Category: Digital Culture

Might As Well Be Bots

So, I don’t engage very often via Twitter, but once in a while, I respond to something that catches my attention and then usually regret spending time responding to the responses.  Last week, I noticed that Pirate Party MEP Julia Reda—the face, voice, and tweetdeck of anti-Article 13 activism in the EU—posted an odd tweet, and I replied … 

Because, of course, even if Tumblr’s efforts to use AI to identify pornography are a) accurately reported; and b) laughably ineffective, it is misleading for Reda to suggest that this folly is particularly instructive to the purpose or eventual function of Article 13.  What she means to imply, of course, is that any comparable technology, which may be used to identify content that allegedly infringes copyright on a large platform like YouTube, will result in the same kind of errors that are reportedly happening on Tumblr.  

I consider this tweet to be scare-mongering for many reasons, but here are three simple ones:  1) existing technologies currently in use for identifying copyrighted material is already better than whatever is being described in the Tumblr/porn example; 2) it is needlessly defeatist to say that these technologies can never be improved and/or supported by human oversight to alleviate error; and 3) if any copyright ID system is too aggressive and error-prone, the rights holders advocating Article 13 aren’t going to like it either.  All of which leads me to conclude that calming down is more rational than, once again, declaring that the internet needs to be “saved.”

So, Reda and I had a brief exchange in the service of nothing (i.e. the reason I don’t like the forum), and went our merry ways.  But I did notice that at least one of the “users” who liked and retweeted one of Reda’s responses to me looked an awful lot like a bot.  The account was a handle and an avatar, it had just a few followers, and its tweetdeck was almost exclusively about the evils of Article 13.  So, while scrolling that thread and wondering whether the account might be a bot programmed to RT anti-Article 13 stuff, I saw this tweet posted by a different account with zero followers…

And this prompted a new thought.  What difference does it make if a tweet like the above is posted by a bot or a real person?  Because if social media platforms like Twitter train real people to respond with pavlovian certainty to any given issue, they might as well be bots.  Either this individual simply doesn’t know that the platforms he says will be “destroyed” are the biggest of big corporations; or he is so well trained to respond to certain signals, that he’ll just remain blissfully unaware of his own cognitive dissonance.  Or he’s a bot.  

Either way, same result.  Some other bot, or mindless person, or ten-year-old child repeats the unfounded assertion that, for instance, the legislative language is “vague,” and boom—it’s now a fact.  Why would anyone take some anonymous tweet at face value which claims that a body of legislative language—in any area of law—is vague?  Because they want to believe it, and the desire to perpetuate that narrative is sustained by knowing diddly squat about the legislative language itself.

When the hyperventilating saga that was the anti-SOPA campaign peaked in early 2012, the internet giants still enjoyed a general benefit of the doubt that they had built platforms that were truly making global democracy work better.  (And that they had built these platforms out of the goodness of their hearts!)  So, all those anti-SOPA headlines warning people not to let anyone “break the internet” were understandably hard to counter with any kind of cool reason.

Today, though, it is curious—if not a little bit frightening—that even after the fallout from stories like Cambridge Analytica, the “Save Your Internet” battle cry is still effective in the current opposition to Article 13.  It is, after all, a reprise of the same digital dirge that was so effective seven years ago; but surely, this general call to arms cannot jibe with what we’ve learned over the past two years about major platforms and a number of paradigms not worth saving.

In 2011, I wondered how many non-constituents were marshaled to stop American legislation (SOPA/PIPA) in its tracks.  How many foreign citizens? How many children?  How many bots?  Because, as David Lowery has detailed in a multi-part post, the methods employed by Big Tech to sway public policy may be one of a handful of legitimate threats to democracies around the world.  And on this topic as to who—or what—is being rallied to action, TorrentFreak published a new post that misses, or purposely obfuscates, a very important distinction.  Andy calls hypocrisy on the IFPI for criticizing Julia Reda’s shout-out to children in this tweet:  

Andy compares Reda’s appeal to children to the fact that major copyright interests have often launched initiatives to educate kids about copyright and piracy.  “…it’s pretty ironic that IFPI has called out Reda for informing kids about copyright law to further the aims of ‘big tech companies’. As we all know, the music and movie industries have been happily doing exactly the same to further their own aims for at least ten years and probably more,” he writes.   

But the differences between Reda’s targeting kids on social media and the kind of initiatives Andy refers to are substantial and significant.  At a very basic level, educating children about how copyright works may be offensive to the pirates out there, but copyright has been part of the legal fabric of Europe and the U.S. for a couple of centuries, so it’s not exactly propagandist to explain its function in age-appropriate ways to groups of schoolchildren.  And given the fact that plagiarism can end someone’s college or university career, the foundations of copyright are in no way anathema to general education.  Outreach to schools on the subject of piracy and copyright tend to include the following lessons or discussions:

  1. education about the skilled people who make the movies, music, etc. people enjoy.
  2. a message that taking things without paying for them is both illegal and wrong.
  3. a message that respecting creators falls under the principle of the golden rule.

While these themes may be antithetical to pirate rationalizations for mass infringement, they’re not exactly outliers to the fundamentals that most people try to teach their kids. (Substitute creator for farmer, and the discussion will be very similar.)  In contrast to the implications of Reda’s tweet, major rights holders don’t generally engage children via Twitter to take direct action aimed at promoting or stopping specific legislation.

Though nobody can doubt that when organizations like movie studios fund education programs in response to piracy, the effort is industry-serving, but those types of broad initiatives do not compare to an elected official addressing teens and tweens on social medial and telling them (untruthfully) that YouTube won’t work anymore because of a policy those kids are not going to understand. And that fairly well sums up what I think about all of this—that the so-called defenders of “the internet,” who appeal to democratic principles in that effort, consistently demonstrate exactly why “the internet” isn’t worth defending.  

Photo source by davincidig

Another Inscrutable Attack on Copyright by CCIA 

In a blog post last week for Project DiSCO (of the CCIA), Jonathan Band uses less-than-subtle sleight of hand to conflate the potential business implications of new photographic technology with photographers’ interests in copyright enforcement.  Citing a Washington Post article by Geoffrey Fowler, which proposes that ever-improving, AI-enhanced photographic tools built into smart phones are “democratizing” the opportunity for anyone to make “beautiful” photographs, Band notes that these technological advancements threaten the livelihoods of at least some segment of professional photographers.  

“Now, someone with a decent eye and a Pixel 3 can take photographs that are good enough for many events. The default aesthetics of Night Sight [a new technology] will satisfy many, if not most, potential customers,” Band writes.  And this may be true up to a point.  Off-the-shelf, push-button technical “perfection” in the hands of everyone can threaten the market value of many types of professional photographers.  

Of course that premise opens up a multi-faceted discussion about the myriad skills necessary to be a great portraitist, photojournalist, fine-art photographer, and so on.  And while that particular conversation may be very engaging, it has almost nothing to do with any particular photographer’s interest in her copyrights, and it has even less to do with the target of Band’s criticism—the copyright small-claim proposal called the CASE Act. 

“In response to this changing technological landscape, many of the organizations representing photographers have focused their energies on reforming copyright,” Band writes.  But this is a disingenuous segue because CASE is not remotely a response to changes in photographic capture technology.  The right or ability to protect an image is agnostic with regard to how the image is made.  Period.  Moreover, the premise of the CASE Act (i.e. enforcing a copyright claim for less than the cost of federal litigation) actually predates digital technology, although widespread infringement of works online does emphasize the urgent need for a small-claim remedy.

As described in this post about the House Judiciary hearings on CASE in September, one of the major complaints among independent creators is that commercial entities use their works for online marketing etc. without license.  If CASE passes, we can probably expect to see rights holders most often avail themselves of the small claim tribunal for these types of claims; and it is frankly impossible to fathom why anybody who cares about basic fairness in the market would have a problem with that.  Least of all the corporate behemoths represented by CCIA.  

Moreover, while it is true that advocacy of CASE has emphasized the plight of photographers—because theirs are the works most often infringed on the web—we should remind the CCIA and its readers that the bill proposes a small-claim option for all copyrightable works.  So, at best, Band’s focus on the latest advancements in cellphone photography have nothing to do with, say, musicians or graphic artists whose works are infringed in cases ideally suited to a small claim. 

Band’s post is, of course, a variation on a tired theme; and in that regard, I feel confident about telling the folks at CCIA (and the Internet Association also opposed to CASE) that authors of all stripes are sick to death of the following words of wisdom …

“The energy of associations representing photographers would be better directed toward helping photographers develop business models and skills that would allow them to thrive in the digital environment, rather than lobbying Congress to make changes to copyright law of questionable utility.”

Perhaps the energy of associations representing THE BIGGEST TECH CORPORATIONS ON EARTH would be better directed at playing Beer Pong than smugly telling professional creators time and again how little they they understand their own crafts and business interests.  Maybe CCIA can adapt to that new model.

 Photo source by meatbull

Counterfeits, Copyrights, and Digital Dysfunction

Now that the holiday shopping season is officially underway, it seems like a good time to talk about counterfeit products; and it may surprise some readers to know that consumers have almost no meaningful protection against the tens of thousands of counterfeiters operating online.  At best, a counterfeit product will merely be disappointing; at worst, it will set the house on fire or maim someone; but a recent copyright lawsuit filed against the service provider CloudFlare demonstrates just how insufficient the mechanisms for addressing this problem really are.  

Though the subject of this litigation is wedding dresses and other formalwear, keep in mind that it can just as easily be a product that plugs in, a medical device, or a child’s toy with toxic properties. 

Mon Cheri Bridals and Maggie Sottero Designs are suing CloudFlare for contributory copyright infringement pursuant to the platform’s failure to comply with the terms of the DMCA.  As designer/manufacturers of bridal and formalwear, the plaintiffs see their works copied all the time by China-based counterfeiters, who then sell the knockoffs via websites featuring the plaintiffs’ own marketing photographs.  

The photographs are copyrighted works, and so the plaintiffs have filed hundreds of DMCA takedown notices requesting removal of their images from the various sites engaged in marketing counterfeits of their products.  Then, because the target sites have–not surprisingly–refused to remove the photographs, plaintiffs allege that this makes them “repeat infringers,” which then implicates CloudFlare’s obligation under DMCA to terminate their accounts.  Because CloudFlare has not taken action to terminate these accounts, plaintiffs allege the platform is liable for contributory infringement.

CloudFlare is already a deeply problematic service provider—a prime example of everything wrong with the kind of internet idealism that has for too long tolerated (and even celebrated) companies that hold themselves above the law while protecting the identities and maintaining the operations of criminal enterprises.  As a favorite provider of anonymous hosting for major pirate sites like ThePirateBay, CloudFlare is probably only still in business because, as Devlin Hartline notes in this 2016 post, “the DMCA is such a mess.”  “Courts have set the bar so high that CloudFlare wouldn’t likely be found to have red flag knowledge of the massive amounts of infringement it certainly knows its service enables for globally-infamous criminal infringers…,” Hartline writes.

It’s bad enough for creators that the DMCA is woefully inadequate for mitigating online infringement where copyrighted works are the central subject of a complaint.  But in this case for Mon Cheri and Sottereo, the copyright infringement is, of course, ancillary to the larger crime of counterfeiting; and it is truly unfortunate that the DMCA is the plaintiffs’ best—let alone only—means of targeting these foreign-based websites used to hijack their enterprises and defraud consumers.

While the plaintiffs are certainly correct that their marketing photographs are protected by copyright and the counterfeiters’ infringing uses are properly the subject of DMCA, both legitimate product-makers and consumers deserve a more robust mechanism for protection from this kind of online predation.  

If your kid wound up playing with a toy that scalded her (or worse), you’d want the counterfeit website selling that product to be shut down.  End of discussion.  And the American-based hosting provider shrugging at you while taking the counterfeiters’ money would provoke a justifiable pitchfork-and-torch moment for parents everywhere.  The fact that the counterfeiters also happened to be infringing the photographic marketing materials of the real manufacturers would reasonably be viewed as secondary to the fact that consumers ended up with dangerous products in their homes.  And DMCA is no way to address that problem.

The DMCA is in serious need of overhaul, if it is ever going to meaningfully address online copyright infringement.  But a matter of even greater urgency is perhaps new legislation that can provide legitimate businesses with a reliable and expeditious means of shutting down websites that intentionally traffic in counterfeit goods.

On this topic, readers may not remember that the SOPA/PIPA bills included provisions designed to keep counterfeit products out of the military supply chain (so soldiers wouldn’t end up wearing fake kevlar or something);  and that proposed legislation still remains every fool’s battle cry for defending the alleged sovereignty of “the internet.”  Of course, “the internet” is not even a weak sovereign.  If you end up with a foreign-made, counterfeit product that rips you off or kills someone, the service provider that helped you buy that product is free to KNOWINGLY continue hosting the fraudulent website and respond with a smug grin while he cashes the counterfeiter’s check.   

As any regular reader knows, I have never understood believing the premise that the major internet companies are squarely on the side of the angels—that Facebook is an unqualified good for democracy, that YouTube is an unqualified good for artists, or that Amazon is an unqualified good for all commerce, etc.  Yet, despite mounting evidence that such generalizations are far from accurate, we are presently watching yet another variation of the anti-SOPA campaign play out in Europe over the proposed Article 13 legislation to mitigate copyright infringement on major platforms like YouTube.  As Neil Turkewitz writes in a recent post on the topic …

“They have enjoyed the freedom of wolves without regard to the safety of sheep, and are naturally opposed to the restraints imposed by fences. But our interdependence makes fences essential for the functioning of democratic societies. By eliminating fear, we create freedom and enable the pursuit of happiness.”

The time to correct this level of dysfunction is long past due.  Both of the current liability shields protecting online service providers—as established in Section 230 of the CDA and in Section 512 of the DMCA—were based on an assumption of good faith and good-samaritan behavior.  But CloudFlare is just one extreme example that demonstrates why this expectation of good faith is, and always was, utter folly.  Limiting the liability of these companies has made them arrogant, predatory, and ominously powerful with the amount of wealth and information they wield.  If there is profit to be found within legal loopholes, it is the rare exceptions whose personal ethics will forego such an opportunity.  It is time to start writing internet policy based on the rule rather than the exception.

See also Consumer Guide to Counterfeit and Copyright-Infrigement Free Holiday Shopping from Copyright Alliance.