Category: Law & Policy

EU Copyright Proposal Article 13 Set to Destroy the Internet (Again)

As mentioned in my previous post, Article 13 of the EU Directive on Copyright in the Digital Single Market is the latest proposal that will “destroy the internet as we know it,” if the statute is ratified in its present form. The #copyright feed on Twitter seems dominated by messages proclaiming the existential toxicity of Article 13, and, as usual, there are a lot of articles agreeing with one another that this proposal is really bad—all of them long on synonyms for bad, but short on substance as to why bad things will actually come to pass. And the reason for this is that Article 13 does not outline any specific practices but rather proposes to adopt certain practices. If that sounds like a distinction without a difference, it isn’t.

The broad goal of the EU Directive is to create a Digital Single Market (DSM), something that consumers, digital rights activists, and even many rightholders have been advocating for years. Harmonizing the disparate copyright laws (as they relate to internet distribution) of the 28 member countries should facilitate better access for users and, in principle, foster more robust trade in digital goods throughout the continent.

But the European Commission simultaneously recognizes various threats posed by the internet industry to the authors of works—especially from major platforms that host vast amounts of user-uploaded, copyrighted material.  In the European Commission, these are called Online Content Sharing Service Providers (OCSSP), a category that excludes non-commercial sites like encyclopedias or sites where “content is uploaded with the authorisation of all concerned rigthholders, such as education or scientific repositories.”

Presently, the Directive’s Article 13 mandates that Member States work with major service providers, user representatives, and rightholders to develop technical measures designed to filter content in order to prevent or mitigate the uploading of infringing material. Here’s the language from the current draft:

“Member States shall facilitate, where appropriate, the cooperation between the online content sharing service providers, users, and rightholders through stakeholder dialogues to define best practices for the implementation of the measures referred to in paragraph 1 in a manner that is proportionate and efficient, taking into account, among others, the nature of the services, the availability of technologies and their effectiveness in light of technological developments.”

This is what will supposedly destroy the internet as we know it.  A provision that Member States work with stakeholders to develop technical measures to filter unlicensed content from various platforms.  A process that, if it happens at all, will take several years of negotiating (and bickering) to implement.  I feel compelled to interject that when the DMCA was passed in the U.S. in 1998, it also contained a mandate that rightholders and service providers collaborate to develop technical measures in order to filter for infringing content. In fact, the service providers testified to the availability of such technical measures as part of their rationale for lobbying for the safe harbors in DMCA in the first place.

If America’s past is Europe’s prologue, the major service providers—with ample help from anti-copyright ideologues—will fight the implementation of such measures at every phase, so we’re at least 10-15 years from “destroying the internet we know.”  I find this funny because the “internet we know” (using YouTube as a reference) isn’t 15 years old yet, and I’m not sure why the internet of 2031 should be required to resemble the internet of today in any context whatsoever.

Although the EU Directive is not specific about what technical measures should be developed and implemented, the usual chorus of critics hear the death knell of the internet in the mere suggestion that such technical measures should even be considered. Thus, the main message they’re selling—the one they always sell—is that no technical measure could ever be implemented without fostering censorship of protected speech. Hence, Pirate Party Member of the European Commission Julia Reda’s labeling these provisions “censorship machines.” Then, the anti-copyright voices in academia and “digital rights” groups jump on board with scary-sounding declarations like this one:

Algorithms Can’t Assess Fair Use!

It’s true. They can’t.  And the day they can, I’m going into the bunker because this would indicate the machines have woken up and are about to kill us. Of course, most human users who upload copyrighted works aren’t very good at assessing fair use either—or more to the point, most human users don’t bother thinking about what they’re uploading, period. It is simply assumed at this point that every user is free to upload whatever he wants without considering whether he has any right to make a work available online.

Just because digital activists and copyright haters paint a picture of an internet replete  with fair uses, that doesn’t make it true.  In fact, in my anecdotal experience with friends—including artists who don’t want to infringe—almost nobody has taken the time to understand fair use. So, are social media platforms more richly populated by fair uses or infringing uses? I don’t know. But neither do any of the people currently overstating assumptions about fair use in order to scare users about the provisions in Article 13.

Moreover, as alluded to in my last post, if content filtering systems are too hypersensitive, this will adversely disrupt the use of licensed works. For instance, I pay for the stock photos I use on this blog, but if WordPress deploys a filter that is too robust and rejects every image, that’s bad for me and the rightholders of those images. This is a tiny example as to why Article 13 requires stakeholders to develop technical measures through collaboration.

And on that point, why don’t the digital activists ever seem to want to collaborate on such initiatives rather than invoke Revelations at the mere prospect of having the conversation? Because a) they fundamentally hate copyright and have no intention of finding compromise; or b) because they really are in Silicon Valley’s pocket and seek policies that serve the interests of Google et al.

It is important to keep in mind that almost no proposal—from voluntary to statutory—is ever endorsed by these parties if it implies even a hint of platform responsibility for user-uploaded content. This remains true despite the staggering evidence that our 20-year policy of leaving platforms to their own “merits” resulted in the Facebook/Russia/Cambridge-Analytica scandal. These events have led many citizens to reconsider the need to preserve “the internet as we know it” in favor of adapting to an internet that better serves society. To achieve this, we will have to accept that, in fact, there are laws applicable in physical space which are not rendered obsolete by interacting in cyberspace. Maybe if we describe this approach as disrupting the internet, the digital activists will get it.

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.

Cake Fight: SCOTUS Decision in Masterpiece Does Not Turn on Expression

Because I opened my big maw in December when the Supreme Court heard oral arguments in Masterpiece Cakeshop v. Colorado Civil Rights Commission, I feel compelled to follow up now that the Court has ruled. In a 7-2 decision, SCOTUS held that the Colorado Commission failed to meet the standard of “neutrality” when considering baker, Jack Phillips’s appeal to his First Amendment right of religious exercise by refusing to create a wedding cake for the marriage of Charlie Craig and Dave Mullins.

Subsequent to this widely-reported story, a Christian activist named William Jack entered three different Colorado bakeries, each time requesting cakes with anti-gay messages. All three bakers were willing to provide the religious designs Jack requested, but all three refused to include writing or specific design elements that directly maligned homosexuals. Jack complained to the Colorado Civil Rights Commission, and the majority opinion of the Supreme Court held that the Commission was correct in upholding the three bakers’ right to refuse Jack’s requests but that, by contrast, the Commission failed to apply the same, neutral reasoning when considering Phillips’s defense for refusing to make a cake based on his beliefs.

As indicated in my first post, this story intrigues me because, as a secularist, I am always interested in religious-freedom cases, and because Phillips’s particular defense entails religious exercise through artistic expression. While I have little patience for religious zealotry—let alone as an excuse for discrimination against anybody—I fully endorse the constitutional obligation that the state must remain neutral about religious beliefs just as it must remain neutral about my non-religious beliefs. Then, assuming we all agree that the state should never compel anyone, including artists, to express themselves, my earlier post engaged in a little thought exercise to consider whether, from a copyright perspective, a court could hypothetically consider Phillips’s cakes to be a form of creative expression.

This was to entertain two thoughts: first, that copyright at least provides the court with a legal rationale for considering “artistic expression”; and second, because I suspect the more this case rests on artistic expression, the narrower its implications should be. My own theory was that if certain cakes can be considered artistic expression, then a) the state can’t compel their making; but b) this case would provide very limited precedent for other proprietors to claim nearly any business activity as religious exercise. Though the first obvious exception would be wedding photographers, whose images are legally “expressive” because they are copyrightable.

Although none of the five written opinions mentions copyright (no surprise there), and the judgment itself does not turn on the issue of expression in a wedding cake, the creativity question does weave in and out of the deliberations. In fact, it is Justice Thomas whose opinion explores Phillips’s free speech claim, and which contains observations that might sound familiar to anyone who has read copyright opinions. For instance, he notes that we recognize non-literal artistic expression, thus:

“To determine whether conduct is sufficiently expressive, the Court asks whether it was ‘intended to be communicative’ and, ‘in context, would reasonably be understood by the viewer to be communicative.’ But a ‘particularized message’ is not required, or else the freedom of speech ‘would never reach the unquestionably shielded painting of Jackson Pollack, music of Arnold Schöenberg, or Jabberwocky verse of Lewis Carroll.’”

In this comment, Thomas disagrees with his colleagues’ contrasting the literal, written statements that the three bakers refused to make for Jack with the non-literal, potential for expression in Phillips’s wedding cakes. Further, Thomas writes the following passage, which could almost be an excerpt from an opinion of the 19th or early 20th century considering copyrightability of a new medium:

“Phillips takes exceptional care with each cake that he creates—sketching the design out on paper, choosing the color scheme, creating the frosting and decorations, baking and sculpting the cake, decorating it, and delivering it to the wedding.”

Except for the reference to delivery, Thomas’s finding evidence of creative expression in the various aesthetic choices and specific arrangements of materials is doctrinal in copyright law today. So, although the Court’s judgment in Masterpiece does not emphasize the issue of expression in a cake, I think the subject remains a question that has lingering implications with regard to the potential civil rights precedent inherent to this case.

The main point of contention between Justice Gorsuch (concurring) and Justice Ginsburg (dissenting) is whether the cake design actually matters at all. Ginsburg contends that Phillips refused to make a cake (the design of which had not yet been discussed) that he would have made for any wedding other than a same-sex marriage. Hence, he discriminated directly against customers in a protected class, and the cake’s design—artistic or otherwise—had nothing to do with his decision. By contrast, Ginsburg observes that the other three bakers refused to make specific designs, with literal messages, that they would have refused no matter who the customer was—hence, they were not discriminating against Jack for his religious views.

Justice Gorsuch disagrees, contending, “In both cases, the effect on the customer was the same: bakers refused service to persons who bore a statutorily protected trait (religious faith or sexual orientation). But in both cases the bakers refused service intending to honor a personal conviction.” I admit that’s a head-scratcher. In my view, Gorsuch’s refusal to see the distinction is where his opinion may provide some precedent for a future party to claim “religious exercise” as a rationale for circumventing public accommodation laws protected by the 14th Amendment. But this would seem to depend considerably on whether Phillips’s cake is in fact expressive despite its being non-literal.

Clearly, the other three bakers scorned the explicit messages Jack had requested and not his religion. In fact, I believe there is no evidence indicating that those three bakers are in any way hostile to Jack’s religion. For all we know, they may even have some denominational kinship with him, but so what? If another atheist asked me to ghost write an article denouncing all religious people as pedophiles, I’d refuse the assignment because the requested content is patently offensive and dumb.

Similarly, if a customer whose religion, sexual orientation, even race or gender, is unknown to the proprietor when he/she enters a cake shop and asks a baker to design a cake with minstrels on it, isn’t the baker allowed to say he doesn’t feel comfortable complying—even without knowing anything about the customer as an individual? Of course he is. The minstrels are a literal form of expression with meaning filled with racist connotations.

By the same token, Phillips is entitled to refuse to design a wedding cake he would consider inartistic, even at the request of the most devout, Bible-thumping, gay-bashing, Christian couple ever to take their vows. Correspondingly, then, Justice Ginsburg’s dissenting opinion is well-reasoned: that Phillips’s refusal even to discuss a design with Craig and Mullins was predicated solely on his knowledge of their sexuality. But that reasoning would appear to be undermined if all of Phillips’s non-literal wedding cakes, even those not yet designed, were assumed to be expressive.

Claiming Artistic Expression

Of course, the harder Phillips clings to his claim of being an artist, the more he must play by the artist’s rules. One of these rules is that once the creator makes a work, he has little control over what the observer will think of the work, least of all whether the observer will recognize anything related to what the artist felt while making it. If an equally-skilled baker made masterful cakes while thinking about the various ways science debunks the Bible, would a reasonable observer be able to tell the difference between the religious cake and the irreligious one?

That’s the part where Phillips is trying have his cake and…y’know. His assertion that his wedding cakes are an artistic expression rooted in his religious faith is perceptible only to him and not to the dispassionate observer of the cake by itself. Thus, when Justice Thomas refers in his opinion to the symbolism of wedding cakes in general, this may be true, but it does not seem relevant to support Phillips’s very narrow claim that each of his wedding cakes is specifically an expression of his religious beliefs. Mindful that Phillips has no doubt made cakes for couples who’ve transgressed against a wide range of Scriptural doctrine, once a work of art is out there, the observers decide what, if anything, it “means.”

Still, as a copyright advocate, I find it hard to completely dismiss Phillips’s claim for the simple reason that copyright itself assumes a metaphysical relationship between the author and the work. If indeed there is some invisible—often hard to define—bond linking the creator’s mind, heart, soul, and body to the final artistic product, then we have to accept the creator’s own understanding of that bond, whether it’s religious, sacrilegious, intellectual, emotional, or even insane.

The unaddressed aspects of this judgment leave us with the paradoxical discussion that the state does not get to determine what constitutes a sincerely held belief, and neither does it get to judge if and when a belief is felt by an artist to be an inspiration for his expression. And other than the statutory confines of copyright law, the state also has no business determining what is and is not “creative expression.” For better or worse, the Court in Masterpiece alluded to but did not answer any of these questions. Though I sincerely doubt society is done asking them.

Photo by topnatthapon