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.

Section 230 and Trump’s Legislative Circus

Recently, the law called Section 230 of the Communications Decency Act (1996) has featured in a political cacophony that is becoming more ridiculous since the day Twitter first presumed to label Trump’s disinformation for what it was. Now, the noise has continued to exacerbate legislative dysfunction down to the final hours in this toxic year.

After vetoing the 2020 National Defense Authorization Act (NDAA) because the must-pass legislation did not contain a rider to repeal Section 230, Trump then pivoted to making the same proposal (along with another unfounded investigation into election fraud) a condition of passing a broader COVID relief package favored by Democrats, but less so by most Republicans. As long as those riders are part of the spending increase bill in the Senate, Democrats cannot vote for it, which will presumably suit Leader McConnell and several other Republican senators just fine.

What any of this means with regard to Americans getting the financial assistance they need, or to Trump’s continued influence over the Republican party remains to be seen. But for sure, the president’s very fragile ego has elevated an arcane cyber law to prominence by grossly distorting its intent and meaning, and by injecting divisive partisanship into a policy matter where lawmakers might otherwise reach consensus.

Real Section 230 Problems

The ill effects of Section 230 have nothing to do with political speech bias and everything to do with harmful conduct like harassment, libel, sexual extortion, etc. that has too-often been shielded by the statute. These unintended consequences, akin to the DMCA Section 512 problem, are largely the result of the courts’ over-broad interpretations of Section 230, resulting in dismissals, incompatible with justice, of various civil claims.

Nowhere in American life are parties that contribute to, or profit from, harmful conduct automatically immunized against civil liability, except for internet platforms. And automatic, wholesale immunity was never the intent of Section 230. As described in this post, 230 was written to encourage platform moderation, but over the years, the conditional immunity it was meant to provide was steadily asserted by platform owners as grounds to reject nearly all moderation altogether—even the basic courtesy of removing material that is known to be harmful.

So, whether a site intentionally or unintentionally hosts material that is harassing, libelous, nonconsensual pornography, or content that may be otherwise actionable in the real world, platforms have almost never been forced by court order to be so much as helpful to victims of these crimes. As attorney Carrie Goldberg can describe in detail, her client Matthew Herrick was unable enjoin the dating site Grindr simply to demand that it remove posts made by another user with the explicit intent to cause Herrick to be physically harassed and quite possibly raped. All Grindr had to do was remove the posts, but it refused to do so on claims of protecting speech—a constitutional fallacy that is only possible because the courts have held 230 to be too broadly immunizing.

Consequently, Trump’s rhetoric on Section 230—lashing out at platforms like Twitter for presuming to label disinformation for what it is—has muddied the waters on a legal framework that otherwise requires sensible and humane review. Although Trump likely could not explain 230 to save his life, his gibbering amplified one of the most popular misconceptions about it:  that “viewpoint neutrality” is either the aim of the statute or a condition for maintaining a platform’s liability shield.

Neither of those premises is true, but it is worth remembering that it was the platforms themselves who promoted this false neutrality narrative long before the Trump administration put them in a moral bind of their own making. Every Big Tech PR message for the last 20 years has been one in which it is presumed to be axiomatic that internet platforms are enhancements to and defenders of the speech right. Neutrality and speech were the public rationales for laissez-faire moderation policies that just so happened to enable the big platforms to monetize all activity. Only when disinformation became the official word of a sitting president, and hate speech spilled over more prominently into hate crimes, did any of Silicon Valley’s leaders begin to wonder if they had made egregious errors in their systems or management practices.

Meanwhile, the outgoing president’s vindictive assault on Section 230 has largely been a PR gift to the companies he would like to hobble and to those ardent believers in the failed maxim that “more speech is the antidote to bad speech.” The Electronic Frontier Foundation published a post on December 9 entitled It’s Not Section 230 President Trump Hates, It’s the First Amendment. Naturally, it seized upon the Trump tantrum as an opportunity to incorrectly reiterate that 1) maintaining the status quo of 230 is synonymous with protecting speech online; and 2) all critics of 230 are hellbent on repeal as an assault on the First Amendment, just like Trump.

Real Section 230 Reform

On the contrary, while some reformers have advocated apolitical reasons for a repeal of Section 230, others recommend restoring the original intent through legal reform—a reform that begins by recognizing that the bad conduct shielded by 230 means that speech is not exactly protected as universal right on the internet in the first place. As scholars Mary Anne Franks and Danielle Citron, two of the most important thought leaders working on the 230 issue, describe in a paper published in February with the Boston University School of Law [1]:

Marginalized groups in particular, including women and racial minorities, have long battled with private censorial forces as well as governmental ones. But the unregulated internet — or rather, the selectively regulated internet—is exacerbating, not ameliorating, this problem. The current state of Section 230 may ensure free speech for the privileged few; protecting free speech for all requires reform.

Franks and Citron have made major contributions to legislative reform, addressing harms like nonconsensual pornography, and to our understanding of how Section 230, combined with “speech fundamentalism,” results in conduct like online harassment without consequence for the perpetrators or the facilitators. So, the implication that the president, or any elected official, is having his speech chilled by means of fact-checking, is blatant, privileged hypocrisy in contrast to what really happens to people who do not sit in seats of power …

Failing to address online abuse does not just inflict economic, physical, and psychological harms on victims—it also jeopardizes their right to free speech. Online abuse silences victims. Targeted individuals often shut down social media profiles and e-mail accounts and withdraw from public discourse. Those with political ambitions are deterred from running for office. Journalists refrain from reporting on controversial topics. Sextortion victims are coerced into silence with threats of violence, insulating perpetrators from accountability.

Rather than a piecemeal approach to reforming Section 230, Franks and Citron propose two broad remedies—one statutory, the other judicial—to ameliorate the inadvertent shield the law presently provides to bad actors. The statutory remedy is to clarify that 230 only applies to protected speech and not to the broader term “information,” which is the word that currently animates the immunity enjoyed by platforms.

In theory, this focus on protected speech might rein in Big Tech’s rhetorical agenda to define everything posted online as “speech.” As Franks and Citron recommend, if the statute is more clearly defined, the courts can distinguish protected speech from tortious conduct posing as speech. In fact, most of us can make this commonsense distinction without law degrees; but having said that, the speech bar is not an easy one to overcome by amending the 230 statute accordingly. For better or worse, protected speech can encompass some very bad conduct, and the legal remedies tend to require narrowly tailored statutes, outside the scope of 230, to prohibit the conduct itself.

For instance, as I was writing this post, Dr. Franks happened to tweet the news that the Minnesota Supreme Court upheld that state’s nonconsensual pornography law as constitutional, but it is worth noting that the court rejected the state’s assertion that the conduct was a new form unprotected speech. Instead, it held that the law served a compelling interest and was narrowly tailored to serve that purpose (i.e. strict scrutiny). It is also worth mentioning that defenders of Section 230’s status quo have generally opposed statutes prohibiting nonconsensual pornography.

In addition to possible statutory amendment to Section 230, Franks and Citron’s paper describes a judicial approach that would apply precedent understanding of “reasonableness” on a case-by-case basis to examine whether a platform has taken “reasonable” steps to remove or mitigate unprotected, harmful content from its servers. In practical terms, then, Matthew Herrick’s conflict with Grindr would not arise because 1) the posts at issue were not protected speech;[2] and 2) because Grindr’s refusal to remove the posts would likely not meet a “reasonableness” standard familiar to any court in comparable areas of law.

On that second point, Franks and Citron cite judicial principles sounding in, for instance, copyright law, which begs the question whether “reasonableness” could be more effectively applied under Section 230 than “knowledge” of infringement has been under Section 512. But I shall leave that question open for consideration in a future post.

In general, I would argue that a very compelling reason to close the Section 230 loopholes that allow site operators to shirk responsibility is the premise that opportunity becomes motive. If we ask, for instance, why there has been an increase in nonconsensual pornography, often perpetrated by some idiot ex-boyfriend with a gripe, we can blame the weak morals of the individual, misogyny in general, or a bottle of tequila and a bad day; but a key factor that cannot be ignored is that it is just too damned easy. The opportunity to cause someone harm—potentially much greater harm than might be contemplated or intended—with the tap of a few buttons only exists because certain platforms trade in misery while others simply practice depraved indifference to it. And that is the psychosis which needs to be addressed by legitimate Section 230 reform.

[1] The Internet as a Speech Machine and Other Myths Confounding Section 230 Reform. Link.

[2] Even worse, because the posts “spoofed” (i.e. pretended to be) Herrick, they were a form of coerced speech in addition to attempts to cause him physical harm.   

What’s the Protecting Lawful Streaming Act Really About?

As with the CASE Act, anti-copyright (and even some copyright-neutral) voices reacted on social media to the fact that a bill called the Protecting Lawful Streaming Act (PLSA) was attached to the massive omnibus spending package that passed Congress last night.  What this bill will do is make enterprise-scale criminal copyright infringement, by means of digital streaming, a felony rather than a misdemeanor. So, once again, the gnashing of teeth began, alleging that Congress kowtowed to Hollywood, that this provision was snuck in as a rider at the 11th hour, and that making streaming a felony threatens all manner of innocent internet users. As usual, none of the above is true.

I wrote about felony streaming in the body of a post about the indictments against a group of men operating an illegal streaming service called Jetflicks in the U.S., and I shall republish here with minor alterations:

The distinction between civil copyright infringement and criminal copyright infringement is based on the purpose and conduct of the alleged infringer. Old-school criminal copyright infringement usually entailed mass-producing bootleg, physical copies of works like movies or record albums to sell in an unlicensed market as a substitute for the legal market. Consequently, U.S. criminal code historically identified unlicensed reproduction and distribution as felony charges that law enforcement may bring in criminal copyright cases.  But streaming audio or video (though it often implicates reproduction and distribution) has been considered a public performance of a work, and unlicensed public performances are, historically, misdemeanors. 

But clearly, the kind of harm that will be caused by enterprise-scale infringement via online streaming is greater than any amount of counterfeiting that was done in the pre-digital age. If selling ten thousand bootlegs out of a warehouse in 1988 was a felony, then how can it make sense that illegally streaming tens of thousands of works to tens of millions of viewers is considered a lesser crime?  A letter written in July of 2019 by the Register of Copyrights to the Senate Judiciary Committee, IP Subcommittee states, “Under this system, criminal streaming piracy, no matter the dollar amount it involves or the number of works affected, is de facto treated as a lesser crime than the illegal downloading or reproduction of the exact same content.”

So, the distinction that made mass infringement via streaming a misdemeanor was a technicality, a loophole, that no longer applied to the real world of digital-age piracy for profit. The PLSA, which was not conjured in the wee hours of last night’s omnibus spending bill haggling, simply closes the loophole. It has no bearing on any individual users, legal streaming services, or even individual streaming of an infringing use; and it changes nothing about the nature of civil copyright enforcement. So, unless you are building the next Pirate Bay or Megaupload or Jetflicks—and doing so within the reach of American jurisdiction—you would never need to know about this change to the criminal code.

As usual, the internet industry, with the support of its network of anti-copyright pundits, simply oppose enforcement at every opportunity, and this was one of those opportunities. That said, it is true that, unlike the CASE Act, Hollywood does have an interest in felony streaming. And why wouldn’t they? If we’re using “Hollywood” as a generic term for motion picture producers, whose products do we think are illegally streamed in mass quantity by pirate enterprises? But like the CASE Act, the proposal to close the streaming loophole has been in public discussion for many years for the reasons I have stated, and it is political theater to allege that Congress suddenly “caved” to Hollywood on this matter.

In reality, the PLSA is the result of months of negotiations between content industry representatives and parties representing online platforms and user communities. Because the bill was narrowly tailored—at the insistence of those purporting to represent users—groups that usually express concern with any copyright legislation agreed to the final language of the bill and even went on record at a House Judiciary Hearing saying that they were not opposed to the bill.

So, nobody caved to Hollywood, as Techdirt will tell you, because the legislative amendment just makes common sense to anyone looking at the issue; and the only people this change will affect negatively are criminal operators, who cause economic harm to a whole segment of middle-class workers. Meanwhile, the handful of critics, shouting from their rather well-feathered aeries in academia and industry-funded think tanks, should maybe shut up about this one and find something real to complain about. We’ve got plenty.

Image by: Elnur

Omnibus Bill Passes Congress, Anti-Copyright Crowd Turns Shrill

I have covered the development of the CASE Act in depth. But because the usual gang of anti-copyright zealots began screaming on social media at the news that the small-claim copyright provision was attached to the omnibus spending bill that passed last night, I offer some responses to those allegations about CASE that are factually untrue as well as the predictions that are logically unsupportable. (In a separate post, I will discuss the felony streaming bill that also passed as part of the spending bill.)

CASE Facts Anyone Can Check Themselves

The CASE Act has been the subject of public Congressional consideration, negotiation, debates, and votes for almost two years. And the more general proposal of a copyright small claims solution was in discussion for several years before that. The few objectors’ cloak-and-dagger narrative is a favorite tactic used by just about any party that doesn’t like a particular proposal, and it is demonstrably false in this circumstance. If CASE has been “sneaking” its way through the legislature, it has been doing so in broad daylight and moving very slowly. Because here are some basic realities that readers are free to verify:

  1. the idea of creating a small-claim copyright provision has been discussed in copyright circles and on Capitol Hill for more than decade;
  2. the CASE Act specifically has been the subject of public Congressional consideration over and over;
  3. the CASE Act passed the House 14 months ago with a vote of 410-6;
  4. CASE Act received bipartisan co-sponsorship from nearly one quarter of the Senate;
  5. the CASE Act is a voluntary alternative dispute resolution and is, therefore, not a violation of any party’s right to due process;
  6. the CASE Act has nothing to do with Hollywood or other Big Media, which has no interest in small copyright claims because duh; and
  7. the CASE Act would probably be law already, if Senator Wyden had not put a hold on the bill and refused to engage in any discussion that would not have poisoned its core purpose.

On that last point, it cannot be overstated that the fully transparent, normal legislative process was stopped dead in its tracks by Senator Wyden’s hold. Although CASE critics have tried to paint the senator’s recalcitrance as an act of courage, in reality, he pandered and condescended to his own constituents in Oregon who wanted the bill passed, blew a lot of hot air about erroneous and generalized concerns, and then refused to negotiate a single good-faith amendment to the bill. His only proposals would simply have gutted the intent of the bill. Not only was Wyden wrong about CASE itself, but he hyperextended the purpose of Senate holds, which he once personally advocated should last no longer than 24 hours.

Sane Predictions or Scare Tactics?

Anyone with a brand and a following can make a prediction without backup because, of course, predictions cannot be disproven by evidence. Nevertheless, the ACLU, the EFF, Mike Masnick, Public Knowledge, et al have predicted that the voluntary tribunal established by CASE, the Copyright Claims Board (CCB), will be a venue attractive to copyright trolls,* and they once again invoke the generalized bugbear that CASE will chill free speech online.

Regarding copyright trolls, I have explained in as much detail as I can contemplate (see posts here, here, here, and here) why the Copyright Claims Board would be a money-losing forum for the unscrupulous attorney—namely, that the bill contains multiple anti-troll barriers, which no Article III court can provide. While the critics lazily allude to trolling in general and predict, without supporting arguments, why the CCB would increase trolling, I explain in this post about an actual troll litigation why the CCB is more likely to decrease the volume of trolling by providing an alternative for the kind of plaintiffs who are often the targets of trolls in the digital age.

The copyright skeptics are unlikely to admit that the massive increase in online infringement has been a primary, if not the primary, driver of increased troll-like litigation. But as the judge in the case mentioned above wrote, “Misuse of intellectual property has become a pervasive problem in the internet era and one that is especially pernicious for freelance photographers like [the plaintiff], who often lack the resources to pursue claims in court.”

The critics are free to rebut the theory that CASE would decrease trolling, citing evidence and applying reason, but they do not. Instead, they merely asked Congress and the public to take their word for it, under the imprimaturs of their brands, that CASE will increase trolling because they say so. And in that same vein, anyone who takes the “chill speech on the internet” claim seriously at this point is blindly submitting to the undeserved street cred of parties like the ALCU without actually thinking the issue through very clearly. 

There is a reason why the “online speech” narrative has proven to be incoherent at best, and nation-destroying at worst. Constitutional scholar Mary Ann Franks sums it up adroitly in her book Cult of the Constitution, in which she describes both the ALCU and the EFF in particular as “first amendment fundamentalists,” who “aggressively embrace” the “marketplace of ideas” theory of free speech. “According to the marketplace of ideas theory,” writes Franks, “unfettered competition will eventually lead to the truth.” Can anyone seriously claim that truth is winning so far?

On the contrary, we have watched the effects of laissez-faire internet moderation cause devastating, potentially self-annihilating harm to the very essence of truth, and we have largely ignored how often speech is silenced for people outside the privileged bro-culture of Silicon Valley. But without digressing fully into that complex subject in this post, suffice to say the premise that all online activity must be accorded first amendment-like deference is a profoundly failed theory in general, and even if this were not plainly true, the act of legitimate copyright enforcement is not in conflict with the first amendment.

I know what the classic frightful scenario is, but in the spirit of the season, let me say that Grandma will not get run over by the CASE Act. Neither she, nor anyone else, will innocently share a meme on Facebook and find themselves mysteriously on the hook for a damage award that was rubber-stamped by the CCB. That fiction is blatant fearmongering by a multi-billion-dollar industry that benefits when rightsholders have as a few remedies as possible for infringement of their works. Meanwhile, the small-claim provision does exactly what this same industry claims it wants rightsholders to do about enforcement, which is to direct their complaints at primary parties who have allegedly infringed.

The CASE Act provides a badly needed, though limited, remedy for independent creators who make modest livings from their creative work. A copyright owner must file meritorious claims, pay filing fees, and may only file up to ten claims per year; and the respondent must voluntarily submit to the ruling of the CCB. So, the limitations for the average copyright owner, making perhaps $30-40,000 annually from her creative work, are quite clear: she only has the resources to try to remedy the most harmful infringements, which will often be infringements by commercial users who dodged the responsibility of licensing her work. There is nothing insidious, secretive, or unconstitutional about that.

The last-minute efforts to oppose to the CASE Act by a small corner of anti-copyright special interests presented a slurry of unsupported, implausible, and discredited claims about the bill, mixed with process arguments that are misleading lies of omission. The truth is the bill would likely have already been signed into law a year ago if not for the hypocritical use of the Senate hold procedure to prevent further debate or voting on the proposal. Fortunately, the overwhelming bipartisan support for CASE overcame all that and may finally provide entrepreneurial creators a remedy they have been seeking for a very long time.

*Copyright trolls are attorneys who engage in unscrupulous practice and/or bring unmeritorious claims in order to frighten defendants into settlements, but copyright critics also exaggerate the scope of the “troll problem.”