subcommittee “that 71 percent of all suspected child sex trafficking reports that it receives have a link to Backpage.”

Despite numerous claims—including by prominent digital rights activists—that Backpage has exclusively operated as a neutral site hosting user-generated classified ads in both “adult” and non-“adult” categories, the arrest warrant highlights include the following:

  • that well over 90% of Backpages’s tens of millions of dollars in revenue came from the “Adult” ads, which have clear links to both consensual and forced prostitution.
  • that Backpage became known by those in the commercial sex trade to be the “online brothel.”
  • that Ferrer and his associates purposely grew the “Adult” ad trade both domestically and abroad.

Perhaps the most damming evidence is that Ferrer and his associates allegedly used Backpage data to create what the warrant calls “escort directories,” sites that are in no way user-generated, but which are designed solely to drive customers for commercial sex to Backpage ads. Additionally, 7 of the 8 witnesses interviewed about their use of Backpage ads were identified in the warrant as “victims of trafficking,” some forced into prostitution before the age of 14.

Section 230 of the Communications Decency Act

Section 230 of CDA, which was passed in 1996, is the legal statute which states that online service providers shall not be treated as “publishers.” Site operators acting in good faith, and which are driven in part or in whole by user-generated content, are shielded from litigation stemming from material posted by a third party that might otherwise be actionable. In a nutshell, what the DMCA “safe harbor” does for OSPs and copyright infringement, CDA 230 does for just about every other kind of content.

In regard to a 2015 civil litigation filed against Backpage by three women—all allegedly victims of trafficking—the Electronic Frontier Foundation argued that CDA 230 required the dismissal of their claim against the site. As stated by Sophia Cope on September 8, 2015, “Where a website clearly participated directly in developing the alleged illegal content, immunity from suit is properly lost. But in cases like this, where the provider has allegedly colluded by the apparent implications of website design and content policies, Section 230 requires that the complaint be dismissed.”

Although not this was not the EFF’s only statement on the matter, this was the crux of that organization’s defense of 230 in regard to the Backpage litigation.  This view was upheld in Massachusetts District Court and in the First Circuit Court of Appeals but was rejected by the Washington State Supreme Court, which allowed the civil suit to proceed.

When the EFF argued that CDA 230 was grounds for dismissal of the plaintiffs’ civil suit against Backpage this a) was within the purview of that organization’s mission; and b) stopped well short of defending Backpage itself when there was a reasonable probability that the ongoing criminal investigation could reveal that the owners were implicated in illegal activity.

Taking the Free Speech Thing Too Far

Where the EFF crossed that line, it appears, was on July 6, 2015, when director of activism Rainey Reitman strayed far beyond the scope of judicial application of CDA 230 and engaged in speculation to defend Backpage on free speech grounds. This was in response to a decision by major payment processors—Visa, Master Card, & Amex—deciding in that month to cease processing transactions for Backpage.  Reitman called this “caving to government pressure,” accusing the processors and law enforcement of stifling free speech.  She wrote …

“We don’t need Visa and MasterCard to play nanny for online speech. Payment processors and banks shouldn’t be in the position of deciding what type of online content is criminal or enforcing morality for the rest of society. For one thing, their businesses haven’t been designed to analyze the legal and societal issues at play in various forms of online expression.”

She further states (and this is the paragraph that gets me):

“ can be used to sell an old refrigerator, find a new apartment, post about new community workshops, find a job, and offer many other services and goods. It also hosts an “adult” section of the site, where some people advertise escort services or try to connect with people who have similar sexual interests. This “adult” section requires visitors to confirm they are at least 18 years of age and allows users to get resources for reporting cases of suspected sexual exploitation with one click.”

Not only does Reitman engage in unfounded speculation about Backpage’s innocence—which seems like an unnecessarily dumb move for the EFF to make—but she actually implied that the site was helping to curb exploitation.  This particular rhetoric will sound familiar to copyright interests who’ve been listening to the Holy Trinity of infringement defenses for years.  1) We don’t know what’s happening on our site. 2) We host material that isn’t infringing.  3) Anyway, we’re helping you.

As the arrest warrant states, the non-“Adult” section of Backpage—the part innocently selling refrigerators and such—is mostly supported by free ads while the “Adult” section is supported by paid ads.  The warrant further states that from January 2013 to March 2015, 99% of the site’s revenue (which is in the tens of millions) came from the “Adult” section but that this ratio dropped to 90% in May of 2015, apparently after the major payment processors pulled their accounts.

Any reasonable person could deduce that the paid part of Backpage’s business was worth money while the free part was not; any reasonable person could observe that Backpage hosted a very large volume of ads for the commercial sex trade; any reasonable person could know that at least a portion of the commercial sex trade involves trafficked victims, including minors; and any reasonable person could know that the company was under investigation.  Given these plainly observable data, it’s hard to fathom that the EFF would allow Ms. Ms. Reitman to publicly assume Backpage’s fundamental innocence in the service of its chronic argument that everything online is protected speech. But it isn’t that hard to fathom.

Going back to the topic of “cultural capture” for a moment, I’ll stop short of accusing the EFF of knowingly defending alleged human traffickers, but I won’t stop short of accusing them of being so neck deep in their own PR bullshit, that they ended up defending alleged human traffickers for no reason.

Where Reitman really went too far down this road was when she described the “Adult” section as a place where users “try to connect with people who have similar sexual interests.”  As if Backpage were more like Tinder than the “online brothel” that everyone in the commercial sex trade seems to know that it is.  Those tech-utopian words connect and interest are just so friendly and Googley and social, one would never think to associate them with 13-year-olds forced by violence and threats of violence into the commercial sex trade.

Even if the folks at EFF could have reasonably convinced themselves that the owners of Backpage were not knowingly profiting from the commercial sex trade— and by extension trafficking—I think they were foolish to stray beyond commenting on anything other than the relevance of CDA 230 in a civil lawsuit.  To declare, as Reitman did, that, “Backpage, however, is not engaged in human trafficking. It shouldn’t be treated as if it were,” was an assumption that not only stepped outside the EFF’s wheelhouse, but it was also an absurd logical leap that appears to have been entirely wrong.

The point, of course, is not really the EFF itself but the message they promote, which assumes that all site owners naturally maintain a veil of ignorance about the content of their sites and that all online activity is protected speech.  Neither is true.  At the very least, site owners can certainly know where their money is coming from, and protected speech largely pertains to state action, not private enterprise.  I get why it’s easy to play this PR game with copyright infringement—because it seems like a victimless crime and because there is an amount of infringement in the digital age that rights holders are going to have to accept as unstoppable.  But I should hope that there is no percentage of for-profit, violent, human exploitation that we are willing to tolerate because we’ve lost perspective on what free speech is and why it is protected.

Posted in Law & Policy | Tagged , , , , , | 7 Comments

How the “Dancing Baby” Case Went Crazy

toddler-at-courtLast week, both the Electronic Frontier Foundation and Universal Music Group filed petitions with the United States Supreme Court in regard to what is commonly known as the “Dancing Baby” case.  The “baby” in question is about 11 years old now, and for those who might not know how a mundane home video became the focus of a multi-year, federal litigation now begging the attention of the Supreme Court, let’s review …

In February of 2007, Holden Lenz of Pennsylvania was just 18 months old when his mother Stephanie video-taped him dancing to Prince’s song “Let’s Go Crazy” and then posted the video on YouTube—a platform that was just six months older than Holden.  Because Prince was especially guarded about all uses of his music—and was justifiably critical of YouTube in particular—the Lenz video was one of several targets added to a list of DMCA takedown notices to be filed by Universal Music Group on the artist’s behalf. The “Dancing Baby” video was removed on June 5, 2007, and according to an ABC News story published in October of that year, Lenz stated that she was initially “frightened” about having her video removed from YouTube, concerned that UMG might file suit against her, and then the fear of said litigation made her “angry.”

So between the Summer and Fall of 2007, the public version of this story had already begun to stray from the relevant facts in the case.  For starters, Ms. Lenz had, on her own, immediately sent an incorrectly filled-out DMCA counter notice on June 7 seeking to restore her video. But if she were truly “frighted” about a lawsuit by UMG, that would have been the moment for her to proceed with caution because a DMCA counter notice can, in some cases, trigger legal action by a rights holder. Subsequently, at the advice of an attorney friend, Lenz contacted the Electronic Frontier Foundation to better understand her options, believing at the time that UMG might have infringed her First Amendment right of free speech.

PR by Litigation

Keeping in mind that nearly ten years ago, when this adventure began, it was easier for organizations like EFF to promote the message that DMCA takedown was widely abused and, therefore, chronically chilling speech.  They still promote this message, of course, but in recent years, both research data and anecdotal evidence from numerous rights holders indicate that takedown abuse is the exception while rampant infringement without recourse under DMCA is the rule.

On June 27, 2007, the EFF sent a correctly filed counter notice on Lenz’s behalf, YouTube restored the “Dancing Baby” video by mid July, and the EFF then filed its initial complaint against UMG on July 24, 2007. From there, both the public story and the court records suggest that Stephanie Lenz became, as Stephen Carlisle of Nova Southeastern University puts it, the “nominal plaintiff” who  provided an ideal opportunity for the EFF to embark on an odyssey of PR by litigation—a lawsuit looking for an injury.  The video itself, as anyone can see, could not be more harmless; it has an actual baby in it!

In part, what we know about the motivations and strategies driving this case is due to Ms. Lenz’s own carelessness as plaintiff when she revealed enough information via emails and social media that in 2010, that she lost her attorney/client privilege to specific portions of her communications with the EFF.  The casual communications cited in the record suggest that the EFF was determined to “get” UMG for something—Lenz uses the expression “salivating over getting their teeth into UMG”—even if they had to keep shifting strategies to figure out what exactly UMG had done wrong.

Shifting Rationales

Technically, the Lenz case is rather boring.  A mom had a home movie taken down from YouTube and then that home movie was restored to the platform via the DMCA counter notice procedure, which is exactly the process Congress had envisioned when it wrote the statutes.  Had there been no expectation of occasional error or flaw on the part of rights holders, there would not be a statutory counter notice “put back” procedure in the first place. The fact that the Lenz video was offline for a period of six weeks was due neither to a particular flaw in the DMCA nor to any action taken by UMG.

Moreover, the extent to which Ms. Lenz even felt “injured” by the removal is unclear since in one of her emails, she stated, “I don’t care if YouTube doesn’t want to host it. Not like I’m paying them.”  This was reported by CNET in a February 2011 article in which EFF attorney of record Corynne McSherry is cited promoting the message that copyright owners are frequently “careless in sending notices” and, therefore, “interfering with free speech.”

But even though Lenz stated that her initial belief was that UMG had infringed her First Amendment rights—and this story has often been referred to in the press and on social media as a free speech issue—the fact is that even the EFF would eventually concede that the temporary removal of the video did not implicate the First Amendment. This is because neither UMG nor YouTube are state actors and because the content of the video did not contain political speech, criticism, parody, or newsworthy content of any kind.

According to email communications made by Lenz, it appears the EFF considered a few avenues to pursue litigation, including a California State breach of contract complaint, which suggests that Lenz’s story did not immediately present itself as a constitutional or DMCA case in EFF’s mind.  In fact, the initial complaint filed in July of 2007 was for “tortious interference,” which was dismissed.

Additionally, in a June 14, 2007 email to her mother (10 days before the first complaint was filed), Lenz states that EFF’s pro bono “fees” would be covered by “the settlement.” This may just be a layman misspeaking because an expectation of a settlement would be a very odd strategy for a rights advocate organization that is supposedly taking a case on principle.  After all, a settlement by the litigants generally means the court does not rule on whatever principle is being argued.

The EFF amended its complaint to argue that UMG had violated §512(f) of the DMCA, which states that a plaintiff may seek damages if a takedown notice filer “knowingly and materially misrepresents that the material or activity is infringing.” And that’s how Lenz v UMG became a fair use case. A plaintiff does not have to have suffered financial loss in order to prove that an injury has been caused, but absent an abridgment of Lenz’s First Amendment rights, the EFF’s argument now rests solely on the sheer wrongness that the video was removed at all—that it was, in their words, “censored for six weeks.”

As indicated above, given that Ms. Lenz chose, in error, to investigate the First Amendment implications, and that the EFF chose to take the time to transform this minor event into a major case—and in light of the fact that the OSP (YouTube) is responsible for restoring files at its discretion—the six-week interval cannot be considered the responsibility of the defendant.  In general, whatever factors result in a file being restored, either within hours, days, or weeks, are not in the control of the original takedown notice-sender; and as the UMG petition states, the Lenz video was ultimately restored via the counter notice procedure. In other words, Lenz’s and EFF’s time spent exploring both tort and constitutional violations—both of which fail—is neither UMG’s fault nor its responsibility to pay for.

Lenz Becomes a Fair Use Case

So, the only way for the EFF to argue that UMG had “knowingly misrepresented” that the “Dancing Baby” video was infringing was to prove via testimony that the company had not “instructed its employee to consider fair use” before filing the takedown notice. And that’s where we are today.  In September 2015, the 9th Circuit Court of Appeals agreed that a rights holder must “consider fair use” before sending a takedown notice but stopped well short of agreeing with EFF’s assertion that such a consideration must be made based on an “objective” standard.

The EFF has tried to argue—indeed it can only argue—that a failure to “objectively consider fair use” is tantamount to “knowingly and materially misrepresenting that the material or activity is infringing.” As an amusing side note, in an early email to a friend (June 12, 2007), Lenz stated, “Mine’s not a fair use case at all.”  Granted, she cannot be expected to know the law per se, but in context to the other comments and court records, this early email does seem to support the view that this entire case has been a fishing expedition—a lawsuit looking for an injury.

As argued in the UMG petition, a “subjective” standard with regard to all considerations is the reasonable and correct interpretation of the DMCA statute, which requires a takedown notice-sender to have a “good faith belief” that a use is infringing. The plain meaning of “good faith belief” is clearly subjective; and fair use doctrine is the most subjective aspect of copyright law—a multi-faceted assessment for which the precedent caselaw provides myriad, conflicting and narrow outcomes.

Hypocrisy Undermines the Intent of DMCA 

So, even if the most experienced copyright attorney in the country were instructed to make an “objective” fair use assessment, she might ask how exactly this would be achieved. While it’s true that attorneys can make very solid fair use assessments—especially where precedent provides guidance—an “objective” standard applied to DMCA takedown notices would only further disenfranchise the independent rights holder who is no more an expert than Ms. Lenz was. This implies the need for counsel which contradicts the extra-judicial purpose of DMCA.

The truly galling hypocrisy here is that the indie rights holder would be expected to know with certainty when a use is fair while users remain free to infringe with impunity, and large OSPs are free to monetize those infringements on the basis that they “cannot know” what’s infringing or what isn’t. For the small rights holder DMCA is already toothless, but EFF would like to make it voiceless as well.

In Lenz, absent a ruling by the Supreme Court that fair use can be considered “objectively,” the foundation that UMG was ever in violation under §512(f)—that it “knowingly and materially misrepresented” that the “Dancing Baby” video was infringing—should fail. Consequently, the argument that any non-pecuniary injury was caused should also fail.  Perhaps, the EFF will succeed in getting the $1,275 in pro bono “fees” Lenz theoretically owes the EFF for filing the counter notice in 2007, which would make this case landmark indeed—getting the Supreme Court to adjudicate a small claim.

Finally, it’s worth noting that in the same October 2007 ABC News story cited above, Gigi Sohn, then head of Public Knowledge, opined, “I think the large copyright holders believe that if they do not police every single use of their copyrighted work — no matter how benign — that somehow that will open the floodgates to massive piracy.”

Whether this observation was acutely naive or just cutely dismissive, the fact remains that over the next several years after Sohn said this, YouTube would go on to earn fortunes by hosting diluvian proportions of infringement by its users.  In light of the immeasurable losses to working authors, who have no power under the DMCA to protect their rights, the EFF should frankly be ashamed of themselves for spending nearly a decade in federal courts fighting to protect absolutely nothing.

Posted in Copyright, Law & Policy | Tagged , , , | 2 Comments

Are Candidates Even Talking About the 21st Century Economy?

Photo by duallogic.
Photo by duallogic.

It’s very common to encounter broad complaints saying things like, “Copyright law should not stop me from fixing or altering my technology.”  Often, this generalization is made by people who don’t necessarily know they’re referring to Title I of the DMCA but who have read somewhere that copyright law prevents reverse engineering, maintenance, jail-breaking, and overall tinkering with products ranging from personal small electronics to cars, trucks, and tractors.

But as I first discussed in this post, the whole concept of ownership of many of our core products may be waning faster than these apparent conflicts with intellectual property law might ever be addressed. This transformation is highlighted by what seems to be an inexorable march toward an autonomous vehicle transportation system—a change that comes with consequences far more relevant than the matter of a “right” to fiddle with the gadgets we purchase.

With the announcement last week that the federal government officially endorses the development of driverless vehicles, it is noteworthy that no candidate running for any office seems likely to address the radical social and economic implications of this seismic shift in the transportation sector. Although I cannot bring myself to compare and contrast Donald Trump with any other prospective candidate for office, for the purposes of this post, suffice to say that between Trump’s version of trickle-down economics and Hillary Clinton’s version of focusing on the middle-class, it seems to me that neither candidate is talking about the same 21st century economy in which Wall Street is investing.

Candidates across the political spectrum keep referring to fair trade deals as a common scapegoat as a prelude to their myriad promises to “bring jobs back” to America. This is already a fallacy, pretending that we can reverse globalization through tax policy alone, or without a specific plan for investments—either public or private—that might actually grow domestic jobs.  Meanwhile, VCs, Wall Street, and the tech firms are placing big bets on a more generally automated future; and nobody seems to want to talk about the jobs we are, therefore, poised to eliminate over the next decade or two.  Not outsource through trade. Just eliminate right here at home.

For instance, a truly driverless future would probably wipe out a minimum of 10 million jobs, beginning with an estimated 8.5 million who work as drivers and at least a few million who work in some capacity related to the current ground transportation industry.  Granted there would be jobs created in order to build and maintain a new, driverless infrastructure, but only a fraction of the number that would be lost.  And equally if not more challenging is the question of whose investment would build this new infrastructure?

Let’s face it. The United States is bipolar when it comes to great building projects, which I think explains why our infrastructure is antiquated in contrast to other developed—and even developing—nations.  As if to emphasize our duality in this context, it’s notable that the two eras when most American infrastructure was built happen to have been based on antithetical models.  The first era was a period of unfettered capitalism, which built the foundations of the country’s industrial capacity from the mid-19th to the early 20th; and the second era was a brief period of outright socialism—the New Deal—which built highways, buildings, dams, etc. most of which is still in use today, even if it’s looking a little rusty.

Now that the Obama administration has given a federal fist-bump to the driverless vehicle—and if this does mark a tipping point when we can say this transition is inevitable—then we’re going to have to address the question of ownership (i.e. whose investment it’s going to be).  Would Americans allow Google, Uber, Ford, Lyft, and Tesla (GULFT) to own the entire transportation infrastructure for the nation?  Or would we build the infrastructure as a public work?  Because historically, allowing private industry to make that kind of stranded investment in exchange for monopoly control has not been particularly good for consumers or innovation.

Photo by jzehnder.
Photo by jzehnder.

When the nation was first being electrified, there was debate over whether we should build a distributed versus a centralized system.  A distributed system of smaller, co-generating plants would have been safer, more energy efficient, and less monopolistic. So, naturally  we built a centralized system.  This meant massive, stranded investments by the utility companies for which they could only be compensated through monopoly control of the market until those monopolies were finally busted up in the 1990s.  Meanwhile, consumers (a.k.a. “rate payers”) had no competitive choices, and the utility owners had zero motivation to innovate. As a result of this legacy, the United States remains a follower rather than a leader in advancing new, non-carbon-based, energy solutions.

So, now we fast-forward a decade or two in the world of ground transportation. We no longer own cars. We hail a driverless vehicle to take us to the grocery store where the goods on the shelves have all been delivered by a driverless cargo vehicle from a distribution center serviced by hundreds of other driverless cargo vehicles. Accidents are very rare, the air is cleaner, and (in theory) consumer costs come down. We no longer have car payments or auto insurance, and the lower cost of transportation could lower the cost of goods.

But those benefits may easily be diminished if we haven’t considered how to address the massive shift of 10-plus million people formerly employed in ground transportation-related jobs.  Plus, we now have a more thorough consolidation of transportation service than the railroad monopolies controlled at the turn of the 20th century.  Every vehicle trip is now part of a vast, networked system that relies very little on human labor. So who owns that system?  We have to assume that the capitalists currently investing in the model expect they will own it.  That’s a lot of control to give to GULFT.

Wall Street, Silicon Valley, and now the Obama administration are all projecting a future in which the transportation sector simultaneously sheds millions of jobs and centralizes control of the lifeline of the entire nation—and not one candidate from any party thinks this is significant enough to talk about.  Instead, they’re campaigning on traditional, and at times absurd, promises that they know best how to bring 20th century jobs “back.” In this one regard, maybe the future is already here because it doesn’t seem to me like anybody’s driving the bus.

Posted in Economics, Politics | Tagged , , | 2 Comments