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.

Are We Ruining Facebook with Politics?

Photo by Pond5
Photo by Pond5

Last week, Karol Markowicz, writing for The New York Post, said that we’re “ruining Facebook (and friendships) with political rants.”  Taking the position that Facebook is meant to be an environment for connecting with friends and family in traditionally gregarious ways—sharing kids’ photos and personal news, etc.—Markowicz makes a case that chronic political grandstanding is harming the social atmosphere of the platform, even citing a 2014 Pew study showing that roughly a quarter of users have blocked “Friends” because of political disagreements.

Markowicz’s observations prod consideration of a few different subjects, including the fact that even in an era of divisive politics, we’ve never had a candidate with the polarizing capacity of a Donald Trump before. And while it seems that our political climate has become more radical—and apparently less well-informed—over the last 20 years, is it more accurate to say that politics is ruining Facebook or that Facebook is ruining politics?   The latter notion has certainly been my bias since starting this blog—that the information revolution is generally a flop owing to the multitude of ways in which the electorate can now reinforce ignorance, racism, sexism, or xenophobia by fostering online communities predicated on exactly these sensibilities.  The so-called information age is one reason I believe fringe lunacy has gone mainstream.

With regard to Markowicz’s thesis, though, that political grandstanding is “ruining Facebook”, this presupposes that Facebook was somehow earmarked for a different destiny, which is a hard premise to accept a face value. For better or worse, social media is still an experiment—a catalyst only recently added to human interactions and which cannot fail to yield unpredictable results.  How can anyone say that Facebook is being ruined rather than come to the more reasonable conclusion that Facebook, for which there is no real precedent, was destined to become exactly what it is?  A social media platform itself is not society, which we do have a collective responsibility to maintain despite our differences.  Facebook is Mark Zuckerberg’s ant farm comprising a half-billion ant users, and it remains to be seen whether the farm thrives or dies, or if the ants just get bored.  Either way, how much does it really matter?

Society is outside my front door.  I don’t know who my neighbor is voting for, but I know he’s a hell of a nice guy, a great dad, and the kind of person who will do anything for you.  If he posted a Trump sign on his lawn tomorrow, yes, I’d think he has a serious disconnect, but am I going to walk over to his house and set him straight? Or will I suddenly be rude to him once he declares his intentions? Of course not. And to Markowicz’s point, if most of us would respect such boundaries in the real world, why do we feel it’s okay to cross these lines in cyberspace?

The answers are going to be found in the medium itself, in the nature and design of the platform.  The platform wants you to say something. That is its purpose.  And the environment fuses public and private behavior in ways that are relatively new in human experience, especially for the two generations who became adults before Facebook’s inventor was even born. Add to this the fact that most people don’t express themselves very carefully with the written word and that all other communication—facial expression, tone, body language—is obliterated, and of course friends and relatives are going to insult one another.

When I was a kid, most adults repeated the rule that one does not talk about religion or politics in polite company, and again to Markowicz’s point, social media often exemplifies why this was a pretty good rule.  It has been widely discussed—and it is empirically obvious—that people will say things on a social media platform that they would never say to someone, let alone a friend or family member, in person.  This phenomenon has provided grist for many a psychologist’s mill, but the actual effects on relationships within the confines of the platform itself are merely data in the ant-farm experiment. And it should be obvious that the farmers want Facebook to be as lively as possible—for the articles, memes, and comments we share to be substantive, political, and even self-righteous and bitchy because these interactions produce richer data.  If we shared nothing but baby pictures and snapshots of what we’re having for lunch, that would surely ruin Facebook from its owners’ perspective.

At the same time, while I could give a damn whether Facebook thrives or crashes, there’s no question the experiment is interesting.  If relatives or friends who would ordinarily get along by keeping their views generally hidden discover animosity for one another through a medium that fosters expressing those views, is there any value in this?  Maybe. Does the platform make relationships more honest, or does it just produce unnecessary conflict?  Presumably, it’s a bit of both.  Regardless, whether we’re talking about political ideology, tackling tough social issues, or cultivating interpersonal relationships, the question should not be what we are doing to the ant farm called social media, but what it’s doing to us.

Backpage Execs Arrested Because Pimping Isn’t Speech

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On October 6, the CEO of Backpage.com Carl Ferrer, along with former executives Michael Lacy and James Larkin, were arrested in California on charges alleging involvement in prostitution, including conspiracy to commit pimping of a minor.  The classified ad site had been under investigation by the California DOJ for three years and on the radar of anti-human-trafficking advocates for at least a decade.  Citing the importance of these arrests, Polaris has recorded nearly 2,000 incidents of sex trafficking that involved Backpage and further states that the National Center for Missing and Exploited Children told a Senate subcommittee “that 71 percent of all suspected child sex trafficking reports that it receives have a link to Backpage.”

Despite numerous claims—including by prominent digital rights activists—that Backpage has exclusively operated as a neutral site hosting user-generated classified ads in both “adult” and non-“adult” categories, the arrest warrant highlights include the following:

  • that well over 90% of Backpages’s tens of millions of dollars in revenue came from the “Adult” ads, which have clear links to both consensual and forced prostitution.
  • that Backpage became known by those in the commercial sex trade to be the “online brothel.”
  • that Ferrer and his associates purposely grew the “Adult” ad trade both domestically and abroad.

Perhaps the most damming evidence is that Ferrer and his associates allegedly used Backpage data to create what the warrant calls “escort directories,” sites that are in no way user-generated, but which are designed solely to drive customers for commercial sex to Backpage ads. Additionally, 7 of the 8 witnesses interviewed about their use of Backpage ads were identified in the warrant as “victims of trafficking,” some forced into prostitution before the age of 14.

Section 230 of the Communications Decency Act

Section 230 of CDA, which was passed in 1996, is the legal statute which states that online service providers shall not be treated as “publishers.” Site operators acting in good faith, and which are driven in part or in whole by user-generated content, are shielded from litigation stemming from material posted by a third party that might otherwise be actionable. In a nutshell, what the DMCA “safe harbor” does for OSPs and copyright infringement, CDA 230 does for just about every other kind of content.

In regard to a 2015 civil litigation filed against Backpage by three women—all allegedly victims of trafficking—the Electronic Frontier Foundation argued that CDA 230 required the dismissal of their claim against the site. As stated by Sophia Cope on September 8, 2015, “Where a website clearly participated directly in developing the alleged illegal content, immunity from suit is properly lost. But in cases like this, where the provider has allegedly colluded by the apparent implications of website design and content policies, Section 230 requires that the complaint be dismissed.”

Although this was not the EFF’s only statement on the matter, it was the crux of that organization’s defense of 230 in regard to the Backpage litigation.  This view was upheld in Massachusetts District Court and in the First Circuit Court of Appeals but was rejected by the Washington State Supreme Court, which allowed the civil suit to proceed.

When the EFF argued that CDA 230 was grounds for dismissal of the plaintiffs’ civil suit against Backpage this a) was within the purview of that organization’s mission; and b) stopped well short of defending Backpage itself when there was a reasonable probability that the ongoing criminal investigation could reveal that the owners were implicated in illegal activity.

Taking the Free Speech Thing Too Far

Where the EFF crossed that line, it appears, was on July 6, 2015, when director of activism Rainey Reitman strayed far beyond the scope of judicial application of CDA 230 and engaged in speculation to defend Backpage on free speech grounds. This was in response to a decision by major payment processors—Visa, Master Card, & Amex—deciding in that month to cease processing transactions for Backpage.  Reitman called this “caving to government pressure,” accusing the processors and law enforcement of stifling free speech.  She wrote …

“We don’t need Visa and MasterCard to play nanny for online speech. Payment processors and banks shouldn’t be in the position of deciding what type of online content is criminal or enforcing morality for the rest of society. For one thing, their businesses haven’t been designed to analyze the legal and societal issues at play in various forms of online expression.”

She further states (and this is the paragraph that gets me):

“Backpage.com can be used to sell an old refrigerator, find a new apartment, post about new community workshops, find a job, and offer many other services and goods. It also hosts an “adult” section of the site, where some people advertise escort services or try to connect with people who have similar sexual interests. This “adult” section requires visitors to confirm they are at least 18 years of age and allows users to get resources for reporting cases of suspected sexual exploitation with one click.”

Not only does Reitman engage in unfounded speculation about Backpage’s innocence—which seems like an unnecessarily dumb move for the EFF to make—but she actually implied that the site was helping to curb exploitation.  This particular rhetoric will sound familiar to copyright interests who’ve been listening to the Holy Trinity of infringement defenses for years.  1) We don’t know what’s happening on our site. 2) We host material that isn’t infringing.  3) Anyway, we’re helping you.

As the arrest warrant states, the non-“Adult” section of Backpage—the part innocently selling refrigerators and such—is mostly supported by free ads while the “Adult” section is supported by paid ads.  The warrant further states that from January 2013 to March 2015, 99% of the site’s revenue (which is in the tens of millions) came from the “Adult” section but that this ratio dropped to 90% in May of 2015, apparently after the major payment processors pulled their accounts.

Any reasonable person could deduce that the paid part of Backpage’s business was worth money while the free part was not; any reasonable person could observe that Backpage hosted a very large volume of ads for the commercial sex trade; any reasonable person could know that at least a portion of the commercial sex trade involves trafficked victims, including minors; and any reasonable person could know that the company was under investigation.  Given these plainly observable data, it’s hard to fathom that the EFF would allow Ms. Reitman to publicly assume Backpage’s fundamental innocence in the service of its chronic argument that everything online is protected speech. But it isn’t that hard to fathom.

Going back to the topic of “cultural capture” for a moment, I’ll stop short of accusing the EFF of knowingly defending alleged human traffickers, but I won’t stop short of accusing them of being so neck deep in their own PR bullshit, that they ended up defending alleged human traffickers for no reason.

Where Reitman really went too far down this road was when she described the “Adult” section as a place where users “try to connect with people who have similar sexual interests.”  As if Backpage were more like Tinder than the “online brothel” that everyone in the commercial sex trade seems to know that it is.  Those tech-utopian words connect and interest are just so friendly and Googley and social, one would never think to associate them with 13-year-olds forced by violence and threats of violence into the commercial sex trade.

Even if the folks at EFF could have reasonably convinced themselves that the owners of Backpage were not knowingly profiting from the commercial sex trade—and by extension trafficking—I think they were foolish to stray beyond commenting on anything other than the relevance of CDA 230 in a civil lawsuit.  To declare, as Reitman did, that, “Backpage, however, is not engaged in human trafficking. It shouldn’t be treated as if it were,” was an assumption that not only stepped outside the EFF’s wheelhouse, but it was also an absurd logical leap that appears to have been entirely wrong.

The point, of course, is not really the EFF itself but the message they promote, which assumes that all site owners naturally maintain a veil of ignorance about the content of their sites and that all online activity is protected speech.  Neither is true.  At the very least, site owners can certainly know where their money is coming from, and protected speech largely pertains to state action, not private enterprise.  I get why it’s easy to play this PR game with copyright infringement—because it seems like a victimless crime and because there is an amount of infringement in the digital age that rights holders are going to have to accept as unstoppable.  But I should hope that there is no percentage of for-profit, violent, human exploitation that we are willing to tolerate because we’ve lost perspective on what free speech is and why it is protected.

How the “Dancing Baby” Case Went Crazy

Last week, both the Electronic Frontier Foundation and Universal Music Group filed petitions with the United States Supreme Court in regard to what is commonly known as the “Dancing Baby” case.  The “baby” in question is about 11 years old now, and for those who might not know how a mundane home video became the focus of a multi-year, federal litigation now begging the attention of the Supreme Court, let’s review …

In February of 2007, Holden Lenz of Pennsylvania was just 18-months-old when his mother Stephanie video taped him dancing to the Prince song “Let’s Go Crazy” and then posted the video on YouTube—a platform that was just six months older than Holden. Because Prince was especially guarded about all uses of his music—and was justifiably critical of YouTube in particular—the Lenz video was one of several targets added to a list of DMCA takedown notices to be filed by Universal Music Group on the artist’s behalf. The “Dancing Baby” video was removed on June 5, 2007, and according to an ABC News story published in October of that year, Lenz stated that she was initially “frightened” about having her video removed from YouTube, concerned that UMG might file suit against her, and then the fear of said litigation made her “angry.”

So between the Summer and Fall of 2007, the public version of this story had already begun to stray from the relevant facts in the case. For starters, Ms. Lenz, on her own, had immediately sent an incorrectly filled-out DMCA counter notice on June 7 seeking to restore her video. But if she were truly frighted about a lawsuit by UMG, that would have been the moment for her to proceed with caution because a DMCA counter notice can, in some cases, trigger legal action by a rightsholder. Subsequently, at the advice of an attorney friend, Lenz contacted the Electronic Frontier Foundation to better understand her options, believing at the time that UMG might have infringed her First Amendment right of free speech.

PR by Litigation

Keeping in mind that nearly ten years ago, when this adventure began, it was easier for organizations like EFF to promote the message that DMCA takedown was widely abused and, therefore, chronically chilling speech. They still promote this message, of course, but in recent years, both research data and anecdotal evidence from numerous rightsholders indicate that takedown abuse is the exception while rampant infringement without recourse under DMCA is the rule.

On June 27, 2007, the EFF sent a correctly filed counter notice on Lenz’s behalf. YouTube restored the “Dancing Baby” video by mid July, and the EFF then filed its initial complaint against UMG on July 24, 2007. From there, both the public story and the court records suggest that Stephanie Lenz became, as Stephen Carlisle of Nova Southeastern University puts it, the “nominal plaintiff” who provided an ideal opportunity for the EFF to embark on an odyssey of PR by litigation—a lawsuit looking for an injury. After all, the video itself, as anyone can see, could not be more harmless; it has an actual baby in it!

In part, what we know about the motives and strategies driving this case is due to Ms. Lenz’s own carelessness as plaintiff when she revealed enough information, via emails and social media, that in 2010, she lost her attorney/client privilege to specific portions of her communications with the EFF. The casual communications cited in the record suggest that the EFF was determined to “get” UMG for something—Lenz uses the expression “salivating over getting their teeth into UMG”—even if they had to keep changing strategies to figure out what exactly UMG had done wrong.

Shifting Rationales

Technically, the Lenz case is pretty boring. A mom had a home movie taken down from YouTube and then that home movie was restored to the platform via the DMCA counter notice procedure, which is exactly the process Congress envisioned when it wrote the statutes. Had there been no expectation of occasional error or flaw on the part of rightsholders, there would not be a statutory counter notice “put back” procedure in the first place. The fact that the Lenz video was offline for a period of six weeks was due neither to a particular flaw in the DMCA nor to any action taken by UMG.

Moreover, the extent to which Ms. Lenz felt “injured” by the removal is unclear since in one of her emails, she stated, “I don’t care if YouTube doesn’t want to host it. Not like I’m paying them.”  This was reported by CNET in a February 2011 article in which EFF attorney Corynne McSherry is cited promoting the message that copyright owners are frequently “careless in sending notices” and, therefore, “interfering with free speech.”

But although Lenz stated that her initial belief was that UMG had infringed her First Amendment rights—and this story has often been referred to in the press and on social media as a free speech issue—the fact is that even the EFF would eventually concede that the temporary removal of the video did not implicate the First Amendment. This is because neither UMG nor YouTube is a state actor, and because the content of the video did not contain political speech, criticism, parody, or newsworthy content of any kind.

According to email communications made by Lenz, it appears the EFF considered a few avenues to pursue litigation, including a California State breach of contract complaint, which suggests that Lenz’s story did not immediately present itself as a constitutional or DMCA case in EFF’s mind. In fact, the initial complaint filed in July of 2007 was for “tortious interference,” which was dismissed.

Additionally, in a June 14, 2007 email to her mother (10 days before the first complaint was filed), Lenz states that EFF’s pro bono “fees” would be covered by “the settlement.” This may just be a layman misspeaking because an expectation of a settlement would be a very odd strategy for a rights advocacy organization that is supposedly taking a case on principle. After all, a settlement by the litigants generally means the court does not rule on whatever principle is being argued.

The EFF amended its complaint to argue that UMG had violated §512(f) of the DMCA, which states that a plaintiff may seek damages if a takedown notice filer “knowingly and materially misrepresents that the material or activity is infringing.” And that is how Lenz v UMG became a fair use case. A plaintiff does not have to have suffered financial loss in order to prove that an injury has been caused, but absent an abridgment of Lenz’s First Amendment rights, the EFF’s argument now rests solely on the sheer wrongness that the video was removed at all—that it was, in their words, “censored for six weeks.”

As indicated above, given that Ms. Lenz chose, in error, to investigate the First Amendment implications, and that the EFF chose to take the time to transform this minor event into a major case—and in light of the fact that the OSP (YouTube) is responsible for restoring files at its discretion—the six-week interval cannot be considered the responsibility of the defendant. In general, whatever factors result in a file being restored, either within hours, days, or weeks, are not in the control of the original takedown notice-sender; and as the UMG petition states, the Lenz video was ultimately restored via the counter notice procedure. In other words, Lenz’s and EFF’s time spent exploring both tort and constitutional violations—both of which fail—is neither UMG’s fault nor its responsibility to pay for.

Lenz Becomes a Fair Use Case

So, the only way for the EFF to argue that UMG had “knowingly misrepresented” that the “Dancing Baby” video was infringing was to prove via testimony that the company had not “instructed its employee to consider fair use” before filing the takedown notice. And that’s where we are today. In September 2015, the 9th Circuit Court of Appeals agreed that a rights holder must “consider fair use” before sending a takedown notice but stopped well short of agreeing with EFF’s assertion that such a consideration must be made based on an “objective” standard.

The EFF has tried to argue—indeed it can only argue—that a failure to “objectively consider fair use” is tantamount to “knowingly and materially misrepresenting that the material or activity is infringing.” As an amusing side note, in an early email to a friend (June 12, 2007), Lenz stated, “Mine’s not a fair use case at all.” Granted, she cannot be expected to know the law per se, but in context to the other comments and court records, this early email does seem to support the view that this entire case has been a fishing expedition—a lawsuit looking for an injury.

As argued in the UMG petition, a “subjective” standard with regard to all considerations is the reasonable and correct interpretation of the DMCA statute, which requires a takedown notice-sender to have a “good faith belief” that a use is infringing. The plain meaning of “good faith belief” is clearly subjective; and fair use doctrine is the most subjective aspect of copyright law—a multi-faceted assessment for which the precedent caselaw provides myriad, conflicting and narrow outcomes.

Hypocrisy Undermines the Intent of DMCA 

So, even if the most experienced copyright attorney in the country were instructed to make an “objective” fair use assessment, she might ask how exactly this would be achieved. While it’s true that attorneys can make very solid fair use assessments—especially where precedent provides guidance—an “objective” standard applied to DMCA takedown notices would only further disenfranchise the independent rights holder who is no more an expert than Ms. Lenz was. This implies the need for counsel which contradicts the extra-judicial purpose of DMCA.

The truly galling hypocrisy here is that the indie rights holder would be expected to know with certainty when a use is fair while users remain free to infringe with impunity, and large OSPs are free to monetize those infringements on the basis that they “cannot know” what’s infringing or what isn’t. For the small rights holder DMCA is already toothless, but EFF would like to make it voiceless as well.

In Lenz, absent a ruling by the Supreme Court that fair use can be considered “objectively,” the foundation that UMG was ever in violation under §512(f)—that it “knowingly and materially misrepresented” that the “Dancing Baby” video was infringing—should fail. Consequently, the argument that any non-pecuniary injury was caused should also fail. Perhaps, the EFF will succeed in getting the $1,275 in pro bono “fees” Lenz theoretically owes the EFF for filing the counter notice in 2007, which would make this case landmark indeed—getting the Supreme Court to adjudicate a small claim.

Finally, it’s worth noting that in the same October 2007 ABC News story cited above, Gigi Sohn, then head of Public Knowledge, opined, “I think the large copyright holders believe that if they do not police every single use of their copyrighted work — no matter how benign — that somehow that will open the floodgates to massive piracy.”

Whether this observation was acutely naive or just cutely dismissive, the fact remains that over the next several years after Sohn said this, YouTube would go on to earn fortunes by hosting diluvian proportions of infringement by its users. In light of the immeasurable losses to working authors, who have almost no power under the DMCA to protect their rights, the EFF should frankly be ashamed of themselves for spending nearly a decade in federal courts fighting to protect absolutely nothing.