Category: Law & Policy

We Are Far From Skokie:  Free Speech in Cyberspace

“I hate Illinois Nazis.”  – Jake Blues, The Blues Brothers (1980)

I think my first introduction to the complexities of living in a nation with a constitutional right like the First Amendment was in the 7th Grade. Our teacher had the class watch and discuss the film Skokie (1981), a dramatization of the circumstances surrounding the 1977 legal case National Socialist Party of America v. Village of Skokie.  At that time, a group of about 30-50 National Socialist Party members wanted to march, dressed in Nazi-style uniforms, through an Illinois village that was home not only to a large Jewish population, but to quite a number of Holocaust survivors.  Concern was reasonably high among state officials that the community’s promise to rally 12,000 to 15,000 counter-demonstrators would lead to violence.

After the Illinois district, appellate, and supreme courts upheld injunctions barring the Nazi group from marching, the U.S. Supreme Court ultimately held that the state courts had not afforded the petitioners proper appellate review when restricting protected First Amendment rights. Thus, the Nazis would be allowed to march.  As I remember it, the main civics lessons we discussed were that, of course, protecting the rights of free speech and peaceable assembly requires protecting the rights of even the most offensive speakers; but also, that a municipality’s concern that violence may result from an otherwise lawful protest is not grounds for prior restraint of First Amendment exercise. The ACLU defended the rights of the National Socialists in Skokie, just as it represented white-nationalists’ right to protest in Charlottesville a week ago.

Although granted a permit, the Nazi group in 1977 chose not to march in Skokie and instead held a rally in downtown Chicago. Ever since then, and until quite recently, gatherings of these and other hate groups have generally been marginalized. Their speech has been protected, ignored, and mocked. Groups like the KKK would set up their flags, don their ridiculous sheets, spew garbage into megaphones that nobody would bother listening to; and then they’d pack up their impotent little circuses and go home. The “Illinois Nazis” were satirized in the 1980 comedy The Blues Brothers; and that was about as worked-up as we needed to get for the better part of the last four decades. But now, it seems we are far from Skokie.

In response to events in Charlottesville—though clearly Boston was a very different affair—it is possible that state and municipal lawmakers may try to re-legislate the meaning of “inciting violence” when it comes to issuing permits for groups claiming their intention to peaceably assemble. For instance, common sense might suggest that a large crowd showing up with firearms, or weapons of any kind, means that the proposed assembly is not “peaceable.” Thus, city officials should be allowed, with respect to the Constitution, to make reasonable decisions as to what risks they consider tolerable for their police officers to manage.

But that’s physical space. And there is probably a fair body of precedent law upon which city and state legislators can build, if they feel the need to strike a new balance between public safety and the First Amendment relative to a new and more dangerous climate.  But what about cyberspace?

If we set aside the hot-button topic of the president’s tacit endorsements of these groups, the most significant catalyst in amplifying previously-marginalized and fragmented hate-groups into large, gun-wielding mobs has got to be the internet. The internet connects people, right? Except the utopians and dreamers usually talk as though it only connects decent people—or even more naively, that the connection itself is the path toward newfound empathy for one another, which should moderate hatred and division. This can be true, but the opposite results are also plainly manifest.

It turns out the internet is a fertile breeding ground for hatred and division. Anyone can create a platform that connects people whose primary common interest may be hatred of other groups. And it’s not always as blatant as white nationalists hating Jews, people of color, homosexuals, etc. It may even be subdivisions among Jews, people of color, homosexuals, etc. hating on one another, which may be why our political process seems overly bogged down by tribal infighting along lines of identity rather than policies of inclusion—or at least tolerance. The internet seethes with conflicts of egocentrism; and I think it’s fair to say that the web is the ideal intersection for a bunch of misguided, chino-wearing, Tiki-torch-carrying college boys to find common cause with actual flag-waving Nazis trying to provoke a race war.

As was widely reported, events in Charlottesville led GoDaddy to finally boot the Nazi-themed site The Daily Stormer off its hosting servers. The site was then denied hosting by Google, kicked out of Cloudflare’s anonymizing service, refused hosting by other OSPs, and has now allegedly migrated to the dark web. No doubt, many people who were outraged by last weekend’s tragic events applauded these decisions to remove The Daily Stormer from the mainstream; but they were also followed up by notes of concern over the protection of free speech online. As the presumptive ACLU of the internet, the Electronic Frontier Foundation unsurprisingly took the position that speech must never be censored by these private platforms.  In a blog post, the EFF states…

“We at EFF defend the right of anyone to choose what speech they provide online; platforms have a First Amendment right to decide what speech does and does not appear on their platforms. That’s what laws like CDA 230 in the United States enable and protect. 

But we strongly believe that what GoDaddy, Google, and Cloudflare did here was dangerous. That’s because, even when the facts are the most vile, we must remain vigilant when platforms exercise these rights. Because Internet intermediaries, especially those with few competitors, control so much online speech, the consequences of their decisions have far-reaching impacts on speech around the world.”

Yes, the language itself is contradictory and equivocal (i.e. sites should have these rights but not exercise them), but there is no denying that the EFF is highlighting the unprecedented challenge we face with regard to the web and speech. On the one hand, private entities do not have the same constitutional obligations as the state; but this legal technicality does not reconcile the fact that a company the size of Google plays an outsized role in facilitating the means of all speech—from the vile to the profound—in the manner that speech is now conducted. Just like the ACLU defended the Nazis in Skokie—because the principle must be upheld if we are to protect other voices like civil rights leaders—the EFF argues the same rule applies in cyberspace. Allowing OSPs and edge providers to censor speech based on business decisions—and this could include government pressure—is potentially hazardous.

Conversely, these concerns contain a lot of overwrought hypocrisy in which the apparent speech defense masks—and even exacerbates—the larger problem. Because it is the combination of free-speech maximalism and “safe harbor” absolutism, with regard to internet policy, that has produced an oligopoly that now owns the primary conduits of speech itself.  That’s the real danger.  Or as my colleague, Mike Katell puts it …

“We have left the barn door open and allowed Silicon Valley to move the popular venues of expression from the community stage and the city street to their proprietary platforms, where they are guided not by constitutional or democratic principles but by terms-of-service strategically designed to maximize profits and offset risk.”

The internet industry, with the help of organizations like the EFF, has consistently swept a million sins (i.e. criminal conduct) under the rug of free speech—not as a matter of principle, but as a matter of revenue growth and competition for market-share. The major platforms manipulate speech all the time in the service of their business interests; and last week, it suddenly became bad for business to host The Daily Stormer. So what does this mean for speech?  Not much I think.

In a world in which private speech on public platforms has ballooned to trillions of interactions per day, the logic of slippery slopes toward censorship must be considered in context to this scale. If The Daily Stormer dies, speech lives. If sites or pages hosting terrorist propaganda are denied service, speech lives. If sites hosting copyright infringing content, selling counterfeit goods, facilitating trafficking, or any other criminal activity are shut down, speech lives. Just like in physical space.

This is to say nothing of the fact that the great, cosmic explosion of speech hasn’t really done democratic principles any favors. As a conveyance of knowledge (that magic ingredient meant to make people more compassionate), the internet also has the capacity to transform reality itself—even documented history—into a choose-your-own-adventure game. Then, because the internet connects people, some ten-thousand flat-earth, tinfoil-hat, conspiracy-theory whack-jobs are no longer dispersed innocuously around the country but will instead coalesce into a tribe that meets daily on TooStupidToBreathe.com. And the next thing we know, they’re a movement requesting a permit to rally in a city park.

As I’ve indicated many times, when the internet activists rush to defend speech in high-profile instances like The Daily Stormer, they consistently overlook a truth that we need to accept:  that laissez-faire internet policies on controlling content has produced—and will always produce—a society where bullies trample speech in ugly and even physically dangerous ways. This cognitive dissonance is reflected in Cloudflare’s wringing its hands over terminating The Daily Stormer account.  In a blog post on the matter, CEO Matthew Prince writes…

“Someone on our team asked after I announced we were going to terminate the Daily Stormer: “Is this the day the Internet dies?” He was half joking, but only half. He’s no fan of the Daily Stormer or sites like it. But he does realize the risks of a company like Cloudflare getting into content policing.”

Maybe they’re trying to answer the wrong question—an immature question. Because I think the answer is no, it’s not the day the “internet dies,” but maybe it’s the day our bullshit, utopian idea of the internet dies. And that’s not a bad thing. Because utopianism is the product of an immature assumption that bad people don’t exist, only bad systems do.  That’s why utopias are always one step away from dystopias. In this regard, not only do OSPs have a right to not facilitate hate, violence, or crime; but it is probably time for the internet industry to accept that taking such action is actually a responsibility for which they need not apologize.

In a broader context, I do not wholly reject the concerns raised by the EFF in this case; but as a matter of policy, I also believe we cannot effectively have this particular debate as though it were a Skokie-era issue. That is simply not the world we inhabit anymore. The internet’s unique capacity to catalyze anti-democratic views, even violent and hate-filled ones that would destroy the First Amendment itself, should factor into the equation when discussing the service providers’ role in protecting speech.

Enough With the Legal Theories About Piracy

When it comes to enterprise-scale piracy, it would be great if those who advocate its existence would just make simple declarations like, “I want free media and don’t care how I get it.”  Sure, that would be a childish thing to say, but still less offensive than all the pretense to rationale that accompanies piracy—the absurd legal arguments, the mystical economic analyses, and above all, the lionization of pirate site operators as though they are social revolutionaries in a grand culture war.  (Never mind that some pirate sites are verticals for larger criminal enterprises engaged in some pretty horrible activities.)  

Of course, an entrenched attitude is not easily pried from the mind once it takes hold; instead, it usually becomes fossilized under layers of facile talking points posing as ideas.  Petty aphorisms like sharing isn’t stealing, for instance, help paper over an otherwise complex issue and excuse ignorance of the broader implications of a phenomenon like media piracy. In this regard, the public is constantly fed variations on the theme that operating a website, which is purposely designed to exchange infringing material and, by virtue of that exchange, earns its owners millions of dollars is somehow not criminal.

And that brings us to the complaint by the United States against alleged Kickass Torrents (KAT) site founder Artem Vaulin and his unnamed co-conspirators.  The complaint was filed in an Illinois District Court on July 8, 2016 and Vaulin, a Ukranian, was arrested while traveling through Poland that same month.  Insisting upon his innocence, Vaulin chose to remain in Poland’s Bialoleka prison—it sounds pretty awful from this account on The Verge—for nearly a year, rather than prove his innocence at trial in the United States. (I’d personally try to avoid the Polish prison even if I were guilty, but to each his own.)  Vaulin is now out on $108,000 bail, fighting extradition, and is represented by Silicon Valley attorney Ira Rothken, who also represents Kim Dotcom.

As reported last Friday, Vaulin filed a motion to dismiss along with a litany of arguments contending that the copyright infringement counts against him are not properly criminal indictments. All of these arguments were rejected by the Illinois court.  The motion to dismiss was denied under the fugitive disentitlement doctrine, which basically says that if an individual refuses to appear in a U.S. court (i.e. makes himself a fugitive), then he may not avail himself of court protections like motions to dismiss.

Vaulin is charged with four criminal counts comprising three counts of criminal copyright infringement (§506 of Title 17) and one count of money laundering.  The 50-page complaint, filed by the investigating Special Agent for the Department of Homeland Security, cites compelling evidence alleging that Vaulin was the founder of the KAT network; that he and his associates purposely designed KAT with the goal of hosting torrents containing infringing material; that they knew their conduct was illegal; that they provided incentive for users to engage in infringement; that illegal activity took place within the United States; that the KAT network generated about $17 million/year in revenue from traffic to infringing content; and that the owners sought to hide funds through dummy corporations in bank accounts set up in Latvia and Estonia.  Here’s just one highlight from the complaint that makes several points rather simply:

“March 29, 2011, when an individual reached out to Vaulin…with the subject line “new movies.” The individual asked about the movies Kung Fu Panda and The Hangover, remarking that people were asking for those movies. Vaulin replied that same day, noting that Kung Fu Panda was added six hours ago and that The Hangover was just added.”

As I say, I get the self-interested reasons why people rationalize what these site operators are doing; but when the indictment is handed down, let’s not pretend we’re straying into some ambiguous area of criminal law.  Piracy advocates and copyright antagonists are very fond of the refrain that the owners of a site cannot be held criminally liable for the activities of its users.  But there are several examples like the quote above indicating that the KAT site operators knew exactly what they were doing, and it’s frankly stupid to pretend otherwise.

Nevertheless, copyright antagonists like Mike Masnick at Techdirt place a lot of emphasis in this case on the supposed ambiguity of of secondary liability, which is a common law principle applied in civil copyright cases but for which there is no federal statute proscribing the conduct. The theory being applied is that if Vaulin and his colleagues merely own a platform on which infringement takes place, they themselves cannot be criminally liable.

Indeed this secondary liability issue is one of the arguments presented by Vaulin’s attorney; and it is true that there is no statute in Tile 17 (the Copyright Law), which explicitly states that aiding and abetting copyright infringement is a crime. In fact, Rothken asserts that because the 1909 Copyright Act explicitly criminalized secondary liability but the 1976 Act does not, this implies that Congress does not consider secondary liability to be criminal. Yeah…no.

In the 1909 Copyright Act, each criminal statute included its own aiding and abetting provision; but by the time the 1976 Act was written, the federal criminal code had been completely overhauled and included a general provision for aiding an abetting of all criminal violations against the United States.  Thus, the court rejected Rothken’s reasoning, stating that a separate aiding and abetting provision in the 1976 Copyright Law would have been redundant.  Title 18 §2 states:  (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. 

Thus, the Illinois court has held that if one is alleged to have helped people commit criminal copyright infringement, induced them to do so, rewarded them for doing so, and/or profited from their doing so, then one is properly charged with criminal copyright infringement.  And if that sounds like common sense, it’s because it is common sense.  And I will add that if this story were about trafficking in some less popular form of illegal activity—like snuff porn, or harmful counterfeit goods—I highly doubt that many average defenders of pirate sites would hope to see the law applied any differently.

I will not enumerate each of Vaulin’s defenses the court rejected, lest this post become unreasonably long and of interest to about ten law nerds.  But suffice to say that the defenses sound to this law nerd like a lot of grasping at straws. My personal favorite, though, is the assertion that torrents are not protected by the copyright law, and it is therefore not possible to infringe torrents.  That’s kind of like getting caught with a truckload of bootlegs and declaring that “audio tape isn’t illegal.”  As the court patiently explained, the torrents are the means to infringement, so it was a no-go on the twisted logic being applied there.

In his somewhat hand-wringing rebuttal to the opinions of the court, Masnick writes, “No one denies that there were people in the US who used the platform for infringement. But just because people are using the platform for infringement, doesn’t make it criminal infringement. For something to be criminal copyright infringement it has to reach a much higher bar than just ‘people downloaded stuff.’”

He’s absolutely right.  And a plain, common-sense reading of the details in the complaint should make clear to any reasonable person that the government has met the burden to bring a criminal indictment in this case. The 2016 DOJ guidelines regarding consideration of criminal charges in IP cases recommend weighing several factors that define best practices independent of the the type of IP involved.  The recommendations consider factors such as deterrence, potential economic harm, public safety, recidivism of the actors, and the efficacy of civil proceedings in lieu of criminal charges.  Suffice to say, an enterprise operating at the scale of Kickass Torrents easily checks off several boxes under the guidelines.

I mention this broader view of IP enforcement because, as indicated above, it is a dangerous precedent—no matter how popular pirating movies and music may be—to wish that the law worked differently than it does, especially in the digital age.  We live in a networked world in which transnational IP infringement can mean tainted food or drugs or other unreliable products getting into the supply chain. Cyberspace is still a relatively new frontier for crime; and some pretty nasty characters have sought to argue the same kind of defenses being used in this case in order to distance themselves from the harm they cause simply because their presence is virtual.  So, to any parents who, as cited in the complaint, were asking for Kung Fu Panda on KAT, I’d say be very careful what you wish for.

Copyright Small Claims Proposals Address a Real Need

Photo source by Vaobullan

It’s far easier to disagree with strident antagonists of copyright than it is to disagree with collegial defenders of the law.  Attorney Leslie Burns has been a supporter of this blog since its earliest days, and I’ve always appreciated her readership and enthusiasm on social media; but I have to respectfully disagree with a recent blog of hers criticizing proposals to create a small claims system for copyright enforcement.  Calling the proposal a “Bad Solution to a Non-Problem,” I worry that her post may cause confusion among the very class of creators a small claim system would be designed to serve.

A Non-Problem?

As stated a few times, the works of visual artists are probably the most frequently infringed on the internet. It’s just too easy to grab images and share them on social media platforms relative to the general understanding of copyright law (see Khloe Kardashian’s mistake).  For many of copyright’s detractors, the scope of visual-works infringement alone is reason to just let copyright itself fade into oblivion as a concept.

For the authors of these visual works, however, it seems they have a mixed set of experiences and feelings regarding unlicensed uses of their images.  They end up having no choice but to let a lot of casual appropriations go but often want to draw lines where infringements are particularly egregious and/or when they are made by for-profit entities. For instance, the story about skateboard photographer Max Dubler having his work used for marketing purposes by a company (for which he only wanted $25) is typical of the kind of unenforceable infringement many independent creators face.

I believe it remains a rule of thumb that even a small-market attorney will tell you that a claim—in any area of law—that is under $10,000 is barely worth the cost of filing the first papers in a lawsuit. And since we’re talking about a class of creators whose median income for their creative work hovers around $30,000/year, it’s reasonable to assume that there are thousands of creators in the U.S. who could use a small claims process to enforce their copyrights.

A lot of photographers just like Dubler do not register their works with the USCO as standard practice because the time and cost to register perhaps hundreds of images exceeds their available resources.  Failure to timely register will usually void an author’s ability to engage in litigation for infringement, but the small claims proposal (as it stands) actually gives an author more flexibility by enabling him/her to register the allegedly infringed work with the USCO as part of the complaint process.  This removes a significant cost barrier to enforcement for a whole class of independent and start-up creators, which brings us to the matter of small claims as a solution.

A Bad Solution?

My friend (and I hope she stays my friend) Leslie Burns cites statistical evidence identifying the number of copyright litigations that do not come anywhere near going to trial but which instead settle for awards well below statutory damages.  She’s right, of course, that this happens all the time; in fact, most litigations in all manner of claims settle well before trial proceedings.  But it is incorrect to read this general narrative as having created a de-facto small claims copyright process as a byproduct of traditional litigation.  Clearly, the statistical outcomes in litigation do not represent the class of authors who cannot ever avail themselves of litigation in the first place—which is what small claims is all about.

Burns states that a small claims process will limit the rights and remedies currently available to copyright holders; and while this initially caught my attention,  I don’t see how it can be quite accurate.  If we look for instance at H.R. 6496, the proposal co-sponsored by Rep. Judy Chu (D-CA) and Rep. Lamar Smith (R-TX), the bill explicitly states that the small claims option is voluntary and that by electing to avail themselves of these proceedings, neither claimants nor respondents are precluded from pursuing traditional enforcement through litigation—even after a determination by the small claims Board.  The important highlight is that the small claim option is an additional remedy and not a replacement of any process currently available.

In essence, the small claim proposal (as per H.R. 6496) would create a new Board within the Copyright Office, comprising three experienced copyright attorneys and at least one of these with “substantial experience in the field of alternative dispute resolution.”  The Board would have the authority to adjudicate claims and defenses for which statutory damages for infringement of “timely registered works” may not exceed $15,000, or $7,500 for infringement of “works not timely registered.”  Based on my anecdotal experience, these numbers, which are fractions of the statutory damages in federal lawsuits, sound about right.

For instance, a typical letter to an infringer of a photograph will demand somewhere in the neighborhood of $1,500-$5,000 to settle without any legal proceedings. Hence, if a small rights holder can afford to back that up with an enforceable remedy ranging between $7,500 and $15,000, that should be sufficient to put some teeth in a non-procedural demand for settlement.   To Burns’s overall point, a lot of copyright claims are pretty straightforward; the infringer knows the unauthorized use is indefensible, and settlements are made rather than lose a costly litigation.  The small claims option does not remove any author’s ability to file federal litigation proceedings; it simply provides a viable alternative for rights holders, or specific cases, for which litigation is financial a non-starter.

As proposed in the Chu/Smith bill, the decision of the Board may be enforced by petition to the US District Court for the District of Columbia, which may prove to be more effective than typical small claims court.  I actually won a small claim years ago in New York City in a default judgment, then learned that in order to get the company to pay, I had to file a petition with the Sheriffs Department.  Guess how that worked out.

Restoring Faith in Copyright

Enforcement of the Board’s judgments is just one of a handful of questions yet to be addressed in a legislative process that began about a decade ago.  And while, we can all agree that the devil will lurk in the details, I believe the underlying principles of small claims for copyright are sound.  The thinking reflects an understanding of the digital age that could actually help restore some faith in copyright itself for thousands (or millions) of new creators still trying to understand where the opportunities and threats are in this dynamic market.  (This post about designers selling merchandise addresses this point.)

How many times have I argued that copyright is for everyone?  And it is. On the books anyway.  But in practical terms, this isn’t quite accurate.  Time and again, from individual creators and from copyright critics, we hear the theme repeated that copyright is unenforceable for all creators except big corporations and millionaires.  And apropos one point Burns is making, this over-used exaggeration does not paint an accurate reflection of enforcement; there is indeed a segment of creative professionals who can, and do, avail themselves of existing legal remedies.

But from my own observations, I suspect Burns may be overlooking the smaller indies and new entrants to this volatile market who could not remotely afford to walk into her office today.  Many of these creators are the same people who shrug at the whole subject of copyright because they are powerless in a world where infringement is so common. And exploiting that ambivalence is exactly what the big Silicon Valley corporations do very well.