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.

Mach (digital) Tuck?

Not long after I wrote a post suggesting there is little difference between naive human engagement and bot engagement on policy issues, a couple of things happened.  One was the publication of a story by Max Read in New York Magazine reporting that a substantial (though hardly surprising) amount of material and people on the internet are fake.  The other thing was a recent get-together with my best friend of 30 years, who told me that his eighth-grader son said he was worried that “Article 13 is going to destroy YouTube.”  Perhaps most tellingly, the kid complained to his father, “The [legislative] language is too vague!”

Now, I love my friend’s kids as I love my own, and I hope they and their contemporaries become engaged citizens as they grow up; but none of them is yet qualified to have an informed opinion about the precision, or lack thereof, in the language of bills proposed at the European Parliament or any other legislative body.  The broad irony here is hard to miss:  In contemporary, digitally-distracted America, we can only hope the next generation learns about the constitutional separation of powers and other rudimentary civics, while YouTube videos frighten them about “hazards” lurking in arcane proposals they cannot possibly have the background to understand.

This is no way to run a liberal democracy, yet my friend’s son in this scenario, to no fault of his own, has been turned into a bot.  Fortunately, his father doesn’t generally take the policy views of his children at face value, but you can bet that more than few parents are apt to be less attentive when it comes to some obscure (let alone European) bit of cyber-policy.  Their kids announce,  “Hey, XYZ will destroy the internet,” and the next day, a meme with the same message just happens to appear on Facebook, Mom or Dad shares it, and civilization is destroyed one guileless click at a time.  

Of course, it isn’t one click at a time.  It’s millions of clicks that, apropos the aforementioned New York article, do not even represent real people in many cases.  In fact, Max Read states, “Studies generally suggest that, year after year, less than 60 percent of web traffic is human; some years, according to some researchers, a healthy majority of it is bot.”  

If that statistic is off by even a wide margin, that is still a hell of a lot of bot, which leads me to the following question:  If we combine total bot + humans acting like bots + hackers & other disinformation brokers, how close are we to approaching maximum inescapable bullshit?  We might also add just plain bad reporting under brand names like this piece on forbes.com about Article 13, which refers to the non-existent “FAIR USE Act” — an error gross enough to disqualify the author from commenting on copyright law at all.  But here we are.

It was the same best friend mentioned above who, when we were college freshmen, taught me the aeronautical term mach tuck.  Put simply, this is a hazardous condition that occurs, usually in subsonic aircraft traveling faster than they’re supposed to, when the airflow over the wing nears, or even exceeds, Mach 1.  This causes the nose of the plane to pitch downward, and in an aircraft not designed to fly at or above the speed of sound, correction may not be possible.  Thus, the downward pitch naturally causes the plane to accelerate, which exacerbates the problem by increasing the windspeed over the top of the wing.  This vicious cycle called mach tuck can plunge the aircraft into an unrecoverable dive.  

Obviously, I took that aerodynamic detour to ask whether the “information age” has achieved—or could soon achieve—mach tuck?  Is the flow of garbage streaming so quickly, and accelerated by forces beyond our control, that we are about to enter—or are already in—an information nose dive from which we cannot recover?   

Optimistically, I don’t think so.  While it is not entirely clear that the pros of digital engagement sufficiently outweigh the cons, the pros are still evident and abundant.  No one can, or should, doubt that there is a wealth of useful, credentialed, instantly-accessible information online.  The challenge, though, is that the major social platforms—which happen to be owned by the wealthiest and most politically-influential corporations—distort information through a mosaic of visual stimuli that probably overpower critical thinking.  Assuming that’s true, things may be about to get worse before they get better.

I suspect 2019 will be the year a lot more people hear about “deepfakes,” a software developed by Google, which enables even a modestly-skilled individual to effectively “skin” any face onto any body in a video clip.  Both “deepfakes” and the more elaborate CGI capabilities of motion picture suppliers have raised new questions about publicity and a celebrities’ rights to control the use of their likenesses in mainstream fare.  And, yes, not at all surprisingly, the likenesses of popular actresses have indeed been grafted into pornographic scenes in which they did not appear.  

But while these issues for mainstream performing artists are debated as a matter of policy and contract law in the coming year, stay tuned for information warfare to get a lot uglier through the use of these technologies.  New darling Democrat Alexandria Ocasio-Cortez was throwing molotov cocktails at nuns?  Of course she was, here’s the video.  Is that Rep. Doug Collins giving a speech at a Nazi rally?  Roll that clip.  And all of it hosted on YouTube which doesn’t have to remove any of it because…free speech?  

The old cliché that “seeing is believing” has always been a duplicitous axiom.  Just about any major critic who has ever written about photography will tell you that seeing may result in believing but that this should not be confused with seeing the truth.  “…the camera’s rendering of reality must always hide more than it discloses,” wrote Susan Sontag in 1973, long before the technological capacity for amateurs to create realistic, moving pictures, depicting real people in scenes for which they were never present.

Of course, if fake video clips like I describe are deployed en masse, there is the possibility that this could trigger a healthy skepticism for believing what we see.  Presumably, this will depend on the degree of subtlety employed by the manipulators, and it is worth noting that the hackers at the St. Petersburg-based Internet Research Agency have been described as both subtle and sophisticated in their use of disinformation on social media. 

Of course, if rampant fake video were to induce new skepticism, this implies a potential  new hazard—that we no longer believe what is, in fact, true (i.e. mach tuck).   These are the kind of challenges that companies like Google should be helping to address instead of spending their vast resources to scare the kids about comparatively modest proposals like Article 13 in the EU Single Market Directive. 

The irony that these companies invoke free speech in their efforts to protect their own revenue could not be more pellucid as their platforms and policies literally help to unravel the very reason speech was a protected civil right in the first place—a hope among a handful of 18th century idealists that the electorate, while always debating what should be, might at least find common ground in what is.

Are You Having a Public Domain Party This Year?

Should auld creative works be forgot,
And never brought to mind?

There may be any number of reasons to feel anxious about the coming year, but at least we can take comfort in the fact that the song “Yes! We Have No Bananas” will be entering the public domain.  Sure, this may seem like clinging to a bit of floating timber immediately after a shipwreck in the middle of the Pacific Ocean, but one must hold onto hope where one can and start paddling.

I wish I could remember the right comedian to credit, but whoever it was, he made a joke that resonates this particular New Year’s Eve in context to the “big” copyright news of the day.  He said, “We should legalize pot just so all the stoners will shut up about it.” In sympathy with this comic’s weariness at repetitive zeal for small matters, I too am excited about tomorrow’s milestone in copyright history when, for the first time, works protected under the terms of the Copyright Term Extension Act (CTEA) of 1998 will enter the public domain.*  

To be sure, I am not excited the way the folks are at the Internet Archive, who will be co-hosting an event called The Grand Reopening of the Public Domain, where attendees can join special guests like Lawrence Lessig and Cory Doctorow to raise a glass and toast the arrival of works published in 1923 as though they have been missing for years. No. I’m excited about this particular copyright threshold because it just might be the day when the ebullient crusaders of the public domain will finally shut up about it. I mean I know they won’t, but one can dream. It is the New Year after all.

You see, for a very long time, many copyright critics have been insisting—in academic papers, in blogs, in tweets, etc.—that the production of new creative works depends on a “rich public domain,” and, therefore, the 1998 term extension has been depleting the common creative wellspring like a badly managed natural resource. Of course, this is the talking point when the subject is copyright’s term of protection; when the subject is enforcement against mass, online infringement, the response from many of the same people is that we are “enjoying more creative works than ever before.” This cognitive dissonance is never acknowledged.

The belief that 2019 marks anything other than a symbolic milestone for copyright critics to share a group high-five is based on the parlor trick that it is always easy to make predictions which nobody can effectively disprove. I have little doubt that, in years to come, someone somewhere will do something interesting with works from 1923, 24, 25, and so on, as works published in these years fall into the public domain; but at the same time, I also predict that there will be little measurable difference in overall creative output as a direct result of this much-celebrated threshold in copyright history.

I recognize that this prediction begs the question as to how one measures “creative output,” and that it wants classifications like professional vs. amateur, niche vs. popular, indie vs. industrial, etc. But by any metrics we might use, my skepticism is grounded in four simple, observable facts: 

  1. works protected by copyright are not inaccessible for consumers or new creators;
  2. most creators “build upon” existing works in ways that do not implicate copyright infringement in the first place;
  3. creative works have been produced for centuries, so the entire public domain universe is already much larger than the universe of works under copyright;
  4. with regard to general access, online piracy has forced so many works into an effective “public domain,” that it is absurd to argue that the copyright expiration on works published in 1923 represents significant, new opportunities of any real consequence.

None of what I say is meant to diminish the value of the public domain or to advocate perpetual copyright. But I do want to temper the excitement of the moment, which seems to imply that new possibilities for enlightenment and creativity are about to be unshackled from the bonds of darkness, ignorance, and greed. According to Wikipedia, the 1923 retail price for Agatha Christie’s Murder on the Links was $1.75 ($25.70 in 2018); and today, the Kindle versions of Christie novels average between $2-3, while libraries still provide books for free. So, copyright is doing what exactly to general access to these works?

Also, I see that the first of Charlie Chaplin’s feature films, A Woman of Paris, will fall into the public domain tomorrow. This brings to mind the day a few years ago when my teenager went to some school event dressed as Chaplin’s Little Tramp, and all her peers asked who she was supposed to be.  Assuming my kids’ school is a fair representative of “average” in America, it would appear that Chaplin’s Tramp, once the most recognized character in the world, may be lost to oblivion among contemporary adolescents.  

Assuming this is true, it cannot be explained by copyright terms. After all, every one of Chaplin’s shorter films, including his six-reeler The Kid, is in the public domain.  And doubtless many of these films are online, uploaded to YouTube and elsewhere. So what accounts for this gap in cultural literacy among my kids’ contemporaries? Several factors, I’m sure, not least of which is that they are consuming very different forms of culture (e.g., YouTubers sharing personal experiences) that are as alien to me as Chaplin is to them.  

Whether we can judge our kids’ cultural experiences to be qualitatively better or worse than our own experiences at the same age, I’ll bet anything that copyright terms will be a non-factor in any comparative analysis one might attempt. What we can know for sure is that the next generation of adults has more on-demand access to more content—through both legal and illegal channels—than any generation in the history of people; and yet, it is not entirely clear that they “know more” than their parents and grandparents.

Relatedly, I saw a classic example over the holiday of a case for perpetual copyright (at least rhetorically) in the form of a TV film adaptation of Oscar Wilde’s The Canterville Ghost.  It was a production so devoid of several major themes, or humor, present in the original story that Wilde himself would be forgiven for haunting the producers, to say nothing of legally stopping the project from being made. So, works falling into the public domain do not exclusively result in uses of great value. Had the same producers been required, by license, to be more respectful of the original work in the teleplay, the market value would be roughly the same, but the end product would likely be better.  

I acknowledge that everything I say here would still hold true if copyright terms were, say, twenty years shorter than they are today. I also believe that repositories like online archives are extraordinarily useful and understand why an archivist would want to make as many works available as soon as possible. But the general conclusion that “copyright terms are too long” is largely tautological, and individuals like Brewster Kahle of the Internet Archive are too eager to misrepresent copyright history and to attack the interests of living, working creators.    

The general message boils down to copyright terms are too long because they seem too long, even though nobody has yet demonstrated with any substantive data that the term of protection is having a negative effect on copyright’s original purpose to promote progress. Meanwhile, as explained many times, the CTEA was not some capricious, arbitrary term extension, but was effected in order to establish parity with trade partners in the EU and elsewhere so that American authors had the same benefits as their foreign counterparts.  

So, in response to all the hype about what will enter the public domain tomorrow, next year, and the years to follow, I believe this moment is a lot of ephemeral noise (i.e. an excuse for a party) that has scant relevance to the reasons why liberal democracies demand a rich, diverse anthology of informative and creative works in the first place. After all, one need only glance at the apparent success of toxic and fake content online to conclude that it takes much more than flooding the public domain with old works to foster enlightenment. And in that regard, the start of this post was unfair to the “stoners” because the arguments for legalizing marijuana actually had data behind them.

Wishing everyone—even the copyright critics out there—a happy and safe New Year. 

*  The CTEA established the current terms of copyright protection:  life-of-the-author, plus 70 years; or the shorter of 95 years from date of publication or 120 years from date of creation for works-made-for-hire. See statute.

Techdirt Dissembles on FOSTA in Rebuke of Kristof

In a recent post on Techdirt, Mike Masnick calls columnist Nicholas Kristof a hypocrite based on a narrative Masnick just plain made up.  On December 12, Kristof published a brief column in The New York Times with a picture of a 12-year-old girl who is starving to death as a victim of the US-backed, Saudi-Arabian war in Yemen.  The girl is naked but for a diaper and a bandage on her foot, and the image of her skeletal, wasting body is truly humbling, which is why Kristof says he devoted so much of the page to the image itself.  

After the story was posted on Facebook, the social platform apparently kept deleting the photograph, which prompted the following tweet from Kristof on December 16:

Facebook seems to have repeatedly blocked the photo of Abrar that went with my column:  Come on, Facebook! If you want to end these horrifying images of starving children in Yemen, then help end the U.S.-backed Saudi war that causes the starvation.

Kristof’s complaint was then seized upon by Masnick, who concocted a typically sarcastic “gotcha” on the premise that because Kristof backed the counter-sex-trafficking legislation known as FOSTA (Fight Online Sex Trafficking Act), he has no right to “whine” about Facebook removing this photo for its “sexual content.”  True to form, Masnick smugly alleges that Kristof knew nothing about how FOSTA worked, despite the fact that Masnick grotesquely misrepresents the law, as well as the nature of Facebook moderation, in his post.

Without even getting into FOSTA, anyone who has been on Facebook for the past decade or so knows that the platform has often removed images—even fine art—that some moderator believed violated its “community standards.”  Facebook has been making these, often laughable, mistakes since long before anyone introduced the legislation that became FOSTA and which passed into law in April of this year.  In fact, Masnick’s recent post cites one of his other posts from 2016 criticizing Facebook for censoring the iconic, Pulitzer Prize winning photo of the naked Vietnamese girl running from a napalm strike.  

Notably, the removal of that famous photograph was actually mentioned in the documentary The Cleaners, which I wrote about in November, and which profiles the Philippines-based  moderators to whom Facebook has outsourced most, if not all, of its “community standards” oversight.  The documentary reveals a melange of human fallibility in the decision-making behind content moderation, and Kristof’s photo might have been repeatedly removed for being “disturbing” rather than “sexual.” 

Regardless, the broader point is that millions of images a day are processed by these young moderators—and they are required to meet quotas—whose culture is not grounded in American principles of speech, press, etc., and it is almost impossible to generalize about their motivations and judgment calls.

At the same time, even if, in the most depraved imagination, someone could identify Kristof’s photo of this poor child as “sexual,” then it would simply violate child pornography laws, which predate FOSTA, predate Facebook, and even predate the birth of Mark Zuckerberg.  Yet, somehow The New York Times published the image, which nobody seems to have confused with pornographic exploitation.  All of which is to say that neither the Facebook moderation regime nor Kristof’s specific complaint about the photo, which no sane person could confuse as “sexual,” has anything to do with FOSTA.

As explained in several posts, what FOSTA does is affirm that no internet service provider is automatically immunized against criminal or civil allegations of contributing to sex-trafficking.  FOSTA does not mean that a plaintiff who brings a claim has any less burden to prove a platform’s culpability in that crime.  (Y’know, the way the law works.)  In fact, all one needs to do is look at the volume and nature of the evidence gathered against Backpage to see that proving a contributory role in sex-trafficking takes a hell of a lot more than hosting some “nudity.”

While it is possible that, in an abundance of caution after passage of FOSTA, attorneys at Facebook recommend simply removing anything that can even remotely be deemed “sexual,” it is also evident that the platform was generally doing this long before FOSTA.  Next, the platform will, and should, remove material that is patently child pornography.  And finally, the attorneys at Facebook are well aware that hosting content which may be used as evidence of “contributing to sex-trafficking” is a distinct and high bar for a would-be plaintiff to meet.

So, it is a leap and a half to allege that platforms are now over-censoring as a result of FOSTA, to say nothing of the current reality that Facebook has way bigger content moderation problems right now.  In this regard, I think the folks at Techdirt, and everyone else, ought to be more concerned that Facebook cannot seem to distinguish between a third-party like The New York Times and just some other account holder.

It ought to be a simple enough, internal practice to determine that if a mainstream news company—which is also not immunized against allegations of illegal conduct—can publish an image without legal jeopardy, then Facebook can safely host the same image.  Why this does not appear to be the case has everything to do with the platform’s overall management and nothing to do with FOSTA.  

I’ll leave it to the judgment of the reader to consider Masnick’s labeling Kristof as having a “savior complex” for his interest in starving children and trafficking victims.  But given the choice between a guy who wants to save kids and a guy who wants to save legal liability shields for mega-corporations, well, let’s just say Mike may not make the Nice list this Christmas.