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.

Trump Claims “Absolute Immunity” in Eddy Grant Copyright Suit

When I wrote about the Grant v. Trump copyright case on October 1, I was wrong about one thing:  that Team Trump would quickly settle the matter as a relative storm in a teacup within the legal tornadoes swirling around the ex-president. But I should know better. Because of course the law works in mysterious ways in Trump’s mind, including one important theory he continues to advance against all claims civil and criminal—namely, that having attained the presidency, he is henceforth immunized against all liability for the rest of his life.

After failing to obtain a dismissal in musician Eddy Grant’s copyright infringement claim against Trump and the campaign, Trump’s answer filed on October 18 asserts five affirmative defenses including “absolute presidential immunity.” Yes, Donald Trump throws this expression around like he’s flinging holy water at vampires because he has never quite shown that he understands the distinction between the office and the office holder. In a Lawfare article explaining why the former president should not be immunized against civil suits arising out of the Jan. 6 insurrection, Dayna Zolle writes, “The Supreme Court has stated that the president’s power to act ‘must stem either from an act of Congress or from the Constitution itself.’”

As a matter of law, there is a separation between the official duties of an incumbent and his reelection campaign. West Wing fans may remember that Sorkin’s President Bartlett was such a stickler for this rule that he refused to call potential campaign donors from within the Oval Office. And although Trump has consistently tried to erase the line between campaigning and governing, he has no reason to expect that any court will be persuaded that the use of “Electric Avenue” by Trump for President was encompassed within the “outer perimeter” of the official duties of then President Trump.

Nevertheless, the fact that the absolute immunity defense was even presented in Grant reprises the discussion I began in my first post about this case, when I asked whether unlicensed uses of works for political messages should tilt away from fair use under factor one in deference to the copyright owner’s speech rights. Because regardless of the legal veil that exists between a campaign and an office holder, that separation is muddier in the lingua franca of politics in general. And this is one reason why Trump in particular provoked an unprecedented number of musical artists to demand that he not use their songs at his rallies.

Although Trump is wrong as a matter of law about his eternal immunity, it is true that campaigns are about official policy, even if they are not official acts—especially campaigns by incumbents. Thus, to the extent that a Trump 2020 rally was an extension of the administration, that is all the more reason why songwriters or artists have an inherent moral right to assert their non-participation, if that’s how they feel. As Mick Jagger told the BBC about demanding that Trump stop using “You Can’t Always Get What You Want,” to close rallies, “It’s a funny song for a play-out song—a drowsy ballad about drugs in Chelsea. It’s kind of weird.”

The weirdness of Donald Trump notwithstanding, moral rights is a subject of IP law, which is more explicitly codified in various copyright statutes around the world than in the U.S. The one exception is the section of the American statute called VARA (Visual Artists Rights Act), which includes certain prohibitions against destruction of visual works and/or uses of those works in ways that may harm the artist’s reputation.

Moral rights encompass those aspects of copyright which are intertwined with the author’s identity, and although the U.S. is not strictly a moral rights jurisdiction, I would argue that the essence of those protections is baked into the exclusive rights under §106 because the author does not need a reason to reject a license to use a work. Simply disapproving of a proposed use—including the possibility that the author hates the breathing guts of a political figure—is sufficient grounds to deny the would-be user a license. And the rightsholder need not explain himself.

Further, if Trump were correct that campaigning is coextensive with governing, then unlicensed uses of works would be tantamount to compelled speech—at least in principle—because the campaign related conduct would meet the standard of state action necessary to implicate the First Amendment. Whether the use of music at a rally or synched with a video would be considered using the speech of the author(s) without permission is arguably a case-by-case consideration. But music is an especially powerful medium in this regard. When a sound recording is played at an event to animate a crowd into action which the artist passionately opposes, the offense may be deeply personal and has nothing to do with the economic utility of the artist’s copyrights.

So, I doubt Trump’s immunity answer in this case will do him any good, and perhaps the campaign will ultimately settle with Grant since the damage award would still be a tiny slice of the Trump defense fund pie chart. But even the folly of the argument contains a little slice of truth—that the boundary between campaign and official conduct by an elected official is often hazy and semipermeable. But if that is relevant at all, it is grounds to afford authors greater, not lesser, protection against involuntary participation through uses of their expressive works for political purposes.

On Fixing Social Media: Why Fear Unintended Consequences?

In an excellent post on the blog Librarian Shipwreck, the author reminds us to take a more expansive view of the so-called Facebook problem. The article lands direct hits on most of the big nails (for instance, that we cannot trust Facebook to fix Facebook), but perhaps its most critical observation is the one about a difficult conversation we are not having at all.

As mentioned in my recent post, it is hard to imagine that Congress will not soon adopt legislation prohibiting social platform practices which are believed to directly aggravate health hazards among teens and tweens. That’s where the “Big Tobacco” analogy holds up, but also (I suspect) where it ends. Mitigating specific dangers, like algorithms that foster platform addiction or removing disinformation and conspiracy peddlers, is all necessary, but also low-hanging fruit on the edges of a dense, untamed grove into which few of us wish to venture. As Librarian puts it:

Too often it seems that we are singling out companies like Facebook for invective so that we don’t actually have to talk about our society’s reliance on computers and the Internet. Thus, Facebook gets held up as the scoundrel that is responsible for quashing the utopian potential of computers and the Internet—a potential that will be surely redeemed by the arrival of Web3. Yet the fantasies about Web3 sound very similar to the fantasies that originally surrounded Web 2.0 which in turn sounded a heck of a lot like the fantasies that had surrounded the original Web which in turn sounded a heck of a lot like the fantasies that were first spun out about personal computers which in turn sounded a heck of a lot like the fantasies that were first spun out about computers. The danger here is that we are vilifying Facebook (villain though it surely is), to save us from having to think more deeply about computers and the Internet.

If I may be so rude as to compress that:  Librarian makes the unimpeachable argument that Bullshit 3.0 is just a faster version of Bullshit 2.0. The bullshit in this case is the belief that the internet is, or ever was, something transcendent. Because at the same time that Barlow was scribbling the hubristic Declaration of the Independence of Cyberspace, money—a lot of money—was changing hands on the promise that somehow, someday, networked computers would be a more efficient way to sell soap. 90s-era conversations about targeted advertising asked whether consumers would tolerate the privacy invasions necessary to achieve those aims, and eventually, Google and Facebook proved that our transition into that brave new world could be almost frictionless.

The dream of an internet that operated ethically, yet beyond the laws of “weary nations”—a dream the utopians lament as having died sometime in the last several years—was never alive in the first place. That supposed goldilocks period, often referred to as the wild west, was not a brief glimpse of the web as it was meant to be, but an interlude of disarray and experimentation on the backend, while a whole generation played the role of lab mice on the frontend. And, sure, it seemed idyllic; the digital natives were all children.

It turned out that we were not very resistant to the internet crawling into our private lives while teaching the machines to “know us better than we know ourselves,” as former Google chairman Eric Schmidt liked to say. And arguably, we crossed that threshold so easily for two main reasons:  1) because the features and conveniences these companies provided were initially cool and then indispensable; and 2) because we did not believe, or even imagine, how hazardous the bargain would be.

It is an understatement to say that we are currently brimming with proposals to “fix” social media—especially Facebook—and that overstuffed suggestion box naturally provokes the industry lobbyists and “digital rights” groups to rally in defense of the status quo and to warn against “unintended consequences” that could result from one mandate or another. But this fearful narrative is predicated on the assumption that the status quo is acceptable, if not very good. On the contrary, social media’s CV comprises a dark litany of unintended consequences with virtually no oversight of the people running the experiment. And the items in bold on that list are nothing short of disastrous.

Who really anticipated that when we started connecting with old friends and sharing snapshots, that we were feeding data into a machine that could, and would, be used to foment a genocide in Asia or animate enough conspiracy theory to rattle the foundations of liberal democracy worldwide? Every problem caused by social media is an unintended consequence. At least it better be. As whistleblower Frances Haugen opined in her testimony on Capitol Hill, “I don’t think at any point Facebook set out to make a destructive platform.”

That’s probably true. So, if the toxic results of social media are unintended, let’s not be too timid about whatever new unintended consequences may result from efforts to address those problems. To Librarian’s point, we should instead step back, rewrite the premise, and have that “deeper conversation about computers and the internet” by rejecting the belabored lexicon of superlatives used to describe cyber life as something approaching the spiritual. It isn’t. It never was. And as a putative catalyst to “make democracy work better,” it’s a total bust. But to be fair, it is a pretty sophisticated way to sell soap.

Photo by: evgenyyjamart

What’s in the Box? Counterfeits and Online Marketplaces

In March, Senators Durbin and Cassidy introduced the INFORM Consumers Act, legislation meant to provide us with greater transparency when shopping through large online marketplaces, which is to say Amazon. In a co-authored editorial in Roll Call, the senators state:

It is well documented that third parties are selling massive amounts of counterfeit, stolen and unsafe consumer products on online marketplaces. The Office of the U.S. Trade Representative reported last year that the “rapid growth of e-commerce platforms has helped fuel the growth of counterfeit and pirated goods into a half trillion dollar industry.” Also last year, the Department of Homeland Security stated that such trafficked goods “threaten public health and safety, as well as national security.”

At this point, we probably all have a pretty good intuition that when we order various goods from Amazon, the source of the product may be questionable. If it’s a phone case for ten bucks, there’s probably no great risk, but as Senators Durbin and Cassidy note, if it’s a carbon-monoxide detector that doesn’t work, that’s another matter. Thus, the INFORM Act proposes to mandate a verification process for online marketplaces to certify some degree of legitimacy and accountability by third-party sellers through the collection of bank, tax ID, and physical address information. Any third-party sellers that fall out of compliance would have to be banned from the marketplace, and the process would be enforced by the USTR.

While the legislation strikes me as a good step toward demanding some accountability from the online marketplace, the platforms’ control over the display of information may yield results that are more translucent than transparent, but time will tell. Further, I believe Congress and other governing bodies around the world should be more aggressive with Amazon in particular.

One reason a platform like Amazon provides such fertile opportunity for counterfeiters is that we tend to shop on the platform quickly while looking at two things:  a photograph and a price. The photograph is easily deceptive, and only when the price seems unrealistically low do we, perhaps, pause to wonder whether there is any deception afoot. All that text, including the meaningless name of the seller, is probably ignored most of the time.

If this describes the habits of millions of consumers, it seems the task at hand is to require Amazon et al do far more to prevent counterfeits from trading on their platforms in the first place. And, of course, one way to achieve that end is to make Amazon or WalMart or Target liable for harm resulting from the transaction of dangerous products. Liability does wonders for cleaning up corporate conduct; in fact, it is often the only thing that does. Amazon et al would say that this is too burdensome, but is it? Durbin and Cassidy write:

… Amazon and the powerful online marketplace lobby say our bill is too onerous. They say that they already do a great job of policing who is selling what from where on their websites and that the best solution is to leave the status quo in place.

Reality couldn’t be further from the rosy picture painted by these companies. We need to take stronger steps to both prevent illicit sales on online marketplaces and to make sure bad actors are held accountable. As The Wall Street Journal recently reported, law enforcement investigators say they struggle to obtain information from Amazon about shady sellers on their marketplace. 

What’s interesting about that reference to Amazon’s opacity and uncooperative posture, if you read the recent story byAditya Kalra and Steve Stecklow for Reuters, is that it seems that one of the “shady sellers” operating on Amazon is Amazon. Because, of course, there are two sides to the counterfeiting narrative—potential harm to consumers and certain economic harm to legitimate manufacturers.

Though it probably comes as little surprise to many, documents obtained by Reuters investigators show that Amazon, at least in India, has been using its proprietary data to track certain brand trends, replicate (knock-off) those attributes in its own house brands, and then ensure that is house brands appear in search results above the same brands they copied. Kalra and Secklow write:

In sworn testimony before the U.S. Congress in 2020, Amazon founder Jeff Bezos explained that the e-commerce giant prohibits its employees from using the data on individual sellers to help its private-label business. And, in 2019, another Amazon executive testified that the company does not use such data to create its own private-label products or alter its search results to favor them.

But the internal documents seen by Reuters show for the first time that, at least in India, manipulating search results to favor Amazon’s own products, as well as copying other sellers’ goods, were part of a formal, clandestine strategy at Amazon – and that high-level executives were told about it.

So, not only should Amazon’s extraordinary data-driven advantage disqualify it from becoming a counterfeiter on its own marketplace, but having demonstrated its effectiveness at doing so, we should also conclude that it has the resources to comply with the INFORM Act, and a lot more. If Amazon has the ability to track specific sizing trends in a brand of men’s shirts for the purposes of copying the products and undercutting the brand’s market, surely it has the ability to connect a few data points to keep products like counterfeit smoke and carbon-monoxide detectors off its pages. Again, Kalra and Stecklow write:

The 2016 document stated a goal: offer Amazon’s own goods in 20% to 40% of all product categories on Amazon.in within two years. Amazon would achieve profitability in its private-brand business by ‘only launching products that will provide more margin than comparable reference brand products’.

We get it. When Amazon calls proposals like the INFORM Act “burdensome” this is shorthand for the fact that they like making money better than they like spending it. No kidding. But as the senators also note, Amazon seems to have plenty of money to burn on rocket fuel. So, it can probably bear the “burden” of protecting buyers and sellers on its platform.