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.

DMCA Review III – SJC Sounds Skeptical That Everything Is Fine

Yesterday afternoon, the Senate Judiciary Committee (part of it anyway) held the third hearing in its ongoing review of the Digital Millennium Copyright Act (1998). A handful of senators convened in the Rayburn building while witnesses testified via video conference.  The title of this hearing was Is the DMCA’s Notice-and-Takedown System Working in the 21st Century? Notice-and-Takedown is also referred to as Section 512, or Title II of the DMCA.

Given the extraordinary and terrible events currently gripping the nation, it appears that Big Tech tried to use the atmosphere of crisis in order scuttle this hearing. In the few days leading up to June 2, articles, blog posts, and social media comments began appearing, declaring that 1) Congress had more important matters to address; 2) that this hearing is emblematic of Republican callousness in a time of pandemic and national pain; and 3) that witness Don Henley of the Eagles is already wealthy and just seeking more money for himself.

In response to those accusations, people may take note that while Congress is focused on more urgent matters, they are also tending to a few smaller ones, and DMCA is just one of these. As for the accusation of partisanship, the Senators questioning the witnesses yesterday totaled two Democrats (Coons, & Blumenthal) and one Republican (Tillis), and any observer would be hard pressed to find much daylight between the two parties on this subject. As for accusations that Henley testified for his own sake, rather than, as he stated, “…out of a sense of duty and obligation to those artists, those creators who paved the road for me and my contemporaries, and for those who will travel this road after us,” people are free to read his testimony and decide for themselves what his motives are.

With regard to the substance of the hearing, it is little surprise that Big Tech and its network of shills would try to discredit the process. Because it does not look like their arguments in favor of maintaining the status quo of the Notice-and-Takedown process are finding much purchase with the Committee. Jonathan Berroya, testifying for the Internet Association toed the industry line that the DMCA is working well and working as intended. But none of the senators who spoke seemed terribly convinced that this could possibly be the case when one side of the DMCA equation—the creators—is unanimous in saying that that Notice-and-Takedown is not working.

Further, the parties testifying that the DMCA should be left alone tend to present arguments that are both off topic and, curiously enough, contrary to their own aims. For instance, representing PublicKnowledge, Meredith Filak Rose led off her testimony by reiterating the complaint that the US Copyright Office, in its report on Section 512 of the DMCA, neglected to consider the 229 million Americans who use the internet every day. “In the current pandemic,” she states, “every facet of our lives — from studying and working to buying food and paying utilities — occurs online. Every law that governs individuals’ use of and access to the internet affects all of us.”

While that generalization is true, it is also a distraction in context to the matter at hand because most of the online activity to which Rose alludes has nothing to do with copyright and, therefore, nothing to do with the DMCA. Ordering a pastrami sandwich or doing one’s banking over the internet does not implicate the DMCA, and the Committee is unlikely to be confused about this distinction. More importantly, Rose’s preamble panegyric to the people is there to tee up the alleged amount of takedown abuse that occurs online. “… in our nation’s attempt to reconcile the legitimate needs of artists and digital platforms, what has developed is a legal regime that, for all its good intentions, allows private parties to censor one another’s speech on any online platform, at any time, for any reason,” she stated.

So, not only does Rose, in that sentence, affirm that DMCA was a negotiation between two sides (just like she and others criticized the USCO for saying it was), but if it is true that rampant abusive takedown is a problem, why in the world would PublicKnowledge advocate maintaining the status quo? Credit to attorney Kevin Casini for mentioning this on Twitter last night, and the point cannot be overstated.

If protected speech and legal commerce is chronically being threatened by abuse of the Notice-and-Takedown system, why would parties representing the public interest not want to work with rightsholders to amend the DMCA? Misuse of copyright enforcement for censorship, or to avoid criticism, is a disservice to copyright and, therefore, a disservice to rightsholders. Yet, PublicKnowledge apparently stands in solidarity with the Internet Association, insisting that DMCA is working well and should be left unchanged. This is inscrutable.

As for allegations of DMCA takedown abuse itself, Rose recites the impressive-sounding statistic from an academic study, stating, “After quantitatively examining a set of over 108 million takedown requests, researchers concluded that approximately 30% of the requests were ‘potentially problematic’ and that 4.5 million of those requests were ‘fundamentally flawed.’  Bad notices are, by any measure, pervasive.”

Those stats come from a study done in 2016 by researchers at Berkeley and Columbia; and as I critiqued at the time, the research itself does not quite say, or justify, what Rose and others imply about takedown abuse overall. For instance, the study’s data set only includes takedowns directed at Google Search and does not include, for instance, takedowns directed at YouTube, where works like music are infringed all day long.*

And that brings us to the testimony of composer Kerry Muzzey, who is not rich and famous like Don Henley, and who stated that he was apprehensive about testifying because he feared that Google might retaliate against him by cancelling his Content ID account. (This is because, as many may not realize, not every rightsholder gets a Content ID account.)

Most essentially, Muzzey is the walking definition of the independent creator whose statistical data are not the result of a university study financially backed by either Google or the RIAA. His evidence sums up his own experiences—and those of countless other creators—and it speaks volumes …

“My music was not being used by amateurs to make cute little kitten videos. There were car commercials, ads for luxury hotel chains, pharmaceutical and biotech companies, airlines, Fortune 500 companies, banks, and dozens upon dozens of international television shows that had used my music without licensing it from me. To date, YouTube Content ID has located about 110,000 unlicensed uses of my music in videos hosted on its platform.”

That’s the story in a nutshell. That’s the problem creators have with DMCA Section 512 as it stands. And so far, the Committee seems to get it. Because Congress certainly never intended, nor would it have welcomed, the volume of commercial exploitation Muzzey describes as being facilitated by just one online platform. And one major cost to him, as well as the rest of us, is so clearly stated thus: “I will never know what creativity was lost while policing these thefts.” That is an inversion of the incentive principle in the foundation of copyright. It is, therefore, anathema to say that the section of the copyright act that produces these results is “working as intended.”

I do not mean to ignore the other witnesses and will likely follow up with a response to some of the other arguments presented in this hearing. But the contrast between Rose’s testimony and Muzzey’s highlights a recurring theme about this oft-heated debate. Defenders of the status quo of DMCA Section 512 chronically recite platitudes about the internet in general. And that’s all well and good. But even if every digital-age benefit were flawless (and we know they are not), this still would not address the futility of the Notice-and-Takedown system for tens of thousands rightsholders.

*When one of the authors of that study commented on this site to correct one technical error I had made, she did not quarrel with my overall critique of the study or the way it had been reported on in articles and blogs.

Some People Will Say Anything to Hurt Creators

You know how it’s offensive when a certain president uses a trope like “Do Nothing Democrats” to sling mud in lieu of articulating some kind of coherent, let alone moral, policy on any issue? Well, this same tactic is even more offensive when it’s used by people who should know better, especially people who believe they’re standing up for something. I try not to get personal about some of the copyright arguments, but this time it’s impossible. Mike Masnick is full of shit. And he should know better. In fact, I suspect he does know better.

Masnick doesn’t like copyright. Fine. Whatever. If he wants to advocate for the status quo of the DMCA, let him make a merit-based argument. Instead, his latest post criticizing congressional review of the DMCA (which began in February), he uses America’s overlapping, heartbreaking crises, and divisive politics, to justify this title:

In The Midst Of A Pandemic And Widespread Unrest, Senate Republicans Think It’s Time To Use Copyright To Make The Richest Musicians Richer

Perfect. That is ideally designed to generate maximum social media virality and teeth-gritting outrage. Except for one tiny problem: it ain’t true. For one thing, DMCA review is just one of many bipartisan, legislative processes, already underway, that were slowed but not entirely stopped by the pandemic. Next, and more importantly, it is not Republicans who suddenly put this on the agenda ahead of more pressing matters. Republican Senator Tillis is leading the Senate Judiciary Committee DMCA review, but in collaboration with Democrats you might know like Senators Coons and Leahy. They both support copyright and creators, but why mention that in a time when we can sow more discord?

Believe me, I’m pissed at Republicans right now for a whole lot of things. But that does not excuse Masnick, or anyone else, for trying to frame a solidly bipartisan issue as a “Republican” agenda, let alone to use national tragedies as a smokescreen. But in this case, Masnick tore a big ol’ page from the Trumpian playbook and led off his post by citing a statement of Senator McConnell’s from two weeks ago, when he said that he didn’t any see urgency in responding to the pandemic. Now, I would not give Mitch McConnell the time of day, but that statement is only connected to DMCA review in Masnick’s imagination. Only that isn’t even true. Mike isn’t stupid. He knows exactly what he’s doing and why it’s effective. And it’s immoral.

By a similar sleight of hand, Masnick wants everyone to feel that it’s wrong that Don Henley of the Eagles is set to testify tomorrow. He writes, “…this is the same Don Henley who has been attacking the internet for at least a decade, when he whined that it was all copyright infringement that anyone might take any of his songs and build on it in doing a remix or a mashup.”

Again. Masnick should feel free to articulate why he thinks Henley’s views are incorrect and why he thinks he shouldn’t be testifying, but he doesn’t do that. It’s just more personality politics because that’s what we need more of right now.  And let’s not pretend that if a less well-known singer/songwriter had the same set of issues with YouTube (and they do!) that Masnick would give those complaints any more consideration.

Two days ago, I said I was concerned that Silicon Valley, and its network of well-financed mouthpieces, would leverage Trump’s fight with Twitter to push back on any proposed review of the liability shields enjoyed by internet platforms. Well, interestingly enough, Section 512 of the DMCA is another liability shield Silicon Valley will fight tooth-and-nail to keep intact (as though it was perfect in 1998). It’s the part of the DMCA that nearly all rightsholders do not like about the current application of the law—especially creators who are way smaller than Don Henley. And unless I miss my guess, based on some of the comments appearing on Twitter, and a Washington Post article that’s basically a longer version of Masnick’s post, this is looking a bit like a coordinated effort to stymie DMCA review by framing it as a “Republican” initiative in a time when that message just might work.

In truth, the protection of copyright has long enjoyed bipartisan support in Congress, even before there was a Congress! So, let’s get in a lather about some other issues. We have plenty. At the same time, I might point out that the shoe doesn’t look so good on the other foot. In a time of pandemic and gut-wrenching scenes in our city streets, Silicon Valley’s minions want to make sure that Google & Co. get to keep screwing over artists and creators? Nice.

Is It Finally Time to Boycott Facebook?

It is impossible to look at the landscape of America, at this burning city on a hill, and not weep. Or scream.

Because this blog advocates the legal rights of creators (copyrights), and because those rights historically enjoy bipartisan support, I have tried to maintain a politically balanced tone when writing about most policy matters. That was a lot easier before Donald Trump became President. It is not my fault the Republican party is presently stuck with a leader about whom the kindest thing one can say is that he’s a moron. That’s a problem real conservatives and Republicans are going to have to work out for themselves. And if they don’t, these fires are not going to be extinguished for a very long time.

With regard to the broader editorial focus of this blog—the one that questions the value of the digital-age experiment and the industry behind it—it is now impossible to discuss that topic without placing Trump, and his supporters, squarely in the column of an unqualified evil—an enemy of humanity and republican democracy. Not that anyone would accuse me of being particularly kind about Trump in other posts, but today, there is a more acute question that needs to be asked:  if we want to end this dystopian circus of an administration, would it help to boycott Facebook? 

Ever since the 2016 election and revelations of data manipulation and fake news, we have been inundated by editorials opining as to what social media platforms should or should not do about various forms of toxic content on their sites. The utopian narrative that “all content is speech, and platforms owe a duty to the speech right” has been cracking under the weight of its own folly for three years, and it finally snapped last week when Twitter and Facebook took divergent paths on the matter of fact-checking the President.  

Apropos Trump’s largely-theatrical spat with Twitter and the toothless Executive Order he signed on Thursday, scholar Zeynep Tufeckci, writing for The Atlantic, expounds on some of the reasons why Trump really has no intention of tightening the legislative screws on Silicon Valley—even if he could. In particular, Tufekci notes the symbiosis that exists between Trump and Facebook …

“The relationship is so smooth that Trump said Zuckerberg congratulated the president for being ‘No. 1 on Facebook‘ at a private dinner with him. Bloomberg has reported that Facebook’s own data-science team agreed, publishing an internal report concluding how much better Trump was in leveraging ‘Facebook’s ability to optimize for outcomes.’ This isn’t an unusual move for Facebook and its clients. Bloomberg has reported that Facebook also offered its ‘white glove‘ services to the Philippine strongman Rodrigo Duterte, to help him ‘maximize the platform’s potential and use best practices.”’

When Zuckerberg appeared on Fox News and criticized Twitter for fact-checking a handful of Trump’s tweets, most of the response I saw was well-earned mockery. I shared the meme that said “Mark Zuckerberg—Dead At 36—Says Social Media Sites Should Not Fact Check Posts.” I mean, that’s pretty funny.

All sneering aside, though, Zuckerberg’s statement on Fox only repeated the same rhetoric that has been nodded at for years by internet users across the political spectrum—all buying the bullshit that these platforms make democracy work better. “I just believe strongly that Facebook shouldn’t be the arbiter of truth of everything that people say online,” Zuckerberg said. And that is not news. It’s the same gibberish that Big Tech, the EFF, the ACLU, PublicKnowledge, Techdirt, and every other techno-utopian voice has been repeating for more than a decade. 

It is ultimately necessary that people understand why Zuckerberg’s position is misguided outside the context of fact-checking the most dangerous president in modern history. But in the meantime, if the goal is to stymie Trump’s assault on America, then one thing we could do is to stop giving Zuckerberg so much of our time and data for free. Every post, especially every substantive post, feeds the data machine that, according to Tufekci’s statement above, team Trump happens to be so good at leveraging. And for which team Facebook is apparently congratulating them. Further, Tufekci tells us …

“In 2016, Facebook’s own internal research team found that ’64% of all extremist group joins are due to our recommendation tools’ and, if left unchecked, Facebook would feed users ‘more and more divisive content in an effort to gain user attention and increase time on the platform.’ The same research team also found that fake news, spam, clickbait, and inauthentic users inevitably included ‘a larger infrastructure of accounts and publishers on the far right than on the far left.’”

So what do we do with this information? Because the data seem to suggest that Americans who want to disarm Trump—and that happens to be most Americans—should in fact deny Facebook their voluntary input. Far more meaningful than refusing to patronize a business because one does not like the CEO’s politics, if the lion’s share of Americans simply bailed on Facebook, that would seriously mess up Zuckerberg’s game and, by extension, Trump’s game. We could just MySpace that shit. But can we?

I know. It’s like we’re all teenagers again (okay, in my generation) talking to that girlfriend or boyfriend, saying, “No, you hang up first.” It’s why Zuckerberg really doesn’t care if we call him a smug pinhead on his own platform. As long as we don’t leave, he’s laughing all the way to a very large bank. Our real friends and family are on Facebook. It’s the only way some of us keep in touch at all, even without the restrictions imposed by a pandemic. So, unless we all say “One, two, three, go,” and hang up simultaneously, it ain’t gonna happen. One friend over the weekend posted a simple statement that seems to sum up how many are lately feeling …

“It’s a tough question. My friends are all here and I use it to keep track of photos and promote [my work]. But yes evil and destroying our culture so … ???”

Evil and destroying our culture. Who would hesitate to abandon such a service? And how distinct is that sentiment from Facebook’s original tech-bro imperative motto, Move fast and break things.? Anyone who reads this blog knows that I believe social media does more harm than good for democratic societies. In between the connections and the celebrations, it is almost impossible to avoid feeding on a steady diet of outrageous content—much of which is not only untrue but has been purposely crafted by professional trolls working to exacerbate division and hate.

Add to this mix the real racists, anti-semites misogynists, and accelerationists—and a president who unrepentantly throws fuel on all those fires—and we need to understand that there is no way for the rest of us to entirely avoid feeding the riot as long as we remain part of the data set. Twitter may be the medium we think of as Trump’s favorite propaganda toy, but it looks like Facebook is the most powerful weapon in his arsenal. And like it or not, we are all providing the ammo.

On the other hand, the point of a boycott (even if it were possible) is not necessarily to shut down a business, but to force it to change its practices. And that’s the larger question—not whether we need to leave Facebook per se, but to ask what kind of cultural and policy changes are necessary in order to maximize the positive effects of social platforms and minimize the harm they cause. The techno-utopian faith that the good will overwhelm the bad (i.e. the wisdom of crowds) has proven false. A minority of bad actors online, like a few bad cops or a few violent protestors, can inflict permanent damage. And the challenges presented are systemic—cultural, legal, and economic. 

The folly of Trump’s Executive Order, oddly enough, points to the first step:  recognizing what the EO does not—that social platforms are not defenders of the speech right, and that the speech right itself has been grotesquely distorted thanks, in large part, to social platforms. If we can begin with the premise that not everything posted to the internet is protected speech–and that even if it is protected speech, platforms have no obligation to support it–we might be able to recognize that the plan for better social platform governance is not so novel as the industry tries to make it seem. The developers ebulliently call their spaces “communities” but have thus far rarely looked to community for guidance. 

It may be arduous in practice to weed out the hate mongers and provocateurs, but it is not so complicated in principle as Silicon Valley and its PR machine have made it sound. Facebook is no more obligated to host a white supremacist page than my local cafe is to put a KKK poster in its window. Communities say No to bad actors all the time. Facebook, Twitter, Reddit, et al can do the same thing, and it is long past the moment when they should stop wringing their hands each time they finally make a moral decision. Like when Cloudflare dropped The Daily Stormer in 2017, and one of its team members wondered if that was “the day the internet dies.” Time to grow up. 

It is a tragic reality for the nation that far too much material that fits the descriptions misleading, violence-inciting, hate-mongering, and harassing has been mislabeled “conservative” because the President uses social media to amplify that kind of content. Consequently, I get why Facebook feels it has a Trump problem, but that’s tough shit for Zuckerberg. We all have a Trump problem. He is a moral hazard. A berserker in a nation trying to hold civilization together with its bare hands. And Zuckerberg’s alleged neutrality does not make him a principled actor. It makes him an arms dealer profiting from both sides of a war.