Category: Law & Policy

Trump Jr. Blasting Silicon Valley Is Unhelpful

In an op-ed for The Hill published on September 30, Donald Trump, Jr. rails against the power of the major internet platforms, saying that “free speech is under attack” by Big Tech.  His complaint, of course, is that the big internet platforms are censoring what he calls conservative voices, blaming “the technology giants that deplatform people at the behest of liberals and then justify the action as ‘combating hate.’” 

Don Jr.’s call to “break up” Big Tech is, ironically enough, a call for the industry to return to its pre-2016 policy of zero platform responsibility, to accepting revenue from any source while making little effort to mitigate hateful, violent, or illegal content—even if it happens to be paid for in Rubles.  Because of course without the babbling chaos that social media created in the first place, there would be no reality in which a patently incompetent and indecent man like Donald Trump becomes President of the United States.  Most real conservatives know this to be true and, I suspect, will be saying so in the relatively near future.

Seeking to align Trumpism with original patriotism, The Donald 2.0 extolls the virtues of a Reddit mob blasting Beto O’Rourke as if this kind of engagement were exemplary of the American Framers’ fondest ambitions for free speech and a free press. He writes …

“The free press that the founders envisioned looked a lot more like the Reddit users who roasted [Beto] O’Rourke than New York Times writers who misrepresent basic tenets of free speech and demand censorship to protect their friends from “online harassment.”  

There is nothing surprising about a Trump making a hash of history.  While Junior is perhaps correct to remind Americans that living in a society with free speech “…can be edgy, brutal, irreverent, and sometimes downright offensive,” he misrepresents the sensibilities of the Framers in a significant and telling way.  Even a digest version of the reading material makes one thing very clear about America’s key architects:  to a man, they were intellectual elitists who harbored few illusions about the hazards of democracy and the consequences of succumbing to the tyranny of the mob. Not even Jefferson, in his most Jacobean zeal, would likely view the average social-media skirmish with anything but contempt for the general abandonment of evidence-based reason in these discourses that so often devolve to threats and harassment. As scholar Mary Anne Franks writes in the abstract of her paper “Fearless Speech” …

“The American conception of free speech is primarily defined as the freedom to say whatever one wants, with little regard for the quality, context, or impact of the speech. Thus, American free speech doctrine is often characterized as neutral with regard to the speaker and the content of speech; in practice, however, it consistently privileges powerful over vulnerable speakers and harmful over critical speech.”

Perhaps most relevant to Don Jr.’s twisted premise is that the Framers who were especially apprehensive about the too-passionate mob, men like Hamilton, are the progenitors of the American conservative tradition.  Those stuffy, patrician, and, yes, arrogant authors of the United States, who tended to display a bit too much anglophilia for the tastes of many of their contemporaries, also served as intellectual ballast in a nation that was born volatile and restless.  The men who wrote the Constitution were students of the Enlightenment, not an angry, pitchfork-wielding rabble.  That was the French Revolution.

The principle that the rule of law is a foundation of liberty spawned a conservatism grounded in reason, truth, and a moral context that was at least definable, if not universal enough to embrace America’s inevitable diversity.  In short, there is no historic or doctrinal link between the Federalists and the straightjacket ravings of someone like Alex Jones.  The Founders never hoped that the speech right would foster a circus, where evidence rooted in science would be trampled by popular consensus—let alone the kind of algorithmic sabotage at work in our politics of the moment.

As surely as MTV made Madonna, Twitter made President Trump—albeit not intentionally.  Where else, other than the miasma of the Twitterverse could a man whose political bona fides began with a racist conspiracy theory attain the highest office in the land?  Big Tech’s folly is not that some of its operators finally had the sense to remove an Alex Jones or a Daily Stormer from their servers, but that they initially promoted a doctrine of internet non-governance, which fostered the only medium in which neo-Nazis and sociopaths were somehow invited into tent of conservatism.  That anyone would tolerate, let alone defend, the President’s recent tweets about “civil war” (a literal incitement to violence and treason), is the apotheosis of Big Tech’s misguided ideologies and a grotesque aberration of the Federalist cause.  

Responding as a member of an unofficial society of Big Tech critics, I find Junior’s rationale for “breaking up” Google, Facebook, et al profoundly dysfunctional and unhelpful in a policy discussion that is already difficult to have.  While many of us are advocating platform responsibility, he wants to goad those platforms to resume hosting all material without restraint, to reinvigorate Barlow’s too-idealistic notion of a world where laws do not apply.  But of course that’s what he would do.  How else could the United States suborn a President who flaunts his contempt for the rule of law and unironically asserts “alternative facts”?  That is the internet ethos in spades, and Trump’s presidency is the Golem that Silicon Valley brought to life. 

HJC is Right to Want Internet Safe Harbors Out of USMCA

Remember the Trans Pacific Partnership?  The twelve-nation trade agreement that became an eleven-nation trade agreement when the U.S. pulled out?   As a general opinion, I will propose that when both a Bernie Sanders and a Donald Trump want to thrash a Fair Trade Agreement (FTA), it’s a pretty good indication that diametrically opposing ideologies have come to the same naïve conclusion.  Whether one’s anti-globalism is steeped in anti-corporatism or ultra-nationalism matters very little when the self-defeating result is not the abandonment of the world’s largest trade deal, but a decision that the United States will not have a seat at the table.  

But the reason I’m trotting out that diplomatic fiasco in this post is to remind readers why “digital rights” groups like the EFF, PublicKnowledge, ReCreate Coalition, et al campaigned so energetically against the TPP:  because they said it would “entrench” the status quo of copyright law, particularly the duration of copyright terms.  “One of the defining battles in the Trans-Pacific Partnership (TPP) negotiations,” began a typical EFF blog post in 2017,  “is whether its signatory countries will standardize copyright terms lengths to a minimum term of the life of the author plus 70 years.” While this post presents the urgency of six new countries adding 20 years to their copyright terms, I do not believe the duration of copyright in Brunei was the focus of the organization’s agenda.

Regardless of how one feels about term length, it was profoundly disingenuous to imply in that post, and others, that the USTR was working at the behest of major rightsholders to entrench the life-plus-70-year standard through an FTA. Further, in my view, this post was written to suggest that, if the U.S. did not ratify TPP, we just might to roll back our terms to life-plus-50 years. But that regime was already a global standard when the U.S. joined the Berne Treaty a century after it was first created; and the increase from 50 years to 70 in 1996 was the result of the U.S. matching its terms to those adopted by the new European Union.  So, there was never any logic to the implication that by withdrawing from the Pacific trade deal, this would have loosened the bolts on U.S. copyright policies, which are based largely on the history of Euro/American trade in copyrightable works.

With that preamble in mind, be prepared for much wailing and gnashing of teeth from the “digital rights” groups if the U.S. Trade Representative concedes to a request by the House Judiciary Committee to remove language from the USMCA (new NAFTA) mirroring the “safe harbor” provisions of the Digital Millennium Copyright Act (DMCA).  

Also referred to as Section 512, these are the provisions under which internet service providers (ISPs) are held immune from liability for hosting copyright infringing material that is uploaded by users; and safe harbor language has been echoed in FTAs since passage of the DMCA in 1998.  Why the change in doctrine?  In its September 17 letter to the USTR, the Committee stated …

“The U.S. Copyright Office is expected to produce a report on Section 512 around the end of this year, the result of a multi-year process that started in 2015.  Moreover, the European Union has recently issued a copyright directive that includes reforms to its analogous safe harbor for online platforms, which may have an impact on the U.S. domestic policy debate.  Without taking a position on that debate in this letter, we find it problematic for the United States to export language mirroring this provision while such serious policy discussions are ongoing.”  

Quite simply, the DMCA has been under review for several years because it is not exactly working as intended.  In fact, neither of the two internet liability shields—neither Section 512 nor Section 230—has resulted in platform operators taking adequate voluntary action to mitigate harm on their platforms.  To the contrary, absolute immunity for web platforms fostered a culture of smug, self-important rationales for irresponsibility.  

Until major Silicon Valley executives had to start answering questions about data breaches and trust violations, they were the self-proclaimed  “fast movers and thing breakers,” insisting that if we all want progress (see innovation), we gotta let them break a few eggs, right?  Except those eggs were privacy; civil liberties; personal safety; decency; the rights of authors and inventors to protect the fruits of their labor; other labor rights while we’re at it; and the foundations of democracy itself.  Small price to pay for Facebook and YouTube, I guess.

In contrast to the ginned-up fears of “entrenching” century-old copyright regimes in trade agreements, the “digital rights” groups will no-doubt recommend entrenching law through FTAs with a much shorter and dodgier pedigree.  It took less than 20 years after passage of the DMCA to recognize that ISPs will use their liability shields to avoid taking adequate voluntary measures to mitigate harmful or illegal conduct on their platforms.

The logical conclusion many constituencies are now coming to with regard to internet service providers—and this is hardly a revelation—is that tech corporations, like any other, will avoid incurring costs, either direct or opportunity, unless the potential liability will be even more expensive.  The House Judiciary Committee is right to put the brakes on safe harbor provisions in FTAs in order avoid calcifying demonstrably flawed policy.  

The Jetflicks indictment: talk about crime not paying.

After reading the indictment that was handed down last week against the eight men who allegedly ran the pirate streaming service called Jetflicks, all I could do was wonder what the hell they were thinking. Between 2007 and 2017, Krisopher Lee Dallmann and Darryl Julius Polo operated Jetflicks as a subscription-based service, delivering tens of thousands of unlicensed audio-visual works to customers around the United States.  So, not only do I want to ask how they imagined they would avoid prosecution while operating inside the U.S., but the following email exchange between Dallmann and a programmer named Louis Angel Villarino (as quoted in the indictment) really makes me wonder why they even bothered …

Dallmann: When Jetflicks starts making crazy $$ in a few months… How much do you need to make to be full-time for Jetflicks only?

Villarino: 120k a year

Dallmann: That’s doable …

Dallmann:  Jetflicks made 750k 3 years ago… 500k in 2015… And a sad 350k last year

Dallmann: If we didn’t have people that took advantage, we’d be awesome.

Assuming this correspondence provides some insight into the enterprise, I am not sure which inscrutable detail to highlight first; but I suppose it would have to be Dallmann’s woeful complaint that customers were “stealing” from Jetflicks by sharing login credentials.  The naïve innocence in his choice of words “took advantage,” implying that he sincerely believed he had an ethical leg to stand on, resonates with the somewhat pathetic revelation that this doomed venture was not even viable enough to provide Villarino with a full-time gig at $120k/year.  

Not that I recommend or condone criminal enterprises, but if one is going to take the risk, it seems like it ought to be with the intent to make some serious money, no?  Operating a media piracy service inside the United States is operating on a time-clock; a criminal indictment will be forthcoming.  So, if the plan does not include reaping several million dollars in a very short time, followed by a flight to a country beyond extradition, then perhaps applying to one of the many tech jobs out there is a better career move.  Some of them actually pay more than $120k per year.

In fact, if I correctly interpolate the evidence cited in the multi-count indictment, it does seem like running Jetflicks was a lot of damn work for not nearly enough revenue.  After all, making sure subscribers receive TV shows in a timely manner when you have absolutely no license to do so requires quite a bit of time and technical skill—not to mention capital expense for servers etc.—that, again, better pay a substantial return considering that a hearty pounding on the door by the FBI is imminent.  Instead, the operators almost seem to have believed they were running a legitimate business that they expected to operate indefinitely.

Some Defendants May Argue Misdemeanor Offense

As this case proceeds to trial, perhaps the rationales of the defendants will be revealed, but if not, it may still be interesting to watch the defense(s) of the six supporting characters, including Villarino.  While the apparent ringleaders Dallmann and Polo are charged with multiple counts of felony infringement, money laundering, aiding and abetting, the other six are only charged with conspiracy to commit copyright infringement.  Consequently, some or all of these men may try to prove that they were only involved in the act of streaming infringing content because streaming is currently a misdemeanor. I have no idea, of course, whether any of the six has any evidence to support such a defense, and some or all may seek plea deals; but this case could highlight the view that many policymakers believe there is no reason for streaming not to be a felony.

The distinction between civil copyright infringement and criminal copyright infringement is based on the purpose, conduct, and goal of the alleged infringer.  Old-school criminal copyright infringement usually entailed conduct like mass-producing bootleg copies of works to sell in an unlicensed market as a substitute for the legal market. Consequently, U.S. criminal code identifies unlicensed reproduction and distribution as charges that law enforcement may bring in copyright cases.  But streaming audio or video (though it often implicates reproduction and distribution) is considered a public performance of a work, and unlicensed public performances are still considered misdemeanors. 

Clearly, with regard to the kind of harm that may be caused by enterprise-scale infringement, the “streaming loophole” is a legal distinction that is outdated by the nature of the technological means used to infringe.  If selling ten thousand bootlegs out of a warehouse in 1988 was a felony, then how can it be that streaming multiple infringing works to potentially millions of viewers is considered a lesser crime?  A letter written this July by the Register of Copyrights to the Senate Judiciary Committee, IP Subcommittee states, “Under this system, criminal streaming piracy, no matter the dollar amount it involves or the number of works affected, is de facto treated as a lesser crime than the illegal downloading or reproduction of the exact same content.”

It seems likely that lawmakers will eventually recognize that streaming is the contemporary method of mass-bootlegging and, therefore, amend the criminal code to encompass public performance by streaming as a form of felony infringement.  In response, the “digital rights” advocates will doubtless write many screeching blogs and post scary-looking memes predicting once again that innocent children will face jail for inadvertently streaming infringing material, or that startup “innovators” will be afraid to enter the market.  And as usual, none of these complaints will be grounded in reality.

Caselaw is replete with both criminal and civil copyright cases, and the distinctions are clear.  This is why a start-up like VidAngel, no matter how much its model proves to be a contorted workaround to copyright law, will have its day in civil court, but its founders will not face criminal charges for the attempt.  There is no comparison between a well-intended enterprise that is held to be infringing and a criminal enterprise that seeks to profit by means of a black market.  Though in the case of Jetflicks, apparently not profiting enough for all the trouble.

Regardless of where policymakers net out on felony streaming in the near term, I will say this for the proposal:  the amended criminal statute might have acted as a deterrent for at least some of the six guys now facing charges in the Jetflicks case. Of course, this implies that they would have known enough to consider the difference, which only begs the original question:  What the hell were they thinking?