Category: Culture

In the News: Sarah Jeong, “Fake News”, & Fair-Use

It’s another one of those weeks when there’s stuff happening faster than I can write about any one thing. So, here’s a summary of a few items of note …

Anti-Copyright Ideologue Named Tech Writer at NYT

Twitter lit up yesterday with accusations that The New York Times has named a “racist” to its editorial board, citing anti-white tweets made by technology writer Sarah Jeong, who is Asian. These complaints read like a lot of whinging nonsense, taking Jeong’s comments out of the context in which she was apparently responding (albeit ill-advisedly) to racist or sexist remarks directed at her. (God, I love Twitter for the way it brings out our better angels.)

What is notable about Jeong as the Times’s new “lead writer on technology” is that she is an anti-copyright ideologue, who has written various articles and posts in a familiar, ill-informed style akin to Cory Doctorow. In February of 2016, I wrote a fairly extensive response to several errors she made in a Motherboard editorial predicting that copyright law might enable the Chinese government to disappear the famous “Tank Man” photograph from the internet.  It’s still online of course.

So, while I truly doubt Sarah Jeong is a racist and think the people labeling her as one should get a grip, I am equally skeptical that future NYT editorials on the intersection of technology and copyright will be well-balanced—or even accurate.

New Paper on Why People Share “Fake News”

Related to the above, I notice that the National Review site has two top stories featuring Sarah Jeong, the second of which is headlined “Yes, Anti-White Racism Exists.” This dumb and bogus narrative is what academic Alice E. Marwick would identify as a “deep story” in her new paper titled Why Do People Share Fake News? A Sociotechnical Model of Media Effects. Unable to fully answer that question yet, Marwick provides a complex nuanced framework for further discussion, identifying socio-cultural factors that cannot be overpowered by solutions like fact-checking.

Although the volume of what Marwick calls problematic information is greater among the contemporary “right” at present, the contemporary “left” is by no means immune to the underlying reasons why people are apt to believe and spread “fake news,” hoaxes, and other forms of disinformation. I’m working on a longer post summarizing Marwick’s paper, but for those interested, her full paper is here.

TVEyes Files for Cert at Supreme Court

Filing a petition for Supreme Court hearing in its ongoing litigation with FOX News, TVEyes hopes to get another shot at presenting arguments that failed in the Second Circuit in February of this year. Eriq Gardner for The Hollywood Reporter writes, “TVEyes’ attorney tells the Supreme Court that the 2nd Circuit decision conflicts with precedent and ‘creates a circuit split over a question of exceptional importance, including the proper balance under copyright law between the interests of a copyright holder and the First Amendment right to criticize and comment upon the copyright holder.’”

There is no brief to review yet, but that statement alone, taken from a request for an extension to file, does not seem to bode well for the Supreme Court granting cert for a couple of reasons. The first, as detailed in this post, is that the same appellate court that ruled in favor of Google Books also drew sharp distinctions between that case and TVEyes (ergo, maybe not so much of a split). The second reason is that it is consistent with precedent to hold that the First Amendment rights of users of a service do not automatically make the service itself non-infringing. This is a chronic argument made by tech-industry players, and as described in this post, courts generally take a dim view of corporations that attempt to “stand in the shoes” of their customers.

I’ll be surprised if SCOTUS agrees to review this case, but if it does grant cert, expect a storm of amicus briefs to follow.

EFF Honors Itself With Its Own Award

In a July 30 announcement, the Electronic Frontier Foundation named Stephanie Lenz, creator of the “Dancing Baby” video, among the recipients of this year’s Pioneer Award. “Stephanie Lenz’s activism over a home video posted online helped strengthen fair use law and brought nationwide attention to copyright controversies stemming from new, easy-to-use digital movie-making and sharing technologies.” Many of us will never experience the injustice of having a video removed and then restored to YouTube, but in that silent interval, when people could not watch Lenz’s baby boy dancing in the kitchen, her world—indeed the whole world—was just a little bit darker.

I wrote a post in October of 2016 summarizing the narrative of this decade-long EFFishing expedition; but suffice to say this award-earning “activism” did not even begin as a fair use case; “Fair-Use Champion” Stephanie Lenz stated her own ambivalence about the video remaining on YouTube; the fair use/DMCA argument itself is razor thin; and I would bet anything that, beyond us copyright watchers, “nationwide attention” sounds something like this: Oh yeah, didn’t Prince sue some mom? And that didn’t even happen.

So, in the same way that Stephen Carlisle described Stephanie Lenz as the “nominal plaintiff” in Lenz v. UMG, it seems reasonable to call her the nominal recipient of this award, which should rightly go to the EFF’s own Corynne McSherry for Outstanding Achievement in PR Through Boondoggle Litigation.

Implications of YouTube’s Copyright Match System

Last month, the European Union voted against key copyright enforcement provisions as part of its Digital Single Market initiative. Specifically, the proposal known as Article 13 called for the 28 member states to work with multiple stakeholders to develop and implement filtering technology that would, in theory, prevent unlicensed, copyrighted works from being uploaded onto user-content-supported platforms.

Article 13 was labeled by its opponents as a call for “censorship machines,” and as usual, the refrain was shouted from the rooftops that adopting any such filtering would lead to the end of free speech online and destroy “all that is good and pure” about the internet. To be sure, the tone and methodology of the campaign against these provisions reeked of Silicon Valley money and tactics, but whether you believe that or not, one talking point among critics stands out, which inspired this post: that the EU’s call for filtering would harm new creators.

Granted, “creator” in the rhetoric of groups like EFF includes literally anyone who posts anything online; but if we limit our data to that paragon of new creators—the successful YouTuber—YouTube itself made an interesting announcement almost concurrent with the defeat of Article 13. The platform launched its Copyright Match tool to protect YouTubers against unauthorized re-posting (freebooting) by other YouTubers.

Traditional rights holders have earned this moment of schadenfreude after being lectured to for years to get on the future bus and quit whining about their copyrights. They should follow the example of “new creators” working in “new models” that “bypass gatekeepers” and obviate the need for copyrights. Of course, it was inevitable that as YouTubers became entrepreneurs, they would feel entitled to the revenue from their labor (as they should) and that YouTube would have a vested interest in protecting the copyrights of its profitable video-makers—at least from other video-makers.

Using technical measures one might call “filters” (or dare we say “censorship machines”?), the new Copyright Match system works by identifying the first upload of a new video and associating that file with the presumptive owner of the work. Then, if and when matching videos are uploaded to YouTube, the original creator is notified and given the option to do nothing, to ask YouTube to remove the Match, or to get in touch with the uploader of the Match.

Hypocrisy Much?

If this sounds to the experienced observer like an intramural version of a take down/stay down provision achieved through technical measures, that’s because it is. And experienced observers probably remember that all previous proposals for take down/stay down, whether statutory or technological, have been labeled by industry-funded “activists” as internet-killing initiatives. In fact, during the May 2016 hearings about the DMCA, one of the dumb-but-effective talking points was that any mandate for such technical measures would “entrench” the market dominance of YouTube. (Yes, laughing through tears is the right response here.)

Traditional rights holders who have spent hours of their lives trying to identify and stop unlicensed uses of their works on market-dominating YouTube will quickly recognize the duplicity in launching Copyright Match. “Why should only their ‘chosen’ get access?” asks Grammy-winning composer Maria Schneider, one of many artists who will attest to the opaque and labyrinthine Content ID system rights holders theoretically use to track and control use of their works on YouTube.

What is not generally understood is that even getting access to Content ID varies wildly depending on a rights holder’s relative presence on YouTube and his/her interest in monetizing unauthorized uses vs. taking down unauthorized uses. Guess which one YouTube favors. Again, Schneider explains …

“YouTube always says that independents like me, to whom they’ve denied ContentID, can get access to the same tool via a third party. But what they don’t admit publicly is that this is only possible if we’re willing to monetize at least some of our work. So, independents like me, who want no part of monetization and simply want to block illegal uses of our works are just out of luck. And I might add that this technology we’re wanting to access has actually been around for twenty years—longer than YouTube has existed!”

I spoke to an independent artist, who prefers to remain anonymous for fear of retaliation by YouTube’s Content ID group.  He does have Content ID and acknowledges that he’s probably a “thorn” in the side of YouTube’s Copyright Department team because he actively employs the system only to stop unlicensed uses of his compositions and sound recordings. And lest anyone think he’s responding to “new creators” making possible fair uses of his music, his most important Content ID-related takedowns have been aimed at global brands and Fortune 500 companies using his music for marketing purposes without a license.

It’s worth noting that the fact that this artist chooses to remain anonymous due to concern that YouTube would delete his Content ID account out of spite speaks volumes against every claim of tech-utopian bullshit Silicon Valley and its network of EFFing dissemblers have been slinging for years. As David Lowery explained in 2016, YouTube is a monopsony, a market with a single buyer, which means they get to make, break, and change the rules as often as they like, and the “sellers” can just eat it.

In this regard, it will be interesting to see if Content Match leads to disputes YouTuber-to-YouTuber and how the company will handle these, if it does. For instance, it is not clear at this point that YouTubers whose uploads are wrongly identified as “Matches” will have any kind of counter-notice remedy available to them.

Although the company’s video explaining the new system urges YouTubers requesting Match takedowns to “consider fair use,” it will be truly fascinating to see whether YouTube gives a damn about fair use among its own microcosm of creators. For sure, general users of the platforms have never been effectively dissuaded from uploading a wide range of files that could never qualify as fair uses.

None of this should be taken as a dig against YouTubers. To the contrary, I think many of them are brilliant artists and deserve to protect their interests and rights as much as any other creator. But this apparent initiative to protect their interests points to another aspect of YouTube’s ever-changing relationship to copyright enforcement and its relevance to the fight over Article 13.

Don’t Let the Internet Become YouTube?

Not that long ago, YouTube was consistently cited as the apotheosis of the utopian belief that the web will empower creators without gatekeepers—and without copyrights. But where this Copyright Match announcement becomes intertwined with the campaign against Article 13 is that some pundits against the proposal lately cite YouTube as a cautionary tale—asserting that the platform’s often-inconsistent application of copyright protection policies and technical measures is exemplary of what should not be done internet-wide pursuant to Article 13. The claim appears to be that because YouTube’s Content ID system has allegedly fostered rampant false strikes, resulting in unfair channel deletions, this generalized stifling is what the “entire internet would look like” if the EU moved forward with the kind of filtering proposed.

While there is certainly anecdotal evidence—some of it compelling—of Content ID error and abuse leading to improper strikes on YouTube, I have yet to see any evidence to support the claim that this problem is both rampant and increasing across the platform. As is often the case, activist groups or observers who have no skin in the game tend to exaggerate anecdotal evidence into statistical assumptions. Or as our anonymous artist puts it, “In 100% of the anti-Content ID statements I’ve ever heard over the years, 100% of the complainers had 0% vested interest in the system: they’re either Google-funded anti-copyright groups or individuals on some kind of personal crusade.”

In this creator’s direct experience with false identifications, he notes that “With about 100,000 Content ID claims in my dashboard since late 2012, I can say that YouTube has delivered me a mistaken ID about 10 times. The anti-copyright crowd will take that as evidence that the system needs to be dismantled or destroyed. I just don’t get it. The perfect shouldn’t be the enemy of the good.” And that’s for creators, who can avail themselves of Content ID, which does not include the creators identified by Maria Schneider who do not have access to any remedy via Content ID.

Competing Narratives

So, in context to the proposal that Article 13 filtering would “stifle new creators,” we have at least three narratives that compete and crisscross in ways that can be hard to track, if you’re not directly engaged with these systems. First, because Copyright Match is a response to YouTuber complaints about freebooting, it reveals that “new creators” don’t like copyright infringement when it happens to them (ergo copyright is not obsolete). Second, Copyright Match implies that filtering technology of this nature can be implemented without destroying a whole platform or stifling new creators. And third, Copyright Match is at least indicative of technology that could help non-YouTuber creators enforce their rights, but it will not be made available to them because it isn’t in YouTube’s interest to do so.

One thing the introduction of Copyright Match illustrates for sure is that creators are creators—whether traditional or new, they feel a sense of ownership in the products of their labor. And from this premise comes the foundation of copyright and systems for protection that will begin to make “new models” look a little more like “old models.” It’s what happens every time a business discovers it is codependent with talented people.

A New Unfortunate Twist in the Section 230 Saga: Politics

This blog contains several posts questioning the premise that the ISP liability shield known as Section 230 of the Communications Decency Act of 1996 is a “sacred” law, without which the internet would cease to do all the wonderful things it does. Like foster a more rational, diplomatic, and thoughtful political climate around the world. (Because that’s going so well.)

What began as an incentive for platform responsibility became the legal basis for a lot of platform irresponsibility over the past two decades. In this regard, I and others have pointed to specific instances of tangible harm done via the web and the general lack of cooperation by platform owners to remove, demote, or delist harmful content—even when ordered by a court to do so.

Most recently, the Hassell v. Bird case (see posts here and here), illustrates how far the judicial application of the Section 230 liability shield has strayed from its intent. In fact, it is so extreme that one part of Yelp’s defense in this case boils down to the following logic: Although Section 230 was created to spare platforms undue litigation, because Yelp was not a named party in Hassell’s complaint, they argued denial of due process because they weren’t given the chance to litigate. To underline this point, the action a California court had ordered—to delete content held to be defamatory—would have cost the company nothing, which is consistent with the original purpose of Section 230.

In July 2017, I summarized an academic paper describing specific ways in which Section 230 has had the unintended consequence of shielding some very bad actors online; and the authors of that paper even recommended subtle tweaks to the statute which might mitigate the kind of harm being done, including language that prefigures FOSTA, signed in April of this year.

As that amendment exemplifies, Section 230 was never intended to foreclose all possibility of civil or criminal remedy merely because harmful conduct occurs in cyberspace. At the same time, while criticizing the absolutism of 230, I also recognize the difficulty inherent to the unprecedented paradigm of social media—that these are privately-owned, public spaces with the sole purpose of hosting users’ speech.

Unfortunately, any such nuanced discussion has historically been overwhelmed by the industry and its well-funded “activists,” who claim that the status quo of the 230 statute is “sacred,” that even the slightest adjustment will undermine the core functioning of the internet and threaten speech online. And “sacred” is exactly what Issie Lapowski called the statute in her recent article in Wired, which claims that lawmakers don’t understand the nature of the statute they’re threatening to “gut.” While many of us clearly do not agree that 230 is quite so inviolate, Lapowski’s article points to a new twist in this tale that can only add a new layer of confusion to an already complex issue: partisan politics.

Back in November of 2017, hearings at the House Judiciary Committee were generally bipartisan in tone, investigating the manner in which Russian agents bought American political ads on social platforms. Both Democrats and Republicans specifically recommended that the representatives of Google, Facebook, and Twitter drop the longstanding rhetoric that they operate “neutral platforms” on which they bear no responsibility for the content posted by users. All three representatives had little choice other than to concede, in testimony anyway, that their laissez-faire policy had gone too far—and this was before evidence emerged linking Cambridge Analytica, Russian troll farms, and Facebook user data.

Section 230 was naturally a running theme during those hearings because most lawmakers do understand that the statute is the primary legal foundation on which platforms assert their neutrality. But in more recent hearings held last week, Republicans on the House Judiciary Committee amped up accusations that the major sites engage in partisan bias—asserting that they remove or demote “conservative” content while leaving up “liberal” content.

In this context, Lapowski quotes Rep. Matt Gaetz (R-FL), who stated “When you avail yourself to the protection of Section 230, do you necessarily surrender your rights to be a publisher or speaker? The way I read that statute now, it’s pretty binary. It says you have to be one or the other.” In other words, Republicans on the Committee acknowledge that the platforms have a First Amendment right to advance or demote any content they want, but doing so makes them “publishers” and theoretically nullifies the Section 230 immunity.

In response, Lapowski cites attorney Eric Goldman whose explication of Section 230 is more accurate than the congressman’s, even if it is somewhat pollyanna about the manner in which the statute has been applied in practice. Goldman correctly points out that Section 230 cannot logically vitiate a platform’s First Amendment right to control content when the very purpose of the statute is to encourage sites to control content. Unfortunately, that principle has too-often been argued in reverse—as a right to leave content online even when it is harmful or held unlawful by a court.

Gaetz’s line of inquiry caught my attention, though, because I said almost the same thing in my first post about Hassell, albeit in a very narrow and apolitical context, believing that 230 should not immunize Yelp against complying with a court order to remove unprotected speech. Nevertheless, if indeed Gaetz and his colleagues are threatening the platforms with “gutting” 230 as a response to alleged political bias, the complexity of this discussion just went to eleven.

Legally, socially, and politically, the whole subject of platform responsibility becomes disturbingly muddied amid accusations of “partisanship,” especially in a climate in which too many mainstream Republicans have lately embraced content that any reasonable person of any political party should find objectionable. For instance, if Facebook were to drop the Infowars page, would House GOP members consider this anti-conservative bias? I ask because it was not that long ago when people seemed to know the difference between a conservative like George Will, and a tinfoil-hat-wearing sociopath like Alex Jones.*

This, of course, has been one of the “benefits” of democratization through internet technology: it has coalesced, legitimized, and, most importantly, monetized crazy people. What we used to call the “lunatic fringe” of both the right and the left has now moved into the center. We’ve entered a new reality in which American citizens not only want to thank Vladimir Putin, if indeed he meddled with the election in Trump’s favor, but they have the means do declare this insanity in public and to build solidarity with other citizens who are likewise deluded. Or are these even American citizens at all? Are they Russian trolls being paid to make more mischief? Or bots? We have no idea.

What a bipartisan Congress ought to be able to recognize at this point is that a completely unfettered internet (i.e. one without platform responsibility) has not yielded a stronger, more stable, more rational body politic. To the contrary, even as platforms claim that they’re taking more responsibility, there may be no ameliorating the kind of factionalism and mob mentality that the internet fosters so perfectly, and which the American Framers feared so presciently.

We’re living in a reality where reasoned debate on almost any issue is consumed by the circus—by forces that are visibly hammering at the foundations of the Republic—and the last thing we need to inject into a policy discussion about platform responsibility is the rhetoric of partisanship. The fundamental purpose of Section 230 remains sound while its flaws are fairly nuanced.

And while I would personally love to see Facebook remove Infowars and Antifa** for the sake of sanity, a dubious narrative accusing social platforms of political bias cannot be the proper framework for reasoned discussion about the flaws in Section 230. It should instead be the aim of representatives in both parties to address the specific mechanisms by which a law written to motivate “good samaritans” has too often shielded bad ones.

*UPDATE:  As of July 27, 2018, CNN reports Facebook has suspended Jones’s personal profile page.

**At the time of writing, this referred to the militant, violent factions worldwide that identify themselves as Antifa. It has since become a much more muddled identification.