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.

Trump Jr. Blasting Silicon Valley Is Unhelpful

In an op-ed for The Hill published on September 30, Donald Trump, Jr. rails against the power of the major internet platforms, saying that “free speech is under attack” by Big Tech.  His complaint, of course, is that the big internet platforms are censoring what he calls conservative voices, blaming “the technology giants that deplatform people at the behest of liberals and then justify the action as ‘combating hate.’” 

Don Jr.’s call to “break up” Big Tech is, ironically enough, a call for the industry to return to its pre-2016 policy of zero platform responsibility, to accepting revenue from any source while making little effort to mitigate hateful, violent, or illegal content—even if it happens to be paid for in Rubles.  Because of course without the babbling chaos that social media created in the first place, there would be no reality in which a patently incompetent and indecent man like Donald Trump becomes President of the United States.  Most real conservatives know this to be true and, I suspect, will be saying so in the relatively near future.

Seeking to align Trumpism with original patriotism, The Donald 2.0 extolls the virtues of a Reddit mob blasting Beto O’Rourke as if this kind of engagement were exemplary of the American Framers’ fondest ambitions for free speech and a free press. He writes …

“The free press that the founders envisioned looked a lot more like the Reddit users who roasted [Beto] O’Rourke than New York Times writers who misrepresent basic tenets of free speech and demand censorship to protect their friends from “online harassment.”  

There is nothing surprising about a Trump making a hash of history.  While Junior is perhaps correct to remind Americans that living in a society with free speech “…can be edgy, brutal, irreverent, and sometimes downright offensive,” he misrepresents the sensibilities of the Framers in a significant and telling way.  Even a digest version of the reading material makes one thing very clear about America’s key architects:  to a man, they were intellectual elitists who harbored few illusions about the hazards of democracy and the consequences of succumbing to the tyranny of the mob. Not even Jefferson, in his most Jacobean zeal, would likely view the average social-media skirmish with anything but contempt for the general abandonment of evidence-based reason in these discourses that so often devolve to threats and harassment. As scholar Mary Anne Franks writes in the abstract of her paper “Fearless Speech” …

“The American conception of free speech is primarily defined as the freedom to say whatever one wants, with little regard for the quality, context, or impact of the speech. Thus, American free speech doctrine is often characterized as neutral with regard to the speaker and the content of speech; in practice, however, it consistently privileges powerful over vulnerable speakers and harmful over critical speech.”

Perhaps most relevant to Don Jr.’s twisted premise is that the Framers who were especially apprehensive about the too-passionate mob, men like Hamilton, are the progenitors of the American conservative tradition.  Those stuffy, patrician, and, yes, arrogant authors of the United States, who tended to display a bit too much anglophilia for the tastes of many of their contemporaries, also served as intellectual ballast in a nation that was born volatile and restless.  The men who wrote the Constitution were students of the Enlightenment, not an angry, pitchfork-wielding rabble.  That was the French Revolution.

The principle that the rule of law is a foundation of liberty spawned a conservatism grounded in reason, truth, and a moral context that was at least definable, if not universal enough to embrace America’s inevitable diversity.  In short, there is no historic or doctrinal link between the Federalists and the straightjacket ravings of someone like Alex Jones.  The Founders never hoped that the speech right would foster a circus, where evidence rooted in science would be trampled by popular consensus—let alone the kind of algorithmic sabotage at work in our politics of the moment.

As surely as MTV made Madonna, Twitter made President Trump—albeit not intentionally.  Where else, other than the miasma of the Twitterverse could a man whose political bona fides began with a racist conspiracy theory attain the highest office in the land?  Big Tech’s folly is not that some of its operators finally had the sense to remove an Alex Jones or a Daily Stormer from their servers, but that they initially promoted a doctrine of internet non-governance, which fostered the only medium in which neo-Nazis and sociopaths were somehow invited into tent of conservatism.  That anyone would tolerate, let alone defend, the President’s recent tweets about “civil war” (a literal incitement to violence and treason), is the apotheosis of Big Tech’s misguided ideologies and a grotesque aberration of the Federalist cause.  

Responding as a member of an unofficial society of Big Tech critics, I find Junior’s rationale for “breaking up” Google, Facebook, et al profoundly dysfunctional and unhelpful in a policy discussion that is already difficult to have.  While many of us are advocating platform responsibility, he wants to goad those platforms to resume hosting all material without restraint, to reinvigorate Barlow’s too-idealistic notion of a world where laws do not apply.  But of course that’s what he would do.  How else could the United States suborn a President who flaunts his contempt for the rule of law and unironically asserts “alternative facts”?  That is the internet ethos in spades, and Trump’s presidency is the Golem that Silicon Valley brought to life. 

HJC is Right to Want Internet Safe Harbors Out of USMCA

Remember the Trans Pacific Partnership?  The twelve-nation trade agreement that became an eleven-nation trade agreement when the U.S. pulled out?   As a general opinion, I will propose that when both a Bernie Sanders and a Donald Trump want to thrash a Fair Trade Agreement (FTA), it’s a pretty good indication that diametrically opposing ideologies have come to the same naïve conclusion.  Whether one’s anti-globalism is steeped in anti-corporatism or ultra-nationalism matters very little when the self-defeating result is not the abandonment of the world’s largest trade deal, but a decision that the United States will not have a seat at the table.  

But the reason I’m trotting out that diplomatic fiasco in this post is to remind readers why “digital rights” groups like the EFF, PublicKnowledge, ReCreate Coalition, et al campaigned so energetically against the TPP:  because they said it would “entrench” the status quo of copyright law, particularly the duration of copyright terms.  “One of the defining battles in the Trans-Pacific Partnership (TPP) negotiations,” began a typical EFF blog post in 2017,  “is whether its signatory countries will standardize copyright terms lengths to a minimum term of the life of the author plus 70 years.” While this post presents the urgency of six new countries adding 20 years to their copyright terms, I do not believe the duration of copyright in Brunei was the focus of the organization’s agenda.

Regardless of how one feels about term length, it was profoundly disingenuous to imply in that post, and others, that the USTR was working at the behest of major rightsholders to entrench the life-plus-70-year standard through an FTA. Further, in my view, this post was written to suggest that, if the U.S. did not ratify TPP, we just might to roll back our terms to life-plus-50 years. But that regime was already a global standard when the U.S. joined the Berne Treaty a century after it was first created; and the increase from 50 years to 70 in 1996 was the result of the U.S. matching its terms to those adopted by the new European Union.  So, there was never any logic to the implication that by withdrawing from the Pacific trade deal, this would have loosened the bolts on U.S. copyright policies, which are based largely on the history of Euro/American trade in copyrightable works.

With that preamble in mind, be prepared for much wailing and gnashing of teeth from the “digital rights” groups if the U.S. Trade Representative concedes to a request by the House Judiciary Committee to remove language from the USMCA (new NAFTA) mirroring the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA).  

Also referred to as Section 512, these are the provisions under which internet service providers (ISPs) are held immune from liability for hosting copyright infringing material that is uploaded by users; and safe harbor language has been echoed in FTAs since passage of the DMCA in 1998.  Why the change in doctrine?  In its September 17 letter to the USTR, the Committee stated …

“The U.S. Copyright Office is expected to produce a report on Section 512 around the end of this year, the result of a multi-year process that started in 2015.  Moreover, the European Union has recently issued a copyright directive that includes reforms to its analogous safe harbor for online platforms, which may have an impact on the U.S. domestic policy debate.  Without taking a position on that debate in this letter, we find it problematic for the United States to export language mirroring this provision while such serious policy discussions are ongoing.”  

Quite simply, the DMCA has been under review for several years because it is not exactly working as intended.  In fact, neither of the two internet liability shields—neither Section 512 nor Section 230—has resulted in platform operators taking adequate voluntary action to mitigate harm on their platforms.  To the contrary, absolute immunity for web platforms fostered a culture of smug, self-important rationales for irresponsibility.  

Until major Silicon Valley executives had to start answering questions about data breaches and trust violations, they were the self-proclaimed  “fast movers and thing breakers,” insisting that if we all want progress (see innovation), we gotta let them break a few eggs, right?  Except those eggs were privacy; civil liberties; personal safety; decency; the rights of authors and inventors to protect the fruits of their labor; other labor rights while we’re at it; and the foundations of democracy itself.  Small price to pay for Facebook and YouTube, I guess.

In contrast to the ginned-up fears of “entrenching” century-old copyright regimes in trade agreements, the “digital rights” groups will no-doubt recommend entrenching law through FTAs with a much shorter and dodgier pedigree.  It took less than 20 years after passage of the DMCA to recognize that ISPs will use their liability shields to avoid taking adequate voluntary measures to mitigate harmful or illegal conduct on their platforms.

The logical conclusion many constituencies are now coming to with regard to internet service providers—and this is hardly a revelation—is that tech corporations, like any other, will avoid incurring costs, either direct or opportunity, unless the potential liability will be even more expensive.  The House Judiciary Committee is right to put the brakes on safe harbor provisions in FTAs in order avoid calcifying demonstrably flawed policy.  

The EFF Thinks People Are Too Stupid to Understand the CASE Act

As the copyright small claims provision, the CASE Act, continues to acquire congressional sponsors—96 House Members and 14 Senators to date—the EFF is amping up the scare-tactics with blunt messages asking the average internet user if they could afford a $30,000 fine for copyright infringement.  Clearly, the EFF expects this strategy to work because they think people are not smart enough to understand a fairly simple new law.

Facts matter.  Not just the facts about how the CASE Act would function, which anyone is free to read rather than take my word, or the EFF’s word, about it. But more specifically, facts matter in a small claim tribunal the same way they matter in a case brought to an Article III court when considering a claim of copyright infringement.  What the EFF is doing, though, is citing the maximum possible damage award that may be incurred by the most egregious possible infringer in a small claim case, and then using that data to scare folks into thinking that if one engages in “normal online activity,” they could be on the hook for thirty large.  

First, second, and third, the Copyright Claims Board (CCB) is a VOLUNTARY dispute resolution venue.  But EFF is concerned that people are not clever enough to opt out of a tribunal for which they would receive two notices that a rightsholder has filed a claim. Hoping to obfuscate the voluntary nature of the CCB, one of the EFF’s latest tweets reads, “The CASE Act would create a complex and obscure system that big players could get out of and small players could be left owing huge sums of money.”

I don’t know, but it seems more than a little insulting that the EFF thinks the average citizen cannot figure out a “complex” and “obscure” system that will begin something like this:

1) You receive a notice of a complaint in the mail from the CCB.  

a) If you think the complaint might have merit—because yeah, you did sorta use that photo in an online ad without permission—you may wish to opt for resolution at the CCB.  Check the box.

Or

b) If you think the complaint does not have merit, or you want to insist upon adjudication in a federal court, you can opt out. Check the box. 

If that system is really too complex for the ordinary user, shouldn’t we limit that user’s access to the internet before he hurts himself or others?

Meanwhile, the EFF is not clear who it means by “big players,” but people who have valid claims against big players may not bother with a small claim against “big” defendants.  The reason the EFF mentions “big players” in this context is to balance their equation with bullshit of equal weight on the other side, alluding to the “small players left owing huge sums.”  The purpose here is to make the reader’s mind run amok with visions of a copyright owner filing a claim against you because your kids are sharing memes or sound clips on TikTok or whatever.  So, EFF thinks people do not have the basic common sense to follow this logic …

The number of claims that a copyright owner may bring to the CCB in a given year may be limited by the USCO; and for sure, the financial and time resources of the copyright owners are limited.  Remember, these are middle-class creators with bills to pay and demands on their schedules just like you and I—the same so-called “small players” the EFF is supposedly defending.  These are small-business creators, who do not have thousands of dollars and dozens of hours to burn on wasteful claims against non-infringing or non-harmful uses.  

So, just like you and I would do, this class of creators will use their limited resources to take enforcement action against the infringements doing the greatest harm, where the facts are most clearly their side, and where the alleged infringer has the means to pay an appropriate damage award.  This is not the “normal internet user” the EFF is referring to.


But EVEN IF some copyright owner did file a claim, for whatever reason, against an “ordinary user,” who uploaded some material to social media (for example), then I refer you to the earlier rule that facts matter.  The CCB is not there to rubber-stamp claims for $30,000 payouts.  It is there to consider all claims and defenses by both sides, and any damage awards—if awards are warranted—will be commensurate with the nature of the use and potential harm done.  

That range will include decisions that the rightsholder has no claim or that the claim warrants a low-value award; but the CCB will discourage claimants from filing claims against the kind of “users” the EFF is trying to frighten.  Trillions of uploads and shares occur online every day.  No copyright owner or agency of the USCO has the resources, let alone desire, to take enforcement action against the kind of uses EFF is implying in its scary campaign. 

But the EFF doesn’t think you can handle all those “complex” details.  They prefer to paint a frightening narrative in which you might think you need a law degree and two years of practice to understand the provisions of the CASE Act. You don’t.  And for users of works who should be considering copyright, this post explains why not infringing is also not very difficult.