David Newhoff, Author at The Illusion of More

Section 230 Review: Right Topic, Wrong Administration

I think Senator Blumenthal summed it up about right, as he was quoted in this week in the Wall Street Journal:

“I’ve certainly been one of Congress’ loudest critics of Section 230, but I have no interest in being an agent of Bill Barr’s speech police.”

In the post I wrote right after Trump threw a hissy fit because Twitter fact-checked him, I said that I have been worried about the platform responsibility narrative becoming grossly distorted by the nature of this administration. It’s no surprise that the laissez-faire policies of the major platforms, with regard to content moderation, were set on a collision course with America’s new reality-bending president.

As Trump’s unbridled contempt for facts, his tacit endorsements of hate groups, and his violations of core American principles morphed into official policy, it was inevitable that there would be a clash of conscience for at least some of Silicon Valley’s leaders and employees. They should have seen it coming but chose not to.

Instead, high on their own utopian, guardians-of-democracy rhetoric, and insulated by liability shields like 230, Big Tech refused even to consider how their grand experiment in speech absolutism, and the wisdom of crowds, might create a monster. So, when the beast finally broke out of the lab, they should hardly have been surprised that their futile efforts to contain it would only make it angry.

Of course Trump is demanding platform neutrality. Neutral is exactly what the platforms kept saying they were for years. Silicon Valley wants the platform liability shields left just as they are. And in defense of that status quo, they have long claimed, and largely maintained, a policy of “neutrality” with regard to user uploaded content. But this assertion, already dubious, became both untenable and dicey for Big Tech operators, when the worst abuser of their community standards became the federal government itself.

But let’s be honest. Most Americans, left, right, and center, agreed that neutral was the right gear for Facebook and Twitter et al. Never mind that neutrality is not the aim of Section 230. That’s just a pesky little detail about the law itself. But for years, Big Tech used the protection of 230 to justify “neutrality” and to evangelize that policy as allegedly protecting our speech rights. So, the maddening irony of the moment is that Trump is merely insisting upon the internet that everyone naively said they wanted — and many still say they want, even as the Republic seems to hang by a thread most days. So, stick that in your bong and burble it for a while.

There is no other way to frame the so-called political party conversation now. Anyone with a basic working knowledge of American civics and history knows that the current administration is neither Republican nor conservative by any reasonable definition of either of those terms. When Trump and his flock complain about “censorship of conservative views,” online, what they are referring to is moderation of potentially hazardous lies, conspiracy theories, incitements of violence, and hate speech. If those modalities are truly part of the Republican party’s new brand, we’re going to have a civil war of some kind, at which point there will be no need to worry about nuanced legislation like Section 230.

But as I said before, that’s a problem the Republicans will have to work out for themselves. They’ll have to decide, and soon, whether they are all-in on this cult of galloping ignorance, incompetence, and cruelty. Meanwhile, I see legitimate conservatives tweeting several times a day—and quite often to criticize Trump for what he has done to their party. Bill Kristol’s tweets aren’t being taken down, and last I checked, he’s pretty damned conservative.

In the meantime, what will unfortunately be obscured by all this noise are the very serious reasons why reasonable people of good faith seek amendment to the Section 230 liability shield. These include people like attorney Carrie Goldberg, whose Brooklyn law firm defends real victims of online exploitation and severe harassment, while the platforms enabling those crimes (even intentionally) remain shielded by Section 230. This is the kind of policy conversation we are supposed to be having. And we were having it, until Trump got involved.

It is a tragic irony that whiny old men put Section 230 on the table for their whiny old man purposes, when so many of the real citizens seeking reform happen to be (as usual) vulnerable women. For instance, after years of reasoned debate on ways to address revenge porn online, Senator Hawley introduced an amended bill, dated today, that does nothing for people who have suffered, or may suffer, real harm from the misapplication of Section 230. Instead, the Hawley bill is merely a reaction to claims of “politically biased moderation,” which is a euphemism for removing the toxic, conspiracy-laden bullshit spread by the current president. Because that’s where we are now.

Because many (if not all) of these new, reactionary proposals for 230 revision will seek to punish Silicon Valley for moderating the worst of Trump (and that’s saying something), it seems unlikely that any such legislation will make it through this Congress before the end of the year. By that time, if there is any hope left for America, this national nightmare will end, and the historians can get to work on the Bruegel-inspired pop-up books describing this era.

I have yet to review the June 2020 DOJ report on Section 230, and because that review started before this topic floated all the way onto Trump’s radar, it may contain some reasonable recommendations that go beyond political theater. We’ll see. But now that the 230 conversation has been subsumed by Trump’s personal beef with Silicon Valley, it’s just another side show in the circus. It would be nice if one day, sober heads can resume this important conversation. Now, all we need are some sober heads.

Internet Archive Will Lose Big In Suit With Publishers

There is one consistent flaw inherent to most anti-copyright agendas. Because so many contemporary theories and attitudes tilting against copyright are largely predicated on the introduction of digital technologies, a false dichotomy persists between access and authorship. Since the days of NAPSTER, authors have endured a litany of techsplaining on the (not quite true) theme that the cost of access (i.e. reproduction and distribution) is “near zero” in a digital market.

To this incomplete view of the market, authors in every medium have worked harder than should be necessary to remind people that the human investment in the creation of works has not been substantially altered, regardless of the many changes in the way works are consumed in the digital market. Book writing is a clear example of this principle. It takes the author the same amount of time, energy, talent, etc. to write the book, regardless of whether it will be read in the form of digital, clothbound, paperback, or audiobook copies. Yet, time and again, endeavors to weaken copyright, through litigation and PR tactics, continue to focus almost exclusively on access to works, as if authorship of existing works never happened and authorship of future works is assured.

And that brings us to one of the more dramatic stunts in the service of anti-copyright zealotry—the launching on March 24 of the so-called National Emergency Library by the Internet Archive. On the claim that the coronavirus shutdown created unmet “educational” needs, the NEL provided unlimited access, worldwide, to an estimated 1.3 million books.* Several news organizations, eager to report positive stories at the leading edge of the health crisis, applauded the IA for its apparent munificence. But this enthusiasm was soon tempered, as authors spoke up and reminded journalists and the public that IA had no right—either legal or moral—to make “gifts” of other people’s works.

I will admit that, prior to the NEL, I had not paid too much attention to the Internet Archive. I was aware that its founder Brewster Kahle is an outspoken copyright critic, but so are many real librarians, who I would describe as well-intentioned but misguided in their chronic support of various infringing, commercial ventures. As mentioned in the past, I have certainly used the Internet Archive to research works long out of copyright, and I wondered in this older post whether the archive’s usefulness truly needed the kind of anti-copyright rhetoric espoused by Kahle. But that was naïve. Because Kahle is a zealot.

When IA used the cover of a global crisis to provide unlimited access to over one-million books, it was not to fulfill an urgent need, least of all an educational one. Even if this had been a sincere goal, it would not have been possible for IA to assess any gaps in the nation’s educational demands as early as March 24—and this fact is only emphasized by the indiscriminate assortment of in-copyright books, like romance novels and thrillers, that IA made available. These are likely not part of any school’s curriculum. Meanwhile, legitimate publishers of widely-used educational books did respond to the pandemic by providing free and/or broader digital access for teachers and students.

The National Emergency Library was a PR statement—a stunt orchestrated by an anti-copyright ideologue seeking to advance an agenda. Given the unfounded legal theories upon which the NEL was announced, it is plausible that Kahle was fishing for a lawsuit, hoping either to turn those legal theories into caselaw precedents, or to use the PR narrative of victimhood upon losing.

If getting sued was the goal, this was accomplished on June 1st. Four of the major book publishers filed suit in the Southern District of New York alleging copyright infringement. Reading the complaint, I predict that IA will lose across the board (i.e. on all defenses). But, beyond that, assuming all the allegations are supported by evidence, the complaint provides a glimpse into just how insidious the IA venture really is–including ways in which it could pose a threat to legitimate libraries.

Under the copyright law, IA will most likely present a response based on statutory library carve-outs, and will reiterate its fair use “superpower” defense, based on the extraordinary circumstances of national quarantine. In the area of untested legal theory, IA will have the opportunity to present the concept it calls Controlled Digital Lending (CDL), a model that is not supported by law and not adopted by ordinary libraries.

Not Really A Library. Maybe A Business?

As already discussed in this post and elsewhere, the IA fails to meet the conditions of accredited libraries that would make its activities eligible for the statutory carve-outs for libraries and archives. With regard to fair use, there is nothing in case law to support the idea that a national emergency alters the fair use analysis, and it is hard to imagine the court will find the NEL to be anything other than an unlicensed substitute for existing legal sales and lending channels. Add to this analysis the ways in which the publishers describe IA as a multi-million-dollar commercial enterprise, and rather than expecting to prevail on fair use, IA could be seen as walking very close to the line of criminal copyright infringement.

The section of the complaint alleging that the not-for-profit Internet Archive looks highly commercial is more detailed than I can present here, but the summary states:

“IA has an interlocking web of contributions and commercial services that support its Website. In addition to receiving large-dollar donations, IA has made tens of millions of dollars from selling commercial services. One of the services it offers is industrial-scale book scanning and digitization, which has generated more than $25 million in revenue since 2011.”

For instance, when IA digitizes and distributes an in-copyright, contemporary book—the complaint shows Gladwell’s Blink as an exhibit—it is not only infringing two exclusive rights under §106, but it also displays a link to “Buy This Book,” which leads the reader to a “used” online bookstore called Better World Libraries operated by, you guessed it, Brewster Kahle. How this conduct is distinguishable from hosting an infringing work in order to generate ancillary revenue from ads or third-party sellers is not entirely clear. But suffice to say the more that infringing activity can be linked to a financial interest, the worse things look for the Internet Archive.

Controlled Digital Lending – A Legal Theory

The concept of Controlled Digital Lending (CDL) may sound to the average listener like a sensible proposal—it almost did to me—but it has at least three major flaws legally and one major flaw pragmatically. The idea is that a library may digitize any physical copy it owns and then loan a digital copy to as many readers at a time as it has physical copies in its collection.

The legal challenges to CDL are 1) that there is no statutory carve-out allowing libraries to do this; and 2) even if there were such a provision, auditing the physical collections supposedly backing the digital copies is a dubious prospect; and 3) when IA provides the commercial service of mass scanning “on behalf” of libraries, this auditing seems especially unlikely. It gets even more complicated with the IA supposedly housing containers full of books to back up its CDL model, but we’ll see where that leads.

As a practical matter, the way digital lending works now, with libraries licensing collections via third-party services like OverDrive, this is almost certainly more cost-effective than the clerical labor implied by a CDL model—if the intent were to remain in compliance. Hence, the CDL idea sounds logical in theory, but upon examination begins to look like an attempt to whittle away at copyright protections. Depending on what IA presents in its response, it may be very interesting to see what, if anything, the court says about CDL. Separately, one reason the authors and publishers issued such resounding condemnations of the National Emergency Library was the fact that even the restraints of CDL (e.g. one book-per-customer and wait lists) were removed in response to the pandemic.

Authors, Publishers, and Real Libraries Already Collaborate

In his public response to the lawsuit, Kahle announced that the NEL will be closing earlier than planned and “returning to Controlled Digital Lending. He writes…

“We moved up our schedule because, last Monday, four commercial publishers chose to sue Internet Archive during a global pandemic. However, this lawsuit is not just about the temporary National Emergency Library. The complaint attacks the concept of any library owning and lending digital books, challenging the very idea of what a library is in the digital world. This lawsuit stands in contrast to some academic publishers who initially expressed concerns about the NEL, but ultimately decided to work with us to provide access to people cut off from their physical schools and libraries. We hope that similar cooperation is possible here, and the publishers call off their costly assault.”

I wonder. If Kahle truly believes he his defending “any library,” he should welcome the lawsuit, especially when he cannot possibly be surprised to have triggered it. Of course, the reality is that IA is an outlier. It does not operate like “any library,” and that makes all the legal difference in the world. At the same time, the claim to want to collaborate with authors and publishers to “build a digital system that works” rings rather hollow. Infringing authors’ works en masse (let alone using a crisis an excuse to do so) is not a foundation for a collaborative partnership; and frankly, nobody really needs Kahle’s input in this regard. Digital access, especially to the kind of contemporary books in suit in this case, is widely available to consumers via multiple portals. Meanwhile, what working authors do need is to stop spending so much time fighting piracy at home as well as abroad.

*Originally reported as 1.4 million when stories broke. Publishers’ complaint states 1.3 million.

DMCA Hearings III (Part 2): Independent Creators Must Remain in the Foreground

How many times have comments about copyright included some variation on the theme “I would not pirate, if the revenue went to the artists instead of big corporations.”? Not only is this sentiment a fallacy based on ignorance about how the creative markets work, but these insincere claims to support the real creators ring especially hollow in context to those now advocating the status quo of DMCA Section 512 (a.k.a. the Notice-and Takedown system).

“…authors and small creators who are already struggling against the tide of tech disruption of the creative industries are excluded.”

I highlight these words from the testimony of Douglas J. Preston, President of The Authors Guild, because if the Senate Judiciary Committee hears one message in response to its inquiry about the Notice-and-Takedown system, it is this: Section 512 provides no viable, sustainable remedy for the independent creator.

American copyright law’s first animating principle is to secure the exclusive rights of the individual author in order to provide an incentive to produce and distribute new works. One glance at Preston’s testimony, listing the number of domestic online platforms that currently support rampant book piracy, and it is easy to understand why no writer—or sole creator in any medium—can possibly afford to pursue infringement at the volume and speed at which it persists.

Google, eBay, Facebook, and LinkedIn are all cited in Preston’s account of the various ways in which authors are confronted with ads, links, or user-generated sources to obtain pirated digital copies of their books. “Google makes it particularly easy to get to these pirate sites and unknowingly buy pirated copies,” Preston states.

Members of the committee should underline that sentence. Because those words unknowingly buy refer to a customer who does not intend to pirate (is not looking for a freebie) but has been misdirected by Google’s search engine toward the purchase of an infringing copy instead of a legal one. Nevertheless, Google and its industry colleagues have insisted upon the narrowest interpretation of their responsibilities under the terms of DMCA, while asserting in these hearings that Section 512 is working “as intended.”

Testifying on behalf of the Internet Association (an organization founded concurrently with the anti-SOPA campaign of 2011/12), Jonathan Berroya presents a picture of the DMCA operating very well for all parties. “The balance Congress sought to achieve in section 512 in 1998 is not askew,” he states. “Indeed, the legislative intent of fostering collaboration among stakeholders and the growth of a robust and innovative internet has been decidedly achieved, resulting in the development of cutting-edge solutions to infringement and other voluntary measures.”

Berroya could not have used the word collaboration more often in his testimony without it becoming unseemly. But after years in which the major OSPs grew their dominant market positions, partly by refusing even to cooperate with rightsholders, the Internet Association, can, at best, half-heartedly support its “collaboration” claim by pointing to various agreements among OSPs and corporate rightsholders (e.g. YouTube & major labels). And even this hodgepodge of imperfect licensing, tracking, and enforcement arrangements does nothing for independent creators, who lack the resources and opportunities that are available to industrial rightsholders.

This is why Mr. Preston’s presentation, on behalf of book authors, makes what may be the most salient point in the 512 review—that most creators act as their own copyright enforcement departments in addition to doing the work of authorship. Copyright law has always envisioned that the owner would enforce his own rights, but not at a scale of tens of thousands of infringements each year.

As I wrote in my first post about this hearing, the internet industry tends to bring generalizations and a litany of irrelevant talking points to a debate where independent rightsholders present both quantitative and qualitative evidence describing their actual experiences using Notice-and-Takedown. For example, the Internet Association highlights the value of the streaming market to the entertainment industry and consumers, which is true but largely unrelated to the question Congress is asking.

Aside from the fact that the streaming market has some bugs in it (e.g. songwriters are being clobbered by artificially low royalty rates engendered by the imbalance of the 512 immunity regime), the success of popular platforms like Netflix, Hulu, Amazon Prime, et al is not the result the Notice-and-Takedown/immunity provisions of 512. On the contrary, these types of platforms were fostered by Title I, or Section 1201, of the DMCA and are, therefore, a subject for a different hearing. Almost as irrelevant is the Internet Association’s attempt to misdirect the committee’s attention to foreign-based pirate sites …

“… it should be noted that most…infringement occurs overseas, beyond the reach of the U.S. Copyright Act. The U.S. government must keep up its pressure on foreign governments to pursue extraterritorial websites entirely dedicated to piracy and should avoid the temptation to subject legitimate platforms to unduly onerous standards because the most egregious offenders are out of reach.”

Although it is true that pirate sites operating overseas are the largest facilitators of mass infringement, the more relevant issue before the committee remains the substantial amount of infringement facilitated by some of the largest domestic platforms. And this includes facilitating access to foreign-based sites. As Berroya himself notes, the U.S. Copyright Act does not reach these foreign actors, which is one reason rightsholders have proposed various methods to starve these site operators of user access or revenue, or both. But to date, the major members of the Internet Association have spent millions in PR and lobbying dollars opposing every initiative in this regard, both in the U.S. and abroad.

So, Berroya’s allusion to foreign piracy reads like another round of shell-game—one that is very familiar to rightsholders—in which the internet industry pays lip service to solutions like “keeping up pressure on foreign governments,” which they will then oppose through the very large public megaphones that they themselves own and operate. In some cases, even the aforementioned voluntary anti-piracy measures have been strenuously criticized by the “digital rights” groups whose funding comes from the same companies comprising the Internet Association.

Finally, echoing the sentiments of other critics, the Internet Association repeats the fallacy that the Copyright Office, in its Report on Section 512, neglected to consider “the public” as a stakeholder. Berroya testifes …

“While it is understandable that the Copyright Office would focus on the impact of section 512 on copyright owners and copyright law, an assessment of the DMCA safe harbors is incomplete without meaningful consideration of other values important to users, such as free speech, economic and cultural citizenship, and privacy.”

Although that sounds very pretty, it is more smoke fogging the debate. The speech right is not protected by online platforms, and copyright infringement is not protected speech. It is hardly conclusive that “economic and cultural citizenship” has been vastly improved by digital life for a majority of citizens. And with regard to privacy, most people can easily identify which members of the Internet Association have been caught invading privacy and abusing user data. Certainly, it is not the authors who are harvesting and selling data about millions of Americans.

So, let us stay focused on the subject at hand, which is whether Notice-and-Takedown is working to balance the needs of OSPs and rightsholders. And let us not be distracted by references to online activity or technological developments that have little or nothing to do with the DMCA. It is hardly surprising that the Internet Association, with its membership of the wealthiest and most powerful OSPs in the world, claims that Section 512 is working as intended. No doubt it’s working beautifully for them.

But it is also not surprising that the members of the Senate Judiciary Committee sound skeptical about the fulfillment of 512. This probably has a lot to do with the fact that instead of merely offering platitudes about the value of creative works, authors present hard data showing how often those works are being pirated and by whom. From this evidence, it is very easy to see why no individual creator stands a chance against that tide, which explains why the internet industry would rather draw everyone’s attention elsewhere.

Photo by: fizkes

Author: David Newhoff