Category: Digital Culture

In the News: Sarah Jeong, “Fake News”, & Fair-Use

It’s another one of those weeks when there’s stuff happening faster than I can write about any one thing. So, here’s a summary of a few items of note …

Anti-Copyright Ideologue Named Tech Writer at NYT

Twitter lit up yesterday with accusations that The New York Times has named a “racist” to its editorial board, citing anti-white tweets made by technology writer Sarah Jeong, who is Asian. These complaints read like a lot of whinging nonsense, taking Jeong’s comments out of the context in which she was apparently responding (albeit ill-advisedly) to racist or sexist remarks directed at her. (God, I love Twitter for the way it brings out our better angels.)

What is notable about Jeong as the Times’s new “lead writer on technology” is that she is an anti-copyright ideologue, who has written various articles and posts in a familiar, ill-informed style akin to Cory Doctorow. In February of 2016, I wrote a fairly extensive response to several errors she made in a Motherboard editorial predicting that copyright law might enable the Chinese government to disappear the famous “Tank Man” photograph from the internet.  It’s still online of course.

So, while I truly doubt Sarah Jeong is a racist and think the people labeling her as one should get a grip, I am equally skeptical that future NYT editorials on the intersection of technology and copyright will be well-balanced—or even accurate.

New Paper on Why People Share “Fake News”

Related to the above, I notice that the National Review site has two top stories featuring Sarah Jeong, the second of which is headlined “Yes, Anti-White Racism Exists.” This dumb and bogus narrative is what academic Alice E. Marwick would identify as a “deep story” in her new paper titled Why Do People Share Fake News? A Sociotechnical Model of Media Effects. Unable to fully answer that question yet, Marwick provides a complex nuanced framework for further discussion, identifying socio-cultural factors that cannot be overpowered by solutions like fact-checking.

Although the volume of what Marwick calls problematic information is greater among the contemporary “right” at present, the contemporary “left” is by no means immune to the underlying reasons why people are apt to believe and spread “fake news,” hoaxes, and other forms of disinformation. I’m working on a longer post summarizing Marwick’s paper, but for those interested, her full paper is here.

TVEyes Files for Cert at Supreme Court

Filing a petition for Supreme Court hearing in its ongoing litigation with FOX News, TVEyes hopes to get another shot at presenting arguments that failed in the Second Circuit in February of this year. Eriq Gardner for The Hollywood Reporter writes, “TVEyes’ attorney tells the Supreme Court that the 2nd Circuit decision conflicts with precedent and ‘creates a circuit split over a question of exceptional importance, including the proper balance under copyright law between the interests of a copyright holder and the First Amendment right to criticize and comment upon the copyright holder.’”

There is no brief to review yet, but that statement alone, taken from a request for an extension to file, does not seem to bode well for the Supreme Court granting cert for a couple of reasons. The first, as detailed in this post, is that the same appellate court that ruled in favor of Google Books also drew sharp distinctions between that case and TVEyes (ergo, maybe not so much of a split). The second reason is that it is consistent with precedent to hold that the First Amendment rights of users of a service do not automatically make the service itself non-infringing. This is a chronic argument made by tech-industry players, and as described in this post, courts generally take a dim view of corporations that attempt to “stand in the shoes” of their customers.

I’ll be surprised if SCOTUS agrees to review this case, but if it does grant cert, expect a storm of amicus briefs to follow.

EFF Honors Itself With Its Own Award

In a July 30 announcement, the Electronic Frontier Foundation named Stephanie Lenz, creator of the “Dancing Baby” video, among the recipients of this year’s Pioneer Award. “Stephanie Lenz’s activism over a home video posted online helped strengthen fair use law and brought nationwide attention to copyright controversies stemming from new, easy-to-use digital movie-making and sharing technologies.” Many of us will never experience the injustice of having a video removed and then restored to YouTube, but in that silent interval, when people could not watch Lenz’s baby boy dancing in the kitchen, her world—indeed the whole world—was just a little bit darker.

I wrote a post in October of 2016 summarizing the narrative of this decade-long EFFishing expedition; but suffice to say this award-earning “activism” did not even begin as a fair use case; “Fair-Use Champion” Stephanie Lenz stated her own ambivalence about the video remaining on YouTube; the fair use/DMCA argument itself is razor thin; and I would bet anything that, beyond us copyright watchers, “nationwide attention” sounds something like this: Oh yeah, didn’t Prince sue some mom? And that didn’t even happen.

So, in the same way that Stephen Carlisle described Stephanie Lenz as the “nominal plaintiff” in Lenz v. UMG, it seems reasonable to call her the nominal recipient of this award, which should rightly go to the EFF’s own Corynne McSherry for Outstanding Achievement in PR Through Boondoggle Litigation.

Implications of YouTube’s Copyright Match System

Last month, the European Union voted against key copyright enforcement provisions as part of its Digital Single Market initiative. Specifically, the proposal known as Article 13 called for the 28 member states to work with multiple stakeholders to develop and implement filtering technology that would, in theory, prevent unlicensed, copyrighted works from being uploaded onto user-content-supported platforms.

Article 13 was labeled by its opponents as a call for “censorship machines,” and as usual, the refrain was shouted from the rooftops that adopting any such filtering would lead to the end of free speech online and destroy “all that is good and pure” about the internet. To be sure, the tone and methodology of the campaign against these provisions reeked of Silicon Valley money and tactics, but whether you believe that or not, one talking point among critics stands out, which inspired this post: that the EU’s call for filtering would harm new creators.

Granted, “creator” in the rhetoric of groups like EFF includes literally anyone who posts anything online; but if we limit our data to that paragon of new creators—the successful YouTuber—YouTube itself made an interesting announcement almost concurrent with the defeat of Article 13. The platform launched its Copyright Match tool to protect YouTubers against unauthorized re-posting (freebooting) by other YouTubers.

Traditional rights holders have earned this moment of schadenfreude after being lectured to for years to get on the future bus and quit whining about their copyrights. They should follow the example of “new creators” working in “new models” that “bypass gatekeepers” and obviate the need for copyrights. Of course, it was inevitable that as YouTubers became entrepreneurs, they would feel entitled to the revenue from their labor (as they should) and that YouTube would have a vested interest in protecting the copyrights of its profitable video-makers—at least from other video-makers.

Using technical measures one might call “filters” (or dare we say “censorship machines”?), the new Copyright Match system works by identifying the first upload of a new video and associating that file with the presumptive owner of the work. Then, if and when matching videos are uploaded to YouTube, the original creator is notified and given the option to do nothing, to ask YouTube to remove the Match, or to get in touch with the uploader of the Match.

Hypocrisy Much?

If this sounds to the experienced observer like an intramural version of a take down/stay down provision achieved through technical measures, that’s because it is. And experienced observers probably remember that all previous proposals for take down/stay down, whether statutory or technological, have been labeled by industry-funded “activists” as internet-killing initiatives. In fact, during the May 2016 hearings about the DMCA, one of the dumb-but-effective talking points was that any mandate for such technical measures would “entrench” the market dominance of YouTube. (Yes, laughing through tears is the right response here.)

Traditional rights holders who have spent hours of their lives trying to identify and stop unlicensed uses of their works on market-dominating YouTube will quickly recognize the duplicity in launching Copyright Match. “Why should only their ‘chosen’ get access?” asks Grammy-winning composer Maria Schneider, one of many artists who will attest to the opaque and labyrinthine Content ID system rights holders theoretically use to track and control use of their works on YouTube.

What is not generally understood is that even getting access to Content ID varies wildly depending on a rights holder’s relative presence on YouTube and his/her interest in monetizing unauthorized uses vs. taking down unauthorized uses. Guess which one YouTube favors. Again, Schneider explains …

“YouTube always says that independents like me, to whom they’ve denied ContentID, can get access to the same tool via a third party. But what they don’t admit publicly is that this is only possible if we’re willing to monetize at least some of our work. So, independents like me, who want no part of monetization and simply want to block illegal uses of our works are just out of luck. And I might add that this technology we’re wanting to access has actually been around for twenty years—longer than YouTube has existed!”

I spoke to an independent artist, who prefers to remain anonymous for fear of retaliation by YouTube’s Content ID group.  He does have Content ID and acknowledges that he’s probably a “thorn” in the side of YouTube’s Copyright Department team because he actively employs the system only to stop unlicensed uses of his compositions and sound recordings. And lest anyone think he’s responding to “new creators” making possible fair uses of his music, his most important Content ID-related takedowns have been aimed at global brands and Fortune 500 companies using his music for marketing purposes without a license.

It’s worth noting that the fact that this artist chooses to remain anonymous due to concern that YouTube would delete his Content ID account out of spite speaks volumes against every claim of tech-utopian bullshit Silicon Valley and its network of EFFing dissemblers have been slinging for years. As David Lowery explained in 2016, YouTube is a monopsony, a market with a single buyer, which means they get to make, break, and change the rules as often as they like, and the “sellers” can just eat it.

In this regard, it will be interesting to see if Content Match leads to disputes YouTuber-to-YouTuber and how the company will handle these, if it does. For instance, it is not clear at this point that YouTubers whose uploads are wrongly identified as “Matches” will have any kind of counter-notice remedy available to them.

Although the company’s video explaining the new system urges YouTubers requesting Match takedowns to “consider fair use,” it will be truly fascinating to see whether YouTube gives a damn about fair use among its own microcosm of creators. For sure, general users of the platforms have never been effectively dissuaded from uploading a wide range of files that could never qualify as fair uses.

None of this should be taken as a dig against YouTubers. To the contrary, I think many of them are brilliant artists and deserve to protect their interests and rights as much as any other creator. But this apparent initiative to protect their interests points to another aspect of YouTube’s ever-changing relationship to copyright enforcement and its relevance to the fight over Article 13.

Don’t Let the Internet Become YouTube?

Not that long ago, YouTube was consistently cited as the apotheosis of the utopian belief that the web will empower creators without gatekeepers—and without copyrights. But where this Copyright Match announcement becomes intertwined with the campaign against Article 13 is that some pundits against the proposal lately cite YouTube as a cautionary tale—asserting that the platform’s often-inconsistent application of copyright protection policies and technical measures is exemplary of what should not be done internet-wide pursuant to Article 13. The claim appears to be that because YouTube’s Content ID system has allegedly fostered rampant false strikes, resulting in unfair channel deletions, this generalized stifling is what the “entire internet would look like” if the EU moved forward with the kind of filtering proposed.

While there is certainly anecdotal evidence—some of it compelling—of Content ID error and abuse leading to improper strikes on YouTube, I have yet to see any evidence to support the claim that this problem is both rampant and increasing across the platform. As is often the case, activist groups or observers who have no skin in the game tend to exaggerate anecdotal evidence into statistical assumptions. Or as our anonymous artist puts it, “In 100% of the anti-Content ID statements I’ve ever heard over the years, 100% of the complainers had 0% vested interest in the system: they’re either Google-funded anti-copyright groups or individuals on some kind of personal crusade.”

In this creator’s direct experience with false identifications, he notes that “With about 100,000 Content ID claims in my dashboard since late 2012, I can say that YouTube has delivered me a mistaken ID about 10 times. The anti-copyright crowd will take that as evidence that the system needs to be dismantled or destroyed. I just don’t get it. The perfect shouldn’t be the enemy of the good.” And that’s for creators, who can avail themselves of Content ID, which does not include the creators identified by Maria Schneider who do not have access to any remedy via Content ID.

Competing Narratives

So, in context to the proposal that Article 13 filtering would “stifle new creators,” we have at least three narratives that compete and crisscross in ways that can be hard to track, if you’re not directly engaged with these systems. First, because Copyright Match is a response to YouTuber complaints about freebooting, it reveals that “new creators” don’t like copyright infringement when it happens to them (ergo copyright is not obsolete). Second, Copyright Match implies that filtering technology of this nature can be implemented without destroying a whole platform or stifling new creators. And third, Copyright Match is at least indicative of technology that could help non-YouTuber creators enforce their rights, but it will not be made available to them because it isn’t in YouTube’s interest to do so.

One thing the introduction of Copyright Match illustrates for sure is that creators are creators—whether traditional or new, they feel a sense of ownership in the products of their labor. And from this premise comes the foundation of copyright and systems for protection that will begin to make “new models” look a little more like “old models.” It’s what happens every time a business discovers it is codependent with talented people.

CA Supreme Court in Hassell Reveals Sec. 230 is a Catch-22

First, a refresher. The broad immunity provision known as Section 230 of the Communications Decency Act was adopted in 1996 as an incentive to internet service providers to take affirmative steps to remove material. Congress wanted to encourage sites to take down certain types of offensive or obscene content (e.g. child porn), and the ISPs asserted, quite reasonably, that taking such action should not render them “publishers,” which would then leave their companies vulnerable to endless litigation stemming from unlawful content posted by users.

Since then, however, Section 230 immunity has been interpreted in court cases, and portrayed in the blogosphere, as a blanket protection allowing sites to take no action to mitigate harm by removing unlawful or harmful content. For the past 20 years, Section 230 has provided the statutory basis for ISP claims of universal neutrality—the “just a platform” argument—no matter what occurs on their sites. This premise was soundly rejected by both parties in Congress during hearings conducted in response to evidence that Russian agents had purchased American political ads on major platforms.

Hassell v. Bird

The facts of this case are quite simple. Ava Bird posted three reviews of Dawn Hassell’s law firm on Yelp, and these were held by a California trial court to be defamatory. No party disputes the unlawfulness of the reviews. Hassell successfully sued Bird and purposely did not name Yelp as a defendant in her litigation. The court ordered Bird to remove the reviews and also issued an order to Yelp to remove the content even though it was a non-party to the litigation.

Yelp, along with a host of amici, argued that the court order violated both Section 230 and its right to due process. A California Court of Appeals upheld the injunction, but this week, the State Supreme Court reversed, with the majority holding that the injunction indeed violates Section 230 and, thus, it was unnecessary to rule on the due process claim. Nevertheless, a concurring opinion by Justice Kruger does address the due process issue and holds that Yelp is correct in asserting that it had a right to its “day in court.”

So, as a practical matter, if you were in Hassell’s position, here’s the Catch-22 emphasized in this case: Section 230 forecloses the option of suing a web platform for harm stemming from unlawful conduct by a user. BUT, in this case, because Hassell did not name Yelp as a party, it then claimed that it was denied due process and, therefore, should not have to comply with a court order to remove Bird’s reviews. If that sounds like the platform gets to do whatever it wants, that’s because it is.

The CA Supreme Court described Hassell’s decision not to name Yelp a “litigation strategy” employed to “accomplish indirectly what Congress has clearly forbidden them to achieve directly.” If Congress chooses to address some of the the unintended consequences of Section 230, this seems like a statement worth underlining. Because Hassell’s decision not to sue Yelp—to hold them in no way liable for the harm done by Bird—appears to this reasonable observer as entirely consistent with the intent of 230 to shield platforms from costly and chronic litigation. As Justice Liu states in his dissent …

“No one has burdened Yelp with defending against liability for potentially defamatory posts. Here, the trial court ordered Yelp to remove postings that have been already adjudicated to be defamatory. Hassell sued Bird, not Yelp, and the litigation did not require Yelp to incur expenses to defend its editorial judgments or any of its business practices.”

That is the heart and soul of Section 230 at its origin, and it is consistent with recent declarations by both parties in Congress that the immunity in the CDA was never designed to obviate all platform responsibility. To the contrary, it was designed to encourage that responsibility. So, to the extent the majority opinion in this case rests on a plausible, or even reasonable, reading of the statute, this case may serve as guidance to Congress for considering revision of Section 230.

Is the language of 230 problematic?

Specifically, the majority opinion holds that Section 230(e)(3) bars this injunction against Yelp as a non-party due to the wording, “No cause of action my be brought and liability may be imposed under any State or local law that is inconsistent with this section.” Thus, if it is this court’s understanding that the order for Yelp to remove unlawful content is a prohibited “cause of action,” but that a plaintiff is simultaneously barred by the same statute from actually suing Yelp, then it may be time for Congress to reconcile exactly this discrepancy.

I agree completely that Yelp should not be sued, or otherwise held liable, for any harm that may have been done to Hassell through the unlawful conduct of Bird. But in the realities of the digital market, where serious harm is both easily and cheaply effected, there is no justice in holding that a platform’s immunity from costly liability extends to an immunity from taking responsible, mitigating action which costs nothing.  In this regard, Justice Kruger’s concurring opinion also recognizes the difficult realities of the statute, stating…

“Section 230 has brought to an end to a number of lawsuits seeking remedies for a wide range of civil wrongs accomplished through Internet postings—including, but not limited to, defamation, housing discrimination, negligence, securities fraud, cyberstalking, and material support of terrorism.”

And in fairness, she further states…

“Whether to maintain the status quo is a question only Congress can decide. But at least when it comes to addressing new questions about the scope of section 230 immunity, we should proceed cautiously, lest we inadvertently forbid and even broader swath of legal action than Congress could reasonably have intended.”

Justice Cuéllar concurred with the opinion on the basis that a proper finding of fact was not made regarding Yelp’s conduct that would render it properly a subject to an injunction as a non-party. But at the same time, he had this to say about Section 230 immunity …

“To the extend the Communications Decency Act merits its name, it is because it was not meant to be—and it is not—a reckless declaration of the independence of cyberspace. Nothing in section 230 allows Yelp to ignore a properly issued court order meant to stop the spread of defamatory or otherwise harmful information on the Internet.”

Ouch. That allusion to Barlow is a pretty solid kick right in the EFFin gut. And that’s from a justice ruling in Yelp’s favor—for now. Suffice to say, there is plenty in this decision that stops short of the internet activist view that Section 230 immunity is both absolute and sacrosanct. Even the majority opinion is tempered by editorial comments acknowledging that platform irresponsibility causes tangible social harm.

As a final comment, I’ll pose the following food for thought:

Once a court has vitiated the role of the original author of some unlawful content (i.e. Bird has been found guilty and ordered under pain of contempt to remove her reviews), how is it that the platform which continues to publish the unlawful content is not then held to be the “author” of that content? If I plagiarize a work, I am guilty as the “author” of the plagiarism; and if I further use plagiarized material to defame someone, the original author is not liable for the defamation; I am.

Moreover, if Bird requests that Yelp remove her reviews and they do not, is Yelp not violating her First Amendment rights by means of coerced speech; and are they also not potentially liable for forcing her into a state of contempt of court by means of that coerced speech?