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.

Internet Activists Clinging to Old Models in EU Copyright Fight

Last week was a rare, silent moment on this blog because I was in the middle of a rather arduous house move.  Consequently, I may be more than unusually prickly on the subject of holding onto old things, but it seems the last several days yielded a lot of internet activism aimed against the EU Copyright Directives, all of which seems to imply an unfathomable vote for the status quo.

Tomorrow (9/12), the European Parliament will vote on proposed copyright reforms as part of its Digital Single Market initiative. As happens with all proposals to improve the efficacy of copyright online, the familiar cadre of digital activists unleashed their weary-looking rhetorical hounds to frighten people into believing that the internet as we know it teeters at the edge of yet another existential cliff. That this strategy was effective five or six years ago was not terribly surprising, but the fact that there is no deviation from the digital activist’s hyperbolic narrative today is curious in light of the fact that more than a few of us in democratic nations have clued into a hard reality: the internet as we know it SUCKS.

I know. I’ve said it over and over. But seriously. The internet has hardly done democratic principles any favors. So why is anyone hell-bent on preserving the internet as-is for the sake of democratic principles? Or have I overlooked some nuance woven into the crazy-quilt of dysfunctional populism lately savaging common sense and decency throughout the Western world? As Stefan Herwig states in a recent guest post on The Trichordist …

“We urgently need a new Internet narrative that recognizes that access to information is only apparently free and socially useful while algorithms pre-sort our information horizon, equating popularity with relevance. The master algorithm popularity = relevance is deeply inscribed in the infrastructural DNA of the internet, steadily reprogramming our society. With the infiltration of such information services, that are targeted towards steadily confirming our opinions, serving our interests and networking us predominantly with like-minded people, we constantly lessen our societal abilities to differentiate and hold constructive discourses and heat up the growing disenchantment with politics and media.”

Thankfully, serious people are now willing to have a conversation about (rather than fawn over) the major internet platforms and their role in fostering so much political toxicity. Evan Osnos has published a new article for The New Yorker called “Ghost In The Machine: Can Mark Zuckerberg Fix Facebook Before It Breaks Democracy?” In it, he writes, “In Sri Lanka, after a Buddhist mob attacked Muslims this spring over a false rumor, a Presidential adviser told the Times, ‘The germs are ours, but Facebook is the wind.’”

That seems like an appropriate, tone-setting metaphor for a badly-needed fresh conversation about the responsibilities of internet platforms, who have long enjoyed a presumption of “neutrality” bolstered by legal frameworks that absolve ISPs of liability. Because, of course, these platforms are not the unmanageable wind; they are corporations directed by people to make profitable decisions.

As alluded to in this older post, if we’re ever going to find the right balance for internet governance overall, then copyright enforcement is a damn good place to start—particularly because mass copyright infringement was so intrinsic to the development of the “web as we know it.” Y’know, the one that sucks.

The irony, of course, is that with regard to the copyright proposals, the activists declaring that the internet needs saving (again) are not telling the truth about the actual proposals. And, well, there’s really no point in any of us fretting over predicted “censorship” if we’re going to believe opinion-makers who disseminate exaggerations and lies. The implication that, for instance, Article 13 of the EU proposal will end memes and remixes and ensure that no startup will enter the digital market should register as truly absurd as they sound. I mean without even looking into the details—because nobody does that anymore—do those claims even ring true to anyone willing to take a brief skeptical pause?

What’s being proposed in the EU is that the platforms, particularly major platforms, that host user-uploaded content might have to—get this—pay license fees to producers of that content and, further, that they might have to enable the content producers to have more control over how their works are exploited. Control over the use of works and financial compensation are two rather basic functions of copyright—principles that most people actually still support. And whether the EU gets these measures exactly right or not—because we are still years away from actual implementation of said proposals—there is something fundamentally wrong with people who seek to hijack the dialogue by screaming CENSORSHIP at the mere suggestion that perhaps the status quo isn’t working for everyone. Because it isn’t.

Finally, I have to agree with author John Degen, who posted his thoughts today on Medium after attempting dialogue with one notable critic on Twitter. “What struck me about the response yesterday was not the volume or the vehemence,” writes Degen, “It was the abject negativity and pessimism that was being expressed about the future of the internet and the possibility of innovation away from the state of things as they are.”

What that reminds me of is the “debate” over climate change. Whenever the answer came back that we can never mitigate carbon output without destroying the economy, I always considered this to be a needlessly fatalistic response. I mean all of human progress hinges on the attitude that we can’t do that thing…yet.

So, I agree with Degen that we can and should imagine an internet marketplace that treats artists and creators of works fairly, if for no other reason than everyone else in the world is now too dependent upon the network to simply leave it to ISPs to look out for our interests as they see fit. The EU Copyright Directive is a baby step toward platform responsibility; and those who oppose it so vehemently at this stage of the process clearly cannot fathom the internet ever changing into anything other than what it is right now. They are clinging to old models.

UPDATE:  The proposals passed this morning with a vote of 438 to 226 and 39 abstentions.  Hardly the end of the story.  Stay tuned.

Mousetrap: The Copyright Deep Story Behind Today’s Lies

It seems that after Public Knowledge came out, guns blazing, and just plain making things up about copyright extensions in the new round of NAFTA negotiations, they and their supporters tried to tiptoe these statements back on Twitter by blaming the USTR for its lack of clarity. While I have little doubt that such vagueness is present—certainly if the USTR’s own press release is any indication—this does not excuse manufacturing a story and blasting it all over the internet, not least because a moment’s thought was all PK needed to conclude that what they were about to say probably wasn’t true. But once these things are on the internet and spread, well…what was never true in the morning will be true in many minds by five o’clock.

There are only two explanations for someone perpetrating an outright lie: ignorance or corruption. Either one is innocently misinformed and, therefore, unqualified to speak on the given subject; or one is purposely spreading falsehoods and, therefore, undeserving of anyone’s trust. And I suppose we have to acknowledge a hybrid of the two whereby one becomes so entrenched in an ideology (e.g. an anti-copyright agenda) that one remains willfully ignorant in order to feel less corrupt while spreading lies.

And that little sermon brings us to the tweet posted by Public Knowledge’s Senior Vice President Harold Feld, originally written to draw reader attention to the organization’s memo about the invented copyright extension in new NAFTA …

 

This is a fine example of a “deep story” as described by Alice Marwick in her paper about why we share fake news. For some Americans, their deep story is that immigrants are destroying the nation; for others, it’s a vast Jewish conspiracy; for many, it’s that vaccines cause autism; and for the anti-copyright zealot, it’s that Mickey Mouse has long been the primary (if not the sole) reason for term extensions in American copyright law. And because this is a deep story with roots in millions of minds, I’m not calling out Feld personally so much as by example; only he knows whether his tweet is more a manifestation of ignorance or corruption.

So, once again, I feel compelled to clarify a salient point about copyright history; and I apologize if this gets a little technical and arcane, but here it goes: Mickey Mouse had sweet fuck all to do with the current U.S. copyright term.

That’s not an opinion or a counter-narrative or an alternative fact. The Mouse story, while plausible and attractive to many, just ain’t so; and no self-respecting copyright scholar would allow it to be repeated as “history” because they know that the development of copyright term length dates back at least 160 years before Mickey first appeared on screen. Here’s a synopsis …

In Millar v. Taylor (1769), the English court held that a perpetual copyright existed at common law until statutory copyright—the Statute of Anne ratified in 1710—placed a limit (albeit a necessary one) on the duration of the term. By the late 1830s, France already had a posthumous term based on life of the author plus ten years; and England began debating a similar regime predicated on a bill that would have extended the term to life of the author plus 60 years. A version of that bill passed in 1842 with a term of life of the author plus seven years, or 42 years, whichever was the longer.

With the Berne Convention treaty of 1886, England, France, and other signatory nations much smaller than the U.S. continued to extend terms, eventually mandating life of the author plus 50 in 1948. Meanwhile, throughout the 19th century, the United States dragged its feet for about sixty years in ratifying any kind of international copyright law (doing so in 1891) and only codified a life-of-the-author-plus-50 regime in the 1976 Copyright Act—nearly 70 years after those terms were first adopted on a voluntary basis in Berne.

When the U.S. finally joined Berne in 1989 (103 years after its origination), this was just in time to play catch-up once again as Europe was about to coalesce into the EU in 1992. The European Parliament settled on a term of life of the author plus 70 years, thus providing grounds for the Copyright Term Extension Act of 1998, which amended the 1976 law to conform to the terms adopted by the EU and other key trading nations.

That’s a digest version of term length and how it got that way, but suffice to say that Mickey Mouse’s debut performance in Steamboat Willie in 1928 is not even a footnote in the evolution of widely-adopted, international copyright terms to which the U.S. eventually had to adhere if it wanted to join various trade agreements with some of its most important partners.

People are entitled to argue that copyright terms are too long, which is a perfectly valid topic for discussion and debate. But they are not entitled—least of all under the banner of a public-serving organization—to perpetuate conspiratorial nonsense in order to score symbolic social-media “wins” rather than provide substantive contributions. We have enough of the former in our current politics, and if that’s all the folks at Public Knowledge can bring to the table, then they don’t deserve a seat—either because they are unqualified or because they are dishonest.

Also see Brief History of US Copyright Terms at Copyhype.

Public Knowledge Twaddles Re. NAFTA Negotiations

Back in May, I reported that Cory Doctorow, “writing” for Boing Boing, literally invented a legislative process out of whole cloth in order to portray the CLASSICS Act as an 11th-hour bill written by Senator Orin Hatch. (Not even close.) But not wanting to be outdone in the dissemination of drivel, the group Public Knowledge bested Doctorow yesterday with a post headlined Public Knowledge Responds to President Trump’s Outrageous Copyright Giveaway, in which they claim that the tentatively renegotiated NAFTA with Mexico would add another five years to the U.S. copyright term, resulting in life of the author plus 75 years.

Most egregiously, PK cites itself as a source (i.e. its own Global Policy director Gus Rossi) to sate, “The inclusion of a copyright term extension in the trade agreement announced today is a staggeringly brazen attempt by the entertainment industries to launder unpopular policies through international agreements.”

That is a brazenly false statement. Not only is there no evidence to support the claim that the “entertainment industries” are pulling strings in this NAFTA reneg; if indeed they were, they’re doing a lousy job of obtaining a copyright term extension because the USTR has not agreed to anything of the kind. Near as anyone can tell, this Public Knowledge outburst, claiming that NAFTA 2.0 would add five years to the copyright term is the following hobbledehoy sentence from a USTR press release:

• Extend the minimum copyright term to 75 years for works like song performances and ensure that works such as digital music, movies, and books can be protected through current technologies such as technological protection measures and rights management information. 

Albeit a woefully vague statement, it does not say anything about “life of the author,” can best be interpreted to imply a flat term of 75 years for sound recordings, and would, therefore, not be an extension of anything in U.S. law. In fact, 75 years would comport to Mexico’s term for sound recordings (and other works), which is 20 years shorter than the U.S. term for works without authors (e.g. works made for hire).

With regard to Rossi’s allegation of “laundering policies” through Fair Trade Agreements (FTAs), this is a false representation of the actual procedure. The USTR does not have the authority to “sneak” a revision of any U.S. statute by means of an FTA. Ratifying trade agreements requires a legislative process in order to ensure that their provisions either conform to existing law or that existing law may be appropriately amended through debate and public disclosure. In other words, Public Knowledge has plenty of time to get its facts straight before spinning tales, let alone noisy ones that seek to leverage Trump criticism as a means to vilify copyright law.

An organization cannot call itself a public-service while lying to the public—perhaps least of all when the word “knowledge” is part of that organization’s name. We are already swimming in a sea of bad information, barfed up in glib, thoughtless tweets—I propose to call this twaddling from now on—and it is no less destructive to the Republic when so-called progressive organizations dissemble than when any other party does it. Public Knowledge’s track record in this regard leaves much to be desired.