David Newhoff, Author at The Illusion of More

Thanks Big Tech. But We’ll Still Need to Talk.

About ten minutes after the world went into self-quarantine, and we all instantaneously became more dependent on internet platforms, you could almost hear the keyboards clacking, as various pundits raced to announce that the techlash is officially over. And that it never should have happened.

For instance, Ryan Bourne of the libertarian CATO institute said as much. Writing on April 9for The Telegraph, he declared, “In many ways, our current crisis is seeing the promise of Big Tech fulfilled. The value of greater online connectivity – tech ‘bringing us together’ – has never been clearer. HD quality video calls allow the elderly to continue to see grandchildren while in isolation.”

Cue montage for every anthemic Google TV spot we can expect to see in the near future. And to be fair, we cannot deny that internet platforms do provide resources and capabilities that, in an emergency like the present, go from being merely important to absolutely essential. We do not need to list the many ways in which digital technologies and internet platforms are sustaining many basic functions and some semblance of commerce at the moment. We’re all living those examples every day.

In case you happen to be unfamiliar with the term techlash, it is shorthand for describing the general shift in attitude, beginning in early 2016, when the public, the media, and lawmakers all, rather suddenly, opened up to the idea of holding the major platforms responsible for some of the content they host and/or the data they abuse. This change in mood was of course sparked by revelations that Russian agents had meddled in the 2016 U.S. election, that troves of Facebook user data was used by political manipulator Cambridge Analytica, and that our social platforms were full to bustin’ with “alternative facts.”

While many pundits, and the internet companies themselves, will continue to burnish Big Tech’s image against the contextual stone of COVID-19, there were some rather important policy discussions just beginning to take meaningful form when the microbes hit the fan. And we should most certainly not, as Bourne proclaims, “… put the crude ‘reining in Big Tech’ agenda straight into the policy dustbin.” Granted, he is primarily responding to anti-trust action in the EU and murmurings of same in the U.S., arguing, “The benefits of winner-takes-most competition right now are clear.” And while the breaking-up Big Tech discussion deserves its own forum, there are other matters on the table.

As a general statement, Bourne’s conclusion is irrational, given the impetus for its writing. The more a private industry proves itself to be of vital public interest, the more it deserves fair but rigorous public scrutiny. It would be preposterous to decide, now that we’ve seen how much we rely on Big Tech, that these companies should be allowed to do whatever the hell they want. Though I get why a libertarian would say otherwise.

Specifically, there was a very critical policy debate (long overdue) that was finally taking place, thanks in part to the so-called techlash. And if we were to take Bourne’s dustbin comment seriously, we would only succeed in sweeping whole dust bunnies of unresolved problems back under the rug. That conversation is whether all platforms should continue to enjoy absolute immunity from civil liability for harm caused by means of certain content they host and, quite often, monetize.

Harassment victims, whose troubles are exacerbated by the liability shield, Section 230 of the Communications Decency Act, will still have a complaint or two when this crisis is over. Likewise, creators, whose music, photos, films, etc. are chronically pirated via platforms immunized by Section 512 of the Digital Millennium Copyright Act, are hardly finished having that conversation. After all, it only began in earnest on February 11, when the Senate Judiciary Committee held its first hearing in what was scheduled to be a yearlong review of the DMCA.

When those hearings resume, I imagine we will see a lot of post-crisis inspired enthusiasm for Big Tech seep into testimony on the Hill and the talking points of Silicon Valley’s network of activist/PR agencies. It is easy to anticipate, for instance, declarations like, COVID-19 revealed just how essential internet access is for everyone, and, therefore, no provision should ever bar that access.

In context to the DMCA, this would be a swipe at §512(i), which requires that a platform wishing to avail itself of the “safe harbor” provision, must implement an effective termination policy for repeat copyright infringers. COX Communications is now the poster child for what happens when an ISP implements a Potemkin termination policy, having lost a one-billion-dollar lawsuit in December 2019. In its amicus brief on behalf of COX, the EFF cited access to education, employment, and government services as rationales; so it is a safe bet these same arguments, though unpersuasive to date, will be reinvigorated by the coronavirus experience.

Naturally, if the ISPs were persuasive that access is a human right, this could abrogate the “repeat infringer” provisions of Section 512. And while there is reason to be skeptical that the ISPs can successfully argue the “access as right” principle as a matter of law, the generalized “importance of the internet” trope has been used for years to militate against holistic enforcement of the statutes as they are written. (Also, I would not expect the access providers to take the human right principle so far as to offer free access to all during a crisis, though I would applaud them if they did.)

As noted in my post about the second DMCA hearing, Professor Justin Hughes observed that §512(j), which provides for injunctive relief by means of site blocking, has hardly been implemented in the United States. And despite a preponderance of evidence that site-blocking has been effective in other jurisdictions in combating piracy without harm to speech rights, I imagine we can expect a litany of headlines and memes saying things like, Imagine your child can’t get her homework done during the next crisis. Tell Congress no site-blocking.

Of course the homework thing (and related examples) will have nothing to do with implementing §512(j), but trivial realities have never stopped the “digital-rights activists” from engaging in this kind of hyperbole before. Why would they restrain themselves in a climate of renewed ebullience for Big Tech that will probably follow the ebb of this pandemic?

By all means, let us share a golf clap in recognition of the fact that, thanks to internet platforms and related technology companies, many of us can adapt to functioning at a distance in this strange and difficult moment in history. But let’s not trip over ourselves in fawning adulation. These encomiums to Big Tech are typically overbroad, presuming to conclude that the benefits of an industry obliterate the public interest in holding that same industry accountable for any potential harms. No corporate entity deserves that much free rein. Not ever. When this crisis subsides (and I hope it subsides), we will all need to heal in one way or another, and after thanking Big Tech for all it can do, and has done, we’ll still need to talk about a few things.

Photo by: Ansonlu

One Movie Settled the “Debate” About Climate Change

When I saw the theme of this year’s World IP Day, Innovate for a Green Future, I will admit that it was hard not to be cynical. In light of the reinvigorated political assault on science—let alone to be thinking about climate change in the middle of a pandemic—it is tempting to believe that the debate about global warming still rages—or has even been lost. But that’s not quite true. The debate was settled a very long time ago. Or to be more precise, there is no such thing as a debate about scientific evidence, there is only understanding, misunderstanding, willful ignorance, or malignant deception.

While it is stultifying to see that a truly vindictive brand of ignorance and deception are the cornerstones of the present administration, there remains one avenue of hope for at least mitigating—because it is almost certainly too late to reverse—the effects of global warming. Oddly enough, that avenue of hope has more to do with market dynamics than environmentalism per se, and I would assert that it was a single documentary film that opened the window to a market-based transformation, which, even now, represents a path forward. I am of course talking about An Inconvenient Truth.

An unlikely movie pitch, the centerpiece of the documentary is former Vice President Al Gore presenting his climate change “slide show,” which he had developed over several years after he was first introduced to the science in college in 1966. Not long after conceding the painfully-contested presidential election in late 2000, Gore devoted himself fully to the climate issue, taking his laptop and talking points on the road, offering free admission to anyone willing to listen to him discuss the fate of the planet.

“The slides were originally black and white,” says the film’s co-producer Lawrence Bender, whom I interviewed for this article. “They weren’t visually appealing, but they were almost scarier, like something you’d see in a science lab, when we first saw Al’s presentation in Los Angeles.” Bender and others who would eventually join the production team were invited by producer Laurie David (now Lennard), who had arranged for Gore to come to L.A. after she found herself captivated by his lecture in New York in May 2004.

“Gore’s show left us with a sense of urgency about the issue,” says Bender. “We knew we had to make what we had seen into a movie, but it was not easy to convince many people in the business that it was a movie. Try telling someone you’ve got former VP Al Gore, who lost the election, doing a slide show about science, and that you need a million dollars.” Enter Jeff Skoll, who founded Participant Media in 2004 with the fortune he had made as eBay’s first employee and first president. “Jeff financed the whole production without blinking an eye,” Bender tells me.

Less than a year after that initial presentation in Los Angeles, An Inconvenient Truth was ready for the screen. It became an international blockbuster (for a doc), earning two Academy awards, one for Best Documentary Feature, the other for Best Song, “I Need to Wake Up” by Melissa Etheridge. And for any cynics, who may be tempted to criticize the movie as a vanity project—Hollywood glamor with little substantive effect—I would direct your attention back to the 1990s and early 2000s.

Waking Up Tens of Millions

Hurricane Katrina. August 28, 2005. NASA

When the Kyoto Protocol was ratified in 1997, calling for a modest 5% reduction in greenhouse gasses by developed nations, global warming was not an especially bright blip on the public radar screen. General perception, such as it was, loosely divided along the left/right political lines that are usually drawn through environmental issues; but overall, the average citizen (and quite a few politicians in both parties) could be described as somewhere between ambivalent and unsure about the alleged causes or effects of a warming climate.*

It probably did not help that this was the same period when we all first logged onto the internet, which would prove to be a wonderful tool for obtaining information and disinformation at the same time. And to be sure, the extractive industries, and other vested interests bound to fossil fuels, were eager to provide erudite sounding counter-narratives to the mountain of evidence proving that human activity was in fact changing the climate in dangerous ways. Then, on January 24, 2006, An Inconvenient Truth debuted at the Sundance Film Festival.

Directed by Davis Gugenheim, the film’s most effective quality, in my view, was that it reintroduced the purportedly “wooden” politician Al Gore as a relatable, flesh-and blood human being, whose humor and humility rescues the didactic lecture from becoming either dry or a ninety-minute scold. Upgrading Gore’s visual aids to high-resolution slides using Apple Keynote certainly provided enough color and scope to fill the big screen, but the critical element was Gore’s humanity.

“Davis was adamant that the film had to work emotionally,” says Bender. “It’s a deceptively simple movie, but we spent a lot of energy in post-production trying to find the right balance between this man’s personal journey and the science.” By interweaving Gore’s presentation with glimpses into his life story—anecdotes in which he admits his own frailties and errors—the overall result of the film was that it turned carbon dioxide into a kitchen-table issue. And that was the significance of An Inconvenient Truth.

Seemingly overnight, as a direct result of the movie’s success, concepts like “carbon footprint” entered mainstream conversation and classroom curricula across the U.S. and abroad. While the opposition was by no means silenced, the film awakened enough public consciousness that multiple business segments suddenly needed to respond to a new consumer demand to “go green.”

Consumer Change Leads to Corporate Change

To be sure, not all business initiatives were substantive, but by and large, the mandate to promote green led to tangible and lasting changes in corporate culture and governance. Sustainability went from a crunchy, esoteric notion to a board-room best practice, and this, in turn, spawned new investment in the development of alternative and more efficient energy solutions. “Practically every Fortune 500 company has a sustainability officer or sustainability program today, and that was not true fifteen years ago,” says my longtime friend Jeff Turrentine, a writer and editor for On Earth, the publication of the Natural Resources Defense Council.

An Inconvenient Truth was not the first conversation about the economics of sustainability, and Gore was hardly alone in asserting that carbon reduction, aside from being existentially mandatory, is compatible with economic growth. Many environmental experts, technology innovators, and political leaders (even bipartisan ones) had a solid grasp on the two uncontroversial facts about carbon mitigation: 1) that burning less fuel saves money and is, therefore, profitable; and 2) that green innovation represented a whole new sector of untapped economic opportunity.

That conversation was already taking place in various pockets in the both the public and private sectors for at least a decade or more before An Inconvenient Truth was released. But the film gets credit for igniting those latent sensibilities in the minds of the general public and for spawning the aforementioned consumer demand for change. The movie was catalytic in fostering market conditions in which multiple industries and municipalities discovered what many environmentalists had tried to explain for years—that working to reduce greenhouse gas emissions happens to be good for business.

So, while the Trump administration has arrogantly stumbled backwards on environmental policy—evangelizing climate science denialism out of sheer spite—the green investments made by both the private and public sectors over the last decade and a half are unlikely to be reversed—especially when those investments are yielding positive returns. It is still not enough, but it is most likely where the best hope still remains. And perhaps there is no better example of this paradigm than the city of Georgetown, Texas, featured in An Inconvenient Sequel: Truth to Power (2016).

Mayor Dale Ross proudly tells Gore, on camera, that his city is powered by 90% renewable energy (at the time of filming), despite being “the reddest city in the reddest county in Texas.” Why? Because, to paraphrase Ross, it saves his constituents money, and because you don’t need to be a scientist to understand that less pollution in the air is a good thing. This is why I will argue that An Inconvenient Truth went beyond merely “raising awareness.” It directly created a public mandate that led to the kind of common sense approach taken by Ross, who reminds us that there is nothing “conservative” about waste or higher prices.

The countless market effects that can be attributed to a single film—in which the information was neither new nor hard to grasp—remind us that creative expression is essential. In a time when IP deniers argue that copyright functions solely as a barrier to information, the story of An Inconvenient Truth belies the naïve, tech-utopian assumption that access to information alone is sufficient—least of all when utter nonsense gallops across digital platforms like a fifth horse of the apocalypse. Facts alone do not speak meaningfully to people. Invariably, it takes creativity to inspire us, even when it comes to saving our own lives.

*It must be acknowledged that the climate issue had Republican champions in those days, and there is an extent to which Gore, as the most prominent messenger, became a more attractive political target after the 2008 election, when the GOP became more dependent on the fossil fuel industries.

Photos: “Al Gore” Lisbon, 2017. By G Holland.

“Earthrise” Apollo 8, December 24, 1968. NASA.

A Court Did Not Rule that Uploading Works Terminates Copyright. But…

On April 14, Eric Garder, writing for the Hollywood Reporter, published a story under the headline: Court Rules Photographer Gave Up Exclusive Licensing Rights by Posting on Instagram. There is nothing technically wrong with that headline—and Gardner did not, I believe, misrepresent any facts in his article. But when I saw photographer Doug Menuez share this story on Facebook the other day, I had the same gut reaction that I bet a lot of visual artists and copyright watchers had. Those words “gave up” made me think, Great, some judge has actually ruled that posting an image on a social media account extinguishes all copyright in the work. (Yes, that is how the nerd in my head always talks.)

I noticed that copyright attorney Leslie Burns, who represents many photographers, bemoaned on Twitter the fact that this story is already being described as one in which uploading to Instagram et al automatically terminates copyrights. That is certainly not what the judge ruled in Sinclair v. Ziff-Davis and Mashable earlier this week. But there is still much to this story—a good news/bad news tale—that should be of great concern to copyright owners.

The good news is that Judge Kimba M. Wood of the District Court for the Southern District of New York (SDNY) did not articulate any new opinions whatsoever with respect to copyright law. The bad news is that what happened to professional photographer Stephanie Sinclair is yet another reminder that the major tech platforms are predatory animals whose Terms of Service are toxic to creators. Here are the basics …

Sinclair, like many a visual artist needing recognition, posted her work on Instagram under a Public account. On March 16, 2016, Mashable published an article about women photographers and displayed Sinclair’s unlicensed photograph by means of embedding, using Instagram’s API by pointing to the file located on Instagram’s servers. Anyone who might want to interject that the “server test” protects Mashable, hold that thought.

The simple, unfortunate reality is that by uploading her work, the copyright owner “grant[s] to Instagram a non-exclusive, fully paid and royalty-free, transferable, sub-licensable, worldwide license to the Content that you post on or through [Instagram], subject to [Instagram’s] Privacy Policy.” In a nutshell, Sinclair, and every other creator uploading works to a Public account, grants Instagram this right to sub-license those works.

In fact, as Terrica Carrington of Copyright Alliance notes, “These licenses, which are very similar for all the major platforms, are so broadly written that Instagram could, in theory, sub-license a visual work to any party for any use by any means, and even charge the sub-licensee money for it. We haven’t seen the platforms do anything this bold, and they might never do it because it would be bad PR, but the Terms of Service are written broadly enough to allow them to do it legally.”

Of course none of us reads the Terms of Service (TOS), and for two very good reasons: first, because these agreements are epic and barely comprehensible (Instagram’s runs over 17,000 words); and 2) because opting out of social platforms is not necessarily a viable choice, especially for creators who need a certain amount of publicity to survive. (See what artist Dima Yarovinsky did with the Terms of Service contracts for seven of the most popular platforms.)

Remember that tech-utopian mantra that was popular a few years ago? It went something like, The problem for creators isn’t copyright, it’s obscurity. That was shorthand for the insidious proposition that social platforms provide free venues for creators to expose prospective consumers to their works. While this was/is true to an extent, many experienced creators and rights advocates also pointed out that free publicity channels aren’t worth much, if the same platforms create both motive and means for rampant, unlicensed use of works.

Sinclair notes this rock-and-a-hard-place issue in her complaint, to which Judge Wood replies, “Unquestionably, Instagram’s dominance of photograph-and video-sharing social media, coupled with the expansive transfer of rights that Instagram demands from its users, means that Plaintiff’s dilemma is a real one. But by posting the Photograph to her public Instagram account, Plaintiff made her choice. This Court cannot release her from the agreement she made.”

As a practical matter, Sinclair’s untenable litigation is a cautionary tale in which the lesson may be that creators should never upload works they intend to protect onto these platforms. Indeed many photographers do adopt such a policy, but that can be a very difficult decision for many. To echo Sinclair’s point, it is a fine line between social platform as opportunity and social platform as a mandatory appendage one must accept in order operate in the contemporary market at all. File this under the heading the internet giveth, and the internet taketh away.

So What About That Server Test?

As many readers already know, the server test (or server rule) generally says that when a user of an online platform embeds a link that causes a work (usually an image) to appear on the user’s page, this action does not infringe copyright. For more details see posts here, here, and here; but for a long time, the legal precedent has been that by “pointing” to a file on a server where the work is presumed to be legally copied, this action clearly does not infringe the reproduction right.

But to any ordinary observer, a photograph on a web page would certainly seem to implicate the creator’s display right, no matter how the page editor caused that image to be displayed. And that’s pretty much what Judge Katherine Forrest held in Goldman v. Breitbart et al, also in the SDNY, in February 2018. In that case, several news organizations had embedded Justin Goldman’s photograph by pointing to Twitter’s servers, and Judge Forrest held that, “… when defendants caused the embedded Tweets to appear on their websites, their actions violated plaintiff’s exclusive display right; the fact that the image was hosted on a server owned and operated by an unrelated third party does not shield them from this result.”

So, although there was no reason for the server rule to have been addressed in regard to Sinclair’s complaint against Mashable, it is reasonable to assume that this defense would not have availed Mashable had it been raised. But, what a strange and messed-up situation we have for creators.

Instagram (and the other platforms) write TOS so broad that they could, technically, sub-license a work for any use without a creator’s permission. In practice, these licenses have, thus far, only applied in cases where the sub-licensee embeds images hosted on the first platform’s servers. But the question remains open (i.e. split among circuits) as to whether the server rule unjustly extinguishes the display right.

So, you see where I’m going here: the non-negotiable, labyrinthine contracts that creators must sign in order to use social platforms, weaken their copyrights by means of conduct that has been held to infringe under circumstances barely distinguishable from those in Sinclair’s complaint. Yes, the attorneys and legal experts see the distinction between a contract matter and one of case law under the copyright act. But the bottom line for the creators is that corporate interests are still ripping them off.

Author: David Newhoff