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.

“Friends” and Politics

This article by Ann Friedman for New York Magazine begins by focusing on the presidential candidacy of Hillary Clinton as a polarizing force, even among likely political allies.  But Friedman’s point isn’t politics per se, it’s friendship.  Specifically, she offers thoughts on the effect Facebook might have on friendships once politics enters the equation.  And it seems to me that politics always enters the equation — certainly far more often on social media than it typically does in face-to-face social interactions.  In many real life situations (e.g. the work environment), I think we still adhere to the old rule that says, “Don’t discuss religion or politics in polite company.” But on Facebook, Man, we just have at it, don’t we?  And to Friedman’s point, friends with whom we assume a political alliance will invariably reveal some annoying heterodoxy that not only disappoints but even produces rancor that might never have revealed itself without this platform.

Friedman reminds me that I’ve wondered for some time about the effect of Facebook on friendships and family relationships.  When my wife and I first joined the network, it was particularly fun because we’re both alumni of the same, small, slightly dysfunctional college with a gaggle of friends who are like extended family to us. We splurged on an instantaneous connecting spree, exciting as a scavenger hunt, unearthing friends we hadn’t seen or spoken to in more than a decade. It was great. At first. But after the initial rush wore off, Facebook felt a little bit like the school reunion that wouldn’t end or like having a hundred house guests who wouldn’t go home.  A brief period of recalibrating the role of this new social environment in our lives was necessary.

When it comes to friends and politics, we don’t traditionally relate to one another by first standing on soap boxes and affirming some strongly held belief. Imagine showing up to a party carrying a big poster of Hillary Clinton with words printed on it saying “Unfriend me now if you don’t support this woman for President.” Then, everyone in the room can align themselves, start squabbling, and eventually disintegrate into schisms within both the pro and the anti-Hillary sides. This is not only a total buzzkill for the party host, but is also amusingly futile considering the only tangible action any individual in the room can really take is a single vote in one direction or the other for the candidate.  No, we don’t generally behave like this in real life, but it’s more or less how things go down on Facebook. And maybe that’s a good thing.

Let’s face it, the evil geniuses who invented this country have got to be grinning from on high and laying round-the-clock bets while watching the intellectual cage match they created. America is custom-designed to foster argument, so maybe the tech-utopian view that platforms like Facebook are a positive extension of that principle is correct. If these forums are used to truly engage in discussion, then maybe it’s better to see our friends reveal more diversity in their politics, even if discovering one another’s peccadillos might lead to chilling relationships.  On the other hand, those evil geniuses also designed a republic that was meant to move rather slowly on policy because in that stateliness is relative stability. By contrast, social media engagement tends to fuel radical (meaning spontaneous not subversive) and fleeting reaction.

For whatever reason (and I suspect it’s mostly due to the fact that social media is designed for sharing things other people say), political chatter is not only more common online than it has been in pre-cyber social environments, but it is absolutely dominant if my own feed is any indication. Nearly all of my friends are left leaning; and I would say that a significant amount of the political stories that make it into my newsfeed contain headlines about something radical that was reportedly said or done by someone on the extreme right.  “Gay Marriage Will Destroy Migratory Patterns of Bald Eagle,” says Indiana pastor.  And you just should not click on that stuff because if American politics teaches you anything, it’s that you gotta take the long view and not get distracted by every heckler in the cheap seats.

Yet, thanks to these platforms, we are treated to quite a few of these little stories that would otherwise go unnoticed beyond the reach of local papers. Sometimes they’re compelling human-interest articles; but in terms of real politics, I think an apparent deluge of crazy stuff can make one’s personal views feel under siege even if they are not. For instance, same-sex marriage rights are actually moving at a pretty remarkable pace toward universal ratification compared to other hard-won civil rights in American history.  And so in this example, I often wonder in what way the cause is benefitted when friends amplify the litany of lunatics on the issue. Because I don’t think even Justice Scalia is likely to weigh his decision thinking, “Well, I was on the fence about the ol’ gay marriage, but when I heard Pastor McDumbass say that thing about the locusts and frogs, that was the clincher for me.”

On a more grim note, I think about these troubling events in Ferguson, New York, and Baltimore; and I’m admittedly pretty cynical about the idea that social media offer much help with whatever it is may be happening to race relations in this country. This is partly because I believe there are dynamics at play that transcend race; thus any shorthand commentary that reduces everything to black and white (literally and figuratively) probably isn’t anywhere near discussing the true nature of the problem.  As these tragic events unfold, Facebook and Twitter offer various bandwagons for us to climb aboard, but heading where exactly? And yes, plenty of thoughtful articles are written and shared, and that’s a good thing.  But in the opposite extreme, the wrong-headed, violent responses are also inseminated and spread through social media in ways that are unique to our times.

Meanwhile, somewhere in the vague middle ground of all this, contemporary white college kids, gazing at screens in the safety of their dorms, post memes about Kent State because they don’t know what they’re talking about and because it’s easier to click on some fleeting image from an event that happened 50 years ago than it is to delve into what might really be going on today. And hell yes black lives matter, but I can’t help but find the hashtag itself just too damn trivial relative to the gravity of the situation. Or am I alone in thinking that so much of this new form of engagement feels so fundamentally unengaged?

It’s an odd dynamic to me. I can sit here in the relative security of my role as a white, middle-class, straight, male and spend half a day clicking things on Facebook that say let my gay friends marry and let my black friends live their lives without harassment by the police (these are just current examples), and I can feel good about my clicking and sharing despite the fact that it’s almost entirely useless. Because what will matter is who’s the mayor in a city or the police chief or who the Supreme Court Justices are. Policy will matter, which means what will matter above all is the economy. Meanwhile, statistics and anecdotal evidence suggests that the college kid who naively shared the Kent State meme might not even bother to vote because he thinks representative government is poisonous and the Internet is the antidote.

Ann Friedman concludes her article with advice as to how one might behave with friends online when politically-fueled disagreement flares up.   “It’s hard to imagine saying to a friend, ‘If you disagree with me, you can just hang up the phone right now.’ That’s not how real-life friends do things,” she writes.  I agree with her of course.  As with the example of a vote yay or nay for a candidate, does it really matter if a friend has some quirky reason for liking or not liking said candidate?  In many ways, social media environments like Facebook really are a new kind of petri dish for conducting that great experiment called America — always trying to see just how much we can fight and still remain friends.

Coalition Claims to Seek Balanced Copyright

balanced?.001Once again, a confederacy of the usual suspects has regrouped, rebranded, and relaunched a campaign on copyright in the digital age. They call themselves the Re-Create Coalition. David Lowery on the Trichordist referred to them as “getting the band back together,” and it is true that this familiar list of mostly Google-funded organizations (with bizarrely similar logos) has been trying to get its act together, a bit Keystone Cop-like, ever since the defeat of SOPA in an effort to relive that glory day. Once again, they are eager to rally citizens to their point of view on copyright, though that point of view may be hard to discern if you’re looking too carefully for specifics.  Broadly, the coalition says it wants to balance the rights of creators, consumers, and innovators, which happens to be more or less the goal of every copyright professional since James Madison. So, the only thing that matters is what’s behind those pretty words.

Does copyright need changing in the current market?  Sure. Register of Copyrights Maria Pallante was on Capitol Hill this week offering testimony in the final round of hearings on that very subject.  But like any complex system that might demand revision to conform to a new market, it’s reasonable to assume we’re talking about tweaks, not radical overhaul. Or to paraphrase author and attorney Elizabeth Wurtzel, law requires “granularity” to make it work. Because on the whole, copyright is relatively balanced except in the eyes of extremists and really big Internet corporations, who consider the whole legal framework (not to mention legal frameworks in general) a nettlesome barrier to their dreams of world domination.

Funding source alone does not negate the arguments or a point of view of a group or organization.  Nearly all organizations are funded by private industry in one way or another.  But readers should bring at least a dash of salt to the party when the company that’s been described as the most powerful in the world (i.e. Google) walks into the room and says, “We want a level playing field.”  In general, populist words alone don’t mean anything; mission statements are usually boilerplate.  There are plenty of organizations out there that use terms like freedom and fairness and American ingenuity while behaving as the most industry-serving, right-wing, bigoted group of grumpy white men you ever wanted to meet.  So, cutting through the fog a bit, what does the Re-Create Coalition appear to care about?  Based on their stated agenda, they seem to be focused on two things above all:  fair use and safe harbors. So, let’s look at those …

Take the example of my friend Sarah, cited in my last post, who inadvertently committed copyright infringement on the assumption that her use of a photograph as a supplemental asset on her blog was a fair use.  If we were to, say, broaden the application of the principle to include her use in this instance, that would not be balancing copyright so much as it would erase the purpose of having a fair use exception mean anything at all. It would simply be a free-for-all. If, on the other hand, we review statutory caps on awards for damages so that honest mistakes like hers cannot induce undue financial burden, perhaps there is room for some nuanced adjustment to the law. And admittedly, this appears to be one focus of the coalition. But …

Even the matter of statutory limits might be pretty tricky.  Potential damages function as a deterrent to unlicensed use.  Lower those barriers too far, and it’s not just the big corporations who can get away with anything.  Although it’s not a copyright case, the recent story about the couple whose engagement photo was used without permission on the cover of a cheesy, self-published erotica novella makes a pretty good example of what the market might look like without barriers (what Jaron Lanier calls levees) — rampant violation of several forms of IP rights.  Ironically enough, it probably wouldn’t take too many incidents of personal photos being ripped from social media and used in unpalatable ways like this before people started to think twice about sharing photos on social media.  So, IP barriers play a role in what the Re-Create Coalition folks call the “innovation economy,” too.  And ultimately, why should Amazon earn dime one from the sale of this self-published book (or perhaps hundreds just like it) when those sales involve printing and distributing a couple’s photo without their permission and in a way they find degrading?  So, fair use is good; we all like it.  Is it a doctrine in need of “re-balancing?”  Certainly not if all it does is tip the scales in the favor of one industry.

Perhaps more telling is that this old group with the new name sounds rather keen on calcifying safe harbors within the DMCA (Digital Millennium Copyright Act) and the CDA (Communications Decency Act), both authored in a time when the Internet functioned very differently than it does today.  So, when they say they want to balance copyright to protect the rights of creators without standing in the way of innovation and opportunities provided by the digital age, they don’t necessarily mean they want to update statutes that have protected mass infringers in a manner in which the law never intended.  For instance, YouTube has profited from mass infringement thanks to these safe harbors, yet this group’s call for “balance” in this regard is to leave that puppy alone.

Don’t get me wrong, I’ve said in other posts that these safe harbor provisions are important; they’re important to copyright interests as well.  But what’s happened in the case of YouTube is that the application of these provisions provided a free ride to that company, which in turn enabled market dominance it could then leverage to effectively force, for instance, musical artists to accept their lousy Music Key contracts.  The outcome is not only unbalanced, but it’s a worse deal for creators than some of the most underhanded recording contracts ever written. Yet, this progressive-sounding, forward-looking group isn’t talking about updating these 20-year-old components of copyright law.

Are there abusers of copyright?  Absolutely.  And they are as despised by serious copyright defenders as they are by anyone else. Nobody who believes in a set of principles likes to see those principles misapplied.  But abuse is the exception, not the rule; and laws should be written to support the rule.  Speaking of exceptions and rules, here’s a familiar refrain by Executive Director of the R-Street Institute Andrew Moylan, cited on the press release announcing the new coalition:

“The Internet has lowered the barriers for everyone. As technological innovation continues to advance at a rapid pace, copyright law must catch up. Overregulation protects past success at the cost of future opportunities and allows for exploitation of the current system.”

Sounds reasonable, but allow me to translate.  “Copyright terms are too long and only used to protect corporate rights holders (*wink* Disney), and this stands in the way of new creators entering the market.”

But here’s the market reality:  No matter how long or short copyright terms are, devaluation of works due to mass piracy as well as predatory practices by Silicon Valley interests have reduced investment in viable avenues for professional creators.  Thus, while the Internet does “lower barriers” for creators to showcase their works, the companies that dominate digital space have contributed substantially to the reduction of opportunities for those same creators to turn the prospect of discovery into sustainable entrepreneurism.

Meanwhile, to paraphrase Robert Levine, author of Free Ride, “It doesn’t matter if copyright is life plus 50 years or life plus 70 years. Because on the internet, copyright lasts about ten seconds.”    So, balance that, and then maybe we can talk.

Dangerous Little Knowledge

Not surprisingly, friends contact me from time to time with copyright-related questions. I’m careful not to give definitive answers to most of these, but I can usually point them in the right direction toward a solution.  Very recently, a dear friend (let’s call her Sarah) asked my advice regarding an email she received from a photographer who demanded removal of an image from her blog as well as a substantial fee for damages.  Sarah is college educated, a Gen-Xer, an artist herself, wicked smart, talented, and very respectful of people in general, let alone other creators.  I would characterize her as among the last people who would knowingly infringe a fellow artist’s copyrights.

Sarah considers her blog educational and non-commercial, and she credited the photographer. These factors led her to assume her posting the photo was a “fair use,”  and the mistakes she made are consistent with the kind of questions and assumptions I hear all time.  Real copyright experts may have another view, but it seems to me that the non-commercial thing is among the most common mistakes made when it comes to assuming a use is fair. In reality, commercial or non-commercial use of a work is is not necessarily dispositive (as the lawyers say) when determining whether or not a use would be judged fair. Setting aside the question of the photographer’s award demand — I can’t comment on whether or not it was in line with common practices among visual artists —  I was sorry to tell Sarah that her use was almost certainly an infringement. It only took her doing a bit of research to realize that fair use is a very specific component of copyright law that requires a federal court to weigh four factors in order to reach a conclusion.

What I find interesting, though, is that while I have been associated with originators and users of creative media my entire life, until Web 2.0 came along, I don’t remember people making decisions to use works based solely on what they thought they understood about copyright.  Put another way, I am not surprised Sarah misunderstood fair use so much as I am curious as to how the misinformation got into her head in the first place to the extent that she honestly believed she was on solid ground.  Because I bet her confusion is quite common.  Moreover, I suspect that so much misunderstanding about copyright is aggravated by both the design of the Web and even by the din of the copyright debates in the blogosphere. Not only does an interface like Google image search make potential infringement just a little too easy, but it also isn’t helpful to have a constant drumbeat of headlines written by entities with an interest in weakening copyright.

Lingo is catchy. We hear a unique term, assume we know what it means, then misapply it and spread the gospel. I used to see this a lot in video post production whenever a producer got hold of a new expression he thought he understood. Similarly, I suspect there’s so much chatter about copyright issues swarming around the Internet today, that terms like fair use seep into public consciousness; and then intelligent, thoughtful people like Sarah make perfectly reasonable, yet entirely false, assumptions about what the term means or how the principle is actually applied.  A clear case of a little knowledge being a dangerous thing.

And of course, it’s not just copyright; it’s anything. The wealth of “content” out there doesn’t always make us more informed, but it can make us think we’re informed, sometimes just enough to get us into trouble.  Because it’s one thing to have an opinion about a subject like copyright, but another thing to act on the assumption that you can be your own attorney, which is no more advisable than, say, using WebMD to diagnose the presentation of some new symptom.

Let me pause and write in the imperative for a moment by way of what public service I may offer:

If you have to imagine a fair use argument, then a case for infringement by the rights holder may exist.  Unless you have really researched fair use and you are legally and/or  financially prepared to defend your use, don’t assume you know what you’re doing. Odds are you don’t. There are no bright line rules when judging fair use.  Plus, if you’re just writing a blog and need an image, there are probably better and clearly legal options like Getty Images free embed service. Having said that, there’s nothing wrong with asking the rights holder for permission. He just might say yes.

Of course, the argument from the anti-copyright crowd might be that Sarah’s experience makes a good reason to “expand” fair use in the digital age.  For instance, readers may be generally aware of the Internet industry’s proposal to  “export” U.S. fair use principles through fair trade agreements despite the fact that our trading partners have radically different legal systems, and none has our First Amendment. I bring this up to illustrate the point that I believe this industry continues to trade on the populist tactic of oversimplifying legal frameworks in order to advance its own agenda.

And this goes back to what I meant when I said that the design of the web as we know it adds to the confusion of general users as to what’s fair and what’s infringing.  After all, the image is right there on Google image search.  Why not right click, copy, and paste into a blog, etc.? Yes, that’s certainly a paradigm Google et al want to promote, but let me cut to the chase here:  if you’re an individual with mere mortal resources rather than billions of dollars and a phalanx of attorneys, taking the “infringe now, apologize and maybe pay later” approach of Silicon Valley corporations is probably a bad strategy.

Meanwhile certain experts may convince users that they’re on solid ground.  For instance, fair use scholar Peter Jaszi, in his testimony before Congress in January 2014, stated the following:

“Fair use, one might say, is like a muscle – it will grow in strength if it is exercised, and atrophy if it is not. But, by the same token, fair use is hardly unusual or exotic today. Everyone who makes culture or participates in the innovation economy relies on fair use routinely – whether they recognize it or not.”

I don’t presume to criticize Jaszi’s scholarship; I’m not remotely qualified to do so. But to the ears of fellow laymen, statements like this can be interpreted as permission to push the boundaries of fair use, which may be particularly hazardous if one has not at least researched the basic principles in the first place. High-level theory, debate, testimony, and discussion in the halls of academia do not necessarily provide an accurate picture of the law as it is currently applied.

Add to all that the massive volume of un-scholarly blogs, editorials, and PR messages aimed at weakening one facet of copyright or another, and confusion is likely to be the rule rather than the exception.  Each individual should do the research and decide for herself which among the many proposals on copyright seem thoughtful and innovative and which are serving vested interests. In the meantime, confusion leads to infringement claims, which can lead to damages, which pisses people off who otherwise respect copyrights. And in this sense, all the Sarahs out there become a bit like cannon fodder in a larger battle being waged by billion-dollar corporations.