Category: Law & Policy

EFF Hits New Low in Response to Child Sexual Abuse Online

According to a September 2019 story in the New York Times, the volume of online content described as “child sexual abuse material” grew from 3,000 reports in 1998 to 45 million in 2019. What used to be called “child pornography,” which was bad enough, needed a broader term to encompass material that increasingly contains photographic and video content depicting torture and rape of children under the age of ten. And those numbers are the reported incidents. 

“An investigation by The New York Times found an insatiable criminal underworld that had exploited the flawed and insufficient efforts to contain it. As with hate speech and terrorist propaganda, many tech companies failed to adequately police sexual abuse imagery on their platforms, or failed to cooperate sufficiently with the authorities when they found it.”

Yet the scope and nature of this story does nothing to temper the propagandist tone adopted by the good folks at the Electronic Frontier Foundation. Once again, they seek to warn the public that congressional response to these staggering revelations is yet another “dangerous threat to free speech, innovation, and security.” Their latest call to action in response to a new bill introduced last week is truly something to behold—even for the EFF.

The post is illustrated with a black eagle set against a gray, film-scratched background meant to conjure the mood of a Nazi propaganda film. Cracking a microphone (speech) with one talon and a key (private security) with the other, the bird’s menacing wings bracket a masonic, all-seeing eye. And below this subtle iconography, the EFF begins its dark prophecy, “Senators Lindsey Graham and Richard Blumenthal are quietly circulating a serious threat to your free speech and security online.” Notice how it always begins with a conspiracy with these guys? In truth the proposal to which the EFF refers is no more being “quietly circulated” than any other bit of legislation on the Hill. In fact you can read the text of the new bill right here. 

When the EFF pulls this crap in response to a copyright enforcement proposal, it’s merely obnoxious bullshit.  But now we’re talking about confronting a growing online market for videos and photos of raped and tortured children.  So maybe, just maybe, we could have the conversation without the EFF trying to silence it at the first syllable? Nope. “We must stop this dangerous proposal before it sees the light of day,” says their call to action.  

Before it sees the light of day? Not consider its pros and cons? Not a sober assessment of the provisions and any potential pitfalls? Nope. Kill the bill and its purpose. To hell with the child victims. End of discussion. So say the self-appointed guardians of the Electronic Frontier. But stay tuned for future blog posts in which the EFF says something cringy like, Child sexual abuse is really, really bad. We don’t like it one little bit. But this bill is the wrong solution. Or some such disingenuous blather. Because that’s what they say about every proposal to address criminal conduct online. 

What is the EARN IT Act 2020?

In response to the stunning growth in online child sexual abuse material (a 1.5 million percent increase since 1998), the Senate Judiciary Committee decided that perhaps Big Tech was not doing quite enough to help address the problem. And just maybe, thought the bipartisan group of senators, this is because Big Tech lacks the incentive to help, due to the fact that they have enjoyed blanket immunity for liability under the provisions of Section 230 of the Communications Decency Act of 1996. (Note the word help, not solve. Nobody expects Big Tech to outright solve the crime of child sexual abuse.)  

So a bill sponsored by Senators Graham and Blumenthal called the EARN IT Act was introduced on March 5th of this year.  The acronym, derived from Eliminating Abusive and Rampant Neglect of Interactive Technologies, intentionally declares that if internet service providers want to continue to avail themselves of the liability shield under 230, they will have to earn that privilege by complying with the conditions set forth in this new legislation. If it becomes law.

The bill calls for the establishment of a commission to develop best practices for identifying and eliminating child sexual abuse material online. Service providers, especially the major platforms that host vast amounts of user-uploaded material, will have to meet the new guidelines established by the commission in order to remain shielded by Section 230. If that sounds like a fairly sober approach to address a very serious type of criminal activity, expect the major platforms to strenuously oppose this bill. And the EFF to be right by their side.

Exploiting Current Politics to Sustain a Harmful Status Quo

Seeking to obfuscate the real narrative that the EARN IT Act is solidly bi-partisan, including Democratic co-signers Sheldon Whitehouse and Diane Feinstein, the EFF prominently invokes  Attorney General William Barr for the express purpose of scaring readers. They write, “The Graham-Blumenthal bill would finally give Barr the power to demand that tech companies obey him [by weakening encryption] or face overwhelming liability from lawsuits based on their users’ activities. Such a demand would put encryption providers like WhatsApp and Signal in an awful conundrum….”

As mentioned in a related post, I personally think AG Barr is bananas. I don’t trust him as far as I can throw him, which would not be very far. But one way or another, he will not be at DOJ forever, and will quite possibly be gone before this bill becomes law, the commission it mandates is established, or the best practices are defined. (And that’s if the Internet Association does not succeed in ripping the guts out of the bill behind the scenes.)  

More to the point, this legislation is designed to address a form of criminal conspiracy that predates AG Barr’s fifteen minutes in the spotlight as well as the incoherent administration he serves. The tragic reality of exploited children will persist long after the Trump circus has packed up its tents and gone. Meanwhile, for the EFF to imply that the EARN IT Act is merely an extension of Barr’s authoritarian impulses is so grotesquely irresponsible and cold-hearted that one can reasonably ask what makes them think they stand on any higher moral ground.

The victims of child sexual predators must remain in the foreground of any discussion about this bill. They should not be treated as an abstraction to be sublimated by the EFF’s latest claim that online speech is threatened—again. The fact that they are willing to use these tactics to try to kill the debate itself on this particular issue is truly a new low for them.  After all, if we can’t even have a conversation about how the internet helps people destroy children for profit, we’re hardly a society with any principles worth defending. I don’t actually think that’s who we are. But apparently it’s who the EFF thinks we ought to be.

Google v. Oracle Part V: The Where Would You Be Without Us Defense

Not everyone agrees that copyright law has a natural-rights soul, but neither critics nor proponents dispute that copyright’s heart is to provide incentive for authors. Specifically in Google v. Oracle, the headlines most likely to seep into general awareness will boast one of two competing predictions regarding this incentive principle.  Defenders of Google insist that if Oracle wins this case, the legal precedent will stifle an entire software industry that needs to copy code (as they did), while defenders of Oracle assert that a Google win could undermine the financial incentive to create. 

Although predicting holistic market dynamics is admittedly a bit of a crapshoot, it seems far more reasonable to conclude that the core elements of Google’s arguments would cause significant cardiovascular harm to the incentive heart of copyright.  And it would do so by insidiously promoting the company’s own monopolistic conduct as a social benefit.  For example, I would draw readers’ attention to the PR message encoded in the following quote from Google’s brief to SCOTUS, filed on January 6th …

“Early mobile phones were much less useful, in part because many manufacturers used their own proprietary ‘operating systems’—i.e., software that controls the phone—for which few useful applications were created. Google responded by creating Android, an ‘open source’ operating system that worked with almost any smartphone.”

Notice how that sounds like mobile was going nowhere until Google magnanimously “responded” to market demand?  It’s meant to sound that way.  Because it reinforces the general proposition that Google’s innovation is synonymous with innovation itself; and as a legal tactic, it is there to tee up Google’s fair use defense (addressed in my last post) that Android developers made a “transformative” use when they copied Oracle’s Java SE code without license. 

Google appropriated the Java computer code for exactly the same purpose for which other mobile developers had licensed the software from Oracle. So not only does this fact undermine Google’s fair use argument, it also suggests that mobile was in fact not going nowhere in 2005.  On the contrary, mobile was racing down the highway faster than Google could fully assemble its own vehicle, leading Google to conclude that it needed Java to catch up. I think we all remember that it was Apple that revolutionized the idea of what a cellphone could be, with inspiration from even earlier innovators like Blackberry, Palm, and Nokia.

Which Outcome Poses a Threat to Incentive?

Copyright skeptics have intermittently taken pot shots at the incentive premise with the refrain that “artists will still create without copyright.”  And while I will not reiterate the many flaws in that particular bullet point, let us jump to the undeniable conclusion that major software developers will do no such thing.  Neither Sun nor Oracle nor Google nor Apple nor any other company is going to invest thousands of costly hours into developing software without projecting a return on the investment, which must be predicated, at least in part, on the IP in the software itself.

That premise alone, without even addressing the more nuanced legal arguments in this case, suggests that a Google win would more likely have a deleterious effect on future software development. If the next start-up developer compares both the conduct and the legal arguments of the two giants in this fight, Google’s claim that it “needed” to appropriate code (which it did not need to do) in order to “revolutionize” mobile (which it did not actually achieve) should scare the hell out of that start-up developer. Because what happens when the start-up creates a breakthrough product for some other sector Google decides it wants to “revolutionize?”

One of the first questions an angel investor asks is how a new venture can protect itself against an industry giant “squashing them like a bug,” for the Shark Tank fans out there.  And one of the best answers the founders can offer is that they own strong intellectual property.  But if Google’s exceedingly broad rationale for outright copying is allowed to stand in this case, the precedent it will set is one in which the new venture no longer has that protection when it enters an arena full of 300lb gorillas. 

If IP becomes meaningless as an incentive, industry consolidation will be exacerbated until we are left with one or two corporate leviathans with tentacles in every aspect of our lives. One need only glance at the winner-take-all paradigm of the digital age, which already forecloses entry into various markets, in order to envision how a finding for Google in this case could have a further chilling effect on competitive innovation. 

By contrast, Oracle’s core argument that its code should have been licensed by Google is not only non-threatening to the start-up developer, it is almost certainly a model the start-up intends to use in the market. Copyright critics have a habit of pretending that licensing is tantamount to making works unavailable and/or a prelude to innovation-killing lawsuits.  But there are few products that belie this rhetoric quite so demonstrably as Java.

Java is a developer’s platform—many have called it one of the most revolutionary ever created—and its licensing regimes were designed to foster innovation, sharing, and building upon prior works. Innovation is literally mandated by the various tiers of Java licenses—from free to commercial—but which Google refused because it rejected the condition that Android would have to be interoperable with the rest of Java.  Google wanted a proprietary platform, but one that relied on a core element it did not develop. 

The fact that the unlicensed use of Oracle’s code was intrinsic to Android attaining market dominance will not, I suspect, be overlooked by future developers and their prospective investors.  So, it would seem counter-intuitive to accept the narrative that Google’s defenses in this case serve innovation writ large rather than its own exclusive and narrow interests.  And if that doesn’t suffice, one could always ask whether Sun/Oracle licensing Java between 1995 and 2005 stifled innovation in the software industry.  Just sayin’ I don’t think it did.

A Worn Out Refrain

Many creators and copyright owners in other media are all too familiar with Google’s attempts to disguise its business interests as a broad social benefit like “we rescued mobile.”  For instance, the emphasis on “open source” in that line from their brief is there to color the picture of Google’s liberality toward the market, as if giving the Android platform away were not essential to its market-dominating intentions—and as if the ease of use for app developers were not a direct result of the code it copied from Oracle. 

So, for all the noise Google makes about innovation and competition, Android is now the dominant mobile platform for three important reasons:  1) the company has nearly limitless capital to launch products quickly; 2) it used Oracle’s code in the platform to attract app developers and get to market fast; and 3) its massive advertising and data-mining revenue streams are best served by giving away its general market products for free. Google is very good at using free platforms to monetize other people’s work without license; but of course, its products are not really free, are they?

Android, like every other “free” tool in the Google portfolio comes at the cost of a semi-voluntary exchange for our personal information—up to and including tracking our movements, invading our privacy, and abusing our data, either by selling it to unscrupulous operators or by leveraging it to engage in anti-competitive practices.  So when Google asks the rhetorical question in regard to this litigation, Where would we be without Android?  The sensible response is: Wouldn’t it be nice to find out?  But of course Google’s largesse does not want competitors in mobile any more than it does in, say, social video platforms. 

Historically, Google’s rhetoric, promoting the message that “copyright stifles innovation,” functions as a smokescreen, which masks its own anti-competitive business practices—namely, that everyone else’s copyrights get in the way of their innovation.  The same scenario plays out again in Oracle. Google copied someone else’s IP for its own commercial benefit and now uses litigation to weaken the law it decided to circumvent—and it did so for profit, not principle. Google’s legal arguments deserve to be addressed on the merits, but we should remember who we’re talking about when considering the big-picture narrative in the press and blogosphere.

PR is of course not unique to Google.  All corporations weave such narratives. But just because GE brought “good things to life,” this does not mean we blindly accepted PCBs in the Hudson River, or assumed that some other company might not bring better things to life.  Similarly, Google cannot be allowed to rest its case on the false premise that nobody was innovating (or would have innovated) in the mobile market until they came along. That simply was not, is not, true. 

Thus, Google’s claim that it must prevail in Oracle in order to preserve a culture of appropriation that allegedly promotes development, fades in the light of empirical evidence.  Without even weighing the copyright law details, Google’s overall message does not hold up against the now well-established narrative that the company behaves like a classic monopolist in every line of business it enters. 

Google v. Oracle: Copyright Thought Leaders Dismantle Pro-Google Arguments (Guest Post)

Editor’s Note:

Thirty-two amicus briefs were filed with the Supreme Court in support of Oracle in Google v. Oracle. Among these was one written by Steven Tepp, whose credentials include former Senior Counsel at the Copyright Office, and whose brief was signed by several other copyright experts from both the public and private sectors.

On February 21, Jonathan Band, on behalf of the Computer Communication Industry Association (CCIA), wrote a blog response under the thesis that many of Oracle’s amici have no “connection to the technology industry or any understanding of the interoperability issues at play in this case.”  Notwithstanding the fact that of the list of amici includes SAS Institute, Synopsis, Dolby Labs, MathWorks, former Sun CEO Scott McNealy, and former EMC CEO Joe Tucci, among others, Band seems to imply that the other amici—all experts in copyright law—are wrong on the copyright matters because they are independent from the software industry. Given that Band devoted extra attention to Tepp’s brief, and Tepp does not have a blogging platform (like Band’s well-funded Project DISCO), I am happy to publish his response here as a guest post.

– DN –

I had the honor and privilege of authoring an amicus brief to the Supreme Court in support of Oracle in the pending copyright infringement suit against Google. It is a strong brief that makes a firm case on the law, as well as on policy grounds, that Google’s copying of over 11,000 lines of computer code for use in competition with the copyright owner violates the U.S. Copyright Act. I am proud that prominent attorneys who have worked in academia, senior positions in federal administrative agencies and Congress, and private practice, supported my brief as co-signers.

One of the sections of my brief pointed out to the Court how the arguments of the pro-Google brief filed by CCIA and the Internet Association had incorrectly relied on the Ninth Circuit decision in Sega v. Accolade as precedent for why Google’s copying was “fair use” under the Copyright Act. The author of the CCIA brief, Jonathan Band, has since written a blog in which he summarizes and critiques the thirty-two pro-Oracle briefs, including mine. In it, he doubles down on his reliance on Sega, so I wanted to set the record straight.

“Interoperability”

The main thrust of Band’s arguments is that the Sega decision stands for the proposition that copying code for the purposes of achieving “interoperability” is fair use under the Copyright Act. And he then also cites to instances where the Sega policy was followed by Congress, the Copyright Office, and in some foreign laws. There are two fatal flaws with this argument.

First, as a matter of law the Sega decision did not endorse a broad, vague, or general notion of “interoperability.” That court was very clear that Accolade’s copying of Sega’s operating code was only to study it to learn how to make applications that would work on Sega’s platform. Accolade’s software did not include any of Sega’s code in its final product, did not compete with Sega’s platform, and did not avoid any customary licensing fees. In the case now before the Supreme Court, Google admits it copied Oracle’s code into its competing product and refused to pay the usual licensing fees.

Second, as a matter of the undisputed facts in this case, the Android platform is NOT interoperable with other Java-based platforms. As the brief of the United States Government points out, Google “designed its Android platform in a manner that made it incompatible with [Oracle’s] Java platform.” (emphasis in original).

Both on the facts and the law, Google is not entitled to rely on Sega or similarly circumscribed rules as precedent or justification for its appropriation of Oracle’s code.

Nonetheless, Band tries to garner support from a Copyright Office report passage that “in many cases, copying of appropriately limited amounts of code from one software-enabled product into a competitive one for purposes of compatibility and interoperability should also be fair use.” It is curious that Band looks to the Copyright Office for support in this particular case. The names of three of the top lawyers at the Copyright Office appear on the U.S. Government brief in support of Oracle, including one of the people who worked on the report from which Band quotes.

The U.S. Government brief responds to the exact line Band quotes, “Contrary to petitioner’s [Google’s] contention, the Copyright Office has never endorsed the kind of copying in which petitioner engaged…enabling developers for Android to draw on their preexisting knowledge of commands used on the Java platform does not constitute ‘interoperability’ as that term is defined in the Copyright Act or discussed in any judicial decision or Copyright Office publication.”

International Considerations

I argued to the Supreme Court that a ruling of fair use in this case would violate sixteen international agreements to which the United States is a party. Specifically, such a ruling would be inconsistent with the globally accepted “three-step test” for allowable exceptions to copyright, which appears in all those agreements and treaties. Band’s blog goes beyond his brief to attack this analysis, claiming that only legislative enactments are subject to scrutiny under the three-step test. He is wrong.

Nothing in the text of the three-step test, or anywhere else, indicates it does not apply to exceptions that arise or are implemented through administrative or judicial action. To be fair, a lower court ruling that may not be precedential even within its relatively small geographical jurisdiction would be a weaker case to apply the three-step test.

But this case is before the Supreme Court, the highest court in the land. Its rulings bind all lower courts and may be overturned only by itself or by Congress. So, if the Court rules that verbatim copying for use in direct competition with the copyright owner is fair use, that is the law of the land for the foreseeable future—and this country is accountable for it.

Moreover, current and past practice shows that the governments of the world consider court decisions subject to analysis for treaty compliance. Over the years, the United States Government has been peppered with questions from foreign governments about previous fair use rulings. The United States has done the same, holding other countries accountable for their courts’ decisions.

Band’s second line of attack on my three-step test analysis asserts, “the interpretation of the three-step test advanced by the ‘Thought Leaders’ is so narrow that it would completely undermine the ability of the highly commercial U.S. copyright industries to rely upon fair use.” To be clear, the interpretation I “advance” in the brief is not my own, but the interpretation of a neutral panel of international experts who decided the case brought against the United States by Ireland under the auspices of the World Trade Organization. In that dispute, the panel found an expanded exception in U.S. law concerning the public performance of musical compositions violated the three-step test. My brief merely applies that panel’s standards to the facts of Google’s copying. Band’s assertion that the panel decision (which was written twenty years ago) now suddenly undermines fair use is contradicted by the reality of the past two decades.

My final point on international matters is that if the United States fails to live up to its international commitments, it will undercut our credibility when we insist on adequate copyright protection in other countries, most notably China. Band wraps up his blog’s attention to my brief by asserting that a ruling for Google would “increase the credibility of the U.S. copyright system by showing that it can balance the needs of different stakeholders to advance the public interest.”

It says much about his approach to copyright issues that he considers outright copying of over 11,000 lines of code, for use in direct competition with the rightful copyright owner, to be a “need.” It is also telling that he conflates Google’s business decision to free ride on Oracle’s code with the “public interest.”

In any event, it is only common sense that any country presently criticized by the United States for failure to provide proper protection for copyright would be all too happy to point the finger back at us if the Court were to rule in favor of Google’s appropriation. No doubt China and other economic competitors would welcome the United States lowering its intellectual property protections, particularly for our successful technological innovations. But I don’t think it’s in our interests to be more like China is that regard.

Our trade and copyright negotiators have been hampered for twenty years by our loss in the relatively minor matter in the case brought by Ireland. A ruling in this much more economically significant case would magnify those hurdles by several orders of magnitude.