Category: Digital Culture

Don’t Mourn for the Memes Just Yet

Over the weekend, a photograph taken by Jesco Denzel went mega-viral. Ultra-viral? Really really viral? Whatever. It killed. You must have seen it. It depicts leaders of the G7 nations, headed by German Chancellor Angela Merkel, in a composition that seems to suggest the adults of the world are schooling a petulant-looking Donald Trump. But I don’t mention the photograph to comment on the President or about his administration’s posture regarding international trade. I mention it because by now, the image has been “memed” dozens or hundreds of times; and although any number of these derivative images may be amusing, I have to question the extent to which they are particularly important.

Consider what I assume to be a favorite version among Trump critics: the one that shows the President seated in a high chair with a bowl of spaghetti overturned on his head. It’s funny. But what it actually says is also redundant to the way I think many people read the original Denzel photograph in the first place. What has the meme really added? A fleeting moment of comic relief soon to be forgotten amid the millions more to come? Or is it truly a substantive work of political satire that will have lasting, salient effect?

In context to this post, the meme version is not necessarily a fair use as a parody, if it were ever to be the subject of a copyright infringement claim. Without doing a whole fair use analysis, the fact that the spaghetti version merely emphasizes what the original says (at least to Trump’s critics) weighs against a finding of fair use in which the meme-maker parodied the work rather than merely used Denzel’s photograph to lampoon the President. But within that analysis lies a hint about the social and cultural value of memes in general.

Because the meme in this example adds almost nothing while potentially diluting the value of the original—both for the author and the viewer—we should not completely ignore what we lose in the digital age, when an important image is no longer allowed to simply be what it is for even a few hours before every prankster with Photoshop has to draw metaphorical mustaches on it. Though funny, the spaghetti variation of Denzel’s photograph is glib in contrast to the provocative quality of the original, which my friend, the photographer Doug Menuez, predicts may prove to be one of the truly important photographs in history.*

If it seems that I exaggerate the worthlessness of memes it is only to propose some counterbalance to the more general attitude that the social media meme is a medium of great value. And the reason I stress a more balanced view is that several stories have surfaced recently declaring that if the current EU plan to harmonize copyright law for the digital age passes as written, memes will be banned from the internet. So, aside from the fact that, of course, memes will not be banned, I’m not convinced society would lose anything if memes were either fewer in number or less-infringing in nature.

Specifically, this “save the meme” campaign is one of several lines of attack on the proposals in Article 13 of the European Commission’s strategy to create a Digital Single Market. This section outlines a mandate for platforms that host user-generated content to implement technological filters that identify and help remove infringing material from their platforms. Pirate Party Member of the European Parliament Julia Reda has labeled these technical measures “censorship machines” (of course she has), and this rhetoric has been echoed by the usual suspects EFF, Techdirt, et al as the latest major threat to the “internet as we know it.”

On that subject, I’d like to remind readers that the “Russian hacking” of American democracy via Facebook ads was a campaign based largely on memes. If you watched the hearings on Capitol Hill, memes are what Members of Congress presented to Zuckerberg as evidence of Russian-sponsored messages designed to foment and aggravate divisiveness among American citizens. So, not only would I caution against too ardently “saving the meme,” it seems increasingly clear that the more generalized agenda to save “the internet as we know it” cannot be taken too literally.

In a subsequent post, I’ll try to dig into Article 13 in more detail, but the general complaint being marketed as inevitable meme extinction assumes that any technical measure employed to filter the uploading of unlicensed content will not be able to detect fair uses. Consequently speech—potentially speech of great parodic significance—will be removed from the internet.

It’s a ballsy complaint coming from the same crowd that insists rightsholders must “consider fair use” before sending a DMCA takedown because they seem to think the user of a work should not have to “consider fair use” before uploading. I say this because these same critics assume, or at least promote the idea, that most meme uses of protected images are fair uses. In all likelihood, however, this is not the case. Most memes I see would not stand up to fair use analysis, so what the critics are really saying is that memes are just too important to lose, even if they’re infringing.

So, I would first reiterate that a very large volume of memes are less culturally valuable to society than they are financially valuable to the platforms. Second, these critics overstate the assumption that everyone who alters a photo to make a meme is engaged in a fair use—be it funny, poignant, cruel, or just Russian agents having fun. Third, and perhaps most importantly, if the so-called “censorship machines” were as hyperactive as the critics claim, these measures would invariably harm the interests of rights holders, advertisers, and any other party who benefits from licensed use of works on social platforms.

This suggests that perhaps nobody envisions “censorship machines.” In fact, if experience tells us anything in this regard, it’s that the anti-copyright, pro-Google “activists” start saying “censorship” and “break the internet” at the mere suggestion that any proposal should change the status quo. Hence the specifics are either still in development or are being purposely obfuscated by the critics.

As I say, I’ll do my best to get into the specifics related to Article 13, but in the meantime, I’ll summarize what I said to Washington Post tech reporter Caitlin Dewey when she predicted the death of memes in 2012: infringing protected works is not actually necessary to produce memes; authors of works produce all the time without infringing; it’s called being creative.

*I do not claim to know how Mr. Denzel feels about any of the memes of his photograph.

Recap Post — Too Much Going On!

Here’s an overview of stories to watch, including some I’ll be posting about soon:

Senator Wyden Pitching ACCESS to Recordings Act

In a post on Medium this week, Senator Ron Wyden (D-OR) presented his proposed ACCESS bill as an alternative to the CLASSICS Act that is, as he puts it, “a better way to protect recording artists.” Notably, the Senator is not able to name any recording artists who seem to agree with him, but he does name endorsements by libraries and archives, who never recorded any hit songs before or after 1972. “Artists deserve to be compensated for their work, but at the same time, we shouldn’t lock up ideas for decades after the creator has passed away,” writes Wyden.

Neil Turkewitz very quickly seized on that theme and countered that the Senator is emphasizing a false narrative that copyright inherently makes works unavailable. Indeed, even in the arcane theoretical areas in which this criticism might warrant discussion, it has no relevance to the sound recordings at issue in this story because they are widely available. In fact they’re played all the time, which is why the artists feel they should be compensated. As I’ve stated, ACCESS cannot be a good-faith proposal at this stage in the legislative process because it’s too fraught with problems to be adequately debated between now and the mid-terms. Thus, whatever Wyden is up to, it isn’t proposing an “alternative” bill.

SCOTUS Rules on Masterpiece Cakeshop Case

It’s not a copyright case, but it is a story I commented on last December when the Supreme Court heard oral arguments because it involved a claim of artistic expression. This week, the Court ruled 7-2 that the Colorado Civil Rights Commission did not reflect reasoning that was neutral to baker Jack Phillips’s claim of religious exercise in his refusal to make a cake for a same-sex wedding celebration. Apropos my first post on this subject, the holding by the Supreme Court did not actually turn on the issue of creative expression in a wedding cake, but the various opinions do allude to the subject. A post in the works to follow.

Vienna Court Says YouTube Liable for Third-Party Copyright Infringement

Yesterday, it has was reported that the Vienna Commercial Court held that YouTube can be held liable for hosting copyright infringing content uploaded by its users. If this ruling stands, it would have huge implications for both the internet industry and copyright owners. To the “digital-rights” groups, the implication would of course be the death of the internet itself, whereas my colleagues and I tend to think it would be more like the death of the internet “as we know it.” And maybe that’s okay since I remain unconvinced that the internet we know is the internet we should try to preserve. Meanwhile, I will try to find the actual court opinion from the Austrian court.

The State of the Techlash?

On the subject of preserving the internet we know, the techlash is still lashing away. Granted, there’s so much staggeringly crazy news breaking all day long, it’s hard to notice, but Facebook’s woes continue unabated, with user data still springing leaks and the FTC pressing forward with its investigation into possible violation of 2011 consent decrees. And this week, we read reports that Congress is now investigating the likelihood that the social media giant may have shared user information with a Chinese company that U.S. intelligence agencies consider a national security threat. And that’s just Facebook.  See also Will Buckley on Silicon Valley’s Collateral Damage.

New York Proposes New Right of Privacy & Publicity Law

In March, a New York Court of Appeals ruled that a digital avatar of a real person can be considered a portrait. Take-Two Interactive prevailed in the case in which Lindsay Lohan sued for use of her likeness in one of their games, but judgment was based on the fact that the likeness apparently did not resemble Lohan. Still, the precedent decision that an avatar can be considered a “portrait” is significant, and this week the New York State Assembly introduced a bill designed to protect the publicity and privacy interests of individuals with “digital replicas.” This proposal primarily affects recognizable figures like models, actors, and professional athletes, but it has some interesting implications I’ll try to explore in a future post.

Should Bot Disclosure Be Required by Law?

Recently, California legislators introduced the B.O.T. Act of 2018, which, as the Electronic Frontier Foundation summarizes, “would make it unlawful for any person to use a social bot to communicate or interact with natural persons online without disclosing that the bot is not a natural person.” The EFF describes the proposed bill as an understandable but over-broad response to Russia’s use of bots to influence the 2016 election as well as the use of spambots to commit online fraud. While it is tempting to accuse the EFF of defending bot rights, they haven’t quite taken that position, though they do come close.

As would be expected, the EFF alleges that the California bill can “chill the use of bots for protected speech activities,” and although the post written by Jamie Williams alludes to some interesting areas to explore vis-a-vis bots and speech, one important flaw in her summary of the bill is that it leaves off an important condition that says, “with the intention of misleading.” There may be circumstances in which intentionally misleading consumers, constituents, fans, voters, etc. can be considered protected speech, but it seems reasonable to assume that most actors who intentionally mislead are doing something harmful, and probably illegal.

It is characteristic of the EFF to trivialize a legitimate problem by imagining hypothetical negative consequences of the legislation proposed to address that problem. Even the couple of Twitter-feed examples Williams cites* as speech that may be chilled do not appear to be bot uses that would necessarily run afoul of the California law.

The first of theses is @soft_focuses, which is essentially a bot-generated version of fridge-magnet poetry. The second, rather interesting, example is @censusAmericans, which interprets anodyne census data and turns lines of information into “real” people. So, a typical tweet says, “I live with my father. He works. I speak German at home. I have never been married.”

If indeed both of these examples are protected speech, neither appears to “intentionally mislead” anyone. To the contrary, both the bot-generated poetry and the bot-generated census characters seem to be a) obviously the “speech” of bots; and/or b) harmless to the rare viewer who might somehow mistake either as the expression of a natural person. Correspondingly, even if either feed were required to more explicitly “label” its use of bots, the speech in question would not be in anyway diminished.

Do Bots Have Free Speech Rights?

I certainly hope we never come to the conclusion that they do. But a distinction I would make between the two examples presented by EFF is that the poetry Twitter account, although owned by a human (or humans), does not appear to communicate much protectable speech at the direction of that human. It simply produces random combinations of words that sound kinda like poetry.

Assuming that is correct, each tweet is a an example of purely bot-generated content, which should not be protected because machines do not have natural rights. One could argue that the human’s decision to present the whole twitter feed constitutes an artistic statement in itself, though not a very original one and not one that would likely differ in character from another feed doing exactly the same thing. Hence, the amount of protected speech would seem to be very thin and, therefore, not likely to be infringed by the California proposal. (This dovetails with the discussion of AI’s owning copyrights.)

By contrast, although each tweet in the census example may be partly the result of data-interpretation by a bot, the output is not random words. In fact, human authors have clearly set certain rules like the imposition of the pronoun “I” to generate first person statements as well as the basic subject-verb-object structure of English sentences. The cumulative result is a mosaic of fictional characters that represents real Americans in a Twitter-only narrative, not unlike the way in which characters in a movie or play represent real people. Thus, the owner of @censusAmericans is the natural person exercising a free speech right by presenting this collage to the public, which constitutes creative and politically-substantive speech.

Bot Speech is the Least of Our Worries

Beyond sci-fi wish-fulfillment, I’m not sure why it is necessary or beneficial, in many cases, to want bots to behave more like humans in the first place. Granted, I’m not bringing a smart device into my home like an Alexa or a Duplex because I’ve read my Huxley, Orwell, and Bradbury; but if I did own such a device, I’d want a giant wall of separation between me and the machine, lest I find myself locked out of the house one day and the thing telling me why it can’t “afford to jeopardize the mission.” (It’s bad enough when the toast pops up too late.)

Meanwhile, as the EFF opposes what amounts to a consumer-protection bill on highly-speculative free speech grounds, I have to say that, at present, I’m more concerned with humans behaving like bots than the other way around. Let’s face it, every time one of us clicks “Like” or shares a post or article based solely on the headline, we’re pretty much doing bot-work. The right keywords appear in front of our little sensors, and CLICK!—we pass it on to our circles of bots, who pass it on to their circles of bots.

And that doesn’t even account for the volume of ingrained misconception across the political spectrum on a wide range of issues boiled down to a few buzzwords. The folks at EFF are, in fact, expert at exploiting this phenomenon, at triggering Pavlovian responses to keyword conclusions on otherwise complex topics. Remember how the IP provisions in the TPP were going to chill speech on the internet? Is that claim any less absurd than the current administration’s rationale for pulling out of the most important trade deal in recent history? Stare at that Venn diagram for a while and try not to lose your mind.

My point is that we are already treading water in sea of externally and internally inflicted deceptions and obfuscations written by human beings. So, to the extent California’s bot “warning label” might diminish the amplification of all that noise, I think it’s a can’t hurt/might help proposition. At the same time, if, under very specific circumstances, this law could be invoked to chill someone’s speech, that’s for the court to address on a case-by-case basis.

The relatively narrow circumstances in which this law might be misapplied and also implicate speech does not make it “constitutionally flawed,” as the EFF claims. One can misapply a wide variety of laws we have right now to chill someone’s speech, which is why we appeal to courts to address such conflicts. Meanwhile, it seems reasonable to conclude that the intent to deceive, whether by bot or any other means, is rarely benign.

* The post cites three examples, but the third links to a dead URL.

Image by graphicwithart