Category: Law & Policy

Turkewitz: Disruption, Fear and Slippery Slopes: Baby Steps in Building a Better Internet

(republished by permission)

The biggest story of 2017? To my mind, there is no contest — the broad emergence of an awareness that the irresponsibility masquerading as Internet freedom represented a threat to global societies and to cherished aspects of our humanity, and that a course correction was badly needed. While recognition of the fact that rewarding lack of accountability would likely incentivize anti-social and illegal conduct took longer than it should have, such an awareness came to fruition throughout 2017. Whether motivated by concerns about sex trafficking or the prevalence of other internet-enabled crimes, fake news, foreign government interference in elections, monopoly or monopsony power, or the perceived political or cultural biases of platforms, the question at the end of 2017 wasn’t whether the current legal framework for platform responsibility should be amended, but how. It became clear that the twin pillars upholding the current lack of accountability in the internet ecosystem — Section 230 of the Communications Decency Act and Section 512 of the DMCA, each of which was adopted at the dawn of the commercial internet, would need to be reexamined and a new framework established. Ideas ranged from minor course corrections such as amending Section 230 to address issues related to sex trafficking (SESTA) and changes to the DMCA to require greater use of technical tools to prevent infringement going beyond mere takedown, to proposals to broadly regulate the operation of platforms given perceived monopoly power over the last mile (access to, and influence over, users). In short, there appeared to be universal acknowledgement that the status quo wasn’t working, and some — as yet unspecified — change was needed.

But apparently, if not unsurprisingly, this acknowledgement that the status quo needs to be disrupted isn’t quite shared by everyone. In an end of the year post by EFF’s Jeremy Malcom entitled “Time to Rethink Copyright Safe Harbors? 2017 in Review,” Malcolm writes: “They [safe harbors such as the provisions of Section 512 of the DMCA] are as vital to the Internet today as they have ever been.” His argument is summed up neatly here: “Without that legal protection, it would be impossible for such platforms to operate as they do today.” Well, yeah. That’s the very point of effecting change — to modify how platforms operate. Malcom apparently looks at the internet and sees the flowering of culture and the emancipation of humanity. I want his internet. And I am prepared to work to achieve it rather than pretending it is our reality, and without employing absurd reductionism as if we were holding a referendum on whether technological progress and the internet are good or bad things. The internet is a remarkable tool for expanding communications and access to information in a truly transformational manner. The question is: can we be better stewards, and how can we most fully achieve its potential for enhancing the welfare of societies. We should not let the perfect be the enemy of the good, but nor should we let the good stand in the way of the better.

It would also be nice, but alas probably a bridge too far, to engage in dialogue about solutions without fear-mongering and labeling. In order for Malcolm’s narrative to hold, he has to take the individual creator out of the equation and to pretend that somehow the cultural marketplace is of no concern to actual creators — only to the ominous dark media lords, the dreaded “Big Content.” The ones who brought you SOPA. You know who I am talking about. The Man. Aiming only to defend a failing and exploitative business model. Malcolm works hard to reinforce this false picture, repeatedly referring to “copyright industry lobbyists,” “industry representatives,” “Big Content,” and of course, EFF’s favorite…”monopoly rents.” And suggesting that these industry trolls working in secret to destroy the internet would have gone unnoticed but for EFF’s vigilance. All of which leads to his central lie:

“But Big Content isn’t satisfied with such laws, because they place responsibility on copyright holders to request the removal of infringing content, and because the availability of free, user-uploaded content supposedly depresses the value of mainstream, paid entertainment. The content industry thinks a filtered, regulated Internet that suppresses user-uploaded content will deliver them higher revenues, and they describe the absence of these imaginary monopoly rents as a “value gap.”

There is no part of this that reflects the world we actually inhabit.

1-Large media companies (whatever that means) are not alone in calling for reform of safe harbors. A quick review of comments and submissions in the EU and US will reveal a creative community unified in its support for reform: businesses and labor, major studios and indies, individual creators and trade associations. And our problem is not that safe harbors place responsibility on copyright owners to request removal, but rather that they fail to place corresponding obligations on platforms to take meaningful action when they know, or should know, of infringing materials. Existing safe harbors in the US, EU and elsewhere create incentives for platforms to avoid knowledge of infringement, and then only obligate platforms to take remedial action which fails to provide an actual remedy. We need to reset the incentives to breathe life into the legislative intent behind existing legislation to promote cooperation in addressing infringement and expanding the digital marketplace.

2-The notion that the creative community is worried about competition to “mainstream, paid entertainment” from free user-uploaded content is truly outrageous. The creative community has no issue with creators determining that they want to offer their works for free. The problem is when users decide to upload the works of others without the creator’s permission. And yes, forcing creators to directly compete against unauthorized versions of their own works is both prejudicial and fundamentally unfair. That doesn’t require a lot of imagination, just a basic sense of fairness and justice.

3-Malcom asserts that there are two alternatives: his free and open internet, or the copyright industries’ filtered, regulated internet that suppresses freedom of expression and delivers monopoly rents. Reductionism at its very worst. The status quo, or some Orwellian nightmare of control. But of course, this is pure fantasy. The core issues related to safe harbors are not about regulation, but rather address the development of a technology-neutral way to achieve the kind of responsibility we would expect in the offline environment. Not more, and not less. To eliminate incentives for recklessness and willful blindness. And yes, to change the status quo. That’s what gets Malcom — he clings to the world he knows, and lives on a slippery slope. But when we resist doing what’s right out of fear of some future unknown, then something is fundamentally wrong.

An article published just yesterday neatly captured our reality: “The DMCA and CDA protections enabled a few Silicon Valley giants to become sinfully rich, with a concentration of power not seen since the 1920s. The digital revolution could have succeeded without the ‘disruption’ and their disregard for copyright and content creators.”

I have a modest proposal for 2018: let’s abandon evangelical fervor in favor of policy-making grounded in the observable universe. Let’s acknowledge that lack of accountability will produce unaccountable actions. And let’s be prepared to challenge the status quo to produce the kind of outcomes that enhance societal welfare. A recent article in Ars Technica entitled “How do you change the most important law in Internet history? Carefully.” While the underlying notion that Section 230 is “the most important law in Internet history” represents, as Devlin Hartline has noted, a fetishization of Section 230, I nevertheless agree with the proposition that we must exercise care. But Ars, unlike EFF, doesn’t ask whether the present framework should be amended, only how.

Image by Aenota

Google Says Humbug to Child Sex-Trafficking Victims

Just in time for Christmas, it seems Google is up to its Grinchy tricks in the House of Representatives, allegedly the big gun behind an effort to undermine the anti-child-sex-trafficking bill FOSTA, which is the House version of the Senate’s SESTA.  Because these bills propose to amend the liability shield in Section 230 of the Communications Decency Act (1996), the major tech firms, along with organizations like the Electronic Frontier Foundation, have worked to clobber the proposals, lobbying Members of Congress and promoting anti-SESTA campaigns to the public.

Shortly after representatives of Facebook, Google, and Twitter endured some uncomfortable grilling on the subject of Russian disinformation campaigns, the Internet Association endorsed SESTA in early November.  But according to a new editorial in The Hill by Mary Mazzio, it looks like Big Tech lobbyists are orchestrating a bill swap in the House, proposing an approach that avoids amending Section 230. Mazzio is the writer/director of the trafficking documentary film I Am Jane Doe, which apparently inspired legislative action on this issue in the first place.  She states in her article…

“This full replacement of FOSTA was done under cover of darkness, quickly and quietly, with no input on the specific language from the NGO community, victims or survivors. The bill, which now amends the Mann Act, fails to address the Section 230 problem identified in the 1st Circuit, and worse, strips away civil remedies from survivors as well as states attorneys general. The language also appears to permanently foreclose all private rights of action which victims currently have under the federal trafficking statute.”

Her reference to the 1st Circuit is to the case Doe v. Backpage in which the court read the Section 230 statute broadly enough to hold that Backpage’s owners were entirely shielded from civil litigation pursued by several trafficking victims who blamed the site for facilitating their victimization by sex-traffickers. In response to a still-developing body of evidence implicating Backpage’s active role in the trafficking of minors, Congress has sought to at least clarify that the “safe harbor” provision of Section 230 is not meant to shield online services from liability for this type of conduct.

The internet industry, with substantial help from the EFF, has tried to characterize these bills as harmful to free speech and innovation (again) and have promoted a limited body of scholarship claiming that the bills will do more harm than good for victims.  I have written several responses to the anti-SESTA campaign, but Ms. Mazzio sums it up in her description of the alleged new proposal now sitting in the House Judiciary Committee.  “The net result is a new bill which genuflects to the altar of business practices and profitability where children and trafficking victims are collateral damage.”

Collateral damage is exactly right. It’s a concept that musicians and other artists know all too well—not that their losses are comparable to what trafficking victims endure, only that the policy agenda is very familiar.   But this is the price Google & Friends say must be paid in the interest of “internet freedom,” which is actually a euphemism for their liability shields.

Big Tech’s absolutism on Section 230 is this industry’s version of the NRA saying that “spree killings are the price we pay for freedom.”  In fact, if we put it that bluntly—children being sold to be systematically raped is the price we pay for internet freedom—it seems just a little defeatist and lacking in moral authority, least of all in the year when Americans have declared they’re turning the tables on sexual harassment. It seems to me if the Democrats in Congress felt an urgency to shed both Conyers and Franken in the current climate, that it is probably not too much to ask that they give serious attention to the FOSTA proposal, keeping only the victims the foreground, and let Google’s interests be damned.

It’s hard to say that these bills will categorically help trafficking victims; they are a limited remedy at best, given the hideous nature of the crime.  But I’d like to believe we can all agree that the financial interests of the world’s largest company are less important than an effort to mitigate such egregious harm being done to kids. It is rather astounding to see that netizens (whoever the hell they are) are so self-righteous about the Net Neutrality thing that they’ll justify racist attacks and death threats aimed at Ajit Pai.  But some of these same good people are willing to allow children to be collateral damage just because Google & Co. say “free speech.”  If that’s really who we are, somebody show me how to actually break the internet because I’m all for it.

Photo by alexkich

Caucus Vote of Interest to Artists This Week

On Wednesday this week, the Democratic Caucus will vote to choose the new ranking member of the House Judiciary Committee in order to fill the vacancy left by the departure of Rep. Conyers.  For those who don’t know, the House Judiciary Committee is where copyright law is made, specifically the IP subcommittee.  The senior Member, currently holding the ranking position is Rep. Jerold Nadler of New York, and it is expected that he will be selected to remain in the seat.  But also vying for the ranking position is Rep. Zoe Lofgren of Silicon Valley, CA.

Nadler is generally supportive of copyright and the interests of creators—or at least he has a record of considering the interests of multiple stakeholders.  By contrast, Lofgren has a record of open hostility toward copyright law—somewhere between a closed door and an incoherent perspective that suggests she will blindly represent Google’s interests without regard for the significance of copyright law to American prosperity.

It was Lofgren who, in 2012 lobbed a personal attack on the USCO and then-Register Pallante for a statement the Register made that was unassailably accurate.  Pallante had said that “Copyright is for the artist first and the nation second,” a mathematically irrefutable—to say nothing of innocuous—statement that both Lofgren and Techdirt’s Mike Masnick seized upon in a sternly literal interpretation of the Constitution’s IP clause that reminds one more of Justice Gorsuch than anything a Democrat would say.

I wrote a fairly detailed post making a case for why Pallante’s statement was both pragmatically and philosophically defensible, but the reason I mention Lofgren’s attack here is to impress upon artists and creators that if she were to attain the ranking member’s seat, we can probably expect her to advance a view of copyright law that sounds an awful lot like Google’s playbook.

There is no action to be taken.  The Democratic Caucus will do what it does.  On issues other than copyright, it seems the party would be well-served by either representative filling Conyers’s vacated seat—though it seems Nadler is the more experienced legislator. But for artists and creators who’ve been slugging it out with Google for a very long time, it is worth knowing that Lofgren would almost certainly make the fight considerably harder.