Category: Law & Policy

Internet Association asks Trump to keep sticking it to creators.

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On Monday, the Internet Association, which represents most of the major online platforms, sent a letter to the president-elect asking that his administration show support for the the status quo of the CDA and the DMCA in order to sustain “innovation and free expression” online.  But for the date and the name Trump, the letter is a boilerplate industry position arguing that the OSPs’ limited-liability for actions like copyright infringement is the reason we consumers enjoy all the prosperity being fostered by the internet.  Of course, I am moved to ask, even in a reluctant spirit of bipartisanship, what prosperity?

Setting aside all the vitriol and hate-speak for a moment (and it is very hard to set aside), the primary rationale voters cited in the exit polls for their votes was a “Desire for change.” So many Americans are apparently feeling anxious about their economic prospects that they are literally grasping at straws at this point.  In this regard, both parties are guilty of dissembling on the promise to “bring jobs back” when speaking to working-class voters—projecting a false image of middle-class, manufacturing jobs returning while simply ignoring the reality of automation. Even if a new factory is built in Pennsylvania, it’s mostly going to be run by robots.

Meanwhile, the internet industry is asking the presumptive change agent that is the president-elect to support the entrenchment of 20-year-old statutes that have failed to produce anything like middle-class, economic prosperity to replace what those statutes have actually cost us.  As the letter to Trump states …

“Intermediary liability laws and policies protect free speech and creativity on the internet. This, in turn, generates substantial value for our economy and society through increased scale, greater diversity, and lowered barriers to entry for creators and entrepreneurs.” 

That sounds very pretty, but where’s the beef?  We can count the money that no longer goes into the pockets of authors, music makers, filmmakers, photographers, journalists, etc. And we can count the supporting jobs and businesses those industries no longer sustain; but where is the middle-class prosperity that’s replacing those losses—all that “substantial value for our economy” the internet industry keeps talking about?  Because if people have been enjoying that prosperity, then why all the economic anxiety?  What about the millions of voters who were on the fence about Trump but are simply so worried about dwindling economic opportunity that they figured some change—any change—was worth a shot?

The internet industry is still selling roulette economics dressed up as entrepreneurism and using that pitch to justify stealing economic value from hard-working creators. I know the internet industry largely campaigned against Trump because they personally view themselves as progressives, but from a policy perspective with regard to issues like DMCA safe harbors, I’m surprised the Internet Association wouldn’t have expected a casino owner to be an ideal ally to their way of viewing the economy.  After all, the YouTube version of “prosperity” is exactly the same as a casino. A handful of big winners makes new creators forget that most who try will lose while the house always wins. They dangle stories like PewDiePie just like golden dollar signs in a casino to convince creators there is a new way to “make it” in a market where they no longer need to care about owning the rights to their work.

Maybe it’s time for the leaders in Silicon Valley to do some soul-searching and decide whether they truly care to benefit people the way they keep claiming they do; or if they just want to protect their bottom line.  There are members of the Internet Association who are more pragmatic about finding common ground with authors and creators, some who are more willing to sit down and discuss practical and voluntary solutions to solve challenges like mass infringement and other exploitations of creative work.

Other members are less inclined to this approach, given to protectionist responses and divisive PR aimed at creators seeking voluntary and legislative measures to mitigate mass infringement.  But these folks should make up their minds.  You can’t be for the people and be anti-individual rights at the same time; and the right to protect one’s ownership in expressive works is an individual right. In fact, it happens to be the first individual right mentioned in the Constitution.  Time for Silicon Valley to put down its playbook and think more humanely about the future.

EFF Manufacturing Scandal in the Service of Google

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On October 25, four days after the unprecedented removal of the Register of Copyrights from her office, the Electronic Frontier Foundation released a post on its Deeplinks Blog asserting rather stridently that the Copyright Office never would have reviewed the FCC “set-top-box” proposal if not for the urging of the MPAA.  I think we can now say that there is officially no line EFF will not cross, no lie it will not tell, in the service of Google’s interests over the public interest, which the organization claims to serve.  The thesis of the blog post boils down to the following syllogism:

1. We have argued that the FCC “set-top-box” proposal does not implicate copyright law.

2.  Because we are obviously correct in this view, the Copyright Office should have agreed with us.

3. Therefore, the only explanation for the Copyright Office disagreeing with us is that they must have been pressured by the MPAA.

And so, the EFF went looking for proof of the motion picture industry’s clandestine influence on the Copyright Office via a FOIA request, and they released supporting documents with their blog post that they know most people won’t bother to read.  If anyone does read the super secret emails betwixt FCC, MPAA, the Copyright Office, and the USPTO, they will discover (hold your breath) requests for meetings to discuss issues of concern with regard to the FCC proposal!  Ah ha! Meetings!

I know this may be a shocker, but there is nothing illegal or improper about any stakeholder, operating above board, requesting meetings to discuss concerns they may have with a proposal by any federal agency.  And emails to arrange meetings—I mean literally communications as banal as, “Hey, does next Tuesday work for you?”—are not subject to any rules regarding disclosure because they’re not substantive.  Nowhere in the “exposed” communications presented by the EFF is there any evidence of motion picture representatives drawing conclusions for Register Pallante that she would not have come to on her own with regard to the FCC “set-top-box” proposal.  The FCC proposal, like any other federal agency proposal, allows for comments from multiple stakeholders that become part of the public record and which members of any other agency may read and consider.  It is also neither illegal nor improper for a stakeholder to send an email to a member of an agency to say, “This is our statement for your consideration.”

The broader point is that one does not need to be an expert at the level of Maria Pallante or MPAA’s attorneys to consider that any proposal which fundamentally alters a licensing paradigm between producers and distributors—as the FCC proposal clearly does—is going to have at least some copyright implications.  Had the EFF made a more nuanced argument, that would be one thing, but to assert that the Copyright Office simply never would have entertained a copyright angle without pressure from the MPAA is just an outright lie.  What the EFF doesn’t like is that their position on the FCC proposal is wrong, and so they’ve tried to manufacture a scandal on the heels of Pallante’s unprecedented and bizarrely orchestrated removal from office.  Why?  Presumably, because they know that at least a segment of the public will find the Hollywood-intrigue narrative easier to follow and far more dramatic than the more complex, but less interesting, truth.

On the other hand …

If a hint of scandal is what the reader wants, consider the October 25th notice from the Campaign for Accountability, which asked FCC Counsel to investigate emails between the FCC Chairman Tom Wheeler and Google VP Vint Cerf.  What’s the problem? Unlike innocuous emails requesting meetings, the FCC’s rules require disclosure of ex parte communications that amount to substantive comments on policy.  In its letter to counsel, the CFA cites an April 8th email from Mr. Cerf to Chairman Wheeler expressing his substantive views with regard to the commission’s April 1 notice on protecting consumer privacy within the ambit of the “set-top-box” proposal. In case you’re not following the bouncing ball, Google likes to harvest user data and doesn’t have great track record on the privacy thing.

See what happened there is that a Google executive expressed a relevant, policy-focused comment via email pertaining to the FCC proposal, and the FCC was supposed to disclose the comment and didn’t.  At least that’s CFA’s view.  Whether or not there are more communications of this nature remains to be seen, but against the backdrop of Google’s now well-documented influence throughout the current administration, it’s hard to imagine that anyone is still believing the narrative that “Hollywood” is pulling the strings with regard to the FCC proposal.

Perhaps more significantly is that while the EFF pitches a non-scandal in an effort to erase the copyright implications of the FCC proposal, they seem remarkably unconcerned about those privacy implications, which one would think should to take precedence for an organization claiming to defend consumers in the digital market.  Why?  Assume for the moment that the producers are wrong about the proposal undermining the investment model that creates television shows. That would still leave the privacy concerns with regard to what kind of data Google would be allowed to harvest from the magic TV box it wants to put in your home.  The EFF’s overplayed hand on the copyright issues combined with their silence on the privacy issues related to the FCC proposal suggest that this organization largely cares about one thing:  whatever Google wants.

With Register Pallante Out, What Now?

Photo by apparen.
Photo by apparen.

Creators, copyright advocates, and many policymakers were taken aback by last Friday’s announcement that the new Librarian of Congress Dr. Carla Hayden removed Maria Pallante from the position of Register of Copyrights. The decision was officially described as a reassignment for Pallante to the role of senior advisor for digital strategy, which Pallante has declined.  Associate register Karyn Temple Claggett stepped in as acting Register and the LOC is conducting what it calls a “nationwide search” for a new candidate.

Pallante’s ouster comes just barely six weeks after Hayden’s official start at the LOC, and rights holders and artists are justifiably anxious about the decision itself and the suddenness with which the change took effect.  Meanwhile, anti-copyright voices, who view Dr. Hayden as a fellow ideologue—many librarians are generally critical of copyright—were quick to begin writing the narrative in the twitterverse that their new champion is “cleaning house” by removing a Register who has been the target of organized criticism almost since the day she took office in 2011.

Organizations like the EFF and Public Knowledge, along with several anti-copyright bloggers have at various times accused Pallante of favoring the interests of large, corporate rights holders. This accusation is contrary to Pallante’s actual record and background, but that’s of little consequence in the grand scheme because the ongoing, negative PR campaign was really aimed at copyright law itself. Any Register who believes in the importance of copyright would have been targeted in the same way as Pallante; she just happened to become the face of copyright during a period when the critics amped up their industry-funded rhetoric to a new level.

One of the more concerning aspects of this unprecedented move is that those who are well-versed in Pallante’s background and policy recommendations know that she emphasized the interests of individual authors and the intended social benefits of copyright over the major rights holders whom she is accused of indulging. I cited one example of this in my post about the lawsuit filed by EFF arguing the unconstitutionality of DMCA Section 1201. That the EFF chose to litigate an 18-year-old law at the same time that Pallante herself was advocating policy changes which pragmatically addressed some of EFF’s exact concerns is at odds with the portrait of her as an industry-biased “maximalist.”  That the EFF also happened to file its 1201 suit at about the right moment for it to become one of Dr. Hayden’s first headaches is a curiosity as well.

I think there is little doubt that the organizations and individuals crowing on social media about the defenestration of Pallante see it as a step toward dramatically limiting, or even abolishing, copyright law.  Claims like Public Knowledge’s Friday afternoon tweet that this is, “A great opportunity to bring balance back to the Office’s policy work” are pure spin. Pallante was balanced, often siding with interests other than rights holders; but balance is not the honest goal of organizations like Public Knowledge, which was directly responsible for last month’s hatchet job against the CO when it issued a “report” composed of exaggerations and lies of omission.

Hayden’s Thinking and the Future of the Copyright Office

Whether Pallante’s dismissal represents an ideological split with Hayden on copyright or internal politics or any number of factors that may never be publicly known, the move may indicate that Dr. Hayden envisions taking a more hands-on role in copyright policy than past Librarians have done. If so, this whiplash firing of the Register ought to raise at least a few congressional eyebrows in context to the now three-year-long discussion on the prospect of separating the Copyright Office from the LOC.  Pallante’s unexpected and unprecedented removal could serve to emphasize for lawmakers the rationale for that separation. In essence, although the new Librarian has acted within the scope of her authority, this decision and its timing may reflect a significant lack of deference for the historic basis of that authority.

As explained in a previous post, the Librarian of Congress is not, and has never truly been, the nation’s copyright expert. The formation of the Copyright Office within the Library in 1897 came about as a largely functional relationship between the registration of works and the need to grow the collection.  It wasn’t until the turn of the 20th century, particularly with the passage of the 1909 Act, that copyright law started to become as complexly woven into the American economy as it is today.  As copyright law evolved along with the expansion of technology, the Register increasingly served as a national advisor on policy—well beyond oversight of the original registration function.

While the copyright registration and deposit process remains a major source of material for the Library’s collection; with the advent of digitization, there arises a natural tension between a Librarian’s ambition to make the collection accessible online and the Register’s responsibility to see that rights holders who deposit copies with the LOC remain protected. For instance, if the LOC were to make full-length, high-quality works available online for free, this would clearly harm the licensing opportunities for those works; and this, in turn, would dissuade authors from registration and deposit. In this context, it is noteworthy that Pallante was “offered” the “digital strategy” job.  As one knowledgeable colleague, speaking on background, suggested, “This is a firing in disguise, offering Pallante the one job she would be inclined to tell the Librarian she cannot do.”

So, although there remains a practical relationship between the registration process and the Library collection, there is no hard-and-fast reason, especially from a policy perspective, why the Register must continue to operate under the purview of the Library. In fairness, Dr. Hayden may not be the anti-copyright ideologue that folks at EFF, PK, et al assume her to be, but the timing and tone of Pallante’s removal has unquestionably been viewed as a slap in the face to creators.  If indeed that slap is a signal that Hayden considers herself the new “copyright sheriff in town,” that could easily trigger both rights holders and members of the Judiciary Committee to decide that indeed it is time for these two very different authorities to operate independent of one another.  After all, balance is what we get when opposing but equal forces are required to work together.