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.

Facebook and Big Tech’s “Big Tobacco” Moment

In response to the breaking news on Sunday that Facebook’s latest, and perhaps most consequential, leaker identified herself as former employee Frances Haugen, the questions are being asked once again:  How much do we blame Facebook, and for what shall it be blamed? For instance, in response to the allegation that the social platform played a role in the insurrection of January 6—both as an amplifier of disinformation and as a communications hub for some of the premeditated actions of that day—spokesperson Nick Clegg responded that it is “ludicrous” to blame Facebook. “The responsibility for the violence of Jan. 6 lies squarely with the people who inflicted the violence and those who encouraged them, including President Trump,” Clegg told CNN.

Clegg is dutifully responding to a straw man by reframing the accusation, as if Facebook were being accused of direct responsibility for the assault on the Capitol. In reality, of course, the company is accused, most recently by Haugen, of either ignoring or obfuscating evidence that its operational decisions are conducive to terrible outcomes for both individuals and whole societies. The company has allegedly engaged in willful blindness with respect to its role in aggravating different forms of suicidal tendencies—among teenagers being negatively affected by Instagram, and among adults negatively influenced by disinformation to the point of assaulting the constitutional order of the United States.

Haugen, who testified with tremendous poise on Tuesday before the Senate Commerce Committee, is a data scientist initially hired by Facebook as a member of the “civics integrity team.” She leaked tens of thousands of documents and stepped into the light, at considerable personal risk, with the intent to prove to legislators, federal agencies, and the public that when Facebook leadership is presented with evidence that its operational decisions cause harm, it will consistently choose profit over the mitigation of that harm. “Haugen has also detailed how she says Facebook quickly disbanded its civics integrity team—responsible for protecting the democratic process and tackling misinformation—after the 2020 U.S. election. Shortly afterward, came the Jan. 6 insurrection at the U.S. Capitol, in which organizers used Facebook to help plan,” writes Jaclyn Diaz for NPR.

That Facebook will behave like many other corporations (i.e. protect its bottom line) is not a revelation. At least, it shouldn’t be. Neither should there be any doubt that we are still wandering uncharted territory when a private company needs a division to be “responsible for protecting the democratic process and tackling misinformation.” Haugen’s testimony that Facebook maintained such a unit for the shortest time possible is damning, but the fact that we have collectively and voluntarily ceded so much power to a social media company is the bigger problem. And many of the consequences of that transformation cannot wholly be fixed by “fixing” Facebook.

The bipartisan committee members who questioned Haugen sounded unanimous in their intent to take legislative action soon, especially in response to evidence that Facebook is aggravating health risks to teens and tweens. Senators Blumenthal and Markey have already introduced the KIDS Act, which would proscribe the use of various “interface elements” that would manipulate a minor’s experience on a given platform. In that sense of “fixing,” the Big Tobacco metaphor applies because we can associate Facebook’s lack of transparency with identifiable health risks like eating disorders and depression. Meanwhile, in terms of our collective mental health as a society, I am not sure why the same prohibitions should not exist for adult users, who also do not recognize that social media is a narcotic—one that can produce good feelings even from very bad conduct.

Just yesterday, I saw that a woman, whose work I admire on constitutional issues, was harassed on Facebook by a stranger who did not engage her to debate the Second Amendment but merely to unpack his favorite sexist pejorative and tell her to kill herself. If the incident were reported, Facebook is unlikely to cancel the guy’s account, especially when there are tens of millions of customers just like him. So, not only has the great “information revolution” failed to produce a more nuanced—let alone historically informed—discussion about 2A et al, but Facebook exacerbates the worst behaviors by providing users with the little dopamine hit that comes from self-righteous, remote-control harassment.

It was not very long ago that examples like this would elicit a big eyeroll from the bro-culture of what we used to call netizens—not only because the conduct was presumed to be anomalous, but because cyberspace was presumed to be innocuous. Just words rather than sticks and stones. That was false. It was clear to many observers that the increase in anti-social and indecent conduct online was spilling over into the so-called real world. The boundary between clicks and sticks was steadily being eroded and, as it became clear on January 6, that boundary no longer exists at all for many of us.

Every time Zuckerberg or someone representing Google or Twitter or the EFF et al has asserted free speech as the rationale for an unregulated, barely moderated internet, they have been making the argument, however unwittingly, that anarchy works. Let everything flow, and people will make rational choices, and the good will outweigh the bad. That was the prevailing argument before 2016 and the so-called techlash, and it is an argument which is still being revived despite all evidence that, as a social experiment, it has been a disaster.

Miss Haugen’s testimonies are compelling and will likely be catalytic to long-overdue change at Facebook and elsewhere in the industry. The most significant discussion to emerge this week may be the proposals, including by FCC Chairman Wheeler, to create a new federal agency charged with oversight of major internet platforms. Whatever comes next, I think the era of laissez-faire appears to be over for Big Tech, and that is at least a step in the right direction.

Fair Use and Politics: Trump Denied Dismissal in Suit with Eddy Grant

This week, the SDNY denied the motion to dismiss requested by Donald J. Trump et al in the copyright suit filed by singer/songwriter Eddy Grant. The complaint stems from the unlicensed use of Grant’s song “Electric Avenue” which was synched with an animated, political video satirizing then candidate Joe Biden in 2020. The video was distributed via social media, including on Trump’s own Twitter account on August 12th. The defendants based their petition for dismissal on the grounds that use of the song was a fair use.

It is difficult in general to win a dismissal of a copyright claim based on a fair use defense. But that procedural standard notwithstanding, the fair use argument presented in this case is well-trod territory and, therefore, short work for a court in the Second Circuit, which is replete with copyright precedent. Specifically, Trump et al employed a familiar tactic by arguing a too-broad interpretation of what it means to “use a work for a different purpose” than its original purpose at creation. This argument is made under the first prong of the fair use test, which considers the purpose of the use, including whether the use is transformative. Here, the SDNY was clear:

While it is true that the animation is partisan political commentary and the song apparently is not, the inquiry does not focus exclusively on the character of the animation; rather, it focuses on the character of the animation’s use of Grant’s song. As the Second Circuit Court of Appeals recently stated: ‘where a secondary work does not obviously comment on or relate back to the original or use the original for a purpose other than that for which it was created, the bare assertion of a ‘higher or different artistic use’ is insufficient to render a work transformative.’

So, as I say, the court is not breaking any new ground in finding that the fair use test would most likely favor Grant in this case and that it must, therefore, deny the motion to dismiss. If this litigation proceeds, I believe Trump et al will continue to find that there is no precedent on which its fair use defense can survive; and considering the much darker legal clouds gathering around Trump’s world, I would not be surprised if this little civil dispute with one musician is settled in the coming weeks or months.

Is Political Speech a Little Different?

What can be tricky for many observers with this kind of case—and the court here alludes to the matter—is that political satire is a “rich part of our First Amendment tradition.’” The the anti-Biden video was satirical in general and produced by a third party, albeit as an endorsement of Trump for President. But the reason the transformative test fails is that no comment upon “Electric Avenue” itself is present in the use. The fact that the overall message of a work may be satirical does not favor a fair use any more than if the overall message is deadly serious. The essential ingredient that must exist under prong one of the fair use test is some comment upon the work being used without license. But what if a political video is satirical overall and achieves parody of a work being used?

In fact, this is close to what occurred in Henley v. DeVore in which Don Henley’s songs were used for political purposes, and about which the court in Grant writes, “In Henley, the defendants changed some of the lyrics to the copyrighted songs and even provided their own vocals. And because the defendants there used the songs as vehicles for their political messaging, in one instance to poke fun at Henley himself for his political affiliations, the court found that the secondary works were satire and parody, respectively.”

The Grant court notes that the fair use test still failed due to the amount of Henley’s work used for the purpose, but I underline the example to make the point that a political advertisement could conceivably be parody of a work and a satire at the same time and, therefore, be held a fair use of a protected work at issue. But might this raise an acute tension with the First Amendment?

It is considered self-evident that political speech is a paradigmatic subject of the speech right, but if this is so, then compelled political speech is a paradigmatic infringement of the speech right. Thus, when a copyrighted work is used without license in a political message, the use has greater potential to result in an especially egregious form of compelled speech. This principle is exacerbated in the current climate, where political divisions are sharp and hostile, but also in the digital landscape, where the distinction between the political satirist and the political operative is almost invisible.

Any smartass with a smartphone can, and does, make potentially very persuasive political commentary and distribute same via social media. And, of course, the low-cost tools of production and distribution are available to the many PACs and other third parties who are not in the satire business like South Park or The Daily Show, but are instead in the professional campaign business. Meanwhile, as viewers, we do not pay much attention to the sources of all the memes and videos that shape or reinforce our views and opinions—even where that information is available at all.

In principle, a court looking at a satirical video, whether it is produced by a PAC or SNL, should consider fair use in the same manner. As the court in Grant notes, “…denying the defendants’ fair use defense in this case—especially at this early stage in the litigation—will not chill legitimate political satire. Creators of satirical videos like the one at issue here must simply conform any use of copyrighted music with copyright law….” On the one hand, it is sensible that a court view the Biden satire video as it would any other “legitimate political satire” with regard to the fair use analysis; but on the other hand, it strikes me that if the creator of a political satire is a political operative with a clear political purpose (e.g. to win an election or advance a specific policy), that the speech rights of the copyright owner should perhaps weigh more heavily against a finding of fair use than might be considered in a use that does not have such a clear political purpose.

While it is true that the unlicensed use of a work to promote a brand or a message may feel to the copyright owner like a form of compelled speech (and may even violate his right of publicity), these private sector infringements lack the state action  necessary to implicate the First Amendment. And even though a work of political satire may be produced by a party like a PAC, which is in the private sector, when the satire’s purpose is arguably an extension of a political campaign—especially of an incumbent office-holder—the copyright owner may justifiably feel a more acute form of compelled speech than with a typical commercial infringement.

Specifically, when a sitting President uses his social platform to distribute a video endorsing his reelection, and the video is enhanced by an unlicensed copyrighted work, the compelled contribution by the rightsholder to that message may consider the experience awfully close to a constitutional, as well as a personal, violation of his speech rights. This may be true even with an incumbent who is more disciplined than Donald Trump when it comes to the distinctions between the office and the individual. The fact that this form of compelled speech will generally skirt a constitutional violation is a technicality mired in the tangles of campaign finance rules and the role of PACs, but the bottom line for the copyright owner is likely something like this: “The sitting President just used my voice to support his reelection, and I don’t support him.” But should that violation be allowed, if the use also succeeds in commenting upon the work at issue within the same political message? Perhaps, but alas …

Sadly, we no longer live in a world in which political theater plays a fractional role within a broader competition of ideas. Instead, our political process is too often nothing more than theater. No politician in modern history both exploited and exemplified this circus atmosphere more than Donald Trump, and no platform has ever amplified the cacophony like social media. It is simply too easy today to cobble together pictures and sounds into political performances that go viral; and at the very least, the authors of the works being used should be accorded the right to allow or disallow the exploitation of their creative expressions for those purposes.

The underlying principles of the fair use exception in copyright law are high-minded in theory. The exception supports the speech right—especially the right to comment upon protected works—and this, in turn, animates the foundation of copyright to promote more expression. But when considering fair use in regard to using unlicensed works for political speech, perhaps the identity of the user and the precise nature of his political intent should be considered under factor one—the purpose of the use—in deference to the copyright owner’s speech rights.

Photo source by: melis82

The Server Rule Has to Go

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On September 17, a California District Court dismissed the complaint in Hunley et al v. Instagram, in which the plaintiff class accused the Facebook-owned social platform of “encouraging, inducing, and facilitating third parties to commit widespread copyright infringement” by means of the company’s promotion of its embedding tools. Through Instagram’s marketing the ability for third parties to display images by means of embedding (copying code that points to the image file on Instagram’s servers), Photographer Alexis Hunley et al argue that the platform induces other parties to infringe photographic and other works.

But in order to proceed with an allegation of secondary liability against Instagram, those third party users must be considered alleged direct infringers by the court; and according to Ninth Circuit precedent, parties who cause the display of works by means of embedding (aka “in-line linking”) do not infringe the display right (§106(5)) of the author.

The precedent, written in the case Perfect 10 v. Amazon (2007), is known as the “server rule” because it holds that if a person causes the display of a work by pointing to a location on a server he does not control (i.e. where he has not stored the copy of the work), then §106(5) is not implicated. In a few recent cases, courts in the Second Circuit have held the opposite view, finding, quite reasonably, that when a party causes a work to be displayed by any means, then the work has been, well, displayed. (See discussion in posts here and here.)

So, in Hunley, there was little doubt the district court would be bound by the controlling precedent, but if and when this circuit split is ever resolved, it is the Second Circuit’s reading of the law that common sense must favor. In fact, if the server rule question is ever presented to the Supreme Court, the district court’s five-page opinion in Hunley emphasizes the error in Perfect 10 when it describes that decision as having been based on the “plain language of the statute.” No, I don’t think it was.

Perfect 10 may be a plausible reading of the statute, but it is neither a plain reading nor a particularly sensible or fair one. §106(5) of the Copyright Act protects the author’s exclusive right to “display the copyrighted work publicly,” and any party who displays a work without license (exceptions notwithstanding) is an infringer. The plain-text definition of “display” in §101of the law is “to show a copy of it, either directly or by means of a film, slide, television image, or any other device or process …” [emphasis added]. And just to cover all bases, “copies” are defined thus:

“Copies” are material objects, other than phonorecords, in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.

Nowhere in these statutory definitions—read independently or interdependently—does the text indicate that while using a “device or process” to cause a public display, the user of a work will only implicate the author’s exclusive right if he displays the copy which he caused to be made of the work. Reading the text as the Ninth Circuit does is a strained and creative interpretation, not a strict one. In fact, as Professors Jane Ginsburg and Luke Budiarjo argued in a 2019 paper, the server rule has been “converting the display right into an atrophied appendage of the reproduction right.”

If we were to apply the server test in any context other than the internet, it would not survive as a defense in court—not even in the Ninth Circuit. In 2007, perhaps the court in Perfect 10 was distracted by the technology and failed to recognize that “finding” a work online and making unlicensed use of it online is not legally distinguishable from doing the same thing in physical space. It should not matter that “in-line linking” happened to accomplish the purpose of display by technologically novel means. And while it is often true that statutory language can be out of step with a new paradigm, that does not seem to be the issue here.

If Perfect 10 were a textually defensible reading of the statute, then the server rule’s abuse on the display right and common sense would be a forgivable legal loophole in need of repair. Instead, it is simply bad law and should be overruled, either by the Ninth Circuit Court of Appeals itself, or by the Supreme Court, if and when that opportunity is ever presented.

Photo: by: AndreyPopov