Author: David Newhoff

David is an author, communications professional, and copyright advocate. After more than 20 years providing creative services and consulting in corporate communications, he shifted his attention to law and policy, beginning with advocacy of copyright and the value of creative professionals to America’s economy, core principles, and culture.

Allen v. Cooper Revisited III: Data Suggests States Willfully Infringe Copyrights

In my first two Revisited posts summarizing the legislative and judicial history leading up to the Supreme Court decision in Allen v. Cooper, I dove into some fairly deep waters. But now, let’s return to the practical matter at hand for contemporary authors of creative works. In short, if a state entity infringes your copyrights, you’re basically hosed. Meanwhile, unjust though it is, state entities, as major copyright owners, may avail themselves of the law when enforcing their copyrights against infringement.

To be precise, if a state actor infringes your copyrights, you cannot not sue for money damages. At best, you may be able to obtain an injunction against the state entity and force it to discontinue the infringing conduct; but without the prospect of money changing hands, initiating a federal lawsuit is prohibitive for most authors. To summarize the Supreme Court in Allen v. Cooper, it upheld its own precedent rulings (1900s-2000) that Congress may not abrogate 11th Amendment immunity (a.k.a.) state sovereign immunity, even under its Article I power to protect intellectual property.

But, as mentioned, the Court’s opinions in Allen also provided Congress with a roadmap, albeit a limited one, whereby new remedial legislation could potentially abrogate state immunity for infringements of intellectual property. Any new legislation must be based solely on the 14th Amendment’s prohibition against the taking of property without due process, and it must be backed by solid data showing that “willful and reckless” infringement by states is a substantial enough problem for creators that the constitutional abrogation can withstand the precedent decisions in these matters. When a case is ultimately tried of course.

State Actors Seem to Know They’re Immune

In response to the Court’s legislative “roadmap” in Allen, Senators Tillis and Leahy sent letters to the Copyright Office and the Patent and Trademark Office requesting comment and evidence related to the scope of state IP infringement. In response, the USCO issued a notice of inquiry seeking input from creators and copyright owners about their experiences with state infringers. In support of this effort, the Copyright Alliance created a public survey, which included the USCO criteria. Preliminary data from the CA survey bolsters the assumption that state infringement is increasing and may be increasing because state actors are aware of their immunity from litigation.

Over a six-week period, 655 Copyright Alliance members responded, with 115 reporting that their works were infringed by state entities. Specifically, Congress should take note of those rightsholders who report that they were initially contacted by state actors for licenses, and when the rightsholders declined, the state actors proceeded to use the work(s) anyway. “… respondents who viewed the infringement as intentional…[described] situations in which an attorney’s warnings were ignored, copyright management information (CMI) on the works was ignored or removed, or use of the works continued when an entity was aware that a license had expired,” the Copyright Alliance report states.  

Further, not only do these data imply a substantial amount of willful infringement, but 44% of respondents report that when they demanded that the state actors cease the infringing conduct, the infringers specifically invoked sovereign immunity as a reason for non-compliance. More than half the infringing entities, according to the creators who offered descriptions, were state universities, while the rest were organizations like tourism boards, state departments, and museums.

Assuming that these data indicate that many state infringers are acting upon an increased awareness of their immune status, this points to a reasonable conclusion that a substantial proportion of state infringements meet the standard of “reckless and willful,” as the Supreme Court opined in Allen would be necessary for Congress abrogate immunity. Meanwhile, nearly 70% of respondents to the CA survey report that they believe they lost revenue or licensing opportunities because of state infringement.

Oddly enough, it is possible that high-profile litigation like Allen v. Cooper, which principally affirmed a 2000 decision (Chavez v. Arte Publico Press) on the state immunity question for copyright infringement, may have the effect of emboldening state actors to engage in more brazen acts of reckless and willful infringement. At the same time, the Court was unequivocal in its unanimous view that state immunity in this regard is simply wrong; and absent Rick Allen’s lawsuit, authors would not have the SCOTUS opinions in their arsenal.

In the meantime, Rick Allen, on September 4, filed a motion to reconsider one count of his complaint against the state of North Carolina. The motion states, “These allegations (and still further allegations of intentional infringement, inadequate remedies, and absence of process that Allen will add if permitted to do so) would support a finding that North Carolina’s conduct violated not only the Copyright Act but the Fifth and Fourteenth Amendments as well.” More on that in the next post addressing state IP infringement.

Influencer Responsibility Raises Many Questions With Few Answers

Attorney Carrie Goldberg posted an interesting thread on Twitter last week in response to a September 4 New York Times article written by Taylor Lorenz. Before I go on, if you are unfamiliar with Goldberg’s work, her Brooklyn law firm defends victims of online harassment, and she has deservedly become one of the nation’s thought leaders on the subject of internet platform responsibility and liability. As I said in my praise for her book Nobody’s Victim, if anyone is going to help sensibly reform the over-broad application of Section 230 to the benefit of its unintended victims, it will be women like Carrie. But for the purposes of this post, I will stay away from legal liability and stick to questions of social conduct.

The headline of Lorenz’s article poses what Goldberg called the “million-dollar question”: Are Influencers Responsible for the Behavior of Their Followers? The article focuses on a 17-year-old TikToker named Chris (@Donelij) who had been making what users of that platform call “reaction” videos. These are created with the app’s “Duet” function, which enables a creator to capture himself in a split-screen alongside a video posted by any other TikToker. In Chris’s case, he “duets” with videos that reveal some shocking or surprising twist so that his viewers get to watch his reaction when he shifts from approving smile to bemused deadpan. This recurring schtick earned @Donelij over two million followers.

But because Chris performed his deadpan bit in response to a number of transgender TikTokers, whose videos reveal some variation on a surprising gender switch, Chris’s videos apparently inspired some of his viewers to antagonize or threaten the LGBTQ TikTokers featured in the Duets. “Even though he never says a word,” writes Lorenz, “thousands of people have called [his videos] out for being homophobic. Young gay and trans TikTokers who have been featured in Chris’s reactions report they have suffered vicious harassment from commenters and in messages.”

Lorenz reports that, last week, both of Chris’s accounts were banned by TikTok due to “multiple community guideline violations.” Assuming the reaction videos and their associated fallout with the LGBTQ TikTokers was the reason for these terminations, Lorenz poses her thesis question about responsibility. To this, Goldberg offered a tweet thread describing her views regarding both the moral and legal responsibilities of creators, followers, and platforms, placing most of the burden, when harm is done, on platforms.

In general, I agree with Carrie. Many of us would like to reverse, or at least reassess, the longstanding assumption that online platforms are strictly neutral conduits, and that users are the only responsible parties for anything. At the same time, however, this particular example strikes me as difficult to reconcile with regard to questions of responsibility, though it does point to the fact that our frame of reference (i.e. old media) falls short when grappling with the true nature of social platforms. Let’s step back for a moment.

All speakers bear some measure of responsibility for the consequences of their speech. While I do not think the contours of that responsibility are easily generalized, it is morally incumbent upon any speaker to at least acknowledge that speech has the power to inspire conduct and to at least contemplate what that conduct might be. Regardless, there will always be jerks among listeners, who will infer, even from expressions of parody and satire, a coded endorsement of their intolerance or hatred for some individual or group.

Does that mean, for instance, that comedian Dave Chappelle, because he has LGBTQ material in his show, is responsible if someone interprets his jokes as permission to harass members of that community? If anyone is paying attention to Chappelle, he endorses no such thing. Quite the opposite. But because we are talking about individuals who would go out of their way to harass people in the first place, neither Chappelle, nor any other creator, can possibly account for every mental malfunction that transpires between their jibes and some listener’s behavior. (It isn’t J. D. Salinger’s fault that Catcher in the Rye was allegedly inspirational to at least two murders and one attempted murder.)

So, with regard to traditional, pre-social-media, experiences (whence most of our views are derived), I suspect the reasonable answer is that the influencer is not responsible for the conduct of the follower. Returning to the example at hand, then, it seems difficult to cite Chris’s minimalist comedy—shifting from smile to deadpan in response to various surprise videos—as an inducement to harassing the gay and trans people featured in his Duets.

Given the way TikTok works (akin to Instagram in which “following” simply means the follower will see a creator’s videos from time to time while scrolling), it seems more likely that Chris’s followers unavoidably include at least some individuals who already spend their time hating on the LGBTQ community, and that his reaction pieces simply provided the names of some new targets. Any asshole who would go out of his way to mock, shame, or threaten someone in this way is not suddenly moved to engage in that behavior by one guy making a relatively anodyne joke.

At the same time, the extent to which Chris believes his schtick conveys a negative view of gay and trans people is a moral calculus he ought to consider. My GenZ, TikTok-using daughter showed me how a “duetter” can choose to hide the screen name of the person in the video to which they are responding. So, it is fair to ask why Chris did not employ this option (if he did not), which does not make the “duetted” party impossible to identify but does make them harder to locate without additional effort.

Social platforms will naturally generate Venn diagrams that are complex variations on the unremarkable fact that certain relationships between speakers and followers are often coincidental rather than causal. A video that made the rounds several weeks ago depicted a bevy of bouncing Boomers, festooned in their Trumpanalia and partying on a city street to the song “Y-M-C-A.” And because it would be absurd to interpret this dyspeptic dance as a celebration of gay pride, it is reasonable to assume that the relationship between the Village People and these village idiots was merely coincidental.

But what is unique about social platforms, of course, is not that they offer a forum for response, but that they insist upon a response. That blank space awaiting our input practically taps its foot in anticipation of some offering to the altar of “engagement.” And for many who create and/or comment, both praise and scorn, depending who is doing which, can serve as encouragement, even of speech that is very ugly. When some clown writes “Die faggot” at the gay TikToker, and others pile on in kind, these users are all receiving instantaneous and 24/7 positive reinforcement for their terrible conduct. This is a psychological stimulus unique to social media. It cannot be compared to the relationship between influencers and followers in other contexts. And, yes, to Goldberg’s point, the platforms bear the ultimate responsibility for designing and monetizing was is essentially a digital narcotic. 

Almost every conversation about platform responsibility—many of which focus on the role of Facebook in contemporary politics—is a variation on the theme of policy measures. What can and should the platform do to moderate the content on its site? What can and should Congress do to oversee the influence of these platforms? The paradox inherent to those intertwined questions is self-evident. It seems hopeless to expect that the divisions sown by Facebook will be adequately addressed by a house divided.

But very few of our conversations about responsibility begin with the premise that social media, from a psychological perspective, is basically crack in the schoolyard. More specifically, because TikTok is predominantly a GenZer’s platform, many of the harassers referred to in Lorenz’s article are very likely minors. That does not wholly relieve them of responsibility for their conduct, but it colors the concept of “community standards.” Give a platform like that to millions of adolescents and tell them to play nice? What do we think is going to happen?

I do not know that the example of Chris’s reaction videos is especially helpful in this conversation. His content seems a bit too removed from the corresponding harm that was done, and it seems tame relative to the degree of ugliness that often flows freely on the internet. Further, it would be difficult to proscribe his videos according to some rule that would not apply to a great deal of parody and satire (though there may be more than is reported in Lorenz’s article).

As the title of this post admits, I do not think there are easy answers to these questions. It does seem that the rules on social media are acutely distinct from our pre-internet experiences, but defining those rules is another matter. Social media is a narcotic, and we all bear a measure of responsibility for its use. Meanwhile, it doesn’t seem quite right that, of all the parties involved, the digital drug-makers are left to profit from the best and worst consequences without any obligations.  

Schrödinger’s Reality

In January of 2019, I wrote a post asking if, thanks to the internet, we had achieved a state of maximum inescapable bullshit. But whether we were there almost two years ago, we are certainly there now. It took less than a decade for the internet—and, it turns out, mostly Facebook—to destroy American democracy. I know that’s fatalistic, but even if the psychotic would-be monarch lurking inside that corpus we call Trump is no longer president come January, the self-inflicted damage to democratic institutions, conducted in the “marketplace of ideas,” may be irreparable. At least for quite some time.

I would propose that maximum inescapable bullshit derives from two conditions. The first is that, even with the best intentions, we lose almost all context (i.e. accountability) for the inputs that drive much of our political discourse. And the second is that our capacity for discourse itself is overwhelmed by volunteering to be constantly outraged, without a break to process what may not be useful information.

Take the shocking story of Kyle Rittenhouse as an example. The facts, as they are known, indicate that he should be charged with murder and his mother charged as an accessory; and the extent to which any police officers condoned his presence prior to the shooting should be investigated. That ought to be enough for the moment. In a pre-Facebook world, this incident would not be a top story every day, let alone every ten seconds. But on Facebook, I am reminded several times a day by incendiary memes that a Christian group has raised about a hundred-thousand dollars to support Rittenhouse. Now, pause a moment.

The point is not whether those memes refer to a true story. It is certainly a plausible story, and there are undeniably many addle-minded Americans who think of Rittenhouse, now apparently nicknamed the “Kenosha Kid,” as a hero. But also recognize that the meme itself happens to be exactly the kind of post that a professional Russian troll at the Internet Research Agency would generate in the wake of these shootings. At the same time, his buddy sitting next to him will be posting the counter-meme designed to stir up outrage on the other side, as it were. Further, the story could be true and grist for the propaganda mill at the same time.

Take the matter a step further, and try to investigate the claim made in the meme, and where do we begin? With a Google search, naturally. But alas, the first results may or may not be credible. Or perhaps the real story is not exactly what the headlines, or the meme, promised. Can we trust ourselves, or one another, to vet a story that fulfills our confirmation bias? Either way, it’s a lot of damn work when we multiply this example by dozens of stories every hour.

How many of us pause to consider the source of an image with its provocative headline? Was it made by a well-meaning citizen trying to get the word out? A professional troll in St. Petersburg? A fourteen-year-old kid who spends his time on 8Chan and gets his kicks (lulz) pranking the Boomers? Or was it made by domestic provocateurs, who want to incite violence? Answer:  all of the above.

I said that part two of attaining maximum inescapable bullshit is that we volunteer to be constantly outraged, and usually to little or no purpose. Whether based in truth or not, what is the value of chronically engaging with that meme, and a thousand others just like it, every day for weeks on end? Awareness is not increased. Knowledge is not enhanced or refined. Justice is not served any more rapidly or more properly. And for sure, underlying policy issues are not addressed.

It may feel cathartic to click the Angry button or to share the meme with likeminded friends, and some people may even believe they are helping to spread useful and important information. But this is almost never true. All that is being accomplished is self-immolation. We pour gasoline on our own smoldering rage, and the only tangible goal being achieved is that those who truly want to destroy democratic societies put another hashmark on their side of the tally board. That, and Facebook gets to monetize it all.

To reiterate, it does not really matter whether that one story about a group raising money for Rittenhouse is true. It is an example among millions of memes or video clips that have an astounding power to color our perception of events for which we are not present. And this is the same potent force that inspires people like Rittenhouse to do what he did.

Harvard researcher Joan Donovan, in a recent article for MIT Technology Review describes the rise of “riot porn” presently dominating right-wing propaganda, amplifying the narrative, mostly through video clip editing and manipulation, that BLM protestors are a threat to white people everywhere. “With riot porn,” writes Donovan, “what moves someone from watching to showing up is the potential for participating in a violent altercation. The motivating factor is the hope to live out fantasies of taking justice into their own hands …”

We mock QAnon, which, as it turns out, really is the result of Boomers who don’t know how the internet works. But I would remind my wise and learned Xers of the political left, who believe they seek the truth, that they helped soften the ground for the now thriving conspiracy of the “deep state” with their many tweets and shares etc. during the Obama years. All that misguided enthusiasm for leakers and the generalized fear of government surveillance online did not seem to pause to contemplate the future Rittenhouse being radicalized on platforms where we would have been happy to have the FBI watching and possibly able to intervene before he left for Kenosha.

While propaganda of this nature is currently more prominent and effective on the far right—not  least because Trump exploits the narrative—my broader point is that we are all consuming at least sampler plates of “riot porn” or “outrage porn” or however we want to describe it. Tribalism is reinforced and galvanized such that we seem headed for an inevitable clash of Hatfields and McCoys on a national scale. I hope not. But for sure, we have to come to grips with the fact that social media is not only not the solution, it is the problem.

With credit to my eldest for this observation, our reality is now Schrödinger’s Cat: everything on the internet is both true and not true at the same time. We are, of course, witnessing so much extreme conduct in contemporary society that no story is beyond plausibility. But this also means that no story is beyond deniability. The line between conspiracy theory and reality is murky to say the least, and that’s hard enough to track. But we can know for certain that none of the meme-based, click-bait impressions feeding our emotional fires has any accountability whatsoever. Yet we continue to comment and share and to teach the machines and the manipulators how to do an even better job of messing with us next month.

For years, the internet industry and its well-funded network of tech-utopians insisted that these platforms are, at worst, neutral lenses revealing society for what it is, or, at best, improving the world by giving everyone a platform for the “exchange of ideas.” Any criticism that these platforms might be used to severely damage the democratic institutions they were allegedly going to help was met with an impatient eye-roll, a *sigh* at the naïve luddites, resistant to change and innovation. But if it is not clear by now that these platforms are the primary catalysts in democracy’s decline, that alone proves we have achieved maximum inescapable bullshit.