David Newhoff, Author at The Illusion of More

NYTimes Reports: Propaganda Mills Have Replaced Local News

“You provide the prose poems. I’ll provide the war.” – Charles Foster Kane, Citizen Kane

You are probably familiar with “advertorials,” the relatively benign mash-ups of information and advertising offered by many print and online publications. For instance, a regional electric service company that sells generators might publish a page that reads a lot like an article suggesting some good reasons to consider a backup generator for the coming Winter. This blurring of editorial and marketing is usually transparent to the reader and, in most cases, the publisher explicitly states somewhere on the page that it is a paid ad.

But according to a story published Sunday by the New York Times, millions of Americans are now reading articles they perceive as local news, but which are in fact the equivalent of advertorials, paid for and directed by political operatives and major business interests. And the articles are in no way identified as distinguishable from real news. Focusing primarily on a network owned by former TV reporter Brian Timpone, the Times states:

Maine Business Daily [MBD] is part of a fast-growing network of nearly 1,300 websites that aim to fill a void left by vanishing local newspapers across the country. Yet the network, now in all 50 states, is built not on traditional journalism but on propaganda ordered up by dozens of conservative think tanks, political operatives, corporate executives and public-relations professionals, a Times investigation found.

The Times feature describes a content mill in which freelance writers—many who might otherwise be real journalists if the industry had not been gutted by the “free content” cluster bomb dropped by Google & Co.—are paid pennies on the dollar to write articles with very clear instructions as to what they should say about political figures or matters of public policy. Not only are the articles not local news in any sense, but a story aimed at, say, residents of Hanover, New Hampshire may be written by somebody sitting in her apartment in Atlanta, who has been paid between $3 and $22 for coloring in a few lines provided by “the clients.” How this is demonstrably different from Russian troll farms is a mystery to me, except that I imagine Russian trolls are paid better. The Times article states:

The network is one of a proliferation of partisan local-news sites funded by political groups associated with both parties. Liberal donors have poured millions of dollars into operations like Courier, a network of eight sites that began covering local news in swing states last year. Conservative activists are running similar sites, like the Star News group in Tennessee, Virginia and Minnesota.

The most compelling (okay, infuriating) example cited by the Times describes how hotel magnate Monty Bennett, a major donor to President Trump, used the MBD network to lobby for a coronavirus stimulus bill in a manner that ultimately garnered his publicly-traded company a $70 billion government bailout. The Times also reports that Mr. Bennett also paid for articles designed to influence at least some of the rhetoric vis-à-vis U.S. China policy in response to the pandemic.

So, if you find yourself wondering how millions of Americans can believe any of the crap the president says, or why they are not outraged when millions of tax dollars allocated for “small-business” support winds up in the accounts of major corporations, at least some of this mass cognitive dissonance can be explained by the amount of professional propaganda online that is so easily disguised as journalism.

Thanks entirely to the democratizing power of the internet, the political propaganda game is bigger business than ever. The hippie/libertarian mantra that “information wants to be free” (which was not even the whole quote) became the business model for Web 2.0. Thus, the alleged monopoly on “information controlled by mainstream news organizations” was the cocktail shaker where the anti-copyright narrative collided with our political divisions, added a heaping dollop of conspiracy theory, and poured forth a river of yellow journalism that might even disgust some dormant scruple in Mr. Hearst himself.

Whatever was imperfect about mainstream journalism, it was professional and, in general, there were standards. As I said in an older post, there was a lot to be said for TV news before the expansion of cable. It was mandated by law and a money-loser for the networks. Consequently, there was no reason not to separate the news division from entertainment and let the journalists do their jobs. Millennials and Zoomers have no knowledge of this era, and I daresay a few Boomers have forgotten it. The fact is that less was way better than more. As I said in that same post, we used to argue about what to do next or how to do it but not about what has already happened. The truth was not nearly so subjective for the vast majority of citizens.

What cable TV initially did to news, the internet did to everything, and at logarithmic scale and velocity. Yet, even as we watch disinformation trample sanity in the streets, the tech-utopians in the blogosphere and many of the executives in Silicon Valley still cling to the narrative that more speech is the antidote to bad speech. This premise was naïve when Justice Scalia articulated it in context to the Citizens United opinion, and it was no wiser when the major internet companies asserted it (with the help of the EFF, Techdirt, PublicKnowledge, et al) in defense of their revenue streams.

Now, as we watch Twitter and Facebook try to stuff the arms and legs of their genies back in their bottles, this Times story reveals why those efforts are almost laughably futile. Local newspapers have been wiped out by the “natural price of zero,” and in their place, propaganda networks serve heaping portions of cheaply-made garbage to a public that not only can’t tell the difference, but increasingly doesn’t even want to know. Confirmation bias may have achieved its apotheosis this week when the President of the United States, in the middle of a pandemic, called one of the world’s top infectious disease experts an “idiot.” And yet, the tech-utopians and speech absolutists keep saying more—more speech is the antidote to bad speech. Really?

American Entrepreneurs Trampled by Politics in Antitrust Hearings

In a post published in August 2019, I discussed the fact that online IP enforcement is not just about the people we think of as traditional artists. Many small businesses—from garage start-ups to a few million in sales with employees to support—sell unique merchandise based on original designs protected by copyright and under trade names protected by trademark. And it seems that just about every week, I encounter an entrepreneur describing the volume and rate at which they find counterfeiters selling knock-off versions of their products on Amazon, eBay, Etsy, Alibaba, and some of the smaller retail platforms as well. The costly, often futile, game of whack-a-mole via DMCA takedown is not just for musicians and photographers; it’s being played by hundreds of American businesses.

As discussed in that previous post, the low cost of entry into the market offered by internet platforms comes at the often-hidden expense of making the enterprise vulnerable to counterfeiters, who are most often based in China. Copyrights and/or trademarks are infringed; prices are undercut by up to 80%; and the knock-offs are usually inferior quality. Then, to add insult to injury, consumers do not always know they’ve bought a counterfeit, and they blame the real manufacturer for the lousy product they received.

Congress has an obligation to help defend American entrepreneurs (and consumers for that matter) against the growing surge of online counterfeiters, and it has more than potential DMCA reform in its legislative arsenal to address the issue. For instance, part of the House Judiciary Committee’s ongoing antitrust inquiry entitled Online Platforms and Market Power includes investigation into how, or whether, platforms vet third-party sellers and remove those who violate Terms of Service or the intellectual property of legitimate sellers.

Sadly, the sixth hearing on July 29^th—a headliner because the CEOs of Apple, Google, Facebook, and Amazon were called to testify—was sidetracked by partisan rhetoric that had little to do with antitrust concerns. And, yes, it was one party doing all the sidetracking.

Setting the stage, Chairman Nadler’s opening statement compared the contemporary market power of the major online platforms to the railroad monopolies of the early twentieth century, “New digital intermediaries have the ability to control access to critical markets. If you are an independent merchant, developer, or content producer, you are increasingly reliant on these powerful intermediaries to access markets and consumers…. Across the economy, many businesses fear exclusion from these platforms.” That describes many an entrepreneur’s problem in a nutshell.

But right out of the gate, the ever-bloviating Rep. Jordan’s opening statement begins, “I’ll just cut to the chase: Big Tech’s out to get conservatives.” He then he proceeds to cite, for example, Google allegedly muting Breitbart, The Daily Caller, etc. Watching the discussion proceed from there, I wondered if Jordan, the smug Matt Gaetz, and several other Republicans (though not all) had wandered into the wrong hearing. After all, two of the four witnesses before the committee—Cook for Apple and Bezos for Amazon—do not even operate social media sites. What have they got to do with political bias?

Even if there were merit to the allegations of partisan bias in platform moderation, it is a complaint that presently begs absurd questions like whether Jordan et al are determined to embrace all supporters, no matter how dangerously crazy they might be, as “conservative”? If the same hearing were held today, would Facebook’s dropping QAnon pages count as anti-conservative in Jordan’s mind? Probably. And this warped definition of “conservative” is so profound that the GOP has currently shed lifelong, prominent conservatives, including many members of the national defense apparatus.

The irony of this fiasco could not be more typical of our contemporary politics. Far too many Republicans in that hearing showed up to grandstand on the wrong issue while shirking a core conservative principle to support American business—especially when those businesses are being harmed by foreign-based counterfeiters. American jobs remain in the crosshairs, while Jordan et al chose to complain about Facebook or Google demoting, removing, or flagging disinformation and conspiracy theories. Although one could loosely subject the issue of media bias to an antitrust analysis, the Republicans’ derailing that particular hearing to stand on that particular soapbox was an act of legislative malfeasance by the party that presumes to call itself pro-business.

Amazon is one of the most problematic retailers for small producers who sell online, and it is rare to see Jeff Bezos testifying before Congress. But rather than seize the moment, what the most vocal GOP Members managed to achieve, by wagging their fingers at Mark Zuckerberg on the wrong topic, was to let Bezos know that Amazon probably doesn’t have to change a damn thing. At least for now, there appears to be no bipartisan interest in legislative help for small businesses getting clobbered on the major retail platforms.

The cost of counterfeiting is no mere inconvenience that can be factored in, like anticipated shoplifting. Depending on the volume and scope of infringement, the costs may be anything from lower profits, to reducing the resources to hire or retain employees, to shuttering a whole business. Without a legislative response that envisions an intersection between antitrust and intellectual property enforcement, these entrepreneurs have little hope of addressing the growing problem.

I recently read a discussion about the prospect of filing a class-action suit against an online retailer, but that seems like a journey filled with tears and pain that will lead nowhere. Even if a class could be formed to, for instance, sue Amazon for the next decade or so, the Supreme Court in 2019 did not resolve the flaw in cy pres awards that diverts class-action damage awards away from the plaintiff class and, bizarrely enough, often finances the interests of the “losing” defendant. (See post here.)

Protecting American entrepreneurs from predatory, mostly foreign, operators, facilitated by American internet platforms, is absolutely the job of Congress. And Chairman Nadler is right to compare this moment to the railroad monopolies of more than a century ago. The mission to support independent businesses should be bipartisan and, as stated, should be a classic objective for anyone calling himself a Republican. Sadly, the counterfeiting problem does not appear to have the House Judiciary Committee’s undivided attention at this time.

DMCA Review Should Be About Copyright, No?

On September 30, the House Judiciary Committee held a hearing to discuss the Copyright Office report, published in May, commenting on the efficacy of Section 512 of the Digital Millennium Copyright Act (DMCA). Section 512 provides conditional immunity to online service providers for copyright infringements conducted by users of their services. (For a basic summary of conditions, see page here.)

Reiterating the position that the USCO report fails to consider the interests of the general public in its analysis, Meredith Filak Rose, senior policy counsel at Public Knowledge, urged the committee to proceed with cautious awareness that in the years since 1998, the public has become profoundly dependent upon the internet for a broad range of ordinary and essential needs.

With due respect to Rose personally, and with deference to the many devil’s details implicated by her testimony, I shall, once again, take issue with the over broad context in which digital rights groups like Public Knowledge try to frame discussion about the DMCA. For instance, at the start of her testimony Rose states that, “229 million Americans use the internet each day. That’s 229 million American adults using the internet to work, worship, connect with family and friends, receive healthcare, consume and discuss the news, and organize political action each and every day.”

Aside from the fact that the mosaic of internet uses needs to be more diverse in order to present a clear picture (let’s not forget the mindless scrolling, the clickbait, the misinformation, or the porn), the salient point is that most ordinary internet use does not require the appropriation of copyrighted works. So, framing a conversation about a section of the copyright law by alluding to the scope of everyday internet traffic is both distracting and entirely beside the point. If Congress were discussing CAFE standards, and an oil industry representative testified that 229 million American adults drive to work, church, and the grocery store every day, this would be a meaningless prelude to an argument against mandates for more fuel-efficient cars.

The Fight Over Account Termination

So, let’s stipulate the obvious: We all use the internet for myriad practical purposes all day long. And if anyone can show me the intersection between copyright infringement and a telemedicine appointment, I’ll take a look. But what Rose is really teeing up is advocacy for the status quo of DMCA §512(i) and the barely implemented requirement that ISPs eventually cancel the accounts of repeat copyright infringers. We cannot reconcile, Public Knowledge argues, a family’s fundamental need for broadband with the possibility that a teenager in the house might repeatedly infringe copyright, and the service provider will be required to terminate access for the entire household.

But the reality is not quite so binary or draconian, even if the statute has proven unclear to the point of futility. Congress’s decision in 1998 not to define “repeat infringer,” or to codify universally applicable guidance for termination policies, left the ISPs (access providers) and the edge providers (web platforms) free to maintain the practice of termination avoidance for repeat infringement by users. The concern of digital rights groups, therefore, is that somehow the service providers will have to comply with a 22-year-old condition they’ve largely evaded.

In the costly litigation COX v. BMG and that provider’s risible 14-strike policy, COX’s users received multiple warnings before not actually losing their accounts. And although copyright owners would certainly like to see more meaningful implementations of 512(i), they neither propose nor endorse a scenario in which a family wakes to find its broadband inexplicably terminated for repeat infringements of which the account holder was somehow unaware. This is not the way account termination happens now or has ever been envisioned to happen.

At the same time, although this is not the post for offering specific legislative recommendations, one policy that would alleviate some of the tension in 512(i) is site blocking, which has proven effective in foreign jurisdictions. If groups like Public Knowledge, EFF, et al were not so adamantly opposed to blocking enterprise-scale, foreign-based piracy sites, a compromise might be more easily found that would mitigate many of the concerns these groups identify with regard to account termination scenarios.

“Red Flag” Knowledge at the Heart of the Matter

This focus on the internet writ large reinforces the major internet companies’ efforts to conflate their commercial interest with the public interest. What many call the “free flow of information,” allegedly for our benefit, often has nothing to do with information. What this erudite sounding expression really means is that because the social sites are engineered to exploit vulnerabilities in human psychology in order to keep users addicted and active, the platform owners like to avoid legal obstacles like copyright, privacy, or anti-trust matters that may create friction between user and interface.

Consequently, today’s major platforms—all founded years after the DMCA was first hammered out between big telco and big media—read certain ambiguities in the statutes to mean that they are free to profit from chronic infringement by users, while doing the bare minimum to comply with the notice-and-takedown provision. Specifically, as discussed in my post about the first Senate-led review of DMCA, rightsholders hope that Congress will more clearly define §512(c), which states that providers will not be liable for infringement if …

(1) its operators do not have actual knowledge of infringement; (2) its operators are not aware of facts or circumstances from which infringing activity is apparent; and (3) upon obtaining knowledge of infringement, expeditiously removes the relevant material.

Commonly referred to as the “red flag” knowledge section of the statute, a major point of contention for rightsholders, both in and out of court, is the extent to which service providers allege that they lack any knowledge of infringement sufficient to meet the liability standard. Even in a relatively recent case where plaintiffs presented emails that revealed site operators made affirmative decisions to leave material online they believed to be infringing, courts have misread §512(c) to mean that these operators would need legal and industry expertise to meet the “red flag” bar. This is inconsistent with the reasonable, ordinary person context in which this part of the statute was written, hence the hope by rightsholders that Congress will consider clarifying the language.

Because §512(c) is at the heart of the good-faith/shared responsibility intent of the DMCA, I have to say that I did a little spit-take when Rep. Lofgren raised the “red flag” subject and asked her first question of Meredith Rose, who replied that she is “not terribly familiar” with that part of the statute. This is not intended as a personal gotcha, but it is a rather serious matter when an organization purporting to represent the interests of “everyone who uses the internet” is unprepared to discuss one of the most problematic sections of the DMCA. In fact, the much broader question of what platform operators can know about the material on their servers, and what they should do about some of it, is the vexing challenge of the moment with regard to the effect social media are having on society. The knowledge question goes way beyond copyright.

The Dogeared Speech Argument

Historically, the internet industry’s shell game on the subject of what can and cannot be known is consistent with the kind of site management that has now proven to be the major catalyst in the dissolution of democracies worldwide. The same companies whose algorithms are allegedly so sophisticated that they can predict our choices before we make them, paradoxically claim an inability to parse data that ordinary, non-prescient humans can interpret. The manner in which the industry has exploited vagueness in the knowledge standard in the DMCA runs parallel to its history of shrugging “neutrality” when it comes to the moderation of harmful material like organized hate speech, conspiracy groups, and dangerous misinformation—a “neautrality” no longer acceptable to much of the public.

I cannot fathom how any reasonable person looks across the landscape at the ragged state of American democracy and, with a straight face, continues to exalt Web 2.0’s grand experiment in free speech as though it were not an appalling failure. The evidence is now clear, including testimony from a steady stream of defectors from the social media companies, that Facebook, Google, Twitter, Reddit, et al purposely designed their platforms to be digital crack. And it is no surprise that divisive politics and conspiracy garbage are potent ingredients in the drug cocktail that captures and retains the attention of millions.

Referring back to the 229 million users, it isn’t connecting to family or online banking or worshipping that is systematically destroying the American Republic; it’s the speech-a-palooza that organizations like Public Knowledge earnestly champion that has sown a motley patchwork of customized realities to the extent that we are now clinging to what remains of political common ground with our fingernails. Social media is a toxin coursing through the veins of the body politic with such deleterious effect that the most sober historians and political operatives are sincerely wondering if the Republic can survive another decade. It ain’t copyright enforcement that sends QAnon wackos to Congress.

Yet, to the tech-utopian, any effort to allow copyright owners to better protect their works online will unavoidably, and unacceptably, silence someone’s speech somewhere. In fairness, this is true. It is inevitable at times and must be remedied on a case-by-cases basis. Further, I see no reason why intentional abuse of DMCA to silence speech (e.g. criticism) cannot be more strongly proscribed through statutory reform if need be.

But citing “speech” as a generalized framework for debate is too broad and has little to show for itself as a social benefit to date. Aside from the fact that speech is silenced every minute online through many modes (e.g. bullying or platform moderation), there is no way that anyone can measure how much speech is currently silenced, or how much more or less would be silenced by improving the DMCA for rights holders. It’s counting grains of sand in the desert.

Ironically enough, Twitter announced over the weekend that it would delete tweets by anyone hoping the president dies from COVID-19. And while there are several reasons why this is sound policy for Twitter, it happens to be one of the few occasions when a platform would censor a prime example of protected speech. And, as one commenter rightly pointed out, Twitter has left intact volumes of missives hoping for the sexual assaults and deaths of women who speak out on various issues, including actual threats that transgress any claim to the speech right. So, we should dial down the speech rhetoric until it describes what the world actually looks like, not that Barlowian “home of mind” that never existed.

Into this long and repetitive debate, I think a fair market summary of the DMCA’s status quo is as follows: The major copyright owners enforce their rights through the use of some technological measures and the notice-and-takedown system, albeit with a ceaseless, dynamic, and expensive process that has little effect addressing the volume and rate of infringement. The small rightsholders barely enforce their rights at all through notice-and-takedown and generally give up trying. The user-generated platforms continue to profit substantially from third-party infringements against both small and large creators. And the 229-million of us Americans using the web comprise billions of transactions every day that have nothing to do with copyright.

Author: David Newhoff