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.

Whatever the Response to the Facebook Fallout, Don’t Blame Copyright

Attorney and journalist Charles J. Glasser published an editorial  in The Daily Caller titled: Mind Manipulation? No, Censorship By Copyright is The REAL Threat to Elections.

The irony of that misleading headline, which does not truly reflect the substance of Glasser’s article, is that it reinforces a general bias about copyright (i.e. that it is censorship) for the simple reason that many people will not read past the headline itself. Thus, even before we get to the article, Glasser has, ironically enough, proven that the “mind manipulation” issue (though I wouldn’t call it that) is a legitimate problem.  He believes otherwise, stating …

“I have serious doubts about the veracity about “mind control” conspiracies favored by the progressive left that assumes Americans are not autonomous actors or are in fact stupid, gullible hicks who simply can’t be trusted to think for themselves.”

I’ve expressed a similar sentiment on this blog but take a different view that people across the political spectrum are both autonomous actors and stupid, gullible, hicks who can’t be trusted to think for themselves because everybody is, to some degree, susceptible to impressions made by words and pictures. If this were not the case, advertising simply would not work. But it does.

This susceptibility has nothing to do with intelligence, but it is a more relevant subject now that we acquire news and commentary via social media. We simply cannot read every article shared by every one of our friends, or we would never do anything else. Nevertheless, all those headlines and photos do leave impressions—even subconscious ones that function exactly like advertising. This is one reason why I think Glasser is wrong to outright dismiss the conversation finally being had about “manipulation” via social media—even if there were no party actively seeking to manipulate.

Meanwhile, his headline, feeding the false narrative–perhaps inadvertently–that copyright equals censorship, is a bit overwrought given the article’s central complaint. Glasser asserts that various parties are abusing the DMCA takedown provision for the purpose of censorship, and, in turn, this censorship is skewing the democratic process. Not helping the article’s credibility is the quote from Elliot Harmon of the EFF as stating, “…without fair use protections, people and companies in the public eye could use copyright law to ban coverage that’s critical of them.”

That’s overstating the relationship between criticism and fair use just a tad since a whole universe of criticism exists without appropriating copyrighted works.  In fact, I would argue the most important political criticism — thoughtful, researched editorials about candidates or policies — often don’t rely on fair use at all.  What does rely on fair use are the political ads to which Glasser refers in his article; and while it is perhaps inappropriate that these were removed, political ads are hardly the thinking American’s medium of choice.

Without unpacking each of the examples to which Glasser alludes, we can stipulate that various parties do use, or try to use, DMCA takedown as a means to silence opposition or criticism; and he fairly calls the practice a “pox on both houses,” meaning the left and the right. But I would offer a few caveats about this article.

First, because DMCA is an extra-judicial, sometimes automated, process, it’s going to be misused—either purposely or by accident—by rights holders, by non-rights holders, by users, and by platform owners. It is a 1998 remedy for copyright infringement and OSP liability that, at best, cannot truly respond to the scope of the contemporary internet. It is a unique sub-category of copyright law with its own complex narrative, and Glasser seems to be cherry-picking a small portion of that narrative to justify an article that lodges various unrelated complaints.  He also fails to mention the DMCA counter-notice procedure for restoring material and the fact that there is a path of legal remedy for abuse of DMCA.

Next, Glasser seems to have a personal or political beef with the current response to these data-mining revelations that, whether he’s right or wrong, should not be misdirected as an attack on copyright law. He writes …

“The panic about data-mining is driven largely by the paternalistic, if not authoritarian view that ‘only the right people’ should determine what is read and heard, because after all, those ‘bitter clingers’ are too stupid to have a voice.”

Responding as someone who criticizes ‘bitter clingers’ on the left and the right, I fail to see how this accusation does not imply a much bigger debate that has nothing to do with copyright. It seems that DMCA is being made into a  scapegoat in this regard, which brings me to the most substantive point.

In a society now brimming with equal parts journalism and gibberish, we would need a much larger data set than a few anecdotes to conclude that censorship by DMCA is both rampant and measurably effective in what I will generously call our current “political process.” In fact, Glasser’s own skepticism about data-mining manipulation should also serve to mollify his stated concerns about censorship via DMCA because I strongly suspect that incidents of abuse represent a drop in the bucket among the trillions of information exchanges occurring every day. And if Americans are indeed autonomous actors who can think for themselves, this should counterbalance the silence of a few deleted political ads as easily as Glasser suggests it would counterbalance the alleged “mind control.”  So, whatever he’s truly criticizing, I don’t think it’s copyright.

YouTube Bans Gun Videos. Raises Difficult Questions.

While Austin, TX was still searching for its serial bomber, various guests on CNN were of course speculating about the assailant’s level of expertise (perhaps even formal training) due to the technical sophistication of some of the explosive devices. Cynically, I thought, “Or he has YouTube.”

For years, the internet industry, led by the major platforms, has invoked free speech as a rationale for taking a hands-off approach to the content on their sites. This has included content that is intrinsically illegal, like copyright infringing material, or content that fosters criminal activity, like demos in computer hacking, terrorist propaganda, or drug-trafficking.

Beginning with the advertisers drawing a line in the sand in early 2016, economic pressure to clean up the platforms collided a year later with political pressure as both citizens and lawmakers finally decided that the major sites can be held at least somewhat responsible for the user-generated content (UGC) on their sites. And it turns out that under all this pressure, the companies seem to be discovering capabilities they previously claimed were untenable—though it remains to be seen whether they will make decisions that are both coherent and socially beneficial.

This past week, YouTube announced that it would remove and/or bar certain firearm-related videos, which will, no doubt, be welcome news for many Americans as the groundswell demanding better gun-control gains momentum due largely to the energy of the Parkland students. But my friend and colleague, Devlin Hartline at the Center for the Protection of Intellectual Property, was quick to notice a hypocrisy in YouTube’s decision—namely, that the company would be banning at least some videos that are neither illegal nor promoting illegal activity, even implicating two constitutional rights at the same time. Here’s his tweet:

Writing as someone who is hostile toward Second Amendment maximalism, I also cannot dispute Hartline’s observation, especially as a colleague who is likewise opposed to sites still monetizing outright illegal and highly-toxic content under a blanket claim of platform neutrality. But I want to look past the complexly-heated gun issue—and even the copyright issue—to consider how this recent decision by YouTube highlights the mercurial nature of the major sites, and how this frustrates efforts toward a coherent cyber policy.

The Chameleon Sites

The major UGC platforms—e.g. Google, YouTube, Facebook, Twitter, Reddit—are chameleons with at least three bold colors, “Community,” “Commons,” and “Brand”; and one diluted color, “Corporation.” For the sake of simplicity, I’ll define these terms as follows:

Community

As private entities comparable to physical retail environments, these sites are entitled to foster any environment they want—gun-free or panda free, if they choose—and users will either join and access the platform or they won’t. In this market-based context, the website is serving as a “Community” and owes no fealty to free speech or most other constitutional rights.

Commons

Although none of these sites is a public entity, there is arguably an extent to which a limited number of platforms have become the primary public fora for communication, news, exchange of ideas and information, and commerce. As a result, the notion that these sites represent a “Commons” has long been supported by user sentiment. But this sensibility has allowed the platform owners to appeal to the first amendment as a rationale for taking almost no responsibility for managing content, including some of the paid advertising.

Brand

Presumably, YouTube’s recent gun-video ban is an example of a PR decision in which the company has decided (correctly or not) that being on the wrong side of the current trend is bad for the “Brand.” This type of decision corresponds to the “Community” model but is anathema to the “Commons” model.

Corporation

I refer to this as a diluted color because too often, we have a habit of ignoring it, of talking about “our internet” as though that notion is coextensive to the business interests of Google et al. Meanwhile, many of the invisible decisions—like Facebook authorizing a developer who ends up abusing our data—are profit-based, “Corporation” decisions that are presented to users as supporting either the “Community” or the “Commons.” (Think “fun” personality quiz you share with friends but which is actually mining your data in order to manipulate your political views.)

Rethinking Liability & Responsibility

The two statutory liability protections written in the late 1990s—Section 230 of the CDA, and Section 512 of the DMCA—were not intended to foster a “Commons” model per se. They were simply meant to shield as-yet undefined platforms from liability for the unlawful conduct of as-yet undefined types of users. But because certain major platforms today have qualities akin to a “Commons,” those liability protections are easily conflated with the speech rights of users, which galvanizes the liability shields in a manner that allows these sites to have it both ways—to monetize everything as private entities while appealing to the illusion that they are public entities.

Further exacerbating the semantic confusion, “the internet” is usually described as a single entity from a policy perspective. This has allowed the biggest, wealthiest, and most technologically capable providers to entrench a non-liability paradigm by rhetorically citing the interests of independent, small, and start-up enterprises. This is an unreasonable analysis when the total number of major platforms—the ones that could arguably be considered a “Commons”—is just a handful of entities in contrast to the roughly one-billion sites online.

Historically, those of us in the copyright fight have watched the big platforms color-shift between the rhetoric of “Community” and the rhetoric of “Commons,” depending on which identity best serves their interests in the moment. So, if new federally-mandated guidelines are called for in the wake of all the Facebook fallout—and this seems quite possible—perhaps one starting point is to address the “Community/Commons” dichotomy. Because it seems to me that new policies need not address the entire internet, when perhaps fewer than a dozen sites can reasonably be described as semi-public.

The Challenge of Semi-Public Spaces

Hartline is a law and policy expert who knows full well that YouTube doesn’t actually have to answer to the First or Second Amendment, but his response to the new gun-video ban is reflective of how most users tend to feel if otherwise legal material they post online is removed. If I post a link to this blog on Facebook, and it’s removed, I can’t sue the company for speech infringement, but that doesn’t mean my speech would not be infringed solely because Facebook owns so much of the market of potential readers.

At the same time, I would not necessarily know if the removal was done to serve “Community,” “Brand,” or “Corporation,” but for sure, the removal would belie any pretense that the platform is a “Commons.” Conversely, the more a platform like Facebook chips away at the illusion that it is a “Commons” (i.e. controls more content), the more people are likely to abandon the site in a massive self-fulfilling prophecy, taking “Community,” “Brand,” and “Corporation” down into the oubliette with MySpace.

We have to acknowledge that there truly is no historic precedent for so profound a merger of public and private interests as these particular platforms. There is some case law precedent in the analog world in which private property functions as public space and, thus, courts have limited an owners’ ability to prohibit speech. The shopping mall naturally comes to mind, but neither a mall nor any other semi-public, physical space was designed with the purpose of hosting expression, let alone the expression of millions of people in the same venue.

Addressing the “Commons/Community” dichotomy could help contextualize the intent of the existing statutory framework on site liability, which over-broadly lumps “the web” into one big policy bucket. Gaps in the legislative language have too-often allowed the major sites with the most public influence to behave as chameleons in both the courts and the court of public opinion. Thus, the major platforms have a history of rejecting and criticizing even statutorily-mandated systems to mitigate abuse—all in the name of protecting user speech, which they are not in fact obligated to protect.

So, regardless of individual views about guns and gun control, Hartline is correct to observe that this latest decision by YouTube reveals that our social and legal relationship to the major platforms remains bipolar at best. Hence, before any reasonable policy changes can emerge, it seems like the next step is to define the terms that more-accurately describe the web we have instead of the web we expected some twenty years ago.

ADDENDUM:  At the moment of publication, a colleague sent a link to this article by Eriq Gardner at Hollywood Reporter.  Court holds that YouTube is not a public forum, which it isn’t.  But that doesn’t wholly satisfy the challenge.

Facebook, Cambridge Analytica, & Our Digital Dysfunction

In late November of 2011, one of the hottest-trending, internet-related topics was the campaign to stop the SOPA/PIPA bills. In early/mid 2017, the noisiest issue was “net neutrality,” as FCC Chairman Pai made good on his promise to reverse the 2015 Open Internet Order. In both cases, the public was served volumes of emotional hyperbole, created by vested interests, used to sell variations on the theme that democracy itself was under attack. Meanwhile, our democracy was under attack, just not in a way that anybody seemed to care about very much in contrast to issues that, ironically enough, only exacerbated the underlying problem.

At roughly the same time that “digital rights” organizations—EFF, Fight for the Future, Public Knowledge, et al—began amping up the anti-SOPA rhetoric, convincing Americans that Hollywood was determined to “break the internet and stifle free speech,” Facebook was signing a consent decree with the Federal Trade Commission after the agency charged the company with deceiving “consumers by telling them they could keep their information on Facebook private, and then repeatedly allowing it to be shared and made public.”

As Wall Street eagerly anticipated the platform’s IPO, Facebook entered into the FTC agreement, which barred the company from certain privacy-breaching conduct and mandated a 20-year regime of third-party, privacy audits for compliance. But last weekend, The Guardian revealed whistleblower Christopher Wylie, a former Cambridge Analytica employee, who says he helped build a “propaganda machine” based on the data of at least 50-million American Facebook users. In response, the FTC is now investigating whether the social media platform violated that 2011 consent decree. If so, the penalty—on paper anyway—would be $40,000 times 50 million.

While nobody expects a two-trillion-dollar fine at the end of this process, the social media giant has a lot of explaining to do, and Senator’s Amy Klobuchar (D-MN) and John Kennedy (R-LA) have called for Mark Zuckerberg to personally testify before Congress. It’s going to be tense for whoever takes that seat, just based on the testimony of former Facebook operations manager Sandy Parakilas, who has spoken to The Guardian, NPR, and others. He describes an internal policy of Facebook executives choosing to not know how their data is used after being shared with developers. Parakilas even alleges the rationale that “Facebook [believed] it was in a stronger legal position if it didn’t know about the abuse that was happening.”

That’s a familiar refrain for anyone who’s been banging a head against this bulwark excuse for everything from copyright infringement to sex-trafficking—the holy trinity of internet platform defenses: We didn’t know. We can’t know. We shouldn’t know. Unfortunately for Facebook and other major platforms, what Parakilas alleges in the press is called willful blindness, which is the legal equivalent of knowing exactly what’s going on while pretending you don’t.

It is at least encouraging that the conversation is finally changing. Less than two years ago, it was tough to get much attention for a post describing how a statutory liability shield like Section 230 mutated into a presumed blanket immunity from responsibility for everything that happens on a platform. This morning, that exact narrative was a lead story on NPR in which Alina Selyukh steps listeners through the narrative, from the rationale for the statute in 1996, right up to the only amendment to the law (FOSTA), proposed in response to its misapplication as “a teflon shield” immunizing Backpage for its alleged role in promoting child sex-trafficking.

During the five years between the Facebook/FTC consent agreement and the election of 2016, the narrative persisted that an “open” internet was inherently a democracy-sustaining internet. The problem was that what “open” really meant to the major platform companies was permission to do pretty much whatever the hell they wanted. And they did.

The reason I bracketed the start of this post with the anti-SOPA campaign and the “net neturality” kerfuffle is to make the point that when it comes to cyber policy, we have consistently been instructed by the industry itself to look at the wrong issues. For instance, SOPA would have had zero negative effect on speech; and the “net neutrality” issue was entirely irrelevant to the Cambridge Analytica story, which represents a very real, cyber-age threat to the health of the Republic. If anything, these revelations demonstrate why the FTC’s authority over edge providers like Facebook and Google is far more urgent than the matter of placing ISPs under the regulatory framework of the FCC.

I’ve been strident, to say the least, in denouncing organizations like the Electronic Frontier Foundation for presuming to rally the free speech right in defense of an almost-universal, zero-liability policy for internet companies. Off the top of my head, the internet would be destroyed and speech chilled, according to EFF and friends, if …we had passed SOPA/PIPA or ratified the TPP; if we allowed internet companies to take voluntary action to stop various crimes and abuses; if we allow Backpage to face litigation or pass FOSTA; if the 2015 FCC OIO is reversed; if copyrights are ever enforced by anybody for any reason; or if we should, heaven forbid, rethink the ultra-libertarian, disrupt-culture bullshit that led anyone to believe that social media was fundamentally good for American democracy in the first place!

We’ve been swallowing a lot of nonsense about the internet for a long time, and I like to think of this period as our peyote ritual—a time to finally vomit up all these demons before we can even attempt sober consideration of what, if any, mitigating action we take next. As Taylor Lorenz describes for The Daily Beast, simply leaving Facebook isn’t so easy (unless we all bail at the same time, I guess), and there should be no reason to abandon the positive attributes—namely, legit social connection—that draw us to these sites in the first place. It’s just that we have to reconcile the fact that the reasons we’re there for ourselves are not the same reasons the platform owners wanted us there. Coming to terms with that disconnect is probably where the next iteration of cyber-policy—whether statutory or voluntary—should probably begin.