Category: Law & Policy

The Accountability of Web Platforms

Online service providers (OSPs) are generally shielded by two major statutes from liabilities that may stem from the content uploaded by users of their platforms.  Section 512 of the DMCA (1998) provides the conditions under which an OSP may avoid liability for copyright infringement, and Section 230 of the Communications Decency Act (1996) covers just about every other kind of content.

In simple terms, any platform that allows users—rather than site owner/operators—to upload content.  Sites like YouTube, WordPress, Facebook, Twitter, etc. are not considered “publishers” under CDA Section 230 and, therefore, remain free from liability for nearly any harm that may be caused by the user-generated content hosted on their sites. So, if a Twitter mob incites assault or violence, Twitter is generally in the clear. If an IS recruiting video inspires a lone-wolf attack, YouTube is not held responsible. If fake news fills a Facebook feed, then Facebook is not responsible for publishing lies or slander because, under the statute, Facebook is not the “publisher” of the material.

“Digital rights” groups defend CDA 230 as an essential protection for free speech online and as a mechanism for the development of the web overall.  In general, this argument has a lot of merit, but these activist organizations are not above straining their support of Section 230 beyond reason at times. As discussed in this post, the Electronic Frontier Foundation came strangely close to defending the alleged criminal activities of the owners of Backpage while seeking to defend the principles of Section 230. In that particular case, the indictment of last October states that the owners of the site took direct action to further capitalize on the illegal sex trade, which they had to know contributed to more than 90% of site revenues.

Hence, the assumed ignorance of the OSP management, upon which the Section 230 shield is based, seems reasonably lost in that case; and EFF’s defending Backpage on principle alone appears to defy common sense.  The Supreme Court is scheduled to consider whether or not to take up Doe v. Backpage during its conference tomorrow.  If the Court agrees to consider the case, expect to hear a lot about Section 230 in the coming weeks.

A Mundane Example

As a very simple example of what we’re talking about, I accidentally called a scam Apple support service one day because I was rushing and because a number for the fake service appeared at the top of Google’s search results.  Fortunately, I realized I’d called a predatory operator and hung up before it cost me anything, but for those who were cheated out of credit card or other information, doesn’t it seem reasonable that Google should be held accountable for having taken fees to place the bogus service in the advertised top spot?  It seems to me they should. But what about monetizing content that may contribute indirectly to assault, battery, or murder?

Pulse Nightclub Suit

In December, a Michigan-based law firm filed suit in Florida against Google, Facebook, and Twitter on behalf of three families who lost loved ones in the Pulse Nightclub shooting of June 12, 2016, where Omar Mateen shot and killed 49 people, making his the largest mass-shooting in US history.  The foundation of the case, led by attorney Keith Altman is that the monetized hosting of content produced by the Islamic State “provided material support to terrorists” in violation of federal law and contributed to the actions taken by Mateen.  The Orlando Sentinel, reporting on the story, quotes internet and communications attorney J.B. Harris stating, “It’s creative. It’s bold. But I don’t think he’s going to succeed under the federal anti-terrorism statute that he cites.”

That sounds about right to my layman’s ear.  In this case, I suspect Altman would have a very high burden, even to connect the IS material to Mateen’s decision to act, let alone to hold the OSPs responsible for the tragedy under that statute.  Moreover, I don’t think the public is going to warm to the idea of accusing web platforms of “providing material support to terrorists,” via third-party content, least of all in the climate we’re now entering.

Nevertheless, the Sentinel notes that attorney Harris speculates that Altman might have a better hearing in a Florida local court as a “strict negligence or liability” case, which does begin to have the ring of some balance to it with regard to alleged liability among the OSPs in this circumstance. I suspect the case would be a long shot either way, but Altman is correct in his observation that the major OSPs have historically enjoyed tremendous freedom in maintaining a laissez-faire approach when it comes to monitoring content on their platforms.

Possible Change in Attitudes?

As speculated in my last post, the bitter taste of fake news and Russian hacking may shift public opinion toward a greater willingness to hold major platforms responsible for content more than they have to date.  In particular, when an OSP earns revenue by hosting harmful content, whether it’s a scam like the one noted above or an IS recruiting video supported by brand advertising on YouTube, we may begin to see some cracks in public support for the “we don’t know” defense, regardless of the liability shields.

With regard to copyright infringement and Section 512, we know that the major OSPs have played an ongoing and repetitive semantic game on the theme that “they cannot know” what’s happening on their sites.  As I’ve said in the past, this argument is especially coy when it comes from Google, which vows to one day know us better than we know ourselves—but apparently will remain ignorant about the content on its own platforms. I don’t think anyone disputes that content moderation poses technical and legal challenges. But so far, the conversation has been skewed toward a bias that any moderation is undesirable because it’s tantamount to censorship; and this has benefitted the platforms by leaving them free to monetize nearly anything.

With cases like Backpage, and perhaps this Pulse Nightclub suit, playing out against a landscape of users coming to grips with some of the inherent flaws of social media platforms, we may see OSPs take more direct, voluntary action to mitigate the use of their services by bad actors.  Or as Charlie Warzel writes, in a related article on BuzzFeed, “…trotting out the ‘But we’re just a digital platform’ excuse as a quick and easy abdication of responsibility for the perhaps unforeseen — but maybe also inevitable — consequences of Big Tech’s various creations is fast becoming a nonstarter.”

Photo by scanrail

Librarian Wants to Crowdsource Search for Register?

Photo by Arsgera.
Photo by Arsgera.

I know I just wrote about the Copyright Office. But right after publishing Friday’s post, I saw that Librarian Hayden did a rather inscrutable thing. She had the LOC publish a three-question survey, using Survey Monkey, seeking public comment on the ideal qualities for the next Register of Copyrights.  Writing as a member of the public, and one who knows way more about copyright than most laymen and way less than all copyright experts, I’ll be the first to admit that I am not qualified to offer an opinion about who the next Register should be.  And neither are most of you.

David Lowery at The Trichordist summed up this point beautifully when, upon learning Hayden’s intentions, he declared that “the internet” would be appointing Boaty McBoatface as the next Register (and you really need to respond to his poll). For those who missed the reference, Lowery is citing an ill-advised decision last Spring, by someone in the British government, to crowdsource the name of a $238 million polar research vessel. Now appropriately named in honor of the documentarian and historian Sir David Attenborough, “the internet” had managed to produce the top choice Boaty McBoatface, which officials unsurprisingly declined to use.  This may seem like a laughable side-show story—and it is—until crowdsourcing goes beyond the prospect of naming a research vessel the RRS Boaty McBoatface all the way to nominating Dopey O’Looney to lead the scientific expeditions.

As a political decision, I can’t imagine this was the smartest move on Hayden’s part.  When she dismissed Register Pallante in October—suddenly and without consulting the Judiciary Committee—this could not have gone over terribly well with those Members of Congress.  And as mentioned in my last post, the House Judiciary Committee has now proposed that the Copyright Office function independent of the Library and that, henceforward, Registers should be appointed by Congress for a term of 10 years with an option to renew. So, I have to assume that Dr. Hayden’s use of Survey Monkey to crowdsource comments as part of her search for a new Register is only going to further rustle the jimmies of the Committee.

Beltway Baseball aside, though, these types of surveys have a way of creating an illusion of democratic engagement while yielding either uninformed input or just plain automated mischief. Readers might remember Fight for the Future’s brag in April about their alleged “crashing” of the Copyright Office server with over 100,000 comments on Section 512 of the DMCA.  This kind of self-congratulatory powning of issues only serves to overshadow the importance of legitimate, informed debate. Not only would one be hard-pressed to find 100,000 Americans who could adequately explain the DMCA; but in that particular case, it looks as though FFTF was not diligent in confirming that respondents to its survey were even American citizens.

Substantively, it’s worth noting that we have about 100 years worth of history on Registers of Copyrights—history that a librarian of Dr. Hayden’s caliber ought to be able to access.  Add to this the current perspectives of recent Registers as well as a manageable number of legal experts, including people like Google’s Fred von Lohman or William Patry, who once worked for the USCO.  Then, of course, there’s the Judiciary Committee itself, which comprises some Members who have been working on copyright  for 20 years or more.

Among these well-informed professionals, it’s hard to imagine how a general poll of the average citizen is going to provide much valuable insight on the best qualities the next Register should possess.  More likely, this is just another feint at democratization—one that provides opportunity for organizations like FFTF, EFF, or PublicKnowledge to once again Spam the Monkey and declare victory based on the number of people they could get to click a button. As I say, I know more about copyright than most laymen and don’t deserve a seat at this table. I did answer the poll on The Trichordist, though, and selected as the most important quality in the next Register that he/she “Has a crane capable of launching deep-sea submersibles.”

Librarian Critics Prove Need for Independent Copyright Office

Library of Congress Interior (1900)
Library of Congress Interior (1900)

On December 8th, the House Judiciary Committee announced its first policy proposal since beginning its review of the copyright law in the Summer of 2013. Among these early recommendations is that the Copyright Office should operate independent of the Library of Congress while remaining part of the Legislative Branch.

Not surprisingly, copyright critics have already complained about this proposal, including a number of university librarians who took umbrage at a November 28 letter to the Committee written by former Registers of Copyright Ralph Oman and Marybeth Peters.  The former Registers voiced their immediate displeasure at the tone and timing of the dismissal of Register Pallante on October 21 by the new Librarian of Congress Dr. Hayden; but they further expressed the view that this sudden and unprecedented firing signaled that it is finally time for the Copyright Office to operate independent of the Library.

Brandon Butler, J.D., Director of Information Policy at University of Virginia Library is the author of a letter signed by 41 other college and university librarians, which rebuts Oman and Peters and the proposal to move the Copyright Office out from under the auspices of the LOC. The letter itself stresses what may be described as a semantic and cultural kinship between copyright and librarians. For instance, in citing the goal “to promote progress” from the IP clause, Butler writes, “Libraries share this core purpose and promote cultural progress in numerous ways, from massive financial investments in the acquisition and licensing of copyrighted works to the curation and preservation of our cultural heritage.”

This is certainly true, and nobody should doubt the vital role of libraries in general or the treasure that is the Library of Congress in particular.  But many institutions, both public and private, promote cultural progress without anything to recommend them as the nation’s copyright authority.  Although Butler correctly notes that he and many other librarians have considerable expertise and, thus, provide many authors and users of works with guidance in copyright, this is hardly germane to the larger point.  Simply because universities have fine medical schools and hospitals, that doesn’t mean the Surgeon General’s office should operate within the Department of Education.

Yes, librarians perform a wide range of incredibly valuable tasks, including assisting their users with copyright law, as Butler describes. But the mere fact that he and others fail to acknowledge a distinction between these functions and those of the Copyright Office is proof in itself of the need for separation. Moreover, the Butler letter—albeit in lighter tones than other critics—does not scruple to jump on the bandwagon in accusing the Copyright Office of serving a narrow group of beneficiaries (i.e. corporate rights holders) of the copyright law.  This is an accusation without merit, and librarians should be more rigorous than to cite the undisciplined PR of activist groups.

That PublicKnowledge has made this assertion, based on its own cobbled-together “report” composed of innuendo and opinion, is no surprise; but the librarians of these institutions should be more forthright in their presentation of both the historic and contemporary functions of the Copyright Office.  Again, this lack of rigor is evidence that librarians can be as culturally biased as any other group and, therefore, ought to be represented at the table rather than preside over it.  Additionally, Butler’s letter does not acknowledge that indeed his colleagues have advocated that the Librarian of Congress take a more active policy-shaping role, which would effectively overturn the historic role of the Register under the current organizational structure.

As described in a previous post, the Librarian of Congress has never truly shaped copyright policy in the United States.  Oman and Peters call the organizational relationship between the LOC and the USCO an “accident of history,” and although Mr. Butler rejects this statement, he is simply incorrect.   The initial relationship was very much circumstantial, with precedents set during the Lincoln administration—a time when American courts were just figuring out what our copyright law actually means, while the Librarian was trying to find a place for all the manuscripts literally piling up on the Library floors.  This was a period marked more by extemporaneous troubleshooting rather than any kind of fleshed-out policy role for either the Library or the soon-to-be-established Copyright Office.

When the Copyright Office was created in 1897, it was predicated on a clerical relationship between registration and the growing collection; and copyright law itself had barely begun to deal, for instance, with the influence of machines on creative works.  As the law evolved in complexity through the 20th century, the Copyright Office likewise evolved as a multi-faceted agency that advises the courts, Congress, and the public on a dynamic range of issues specific to copyright law. Although the USCO has operated within the Library, the Librarian has historically deferred to the Register as the nation’s copyright authority. Hence the current proposal to make the Office independent is consistent with the role played by the Copyright Office for more than a century.

It is only fairly recently—with the introduction of digital technology—that more pronounced policy differences have become manifest between the Librarian and the Register—culminating with the surprise firing of Maria Pallante without so much as a heads-up to Congress.  Digital technology poses new challenges and opportunities for authors, rights holders, and libraries. Butler’s overemphasis of his and his colleagues’ expertise in copyright implies that the Librarian’s views on future copyright policy should become dominant for the first time in history, purely by virtue of a  traditional hierarchy that has no foundation in serving the Legislature, the courts, or the public.

In Butler’s letter, he writes, “Cultural institutions and the Copyright Office are natural allies.” He is absolutely right.  Allies meet on equal terms to discuss matters of cooperation and conflict. The librarians’ suggestion that there are no conflicts, or that such conflicts are best solved by one ally remaining subservient to other, is once again proof that the Judiciary Committee’s proposal for separation is as timely as it is soundly reasoned.