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.

Well, That Year Happened: Notes from Utopia

’Tis the season of glad tidings and Year-in-Review articles.  But those moods are decidedly incompatible. The crescendo of 2017 is more like a relentless cacophony of disaster scenes justifying the preponderance of the word apocalypse in so many social media comments.  It was indeed a hard contrast between the vibe of  “Winter Wonderland” and the image of a starving polar bear heralding an extinction caused by climate change that, if you check the EPA’s website, is no longer occurring.

I was also struck by the contrapuntal glimpses of Los Angelenos navigating a hellscape of un-containable wildfires, while in Northern California, members of Silicon Valley’s elite are lately gathering at an old hippie retreat called the Esalen Institute to chant and meditate some inner path back to their own humanity. Why?  Because, according to a recent article in the New York Times, they feel bad that their grand innovations and disruptions have not made the world a better place. And it’s keeping them up nights.

There is something just a tad Revelations-y in the mental montage juxtaposing horses on fire at one end of California and a conclave of guilt-ridden, insomniac techies sitting lotus position and muttering mantras at the other.  As my friend Tessa Lena suggests on her blog, these cyber wonks could just fast-forward to the realization that they were never messiahs in the first place—that their promise was always self-delusional.

Even Mr. Zuckerberg seems to be doing a bit of soul searching this year in light of incontrovertible evidence that his “people connecting” machine can so easily be manipulated to drive people apart and undermine democratic principles.  Sean Parker says he’s become a “conscientious objector” to social media, and former Facebook executive Chamath Palihapitiya says the platform is “ripping apart the social fabric” and that his own kids “aren’t allowed to use that shit.”

The counter-culture idealism of early Silicon Valley can be forgiven, as most idealism can, for its naiveté about the prospects of “better living through data.” (Without at least a little blind faith, ideas rarely produce anything at all.)  Less forgivable, though, is the fact that long after those nascent values had been corporatized (to borrow composer Zöe Keating’s word), the messianic rhetoric continued to assert that the internet is, on balance, a net positive for democratic principles. Until this year.

Unfortunately, we had to elect a Twitter troll to the highest office in the land, and usher in the post-truth era, for the press to grow weary of its infatuation with Big Tech and begin to write editorials on the theme that perhaps the internet has a few pitfalls as an instrument of democracy.  If you wonder how anyone can accept that a huckster like Donald Trump could presume to question the integrity of a public servant like Robert Mueller, I give you the democratization of information and culture brought to you by a mostly-liberal class of billionaires (no wonder some of them can’t sleep).

As stated many times, one reason I jumped into the copyright fight is that the counter-narrative on copyright is based on a classically naïve assumption among liberals that “knowledge” is a panacea.  If we boil down the arguments against copyright, they generally express variations on the theme that “knowledge and culture belongs to everyone—that authors’ rights are outdated and elitist in a digitally democratized world.” This sentiment was based on a mistaken assumption (one of many) that more diffusion of more content can only produce a freer, more democratic, and more enlightened society—especially now that the network has removed the barriers (the so-called gatekeepers) of distribution.

But this populist notion ignored several countervailing realities, not the least of which was that new authors of creative, informative, and cultural works were merely migrating to a new, truly monopolistic, brand of corporate gatekeeper (e.g. YouTube) without seeming to notice.  On the broader belief that the information revolution would yield a wiser, more moderated electorate (not to mention a “global village”), this utopian assumption overlooked the obvious fact that the barriers of distribution were lowered in all directions—that when “information” can be customized (or as a friend put it, when history becomes a choose-your-own-adventure story), society will naturally fracture into communities of competing realities rather than a democracy of competing ideas. Add to this the fundamentally dehumanizing nature of semi-anonymous, electronic interaction, where even decent people are prone to ad hominem, and viola—we get the incoherent and existentially precarious U.S. 2017 Edition.

But what now? Although the bloom is substantially faded from Silicon Valley’s rose, and the major platforms are having a harder time selling their “just a neutral platform” message, this does not mean anybody is at all clear as to what kind of policies might mitigate the problems that we’re now willing to admit exist.  In an article for The American Interest, Eileen Donahoe offers some thoughtful guidelines for at least defining terms and making clear distinctions about causes and effects.  For example, she writes …

“…even assuming the polarization effect of Facebook is substantial, the echo-chamber problem is distinctly different from the intentional manipulation of social media by foreign actors seeking to affect election outcomes. Delineating between inherent features and malign uses will help us define platform responsibilities and yield better solutions.”

I agree, though I’d amend that slightly because the evidence thus far presented about the “Russian hack” is less indicative that the goal was the election of Donald Trump so much as it was to sow discord among the American electorate. The intent, it seems, was to disrupt democracy itself by weaponizing free speech and turning us against one another.  And it has been a premise of this blog that social media was already fostering this toxic atmosphere long before we learned anything about meddling foreign entities.

What I suspect the Russian campaign truly reveals is that there is probably no set of policies, either by Congress or the platform owners, that can effectively protect us from our own worst instincts.  While it is certainly refreshing to at least hear Big Tech companies acknowledge some responsibility for a change, the ultimate responsibility for preserving our rather delicate brand of democracy still falls on us; and that probably means coming to terms with the ways in which these platforms are harmful to both reason and social interactions.

Yes, Facebook could take steps to recognize a foreign entity buying propaganda and weed this out up to a point—Senator Kennedy (R-LA) stated in the hearings that he was skeptical as to how much the company could truly control—but Facebook cannot stop Americans across the political spectrum from believing and disseminating absolute garbage—let alone acting on misinformation.

But the real challenge isn’t information quality itself.  Six years ago, what scared me most about about the bogus anti-SOPA campaign was the corresponding ebullience for “direct democracy,” the groundswell of populist sentiment that imagined the internet as the antidote to all the ills of government overreach and corporate oligarchy.  The illusion that direct, positive, and popular action via these platforms would overwhelm the worst excesses of government/corporate control became the meat of many self-congratulatory editorials and blogs. As asked at the start of this year, now that democracy is disrupted, how’s it looking so far?

Adding insult to this injury is the fact that the theater of direct democracy continues to rally people to the cause of the internet oligarchs themselves. This paradox is inherent to addressing any area of cyber-policy, and we see it repeated in the incoherent battle over Net Neutrality.  The problem is semantic. In a complex world reduced to bullet points, it’s almost impossible to identify, for instance, the specific vested interest of Google, whenever the general message is “Save the internet!” This has been the standard headline responding to every policy proposal from SOPA to SESTA to the TPP and Neutrality; and every time the bell is rung, people respond, “Yes! Please save the internet!” which is a naively generic vote to save the status quo of the internet. Thus, even people who are harmed by the current state of internet policy take action against their own interests.

Of course the internet is not synonymous with the business interests of Google or Facebook or Amazon or any other corporation. And the fact remains that the status quo of the internet writ large is, in many ways, not something worth saving. To the contrary, the prevailing body of internet policy, most of which was written before anyone could imagine the environment we have today, has fostered a wide range of unforeseen negative effects, the most dramatic of which are the now-manifest threats to democracy itself.

I neither know, nor indeed care, what the meditating minds at the Esalen Institute discover about their “Inner-Nets,” as one Googler-cum-guru puts it. If the leaders of these companies really want to make the world a better place, they might begin by taking their noses out of their navels, acknowledge the ways in which their technologies have made the world worse, and become responsible partners in mitigating measurable harm like human trafficking, IP infringement, harassment, ad hoc terrorism, and disinformation campaigns. But I wouldn’t hold my breath for the Big Tech pivot. In the meantime, maybe in the coming year, we might at least stop carrying Google’s water every time some meme demands that we “save the internet.”  Because, on balance, it’s a little hard to see quite how the internet is returning the favor by saving us from ourselves.

Public Knowledge Responds to Infringement Claim in Ajit Pai Video

Well, this is interesting.  Ordinarily, Public Knowledge is an organization that sows a lot of confusion—and sometimes outright falsehoods—about copyright law.  As a rule, I group them among the “digital rights” activists who tend to promote their opinion of what the fair use doctrine should be rather than a more realistic description of what it is.  So, it’s interesting that in response to allegations of copyright infringement against people they don’t like, the organization has produced a fairly sober and reasonable analysis of the fair use defense.  For the record, I’m no fan of the video in question either.

After FCC Chairman Ajit Pai reversed the 2015 Open Internet Order, a video featuring Pai, apparently produced  by the Daily Caller, went viral. It shows Pai demonstrating various things people will still be able to do after the hugely unpopular reversal of what is generally called “net neutrality.”  As readers know, I’ve tried to cut through some of the rhetoric on the neutrality issue without fully defending Pai, or certainly the telcos; but I also think the video was a pretty dumb PR move.  Its content may be factual, but its tone and style were begging for ridicule; its association with the odious Daily Caller makes it fatally dismissible; and its use of about ten seconds of the song “Harlem Shake” drew a DMCA takedown and threat of litigation by artist DJ Baauer.

Faced with the dichotomy of hating both Pai’s policy and copyright law, Public Knowledge uncharacteristically published a fairly rational explanation, written by Meredith Filak Rose, of the fair use doctrine along with an analysis of the use of “Harlem Shake” in this video.  Her assessment predicts that the video makes a fair use of the song, though not without sprinkling a bit of anti-copyright messaging along the way.

Rose does a good job of explaining the legal meaning of “parody,” which is one of the more widely misunderstood, colloquial terms invoked to assert a fair use.  I agree with her that the use of “Harlem Shake” in the video does not meet the standard of parody and am glad to see even an anti-copyright organization make an effort to clarify this point.  But from there, I think her fair use analysis is a bit all over the place, straining to make a case for the kind of use Pai and colleagues made, while clearly hating the video itself.

I’ll dispense with the fairly simple analysis under the second fair use factor, which generally considers whether the original work is expressive or factual in nature. Use of the former tends to weigh against a finding of fair use, while use of the latter tends to weigh toward a finding of fair use. Clearly “Harlem Shake” is expressive, and so Rose is correct to expect that this disfavors a finding of fair use under this prong of the four-factor test.

Under the first factor analysis, I agree with Rose that the use of “Harlem Shake”  is not parodic and that it is also non-commercial; but I disagree when she concludes that it is “at least mildly transformative,” thus favoring a finding of fair use. In fact, it is contradictory to conclude that the use of the song is not parody but is transformative. Because this still begs the question as to what has been transformed.

Originally, transformativeness described the creation of a truly new expression, which could not possibly exist without making use of the exact work in dispute. In the video, Pai concludes his list of “post neutrality” activities by saying “You can still do the ‘Harlem Shake’,” and then he dances to the track (and yeah, it’s cringy) with staff members of the Daily Caller.

This use is no more transformative than if the track were synched to the introduction of a promo video made by Pfizer. The use does not produce a new work that directly parodies, comments upon, criticizes, or builds upon the original song itself. In fact, in a subtle way, Pai is telling people, “Don’t worry, you can still randomly infringe various copyrighted works after I reverse the 2015 Order.”  (By the way, transformativeness is a principle that has indeed been applied rather schizophrenically in the courts, but it is organizations like Public Knowledge that continue to promote ever-broadening interpretations of the term.)

The intended communication in the Pai video could have been made by using any number of pop songs. The purpose of the video as a whole was not a work of commentary upon art and culture but was instead a work of PR with the intent to promote a position on public policy. In a fair use assessment, this use should be seen as equivalent to precedent examples in which a creative work is used for general comment or satire (i.e. to comment upon something external to the original work), which are not typically held to be fair uses.

In this context, Rose errs when she considers whether or not it was necessary to use “Harlem Shake” per se in this video.  First she improperly places the question under the third factor—the “amount and substantiality of the use”— rather than the first.  Because the need (or not) to use a specific work underlies the purpose and character of the use, the question belongs under the first factor analysis.  Next, Rose rather bollixes up the principle in her effort to defend “meme culture” by confusing creative necessity with the much broader notion of personal taste.  She writes…

“But judges can also ask whether you could have achieved the same purpose without using the work at all, or using another work. These are borderline existential questions when it comes to memes: did I have to use a copyrighted image of a screaming porg in my Twitter avatar to convey my distaste for the current political climate, or could I have used something else to equal effect?”

Despite the anti-copyright crowd’s love of memes, the test under fair use as to whether a specific work is necessary to create an expression is not so broad as considering the whimsical taste of the user to make some generalized statement.  Under fair use, the resulting new work should, in some way, be unimaginable without making use of the protected work in dispute.  For instance, the seminal case (1994) in which 2 Live Crew parodied the song “Oh, Pretty Woman,” was one in which the new expression relies substantially on a cultural familiarity with the sounds copied from the original. It is understood that the new work is, in part, spoofing the spirit of the original song.

Rose’s reference to her screaming porg avatar errs as an example because she is in no way commenting upon the original photograph.  She’s simply wearing it like a button on a lapel to express her personal state of mind about the current political climate. If she used the same image in a blog post about the political climate, the photographer could take action, and she would almost certainly lose in a fair use defense.

Finally, while Rose’s explanation of the fourth factor is correct, part of her application with regard to the Pai video is odd.  The fourth factor considers the effect of the use on the potential market for the original work.  I certainly agree with her that nobody would ever consider the Pai video to be a substitute for listening to “Harlem Shake,” and I also agree that Pai’s use under this factor favors a finding of fair use.  But then, Rose meanders into other legal territory—namely, moral rights—when she writes, “There is a tenuous (but extant) argument that Pai’s association with the song actually devalues the song.”

Regardless of one’s opinion about moral rights for artists—Rose calls it dangerous—this consideration is not generally applied in a fair use analysis.  In fact it is essential to note that fair use will protect commentary upon a work, even if the commentary itself may harm the market value of the original work.  Correctly applied, the fourth factor only considers whether the new use may act as a substitute for the existing or potential market of the protected work, including a market that the original author may choose to exploit at some point in the future.  So, whether one buys into the argument that Pai’s use of “Harlem Shake” could create a negative association with the song, this is not legitimately a question under the fourth fair use factor.

On instinct, my prediction would be that that the Pai video would fail on the first and second factor analyses, prevail on the fourth factor, and could go either way on the third factor.  Although the video makes very limited use of “Harlem Shake,” the third factor considers whether the portion used represents the “heart of the work.”  One could imagine DJ Baauer making a case that the campy communication intended can only have worked by making use of the “heart” of the song such that it would be instantly recognizable in context.  This would disfavor a finding of fair use, if the use also failed under the first factor analysis.

One way or another, I don’t doubt the infringement claim associated with this particular video caused a bit of dissonance over at Public Knowledge.  And they should be commended for at least trying to discuss fair use as a nuanced principle, rather than the natural right of all netizens.  That said, I think they missed a few key distinctions in an effort to make clear they still really don’t like copyright.

Google Says Humbug to Child Sex-Trafficking Victims

Just in time for Christmas, it seems Google is up to its Grinchy tricks in the House of Representatives, allegedly the big gun behind an effort to undermine the anti-child-sex-trafficking bill FOSTA, which is the House version of the Senate’s SESTA.  Because these bills propose to amend the liability shield in Section 230 of the Communications Decency Act (1996), the major tech firms, along with organizations like the Electronic Frontier Foundation, have worked to clobber the proposals, lobbying Members of Congress and promoting anti-SESTA campaigns to the public.

Shortly after representatives of Facebook, Google, and Twitter endured some uncomfortable grilling on the subject of Russian disinformation campaigns, the Internet Association endorsed SESTA in early November.  But according to a new editorial in The Hill by Mary Mazzio, it looks like Big Tech lobbyists are orchestrating a bill swap in the House, proposing an approach that avoids amending Section 230. Mazzio is the writer/director of the trafficking documentary film I Am Jane Doe, which apparently inspired legislative action on this issue in the first place.  She states in her article…

“This full replacement of FOSTA was done under cover of darkness, quickly and quietly, with no input on the specific language from the NGO community, victims or survivors. The bill, which now amends the Mann Act, fails to address the Section 230 problem identified in the 1st Circuit, and worse, strips away civil remedies from survivors as well as states attorneys general. The language also appears to permanently foreclose all private rights of action which victims currently have under the federal trafficking statute.”

Her reference to the 1st Circuit is to the case Doe v. Backpage in which the court read the Section 230 statute broadly enough to hold that Backpage’s owners were entirely shielded from civil litigation pursued by several trafficking victims who blamed the site for facilitating their victimization by sex-traffickers. In response to a still-developing body of evidence implicating Backpage’s active role in the trafficking of minors, Congress has sought to at least clarify that the “safe harbor” provision of Section 230 is not meant to shield online services from liability for this type of conduct.

The internet industry, with substantial help from the EFF, has tried to characterize these bills as harmful to free speech and innovation (again) and have promoted a limited body of scholarship claiming that the bills will do more harm than good for victims.  I have written several responses to the anti-SESTA campaign, but Ms. Mazzio sums it up in her description of the alleged new proposal now sitting in the House Judiciary Committee.  “The net result is a new bill which genuflects to the altar of business practices and profitability where children and trafficking victims are collateral damage.”

Collateral damage is exactly right. It’s a concept that musicians and other artists know all too well—not that their losses are comparable to what trafficking victims endure, only that the policy agenda is very familiar.   But this is the price Google & Friends say must be paid in the interest of “internet freedom,” which is actually a euphemism for their liability shields.

Big Tech’s absolutism on Section 230 is this industry’s version of the NRA saying that “spree killings are the price we pay for freedom.”  In fact, if we put it that bluntly—children being sold to be systematically raped is the price we pay for internet freedom—it seems just a little defeatist and lacking in moral authority, least of all in the year when Americans have declared they’re turning the tables on sexual harassment. It seems to me if the Democrats in Congress felt an urgency to shed both Conyers and Franken in the current climate, that it is probably not too much to ask that they give serious attention to the FOSTA proposal, keeping only the victims the foreground, and let Google’s interests be damned.

It’s hard to say that these bills will categorically help trafficking victims; they are a limited remedy at best, given the hideous nature of the crime.  But I’d like to believe we can all agree that the financial interests of the world’s largest company are less important than an effort to mitigate such egregious harm being done to kids. It is rather astounding to see that netizens (whoever the hell they are) are so self-righteous about the Net Neutrality thing that they’ll justify racist attacks and death threats aimed at Ajit Pai.  But some of these same good people are willing to allow children to be collateral damage just because Google & Co. say “free speech.”  If that’s really who we are, somebody show me how to actually break the internet because I’m all for it.

Photo by alexkich