Category: Law & Policy

National Review Says ALI Oversteps in Areas Other Than Copyright

What is the difference between standing on legal principle and engaging in legal activism? The wry answer, of course, is that the attorney, scholar or judge who agrees with one’s opinion is a champion of legal principle while any of these who disagrees with one’s opinion is a feckless activist. “…there must be a clear line between describing what the law is and seeking to establish new law and policy,” writes John Fund for the National Review in an article about the “activist” character of the American Law Institute’s current agenda in issuing Restatements of Law. As described in this post, ALI traditionally publishes Restatements for the purpose of consolidating and unifying disparate common law opinions into general guidelines that may be cited almost as though they were statutory law.

I agree with Fund in spirit, even though I suspect that policy-for-policy, he and I would not agree as to what constitutes principle vs. activism. National Review is arch conservative and, as such, its editors probably would not find any hypocrisy in Fund’s citing the late Justice Scalia’s critique of recent ALI Restatements as “aspirations for what the law ought to be.” I would personally say the same thing about Scalia’s opinions in Heller and Citizens United, for example, but such is the subjective nature of the issue at hand. The law is always some version of what we want it to be.

Still, I am inclined to give Fund the benefit of the doubt that ALI Restatements are trending toward a more common definition of “activism” if their proposal to issue a Restatement on copyright law is any indication. As multiple copyright attorneys have stated, even considering a Restatement on a body of law that is already statutory is an undertaking that has never occurred in the hundred-year history of the institution. If that general fact emits a whiff of activist smoke, then the fire is in the detail that all the individuals pushing for the copyright Restatement are known to be ideologically critical of copyright.

I cannot comment on Fund’s report that ALI Restatements are also causing havoc in insurance, tort, and contract law, but he does state, “Last month, a group of six governors — from Texas, Maine, South Carolina, Nebraska, Utah, and Iowa — sent the ALI a letter warning that the proposed draft is a usurpation of the law-making authority of their state legislatures.” Again, I can imagine any number of laws in those states that I personally don’t like, but that doesn’t mean legislative authority should be undermined at the state level any more than it should be expropriated at the federal level. And as with the proposed Restatement on copyright, it would be interesting to know if this is the first time state governors have accused the ALI of overstepping its bounds in this way.

As a non-attorney, I am in no position to comment upon—or even know—the inner-workings of the American Law Institute. Whether Fund’s conspiratorial tone is justified, casting ALI as a near-clandestine organization undermining legal foundations, is hard to say. His short article does not lack conservative rhetoric, even citing the dreaded “political correctness” as motivation behind ALI’s Restatements. Especially in the current political climate, this is a very tough needle to thread. There are plenty of folks who would describe legalized same-sex marriage as judicial “activism,” while I would consider that view euphemistic bigotry. Regardless, the ALI is not a legislature; and to the extent its Restatement process may be seen as supplanting the legislative process, this is certainly grounds for scrutiny from any political perspective.

The CASE Act: The Big Value of Small Returns

by Lisa Shaftel & John Schmelzer
Shaftel & Schmelzer, Advocates & Consultants for Visual Artists

Representative Hakeem Jeffries introduced the Copyright Alternative in Small-Claims Enforcement Act of 2017 (the “CASE Act”) H.R. 3945 in October 2017. The CASE Act was created in response to the Copyright Office Study Report on Remedies for Copyright Small Claims released September 2013. The CASE Act establishes a “small-value copyright court” within the Copyright Office so that copyright owners can pursue infringement cases where damages are too low for cost-effective litigation in federal court. Visual creators’ organizations have been asking for this recourse for creators’ lost income for well over ten years.

There are many businesses large and small that have been built on the model of not paying for the images they use. Licensing images—certainly for commercial reproduction and display—is a standard and customary business practice for creators and users of images. It is the cost of doing business, as well as a legal obligation for the user.

Using images without permission and without paying a licensing fee to copyright owners is simply stealing. It’s no different than stealing paper or lumber or a truck. These businesses have been able to get away with not paying for the images they use because they know that copyright owners cannot afford to file an infringement lawsuit in federal court for lower-value licensing fees and actual damages.

Authors and creators trying to earn a living from their work suffer death by a thousand cuts with no practical legal recourse to stop the bleeding. Image theft has devalued our creative product to the extreme. The thought process has become; Why pay for something that can be stolen without recourse? The internet is populated with stolen images that drive traffic to commercial sites, but image creators reap no financial benefit from those who drive the traffic or those who sell the goods or services. More traditional businesses observe this trend and take advantage of the infringing activities believing they too can steal without recourse. Some websites and businesses, such as the online “corkboard,” have based their entire business model on unauthorized use of copyrighted works.

The CASE Act creates a simplified and less costly alternate dispute resolution process for creators and copyright owners to recover the licensing fees owed them by businesses that have already made unauthorized use of their photos, illustrations and graphics. The ADR process will provide the means for authors and creators to get injunctive relief from an offensive unauthorized use of their work as well. It also serves notice to the business community that there will be a low cost legal opportunity for authors and creators to enforce their ownership and copyrights, and underscores the value of creative works. Unless the value of assigned original images is reestablished, an entire industry that has already been crippled by image theft will disappear completely in the United States.

In 2012, England and Wales established a Small Claims Track for low-value copyright infringement cases. It’s working. It motivates settlements between the parties, and most claims don’t proceed to the hearing. The CASE Act would do the same in the U.S.

Businesses and their trade associations that object to the establishment of a small-value copyright tribunal fear that their business model of ripping off visual creators won’t be viable anymore. These organizations oppose the bill because they want to protect the member businesses and people who steal copyrighted works. The CASE Act doesn’t change copyright law, nor does it change our court system. The CASE Act would level the playing field by enabling authors and creators to enforce their copyrights without being required to hire an attorney and file a lawsuit in federal court that would cost more than the damages they’ve suffered. The only reason to oppose the CASE Act would be because the users do not want to pay the author/creator for the unauthorized use of their creative work.

If you’re worried about what Facebook did with your data, you should see what they do with your pictures.

Lisa Shaftel is a scenic artist, graphic artist and illustrator who has been working on creating a small-value copyright claims court system with the US Copyright Office for over 12 years. John P. Schmelzer is an illustrator and cartoonist.

Shaftel & Schmelzer is a consulting firm established in 2016 with a mission to promote and protect the economic and professional interests of visual artists through advocacy and education.

Hi resolution and low resolution versions of John P. Schmelzer’s cartoon are available for both print and online use.

Cruz Asks Zuckerberg the Section 230 Question

During Tuesday’s Joint Senate Committee hearing, as Mark Zuckerberg kept promising to take better control over content on Facebook, Senator Ted Cruz (R-TX) asked the CEO point blank if the site is a neutral platform or a publisher. Cruz acknowledged the company’s right to act as a publisher but also alluded to the fact that its liability protection under Section 230 of the Communications Decency Act is based on the fact that, as a host of user-generated content, Facebook is presumed to be a neutral platform.

It was a little surprising when Zuckerberg said he’s not familiar with the statute that universally shields his company from most forms of liability, but Section 230 of the CDA is just that. As explained in an older post, this statute broadly immunizes websites that host user-generated content against civil and criminal liabilities that may arise from users’ online conduct. It is in fact so universally applied as a defense that on Wednesday, FOSTA (Fight Online Sex Trafficking Act) was passed in order to clarify that Section 230 was not meant to shield site owners from liabilities stemming from sex-trafficking minors.

But the real bee in Cruz’s bonnet provoking his question is his general belief that social media platforms censor “conservative” content while favoring “liberal” content. I have no idea whether there’s any data to support that allegation, but I doubt the senator has the data himself, or he probably would have alluded to more than anecdotal evidence during the hearing.

Regardless, Cruz’s line of inquiry, without necessarily meaning to, gets to the heart of just how complicated Facebook’s current challenges may be—that is if they really intend to address them. It’s hard enough to define “liberal” and “conservative” these days, but that seems like child’s play compared to expecting Facebook to draw lines for appropriate censorship that a majority of users will agree are the right lines, independent of our political opinions.

I’m inclined to believe Zuckerberg when he says he wants Facebook to be an engine of social good, but for most organizations, striving for that goal usually requires making a decision about what is and is not good and then earning the support of those who agree and accepting the opprobrium of those who do not. This is a fundamental problem with being a so-called neutral platform for social good: there’s nothing neutral about our diverse opinions about goodness. Plus, it’s the nature of politics to cross lines of decorum and truth; and social media is a very cost-effective means of provoking emotional responses to messaging on just about any topic.

So, it’s easy for senators to allude rhetorically to a consensus about where the lines are for internal, corporate censorship, but I am skeptical that such a consensus actually exists for us Americans, let alone Facebook’s majority non-American users. And the hotter the issue, the more jagged the lines are going to be. Plus, social media algorithms respond to popularity; so an issue like guns, for instance, may naturally trend in opposition to a guy like Cruz if in fact most Americans favor regulation.

On that topic, if a friend takes and posts a photo of a billboard in Louisville that says “Kill the NRA,” will that be that someone’s (or some AI’s) definition of inciting violence? Probably. According to USA Today, when that billboard appeared in February, the NRA’s Facebook page posted a photo of it, saying the billboard was, “a wakeup call. They’re coming after us.”

From a First Amendment standpoint, neither the photos of the billboard nor the NRA’s response warrants censorship, and perhaps this would be true of Facebook policy as well. Or Facebook could make a decision that both the billboard photo and the NRA response cross some line in the violence category, although it seems very hard to completely remove the rhetoric of violence when the issue itself is weapons.

Throughout the hearing, Zuckerberg consistently reiterated plans to eventually deploy AI to help weed out toxic content; and although this may address the manpower challenge of moderation, it doesn’t help answer the more nuanced problem that we as a society do not have a common definition of what content would qualify as toxic. Does this mean we would cede that ethical calculus to the AI, which is eerie on a whole other level?

Predictably, the EFF published a post arguing that reliance on AI for content filtering will only result in over-censorship, and I have to say (rare though it is) that I tend to agree with the organization that it seems almost impossible to distinguish between, for instance, “hate speech” and a discussion about “hate speech.” Where the EFF and I part on this subject is that they’ve already concluded that Facebook has an obligation to free speech, while I view this current dust-up as a catalyst for, perhaps, finally addressing that unresolved assumption.

Still, it seems damn difficult to reconcile the fact that social media adds an especially volatile fuel to the political tinderbox while Zuckerberg sincerely hopes that Facebook will be an “engine of good.” Maybe Facebook will ultimately have to answer Cruz’s question by saying that it is a publisher, and that it has both a right and a responsibility to cultivate whatever community its leadership deems to be a “social good.”

Yes, this would obliterate the liability protections established by both the CDA and the DMCA, but maybe there are remedies other than a blanket shield for platforms that achieve the size, scope, and influence of a Facebook or a YouTube. After all, if Congress is actually trying to achieve anything in this investigation—if this isn’t just political theater—their questions imply a new paradigm for public/private cooperation in cyberspace. As described in a recent post, we have yet to attempt the unprecedented balancing act between the kind of public commons/private community that a Facebook truly is.