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.

Stay Down Provision Will Not “Entrench” YouTube Dominance

This is an argument that’s been around for quite a while.  I first stumbled upon it in 2013, found it again in the recently published report by Berkeley and Columbia researchers, and I understand it came up again in round-table discussions held last week at the 9th Circuit Court of Appeals regarding Section 512 of the DMCA.  The premise is this:  that if rights holders demand a takedown provision, and this in turn requires technological measures to achieve, then such measures will entrench the dominant market positions of sites like YouTube because only giant companies will be able to afford to deploy these technologies.  It sounds like a reasonable concern as long as we ignore the realities of the networked economy.

YT GorillaYouTube’s dominance is created by market forces and the general tendency of a networked economy to foster monopolies.  As discussed several times on this blog, and in numerous articles from multiple other sources, it’s a natural function of the digital market to shrink competition in certain lines of business.  Once a platform acheives critical mass and offers a service like social video, there is not only no particular need for consumers to seek a competitior, there are clear disadvanages to choosing a competitor.  For instance, one can host video on a service like Vimeo, which offers many great features, but if one needs to drive traffic and improve SEO, there really is no substitute for YouTube, especially because of the way in which the platform is intertwined with Google’s dominant position in global search.

These are market factors that have no direct relationship with provisions like YouTube’s Content ID or other copyright compliance (or lack thereof) policies and technical measures.  If anything, it is astonishing that self-proclaimed public advocates can pretend to be criticizing YouTube in this regard when it is that company’s bad-faith application of DMCA in the first place which enabled it to gain the monopoly position it now enjoys. YouTube brazenly acquired its marketshare with an infringe-now/sort-it-out-later strategy; and now its representatives, in the guise of defending competition, have the nerve to suggest that technical measures to achieve stay down will only “entrench” this ill-gotten dominance. So, if we’re going to debate any technical measures that may be required for a YouTube-size OSP to fulfill a stay down provision, that discussion should only proceed based on an honest appraisal as to why certain OSPs are already monopolistic and may remain so regardless of any new requirements to protect rights holders.

Additionally—and I’ve raised this issue before—we saw in BMG v COX that new technical measures are not the only approach to acheiving better compliance with the intent of DMCA safe harbor provisions.  As the law stands today, in order to maintain the safe harbor shield, an OSP must meet certain condions, and among these is the maintenance of a policy whereby a repeat infringer will ultimately lose his or her account with the OSP.  But ever since passage of the DMCA, OSPs, bloggers, pundits, and organizations like the EFF have been playing a semantic shell game with rhetoric like What is a repeat infringer? And while it is true that the DMCA does not specify the exact terms of a repeat infringer policy, the details revealed in BMG v COX demonstrate just how absurdly “good faith” can be abused by a service provider.

As described in a previous post, COX’s “repeat infringer” policy was what we might call Fourteen Strikes and You Get a Very Stern Warning.  As a result of this clearly insufficient policy, the judge in the case rather sternly rejected COX’s initial safe harbor defense and allowed the trial to proceed, in which BMG ultimately prevailed.  The reason I bring up COX is that the failure of DMCA to protect rights holders in this instance does not implicate new technical measures at all. Instead, COX suggests that the language of the law is too broad and can, therefore, be willfully misinterpreted by an OSP as to undermine the intent of DMCA.  BMG had to go to court to demonstrate that COX was not anywhere close to meeting its obligations to provisions that were meant to be a compromise measure designed to avoid litigation in the first place.  COX itself does not concern a stay down provision for an individual file, but the repeat-infringer issue, it seems, may be viewed as a parallel subject for proposed statutory revision.

And so the circumstance we have now—especially the story that leaks out into the public dialogue—is a double-lie.  Part one is that new technological measures are the only way to mitigate repeat infringement of individual files or by individual users; and part two is that these technical measures can only “entrench” monopoly OSPs despite all evidence that these monopolies may persist due to market forces.  As policy-makers consider revision of Section 512, I believe it is worth noting the fundamental dishonesty of these arguments and to ask why, after so many years, they remain lead talking points of the internet industry.

Fight for the Future Naive About King “Dream” Speech

FFTF Dream Screen Shot

I have a dream that one day my children will be judged not by the content of their character, but by the content they can steal.  

So, my friend David Lowery, on his blog The Trichordist, has been taking the organization Fight for the Future to task lately, and he most recently caught the organization in a lie related to DMCA  takedown and their defiant upload of Martin Luther King’s “I Have a Dream” speech to YouTube. Back in 2013, to celebrate the  first anniversary of the defeat of SOPA, FFTF posted the “Dream” speech to YouTube in direct violation of the King estate’s copyright in the work; and the group told people to share the clip in what they called a “small act of civil disobedience.”  Small indeed. It’s bad enough to conflate the whinging, privileged, and corporate-backed “fight” against SOPA with the deadly labors of Dr. King, but there’s something even more insidiously galling about this whole MLK/copyright conflict that Fight for the Future and their ilk really don’t understand.  And maybe it’s because they grew up in a world of sound bites.

Since roughly five minutes after the Constitution was ratified, this country has been trying to live up to its own ideals, and getting there—and we’re not there—has taken decades and cost many brave people their lives.  In that speech on the steps of the Lincoln Memorial, King is demanding that America be true to its principles when he invokes the Declaration’s all men are created equal.  Those words are Jefferson’s preface to citing the natural rights of Man, which Jefferson cribbed from John Locke, whence comes the idea that the fruits of one’s labor are a civil right.  King’s enormous contribution is a part of that continuum—a history of struggle for the value of the individual voice to vote to speak to protest and to enjoy the fruits of his or her labor on equal footing with all other citizens.  And that last principle is why the intellectual property clause exists in the Constitution in the first place.

Yes, Dr. King is a big part of America’s struggle toward its best intentions, but it isn’t just a story about prejudice against race or sex or identity; it’s a story about the value of the individual and his or her right to pursue happiness.  Hence labor rights are invariably a central component of every civil rights battle ever fought—from literal slavery to the workers’ rights of the early 20th century to ongoing demands for equal work opportunities for women.  When Martin Luther King was murdered in Memphis on April 4, 1968, he was there to protest the exploitation of city garbage workers.  Even the “Dream” speech itself was part of a march called “The March on Washington for Jobs and Freedom.”  The value of the individual’s labor is a cornerstone of civil rights; and what these featherweight activists at Fight for the Future completely fail to realize is that intellectual property rights are a significant expression—in fact the first legal expression in this country—of that fundamental principle.

Meanwhile, the free speech we enjoy—the free speech groups like FFTF believe is threatened by the King family’s copyrights—owes a great deal to the courage of King and his followers.  In the 1964 case of New York Times Co. v Sullivan, Alabama courts upheld a libel claim against the Times for publishing an ad called Heed Their Rising Voices in support of the King-led marches in the South.  The city commissioner of Montogomery L.B. Sullivan sued over the negative portrayal of his police department, and had the US Supreme Court not overturned key precedents in the lower court rulings, then the power of newspapers and public advocates to criticize elected officials and government agencies would likely have been diluted for many years to follow.  So, even with regard to free speech itself, all this digital-age dithering over a work that is widely and affordably available is a little pathetic in context to the history in which these people are dabbling.  (Coincidentally, I watched the “I Have a Dream Speech” last night, for the zillionth time in my life, as part of Episode 5 of the CNN-produced series The Sixties, now streaming on Netflix).

So, yeah, we can debate the practical application of copyright, discuss whether or not a particular work should remain protected and for how long.  But when a bunch of privileged, 21st-century kids (backed by very wealthy corporations, I might add) declare, from the comfort of their keyboards, that the emancipation of Dr. King’s speech from the “chains of copyright” is somehow a fight for civil rights, I propse that FFTF should change its acronym to STFU.  This is especially true when their idea of a “moral responsibility to disobey unjust laws” means in this case to serve King up to corporate masters so his legacy can rightly become their property to monetize rather than his family’s.

My generation grew up with Dr. King’s words as part of our consciousness, miraculously without the aid of YouTube or the internet.  In fact, it’s noteworthy that the limited scope of access in the 1960s probably played a significant role in accelerating the progress of particularly the Voting Rights Act.  Because the first wave of Selma marchers had the unbelievable guts to walk unarmed into a mob of cops and goons brandishing knightsticks, pipes, and barbed-wire-wrapped clubs, and because the enitre nation was limited to just a few TV networks, it meant that tens of millions of citizens simultaneously watched—in a sense were forced to watch—the sight of innocent people being mauled. So, our new world of abundance isn’t always the potent, connective tissue we think it is.

Probably the most telling irony in this story is that by spending so much energy and corporate money fussing about the copyright on Dr. King’s “I Have a Dream” speech, the folks at Fight for the Future demonstrate that they don’t really seem to understand the speech at all.  They demand access on principle but learn nothing about the work itself.  And if that isn’t the lie of the digital utopia writ large, I don’t know what is.

Democracy Officially Improved by Information Age

FB 1800

With the inevitability of Donald Trump’s nomination as the GOP candidate for president, I think we can officially declare the “information revolution” a rollicking success, don’t you?  When the savants and silicon pioneers of the 80s and 90s predicted that the Information Superhighway would be a great leap forward for democracy, I don’t remember anyone intimating that we would ride that highway to the demolition derby that American politics have since become. The unlikely, populist rise of an arrogant billionaire, whose monosyllabic campaign is textbook authoritarianism, is merely the latest extreme example suggesting  that information is utter bullshit.  Without context, without reason, without compassion and empathy, information is meaningless no matter how much its volume or speed of delivery may increase. Rarely, in all the theater of our post-internet politics, can it be said that Americans have been splashing about in the tide pools of ideas any more than we were 200 years ago, when information moved at the speed of the printing press and horse.

The image above refers to the highly-contentious campaign between Federalist John Adams and Republican Thomas Jefferson in 1800, in which the factions supporting these two founding fathers slung ugly at one another in ways that would have made shareholders at CNN wet themselves with pure Cristal.  Donald Trump’s circus of vitriol is amateur hour* compared even to the pundits of 1800.  As one writer for the Connecticut Courant wrote of Jefferson, whose deism was the focus of many a Federalist concern, …

Look at your houses, your parents, your wives, and your children.  Are you prepared to see your dwellings in flames, hoary hairs bathed in blood, female chastity violated, or children writhing on the pike and the halbert?

That’s the real stuff right there.  All Trump did to launch his campaign was insult every hispanic on earth.  But in 1800, the villain who was going to see to it that your women were violated and your children murdered was none other than the author of the Declaration of Independence himself. And according to the book Presidential Campaigns by Paul F. Boller, Jr., whence these stories come, a Connecticut woman really did try to hide her family Bible with a Jeffersonian friend for fear that the new president’s goons would soon be coming to confiscate and destroy it—her logic being that, “They’ll never think of looking in the house of a Democrat** for a Bible!” (Sounds like a theme we’ve heard for the past eight years regarding Obama and guns, no?)

Jefferson’s views remain central to the ongoing, constitutional debate on the separation between religion and state—a passionate argument that still produces behaviors as preposterous—if not more preposterous—as the woman hiding her Bible from the president.  American Christians in 1800 were apt to believe that Jefferson would end religion altogether in the United States—a falsehood that was largely manufactured by the Federalist party and Christian leaders, who relentlessly blasted Jefferson’s supposed atheism.  And Jefferson was not above firing back with some exaggeration himself, arguing that if, as magistrate, he were to declare national days of thanksgiving and fasts (as Adams and Washington had done), that the nation might as well reverse the revolution and return to rule by the English monarch, who was literally the head of the national church.  The separation issue, for Jefferson, was central to the rationale for republicanism itself—an idea not without historic merit, but a nuance lost amid the emotions of the public.

It had been less than a decade since the ratification of the Bill of Rights, and the realities of governance had already divided the heroes of the revolution and framers of the Constitution into snarling factions.  And though there was real animosity in many cases (e.g. the Federalist Hamilton hated Adams’s handling of the presidency), the public perception of the candidates’ true beliefs and ideas was as distorted by emotion and as exploited by the opposition as it is today. And these were the dudes who invented the country! Had there been Twitter and Facebook—had information moved as fast then as it does now, it is conceivable that the new and tenuous republic—which had not yet tested most of its constitutional principles—might not have withstood the heavy onslaught of utter nonsense that today aggregates so much empty-headed outrage into tangible political forces.

In getting to the real question, though, as to whether the internet has been good or bad for democracy, it’s hard to deny that it has certainly made what was already bad considerably more effective, which was never openly imagined in the ebullient, early days of the digital revolution.  It seems pretty clear now that groups and individuals who were previously and properly relegated to the “lunatic fringe” have coalesced via networked communications into bodies of political force that draw completely new—yet generally regressive—boundaries of political ideology.

The downside of “democratizing” the dissemination of information is that anybody gets to play and that anybody really does mean anybody. And because it is the nature of the internet to connect people to the information they want to know and then connect like-minded people to one another, we might have expected that the lunatic fringes of both the left and right would congregate at either end of the pole and give rise to new political factions among digital natives—factions that cannot properly be defined as classically liberal or conservative, democrat or republican.   And they like it that way.

Among the extreme left, we have the social justice warrior types—the ones who see micro-aggressions in every interaction, demand safe spaces on college campuses, refuse to read assigned classics they find “triggering,” and who use terms like cultural appropriation and patriarchy as excuses for disengagement while claiming to respect diversity. They are insufferable people, who have managed to use the privilege of their educational opportunities to invent new forms of cultural segregation, beginning with mandatory self-flagellation by all white, heterosexual males.  Naturally, the SJWs, as they are called, are an internet phenomenon; and their antagonists, the alt-right, also found one another in cyberspace.  Both sides have grown up expressing their political sensibilities in the intolerant lingo of Trollish; and the one aspect they seem to have in common is tribalism. Their sublimation of the individual for the sake of the hive is unquestionably a reflection of their digital nativity, and it is a quality that confounds sensibilities among both democrats and republicans for its inherent un-Americanness.

Jack Hunter, a conservative writing for The Daily Beast about the alt-right, describes a foggy space between troll-like behavior reacting to the identity politics of the social justice warriors and the extent to which that rhetoric inevitably finds kinship with honestly-meant white-supremacist views. Hunter writes, “ … the heart of alt-right tribalism leads to something that is definitively anti-libertarian and functionally authoritarian. The alt-right is characterized by an extreme collectivism that is unavoidably racist.”

When Donald Trump declares without a hint of nuance that, “PC in this country has gone too far,” he successfully rallies both the troll and the real racist to his brand of intolerance. In many ways, Trump’s nationalist theatrics are a thuggish version of the optimistic and reactionary campaign run by Ronald Reagan in 1980—invoking a nostalgia for an idyllic America that never existed–unless one views as utopian the kind of innocence that would play in the fog of DDT trucks, picnic at the edge of nuclear test blast zones, and demand that the races and sexes remain neatly organized into their “rightful places.” But the important shift in tone from affable Reagan to boorish Trump brings groups like the KKK, Neo-Nazis, and the openly racist alt-right out of the shadows and into the mainstream of national debate. Meanwhile, the Bernie-or-Bust crowd—many who would be voting for the first or second time—seem to have decided that if we cannot attain a new socialist utopia in the next four years, they’re just going to pack it in.

Certainly, there are many interrelated and complex reasons why our politics are the way they are, why they have always been this way. In a sense, I suppose we have to admit that the digital revolution has been “good for democracy” to the extent that vox populi is louder than ever.  Whether or not the voice is saying anything we can call progress is whole other question.

* Since the publication of this post, it is fair to say that Trump’s rhetoric has exceeded the hyperbole of the past.

**The Republican Party of Jefferson would later become the Democratic Party, but it was common to use the term in general discussion prior to the official change.