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.

Moderation in all things. Except perhaps social media.

Is it just me, or have the digital rights folks lately shifted the narrative on the subject of platform responsibility and content moderation?  Where once they could be counted on to repeat the commandment Thou Shalt Not Touch Online Content, I perceive a more nuanced (sounding) agenda now recommending Best Practices for Touching Online Content If You Really Must.

For instance, in a blog post of April 29, Jillian C. York and Corynne McSherry of the Electronic Frontier Foundation declared that content moderation on social media platforms is broken, outlining four key reasons why various attempts to-date have been fraught with problems—all descriptions I would not quarrel with per se.  Neither would I disagree with the following statement they post beneath the headline No More Magical Thinking:

We shouldn’t look to Silicon Valley, or anyone else, to be international speech police for practical as much as political reasons. Content moderation is extremely difficult to get right, and at the scale at which some companies are operating, it may be impossible. As with any system of censorship, mistakes are inevitable.  As companies increasingly use artificial intelligence to flag or moderate content … we’re inevitably going to see more errors. 

It is hard to refute the premise that a platform will have a very hard time moderating content without error.  But I would also contend that those who believe that satisfactory moderation guidelines can be developed at all (moderation in moderation, as Wilde would say) are still engaged in magical thinking.  Let’s face it.  Even before we finish the thought, the process has already stalled.  Error according to who?  

I personally could not care less if Facebook tosses Alex Jones, Louis Farrakhan, and Milo Yiannapolis into the digital oubliette, but that decision was considered an egregious error by many—not only fans of one member of that bizarre triad, but speech rights advocates and those who recommend keeping hate-mongers and other extremists in plain sight under the theory that it is better to know thy enemy.  

Regardless, while it is very easy for many of us to say good riddance to certain types of high-profile provocateurs, it is a far more complex challenge to define broadly-applicable terms recommending exactly why an Alex Jones should be removed.  And Jones is relatively simple compared to more subtle examples of what might still be deemed toxic speech.  Even perhaps Milo. But picking up on EFF’s reference to “Silicon Valley or anyone else,” it seems that some parties believe they can be the “international speech police” as long as they really really care about speech.  

The Global Digital Policy Incubator at Stanford, along with the group ARTICLE 19, recently released a broad report describing a working meeting held in February to develop what the group calls Social Media Councils (SMCs).  Responding to concerns that the platform companies cannot be trusted to self-regulate, and government regulators are likely to overreact and be tainted by political agenda, SCMs would operate independently—at either at a regional, national, or international level—to draft universal guidelines for moderation and, potentially, function as an appeals body to adjudicate alleged errors in content removal.

While the report does acknowledge the scale, complexity, and cost of implementing SCMs, I think it woefully underestimates the ambition of the whole concept, which I would compare to establishing a UN for the internet.  While there are several moving parts to the proposal begging for comment, I will presume to jump to the conclusion that the market itself, for better or worse, will change long before SCMs can ever be implemented.  But even if SCMs could be created and develop useful guidelines, this would do nothing to mitigate the underlying challenge that social media helps to foster completely false narratives perpetuated by perfectly reasonable people.

Social media’s harm to liberal democracies does not end with the excision of the most extreme and obvious purveyors of hate speech and incitements to violence. The harm to done by social media and other platforms is much more subtle than that, and thoughtful, decent people are often the conduits–if for no other reason than the fact that every exchange, no matter how innocuous, teaches the algorithm how to market to someone. If that’s marketing a product, no big deal; if it’s marketing a false narrative about public policy, it’s a very big deal.

As I have repeated multiple times, what concerned me most about the anti-SOPA campaign of 2011/12 was not the copyright issue, but the staggering effectiveness of hyperbole and misinformation. “This could be any issue,” was my first thought at the time, and indeed, we have now seen some of the worst effects that data-driven misinformation has had democratic countries around the world. Yet, it seems as though the EFF, Article 19, et al, in their recent efforts to recommend guidelines for moderation, are still clinging to a general belief that social media has largely been a positive force for democratic values. Rebecca MacKinnon, Director of Ranking Digital Rights, states …

“While the internet and related technologies have indeed helped people circumvent traditional barriers to holding governments and powerful corporations accountable, they did not shatter as many walls as democracy and human rights activists once hoped and expected. Instead, daily headlines report how they make us vulnerable to mass surveillance, unaccountable censorship, disinformation, and viral hate speech that incites violence. Entirely new channels have been created for abusing power, in ways that we are still struggling to understand. In many places and on many issues, exercising and defending human rights has grown more difficult. “

I suspect that overall picture will not be improved simply by removing the Alex Joneses and terrorist recruiters from mainstream sites. Or for that matter by trying to mitigate erroneous removals of protected speech given that we’ve had about fifteen years of un-moderated social media, and it hasn’t done much good. Speaking personally, I have all but bailed from interacting on Facebook because I do not want to feed the machine any more data, though I do not imagine that tens of millions of people will suddenly feel the same. Short of that, it seems the only meaningful moderation has to come from users themselves. If social media platforms are going to remain filters of information and debate, then at least recognizing that they are opaque, manipulated, advertising and data-harvesting machines should foster a healthy skepticism. And that may prove more important than all the ambitious best-practices proposals any group can devise.

Public Knowledge wants to solve the misinformation problem? That’s adorable.

On Tuesday, Meredith Filak Rose of Public Knowledge posted a blog suggesting that a solution to rampant misinformation is to “bring libraries online.” Not surprisingly, she identifies copyright law as the barrier currently preventing access to quality information that could otherwise help solve the problem …

“High-quality, vetted, peer-reviewed secondary sources are, unfortunately, increasingly hard to come by, online or off. Scientific and medical research is frequently locked behind paywalls and in expensive journals; legal documents are stuck in the pay-per-page hell that is the PACER filing system; and digital-only information can be erased, placing it out of public reach for good (absent some industrious archivists).”

Really?  We’re just a few peer-reviewed papers away from addressing the social cancer of misinformation?  Back to that in a minute.  Because first, there’s a spit-take that needs cleaning up after reading that Public Knowledge??? Is weighing in on misinformation???  This is an organization that has recklessly spread nonsense of Augean proportions about copyright law.  See posts here, here, here, here, here, here, and here; or just read my last post citing PK’s Shiva Stella just plain making stuff up about the CASE Act.

The funny thing is that Rose does a pretty decent job of summing up how misinformation can be effectively deployed online, but her description could easily be the Public Knowledge Primer for Writing About Copyright Law:

Misinformation exploits this basic fact of human nature — that no one can be an expert in everything — by meeting people where they naturally are, and filling in the gaps in their knowledge with assertions that seem “plausible enough.” Sometimes, these assertions are misleading, false, or flatly self-serving.  In aggregate, these gap-fillers add up to construct a totally alternate reality whose politics, science, law, and history bear only a passing resemblance to our own.

Right. Kinda like when Stella alluded to the “secret entertainment industry” behind the development of the CASE legislation? Or when the organization claimed in August of 2018 that the “entertainment industry” was trying to sneak a copyright term extension into the NAFTA renegotiations? Those are indeed plausible tweets for anyone who is not expert in copyright law to believe—especially because it feeds what Alice Marwick calls as a “deep story” that behind every copyright policy initiative is a Hollywood bagman.  

Having said all that, Meredith Rose’s article does not say anything categorically false. It is a sincere editorial whose main flaw is that it is sincerely naïve.  “…in the absence of accessible, high-quality, primary source information, it’s next to impossible to convince people that what they’ve been told isn’t true,” she writes.  

Yeah. That psychological human frailty is not going to be cured by putting even more information online, regardless of how “good” it may be, or how copyright figures in the equation.  On the contrary, more information is exactly why we’re wandering in a landscape of free-range ignorance in the first place.  It’s why anti-vaxxers have grown in numbers and brought back the measles; it’s why climate-change deniers get to hold public office and reject scientific data; it’s why even the President of the United States can make public statements that are demonstrably false and tens of millions of citizens don’t give a damn.  There is more than sufficient freely-available, factual information online right now, all produced by professionals and experts on every subject under the sun, and yet this bounty has not mitigated the steady encroachment of flat-earth lunacy into the mainstream conversation.

Speaking as someone schooled in what we might call traditional liberal academia, I believe Rose reiterates a classically liberal, academic fallacy, which assumes that if just enough horses are led to just enough water, then reason based on empirical evidence will prevail over ignorance.  That’s not even true among the smartest horses who choose to drink. Humans tend to make decisions based on emotion more than information, and it is axiomatic that truthis in the eye of the beholder.

But if galloping bullshit is the disease, the catalyst causing it to spread is not copyright law keeping content off the internet, but the nature of the internet platforms themselves.  By democratizing information with a billion soapboxes it was inevitable that this would foster bespoke realities occupied by warrens of subcultures that inoculate themselves against counter-narratives (i.e. facts) with an assortment of talismanic phrases used to dismiss the peer-reviewed scientist, journalist, doctor, et al, as part of a conspiracy who “don’t want us to know the truth.” 

And let us not forget the extent to which the promotion of bullshit is big business.  Sure Cambridge Analytica made headlines.  But what about the friendly-looking spin-off from Open Media called New/Mode with its happy icons and upbeat mission statements about community and transparency? The cognitive dissonance needed to square those values with the deployment of “one-click calling” and “tweetstorms” is at the heart of the problem Rose and her friends at Public Knowledge are not just overlooking, but helping to foster.  

Social-media activism is designed to trigger the most Pavlovian of emotional responses and overwhelm reasoned debate with numbers.  Messages are simple and truth is rare, regardless of source or agenda. Reason cannot defeat such tactics.  We could upload all the well-founded science ever written, and it would barely be noticed in sea of hashtag nonsense many people would prefer to believe.  Public Knowledge knows this quite well, having availed itself of these tools and/or celebrated the efficacy of spreading misinformation—at least about copyright law. 

If Meredith Rose and her colleagues believe there are unreasonable copyright barriers to certain material, they should make that case on those merits alone and let others respond accordingly. Framing the topic as a broad solution to the effects of toxic and misleading content is too ambitious an overstatement for anybody to make, and far beyond the credibility of Public Knowledge to assert any authority.

Photo by cynoclub

CASE Act Introduced. Critics Spin Tales.

Last week, bills to create a new, small-claim copyright process were introduced in both the House and Senate.  Generally referred to by the House name the CASE Act, the proposed changes to Title 17 will establish a Copyright Claims Board (CCB) at the U.S. Copyright Office with the purpose of offering rights holders a path to remedy infringements without the high cost of federal litigation.  Both claimants and respondents may avail themselves of the tribunal procedures with or without counsel; and claimants may also initiate proceedings for alleged infringement of works that are not yet registered, although registration must be obtained prior to the Copyright Claims Board considering a proceeding “active.”

Organizations like Public Knowledge and the Electronic Frontier Foundation reveal their true colors when they criticize CASE, not least because the topic itself is just barely within the purview of either organization’s mission.  It is true that a lot of garden-variety infringement occurs online and that this is a significant motivation for creating a small-claim option, but that does not make the proposal a “digital rights” issue per se.  There is no “right” to infringe copyright on the internet, so it would be refreshingly honest if EFF and PK would simply declare their open hostility to any form of copyright enforcement and stop paying lip-service to “finding better remedies” …

“We acknowledge the very real problems faced by many artists trying to enforce their copyrights online, and are hopeful that collaboration among all stakeholders can create a meaningful solution. However, the current CASE Act is not it.”  – Public Knowledge –

That is a multi-layered lie.  Despite many opportunities to weigh in over the many years CASE has been in development, Public Knowledge declined to do so.  It is not a good-faith negotiator representing stakeholders, and it is frankly hard to imagine who those stakeholders might be other than the staff of Public Knowledge itself.  After all, opposing policy on shaky grounds is usually good for a few fund-raising dollars, which is why my favorite detail in their little missive is this one:  

“The Act further entrenches an already-toxic culture of secrecy within major entertainment industries….”  

I would love to know in what alternate Marvel Universe does anyone think the multi-billion-dollar “entertainment industry” has thrown its “secret” muscle behind a copyright small-claim provision.  The maximum penalty that can be awarded by the CCB would not cover the legal fees for discovery in the kind of cases typically litigated by the entertainment industry.  This bill has nothing to do with that world.  Quite the opposite.  It was proposed so that copyright owners who are not Disney, Sony, and Netflix can restore some meaning to their rights.

If nothing else, I’m personally sick of pavlovian politics, whether it’s a racist dog whistle or an overt use of buzzwords invoked with the aim of misinforming the public about an issue.  Public Knowledge’s attempt to scare people by falsely alleging that this bill is the handiwork of Hollywood lobbyists lurking in the dark corridors of Congress is a classic example of why those who claim to defend the “information age” are so often the best examples of why we should not.  

Meanwhile, any party who genuinely wants a “meaningful solution” to rampant, online copyright infringement should actually applaud the CASE proposal as a mechanism that directly engages rights holders and alleged infringers in a process that will educate both parties about the exclusive rights and limitations of copyright. 

While PK and EFF will continue to try to paint CASE as a damage-award processing unit for claimants alone, nothing could be further from the truth, starting with the fact that although pursuing a claim via the CCB will be much easier than traditional litigation, it will still be a moderate pain in the ass.  There is enough work that needs to be done—either by the copyright owner or an attorney—that no independent rights holder is going to devote time or resources to pursue a nothing claim. 

To the contrary, the most consistent complaints come from photographers whose images are used for commercial purposes without license; and many of these are the archetypal cases worth pursuing in a small-claim venue.  As described in this post, when photographer Jenna Close testified before the House Judiciary Committee in support of CASE, she identified eighteen unlicensed, commercial uses of her works being made at that time.  Depending on the nature of the uses and the licensing fee for each, that could be a photographer’s rent or insurance for a year.    

At the same time, the CCB procedure will also be beneficial for respondents (defendants), including those who infringe works either naively or willfully.  As discussed in this post about Brammer v. Violent Hues, that case looked to me like an ideal circumstance in which both parties would have benefitted by opting for the CCB rather than federal litigation.*  The conclusion would have been the same, but the penalty the infringer would have paid would very likely have been far less than the grand total he now owes after pursuing an ill-advised fair use defense all the way to the appellate court. 

CASE Is NOT a Copyright Troll’s Playground

“The CASE Act would give copyright trolls a faster, cheaper way of coercing Internet users to fork over cash “settlements,” bypassing the safeguards against abuse that federal judges have labored to create.”  – EFF, April 2018 –

That’s more or less the headline EFF et al have been using—alleging that CASE is a gift to copyright trolls.  Trolls are litigators who use false or otherwise improper claims to frighten accused infringers into settling threatened litigation.  They are a problem (albeit often exaggerated), and frankly the internet platforms have provided them with hunting grounds that nobody at EFF or PK is suggesting need to be shut down.  Meanwhile, the proposed Copyright Claims Board will be a terrible venue for copyright trolls.

For one thing, the CASE Act contains about page and half of anti-troll statutes—a safeguard that does not exist in any Article III court.  Parties bringing a claim for “harassing or other improper purpose, or without a reasonable basis in law or fact,” may be subject to a $5,000 penalty and/or barred from using the CCB for a year.  In addition to those barriers, the damages caps, along with the Register’s discretion to limit the number of cases a single party may bring in particular time-period make the small-claim tribunal a money-losing proposition for the would-be troll.  

Moreover, as proponents involved with the development of this bill have stated repeatedly, it is very hard to troll any party through a procedure that is VOLUNTARY.  The CCB is fundamentally an alternative dispute resolution option.  A respondent served with a claim may opt out within 60 days, and the CCB will dismiss the proceeding.  So again, not a very effective club for the troll to wield.    

So, I really don’t understand why organizations like EFF and PK believe this issue belongs in their wheelhouses in the first place.  Much like their dogged opposition to the Music Modernization Act—which had support from rights holders, tech platforms, and nearly all of Congress—it seems these organizations are just culturally opposed to the existence of copyright no matter what.   On the other hand, they make up so much crap about copyright, how would they really know?

*Admittedly, Violent Hues would have done better to just pay the fee originally demanded by Brammer.