Category: Law & Policy

EFF Petition Language Used in Fake Emails to the FCC

Photo by Elnur

It’s depressing how often one reads news that makes the United States seem as though we’re reliving the 19th century rather than an enlightened 21st.  With that comment, you might think I’m referring to the current administration (and I certainly could be), but at the moment, I refer to Americans across the political spectrum who seem willing to return to the political tactics of Tammany Hall, albeit in digital form.

On May 31, the National Legal and Policy Center, a D.C. watchdog group, reported that an “initial forensic analysis” of the 2.5 million comments submitted to the FCC on Net Neutrality found that over 465,000 of these were fake. It further states that over 100,000 of these comments used language from the Electronic Frontier Foundation’s “Dear FCC” petitioning tool in support of “Net Neutrality.”  Although the NLPC did not accuse the EFF of processing these false emails, the organization was quick to defend itself as though it had been so accused.  It’s June 1 response states …

“NLPC’s report is false. Not one name, email address, or email domain cited in the report matches to any of the comments that came through EFF’s comment tool.”

Then, missing the point and seizing the moment, the statement proposes …

“Throughout the FCC’s comment process, we’ve seen malicious actors attempt to discredit the process by generating obviously fake comments. Their hope is that they can drown out the voices of the overwhelming majority of Americans who support net neutrality.” 

I am in no way qualified to assert that the EFF had any direct hand in the fake emails, but somebody spammed the FCC; and I have no problem saying that the EFF’s rebuttal is preposterous.  If there is a manipulator trying to sway public opinion “away from Net Neutrality,” it would be easier and more effective to SPAM the FCC with comments in support of that agenda than it would be to plant false data with the hope that its discovery will make the EFF look bad as a tangential way to tip the scale on the neutrality debate.  That’s a convoluted process expecting a lot of the public that, frankly, has bigger fish to fry these days.

It is far more likely that the false emails in this case have been generated by a manipulator who is on the same side as the EFF on the neutrality issue, and the EFF’s failure to denounce the practice is both telling and typical of our times.  In short, it seems that people across the political spectrum have forgotten that American democracy demands that the means are more important than the ends—a discipline that requires vigilance and which may be in regression thanks largely to social media.

Even people who are thoughtful about big issues will naturally respond to memes and headlines with short claims like “X million Americans support Net Neutrality.”  We accept these statements as fact and help to spread them, lending them the credibility of our endorsement. That’s politics via Facebook and Twitter, and whichever side can claim the larger number stands a decent chance of winning the debate regardless of merit.  During the SOPA/PIPA dustup, the EFF and similar organizations crowed loud and long about the apparent overwhelming groundswell of support to defeat those bills. But nobody stopped to wonder how many ineligible voices—kids, trolls, foreign citizens, bots—were represented in those numbers.

Now that there is a full-scale congressional investigation into Russian meddling in the U.S. election and we’re doing a lot of soul-searching into the nature of populism, people are beginning to at least consider the insidious role data manipulation can play via this internet thing that groups like the EFF like to call “the greatest tool for democracy ever invented.”  In this regard, I encourage readers to follow the ongoing investigation by British journalist Carole Cadwaldr into the role of data manipulation in national elections.

The EFF defends the internet writ large as the essential tool for speech and democratic principles, declares that FCC Chairman Pai’s agenda threatens all of that, but then downplays the significance that at least 20% of the emails associated with this very campaign appear to be fake. We’ve seen this brand of politics before from similar groups.

As reported in April of 2016, Fight for the Future’s brag about the 100,000 citizens who responded to the USCO’s request for comments about the DMCA appeared to be at least partly fake based on an experiment conducted by David Lowery and his colleagues. In fact, it appears that the Canadian company Tucows, which is implicated in that same FFTF campaign was also employed in John Oliver’s so-called grassroots campaign “Go FCC Yourself,” which processed such thoughtful comments as “Fuck you Ajit Pai for what you’re are trying to do and I hope you die a horrible painful death with no remembrance to your name …” (I do love how the internet fosters the big ideas.)

I have already proposed in a few recent posts that Net Neutrality is so complex an issue that I doubt many actual citizens who sign these petitions understand what they’re signing anyway.  Add to this a substantial number of fake signatories and geniuses like the one cited above, and I’m at a loss to discern how this politics of cybernetic ballot stuffing is any better than the Breitbart network of gobbledygook posing as news.  I’ll keep an open mind about the FCC and neutrality and watch what happens;  but so far, the only player in this whole story who has actually given me reason to think about the issue, rather than a lame talking point, is Ajit Pai.

ReDigi Is Not About Consumer Rights

ReDigi is a business venture whose revenue model is based on brokering online transactions between sellers and buyers of “used” music files.  A prospective seller has a collection of legally-purchased digital files of songs purchased from iTunes that he will never access again, so he places these for sale via ReDigi, which connects him with a buyer. The buyer purchases the file(s) for less than the current retail price, and ReDigi takes a cut. According to their testimony, ReDigi’s software removes the file from the seller’s computer before copying it to the buyer’s computer.

It is understandable that consumers might look at this story on the surface and think it seems like a great idea; but ReDigi is in fact a classic example of yet another digital-market business venture trying very hard to get a court to conclude that the copyright law says something other than what it says.  In addition to the company’s multiple statutory conflicts, the business model itself would have a devastating effect on the primary market by creating a parallel market that is “secondary” in price only.  Moreover, despite its claims, ReDigi has no way of controlling whether or not its users would store files in offline devices while selling copies of the same files through the service.  And it goes without saying that the implications of this proposal would quickly affect digital books, movies, software, etc.

ReDigi has tried to argue its legality based on two limitations to copyright:  fair use (§107) and first sale (§109).   In March of 2013, the Court for the Southern District of New York soundly rejected all of ReDigi’s affirmative defenses after Capitol Records sued the company for infringement of the reproduction right (§106(1)), the distribution right (§106(3)), and the rights of performance and display (§106(4) & §106(5)).  ReDigi has appealed; amicus briefs have been filed; and a hearing at the Second Circuit Court is imminent.  Although the fair use defense in this case is infuriatingly funny, I think the defense argued by ReDigi that is most-widely reported, and which would gain the attention of most consumers, is the assertion that the business is covered by first sale doctrine.

First Sale is a Tangible Peg That Doesn’t Fit Into Intangible Holes

(Photo source photo by jgroup)

Like fair use, the principle of first sale has a common law lineage and was codified into the federal copyright law with the 1976 Copyright Act.  The seminal case involved a 1904 novel called The Castaway, written by Hallie Erminie, who was highly controversial for her pro-Southern views on race and the Civil War.  Publisher Bobbs-Merrill had set the retail price for this book at one dollar and notified retailers that any reduction of that price would be deemed an “infringement of copyright.”  When the R.H. Macy company sold copies at 89 cents each, the publisher sued; and in 1908, the Supreme Court unanimously held that Bobbs-Merrill had erred in its attempt to control the price via copyright after having sold the books wholesale to Macy.  The opinion contains the following quote:

“It is not denied that one who has sold a copyrighted article, without restriction, has parted with all right to control the sale of it. The purchaser of a book, once sold by authority of the owner of the copyright, may sell it again, although he could not publish a new edition of it.”

Bobbs-Merrill v Strauss is the case law precedent for the federal statute which today allows you to legally dispose of your physical copies of books, CDs, albums, and DVDs in any way you want—from reselling them to gifting them to making sculptural works of the materials and copyrighting those sculptures if you are so inclined.  The rights holders have no interest in the paper, plastic, and vinyl, even if these physical objects might later obtain intrinsic value far beyond their original purchase prices.  Copyright protects the intangible, or as the same court opinion stated …

“The copyright is an exclusive right to the multiplication of the copies, for the benefit of the author or his assigns, disconnected from the plate, or any other physical existence.  It is an incorporeal right to print and publish …” 

This, by the way, is why that pro-piracy assertion that says, “copying isn’t theft because nothing physical has been taken” is absolute gibberish. Copyright grants exclusive rights to the author, and it is the rights which are stolen via piracy.  And on the subject of the rights ReDigi is infringing, it has two major problems with its defense under the first sale doctrine.

The first problem is that courts frequently take a dim view of corporations that attempt to “stand in the shoes” of their customers. In other words, even if first sale doctrine could ever properly apply for you and me in the digital market (and that’s a big if), that does not give a business like ReDigi the right to commit mass infringements in order to facilitate, and profit from, our individual exercise of that right.  This pretense that the for-profit business is acting on behalf of consumers is SOP for many contemporary ventures; and it’s usually the way the story is reported in the press because the actual legal issues are less sexy. But ReDigi really isn’t about our rights as consumers, it’s an attempted end-run around copyright to make millions on the backs of creators—again.

The second problem for ReDigi’s claim—and indeed with applying first sale in a digital market in general—is that the statutes in §109 only provide a narrow exception to the right of distribution (§106(3)) and not to the right of reproduction (§106(1)). You can sell your copy of Toni Morrison’s The Bluest Eye, but you may not make copies of the book. Because ReDigi cannot function without making copies—and the courts have held since Napster that this form of copying infringes the reproduction right—its attempt to assert a first sale defense to the restriction against reproduction is asking the courts to read something other than what the statute clearly says. In fact, ReDigi is seeking such a dramatic expansion of the law that it not only wants to “stand in the shoes” of the public, but it wants to claim a right the public doesn’t even have.

Either Digital is Different or It Isn’t

What I find amusing about stories like this one is that the tech-utopian, anti-copyright crowd loves to accuse copyright advocates of clinging to buggy-whip paradigms in a automobile world.  Yet when there is a potentially profitable outcome, these same pundits are happy to support “innovators” who whack cars with buggy whips all the time.  Copyrighted works that are fixed in physical objects are fundamentally different from works fixed as digital files, and contemporary copyright law must recognize this difference.  To be blunt, the intangible digital file obliterates the whole idea of a secondary market.

There’s no such thing as a “used” digital copy, which is more properly called a clone, because it is identical in every way to the original file and not subject to the degradation—or for that matter, the appreciation—associated with creative works that are fixed in physical objects like books, albums, etc. Nobody will ever enter a rare bookshop and sell her “first edition” ones and zeroes that represent the poems of Dylan Thomas. No father will pass along his digital file of Dark Side of the Moon to his son and feel the gift imbued with the same meaning as a vinyl album that has been lovingly preserved.

Both intrinsic and sentimental value is lost through digital, with works now “fixed” as intangibly as the copyrights that are supposed to protect them. This is why it is more essential than ever to understand what copyright protects:  because authors can no longer rely on the natural barriers to infringement created by physical objects.

What we consumers get in lieu of physical treasures—for better or worse—are more flexible ways to experience more works, and at very low prices. In fact, the idea that I can legally stream a large library of musical works on demand for about $9/month suggests that ReDigi’s proposal is kind of a buggy-whip concept itself—seeking to trade stored files in a world gone streaming. Ultimately, ReDigi does not provide the market with anything that justifies the scope of revision it seeks, in the service of its own short-term gain, to the copyright law.

The concept that is usually lost in these conversations, as people focus on the immediate ends they want to achieve, is that copyright’s exceptions must be weighed against its original purpose. And this has always been true as the law confronts each new technological change.  As the first sale principle was articulated a century and half ago in a world very much composed of physical objects, it is easy to imagine that the doctrine itself would simply never be considered in a market that looks like the one we have now.

While many consumers may feel that any price above zero for creative works is too high, the fact remains that there is a price threshold below which we can destroy the incentive to create and distribute, which is the reason we have copyrights in the first place. By making available identical, digital products for lower prices not negotiated by producers, the ReDigi model would further degrade one of the already-limited channels of distribution that actually compensate authors for their work.

Solicitor General Says No Cert for “Dancing Baby” Case

 SCOTUS Photo by jgroup

After ten years and what must be thousands of attorney hours, the “Dancing Baby” case may have to do an about-face at the steps of the Supreme Court and, get this, actually go to trial. On May 5, the Solicitor General filed its brief recommending that SOCTUS deny a writ of certiorari in Lenz v. UMG, finding no basis for this Court to address the following question:

Whether a copyright owner may be held liable under Section 512(f) [of the DMCA] for sending a notification of claimed infringement based on a sincere but unreasonable belief that the challenged material is infringing.

At this point, the artist whose work was at the center of this case has been lost to the world (about this time last year); the baby is now a tween; and the case remains a hypocrisy-rich boondoggle, from its overall justification, to the particulars of the argument that the EFF has pursued, to the unavoidable misperception by some of the public that Prince personally bullied a fan.

Regarding the underlying rationale for Lenz, in the decade since it began (and not as a DMCA case by the way), no party has presented any solid evidence that rampant abuse of the DMCA takedown provision even exists. Yet, this has been the rationale and lead talking point riding on Prince’s purple coattails, trading on his fame to spotlight an incident that makes a poor example of actual abuse. Of course, the better examples don’t involve pop stars, cute babies, or major music labels.

The central hypocrisy in Lenz, other than the decade-long fishing expedition, which I tried to summarize in this post, is that the EFF has gone to great lengths to argue that a rights holder should be held to a very high standard of “knowledge” while the organization conversely advocates that no platform owner or ISP can ever know about infringement, or much of anything else, that occurs via their services. In simple terms, the EFF asserts that if defendant UMG did not conduct a fair use analysis of the “dancing baby” video, that this fault alone meets the statutory definition of “knowing misrepresentation,” which is a much stricter standard than general error.

The EFF has shouted repeatedly—and no doubt it will continue to shout—that no ISP or platform service provider can “police all the activity” on the web. This premise is generally accepted by rights holders, both large and small, and it is of course a foundation on which the compromises of the DMCA were born in 1998. Yet, this same organization has now leveraged a decade’s worth of litigation to evangelize the message that rights holders ought to be able to monitor, without error, DMCA filings that number in the tens of millions. And if an error is made, even after it is corrected according to statutory process (i.e. by counter-notice), the fault still rises to the standard of “misrepresentation,” which carries a burden of damages. The fact that damages, in this case, would mean that UMG would have to pay the EFF for the cost of its expedition is an absurdity that is hard to overlook.

In the brief filed by the Solicitor General recommending that SCOTUS deny cert in Lenz, the opinion specifically cites what it calls a “significant legal error” in the way in which the statute has thus far been interpreted. Section 512(c) of the DMCA lays out the manner in which a takedown notice must be filed, including a statement of “good faith belief” that the use in question is infringing. Section 512(f) provides for the types of relief for damages that either a rights holder or a user may seek if a wrongly-filed notice or counter-notice meets the standard of “knowing misrepresentation.”

The EFF has sought to argue that because UMG failed to do a fair-use analysis of the “dancing baby” video, this amounted to “knowing misrepresentation.” I and others have already commented on the inherent subjectivity of fair use that makes this argument problematic whether a rights holder does the analysis or not; but here’s what the SG brief says with regard to the statute itself:

“Petitioner … assumes that the phrase ‘misrepresents under this section’ in Section 512(f) ‘includes a misrepresentation that one has formed a good-faith belief required under Section 512(c). But that is not what the statute says. Although Section 512(c) specifies a number of representations that a takedown notice must contain, the only representation that (if knowingly false) can give rise to liability under Section 512(f) is the representation that the challenged material ‘is infringing.” If petitioner’s video did not actually constitute a fair use, respondents’ statement that the video was infringing was not a ‘misrepresentation,’ whether or not respondents conducted any fair-use inquiry before sending their takedown notice. [Emphasis added]

The court of appeals’ analysis thus contains a significant legal error, and one that could give rise to unwarranted Section 512(f) liability in case where the challenged material actually was infringing. This case does not provide a suitable vehicle for correcting that mistake, however, because the error potentially benefits petitioner and respondents have not sought review of that aspect of the court of appeals’ decision.”

In reference to the words emphasized above, this is an important distinction. If a rights holder specifically instructs employee(s) filing notices to avoid all fair-use analyses in an act of “willful blindness,” this is typically held to be equivalent to “knowing misrepresentation” under the law. Merely screwing up, missing, forgetting, overlooking, etc. does not rise to that level. Moreover, common sense says that the DMCA was designed to be an extra-judicial, compromise solution to the inevitable reality that users of ISPs would infringe copyrights. Such a solution could not have assumed that rights holders would never make a mistake or that a mistake would be tantamount to “knowing misrepresentation” implicating damages.

Meanwhile, wherever courts do seem to find acts of “willful blindness” among platforms and ISPs (e.g. Backpage and Cox), the EFF is consistently on the service provider’s side, unwaveringly defending safe harbor shields as though they are inalienable rights rather than conditional provisions. And by the same token, we are not likely to hear the EFF argue that a user who files a counter-notice to restore a file—a party more likely to err than a rights holder like UMG—ought to be held to the same “knowledge” standard they’re seeking in this case. Because, as the SG brief observes, Section 512(f) applies to “misrepresentation” by a filer of either a notice or a counter-notice. So, users might want to be careful what the EFF wishes for on their behalf.

This misread of the statute, in the opinion of the brief’s authors, is a key reason why the Solicitor General recommends denying cert—because the Supreme Court is a “court of review, not a court of first view.” In theory Lenz v. UMG could keep dancing for quite some time—right through Holden Lenz’s college years, annual tributes to the late Prince, legislative revision of the Copyright Act itself, and who knows what kind of changes among various web platforms and ISPs.