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.

Counterfeits, Copyrights, and Digital Dysfunction

Now that the holiday shopping season is officially underway, it seems like a good time to talk about counterfeit products; and it may surprise some readers to know that consumers have almost no meaningful protection against the tens of thousands of counterfeiters operating online.  At best, a counterfeit product will merely be disappointing; at worst, it will set the house on fire or maim someone; but a recent copyright lawsuit filed against the service provider CloudFlare demonstrates just how insufficient the mechanisms for addressing this problem really are.  

Though the subject of this litigation is wedding dresses and other formalwear, keep in mind that it can just as easily be a product that plugs in, a medical device, or a child’s toy with toxic properties. 

Mon Cheri Bridals and Maggie Sottero Designs are suing CloudFlare for contributory copyright infringement pursuant to the platform’s failure to comply with the terms of the DMCA.  As designer/manufacturers of bridal and formalwear, the plaintiffs see their works copied all the time by China-based counterfeiters, who then sell the knockoffs via websites featuring the plaintiffs’ own marketing photographs.  

The photographs are copyrighted works, and so the plaintiffs have filed hundreds of DMCA takedown notices requesting removal of their images from the various sites engaged in marketing counterfeits of their products.  Then, because the target sites have–not surprisingly–refused to remove the photographs, plaintiffs allege that this makes them “repeat infringers,” which then implicates CloudFlare’s obligation under DMCA to terminate their accounts.  Because CloudFlare has not taken action to terminate these accounts, plaintiffs allege the platform is liable for contributory infringement.

CloudFlare is already a deeply problematic service provider—a prime example of everything wrong with the kind of internet idealism that has for too long tolerated (and even celebrated) companies that hold themselves above the law while protecting the identities and maintaining the operations of criminal enterprises.  As a favorite provider of anonymous hosting for major pirate sites like ThePirateBay, CloudFlare is probably only still in business because, as Devlin Hartline notes in this 2016 post, “the DMCA is such a mess.”  “Courts have set the bar so high that CloudFlare wouldn’t likely be found to have red flag knowledge of the massive amounts of infringement it certainly knows its service enables for globally-infamous criminal infringers…,” Hartline writes.

It’s bad enough for creators that the DMCA is woefully inadequate for mitigating online infringement where copyrighted works are the central subject of a complaint.  But in this case for Mon Cheri and Sottereo, the copyright infringement is, of course, ancillary to the larger crime of counterfeiting; and it is truly unfortunate that the DMCA is the plaintiffs’ best—let alone only—means of targeting these foreign-based websites used to hijack their enterprises and defraud consumers.

While the plaintiffs are certainly correct that their marketing photographs are protected by copyright and the counterfeiters’ infringing uses are properly the subject of DMCA, both legitimate product-makers and consumers deserve a more robust mechanism for protection from this kind of online predation.  

If your kid wound up playing with a toy that scalded her (or worse), you’d want the counterfeit website selling that product to be shut down.  End of discussion.  And the American-based hosting provider shrugging at you while taking the counterfeiters’ money would provoke a justifiable pitchfork-and-torch moment for parents everywhere.  The fact that the counterfeiters also happened to be infringing the photographic marketing materials of the real manufacturers would reasonably be viewed as secondary to the fact that consumers ended up with dangerous products in their homes.  And DMCA is no way to address that problem.

The DMCA is in serious need of overhaul, if it is ever going to meaningfully address online copyright infringement.  But a matter of even greater urgency is perhaps new legislation that can provide legitimate businesses with a reliable and expeditious means of shutting down websites that intentionally traffic in counterfeit goods.

On this topic, readers may not remember that the SOPA/PIPA bills included provisions designed to keep counterfeit products out of the military supply chain (so soldiers wouldn’t end up wearing fake kevlar or something);  and that proposed legislation still remains every fool’s battle cry for defending the alleged sovereignty of “the internet.”  Of course, “the internet” is not even a weak sovereign.  If you end up with a foreign-made, counterfeit product that rips you off or kills someone, the service provider that helped you buy that product is free to KNOWINGLY continue hosting the fraudulent website and respond with a smug grin while he cashes the counterfeiter’s check.   

As any regular reader knows, I have never understood believing the premise that the major internet companies are squarely on the side of the angels—that Facebook is an unqualified good for democracy, that YouTube is an unqualified good for artists, or that Amazon is an unqualified good for all commerce, etc.  Yet, despite mounting evidence that such generalizations are far from accurate, we are presently watching yet another variation of the anti-SOPA campaign play out in Europe over the proposed Article 13 legislation to mitigate copyright infringement on major platforms like YouTube.  As Neil Turkewitz writes in a recent post on the topic …

“They have enjoyed the freedom of wolves without regard to the safety of sheep, and are naturally opposed to the restraints imposed by fences. But our interdependence makes fences essential for the functioning of democratic societies. By eliminating fear, we create freedom and enable the pursuit of happiness.”

The time to correct this level of dysfunction is long past due.  Both of the current liability shields protecting online service providers—as established in Section 230 of the CDA and in Section 512 of the DMCA—were based on an assumption of good faith and good-samaritan behavior.  But CloudFlare is just one extreme example that demonstrates why this expectation of good faith is, and always was, utter folly.  Limiting the liability of these companies has made them arrogant, predatory, and ominously powerful with the amount of wealth and information they wield.  If there is profit to be found within legal loopholes, it is the rare exceptions whose personal ethics will forego such an opportunity.  It is time to start writing internet policy based on the rule rather than the exception.

See also Consumer Guide to Counterfeit and Copyright-Infrigement Free Holiday Shopping from Copyright Alliance.

Walt Whitman Championed Democracy and Fought for Copyright – Part II

(This post was first published as part of Copyright Alliance’s Secret History of Copyright Series)

“This copyright bill is the doing as we would be done by.” — Walt Whitman, 1891—

Upon passage of the international copyright law just about a year before his death, Walt Whitman’s comment (quoted in Part I) included this refrain of the Golden Rule, about which scholar Martin Buinicki, in his 2003 paper writes the following: “The somewhat grumpy pragmatism evident in Whitman’s ‘do unto others’ defense of his views is offset by the revelation that the international copyright law was more than a business matter for Whitman; it was ‘a question of honesty—of morals—of a literature, in fact.’” 

Despite America’s eventual leadership as a mass producer and exporter of creative works by the mid-20th century, the U.S. was remarkably slow to adopt international copyright agreements in contrast to European and other major trading partners.  Walt Whitman’s career coincided almost exactly with the roughly fifty-year interval between early debate on international copyright and ultimate ratification of the law; and in the same spirit in which Whitman answered Emerson’s call for a new—and intrinsically American—voice, he devoted that voice to the cause of copyright as in one editorial, written in 1846 for the Brooklyn Evening Star, which states…

“The writers of America are more miserably paid than their class are in any other part of the world.  And this will continue to be the case so long as we have no international copyright.  At this time there is hardly any encouragement at all for the literary profession in the way of book-writing.  Most of our authors are frittering away their brains for an occasional five dollar bill from the magazine publishers.”

For roughly a half century, while America’s trading partners adopted various international copyright agreements, the U.S. Congress remained persuaded by the independent publishers—this included printers, typefounders, bookbinders, et al—who argued that adoption of international copyright would result in large, eastern firms gaining monopoly control by virtue of their being the only entities with the resources and relationships necessary to obtain licenses for foreign manuscripts.

Thus, Buinicki sees as relevant Whitman’s dual role as both author and “defender of the artisan class.”  “Just as [Whitman] felt that American democracy could foster native authors even as it provided fair treatment for foreign authors, his publishing practices collapsed the kind of printer-author-publisher oppositions that remained at the center of the monopoly dispute,” writes Buinicki.  This refers to the fact that, as a staunch advocate of international copyright, Whitman also remained close to the independent printing industry, in which he had apprenticed years before becoming the author and poet we know today.

When he self-published Leaves of Grass in 1855, Whitman employed a small, independent firm and even helped set type for the first edition.  DIY in both spirit and practice long before that acronym existed, the views of America’s preeminent, democratic poet would offer little support to today’s digital-age pundits, who like to contrast—rather than correlate—the interests of independent artists with the purpose of copyright.

As Buinicki observes in his paper, Whitman’s advocacy of copyright was much broader than his own—or any other author’s—proximate financial needs; it envisioned a mature and holistic culture in which America should not merely strive for a place among the global anthology of creative works, but would be uniquely poised to lead in the production of culture.  He was one of many authors and artists (and not all of these were American), who believed instinctively that the brash, American experiment in republicanism—codifying the freedoms of speech, religion, and the press—implied an unprecedented opportunity for creative expression in Western culture.

It cannot be overstated that when Whitman began his career, the United States was still a stumbling, backwater nation in more ways than one.  The Revolution generation was just dying off, and the next wave, with a median age under 18, were just beginning to imagine how the principles enshrined in the Constitution might actually apply to people other than privileged, white men.  Against this backdrop, Buinicki places Whitman as a critic of America’s timidity in plodding toward adoption of international copyright, suggesting an unwillingness to compete with the more developed nations of the world.  Picking up on Whitman’s sentiments, Buinicki writes …

“The American bard does not thrive by squelching competition but by meeting it openly and generously. Monopoly, on the other hand, suggests selfishness, and its true evil is that, since it is paired with secrecy, it precludes fair and open participation, even if that participation comes in the form of market competition.”

Citing clear examples in both Whitman’s poetry and his correspondences with various publishers, Buinicki demonstrates how the author recognized that the true threat of monopoly lay in the capacity of the predatory entity to act in secret—to exploit without permission.  What mattered to Whitman—as it matters to nearly all creators today—was to be asked, and not exclusively for the purpose of payment.

For Whitman, who articulated, and insisted upon, a metaphysical connection linking himself, his work, and his readers, copyright was an extension of that nexus rather than a barrier to it.  While the modern copyright skeptic seeks to limit originality in the author by over-emphasizing the commons of creative consciousness, Whitman synthesized these forces in his poetry and his copyright advocacy.  “Whitman exploited all means available, including the legal means offered through copyright, to make each copy of the book embody the personal exchange he called for in his poetry,” Buinicki writes.

The passage of the international copyright law did not result in publishing monopolies, a reduction in authorship, or outsized costs to consumers. To the contrary, by ending the piratical American trade in foreign manuscripts, international copyright law had the predicted effect of stimulating investment in American authors, thus opening the door to the US not only out-producing most countries in creative authorship, but also to making creative work one of the nation’s most lucrative and most salutary exports.  Hence, Buinicki’s conclusion says it best …

“Whitman’s support for the passage of an international copyright law in the US … was more than a matter of simply protecting his business interests: it was inextricably linked to his idea of an equal, open, and connected democracy.”

So Long Facebook (Mostly)

At a recent gathering of college alumni, a friend asked, “Is it me, or are you less active on Facebook these days?”  He was right.  I have all but bailed on the platform.  As a practical matter, it was just becoming a big time-suck; and as we all know from experience, engaging via social media doesn’t only occupy the measurable time spent reading, lurking, or discussing, but rather its reverb continues well into our valuable subconscious time while our brains continue to mull, resolve, or curse the impressions and interactions we experienced hours, days, weeks, or even years ago.  (In my case, it’s a lot of cursing of late.)

With regard to politics (the primary substance of Facebook), I feel amply-enough supplied with reasons to be angry at the circus we politely call the Trump administration that I really don’t need a steady litany of memes to keep feeding me variations on that theme—to say nothing of the occasional false narratives.  Sure, one out of every 20 or so memes is funny or clever enough to share, but whatever.  When the anti-copyright nuts in Europe declared that Article 13 of the EU Directive would “end memes,” it was a lie; but it was also a provocation to which I think the only sane response is, Who gives a damn? 

The under-examined psychological effect of constantly absorbing millions of impressions is just one reason to reject the historic—and until recently, popular—premise that social media platforms represent some previously-untapped genius of the demos (a.k.a. the wisdom of crowds).  But it was upon this crumbling rock that the major internet companies built their church, evangelizing the message that everything online is speech and, therefore, whenever an iota of content is removed, an angel dies.

Of course, this was a double-lie.  Not only because the premise was flawed and plenty of online “content” is not protected speech (even by U.S. law), but because the major web corporations are demonstrably not the harbingers of nascent democracy in authoritarian nations or even the champions of these values in extant liberal democracies.  Facebook, Google, et al comply with censorship in foreign markets; and domestically, they manipulate, remove, or prioritize “information” in an ongoing effort to retain user attention for as long as possible—all in the service of advertising revenue.     

In an older post, I wrote that we are like ants in Zuckerberg’s farm, but that metaphor isn’t right because ant farms are not experimental.  They’re just a way for a kid to observe ants being ants; they do not inherently change ant behavior.  More accurately, as Facebook users, we are voluntary lab rats in a grand experiment whose effects are not fully understood, although it is at last being discussed that perhaps the heightened volume of ugliness in our contemporary politics has something to do with this relatively new means of “connecting” to one another.

Doc Film Exposes Facebook’s Underbelly

A new documentary film called The Cleaners, first aired on PBS this week, provides a glimpse into a truly dark component of Silicon Valley’s ebullient—and arrogant— posturing as global champions of freedom and smiley emojis.  Far from the comfort of your laptop, and even farther from the glossy playground of Facebook headquarters in Menlo Park, a young woman walks among the garbage scavengers in her squalid Manila and tells us that scavenging would be her fate, too, if she were not a Facebook moderator.  She is just one of hundreds of worker bees to whom Facebook has outsourced millions of decisions per week as to what should or should not be seen on its platform.  As NPR’s Ari Shapiro in a story about the film puts it …

“Manila [capital of the Philippines] was a place where the analog toxic waste was sent from the Western world, has been sent there for years on container ships. And today the digital garbage is brought there. Now thousands of young content moderators in air conditioned office towers are clicking through the infinity [sic] toxic sea of images and tons of intellectual junk.”

With assigned quotas to process 25,000 posts per day, these Filipino moderators represent the majority of Facebook’s outsourced workforce tasked with rejecting content that does not comply with “community standards.”  They review and remove the most depraved material—the murders, child rapes, and tortures that would otherwise seep into our relatively benign feeds.  “I have seen hundreds of beheadings,” says one young man who spends most of his time sifting through terrorist content like ISIS videos. 

The filmmakers Hans Block and Moritz Reiswieck, in just about an hour and twenty minutes, provide several points of view from which to consider this bleak cubicle of the world’s most populated social media platform.  Some of the moderators see themselves as crusaders, literally keeping “sin” off the web, with one young man comparing his mission to that of Philippine President Duterte’s alleged policy of slaughtering the nation’s drug addicts.  At the other extreme, some of the moderators suffer PTSD from chronic exposure to so many images of horror, leading to at least one suicide highlighted in the film.  

In one segment, former Googler Tristan Harris, now at the Center for Humane Design, describes how in Myanmar, Burma, “Facebook is their internet reality, and it’s literally feeding a genocide without any accountability.”  He explains how the circumscribed nature—the “walled garden”—of Facebook perpetuates hatred and violence against the Rohingya refugees in that nation as, perhaps, the most extreme example of what we comfortably refer to here as the “filter bubble.”  A self-fulfilling information feedback loop resulting in mass murder, torture, and rape. 

Harris says it is a misconception that these technologies are neutral at all.  The goal of their design is to grab and hold attention, “and outrage is really good at doing that,” he says.  “The whole environment is tuned to offer us the worst of ourselves.”  And though we are certainly not committing genocide in the U.S., it is impossible to believe that a much lighter version of this information “filter bubble” is not constituent to a bunch of idiot civilians loading up their weapons to confront the “invasion” of refugees heading toward the U.S. border from Central America. 

The Cleaners does an excellent job of balancing intersecting narratives—focusing at times on the individual moderators (arguably Silicon Valley’s version of foreign sweat-shop labor), and also on the broader subject of censorship and who is making these decisions.  For instance, the film briefly explores the social media excommunication of artist Illma Gore, who painted the “small penis” nude of Donald Trump that went mega-viral in February 2016.  (Gore was physically attacked by thuggish Trump supporters in L.A., and the image was the target of a wrongful use of the DMCA takedown process.)  

Technically a violation of Facebook’s terms of service and clearly offensive to many, Gore’s painting is also unquestionably artistic expression and undeniably protected speech in the United States.  So, if indeed a Filipino moderator made the decision to remove her image from the platform, as the film implies, that’s fine within the context of Facebook’s right to maintain its “community standards,” but we must then insist that these companies stop appealing to the First Amendment and pretending to be neutral providers of public fora.  

This is not to understate the reality that the current president overtly thrives on false narratives, but if the political stylings of Donald Trump appear to be an unprecedented shock to the system because they reject the norms of statesmanship, I recommend David Lowery’s latest post on The Trichordist reminding us how Silicon Valley giants, under the not so watchful eye of the Obama administration, managed to leverage “a strange mix of anti-establishment lefties, right libertarians, social progressives and lots and lots of corporate money,” into a coalition that fundamentally advocated the end of statehood itself.  Hence, the erosion of democratic principles as embodied in the Constitution hardly begins with Trump.  He has certainly exploited the hell out of this trend, but its origins may be found in the hippie/libertarian crucible of the internet industry.

More mundanely, for me personally, Illma Gore’s painting is also a pretty good example of why I can hardly look at Facebook anymore.  As I say, there are enough substantive, and very serious, reasons why I think everyone across the left-right spectrum should recoil at the politics of Donald Trump; and references to his alleged dick size are as counter-productive as they are obvious.   In this regard, a steady stream of non-informative, yet provocative, inputs has to have a psychological effect that is generally and collectively negative.  At the very least, it is exhausting and depressing. 

If the “cleaners” in Manila, suffer potent symptoms from exposure to high doses of truly hideous imagery, I suppose we must assume that a more subtle version of this psychosis occurs in our brains through low-dose exposure to the merely bad—or the misleading.  And so, as much as it can be fun to post comments (usually political) on Facebook and receive that little dopamine hit from “Likes” etc., I find it impossible to shed the awareness that, in very small way, I am playing the role of lab rat in an experiment that, from all available evidence, is not making the world better.

The problem is not how much or how little material is online—there are over two billion websites with trillions of files being constantly uploaded and removed every year—the problem is the distorted view of the world as seen through these mesmerizing kaleidoscopes of information.   And with that said, I shall publish this post and then, yes, share it via social media, including Facebook.  This irony is not only blatantly apparent, but it is the premise of a different discussion about the possible penalties for non-participation with social media platforms, which promote the active over the less active.  How this might affect market opportunities for people in the near future is a question worth asking, but in another post.

On related topics, see the cleverly titled blog The Illusion of Volition by Sarah T. Roberts, who also appears in The Cleaners.