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.

To Parler or Not to Parler: It’s About the Money, Stupid

When I first learned about Parler, my immediate, half-joking, comment was that it would make the FBI’s job easier. To the extent that could be true, some might say this is one rationale to keep the site online. But separate from the efficiency of having putative domestic terrorists gather in a single chat space, many parties have asked whether AWS rescinding its deal to host the far-right social platform—followed by Apple and Google dropping the app—is an example of cancel culture. Personally, I think it’s just cancel cult, and the so-called broader implications are mostly handwringing bullshit for one simple reason:  this is all about money.

The complaint brief in the lawsuit filed by Parler against AWS alleges breach of contract (which may be valid), and it alleges violation of anti-trust law on the grounds that, for instance, Twitter has also hosted divisive and incendiary content without losing its multi-year deal with same host provider. The brief highlights the fact that, especially after Twitter dropped Donald Trump’s account, AWS cut Parler off at the moment of its greatest growth opportunity as a competing social venue. The court may even grant Parler’s request for a temporary restraining order and instruct AWS to restore the site pending further proceedings. We’ll see what AWS presents in its response.*

But the premise of the anti-trust complaint, while it may prove legally tenable, most instructively emphasizes the fact that Parler was not designed as a “conservative” social site—a venture that many real conservatives would probably tell you is a losing proposition today. Parler was designed to capitalize on the seething, conspiracy theory insanity that boiled over on January 6th and is still boiling, and which may yet tear this nation and western civilization apart. It doesn’t even matter whether Parler’s founders are ideologues. The bottom line, as any terrorism expert will tell you, is that extremism is a money-maker.

Look at the scenes of all those dupes in Washington, and what do we see as a backdrop to the violence and vandalism? We see merchandise. It’s a goddamn football riot without the game. These idiots believe they’re “taking their country back” while profiteers, led by Trump himself, are simply using them as life-size action figures in the apotheosis of American capitalism gone astray:  Outrage Incorporated. “It’s 1776!” Ted Cruz tells them. Really? The patriots of ’76 didn’t even have uniforms, let alone flags, hats, tees, and sippy cups declaring their loyalty to a single man. Those patriots froze, starved, and bled barefoot to defeat the very idea of rule by a single man.

Amre Metwally, writing for Slate, says that we should all be “very concerned” about the implications of AWS et al dumping Parler. But why the hell should that be a concern? Parler is just more short-term opportunism profiting off the decline of democracy itself. What could possibly be the downside to its disappearance? It’s a business venture, and if violent extremism is finally a bad bet, that’s what conservatives traditionally call the “free market doing its job.” Major American corporations cut ties with Trump and certain members of the GOP—not out of altruism, but because existential threats to democracy are bad for business. It’s very hard to sell toasters in the middle of a civil war.

Metwally is correct to note the tech industry’s hypocrisy when he writes:

Last I checked, Google and Apple never chucked Facebook app downloads from their stores even though violence has most certainly been incited on Facebook time and time again. Tech platforms never rushed to block access to YouTube even after it was found that it helped radicalize the Christchurch shooter. Come to think of it—why wasn’t Twitter blocked from the Google Play Store or the App Store for allowing Trump to monopolize these radical sentiments for years until we reached this breaking point?

Fair enough, but also missing the point. It is true that for years the major internet players both practiced and advocated willful blindness to all manner of toxic content until we finally reached a breaking point. And they did this because it was profitable. Period. There was never anything principled about Google or Facebook or Twitter’s laissez-faire approach to site management. “Save the internet” was a bogus battle cry (like “Take our country back”) that was repeated across the political spectrum; and in that regard, we all have a little blood on our hands for believing it.

What we should be concerned about is the underlying fallacy (a mostly liberal one by the way) that suborns an enterprise like Parler due to a fundamentalist notion of the First Amendment—one as unconnected to constitutional principles as Ted Cruz invoking Bunker Hill to an angry, privileged, mob in 2021. Frank Pasquale writes in a must-read post:

There are at least two responses to the lies, racism, and violence at the core of the attack on the Capitol. One is to simply put faith in an unfettered marketplace of ideas, hoping that a critical mass of Trumpist Republicans will back away from the idea that elections are rigged for Democrats, that millions of false votes are cast, etc. But what the recent bans reflect is a dawning realization among technology firms that this marketplace of ideas is dysfunctional. It is not self-correcting—or at least it is not self-correcting enough to prevent a significant group of persons (with the guns and votes to cause real havoc) from acting on false beliefs that, say, the presidential election of 2020 was stolen, that COVID-19 is just a bad flu, that Democratic leaders are a cabal of child abusers, and so on.

A-freakin’-men, Mr. Pasquale. The difference between Parler and Facebook might be compared to the crisis in the Republican party right now. Parler, like Trumpism, intentionally aims to exploit civilization-destroying forces for profit (and power); while Facebook, like the meekest members of the GOP, naively allowed those forces into the tent assuming they would be modified by better angels. And this was also for profit.

Sure, we can have a discussion (if a forum for discussion exists in the near future) about the amount of market control held by Facebook, Amazon, Apple, Google et al. But that should be a traditional, antitrust conversation that—unless we are truly suicidal—should reject the idea that somehow the speech right means that two plus two equals nine. Although it is no surprise that there is money to be made by launching twoplustwoisnine.com, there is absolutely nothing wrong with letting ignorance fail or with starving extremism of oxygen. We have seen the results of the opposite view, and it is the end of everything. Fuck Parler. Better they lose their shirts than we lose a whole nation.

*UPDATE: AWS filed its response on 1/12. Having read it, I would now say the TRO seems doubtful.

On the Post Hoc Deplatforming of Trump

I guess this is the digital-age equivalent of defenestration:  rather than an authoritarian getting thrown out a window, he gets thrown off Twitter. And now that the major platforms have closed the proverbial barn door while the cows run amok on Pennsylvania Avenue, calling the decision to deplatform Trump too little too late is itself saying far too little, and way too late.

On December 31, 2016, I published a post asking whether Americans might begin to doubt the extravagant premise that the internet as we know it is a gift to democracy. To an extent, the answer to that question was yes. Over the past four years, we did see at least a new willingness to criticize Silicon Valley; and at the same time, that industry’s ability to thwart every policy initiative with the over-broad message that “the internet would break” proved as futile as it is fallacious. 

That it took a violent, seditious* assault on the Capitol to slap at least some of Trump’s enablers into reality is dismaying to say the least, and many of those enablers should not—and very possibly will not—be forgiven. But we should also not be quick to absolve the corporate enablers at Twitter, Facebook, et al, or their well-financed network of shills who so earnestly promoted the notions that all content online is tantamount to protected speech, that the free exchange of all views is inherently a net positive, and that the good will outweigh the bad as long as we remove all barriers to informative and cultural material.

Long before Trump announced his candidacy, the political landscape had been well-softened by the illusion that social platforms provide better transparency, and Trump’s incipient cult was not unique in believing that “new media” were providing access to a truth that the gatekeepers of the “old media” were hiding. At the same time, social platforms are uniquely designed to feed that egotist in us that craves the dopamine hit generally referred to as confirmation bias.  

The tech-utopians truly believed (and apparently still do) that a more enlightened, more civilized world is the inexorable outcome of more access to more information. When some of us countered that internet platforms seem to be highly effective at spreading disinformation and other toxic content, we were called luddites who hate progress and technology. We were told that we wanted to stop a new enlightenment in which “the whole store of human knowledge would be at everyone’s fingertips.”

It should not have been so easy for a president, or any individual, to insinuate that the entire intel community is a corrupt “deep state” or that election officials are liars or that over 60 courts, including the Supreme Court, willfully ignored fraud in the 2020 election. Those conclusions insist that not one of the tens of thousands of oath-taking public servants implicated can be trusted over the word of one man or the conspiratorial ravings of some profiteering opportunists on the internet.

We must acknowledge that Facebook, Twitter, Google, Amazon, Reddit et al have been the category killers in the business of that profiteering opportunism. If one feels suddenly inclined to straighten out a Trump defender on the First Amendment, remember that it was these corporations, with the assistance of the EFF, Techdirt, Public Knowledge, the ACLU and others, all asserting for many years that almost everything posted online should be treated with the deference of protected speech. Whether militance on this matter is ideological or simple greed, it is a premise that must be rejected as false for our own good. David Golumbia, associate professor of digital studies, wrote recently for the Boston Globe:

As a small group of scholars and activists are arguing with increasing force,…it is manifestly possible to protect free speech — and thus enhance the political and democratic values free speech is meant to promote — while suppressing, or at least not actively encouraging, the efforts of those who want to turn democracies against themselves.

And if we grasp that protections on speech really exist to enhance democratic participation, then it’s easier to see through the claims that digital products such as Bitcoin or Apple’s computer code count as speech. In other words, we’d see that a lot of cries for “freedom of speech” in the Internet era are really just demands for freedom from regulations that wouldn’t be challenged in the offline world.

So, by all means, Senators Hawley and Cruz, and any elected official who lent credence to the stolen election story, should be held accountable for feeding a fire that exploded on January 6,and is probably not done exploding. But Big Tech executives and the “digital rights” groups have much to answer for as well. To a very great extent, Donald Trump merely exploited the systemic and psychological vulnerabilities that the major platforms had been exacerbating and monetizing for years.

The leaders of the internet industry have consistently spoken to the public in the ebullient language of new horizons, where fresh ideas and opportunities converge. But that was only part of the picture. While raking in billions, these companies willfully ignored or scornfully dismissed the fact that their systems and business models made few distinctions among information, misinformation, and disinformation. Instead, they papered over those dichotomies by citing the First Amendment to which they owed no duty whatsoever. So, yes, Trump and his supporters are dead wrong to call the sudden deplatforming an infringement of the speech right, but it was the internet companies themselves who fed them that lie in the first place.

*CORRECTION: This was originally published as “treasonous,” which is the wrong word.

Senate Judiciary Committee Releases DMCA Discussion Draft

Shortly before Christmas, the Senate Judiciary Committee released the discussion draft of a bill to amend the copyright law, primarily the sections known as the Digital Millennium Copyright Act of 1998. There is something in the proposals for everyone to like or hate, but it is important to keep in mind that this is the starting point for what will be several years’ worth of negotiations. Although that legislative reality may not stop the copyright critics and the tech industry from fulminating early and often, I shall try, with this post, to describe a few of the major proposals without strenuously arguing for or against any one amendment. Each new recommendation deserves thorough discussion. But not today. We have a long way to go.

Section 512 Proposals

The big headline—and one that probably nobody likes—is that the discussion draft essentially throws out the four safe harbors and calls upon the National Telecommunications and Information Administration (NTIA) to develop a new set of criteria. Presently, the DMCA defines four types of service provider activities (e.g. system caching) and the conditions each must meet in order to retain immunity for liability stemming from infringements caused by users. This nearly blank-slate approach is such a bombshell in everyone’s camp that it is far too early to comment on what the responses will be.

One of the most significant proposed changes, which copyright owners have advocated for years, is a response to the complaint that courts have consistently misinterpreted what it means for a service provider to have “knowledge” of infringement on their platforms. The discussion draft includes new language meant to clarify Congress’s original intent and, in principle, limit a service provider’s ability in court to claim that they are innocently unaware of infringing material on their platforms.

The knowledge issue is the king gremlin of all DMCA squabbles, especially for smaller copyright owners (e.g. indie musical artists), who reasonably ask how can a company like Google claim to anticipate what everyone wants for breakfast but cannot know when certain works are repeatedly infringed on YouTube? In that spirit, the discussion draft introduces the conduct of willful blindness on the part of the OSP as grounds for abrogating the §512 liability shield, and it also recommends a burden on the OSP to contact and assist the notice sender who has made certain, partial errors in a takedown request. Ultimately, it is hoped that clarifying the knowledge standard will help to achieve a “notice-and-staydown” regime whenever “complete and near-complete works” are uploaded to a platform.

On the other side of that coin, the critics of the takedown mechanism will presumably like the working draft’s call for stricter penalties for bad faith misrepresentations, including specific sanctions against repeat wrongful takedowns by any party. That said, I imagine the same critics will grumble at the notion that bad faith misrepresentation can cut both ways (e.g. for counter notices), and I assume they will scream blue murder at the suggestion that the Copyright Claims Board, to be formed at the Copyright Office under the provisions of the CASE Act, would be the body to adjudicate allegations of bad faith use of the DMCA.

On that subject, expect the anti-copyright critics to marshal its rhetorical forces to scorn the expanded role the USCO would play in general under the provisions of the discussion draft. In addition to the above-mentioned role of the CCB, the bill envisions the Copyright Office writing and maintaining standardized rules and forms for the notice and counter-notice process and giving the Register of Copyrights the authority to determine what personal information (e.g. of an alleged infringer) may be protected by a service provider. Further, pursuant to a proposal mentioned below, the USCO would maintain a list of notices for “orphan works” being used without license, after a user makes a good faith effort to locate the rightsholders.

Section 1201 – Trafficking in Circumvention Devices

This is the part of the statute copyright owners would prefer to be left intact, and many stakeholders on that side of the debate will probably be highly critical of the proposed changes in the discussion draft. 1201establishes prohibitions against circumventing technical measures used to protect copyrighted works in the digital age—an original example being the encryption software used to protect a CD or DVD against copying.

Although the discussion draft comes nowhere near the kind of holistic assault on 1201 that groups like the EFF would like to see, it does propose to substantially alter, if not repeal, the prohibition against trafficking in devices used for circumvention. We can expect rightsholders to fight hard on that one. Meanwhile, there may be room for compromise on the recommendation that the Register be given the authority to make certain types of circumvention permanently exempted, so that, for instance, good-faith researchers do not need to reapply every three years for exemptions they have received in the past. 

Section 1202 – Encouraging Attribution

This part of the DMCA, not often enforced or discussed in the public copyright conversation, prohibits the removal of copyright management information (CMI) from a work. The one proposed change to this part of the DMCA would alter the intent aspect of this conduct. As it stands, the potentially liable user must remove the CMI with the intent to cause (and presumably hide) an infringement. But the revised language would make removal of CMI with the intent to deny attribution to the author the only standard necessary to be potentially liable under the DMCA. Expect copyright critics to complain about this, though not quite so loudly as the 512 proposals.

Orphan Works

The discussion draft proposes that a user of a work be allowed to do so without license in circumstances where the rightsholder cannot be found (i.e. the work is “orphaned”). This liability exception would require the user to meet several conditions, including a documented, good-faith effort to locate the rightsholder; providing appropriate attribution to the author; and filing a Notice of Use with the Copyright Office (mentioned above).

While this proposal sounds reasonable and balanced with respect to the individual user, or perhaps the not-for-profit library, a related problem to-date has been that big, corporate entities (e.g. Spotify) have used the Notice of Intent mechanism (§109), in conjunction with their technological capabilities, to create a pseudo-licensing regime for works en masse.* And, as rights advocate Chris Castle has noted, many of the works alleged to be “orphans” have been famous songs for which the owners are not hard to locate. We’ll see how this proposal shakes out, but suffice to say, an amendment designed to serve the individual creator or educator should not become a new loophole for the likes of Spotify and YouTube to exploit.

Relocation of the Copyright Office

Given the expanded role of the Copyright Office proposed in the discussion draft, we can expect to hear the usual suspects dredge up their unfounded allegations that the USCO “cannot be trusted,” or that it is “culturally captured by the major copyright owners.” But what will really get the copyright skeptics in a lather is the proposal that reprises a longstanding notion to relocate the Copyright Office out of the Library of Congress (into the Department of Commerce), and to make the Register of Copyrights a presidential appointee. I have written a couple of posts asserting the fundamental soundness of making the Copyright Office independent of the Library, and no doubt this subject will need revisiting as the storm clouds gather around this recommendation.

Other Key Proposals

The rest of the discussion draft addresses other matters not specific to the DMCA. It contains the language of the CASE Act such as it would be added to Title 17, which is the full U.S. Copyright Law. It proposes changes to the registration process so that good faith errors made by applicants are not refused protection, if the work would be otherwise eligible for registration. It contains an amendment to abrogate a registration if the application was filed in bad faith. And it contains a provision to amend original applications to add derivative works rather than file new applications for each derivative.

In short, there are several proposals (likely uncontroversial) that aspire to streamline Copyright Office processes and/or save applicants money on fees, but we shall see where any of this goes. Beyond that, I shall spare readers any attempt to summarize all the draft recommendations in one post. As I say, we are only at the beginning of a very long process, and each of the major amendments should be discussed in deeper dives. Deep dives to follow. Some breath holding will be necessary.

*NOTE: Though prior use of the NOI process is still relevant to the discussion, it should be noted that the practice of obtaining licenses for music via NOI was eliminated by the Music Modernization Act.