Defending Copyright in the Context of Trump

photo by DevonYu

Well, here we go.  I’ve been waiting for this shoe to drop, and it looks like Josh Tabish, campaigns director for Vancouver-based OpenMedia, has decided to be among the first to throw a loafer. In an editorial for Wired, he warns that “the copyright barons” are coming now that Trump is in the White House.

It has a been a challenge, to say the least, to try to disabuse people of the notion that contemporary copyright enforcement really can coexist with a free and open internet and not stifle free speech. And that was while Obama was president—a left-of-center moderate who was very close with Google. But ever since Trump won, I’ve been waiting for the same anti-copyright narrative to dial the volume up to eleven because now we have a ballgame.  Stand by for a litany of articles and blogs under the theme:  See! All it takes is a draconian, right-wing president, and the copyright industry will get what they want and destroy the freedom-loving internet!!!!

So, let’s clarify one thing, in case it hasn’t been obvious so far.  I neither like nor trust Donald Trump. I think he’s probably unhinged and that his agenda, opaque as it seems, may well pose a legitimate threat to the foundations of the United States.  And certainly, there are bigger issues to worry about at the moment than copyright law. In fact, this is always true, which is one reason the IP Subcommittee of the House Judiciary used to be a legislative backwater gig that nobody really noticed. But now that internet giants have convinced millions of people around the world that copyright enforcement in cyberspace is tantamount to stifling everyone’s speech, copyright remains in the foreground of digital-age issues and, by association, it will be swept up in the broader narrative of whether or not the Republic itself is going to withstand the new administration’s brand of heterodoxy.

In response to a letter by The Copyright Alliance asking the president to support copyright law, Tabish cobbled together the standard narrative that a) copyright law is already too strong; and b) making it any stronger can only result in some form of censorship online.  He trots out all the usual talking-points, including favorite hits like DMCA takedown is chronically abusive, no enforcement regime can mitigate piracy anyway, and beware the hidden IP agenda of trade deals.  None of these assertions is sound—I’ve written extensively on all of them—and certainly none can be understood from a sentence or two in a short article.  But I imagine we’ll be hearing a lot more of this “beware copyright” message now that the age of Trump is upon us.  And I could not disagree with this premise more. Perhaps now more than ever.

Protecting Individual Rights

One of the reasons I defend copyright is that it is an individual right.  IP is in fact the very first mention of an individual right in the Constitution, and copyright was among the few rights an American could exercise, even before he/she had other rights.  Frederick Douglass registered his Narrative of the Life of Frederick Douglass, an American Slave in a Massachusetts Federal Court in 1845.  At a time when he and his fellow Africans were literally considered property by half the country—and were none too welcome by the other half—Douglass could legally declare the work of his own genius as his property.

I happen to think that’s significant and believe people should recognize its significance.  Today, the empowerment of copyright is almost certainly a core component in the career of your favorite activist, author, artist, or journalist. Or to put it another way, if you watched the inauguration concert, that’s a pretty good glimpse of what art looks like in certain countries without copyright laws. Kinda meh, right?

Copyright Is Non-Partisan

To be frank, most governance is non-partisan, and it’s unfortunate that the theater of mass media has aggravated our capacity to politicize even relatively neutral policy.  But that’s another discussion.  Copyright law is grounded in the earliest principles of the new nation, it has been wildly successful on balance, and it empowers some of our favorite products. There’s a reason copyright historically enjoys strong bi-partisan support and stands apart from other, far more contentious issues.  If nothing else, amid the chaos and angst we’re now enduring on so many policy matters, copyright is actually kind of a nice legislative oasis where Republicans and Democrats can and should be friends.

Realistic Proposals to Amend Copyright Law are Not “Maximalist”

Despite the chronic repetition of the pejorative maximalist, and the declaration that rights holders are so eager to enforce copyright online that they’re willing to censor the web, this simply does not square with any of the real policy being discussed. Most of it is rather nuanced, and although some of the changes could cost Google or Facebook some of their not-so-hard-earned cash, it’s a stretch to imply that any of it can really affect the day-to-day use of the internet by most of us—least of all any discussion or sharing of substantive material that can arguably implicate the First Amendment. Naturally, these details and developments will be the subject of future posts.

Focus on the Real Concerns

Ultimately, if the real worry is about the correspondence of the internet and civil rights, remember that the creative copyright owners—least of all the independent artists out there getting clobbered—don’t own big web platforms. If you have real concerns about online censorship in the age of Trump, don’t follow the publishers, record labels, and movie studios, follow the evolving relationship between the administration and the owners of the web platforms. I’m not accusing those ISPs of anything here, but that just seems like common sense, no?

The simple reality is that every industry, regardless of internal political views, has to figure out how to work with the administration and the Congress we have.  That includes the institutions represented by The Copyright Alliance, and it includes those represented by the Internet Association. The Copyright Alliance letter is a lot like all the other representatives who sent missives to the new administration from every industry in the country. It’s SOP and largely symbolic.

Politically motivated communicators like Tabish should recognize that his empowerment  is not sustained by “free” internet conduits alone.  That empowerment is financial and requires investment by organizations like Wired where his OpEd was published. These entities depend on copyright law to protect their investments, and this is no time for any professional author of anything to be shooting himself in the foot.  Expect this rhetoric to get louder in the coming months and years, but that won’t make it more true.

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

Billionaires in Bunkers—The Luxury Apocalypse

Photo by CarlosYudica

Remember that theme “make the world better” that’s been pitched, promoted, and even believed by many a Silicon Valley innovator?  Well, according to Evan Osnos, writing for The New Yorker, a considerable number of tech-industry billionaires, rather than ask themselves what they might do as leaders to effect positive social change, are instead preparing for the day we all decide to kill them.

Doomsday planners, referred to as “preppers,” are described in Osnos’s in-depth article covering the history, psychology, and various styles of backup plans pursued by the very wealthy. It is certainly not just internet-industry tycoons who’ve invested in post-apocalyptic, luxury lifeboats; but I was particularly struck by the rationale of those who imagine that mass unemployment through automation could bring about a violent revolution.  “The fears vary,” writes Osnos, “but many worry that, as artificial intelligence takes away a growing share of jobs, there will be a backlash against Silicon Valley, America’s second-highest concentration of wealth.”

Among the on-the-record subjects Osnos interviewed was LinkedIn co-founder Reid Hoffman, who estimates that more than fifty percent of Silicon Valley’s billionaires have invested in some form of escape route. Examples cited include property in New Zealand with an emergency flight plan via private plane; a private island off the US coast; or a three-million dollar luxury bunker apartment at the Survival Condo Project, built inside a disused nuclear missile silo in Kansas and guarded by heavily-armed mercenaries.

Personally, when I think about various doomsday scenarios, the first question I ask is whether or not I’d even want to survive, and most of the time the answer is No.  I mean I wouldn’t even want to live at a time in human history prior to the invention of the flush toilet, so I don’t maintain active fantasies of slugging it out in a medieval, Mad Max-like world. These are fun thought exercises or the premises of some good fiction writing, but I think it’s adorable that the wealthy “prepper” imagines not only surviving the collapse of civilization but goes so far as to expect a rather comfortable survival at that.

The investment in these plans reveal the kind of arrogance that assumes that in a collapsed civilization, these folks would still maintain their status at the top of the food chain.  For instance, I’m not surprised that a private security team is happy to be paid today to guard that bunker; but on the other side of the cataclysmic threshold, where money might become meaningless, those same trained killers may decide the bunker is theirs and that the former billionaires can work for them.

Surviving a doomsday scenario naturally depends on the causes and the extent of collapse, but it seems to me that most of the possible histories present a world not worth surviving.  Even the description of Osnos’s tour of the Survival Condo Project with its founder Larry Hall sounds doomed to me:

The complex is a tall cylinder that resembles a corncob. Some levels are dedicated to private apartments and others offer shared amenities: a seventy-five-foot-long pool, a rock-climbing wall, an Astro-Turf “pet park,” a classroom with a line of Mac desktops, a gym, a movie theatre, and a library. It felt compact but not claustrophobic. We visited an armory packed with guns and ammo in case of an attack by non-members, and then a bare-walled room with a toilet. “We can lock people up and give them an adult time-out,” he said. In general, the rules are set by a condo association, which can vote to amend them. During a crisis, a “life-or-death situation,” Hall said, each adult would be required to work for four hours a day, and would not be allowed to leave without permission. “There’s controlled access in and out, and it’s governed by the board,” he said.

I’m not sure which is my favorite implied folly—the classroom full of  Macs for a world that might be devoid of electricity and almost certainly will no longer have a working internet; or Hall’s projection of internal governance and justice maintained by the condo board of the apocalypse.  Often, such scenarios end in cannibalism, so I’d rather be taken out with the first strike, thank you.

Alternatively, Osnos writes that the growth industry in supplying the survivalist imaginations of “preppers” also brings out high-profile critics, like PayPal co-founder Max Levchin, who considers his colleagues’ pricey lifeboats a “moral miscalculation”, and whom Osnos quotes thus:  “It’s one of the few things about Silicon Valley that I actively dislike—the sense that we are superior giants who move the needle and, even if it’s our own failure, must be spared.”

The best way to survive—indeed probably the only way to survive—the end of civilization is to invest in civilization itself and to hedge against collapse.  For all the many millions these people are wasting on exit strategies that would likely end in their grizzly deaths anyway, they could put this wealth and their intelligence to better use.

For instance, Van Jones, on CNN last night, hosted a discussion with a group of West Virginia coal miners. They are representative of a large segment of the American population left behind by globalization and generally ignored by both Democrats and Republicans in Washington.  Their votes for Donald Trump, in an economic context, sound like a Hail Mary play—a roll of the dice that a man who seems to be an outlier will shake up the system enough to restore some political clout to the “rust belt” and provide them with economic opportunity that has been in decline for decades.

I assume that many of these “prepper” billionaires—be they tech wizards of Silicon Valley or capitalists of New York—are skeptical that Trump’s approach to restoring opportunities for these American workers is in any way realistic. Certainly they imply as much with some of their fears as to how social collapse might occur.  As such, perhaps their survivalist dollars and imaginations would be more wisely, to say nothing of more morally, invested in helping to develop solutions to some of the problems their own industries have created.  For instance, if there is truly no avoiding the march of automation toward the unemployment of tens of millions of people, these folks might want to devote their resources to meeting that challenge.  Because nobody can stockpile that much ammo.


CORRECTION:  First publication of this post inadvertently stated that Van Jones visited miners in Pennsylvania.

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12 Things You Could Still Do If SOPA Had Passed

photo by tomasmikula

Because today is the five-year anniversary of “Blackout Day,” the day millions of users were suckered into doing the internet industry’s bidding for no good reason, the always-relevant BuzzFeed offers us a missive published by the organization ReCreate Coalition called “12 Things You Can Do Because Congress Protected Internet Freedoms,” by which they mean backed off the passage of SOPA/PIPA on January 18, 2012.

But there’s something magical about the twelve things listed; it’s kind of like a palindrome in that it is also a list of things you would still be able to do if SOPA/PIPA had passed. Let’s not equivocate on this matter.  I mean not one of the activities mentioned was in any way threatened by SOPA/PIPA.  And you know how we know this? Because those bills didn’t expand rights or restrict exceptions like fair use under the copyright law. If you engage in any or all of the listed activities and actually infringe a copyright, you’re just as potentially liable right now as you would be if those bills had passed. For reasons known perhaps only to the folks at ReCreate, they chose the following:

1. Share puppy videos instantly to Facebook.

2. Post a breaking news clip on Twitter.

3. Review a new restaurant on Yelp.

4. Comment on an article at a news outlet like Deadspin.

5. Use Wikipedia for that history paper on Alexander Hamilton…

6. Post a funny meme to Reddit.

7. Save a healthy recipe on Pintrest…

8. Repost a motivational quote on Instagram.

9. View and share family photos on Flickr.

10. Write a political opinion blog on WordPress.

11. Post a manequin challenge on YouTube.

12. Listen to a podcast on SoundCloud.

None of these actions inherently requires the use of copyrighted works. Some are actually hard to fathom how such a use is even implied. For instance, it’s pretty tough to share your own family photos and infringe a copyright, which suggests the ReCreate folks really put their A-Team on this little project.  But, don’t kid yourself.  If your political opinion blog includes the publication of a copyrighted photograph used without permission, you’re exactly as liable right now as you were before anyone even heard of the acronym SOPA.  Those bills were aimed at foreign-based, enterprise-scale pirate site operators and required substantial, costly evidence to enforce. It would not have been legally possible for rights holders, under SOPA, to give any more of a damn about private videos and restaurant reviews than they do right now.

The remedies provided by SOPA/PIPA were based on existing practices already used by courts when providing injunctive relief—all of which have been applied in various cases, and all without destroying the internet, the First Amendment, or your ability to “share puppy videos instantly on Facebook.”  Since 2012, sites have been shut down, URLs delisted, and credit card services denied to various types of bad actors; and yet the web keeps humming along in all its mannequin-challenging, motivational-quoting, and funny-meme-making glory.  The anti-SOPA campaign was one of the most effective fake news stories of all time, and celebrating the anniversary of being fooled is well…you finish the thought.

I assumed the buzz in BuzzFeed referred to current events, but perhaps it’s a literal reference indicating that any party, no matter how stoned they are, is free to publish any nonsense they cobble together via their platform. So, I guess we should add a thirteenth item to the list that would also, sadly, still be kosher in a world with SOPA & PIPA:

13.  Click-bait bullshit could still pretend to be information.

 

Posted in Copyright, Digital Culture | Tagged , , , | 10 Comments

BMG v Cox Goes to 4th Circuit Appellate Court

Amicus briefs were filed recently in the 4th Circuit Court of Appeals in the case of BMG Rights Management v Cox Communications. In November of 2014, BMG sued Cox (an ISP) for contributory copyright infringement, and a US District Court found for the plaintiff in December of 2015, awarding $25 million in damages. The suit was based on evidence that Cox was willfully ignoring and/or failing to address the use of its service by repeat infringers.

“Digital rights” groups and (let’s be honest) people who support piracy decried the outcome, which Cox has now appealed. A decision may expected by early Spring, and if the court were to find Cox’s arguments persuasive, this would have a very damaging effect for rights holders—further aggravating the weakness in the DMCA as a mechanism of enforcement.

Having failed in the lower court to convince either judge or jury that Cox had sufficiently maintained its liability shield (safe harbor) under the DMCA, the company now seeks to argue on appeal that the DMCA says something other what it says.  And true to form, Public Knowledge and the Electronic Frontier Foundation have chimed in (via joint amicus brief) to propose that if the Cox ruling is upheld, it could lead to disenfranchisement of people from internet access and…y’know…destroy free speech. Again.

Anyway, let’s review.

Although one might get the idea from general discussion that DMCA is either a blanket liability shield for ISPs or a blanket takedown mechanism for rights holders, it is neither of these things. Instead, the DMCA statutes define the conditions and responsibilities of service providers with regard to users uploading unlicensed, copyrighted material onto their platforms. In simple terms, the law states how an ISP may conditionally retain its safe harbor liability shield, and it is these conditions which tend to get lost in the broader reporting on DMCA-related stories.

A service provider like Cox, which sells internet access to consumers, generally would not be concerned with hosting infringing material the way a platform like YouTube will be, but they can be liable for contributory infringement if the company is aware of subscribers using its service to repeatedly infringe copyright and takes no action to stop the infringing activity. The statute in DMCA §512(i) states that a service provider must have “a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service providers system or network who are repeat infringers.”  Note that the DMCA explicitly anticipates conditions by which the provider must eventually terminate the accounts of repeat infringers—logically, those who refuse to stop after some amount of warning.

So, for all of EFF’s and PK’s dramatics about the cruelty of account termination—their brief compares it to “cutting off a tenant’s water”—one might get the idea that in writing the DMCA, Congress never imagined such a remedy; but termination is precisely what the law says.  (A more reasonable comparison would be made to the prospect of losing a driver’s license, which can be quite damaging to an individual, but which is also a penalty imposed only after some degree of willful abuse.)  What the DMCA does not say is how much infringement makes a “repeat infringer,” or how an ISP must design its policy for addressing repeat infringers where account termination is a possible consequence.

This ambiguity can be exploited by service providers, and in this case, BMG presented substantial evidence to the court that Cox’s policies seemed purposely designed to avoid taking action against repeat infringers within a reasonable interpretation of the DMCA.  The district court opinion written by Judge Liam O’Grady states, “Unfortunately for Cox, the record was replete with evidence that foreclosed any assertion by Cox that it had reasonably implemented a repeat infringer policy.”

Who’s a repeat infringer?

In its appeal, Cox seeks to argue that “repeat infringers” in DMCA §512(i) can only mean “subscribers who have been found liable for infringement by a court or a jury on more than one occasion.” In other words, BMG’s evidence of users consistently accessing unlicensed material does not make those users “repeat infringers” unless they’ve already been found guilty of infringement in a court of law—more than once.

Cox is relying on a specific interpretation of the word “infringer” in the statute, hoping that the appellate court will agree that a “repeat infringer” can only be an individual who has lost at least two copyright infringement cases in court.  That population may be a number barely large enough to fill a small cafe, which is considerably smaller than the billions of users anticipated by the architects of the DMCA. And because it is obvious to any reasonable person that one can be guilty of a violation without being held liable—if you’re let go for speeding with a warning, it doesn’t mean you weren’t speeding—any reasonable person should conclude that Congress’ use of the word “infringer” in this case was meant to describe individuals engaged in unlicensed access to, or use of, copyrighted material, even if the rights holders do not intend to pursue litigation against them.

It is a truly bizarre argument, which overtly pretends the DMCA is something other than what it is.  The background, intent, and language of the law is known, by the parties involved in its writing, to have been designed as a process by which ISPs and rights holders would collaborate to mitigate infringement—no matter where the users reside or who they are—without costly litigation  For example, a “repeat infringer” under the DMCA can easily be—and often is—a user in a foreign country who has never seen a U.S. court, let alone been a named party in a U.S. copyright case.

The DMCA’s existence is based partly on an understanding that worldwide users would inevitably infringe—either willfully or unintentionally—but that the ISPs and rights holders would have a mechanism for removing infringing files or stopping infringing activity without anyone getting sued—as long as all parties met the conditions in the agreement.

Photo by SergeyF

 Knowledge of Infringement

If you call someone on their cell 3-4 times and they don’t answer, there may be any number of reasonable explanations.  If you call them 50 times and they don’t answer, they’re ducking your calls—or in legal terms, they’re engaging in “willful blindness” by choosing not to hear what you have to say.  So, what about a few million calls?  At issue in the lower court decision was the fact that Cox simply ignored millions of notices sent by Righstcorp on behalf of BMG containing IP addresses and other corroborating information demonstrating repeat infringement by numerous subscribers.

Cox’s rejection of these notices was deemed “willful blindness,” which is the legal equivalent to taking affirmative action to infringe, hence the charge of contributory infringement.  On appeal, Cox contends that the notices, which they chose to ignore, would not constitute “knowledge of infringement” anyway, thus seeking a standard of “knowledge” so narrow that it would effectively excuse all ISPs from adopting any kind of anti-infringement policy as mandated by the DMCA. 

The Betamax Argument

Cox further argues that as a conduit provider, they can only be held liable if they “actively encourage or induce infringement through affirmative acts.”  In this regard, Cox relies on a very broad reading of Sony Corp v Universal Studios (1984), which held that Sony could not be liable for copyright infringements that may be committed by users of its VCRs.  There are several parts to the Sony ruling, including the Court’s holding that because the VCR could be used for “substantial non-infringing purposes,” Sony could not be liable for any infringing uses unless it actively induced or encouraged that infringement by its customers.

Cox now seeks to argue, by the same principle, that because internet access may be used for “substantial non-infringing” purposes, they should be held to the same standard as Sony because they also did not induce its users to infringe.  Once again, Cox’s argument seeks to bypass the terms of the DMCA with an argument that, if upheld, would unconditionally absolve all ISPs of liability unless they promoted infringement in their marketing.

The fact that the internet, writ large, is used for substantial non-infringing purposes is immaterial.  To stick with automotive analogies, just because cargo trucks are used for substantially legal purposes, this has no bearing on the liability of a trucking company, if it were to turn a blind eye to some of its drivers transporting contraband across state lines.

Nevertheless, Cox—with the hyperbolic assistance of EFF/PK—seeks to argue that if this hypothetical trucking company pays a penalty, loses it’s license, or fires the named truckers, that will lead to the end of trucking itself, and we all starve. If 100 Cox subscribers lose their access due to their infringing activity, it has no more bearing on the internet and its billions of users, than if a different 100 subscribers lost their access due to non-payment for the service.

As argued in the brief filed by the Copyright Alliance, “If Cox’s view was the law, then as long as it was not actively inducing or promoting infringement, Cox could throw each and every infringement notice it received straight into the trash, and the “Abuse Group” charged with addressing online piracy could knowingly permit active infringement without creating any risk of liability to Cox.”

To summarize, the Cox argument boils down to the following:  1) repeat infringers are not repeat infringers; 2) even if they were repeat infringers, we could not know they were repeat infringers from the evidence presented; 3) even if they were repeat infringers and we knew about them, we aren’t liable because we didn’t tell them to infringe.

Implications of this Case

This effort to treat the safe harbor as an unconditional liability shield is generally where large ISPs have tried to move the conversation, both in the courts and in the public dialogue. But the DMCA was never meant to provide a free ride for service providers, although it has inadvertently produced that result to a greater extent than anticipated by its authors.

As Copyright Alliance also observes in its brief, if a rights holder the size of BMG has no remedy in a case in which a service provider has been shown to have circumvented the provisions in the law, then independent rights holders truly have no hope of protection whatsoever in the evolving digital market.  Instead, independent rights holders need the DMCA to be made more effective than it is by revising some of the ambiguity in the statutes, which leads to the kind of bad-faith policies on the part of ISPs that are apparent in this case.

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Read Christopher Zara’s Section 230 Article

 

Photo by Pond5.

Christopher Zara, writing for Backchannel, offers an excellent discussion about Section 230 of the Communications Decency Act of 1996.  He provides historical context and a balanced presentation of the challenges that have arisen from the differences between the law’s intent and its application.

“Given how often Section 230 is championed, cited, and showered with superlatives, you might not know there is a raging debate going on about how well the law actually works.”

Of course, the business broadly described as “the internet” was a very different animal in 1996, and as Zara describes considerable detail, we have yet to fully address some of the liability implications that may pertain to an Airbnb-type platform versus those that might pertain to a Facebook-type platform. “Digital rights” advocates, and of course the businesses themselves, vie to treat all platforms equally under Section 230—meaning that Airbnb would be no more responsible for a bad listing than Facebook is for you sharing defaming material.  But is Airbnb truly a web platform hosting third-party content in the same sense as Facebook, or is it a hotel booking service that uses web technology, thus implying a different set of responsibilities never considered under Section 230?

In fact, if you read my last post, and the critical comment about it from Anonymous, he/she correctly points out that Section 230 was created in order to allow platforms to remove objectionable material without invoking a liability.  Zara’s article provides insightful background on this from Senator Ron Wyden (D-OR), co-author of Section 230 with Chris Cox (R-CA) when both served in the House of Representatives.  But Zara also observes that invoking 230 is indeed used as a defense by platform operators to take no action to remove potentially harmful material.

As cyberspace becomes increasingly integrated with the physical world—and as users come to grips with the supposed neutrality of information—we are probably going to hear a lot more about Section 230 in the relatively near future. Christopher Zara’s article is a great starting point for anyone hoping, as I am, to better understand the issues.

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