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.

Excitement over Librarian nominee is not an excuse to mislead.

The February nomination of Dr. Carla Hayden by President Obama to the position of Librarian of Congress was apparently cause for excitement among many of the usual suspects who write in opposition to copyright.  Because the Copyright Office operates within the purview of the Library of Congress, and the Librarian has final say in key proceedings, some pundits are anticipating that Dr. Hayden’s views on issues like open access and privacy suggest that they can count her as an ally in their ideological camp on copyright issues.

Historically, the Librarian will defer to the Register of Copyrights on most copyright proceedings for the simple reason that the Register is a copyright expert and the Librarian is not.  While both figures play important policy roles, the significant differences in their areas of expertise has led various interested parties to call for a separation between the Library of Congress and the Copyright Office.  That discussion aside, though, the ebullience of certain voices over the prospect of Dr. Hayden as Librarian seems typically glib and even potentially self-defeating.

For instance, longtime copyright critic Cory Doctorow set off this flash-bang of a comment in Boing Boing immediately following the nomination. Yet, despite his proclaimed passion for these issues,Doctorow could not be bothered to contribute more than 160 of his own words on the subject, 65 of which state the following:

“Next up: watch for a move to rip the US Copyright Office (which now gets to make rules on things like whether the DMCA prohibits you from using generic insulin in your insulin pump) out of the Library of Congress, relocating it in Congress where it can be directly overseen by the Congressjerks who have been on the entertainment industry’s take since their first campaign.”

Forget which side of an issue you’re on for a moment, how is that kind of statement not just divisive and meaningless?  As a thinker and author, Doctorow apparently has no qualms about conflating diabetes, the DMCA, Congress, and the entertainment industry in a single head-spinning sentence designed to trigger a purely emotional reaction while conveying neither information nor an idea of any kind. But then, this is the world we live in today—one in which people make snap, political judgments based on narratives that read like this:  Hollywood is paying Congress, so the Copyright Office will use DMCA to prevent diabetics from gaining access to generic insulin.  See how if we organize Doctorow’s implications into a clear declarative like that, it sounds totally crazypants?  Yet, the number of questions begged by his inflammatory statement will not stop plenty of people from sharing his “article” on social media. And we wonder why our political process today is so ugly.

Access to generic insulin is—as I understand it—a serious issue, but not one that is directly related to the DMCA.  In this regard, Doctorow is casually referring to Section 1201 of the law, which is currently under review by the Copyright Office. This section of DMCA prohibits the circumvention of Technological Protection Measures (TPM) used to control access to copyrighted works (including operating software) and prohibits trafficking in tools used for circumvention.  Advocates of open access and the “right” to jail-break cellphones, etc. view TPM as exclusively restrictive to both innovation and civil liberties, though this view, as it is presented in the public debate, can often be narrow in its perspective and overstated in its significance.  For instance, arguing for the “right” to jailbreak cellphones makes good bloggery, but the extent to which it is a real practical concern among the billions of cellphone users in the world is another question.

Bringing this back to Doctorow’s comments, though, the closest thing I can find to a an actual story related to DMCA and insulin is a 2014 class of petitioners who sought exemptions to the anti-circumvention prohibitions in 1201, largely for the purpose of conducting research into consumer products whose software might be susceptible to dangerous hacking.  Included among the classes considered was the software security research of Jerome Radcliffe, who discovered vulnerabilities in the operating software in certain insulin pumps. This type of exemption is exactly the kind of ruling over which the Librarian has final say but will typically defer to the judgement of the Register.

The class of petitions in this case were granted the exemptions being sought, and it is worth noting that the Register provided 400 pages worth of analysis, including an acknowledgement that some of the considerations presented by the class of petitions are not properly the purview of the Copyright Office.  From the recommendations …

“The rules that should govern such research hardly seem the province of copyright, since the considerations of how safely to encourage such investigation are fairly far afield from copyright’s core purpose of promoting the creation and dissemination of creative works. Rather, the rules that should govern are best considered by those responsible for our national security and for regulating the consumer products and services at issue. That said, it is inescapable that the anticircumvention prohibition in section 1201(a)(1) plays a role in the debate.”

This doesn’t mean that all of these considerations are best determined by the Librarian of Congress either—only that the Register acknowledges that several of the classes considered in this particular review—which included voting machines, nuclear power plants, and air-traffic control systems–seems more reasonably to belong in the hands of Congress and other federal agencies. Indeed, as our world becomes increasingly driven by software, we should expect federal agencies to review how these works of code affect consumer safety, security, privacy, etc., and it is probably correct that many of these concerns are well outside the scope of either the Library of Congress or the Copyright Office.  But what any of this has to do with patient access to a generic drug is a mystery; and it is irresponsible for pundits like Doctorow to carelessly invoke an emotionally-charged reference—let alone point a finger at the entertainment industry in this context.

Furthermore, the detailed analysis made by the Register of the petitioners’ and their opponents’ arguments indicate precisely why these considerations are best weighed by experts in copyright law. And no reading of the Register’s recommendations could rationally be labeled “maximalist” or failing to consider the public benefits implicated by the petitioners’ goals. In fact, the degree of attention the Register gives to the petitioners in this case suggests that it could be potentially detrimental to the very purpose of these exemptions to have them considered by a party other than the nation’s copyright authority.  In other words, the Register came to the conclusions that observers like Doctorow would want to see, but the rationale applied in considering the role of copyright actually does matter.  Or to paraphrase a colleague of mine, “You don’t put the EPA in charge of the military just because the military has an environmental impact.”

Meanwhile, the exemption process in this case functioned as it is meant to, though some critics have cited the triennial review of petitions for exemptions as unduly burdensome on researchers like Radcliffe.  And, in fact, the Copyright Office review of  Section 1201 has asked for comments with a view toward making both the review and renewal process for exemptions more efficient.  Suffice to say, though, review of Section 1201 is not a discussion that can or should be boiled down to a tweet, and neither is a discussion about the proper relationship between the Librarian and the Register.

The 15-page comment by Copyright Alliance submitted last week to the Copyright Office regarding Section 1201 review further points out—at least insofar as creative works are concerned—that the section provides a legal framework for the development of diverse distribution channels for all the creative media we like to consume.  Netflix, iTunes, eReaders, streaming live TV on multiple devices, etc. all rely on both the circumvention and trafficking prohibitions in Section 1201 to build business models that allow for the continued production and distribution of the creative works.  “These provisions have served authors and audiences of creative works well by ushering in a vast variety of both new work and innumerable new technology platforms for distributing creative works in innovative ways,” writes Terry Hart, Director of Legal Policy for the organization.

While review of these, or any provisions, is an essential part of sound policymaking, we should recognize that turning all this digital innovation into new forms of commerce typically relies on some form of Technical Protection Measures and that there are many interrelated aspects to reviewing both the form and function of Section 1201. In the meantime, comments like Cory Doctorow’s are needlessly divisive and do nothing to further the public’s understanding of the issues.  In fact, it seems to me that those who champion the values of free and open access to information, should always make an effort to say something informative.

Would Bernie’s supporters let him take on Silicon Valley?

If Bernie Sanders became president and was then tough on the growing power of the Internet industry, would the progressives currently singing his praises still support him?  With this post, I am neither endorsing nor indicting the candidacy of Senator Sanders himself, but as his campaign is built on a theme of holding Wall Street and corporations accountable, I have to wonder if his supporters have contemplated the idea that, as president, if he were to wield Teddy Roosevelt’s sledgehammer, this means Silicon Valley and its capitalists, too.

After all, Google alone is among the largest corporate tax dodgers in the country; it now consistently ranks as in the top ten biggest lobbyists; it is among the federally subsidized; it has wriggled out of anti-trust investigations and paid its way out of criminal indictments for its executives; part of the businesses strategy is based on invading your privacy; the company is racing toward a trillion-dollar valuation without being profitable while its top execs live among an elite fraction of the one percent; it doesn’t employ very many people; and the company built a considerable portion of its market share by exploiting other people’s labor without permission.  Google isn’t the only Internet company to resemble these remarks—they’re just the biggest and most pervasive.

But we’ve seen what happens when the government tries to tell the Internet industry what to do, haven’t we? The industry rallies the masses by scaring the hell out of everyone with messages about free speech and a broken Internet and the end of democracy itself. And you’re right in the middle of a Candy Crush game, dammit! (On a side note, watching this particular campaign season, the idea that the “Information Age” has been a boon to democracy is a very tough sell.  If it really is possible to break the Internet, somebody show me how.)  Okay, back to the point …

I’m not at all surprised that Sanders’s message is popular with a lot of 18-29-year-old progressive voters.  Like the humane antithesis of Trump’s cultish message of intolerance, the Sanders campaign is certainly about being fed up—fed up with the fact that the system is rigged—and this frustration cannot be denied.  But how holistically this political base is willing to look at the rigging is another matter. When Sanders says “Wall Street”, how does that translate among his supporters?  Does it consider the networked economy of the 21st century?

Given the extent to which the sanctity of the Internet is hugely important to this same demographic, is anyone paying attention (including Bernie?) to the fact that the industry which has accelerated wealth consolidation, which has produced paper billionaires out of the most speculative—and often predatory—investments, and which evangelizes an ethos of operating above the rule of law is led by Google, Amazon, Facebook, Apple, Uber, Spotify, etc.  Like it or not, many of the same people who say they want a guy like Sanders to take the fight to Wall Street are trapped in a dichotomy in which simply sharing that message on social media is telling Wall Street to keep doing exactly what it’s doing. Or consider another example …

With an infusion this January of $2 billion in private equity from China, Uber is now valued at over $60 billion, making it bigger on paper than Dow Chemical, General Motors, or Time Warner.  Although there are many drivers currently operating, the company technically employs almost nobody, and it has recently invested some of its VC money in the future of driverless cars.  In fact, in recent announcements, Uber founder Travis Kalanick has stated that if they can eliminate the driver altogether, the price of using services like Uber will become cheaper than owning a car. In theory, he may be right; but that statement alone implies a dramatic, multi-decade transformation to our economy and our infrastructure. This may include ground-transportation services consolidated down to just one or two dominant companies by the same mechanisms that enabled Amazon to become the category killer in product fulfillment. But what exactly do we think that sixty-billion-dollar speculation is about, a ride-hailing service? Yeah. So, when Bernie says he wants to tax Wall Street and pay for infrastructure, how does the current capitalist bet on Uber’s future change that conversation?  We’ll “tax” Wall Street to pay for a public subsidy of a ground-transportation paradigm that is still owned by the 1%?

What the tech-utopian promise and the Sanders campaign have in common is that they both reflect frustration with the status quo, and both will frame issues in the language of democratization; but where the agendas differ is considerable and seems to highlight the two opposing streams in which the millennial generation in particular is standing.  Sanders voters want to make college free and healthcare more affordable while the Internet industry wants to make doctors and professors, to a certain extent, obsolete.  Sanders voters want to level the playing field while the Internet industry wants to own the field, the ball, the bat, and the photos you took while you were playing.  Sanders voters want to make America less corporate, the Internet industry is the ultimate corporatization (see networking) of everything.  Sanders voters talk about American jobs while the tech-utopian’s rhetoric has confused the mantra of “disruption” with Schumpeter’s creative destruction.  Sanders voters cannot possibly say they want any president to go after Wall Street today and not include the hugely speculative bets on the technological future this same constituency says it wants in the palm of its hand.

It’s not that we cannot or should not have the best future technology can provide, but if a Bernie Sanders (or even Hillary Clinton) were to take this economic agenda to the doorstep of Silicon Valley, and that industry responds with its standard barrage of messages that the Internet and our rights are “under attack”, will this segment of the electorate keep faith with its stated mission, or will they get fooled again?

Why is harassment in cyberspace different?

If a man overhears two women at the local coffee house advocating some point of view he doesn’t like and he then announces out loud that he hopes someone rapes and kills them, the management will toss him out on the street.  In such a scenario, patrons will applaud the ejection, and nobody in his right mind will suggest that this asshat’s right of free speech has been infringed. In fact, he is entirely free to find another location patronized by a fraternity of asshats, where they can pontificate on the virtues of rape and murder into the wee hours. But the coffee house owner has the right—even perhaps the responsibility—to bar this individual from ever entering the premises again. And I don’t think anyone would criticize this remedy to protect customers from his kind of harassment or disturbance.  But somehow, the calculus is different in cyberspace.

Washington Post tech writer Caitlin Dewey (someone I have sharply criticized for her copyright-related commentary) last week published a sobering account of independent game developer Zoë Quinn’s fight for justice in a criminal harassment claim against ex-boyfriend Eron Gjoni.  Quinn is the figure at the center of the widely publicized, “gaming-community” scandal known as Gamergate in which she allegedly cheated on Gjoni with a game critic in trade for a positive review of a game she developed.  This allegation was initially published in the form of a vengeful, post-breakup screed written by Gjoni that Dewey describes as, “… a seven-part chronicle of their relationship, complete with annotated chat logs and lurid sexual details, and [Gjoni] promoted the links in a series of forums known for their antipathy toward female and progressive game developers.”

Gjoni’s online tantrum spawned what can best be described as a shitstorm in the gaming world—a digital tornado of harassment, feminism, and the hormonal idiocy of teenage boys.  It’s the kind of story that makes a rational person say, “Okay, everybody out of the goddamn pool!”  And I don’t really want to wade too deeply into the convoluted particulars of Gamergate itself—enough has been written about it—but the story does appear to provide instructive examples as to why law enforcement may be ill-equipped to address the often-serious problem of online mob harassment and assault.

As Dewey reports, Quinn filed charges against Gjoni in Boston municipal court, and once the judge was made to understand something about the nature of online mobs, Quinn was granted relief in the form of a restraining order that included barring Gjoni from further publishing anything about her. And there’s the rub.  Can the courts really enjoin anyone from publishing anything, even when the individual’s hope is to incite a mob response, and even knowing that some portion of that mob could be legitimately dangerous? Not easy.

In a move that ought to be familiar to those of us who follow the netizen playbook on rights, infringements, and responsibilities, Dewey reports that Gjoni took his “case” to the orangutan court of social media, arguing that the clause in his restraining order proscribing his writing publicly about Quinn could be “used to silence activists” (i.e. he played the free speech card). This naturally led to an increase in harassment of Quinn and people close to her as well as seeding an online campaign to raise money for Gjoni’s defense fund. On the one hand, Gjoni is clearly overstating the implications of a single restraining order; but as piggish as his actions may be, he’s not wrong that criminal liability stemming from his actions is problematic.

In short, the point Dewey is emphasizing—and she’s right—is that criminalizing online harassment, particularly inciting a mob response, poses legal challenges that leave victims like Quinn with few remedies.  There may be any number of grounds to sue Gjoni in a civil action, but the criminal aspect of his decision to publish his rude tome, even knowing it would trigger mass harassment including assault, is tricky because it does implicate questions of free speech.

Additionally, even gauging the toxicity of the “mob” itself  is clouded by a lot of juvenile noise.  In a story like this one, in which feminists question sexism in games, the activists are going to provoke a lot underage teens whose parents haven’t taught them that it’s not okay to post “I’ll rape and kill you” online. But law enforcement can offer very little in response to a deluge of nasty-but-benign trash talk.  Additionally, any contemporary activist addressing almost any issue must be able to cut through some volume of baiting and trolling, lest the harassment itself become the story rather than whatever conversation the activist is trying to have.  It’s just the new reality when everybody—including the knuckle-dragger—has access to a public megaphone.

But where law enforcement may be stymied, private companies are not.  As with the lead example of the coffee house, Internet platforms are private property, where the owners have as much latitude to impose codes of conduct as any private property owner in physical space. And it may be time for the mainstream social media platforms of the world—and their users—to realize that they are not the guardians of free speech they presume to be; free speech will be just fine with or without them.  These platforms, including gamer forums, are just private locations, where the management may determine when a customer is abusing his membership.  For instance, a user who writes, “I’m going to rape you to death” might be a good place to start.  Why kicking a guy off Reddit for doing that when we would commend the same remedy in the local coffee house is a contradiction yet to be answered.