Category: Law & Policy

A Guide to Critiquing Copyright in the Digital Age

Anybody can write an editorial criticizing copyright on the Internet. It’s easy and fun! By following this basic guideline to creating an effective rebuttal to any proposal for protecting or enforcing copyrights online, you’ll discover that very little understanding of the issues is required. Once you get the hang of it, you’ll see that you can apply these techniques to nearly all of your editorials by simply exchanging a few names, dates, or legal proposals.  Here’s how it’s done …

1. Remind readers how cool it was when we killed SOPA.

No matter what central point you want to communicate, you will engender confidence in readers by writing a SOPA lead, which should include a recap of how much fun we had bringing about that bill’s staggering defeat. 🙂 It does not matter if your main criticism or recommendation has anything to do per se with the fundamental mechanisms or intent of the original SOPA/PIPA bills.  Since most readers never really understood SOPA/PIPA four years ago, invoking SOPA is the ideal prelude to any criticism you want to make related to enforcing copyrights on the Internet.

In your SOPA lead, be sure to use buzzwords, preferably draconian or overreach. These are highly effective words because readers remain generally unaware that the legal remedies in SOPA already apply in domestically-focused cases of online infringement.  Please refer to the glossary of suggested buzzwords found in the Use of Utter Bullshit described in Appendix B of this guide. DO NOT UNDERESTIMATE THE VALUE OF UTTER BULLSHIT.

To help you with your editorial writing, you will find many examples of the SOPA lead throughout the Web, but here’s a well-constructed version by Mike Montgomery, executive director of CALinnovates, that appeared in The Hill last week:

“Recently, the idea of felony streaming once again reared its ugly head. Making streaming copyright infringement a felony is a terrible idea and an example of backward thinking that creates further rifts between tech and entertainment at a time when these two sectors are not only reliant upon one another, but melding. As some may recall, this kind of backward thinking famously and furiously failed before when it was a key part of the ill-conceived effort known as SOPA-PIPA (Stop Internet Piracy Act / Protect IP Act). So strong was the backlash against these would-be laws and their breathtaking overreach, to this day, the term “SOPA-PIPA” sends chills down the spines of lawmakers.” 

Note how Montgomery uses the SOPA lead in this case at the end of the paragraph to implicitly—rather than explicitly—support his assertion that a current proposal to make infringement via streaming a felony is “a terrible idea” and that it naturally drives a wedge between Hollywood and Silicon Valley.  By effectively using the SOPA lead in this way, the editorial author can avoid discussing technical details, which might  inadvertently contextualize what is actually being proposed, in this case, in the Commercial Felony Streaming Act. For instance, it would be unhelpful if Montgomery attempted to explain why the unions DGA & IATSE—which represent middle-class labor in all areas of motion pictures and television—are endorsing felony streaming. It’s better not to get bogged down in those types of details. If the proposal you want to criticize comes from any part of the motion picture industry, just write Hollywood; if it comes from musicians, just write the recording industry. Keep it simple, broad, and vague in order to properly follow Guideline #2.

2. Remind readers that all remedies to infringement are basically SOPA.

By avoiding technical details, Montgomery demonstrates that there is no need explain why he believes delivering infringed material via streaming should carry a different penalty than delivering infringed material by other means. Instead, by effective employment of the SOPA lead, he can assume the reader will give him the benefit of the doubt that it is both terrible and divisive—just like SOPA! (See how easy that is?) And as a bonus, some readers may even believe that receiving infringed material via streaming would also be a felony, which is exactly the kind of confusion that helps our constituents kill proposals without needing to understand what they are. 😉

Also note that Montgomery effectively connects his SOPA lead to the body of his editorial by a fairly thin thread when he writes that the felony provision was a “key part” of the proposed bills. This is an excellent use of utter bullshit. After all these years, readers are not going to remember that this felony provision was at some point attached to one of the bills but was never central to the remedies proposed by either bill. By avoiding just the right details, you can remind readers that all remedies to copyright infringement are basically SOPA; and then you can proceed to vamp on one of several recommended themes (See Appendix A), which are largely variations on Guideline #3.

3. Remind readers that the copyright industries hate the future.

In this case, we see Montgomery has chosen to segue to the popular theme Hollywood is out of touch, as follows:

“Toughening up the rules around copyright infringement through felony streaming legislation, though, is not the answer to Hollywood’s ills. Legitimate streaming services that, but for their best efforts, violate copyright law already are subject to $150,000 in statutory damages per infringed work. That penalty is more than big enough to make incumbents and start-ups do their best to ensure that no content streaming on their sites violates copyright.” 

Notice that by not trying to explain why he thinks elevating infringement via streaming to a felony is terrible and divisive, Montgomery is free to cite the proposal as yet another example of Hollywood’s reluctance to innovate into the streaming market. If properly executed, this technique should distract readers from considering empirical data—for instance, the rapid expansion of legal streaming platforms for filmed entertainment. This kind of observable evidence could indicate that Hollywood may actually be innovating in the streaming market, which would potentially refute the underlying theme as Montgomery has proposed. But an effective editorial using the techniques we recommend should help readers ignore this kind of contradictory evidence.

We would also not want readers to wonder, in this case, “Who are these legitimate streaming services inadvertently infringing despite their best efforts, to whom Montgomery refers?” Instead, we want readers to imagine that there are scores of innovators who would be afraid to enter a market where infringement via streaming is a felony. AVOID EXAMPLES OR SPECIFICS. It is always better to refer to innovators and innovation generically and hypothetically. Remember that above we said vamp, meaning to extemporize. This is critical. One of the most effective ways to enhance your editorial is to follow Guideline #4.

4. Make some crazy shit up.

This is not the same thing as utter bullshit, which is more akin to what we like to call a reality inversion technique (See Appendix I). Making some crazy shit up is more creative; it’s your opportunity to let your imagination make the editorial your own (not that we encourage ownership of writing per se). For instance, here’s Montgomery making up some pretty crazy shit:

“But the key idea to focus on is “best efforts.” A streaming platform is incentivized to make its best-faith effort on an ongoing basis to ensure that all copyright holders are getting paid but very often the records of who holds those copyrights are unclear. A song might have had 12 writers on it but only ten are listed. Should an executive at a music streaming company be penalized with a giant fine, or jail time, because he didn’t know about those two extra writers?”

That last part about the 12 songwriters, and the executive acting in good faith but going to jail anyway is an excellent example of making crazy shit up and a superb use of the buzzword jail. If you can scare the bejesus (See Appendix K) out of your readers, they may not ask themselves probing questions like these:

What the hell is he talking about?

Does the law really work that way?

Have I ever heard of a case anything like what he’s describing?

These are the types of questions you want to avoid provoking among readers, which is why that SOPA lead is so vital. Think of it as a shield that protects you against readers noticing that you might be making some crazy shit up. Don’t be afraid to get creative! And that brings us to Guideline #5.

5. Write a misleading headline.

You do not have to deliver on the promise of your headline in the body of your editorial. Remember, millions of readers will only ever glance at the headline, so pick one that reinforces a general bias that’s good for our industry but makes us sound reasonable—and that fits the length of a tweet!  As you see, Montgomery has chosen the headline Time for Hollywood and Silicon Valley to stop fighting over copyright. Thousands of social media followers are apt to “Like” and share that headline without knowing what the article actually says. (This is exactly the kind of grassroots activism of the future that the copyright industry likes to hate on.)

Notice how Montgomery’s headline might make a reader think the author has written some kind of thoughtful compromise on copyright between the named parties. DO NOT WRITE SUCH AN EDITORIAL. Instead, as we have seen, the central argument of Montgomery’s article boils down to the following:  That Hollywood is only focused on legal remedies to infringement because it has not accepted the future potential of streaming. That’s not exactly what the headline implies the article will be about, but when we combine the misleading headline with the central argument made in the article itself, we get Hollywood should stop fighting over copyright.  Pretty cool, right?

Ordinarily, if Montgomery’s core argument were presented as a thesis without a SOPA lead, and without employing the techniques described above, some readers might immediately doubt his premise in light of the dramatic growth in legal platforms for streaming filmed entertainment, news, and sports.  And this doubt could, in turn, prompt readers to consider whether or not huge investment in legal streaming and legal remedies for mass copyright infringement might have to coexist in a sustainable, digital marketplace. But by effectively using the techniques in this guide, you can distract the reader from these and many other complex questions.

Good luck. And thank you for being a member of The Future! 🙂

THIS JUST IN:  An expert rebuttal to Montgomery written by Matthew Barblan and Devlin Hartline of The Center for the Protection of Intellectual Property.

Red Flags, False Flags, & The Virtues of Ignorance

A couple of weeks ago, I wrote this post about an amicus brief filed on behalf of several Internet companies seeking a new ruling in a 2004 case with the apparent purpose of changing the legal standard applied to the “Dancing Baby” case. This is in regard to the burden on a rights holder to “consider fair use” before issuing a DMCA takedown request.  I won’t rehash that post, but a colleague of mine suggested that the amicus brief itself contained a rationale so heavily salted with hypocrisy that it deserves its own attention.  And he’s right.  The amici making the case for an “objective” rather than a “subjective” standard in considering fair use sum up their concerns (as cite in the other post) thus:

“… the more misinformed or unreasonable the copyright owner, the broader the immunity he would have from liability under Section 512(f). This reading of 512(f) would effectively encourage copyright owners to remain ignorant about the limitations on their exclusive rights under the Copyright Act, see 17 U.S.C. §§ 107–123, because the less they know, the more leeway they would have to send takedown notices.”

Consider this rationale for a moment because it should sound very familiar.  The less the rights holder knows, the greater his/her immunity from liability; it must, therefore, be in the rights holder’s interest to “remain ignorant.” Hence, the the “subjective” standard rewards ignorance (i.e. non-specific knowledge) with its release of responsibility.  The other post I wrote focuses on the inherent subjectivity of fair use, but the nature of this expressed concern—that ignorance is a shield from liability—is an astonishing worry coming from the industry whose favorite defense can be summed up as the “we can’t know” defense.

As cited in this post, the Internet industry has relied frequently on splitting hairs between what is often called “red flag” (non-specific) knowledge and “actual” (specific)* knowledge, the former definition being one of the ISP’s preferred defenses against taking action to mitigate any harm being done via its platforms.  In case after case, Internet providers—most often Google—will argue that absent “specific knowledge” of wrongdoing, they are not responsible for delisting, blocking, demoting, or removing links to sites or files that are causing some type of harm. In particular, these providers have consistently argued that they bear “no duty to monitor” activity on their sites in order to remain shielded by safe harbor provisions in the DMCA. So, this sounds an awful lot like the ISP has the same type of vested interest in its own ignorance that is supposedly detrimental according to the excerpt from the amicus brief cited above.

In fact, the “concern” raised in this amicus brief is truly insidious when you dig below the surface. In a nutshell, big, wealthy corporations—whose business by the way is data management—are arguing that an individual rights holder should be expected to have “specific knowledge” about a purely subjective doctrine (fair use). Meanwhile, the big, wealthy corporations (and did I mention their business is data management?) can never be expected to have “specific knowledge” about activity on their platforms that is—quite often—objectively knowable.  To up the ante, the big, wealthy data management corporations claim to be voicing their “concern” for the sake of public interest, and at least some portion of the public is inclined to believe them.  Finally, just for laughs, the claim of ignorance employed by these corporations is typically not argued as a defense against civil or criminal liability, but more often simply to avoid playing a leadership role in helping to make the Internet a place that supports fair trade, honest dealing, and safe commerce that protects both consumers and producers in a healthy marketplace.

Meanwhile, the most likely abusers of DMCA takedown—certainly the ones we should be most concerned about—are public figures, corporate entities, or government agencies  that might seek to misuse copyright in order avoid criticism. But these same entities are also more likely to have “specific knowledge” of what they’re doing than, say, an indie musician who can be forgivably unclear about the fair use doctrine as it might apply in a creator-to-creator use.  Plus, the musician’s potentially wrongful takedown is not going to chill free speech, particularly when there are already non-litigious remedies for such errors contained within DMCA procedure. At the same time, the service provider (e.g. YouTube) is shielded from any liability to both the user and the rights holder because, as they have argued repeatedly, “they can’t know everything their users are doing on their platforms.”

But in an interesting turn of events this week, Google seems to have shed at least one of its seven veils of ignorance and demonstrated that it has rather specific knowledge of the doings of some of the video creators on its YouTube platform.  Their interest in these creators is so specific, in fact, that the search giant has offered to pay the legal fees, if necessary, for a handful of these video creators, who may face legal proceedings stemming from DMCA takedown disputes.  Cecilia Kang for The New York Times describes Google’s motivation thus:

“The company said it wanted to protect free speech and educate users on fair use. But its announcement is also is aimed at strengthening loyalty with video creators. YouTube faces new competition from Facebook, Twitter and traditional media companies that are trying to get consumers to upload more content onto their platforms.”

I’m sure Kang is right about the competitive strategy, but we’ll set that aside and focus on Google’s new “we got your back” PR move that may look bold to some on the surface, but is actually rather craven and slick if you consider the details.  For instance, the lead example of a video creator cited in Kang’s article whom Google has chosen to support represents something of a false flag for the “cause.”  Constantine Guiliotis is the creator of UFO Theater on YouTube, a series in which he rather amusingly debunks amateur, hoax videos (from other YouTube Channels) claimed as evidence of alien spacecraft. His use of these videos would constitute a fair use, though Kang’s article states that Guiliotis has only received three DMCA takedown requests to-date, which is penny-ante poker in the world of DMCA.  The article does not state whether or not Guiliotis filed counter-notices to restore the use of those three videos, but he certainly had that option, and that would be the end of any likely conflict.

The reason I say that would be the end of it is because the notice and counter-notice procedures in DMCA are meant to serve parties like Guiliotis and the video makers whose works he uses because these people are not going to engage in hugely expensive federal lawsuits over these relatively minor disputes. Hence, Google’s taking a stand by telling Guiliotis, “We’ve got you covered if one of those amateur UFO hoaxers decides to sue you,” is an absurd and empty gesture.  I don’t know all of the YouTube creators Google has decided to “back” in this initiative, but the announcement smells like a PR move designed to make Google look like a champion of free speech while throwing its weight around to intimidate smaller rights holders who can barely defend themselves in the online market in the first place. After all, what if an individual or small independent rights holder has a legitimate claim of infringement by a YouTube video creator?  Is this rights holder now up against the financial might of Google? And if so, what does this say about Google’s supposed neutrality stemming from its claim of ignorance shielding it from liability to both parties in such disputes?

Between the hypocrisy in the amicus brief cited above and the way in which Google is leveraging its corporate muscle in this recent announcement, it looks an awful lot like their idea of “educating people about fair use” is more akin to indoctrinating the public toward a concept of fair use reshaped as the Internet industry sees fit.  And it could work.  Fair use is not a legal defense most people need to concern themselves about; and misconceptions about its application abound. So, Google and its cronies could succeed in sowing a general perception that if a work is used on YouTube, etc., it should be presumed fair; and just in case the individual rights holder has any doubts, crushing litigation will happily clear it up for him.  Sounds progressive, no?

*See comment from Anonymous regarding technical distinction between “red flag” and “actual” knowledge.

ITC Ruling Shows Need for Congressional Reform

In August, I wrote a post criticizing the editorial board of The New York Times for espousing Silicon Valley talking points rather than considering the broader aspects of a case concerning the International Trade Commission (ITC).  At issue was the ITC’s claim that it had the authority to enjoin the importation of digital data being used by a company called ClearCorrect to infringe the intellectual property of Align Corporation.  The ITC does have the authority to stop the importation of “articles that infringe” and it argued that “articles” may include digital files; but this week the Federal Court of Appeals rejected the ITC’s claim of authority in this case.  Citing more than ample precedent that the statute does not allow for an interpretation of “articles” to mean anything other than tangible items, part of the decision reads:

Here we conclude that the literal text by itself, when viewed in context and with an eye towards the statutory scheme, is clear and thus answers the question at hand. “Articles” is defined as “material things,” and thus does not extend to electronic transmission of digital data.

Readers should note, however, that the decision is narrowly focused on the definition of the word “articles” and the authority of the ITC based on that definition.  The court is entirely silent regarding any of the broad “free flow of information” criticisms fearful of granting ITC this authority in principle.  In fact, the court concludes thus:

Under these circumstances we think it is best to leave to Congress the task of expanding the stat-ute if we are wrong in our interpretation. Congress is in a far better position to draw the lines that must be drawn if the product of intellectual processes rather than manufacturing processes are to be included within the statute.

In short, the statute and corresponding authority granted to the ITC may be considered by Congress as antiquated in the global digital market, and Congress may consider expanding the statute to anticipate the potential harm of importing intangible “articles” by electronic means.  Indeed, as cited in my first post, the Center for the Protection of Intellectual Property pointed out that this ITC remedy was expressly recommended by the Internet industry as an “alternative” to SOPA.  If granting ITC authority would not have “stopped the free flow of information” in 2011, it is unclear why it would do so in 2015.  Congress should consider broadening the statue to grant ITC this authority for the protection of American companies practicing fair trade.