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 Netflix’s ‘The Great Hack’ Gets Right

I’ll tell the story again.  This blog began the day a friend of mine—a very smart one—shared an article on Facebook that was patently untrue.  When I confronted him about this, he responded that he cared more about the “issue” than the veracity of the article.  The double-take triggered by his cognitive dissonance led me to poke around and discover that the false article he had shared was hosted on multiple websites, including The Huffington Post.  This sparked the hypothesis that the unprecedented volume of repetition (a.k.a virality) made possible by the internet breeds dangerous levels of consensus around false narratives.  Hence the name The Illusion of More. 

That was eight years ago and small potatoes.  Last week, I watched the new documentary The Great Hack, made for Netflix and directed by Karim Amer and Jehane Noujaim.  The film’s focus is Cambridge Analytica and the (now-dissolved) company’s use of social media data to manipulate major political outcomes around the world—including the UK’s Leave.EU campaign and the American presidential election of 2016.  For anyone who somehow missed this general story, the film provides a solid overview of events along with details you might have missed and engaging profiles of the key whistleblowers and investigators who shed light on Cambridge Analytica’s activities.

In an article for The Nation, Micha L. Sifry describes what the film “gets wrong,” namely its strong implication that Cambridge Analytica literally won the election for Donald Trump.  On this one binary question, we could certainly run around the barn ad infinitum.  Those who do not like Trump will be more eager to accept this conclusion while those who support him will remain understandably resistant to any allegation that his presidency is the result of tech-enabled chicanery.  Sifry writes …

“The inference, never blatantly stated but simply conveyed by all the tricks of modern documentary-making—striking digital graphics meant to illustrate how our data leaks into the hands of others, ominous music, and alluring close-ups of  [whistleblower Brittany] Kaiser as she watches the scandal unfold on television—is that Trump won because Cambridge Analytica gave him a secret edge.”

While not a completely unfair criticism of the film, Sifry is guilty of constructing at least a diminutive straw man when he focuses on the legitimacy of Trump’s election rather than the film’s broader and more urgent message—that the democratic process is unequivocally being hacked.  This is what the film gets right, and the point is emphasized by one of its main subjects, Carole Cadwalladr, The Guardian journalist most responsible for investigating the Cambridge Analytica story.  

Cadwalladr has made clear in her articles, talks, and in this film that billionaire ideologues, using “weapons grade” information technology and massive amounts of Facebook user data, sought to fracture the democratic process through calculated disinformation campaigns and, as she states, “It’s not about left or right, Leave or Remain, Trump or not Trump.  It’s about whether it is possible to have a free and fair election ever again.” 

“The Great Hack wants to make its viewers care about data rights and the dangers of modern misinformation campaigns, but unfortunately is itself a slick piece of misinformation that plays artfully on the prejudices and misunderstandings rife in its targeted audience,” Sifry states.

Again, this may be a fair criticism of the film itself, but one which Sifry uses to draw an unfair conclusion about its relevance. I personally agree that The Great Hack is often too slick for its purposes.  While it may be a market reality that documentarians often need to employ glossy, theatrical production values (e.g. lively compositing effects) in their films in order to compete for audience attention, Sifry is justified in asserting that the creative choices made by the producers do imbue the film with the tone of propaganda that can dilute the seriousness of its reportage. This is especially unfortunate when the film’s subject matter is propaganda and manipulation itself.  

Consequently, the fair critique that the film is, at times, heavy-handed provides Sifry et al the opportunity to dismiss its main narrative, which is to describe how Facebook, a platform marketed as a means to “connect people,” has been weaponized to drive people apart.  This phenomenon is irrefutable and should not be brushed aside just because the producers got a bit lost in style over substance.  The substance is still there.  The story itself is arguably the greatest conspiracy in the history of modern republics. And it is still happening.

Notably, in order to bolster his criticism of the documentary, Sifry cites evidence that manipulative advertising is only so effective, stating, “When it comes to voters’ decisions about their choice of candidate, most forms of paid political persuasion, including TV ads, online ads, mailers, phone calls, and door-knocking, have no discernible effect in terms of changing people’s minds.”  

That may be true if we are talking about traditional political advertising, especially in a pre-Facebook world; but we are far from that particular Kansas, Toto.  Sifry falls into the same trap many people do by mis-measuring this period using pre-digital-age metrics.  The psychological effects of online “engagement” are nothing like the psychological effects of traditional advertising; and this true even without an intermediary using your personal data to target your personal hot buttons.   

If we go back to the example of my friend sharing a false news article, he did not perceive that material as an advertisement.  He perceived it as information, which just happened to support a rationale for a conclusion (a.k.a. deep story) he had come to believe about the National Defense Authorization Act (NDAA) of 2012.  He was wrong about his underlying complaint, but not alone in his wrongness. Dozens of my friends were sharing the same misinformation about the bill, which was being sloppily reported all over the place; and the mere fact that this apparent consensus kept appearing on everyone’s newsfeed fostered a self-fulfilling prophecy.  But here’s the important common thread, in my view, linking that moment to the present …

The phenomenon that was metastasizing then, and which has come around to bite us now, was the steady erosion of trust in the pillars of democratic society.  If one of the most dangerous aspects of Donald Trump is that he consistently undermines or contradicts the intelligence community, it is noteworthy that many of my Democratic and left-leaning friends were doing exactly the same thing just a few years ago—usually because of some careless bit of fluff they found on the internet, and often because “digital rights” groups like the Electronic Frontier Foundation were sowing just as much distrust in those organizations as the current president does today.  This is not an indictment of the principle oversight, only an observation that living in a paradigm of universal distrust is a vicious cycle from which there is no escape.

Consider the moment we’re in this month.  The FBI says white-supremacist ideology—which just happens to have drawn strength from the techno-libertarian approach to cyber policy—poses a significant and growing threat to domestic security.  So, if one finds it appalling that Tucker Carlson can call the this evidence a hoax in the same breath in which he calls election interference a hoax, it is worth noting that the ground for his brand of bullshit was softened through social media by every user across the political spectrum finding different rationales to dismantle trust in agencies like the FBI.  

After all, it was not very long ago that most of my left-leaning friends were endorsing guys like Julian Assange and Ed Snowden as essential antidotes to the American intelligence apparatus.  This sensibility was also fueled by the steady drumbeat of tech-utopians, who continue to promote the illusion that “the internet” somehow provides us with transparency as an alternative to trusting any experts who might actually know what they’re doing—a folly that is admittedly complicated now that we have an Executive who is eager to undermine expertise in every department.   Consequently, it has been interesting to see that many of the same people who thought Wikileaks was the panacea to conspiracy are now hoping against hope that the men and women in the intelligence community are doing their jobs despite assaults on their integrity coming from their own leadership.

In this context of not knowing whom to trust, Sifry is not entirely unfair to criticize the filmmakers’ apparent infatuation with Brittany Kiaser, the former Obama intern, who became a major Cambridge Analytica executive and then turned whistleblower against her colleagues.  And he is almost certainly justified in saying that, “[Kaiser] is not the first person to pump a small role in [Obama’s] campaign into a career-making calling card; Cambridge Analytica is not the first political technology vendor to made [sic] big, unproven claims about its abilities. But we live in the age of silicon snake oil.”

We do live in an age of silicon snake oil, but that fact alone is one reason Sifry misses the point of The Great Hack as both information and metaphor.  Even if Cambridge Analytica achieved a fraction of what is presented in the documentary, it would still be a major scandal and, perhaps most importantly, demonstrates why the sales-pitch that social media would promote better forms of democracy was the apotheosis of modern snake oil swindles—so beautifully wrapped in its shiny hubris that the hucksters believed it themselves.  And many still do.  

Metaphorically, Sifry is naïve to recommend dismissing Kaiser for her character flaws rather than identifying with her because of them.  After all, to the extent that her personal narrative is accurately portrayed in the documentary, it seems to me that her arc from progressive-minded idealist, to overpaid hack for a technology company doing very bad things, to sobered individual trying to remedy some of what she did wrong, does mirror the broader narrative we have been watching unfold with regard to Silicon Valley over the last two years.  And that is fundamentally what The Great Hack gets right.

The People the CASE Act Critics Don’t Want to Mention

“We are all authors now.”  This has long been a talking point of anti-copyright organizations.  I have credited it to Gigi Sohn, co-founder and former director of Public Knowledge because she kept tweeting it during House Judiciary Committee hearings on building copyright consensus in May 2013; but I don’t really know who said it first.  I only know that it’s a popular theme that may finally come around to bite the hands that tweet it.

Most of the time, my friends and I respond to this bumper-sticker phrase by criticizing the way in which it is false—namely that just because everyone posts stuff online, this does not make everyone authors of expressive works such that it demands a wholesale reversal of the way we think about copyright law.  In plain terms, just because 1.2 billion of us are all chattering, clicking, and sharing on Facebook and Twitter, this does not make the professional creator’s copyrights worth any less than they were before social platforms existed.

On the other hand, there is an extent to which that phrase has an element of truth to it.  Internet platforms and digital electronics have created opportunities for new kinds of authors, new forms of expression, and new avenues for entrepreneurism.  For several years, the copyright critics of the world have alluded generally to these new opportunities as a reason to prevent copyright enforcement online.  And they got away with this proposition by painting a false portrait of who copyright owners really are.

With well-funded resources to flood the blogosphere, the critics have bludgeoned the idea into peoples’ heads that the only copyright owners are either corporate entities or already-wealthy creators, who really should let small infringements go.  This false picture of the copyright-owner (and infringer) landscape has enabled entities like FFTF, EFF, and PK to use the kind of shorthand that is so effective on social media, sowing division between Creators and Users.  

But as these same digivangelists have preached in the past, many Users are Creators; and to the extent they’ve been right about that, a lot of those User/Creators are also—you got it—copyright owners.  What EFF, PK, FFTF et al are not telling these constituencies is that many of the “new” creators empowered by the internet may actually have a lot to gain from the copyright dispute tribunal that will be established by passage of the CASE Act. 

The popular YouTuber who has a clip appropriated by a commercial entity can avail himself of the Copyright Claims Board (CCB).  The budding cartoonist who is just building a following via Instagram—and who never thought about copyright until she saw one of her characters used without permission—can avail herself of the CCB.  The kitchen-table startup who makes unique products to sell on Etsy may find a remedy via the CCB. 

A key factor in this particular context is that many creators of these online works do not register copyrights, and often with good reason.  And while the CASE critics portray it as a negative that a rightsholder can initiate a claim via the CCB concurrent with filing a registration application, this is actually a significant advantage for the kind of entrepreneurial creators they claim to support. (See post here for more detailed explanation.) 

As the entrepreneurism fostered by the internet continues to grow, the “new” creators have started to discover what the “old” creators already knew—that if you make something cool, somebody will probably try to take it for themselves.  EFF, Public Knowledge, and Fight for the Future are probably hoping their creator constituents don’t notice this logical flaw in their campaign against the CASE Act.  But regardless of what they are thinking (or not thinking), the fact is many of you Users really are Creators and, therefore, copyright owners.  

And that brings me to a doozy of a point these critics REALLY don’t want to tell anyone.  Their favorite victims—the targets of misused DMCA takedown provision—will have an unprecedented remedy in the provisions of the CASE Act.  That’s right.  You might make a fair use of a work that is removed by DMCA; or have material taken down by a party misrepresenting itself as the rightsholder; or have commentary or parody removed for reasons that have nothing to do with copyright.  And now, instead of just being a statistic for the EFF to blog about, you can affordably pursue a claim against the party for misuse of DMCA via the CASE Act.  

Perhaps on this point most of all, the EFF, FFTF, PK would rather not talk about such pesky details because they might start to look as irrelevant to copyright policy as they are chronically dishonest about it.  Let’s face it.  For all the noise they make on subjects like wrongful DMCA takedown, what do they really do for any of those users other than capitalize on the problem as a way to maintain their own relevance and fundraising?  CASE Act provides an accessible, affordable remedy. And maybe that’s the thing the critics hate most of all.  

How to Avoid Copyright Infringement

After the CASE Act passed the Senate Judiciary Committee* on Thursday last week, the critics hit “Publish” on the blogs they had written with the intent to scare users—doubling down on the narrative that the Copyright Claims Board (CCB) for small claims will lead to a whirlwind of infringement judgments against ordinary and innocent users.  I and others have explained the many technical reasons why this allegation is unsupportable under the new statutes, but folks out there will still be frightened by blogs like the one from the oxymoronically-named Center for Democracy and Technology.  Stan Adams writes …

“You may be thinking, ‘I won’t infringe copyright, I’ll just make sure not to use any protected works.’ Here’s why that will not be as easy as you might think. First, copyright is automatic. This means that when someone snaps a new photo, they immediately hold the rights to it. If you found a photo or other work that you wanted to use, you would need to get permission from the rightsholder. In some cases, determining who to ask is relatively easy.”

Actually not infringing copyright is easier than Adams wants you to think.  Believe it or not, many of the most prolific authors and users of works since 1978 (when copyright became automatic) have been not infringing copyright rather effectively throughout their careers.  Not just the wealthy stars of the entertainment world, but regular middle-class creators (like the ones the CASE Act is designed to help) have been not infringing one another’s copyrights in the production and reproduction of millions of works.  How they achieve this miracle is really quite simple, and the basic steps are implicit in Adams’s paragraph above.  To avoid infringing copyrights, do the following:

Step 1:  Do not use work that is not yours.

Step 2:  If you want to use work that is not yours, do a little homework and make sure you have a plausible legal basis for using the work; or obtain a license for use of the work.

Step 3:  If you are unable or unwilling to make the effort in Step 2, return to Step 1.  

When the CDT, EFF, et al write posts like the one by Adams, there is a sleight of hand afoot (if you will).  He is purposely, albeit subtly, conflating the unintentional user (e.g. someone reposting a meme) with the intentional user (e.g. a blogger or commercial entity posting editorial or promotional material).  It is neither affordable, nor technically possible, under the CASE provisions for a small claimant to go after myriad unintentional users like re-tweeters et al.  But the intentional users, who will be the subjects of claims brought via the CCB, really can avoid infringing by following the basic guide above. 

Whether you are advertising a business, making a political statement, promoting an event, writing a blog, etc., the moment you consciously decide you want a photograph, illustration, video clip, or music to accompany the message, your responsibility to not infringe copyright is both reasonable and entirely achievable.  There are many low-cost options to avoid infringing copyright, including, in some cases, asking the copyright owner for permission to use the work.  I know.  It’s downright uncivilized.  Permission.

One reason these organizations get away with scaring people about CASE is that we have normalized copyright infringement (to say nothing of permission in other contexts) to the extent that infringement is portrayed as a form of civil disobedience rather than what it usually is—a complete lack of courtesy toward individual people.  Because what happens in real life is that some business owner, perhaps a local insurance broker, builds a web page for his company, and because the refrain grab it off the internet has been playing in his head since middle school, he does not stop to think that the photograph of the family buying a car requires a license for use.  

That is the kind of infringement CASE is designed to address for the independent creator; and frankly, the commercial infringer should be grateful for the small-claim option as well.  As we saw in Brammer v. Violent Hues, a commercial user who really should have known better wound up costing himself a lot of money in federal court defending an indefensible use of one man’s photograph.  That was an archetypal example of an intentional user hastily making use of a photo he “found online,” knowing full-well that he had other options, including lower-cost stock photos or taking his own picture.

Just because the internet makes copyright infringement a bit too easy, this does not mean that not infringing copyright is especially difficult.  And CASE does not change anything about the parameters of copyright law, except that it may perhaps remind certain users that, no, everything online is not there for taking.  If intentional users simply pause to think about what they are doing and to what purpose, making legal and/or fair uses of works is not so mysterious as Adams et al would have you believe.  After all, if you are building a web page, writing a blog, promoting an event, etc. and not thinking about what you’re doing, you may have bigger problems than potential copyright infringement.

The “wild west” is over.  Good riddance.

Beyond copyright matters, I believe the folks at these organizations mean well (mostly), but they should pause and think about their personal moral codes in context to the world view they keep promoting—because it is actually destroying the world.  The romance of the “wild west” internet is over, and good riddance because the Wild West is nothing to aspire to as a society.  Consequently, it is worth asking why the CDT, EFF, et al are still so eager to promote the illusory value of never thinking about what we do online or to whom we do it.

These groups tend to oppose both platform and user liability for almost any kind of conduct; but whose interests are really served by a free-for-all market devoid of human agency, permission, or responsibility?  As we see in daily examples, it is the perfect environment for entrenching the economic and political power of the major web platforms while safeguarding the conduct of predatory actors and trolls, and—I would add—amplifying hateful rhetoric with tangible and dire consequences.  I suppose Stan Adams’s organization could change its name to Center for Tyranny-of-the-Mob and Technology, but that’s a bit of a mouthful and probably not good messaging.  Yet, bizarrely, it is kinda what they are selling.  

*Original publication stated that CASE passed out of the Senate and not just the SJC. Thanks to reader Dave Davis for catching the error.

Photo by conejota.