David Newhoff, Author at The Illusion of More

Time to Stop Defending the Internet As-Is

With the passing of John Perry Barlow last week, a number of articles and social media comments by internet activists offered variations on the theme that we have Barlow to thank for the internet as we know it. In general, they mean the internet that has thus far been allowed to function as a self-governing industry. While it is certainly proper that organizations mourn the loss of a friend and colleague—and in the case of the EFF, a co-founder—the internet story of the present is one running counter to the utopianism of the 1990s shaped by people like Barlow. And it’s no longer just us “Luddites” saying so.

Despite the high-minded idealism of twenty years ago—predicting that a cyberspace independent of the laws of nations would somehow reveal our latent morality, fairness, and intelligence—the banal consequence is that laissez-faire cyber policy mostly enabled platform designers to convert our crudest instincts into advertising dollars. This finally became apparent to many Americans last year with the revelation that Russian agents have been using Facebook’s ad system to intentionally exacerbate political discord in the United States.

That story was followed by some of Silicon Valley’s most prominent figures coming forward to acknowledge that the apps and systems they helped build are indeed unhealthy—politically, socially, and physiologically. In short, the internet we have is not the one we should hope to keep. And even the owners of the major platforms are now coming to grips with the fact that, despite all previous slogans to the contrary, they are not making the world a better place. In this light, it seems that organizations like EFF et al, who devote considerable effort to defend a state of zero accountability for service providers, are planting their flags on the wrong side of history.

Most recently, a team of tech industry professionals established the Center for Humane Technology. Led by former Google Design Ethicist Tristan Harris and featuring entrepreneur and early Facebook advisor Roger McNamee, the organization’s mission reads like a response to a core problem identified by Jaron Lanier as early as 2010—that web technology was not designed to serve humans so much as humans have been reprogrammed to serve technology.

The new Center emphasizes specific ways in which social media platforms have been purposely designed to exploit basic, psychological vulnerabilities in order to make the experiences addictive and retain round-the-clock user attention. They identify both specific design aspects (i.e. icons, colors, etc.) and business decisions that produce negative effects ranging from personal depression to a political climate steeped in ignorance and outrage. And of course nobody really knows the effects the devices and apps have on the developing brains of young children.

In press interviews, Harris states that many of his friends and colleagues at Google and Facebook are aware of the problems he is now publicizing; but he also notes that the people at these companies are trapped between personal values, yearning to act ethically; and company business models, which cannot easily be abandoned. This is why a key target audience of the Center’s outreach comprises the current and future employees of the tech industry, recognizing that talented designers, engineers, and programmers are in a position to exert pressure on employers to build products that actually serve society.

The fallout from the Russian hack, generally referred to as the “tech backlash,” seems to have produced three main responses. The quietest was a fleeting denial that the backlash was even happening or that Big Tech deserved the criticism. A slightly more prominent theme emerged suggesting that Silicon Valley had sold out its Barlowian ideals for profit, stressing a back-to-basics agenda that fails to acknowledge the flaws in those ideals at their foundation. And the third response, the one now dominating mainstream reporting, features leading industry players unequivocally admitting that they designed systems which produce some very negative effects.

While the Center for Humane Technology represents a step in the right direction, two ideas occur to me. The first is that more thoughtful technology design alone cannot do our work for us. For example, if our social or political views are too easily manipulated or reinforced by memes or unreliable information sources, Facebook cannot be counted on to redesign its platform to teach people how to be critical thinkers. So, while it is good to know that tech leaders are willing to admit that Facebook appeals to our lizard brains, I suspect they can only do so much to help us transcend our lizard natures. That’s on us.

The other thought is that organizations like this Center might want to reach out to the artists, musicians, authors, etc. who were among the first to identify and discuss the negative effects of the internet. The 20-year-old mud fight over copyright infringement has been cynically mischaracterized as a battle exclusively about money. But this distillation ignores, for instance, the intersection between media exploitation and media gluttony. While it is absolutely necessary to better understand—and even want to change—the mechanisms by which social media platforms foster addiction, it is also worth acknowledging the extent to which those mechanisms still rely on unlicensed exploitation of authors, artists, journalists, musicians, photographers, etc. to retain user attention.

Meanwhile, the organizations still clinging to the maximalist view that society is best served when Google, Facebook, et al are absolved from responsibility and liability will find that message increasingly hard to sell. And it’s about time.

In a must-read article by Roger McNamee, one detail I find particularly striking is how recent the “tech backlash” really is—how much evidence McNamee himself, as a trusted advisor, had to present to Facebook leadership before they finally stopped hiding behind the old saw that they’re not a publisher and cannot be held responsible for third-party content. That mantra is the colloquial version of what the policy folks know as Section 230 of the Communications Decency Act and Section 512 of the Digital Millennium Copyright Act—twin liability shields that are the legislative foundation for many of the problems now being discussed. In fact, I’ll conclude by quoting McNamee, who sums it up perfectly as follows:

“Thanks to the U.S. government’s laissez-faire approach to regulation, the internet platforms were able to pursue business strategies that would not have been allowed in prior decades. No one stopped them from using free products to centralize the internet and then replace its core functions. No one stopped them from siphoning off the profits of content creators. No one stopped them from gathering data on every aspect of every user’s internet life. No one stopped them from amassing market share not seen since the days of Standard Oil. No one stopped them from running massive social and psychological experiments on their users. No one demanded that they police their platforms. It has been a sweet deal.”

4th Circuit Remands BMG v. COX, But …

Good news for authors, creators, and sanity was delivered yesterday by the 4th Circuit Court of Appeals. Despite remanding the case back to the district court for retrial on a specific matter of jury instruction, the opinion eviscerates two of COX’s most strained interpretations of copyright law, either of which could have had devastating effects for rights holders. BMG Rights Management sued ISP Cox Communications for contributory infringement in 2014 and was awarded $25 million in damages in December of 2015. Cox appealed, and these posts from January 2017 and November 2017 detail the company’s key defenses with my commentary.

DMCA Safe Harbor Still Doesn’t Apply

In its appeal, Cox argued that the district court erred in denying it the safe harbor defense as provided in the DMCA. As noted many times, despite the rhetoric of “digital rights” activists, the safe harbor is not unconditional; and one of the conditions is that a service provider must have a repeat-infringer policy in place that ultimately leads to account termination. The circuit court agreed with the lower court that Cox’s “thirteen-strike policy,” which only tended to lead to account reinstatement did not fulfill the intent of the DMCA that a policy should act as a deterrent to repeat infringement.

Most bizarrely Cox argued on appeal that the term “repeat infringers” in the statute could only mean people who’ve been held liable for multiple infringements in a court of law. As noted in my January 2017 post, this would be almost nobody since very few individuals are ever defendants in a single copyright infringement case, let alone one that actually goes to trial. The appeals court rejected Cox’s claim in less prosaic terms, including the citation of congressional reports on the drafting of DMCA, which the court summarizes thus:

“The passage does not suggest that they [users] should risk losing Internet access only once they have been sued in court and found liable for multiple instances of infringement. Indeed, the risk of losing one’s Internet access would hardly constitute a ‘realistic threat’ capable of deterring infringement if that punishment applied only to those already subject to civil penalties and legal fees as adjudicated infringers.”

Denied Appeal to Sony

The other extraordinary appeal by Cox was its assertion that the jury in the district court should have been instructed to consider the ISP’s protection under the principle established in the 1984 Sony case, namely that its internet service can be used for substantially non-infringing purposes. As explored at length in my November 2017 post, were Cox to prevail on this point, it would effectively immunize all internet providers against any form of liability for copyright infringement, and this begs the question as to why the ISPs petitioned for the DMCA safe harbors in the late 1990s if Sony had already established this immunity.

The 4th Circuit called Cox’s appeal to Sony “meritless,” stating that in Grokster (2005), the Supreme Court clarified that simply because a product is “capable of substantial lawful use,” this does not preclude the possibility that the producer or provider can never be held liable for contributory infringement. “Because the instruction Cox requested misstates the law, the district court did not err in refusing to give it [instruction to consider Sony],” states the opinion.

Remand for Retrial

Where the appeals court agreed with Cox, and the reason for remanding for retrial, was in regard to the district court’s instructions to the jury on the standard of intent for contributory infringement. Again citing Grokster the opinion quotes, “[o]ne infringes contributorily by intentionally inducing or encouraging direct infringement.” Thus, the word intentionally suggests a distinction between “knowledge” of infringing activity (or any crime for that matter) and “negligence” that may cause a party to inadvertently contribute to criminal activity. Because the district court instructed the jury to consider whether “Cox knew or should have known of such infringing activity,” the circuit court held this to be in error. The term “should have known,” is described in the opinion as equivalent to “negligence,” which is often insufficient to establish secondary liability for criminal conduct.

It will be interesting to see whether Cox opts for a retrial or proposes a settlement. The facts presented have already been viewed by a district court judge, a jury, and now an appeals court panel as compelling evidence that Cox knew about repeat infringers and adopted a policy of avoiding account termination in its own financial interests. In fact, my favorite example cited in the 4th Circuit opinion is this one quoting a company email:

“But when Cox received another complaint, a manager directed the employee not to terminate, but rather to ‘suspend this Customer, one LAST time,’ noting that ‘[t]his customer pays us over $400/month’ and that ‘[e]very terminated Customer becomes lost revenue.’”

So, even with new jury instructions, evidence like this suggests Cox would have a hard time convincing anyone it had no knowledge of infringing activity. But the reason this quote is my favorite is that it’s a twofer—not only implicating an ISPs attempt to stretch the law beyond reason but also giving lie to so many rationalizations for media piracy by users. I mean this dude has the money to pay his ISP about $5,000 a year for bandwidth but won’t pay for music, movies, games, etc.? Damn that’s some big-ticket hypocrisy right there. He could probably pay an ISP about 35% of that total, acquire his entertainment legally, and still save money.

Wait, Boing Boing Is Not Clickbait?

So, maybe you heard, or didn’t—or you don’t really care—that Playboy is suing Boing Boing (parent company Happy Mutants, LLC) for contributory copyright infringement. There are a couple of serious points to make about this case, but I want to address the funny part first because it actually informs the not funny parts.

The funny began when I read TorrentFreak’s* article highlighting the fact that Playboy’s complaint calls Boing Boing a clickbait site. It just so happens that I read the TF post after I read EFF’s motion to dismiss on behalf of Boing Boing, referring to the site’s enterprise as journalism. And that’s pretty funny because the example below is a typical “news article” on Boing Boing. This one happens to be about Andrew McCabe stepping down as Deputy Director of the FBI:

As you see, the “journalist” in this example has typed 69 words conveying the barest information he learned from a real news source; he’s shared a quote from NBC only slightly shorter than his own content; and he’s used a photo from the Reuters News Agency that’s bigger than all the text. In fact, by area, the “article” occupies roughly the same page space as the banner ads while providing the reader with a fraction of the information he could get from a news site—adding neither commentary nor insight nor color to the most rudimentary facts. And for extra funny, Boing Boing asserts a Creative Commons license even though one would be hard-pressed to find any protectable elements in an example like the above—the author having written five sentences so common in vocabulary and structure that I doubt even the site’s limited claim of protection under Creative Commons would hold up.

A sample like this is not journalism by any reasonable definition of the term so much as it is a time-wasting diversion for a reader who might actually want substantive news or commentary about McCabe’s imminent resignation. I know, one man’s meat and all that, but it seems fair to assert that this Boing Boing post, and many just like it, exist solely for the purpose of grabbing traffic to generate ad impressions while providing no distinctive value to the visitor.

But if Boing Boing and friends bristle at the term clickbait to describe this business model, perhaps they’d prefer Wasteful Aggregators of News and Knowledge. Y’know, WANKs. For practical purposes, let’s define a WANK as any site that functions as a tollbooth—a needless step between, for instance, a social media feed and a robust source of content like a news site. Rather than operate as creators of original content, WANKs harvest Pavlovian responses to headlines in order to funnel traffic through their tollbooths, generating revenue in the form of ad impressions. Sorta, like…clickbait.

A Quick Note on Contributory Infringement

Simply put, liability for contributory infringement exists when a party knowingly induces or encourages infringement, with or without prospective financial gain. In this particular case, I would assert that profiting from traffic is the only reason for the existence of WANKs like Boing Boing; but even if we were to broaden the meaning of journalism to encompass these sites, this does not change the legal analysis because the most serious journalists in the world can still infringe a copyright or be liable for contributory infringement—even while producing far more original work than a typical Boing Boing post.

Playboy Entertainment v. Happy Mutants

So what happened with Playboy was that somebody uploaded every playmate centerfold dating back to April 1960 (477 images) to the site Imgur. And upon discovery of this trove of unlicensed photos, Boing Boing’s intrepid news team produced one of its Pulitzer-melting articles with a headline cleverly titled “Every Playboy Playmate Centerfold Ever.” At issue is the fact that the article contained two links—one to the Imgur pages, the other to a YouTube video, made by someone who’d arranged the photos into a slide show. But lest you think this was just a cheap opportunity to leverage a third-party infringement just to drive traffic, note that the reporter did stay up late to write the following:

“Some wonderful person uploaded scans of every Playboy
Playmate centerfold to imgur. It’s an amazing collection,
whether your interests are prurient or lofty. Kind of amazing to
see how our standards of hotness, and the art of commercial
erotic photography, have changed over time.”

The EFF calls the publication of these words “transformative,” asserting that even if there were grounds for contributory infringement, which they insist are not present, this perceptive insight, with its melodic repetition of the word amazing, serves as the cornerstone of a fair use defense under the first factor. I know it seems like I’m still on the funny part, but this is the serious legal stuff and is central to Boing Boing’s defense that all they did was link to infringing content while commenting on it “as journalists.”

Now, my opinion of Boing Boing’s value doesn’t technically matter. And the opinion of a court should not matter either. We certainly do not want the courts or any other branch of government deciding what is and is not journalism (especially these days). And it is also true that the prospect of incurring liability simply by linking to content can imply potential hazards, though certainly not the existential threat to the internet that EFF and its colleagues seem to proclaim with relentless consistency.

At the same time, it is not reasonable for WANKs, or any other platform, to avoid liability for intentionally exploiting third-party infringement merely by means of attaching a glib comment and calling it “news reporting” protected by fair use. By EFF’s standards, I could post unlicensed photos on this blog with captions that say little more than, “This one’s my favorite!” and call it “transformative.” And that just ain’t right.

Again, even if we were generous enough to consider Boing Boing’s 44-word “standards of hotness” post a form of journalism, it still should not pass as “transformative” under the fair use test because the post does not actually use the original work to create a new expression by adding something new. Technically, the post could stand alone without the links. It would still be lame, but it wouldn’t be infringing. As it is, the central communication of the post is, “Dude, you should look at these photos, and here are the links.” Which sounds kinda contributory.

Of course, the real key to Boing Boing’s liability has less to do with the text in the post and more to do with the headline. When the unambiguous words Every Playboy Playmate Centerfold Ever appeared in social media feeds, the goal was to trigger the aforementioned Pavlovian response whereby users click the link expecting to see exactly what the headline promises. The brief interlude when the user might read the diminutive post does not serve to shield the fact that, as indicated by the headline, Boing Boing advertised, and then provided access to, infringing content for the sole purpose of drawing traffic to its pages.

This conduct should be more than sufficient to allege contributory infringement and allow this case to proceed. Meanwhile, I actually agree with Boing Boing’s defenders that this case gets to the heart of the internet—namely the heart of what sucks about the internet, which is populated by too many opportunistic platforms that do very little other than manipulate users and exploit work somebody else has produced. If WANKs like Boing Boing cannot operate without blanket immunity from responsibility—a dysfunctional policy that real journalists have never enjoyed—then the enterprise should fail. What society would lose in that bargain is impossible to imagine.

*POST CORRECTED: As first published, I called the TF post “defensive,” a reading into the article based on its headline, the editorial leanings of that site, and the anti-copyright views expressed by many of its readers’ comments. Upon hearing from TF and further review, it’s fair to say that Andy’s post is much more neutral than I first described.

Author: David Newhoff