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.

What Happens When the Biggest Troll on Twitter is the President?

This week, as Twitter CEO Jack Dorsey emerges a champion of truth in a world of truthiness, we must not lose sight of the fact that the folly of conflating the speech right with social media platforms has played a major role in leading us to this absurd moment of conflict between Trump and Twitter.

By now, almost everyone is aware that Dorsey took responsibility for Twitter fact-checking a couple of Trump’s tweets about mail-in ballots. The tweets were not taken down, mind you, but flagged as untrue because, well, they’re not true. In response, the president cried “censorship,” echoed accusations of “liberal bias” in Silicon Valley, and by end of business yesterday, signed an Executive Order putting platforms on notice that their liability shield under Section 230 of the Communications Decency Act (1996) may be vitiated due to their alleged partisan nepotism.

I’ll get to the EO in a moment. But what I fear Trump may have just done is to give Big Tech an effective talking point to use in opposition to legitimate and measured proposals to amend Section 230—proposals that have been in discussion since before the election of 2016. Suffice to say, the internet industry likes its liability shields (both 230 of the CDA and 512 of the DMCA) just the way they are, and the major platforms will fight for the status quo with everything they’ve got. Now, one thing they’ve got is an opportunity to run headlines and memes shouting Don’t Let Trump Destroy the Internet! Or variations on same.

I figured it might come to this. About five minutes after the election of 2016, one could imagine that the already complicated debate about platform responsibility was going to be further muddied by fact that the president uses platforms like Twitter to make false statements and to commit acts of libel and harassment. Trump’s complete disregard for statesmanship, the truth, or the rule of law are all assets in the wilds of social media, where doxing, mob-harassment, and threats have silenced the speech of individuals with far less armor than a President of the United States.

Platform operators, who have historically been oriented toward leaving everything online, today find themselves in the unprecedented position of hosting some pretty crazy shit written by the highest elected official in the nation. At a certain point, it has to feel irresponsible not to put a warning label on an official announcement that happens to be false. At the same time, we might just as reasonably shrug at Twitter’s decision as give Dorsey a high five for it. As a practical matter, the majority of Americans do not believe anything Trump says, and only some portion of his secure voting base believes everything he says. So, Twitter’s decision may be somewhat moot, as it is a relatively small gesture in the scheme of things.

The Executive Order signed yesterday is political theater with an ironic twist. On the one hand, the order’s animating principle (i.e. threat) is predicated on a misstatement of how Section 230 actually works. It alleges that in order to remain shielded from civil liabilities stemming from users’ content, the service provider must be a neutral party—i.e. keep mitts off all user content. But that’s exactly the opposite of what Section 230 says. The section known as the “Good Samaritan Clause” was written expressly to encourage sites to engage in…

“… any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;”

Note how broad that language is. The provider is urged to make judgment calls and to decide, for instance, what content is “otherwise objectionable.” And of course this is how 230 would have to work because the First Amendment prohibits the government from determining what community standards a platform may establish for its use. The EO erroneously alleges that because social sites are biased against “conservative” politics, and engage in muting one party’s viewpoints, this invalidates their “neutrality,” which abrogates the 230 protection.

The problems with the EO are that the bias allegation itself is without merit, and the legal theory is a misrepresentation of Section 230. In addition to the sane person’s observation that misstatements of fact should not be called “conservative” just because they come from Donald Trump, “there is no empirical basis for the claim that conservative viewpoints are being suppressed on social media,” according to a recent paper by scholars Mary Anne Franks and Danielle Keats Citron. As part of their discussion about improperly conflating the speech right with Section 230, Franks and Citron note that an independent audit was led by former Senator Jon Kyl and found no evidence supporting this allegation.  

What we do as a nation with the fact that “conservatism” has devolved to the circus of Trumpism is an existential problem; but as a cyber-policy matter, what this little bruhaha may have done is to further complicate a fledgling discussion (and a bipartisan one) about meaningful Section 230 reform. Because the ironic twist I mentioned above is that the misread of Section 230 applied in the EO echoes the same rhetoric that has been used for years by the internet industry in order to justify its laissez-faire approach to platform stewardship.

The major internet platforms, with substantial help from “digital rights” organizations like the EFF, have done an exceptional PR job—invoking both Section 230 and the First Amendment (and improperly conflating the two)—in order to sell the message that social platforms are like steroids for the speech right. And until 2016, most people across the political spectrum seemed to buy that claim, even though it was legally and constitutionally unfounded.

It would be impossible to calculate the number of editorials and amicus briefs written to denounce the removal or demotion of so much as a syllable of “speech” online, and the platforms have generally supported this view because it’s good for business. More content means more traffic and more data to mine. It is only in recent years that some members of Silicon Valley’s leadership have revealed a moral reluctance to host everything—even if it’s harmful—under the bogus claim that they are defending speech.

Meanwhile the victims of some of the worst conduct online, like non-consensual pornography and other forms of harassment, have seen the courts overbroadly interpret Section 230 in ways anathema to anything Congress intended in 1996. The internet industry, along with briefs filed by organizations like EFF and ACLU, has invoked 230 as grounds to avoid removing even non-consensual pornography, which could not be more absurd given the anti-obscenity origins of the legislation. Thus, it is only recently, thanks in large part to women like Franks, Citron, and attorney Carrie Goldberg, that both parties in Congress have finally undertaken review of Section 230 for possible legislative fixes to address these unintended consequences.

As such, it does not strike me as very helpful to the purpose of sober review that Section 230 has been brought into the foreground by this latest presidential outburst. The EO itself may be a worthless piece of paper Trump signed to make himself and a few of his fans feel good, but now that he’s stamped his brand of partisanship on this narrative, one can imagine any number of ways this non-partisan discussion can become needlessly mired in the muck. As mentioned, I can certainly imagine the industry using this story as leverage to stymie legitimate review.

Of course, the maddening irony of this dustup is that all the speech extremism of the last 10-15 years, combined with misrepresentations of Section 230, is a big part of how we managed to raze the landscape of reality so that someone with absolutely no moral compass could become President of the United States. It may have taken this shock to the system for people to finally want platform stewardship like fact-checking and enforcement of community standards, but the dark irony of the EO is that it isn’t all that different from the rhetoric tech-utopians have been using for years.

Does Masnick Not Know That The Public Is Not An Online Service Provider?

Signaling one of the talking points I expect we’ll be seeing quite often as the DMCA fight brews—and it is brewing—Mike Masnick and others have declared that the Copyright Office, in its newly released report on DMCA Section 512, neglected to include the public among the stakeholders with a vested interest in the 1998 addition to the copyright law. In his first post on the topic, Masnick asks rhetorically Does the U.S. Copyright Office Not Know That Copyright’s Main Stakeholders Are The Public? Never mind that this is a retread of an unsupportable theme of his, but the premise sets up a false dichotomy that will be used as a pretense to campaign for the status quo of Section 512 — especially because the USCO has recommended a few areas for possible revision.

Let us first keep in mind that we, the public, are always the beneficiaries (or not) of policies relating to the interests of both copyright owners and online service providers (OSPs). Or, as my friend Neil Turkewitz puts it, “The public interest is always affected by decisions made by private actors. Indeed, it’s fair to observe that the public interest is itself a contrivance, and represents the constellation of interests of individual members of the public.”

We enjoy the benefits created by internet platforms just as we enjoy the works produced by rightsholders. Because the public interest is intertwined with the interests of both sides in this narrative, the legislative history (despite what Masnick claims) does not point to a triad of stakeholders in which the public is one prong. The DMCA was negotiated by two sides (both representing large, corporate interests) hammering out a deal in the late 1990s, at a time when nobody could have predicted how the consumer-based internet might evolve.

On the OSP side, when AT&T and the other telcos sought a shield against liability for the inevitable copyright infringements by the public, the primary rationale (and a reasonable one) was that investors would shun internet prospects if the service providers would be vulnerable to expensive and ongoing litigation. These companies did not lead with homilies on free speech or the fair use exception in copyright law. It was about business. So, let us not be blinded by the fallacy of presentism. When the Copyright Office says that 512 was intended to balance two competing interests—rightsholders and OSPs—that statement is neither inaccurate nor indicative of a disregard for the public.

One reason I imagine we will be hearing this rhetorical accusation about the allegedly missing public is that it softens the ground for declarations like this one:  “… the report mainly focuses on large internet providers liking the safe harbors, and copyright holders wanting it to be worse…and then claims that since only one side is ‘upset’ clearly that means things are out of balance,” writes Masnick. See what’s happening there?

By pretending that Section 512 is not the result of a two-sided arrangement, Masnick is able to make a mathematically impossible statement, implying that when one side of an agreement feels it isn’t working, this is somehow not evidence of an imbalance. Even if one has contempt for a particular side—and I think copyright critics’ contempt for authors is a matter of record at this point—if one side says an agreement is not working, this is the definition of “unbalanced.” Further, the implication that 512 is working just fine for the public is political theater. Not only could most of the public likely not explain what Section 512 does, but the public also does not enjoy any kind of liability shield under the terms of the DMCA.

It is frankly disingenuous to suggest that the public is ever represented as a whole constituency. And it is as arrogant as it is futile when people like Masnick presume to speak for the public. Which public would that be exactly? Are millions of creators of copyrighted works not part of the public? What about the millions of people whose livelihoods are dependent upon the creative industries? Or what about the public that simply enjoys creative works, which is pretty much everybody? John and Jane Q Public are not nearly so confused about the relationship between copyright and the works they enjoy as many critics like to suggest. And the conflicts inherent to Section 512 were, and remain, conflicts between rightsholders and online service providers. Period.

It is not wrong to maintain that the public has an interest in the implementation of Section 512, and in future posts, I’ll get into some of the proposed amendments that may or may not be considered by Congress. But because those forces hellbent on maintaining the status quo of 512 decided, as a first volley, to lob this allegation that the public was overlooked by the Copyright Office, I will insist that this is neither supported by the content in the report, nor remotely instructive to the purpose of legislative review.

Meanwhile, as long as Masnick et al insist upon conflating the public interest with that of the OSPs, we might want to keep in mind that the public has not exclusively benefitted from the catalytic effects of internet platforms over the last 20 years. We don’t see any headlines saying Songwriters Sell User Data to Troll Farms or Photographers Tied to Election Fraud or Poets Fueling White Supremacy Worldwide. Which force is more responsible for InfoWars, copyright or YouTube?

I know. Don’t blame the internet for every problem in the world. But a little common sense is called for, no? Is it a coincidence that platform expansion is concurrent with rampant ignorance raging through Western civilization like a forest fire? Huge swaths of the public are evidently so howling-at-the-moon stupid (thank you Aaron Sorkin for the expression) that they are willing to believe anything. So, I think we have reasonable cause to look askance at the dawn of the so-called information age and ask where we went wrong.

In that spirit, let us also remember that the purpose of copyright, as expressed in the constitutional clause, is to “promote science.” While “science” has long since been expanded to encompass the creative arts, the notion of enlightenment still lives in the doctrines of copyright. And to the extent the Copyright Office seeks to preserve that principle, it is unquestionably serving the public.

Copyright Office opines on National Emergency Library. Critics opine on Copyright Office.

On April 16, Senator Udall (NM) wrote a letter asking the U.S. Copyright Office to provide Congress with guidance on the role of libraries and the potential need to expand (within the law) digital lending during national emergencies. More specifically, the senator asked the Office to comment on the National Emergency Library (NEL) launched by the Internet Archive (IA) on March 24, just as we all entered a period of self-quarantine. On May 15, the Copyright Office submitted its response.

For readers who might have missed the stir caused by the NEL, the IA, in response to a presumed emergency need for remote access to reading material, made approximately 1.4 million books available worldwide, and removed all restraints like wait lists for titles. The books distributed include an as-yet-unknown number of contemporary works that are still widely available through both digital sales and licensed borrowing regimes.

In addition to the fact that there is some question as to how many books at the Internet Archive are legally obtained,[1] the organization, based on its own legal theory, determined that the COVID-19 pandemic authorized the organization to “loan” books to an unlimited number borrowers, all at the same time. By contrast, my local library system, for example, offers licensed digital books through OverDrive, which lends books to library-card holding readers, one at a time. And there are waiting lists just like we have with physical copies.

Because IA used the pandemic as an opportunity to release what amounts to unlimited digital copies of perhaps tens of thousands of contemporary books, both authors’ rights organizations and individual authors were more than a little irritated by the presumptuousness of this sudden largesse with the distribution of other people’s property. Moreover, recognizing that IA founder Brewster Kahle is an anti-copyright activist (if being a millionaire with a misguided mission can be called activism) this cast a deservedly cynical light on the organization’s decision, which looks a lot like using the fog of a crisis to advance an agenda.

Further, it was noted by Authors Guild and others that most authors make very little money from book writing alone, and writers have been hit financially by the pandemic, just like millions of other workers. Unsurprisingly, copyright skeptics and digital-rights maximalists (yep, I’m going there) called the reaction against IA a moral panic, and some of the usual Twitterspats erupted. But the subject of this post is Sen. Udall’s request to the USCO for comment, and the subsequent response to acting Register Maria Strong’s reply to that request.

USCO Offers Balanced Analysis (but you do have to read it)

The letter is a good example of the Copyright Office doing exactly what it’s supposed to do (in this case advise Congress) without driving outside its lane. Most of the 22 pages are dedicated to summarizing the four relevant statutes (§107-§110) in the copyright law that contain broad and specific exceptions to copyright that are pertinent to libraries, and which may be informative to Congress with regard to exigent demands to expand digital lending.

Where the letter addresses the National Emergency Library, the Office is careful to avoid comments that definitively “rule” on the legality of IA’s conduct. For instance, at the end of its conclusion that fair use (§107) likely would not shield IA’s conduct in this instance, the letter reiterates the CO’s advisory role, stating, “…the Office offers this analysis as requested to aid your consideration based on facts as the Office currently understands them, but does not wish to get ahead of actions taken by private parties.”

In other words, if authors or publishers were to decide, at some point, to sue the IA for copyright infringement, it is not the role of the Copyright Office to pre-litigate those hypothetical cases. At the same time, while the analysis in the letter does point in the direction that IA’s conduct is very likely not legal, these comments are solely based on the extraordinary nature of the NEL itself, and not the result of some ideologically skewed perspective within the Office. In fact, the letter is so demonstrably balanced in its analysis that the only way for copyright critics to stridently object to its content is that they can rely on most people to not read it for themselves. And/or not to know much about copyright law.

Enter the Copyright Critics

ReCreate’s Joshua Lamel this week tweeted that he was “deeply disappointed” in the CO opinion, calling it “bad lawyering,” and pointing to a long blog post written by fellow skeptic Kyle K. Courtney. It’s funny that Lamel would use a term like “bad lawyering” while citing Courtney’s post, which is such a baroquely constructed straw man that, if it were a brief in a legal case, a judge would likely become impatient with its meandering panegyrics to the value of libraries, which is neither doubted by, nor relevant to, the questions asked of the Copyright Office. Courtney begins his post …

“Licensing culture is out of control. This has never been clearer than during this time when hundreds of millions of books and media that were purchased by libraries, archives, and other cultural institutions have become inaccessible due to COVID-19 closures or, worse, are closed off further by restrictive licensing.”

I’ll set aside my cynicism (for now) about the premise that tens of millions of Americans are being cut off from reading material—that, for instance, the Karens and the assault-rifle protestors, with their misspelled signs about their constitutional rights, are suffering for access to Proust. But Courtney’s big thesis is that “libraries do not need permission to lend books,” which is generally true, and also a misdirection in this context, setting the stage for the straw man critique of the CO letter. By focusing readers’ attention on libraries in general, Courtney both circumvents the narrow questions presented about the atypical character of the NEL and implies that the Copyright Office misapprehends the law vis-à-vis ordinary libraries by seeking to expand what he calls “licensing culture.”

“[Expanded licensing] undermines the ability of the public (taxpayers!) to access the materials purchased with their money for their use in public libraries and state institutions, and further, it is short sighted, and not in the best interest of library patrons or the public at large.“

There are more than a few of these emotional soliloquies in Courtney’s post—all designed to stoke the ire of his readers, most of them off topic, and some of them sacrificing comprehensibility for the sake of drama. For instance, when he calls the CO letter the “penultimate example of this licensing culture gone wild,” one is left to wonder what the ultimate example will be, or whether Courtney is aware that penultimate means “second to last,” which makes no sense whatsoever.

Not to digress into petty gotchas, though, the salient point is that the Copyright Office did not—indeed it would not—say anything in its letter to imply any abrogation of the carve-outs that libraries in general enjoy under the current statutes. Courtney’s post dissembles by failing to acknowledge that those statutory carve-outs are not without conditions, thereby obscuring the fact that it is precisely because the NEL fails to meet those conditions that it presents a major concern for authors. Nevertheless, the tone of the post is pregnant with comments like, “These expanded licenses are eroding away our ownership rights over purchased materials, and also eviscerating the critical copyright exceptions and rights that every user, not just libraries, have under copyright.”

That statement is doing double work. First it alludes to topics (i.e. purchased materials) that have nothing to do with ordinary libraries or the NEL, and then it also happens to be absolute bullshit. As a general rule, expanding licenses is how more works are delivered to more consumers via more channels. At the same time, never in the history of buying copies of works has our purchase of said copies transferred any of the authors’ rights to us as consumers. You can buy a copy of a novel and dispose of that copy as you like, but you never buy any of the author’s exclusive rights through the purchase of that copy, whether physical or digital. So, consumer rights are not being “eroded” by licensing; those alleged rights do not exist. And the same goes for libraries. (See post about the Buy button here.)

What seems clear is that Courtney objects to the idea that the author is empowered to grant permission at all. That’s what licensing is:  permission to use a work in particular manner, and sometimes that permission is even granted free of charge. Yet, Courtney scorns even the prospect of zero-cost licensing on principle. That’s a position he and others are free to take, but this whole narrative of an “expanding licensing culture” is kind of like a deep-state conspiracy theory for anti-copyright zealots—especially if the letter by the USCO to Sen. Udall is what passes for evidence of same.

With the accusations lobbed at the Copyright Office, Courtney is technically asking the agency to step outside its purview and write opinions that do not square with the law. For instance, the letter correctly states that the first sale doctrine (§109) does not apply to digital transmission and would, therefore, be unlikely to provide a legal basis for the IA to have launched the NEL. Although Courtney and others clearly believe that §109 should apply to digital transmission, at least for non-profit entities like libraries and archives, that is a much broader discussion beyond the question asked at this time by Sen. Udall. If a court were to rule somewhat differently in some future case (beyond the one in Capitol Records v. ReDigi), the Copyright Office would be obliged to acknowledge that ruling in some future discussion, but that is not the reality today.

Meanwhile, there is a lot to be said, both in terms of efficiency and cost, for libraries adopting digital licensing models, the way my regional library did, rather than wade into the messy implications of interpreting or amending §109 to encompass the digital transmission of scanned books. That opens up a huge can of worms—one that potentially threatens the digital sale market for authors—that pundits like Courtney either fail to consider, or do not care about. This comes under the heading that the antagonism that often erupts between authors and libraries is an absurdity, one that is largely manufactured by people like Brewster Kahle, Big Tech corporations, and academics with too much time on their hands. But that’s a topic for a future post.

See also former USCO counsel Steven Tepp’s analysis of the National Emergency Library here.

[1] For instance, if IA digitizes books it borrows from other libraries, this is not legal acquisition that entitles the lending of those books in any form.

“Library of Congress” Photo by author.