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.

Internet Archive Introduces “Rice Krispies” Defense in Copyright Case

Internet Archive advances Rice Krispies defense.

When Internet Archive lost resoundingly in the Hachette (book publishers) case, the court rejected its cockamamie legal theory called controlled digital lending (CDL). Then, when a group of record labels (UMG et al.) filed suit against IA for infringing reproduction, distribution, and performance of sound recordings, I wrote at the time that there’s no way IA has an unfounded theory to test drive in this case. Who knew they had yet another cockamamie idea on deck?

In a small, semantic gift to counsel for plaintiffs, IA has argued that the preservation of “hisses, crackles, and pops” on the pre-1978 sound recordings favors a finding that their reproduction, distribution, and performance of those recordings is fair use. “Defendants’ newly devised Rice Krispies argument for fair use here is even less credible than Internet Archive’s previous fabricated fair-use theory for books that the Southern District of New York recently eviscerated,” the plaintiffs’ response states.

At issue is IA’s “Great ’78 Project,” which digitizes, distributes, and digitally streams older sound recordings on the premise that it does so for preservation purposes and to make “rare” recordings available to the public. If the recordings at issue were indeed rare, the project might have a reasonable claim to exceptions under the Music Modernization Act (2018) which allows libraries and archives to make pre-1972 sound recordings available if they make a good-faith effort to determine that the recordings are not commercially available. Here, the record labels present evidence that the relevant sound recordings IA makes available can be found commercially, including on major streaming platforms.

So, because IA does not have a solid argument that the sound recordings at issue are hard to find, it overstates the historic value of the Great 78 Project thus: “Preserving these records as they would have been heard and experienced by listeners at the time they were made approximately one hundred years ago is a critically important part of archiving these works.” Is it though?

If we’re going to play this game, a 78RPM shellac resin disk that has degraded in random ways over the decades, and is then digitized and played via computer in the 2020s will NOT match the “experience of a listener” in, say, 1935. A brand-new disk in 1935 played on a phonograph of the period sounded different to that listener than the file IA produces by acquiring and digitizing that disk in 2018. Relatedly, a serious audiophile will tell you that a pristine vinyl album plays back sounds (overtones, etc.) that are lost in digital reproductions like CDs. Yet, these qualitative distinctions have no bearing on the copyright rights in the sound recordings, whether the reproductions are fixed in vinyl, CD, MPEG file, or crystals.

To the extent that there is some forensic, archeological value in any of the dust and noise in the old grooves of a 78 disk, this implies such a distinctive (if not eccentric) field of research, that it hardly justifies making the material available to the general public via the internet. I think a conservator would agree that the physical disks comprise a valuable collection and that, perhaps, storing a digital archive would be of use, but a conservator might question the historic significance of modern, random damage done to a given disk embodying an old recording. What if two tiny scratches were made in 1973 and 1996? What history is the contemporary listener hearing? Even if we knew that history, how important is the scratch Betty made when she bumped the record player that time Larry tried to cop a feel? It’s not quite the same as, say, the margin notes written by the composer on the original sheet music.

I’ll leave the preservation discussion there, however, because as a legal argument, the Rice Krispies defense is rather soggy. As the response for the plaintiffs states, “Fair use cannot be perverted into forfeiting a sound recording’s protection under copyright law just because the recording is copied, distributed, and performed in something other than its cleanest sound. If ever there were a theory of fair use invented for litigation, this is it.”

Presumably, IA wants to show that for the purpose of “education” or “scholarship,” named in the preamble of the fair use statute, its reproduction and distribution of the sound recordings “as listeners would have heard them a hundred years ago” is sufficient to find that the factor one analysis favors fair use. Notwithstanding the other three factors, even if IA could convince the court that random “hisses, crackles, and pops” are of general cultural value, the archive is overreaching on fair use.

The fair use exception anticipates some new authorship that enhances or expands the value of the work used. In the context of scholarship, this typically means that a scholar uses some portion of a work to author commentary, criticism, or analysis. Further, the scholar’s new work is separately protected by copyright as a new expression. By contrast, IA reproduces, distributes, and performs protected expression (the music recording) mixed with extraneous and random sounds that nobody has authored.

Just because someone might be able to ascribe significance to those random noises, this does not exempt the use under factor one—especially after the Supreme Court in Warhol rejected such broad and vague rationales of this nature. To put it another way, even if a human author were to intentionally add crackles and pops to a sound recording, he would have to prove that those additions comment upon the original work, or his reproduction would be an unlicensed (infringing) derivative work.

IA is trying to fit itself for a fair use defense that no individual, follow-on author could easily advance. Of course, their grasping at fair use is based partly on the fact that IA is an archive providing a useful resource like Google Books. But as they have not presented an argument on that basis (which would also not win), and because they tacitly admit that the Great ‘78 Project falls outside statutory exemptions, it looks once again like the anti-copyright ideology of Brewster Kahle is the reason they’re bringing Rice Krispy Treats to this party. What can I say? The guy’s a cereal infringer.

The Future Was Then: AI Moving Us Backwards on Carbon Emissions

Coal-fired power plant. Cost of data centers.

As the Super Bowl approached and passed, it seemed that one faction of Americans was accusing Taylor Swift of practicing witchcraft on the NFL while another was slagging her for the carbon output of her private jet—reportedly about 8,300 tonnes of CO2e in 2022. And although it is fair to expect owners of private aircraft to fly responsibly, I must ask this:  What is the environmental value of not shitposting about Taylor Swift? Or for that matter, any number of topics?

The carbon cost of a single tweet is ~.026g; the cost of X (nee Twitter) is estimated at 8,200 tonnes per year; and the overall carbon cost of social media is estimated at 262 million tonnes of CO2e per year. So, if we use this social media carbon calculator, it tells us that 1 million people spending just 2 minutes a day on the 10 major social sites costs just over 8,300 tonnes of CO2e per year—roughly the same amount T Swift reportedly generated with her airplane in 2022.

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I recognize that this is comparing the carbon footprint of one individual to a million individuals, but that one individual entertains millions and generates economic activity. By contrast, the social posts of a million people at any given moment are only making pollution in every sense. Clearly, it costs metric tons of carbon to produce metric tons of useless noise. And that preamble brings us to the topic of the projected increase in electricity demand for data centers to support advancements in artificial intelligence (AI). As Bloomberg reported in late January:

Electricity consumption at US data centers alone is poised to triple from 2022 levels, to as much as 390 terawatt hours by the end of the decade, according to Boston Consulting Group. That’s equal to about 7.5% of the nation’s projected electricity demand. 

In past posts about generative AI, I have opined that we do not need machines to make creative works—because we don’t—and that AI should be tasked with solving problems like curing disease or mitigating the climate crisis. On the second point, however, it seems that if an AI were asked the climate question, its only rational answer would be, “Shut me down.” If nothing else, AI could be an environmental catastrophe in the making.

“In the Kansas City area, a data center along with a factory for electric-vehicle batteries that are under construction will need so much energy the local provider put off plans to close a coal-fired power plant,” the Bloomberg article states. Because that quote cites both electric vehicles (EVs) and the data center, one must acknowledge that the environmental analysis of EVs entails a projection of carbon saved against carbon spent. But because a data center is pure carbon expenditure, that cost can only be measured against the value of the activity the center supports.

No question that data centers are infrastructure. There is no enterprise—private or public—that does not rely on networked computing, and economic activity almost always presents an environmental challenge, whether one is building a railroad or an eCommerce platform. But considering even the current energy demand, let alone the projected increase, AI pulls the issue into focus because so many of its applications are already either useless or toxic.

Useless, as stated, is the AI that generates “creative” work in lieu of the human creator, while toxic would be something like more advanced deepfakes exacerbating the disinformation crisis. Regarding the former, this flips the economic equation—i.e., carbon cost yielding lost jobs, which is arguably the opposite of economic activity. Regarding the latter, the use of AI to expand and deepen disinformation campaigns represents carbon cost in exchange for “better tools” that have already been used to weaken democracy worldwide.

In 2013, I wrote a post called Show Me the Innovation—one of many responses to the generalized argument that legal frameworks designed to protect intellectual property, privacy, information integrity, and even personal safety all stand in the way of “innovation.” The point then, as now, is that not everything produced by Big Tech is “innovative,” if we insist that word mean something. If “innovation” should improve lives and foster prosperity, isn’t it curious that social media’s carbon cost helps support anti-science agendas like climate change denial?

In a recent post about the environmental cost of data centers, Chris Castle cites Science Daily, noting that “generative AI like ChatGPT could cost 564 megawatt-hours (MWh) of electricity a day to run.” That’s more than some small countries. When coupled with the fact that data center demand is halting planned shutdowns of coal-fired plants, then it starts to look a lot like AI is helping to “innovate” the U.S. backwards, reversing the gains made over the past twenty years in carbon emissions.

Traditionally, it is possible to do a cost/benefit analysis. We burn x amount of coal to power y number of homes, or we need x amount of oil to run y amount of ground transportation. And even in the earliest days of electrification or automobiles, the benefits were self-evident. But with rapid advancements in AI, the cost is rising without clear evidence of benefit—at least not at the scale the electricity demand implies. This is because, like so many “innovations” of Big Tech, AI might be used to accomplish something extraordinary like improving medical diagnoses, but in the meantime, it will be used make what is already bad about digital life suck faster.

Photo by: dropthepress

Truth Dies in Broad Daylight

Democracy dies in darkness according to the motto of the Washington Post, and this is, of course, just one of many phrases reciting the axiomatic theme that credible and responsibly reported information is the blood of a democratic society like the United States. If true, then why has the “information age” brought democracy itself to the brink of destruction?  There are many answers, including from those who would say that the question itself is alarmist—that, for instance, the “democracy in peril” narrative is a talking point of the political left with no foundation in evidence. But ain’t that the rub? Have we not crossed the event horizon of an epistemic crisis?

It bears repeating that a healthy democracy not only tolerates, but requires, a debate of competing ideas; but thanks largely to the major internet platforms, society has devolved to a shouting match of competing realities. No technological singularity required. We have already carved out a point in our little corner of spacetime that is dense enough to prevent truth from escaping. It may be self-evident that truth dies passively in silence, but truth can also be trampled to death by noise, and how could “democratizing information” ever have produced anything but a cacophony?

In a recent editorial for the Los Angeles Times, Anita Chabria asks Why is it OK for rich guys to steal my work? She writes…

Retail theft is causing a civic meltdown and inspiring a ballot measure to incarcerate repeat toothpaste thieves.

But billionaire tech bros dismantling democracy for profit, stealing thousands of times a minute by selling advertising against something they don’t own? That barely gets a shrug, even as more media professionals are laid off, more publications close, and reliable information becomes so scarce and hard to spot that truth itself has become political.

Some might argue that news organizations have lost so much credibility that it hardly matters, and I cannot deny that I have read my share of careless articles under the imprimatur of respected brands, including the WaPo. But notwithstanding cultural and social changes that ebb and flow through any industry, the bottom line is that good investigative journalism is expensive, highly skilled, and time consuming, and the internet industry has only served to make those obstacles larger, if not insurmountable.

First, social media fostered, and still perpetuates, an illusion that “citizen journalists” and raving pundits consistently uncover hidden truths which are obfuscated by the mainstream media. Second, social media demands feeding the beast 24/7, which forces the traditional news organization to prioritize speed over quality, thereby often fulfilling the prophecy that mainstream news is untrustworthy. And finally, the major social platforms resist paying for the news material they exploit for profit. In combination, how can these forces not cause a downward spiral in professional journalism, including the layoffs now being reported? And that’s before we truly see AI alter the landscape.

While it is impossible not to point to Trumpism as the paradigmatic—and potentially fatal—symptom of rampant conspiracy-mongering, the folly of democratizing information is shared across the political spectrum. The internet industry told the world that their platforms were the antidote to media conglomerates—the proverbial “gatekeepers,” who controlled, and even buried, the information to which people are entitled. And thus, Big Tech’s assault on copyright law often rode atop the half-baked slogan that “information wants to be free” in both senses—liberated and gratis. And everyone—nearly everyone—believed that bullshit.

Although copyright is commonly associated with creative and entertainment material, it was nonfiction works, including journalism, that were at the center of the constitutional framers’ attention when they drafted the “progress clause” in Article II. There’s a reason why that clause says, “to promote the progress of science,” and in one of my favorite papers about the adoption of copyright at the founding period, Professor Jane Ginsburg notes, “Petitions to Congress before enactment of the first copyright statute sought exclusive privileges for works overwhelmingly instructional in character.”

A century later, copyright protection would encompass a broad range of creative and performing arts, but at the outset, the framers understood that the Republic would fail in persistent darkness. Thus, the speech right, the press right, and copyright can be seen as working in concert toward the hope that future generations would have the “science” necessary to sustain the American experiment. Now, just over 230 years since the first Copyright Act and the Bill of Rights, I am hardly alone in wondering whether that “science” is lost, symbolized by the fourth estate shedding 500 jobs in January alone.

In 2021, Senator Klobuchar first introduced the Journalism Competition Protection Act (JCPA), which would provide a limited exemption to antitrust prohibitions against collective bargaining among news media organizations. Passage of the JCPA would enable news media companies to negotiate terms with giants like Meta, Google, et al. for licensing news content shared on those platforms, and Chabria cites a study from the University of Houston, which states that, with passage of the JCPA, the major platforms would owe news organizations between $11.9 billion and $13.9 billion per year. So, of course, the tech giants have used their lobbying power to block the bill.

Meanwhile, Big Tech continues to argue that they should not pay news organizations anything because their platforms “drive traffic” to the news channels. Artists will recognize this as the “exposure” rationale for piracy, and it takes some chutzpah to keep peddling this nonsense against a backdrop of layoffs and closings. Because it doesn’t take an economist to know that traffic alone does not pay for overhead and salaries—and that’s even if Google et al. actually increase traffic relative to pre-internet readership.

What we know for sure is that a democracy without a robust and free press is in danger of no longer remaining a democracy, and we know that news organizations have historically struggled to be financially sustainable. As the internet industry has done with music, motion pictures, literary works, etc., they sold the promise of access to news and information while siphoning the revenue that pays people to produce that material in the first place. And as we are witnessing in real-time, the vacuum is filled with charlatans, liars, cowards, and thieves. Thus, the proverbial “sunlight” promised by Big Tech is not a disinfectant, but a poorly made pesticide that animates the weeds and kills all the fruit.

Photo source by: Mediaphotos