Culture Archives - Page 145 of 260 - The Illusion of More

Backpage Execs Arrested Because Pimping Isn’t Speech

On October 6, the CEO of Backpage.com Carl Ferrer, along with former executives Michael Lacy and James Larkin, were arrested in California on charges alleging involvement in prostitution, including conspiracy to commit pimping of a minor. The classified ad site had been under investigation by the California DOJ for three years and on the radar of anti-human-trafficking advocates for at least a decade. Citing the importance of these arrests, Polaris has recorded nearly 2,000 incidents of sex trafficking that involved Backpage and further states that the National Center for Missing and Exploited Children told a Senate subcommittee “that 71 percent of all suspected child sex trafficking reports that it receives have a link to Backpage.”

Despite numerous claims—including by prominent digital rights activists—that Backpage has exclusively operated as a neutral site hosting user-generated classified ads in both “adult” and non-“adult” categories, the arrest warrant highlights include the following:

that well over 90% of Backpages’s tens of millions of dollars in revenue came from the “Adult” ads, which have clear links to both consensual and forced prostitution.

that Backpage became known by those in the commercial sex trade to be the “online brothel.”

that Ferrer and his associates purposely grew the “Adult” ad trade both domestically and abroad.

Perhaps the most damming evidence is that Ferrer and his associates allegedly used Backpage data to create what the warrant calls “escort directories,” sites that are in no way user-generated, but which are designed solely to drive customers for commercial sex to Backpage ads. Additionally, 7 of the 8 witnesses interviewed about their use of Backpage ads were identified in the warrant as “victims of trafficking,” some forced into prostitution before the age of 14.

Section 230 of the Communications Decency Act

Section 230 of CDA, which was passed in 1996, is the legal statute which states that online service providers shall not be treated as “publishers.” Site operators acting in good faith, and which are driven in part or in whole by user-generated content, are shielded from litigation stemming from material posted by a third party that might otherwise be actionable. In a nutshell, what the DMCA “safe harbor” does for OSPs and copyright infringement, CDA 230 does for just about every other kind of content.

In regard to a 2015 civil litigation filed against Backpage by three women—all allegedly victims of trafficking—the Electronic Frontier Foundation argued that CDA 230 required the dismissal of their claim against the site. As stated by Sophia Cope on September 8, 2015, “Where a website clearly participated directly in developing the alleged illegal content, immunity from suit is properly lost. But in cases like this, where the provider has allegedly colluded by the apparent implications of website design and content policies, Section 230 requires that the complaint be dismissed.”

Although this was not the EFF’s only statement on the matter, it was the crux of that organization’s defense of 230 in regard to the Backpage litigation. This view was upheld in Massachusetts District Court and in the First Circuit Court of Appeals but was rejected by the Washington State Supreme Court, which allowed the civil suit to proceed.

When the EFF argued that CDA 230 was grounds for dismissal of the plaintiffs’ civil suit against Backpage this a) was within the purview of that organization’s mission; and b) stopped well short of defending Backpage itself when there was a reasonable probability that the ongoing criminal investigation could reveal that the owners were implicated in illegal activity.

Taking the Free Speech Thing Too Far

Where the EFF crossed that line, it appears, was on July 6, 2015, when director of activism Rainey Reitman strayed far beyond the scope of judicial application of CDA 230 and engaged in speculation to defend Backpage on free speech grounds. This was in response to a decision by major payment processors—Visa, Master Card, & Amex—deciding in that month to cease processing transactions for Backpage. Reitman called this “caving to government pressure,” accusing the processors and law enforcement of stifling free speech. She wrote …

“We don’t need Visa and MasterCard to play nanny for online speech. Payment processors and banks shouldn’t be in the position of deciding what type of online content is criminal or enforcing morality for the rest of society. For one thing, their businesses haven’t been designed to analyze the legal and societal issues at play in various forms of online expression.”

She further states (and this is the paragraph that gets me):

“Backpage.com can be used to sell an old refrigerator, find a new apartment, post about new community workshops, find a job, and offer many other services and goods. It also hosts an “adult” section of the site, where some people advertise escort services or try to connect with people who have similar sexual interests. This “adult” section requires visitors to confirm they are at least 18 years of age and allows users to get resources for reporting cases of suspected sexual exploitation with one click.”

Not only does Reitman engage in unfounded speculation about Backpage’s innocence—which seems like an unnecessarily dumb move for the EFF to make—but she actually implied that the site was helping to curb exploitation. This particular rhetoric will sound familiar to copyright interests who’ve been listening to the Holy Trinity of infringement defenses for years. 1) We don’t know what’s happening on our site. 2) We host material that isn’t infringing. 3) Anyway, we’re helping you.

As the arrest warrant states, the non-“Adult” section of Backpage—the part innocently selling refrigerators and such—is mostly supported by free ads while the “Adult” section is supported by paid ads. The warrant further states that from January 2013 to March 2015, 99% of the site’s revenue (which is in the tens of millions) came from the “Adult” section but that this ratio dropped to 90% in May of 2015, apparently after the major payment processors pulled their accounts.

Any reasonable person could deduce that the paid part of Backpage’s business was worth money while the free part was not; any reasonable person could observe that Backpage hosted a very large volume of ads for the commercial sex trade; any reasonable person could know that at least a portion of the commercial sex trade involves trafficked victims, including minors; and any reasonable person could know that the company was under investigation. Given these plainly observable data, it’s hard to fathom that the EFF would allow Ms. Reitman to publicly assume Backpage’s fundamental innocence in the service of its chronic argument that everything online is protected speech. But it isn’t that hard to fathom.

Going back to the topic of “cultural capture” for a moment, I’ll stop short of accusing the EFF of knowingly defending alleged human traffickers, but I won’t stop short of accusing them of being so neck deep in their own PR bullshit, that they ended up defending alleged human traffickers for no reason.

Where Reitman really went too far down this road was when she described the “Adult” section as a place where users “try to connect with people who have similar sexual interests.” As if Backpage were more like Tinder than the “online brothel” that everyone in the commercial sex trade seems to know that it is. Those tech-utopian words connect and interest are just so friendly and Googley and social, one would never think to associate them with 13-year-olds forced by violence and threats of violence into the commercial sex trade.

Even if the folks at EFF could have reasonably convinced themselves that the owners of Backpage were not knowingly profiting from the commercial sex trade—and by extension trafficking—I think they were foolish to stray beyond commenting on anything other than the relevance of CDA 230 in a civil lawsuit. To declare, as Reitman did, that, “Backpage, however, is not engaged in human trafficking. It shouldn’t be treated as if it were,” was an assumption that not only stepped outside the EFF’s wheelhouse, but it was also an absurd logical leap that appears to have been entirely wrong.

The point, of course, is not really the EFF itself but the message they promote, which assumes that all site owners naturally maintain a veil of ignorance about the content of their sites and that all online activity is protected speech. Neither is true. At the very least, site owners can certainly know where their money is coming from, and protected speech largely pertains to state action, not private enterprise. I get why it’s easy to play this PR game with copyright infringement—because it seems like a victimless crime and because there is an amount of infringement in the digital age that rights holders are going to have to accept as unstoppable. But I should hope that there is no percentage of for-profit, violent, human exploitation that we are willing to tolerate because we’ve lost perspective on what free speech is and why it is protected.

How the “Dancing Baby” Case Went Crazy

Last week, both the Electronic Frontier Foundation and Universal Music Group filed petitions with the United States Supreme Court in regard to what is commonly known as the “Dancing Baby” case. The “baby” in question is about 11 years old now, and for those who might not know how a mundane home video became the focus of a multi-year, federal litigation now begging the attention of the Supreme Court, let’s review …

In February of 2007, Holden Lenz of Pennsylvania was just 18-months-old when his mother Stephanie video taped him dancing to the Prince song “Let’s Go Crazy” and then posted the video on YouTube—a platform that was just six months older than Holden. Because Prince was especially guarded about all uses of his music—and was justifiably critical of YouTube in particular—the Lenz video was one of several targets added to a list of DMCA takedown notices to be filed by Universal Music Group on the artist’s behalf. The “Dancing Baby” video was removed on June 5, 2007, and according to an ABC News story published in October of that year, Lenz stated that she was initially “frightened” about having her video removed from YouTube, concerned that UMG might file suit against her, and then the fear of said litigation made her “angry.”

So between the Summer and Fall of 2007, the public version of this story had already begun to stray from the relevant facts in the case. For starters, Ms. Lenz, on her own, had immediately sent an incorrectly filled-out DMCA counter notice on June 7 seeking to restore her video. But if she were truly frighted about a lawsuit by UMG, that would have been the moment for her to proceed with caution because a DMCA counter notice can, in some cases, trigger legal action by a rightsholder. Subsequently, at the advice of an attorney friend, Lenz contacted the Electronic Frontier Foundation to better understand her options, believing at the time that UMG might have infringed her First Amendment right of free speech.

PR by Litigation

Keeping in mind that nearly ten years ago, when this adventure began, it was easier for organizations like EFF to promote the message that DMCA takedown was widely abused and, therefore, chronically chilling speech. They still promote this message, of course, but in recent years, both research data and anecdotal evidence from numerous rightsholders indicate that takedown abuse is the exception while rampant infringement without recourse under DMCA is the rule.

On June 27, 2007, the EFF sent a correctly filed counter notice on Lenz’s behalf. YouTube restored the “Dancing Baby” video by mid July, and the EFF then filed its initial complaint against UMG on July 24, 2007. From there, both the public story and the court records suggest that Stephanie Lenz became, as Stephen Carlisle of Nova Southeastern University puts it, the “nominal plaintiff” who provided an ideal opportunity for the EFF to embark on an odyssey of PR by litigation—a lawsuit looking for an injury. After all, the video itself, as anyone can see, could not be more harmless; it has an actual baby in it!

In part, what we know about the motives and strategies driving this case is due to Ms. Lenz’s own carelessness as plaintiff when she revealed enough information, via emails and social media, that in 2010, she lost her attorney/client privilege to specific portions of her communications with the EFF. The casual communications cited in the record suggest that the EFF was determined to “get” UMG for something—Lenz uses the expression “salivating over getting their teeth into UMG”—even if they had to keep changing strategies to figure out what exactly UMG had done wrong.

Shifting Rationales

Technically, the Lenz case is pretty boring. A mom had a home movie taken down from YouTube and then that home movie was restored to the platform via the DMCA counter notice procedure, which is exactly the process Congress envisioned when it wrote the statutes. Had there been no expectation of occasional error or flaw on the part of rightsholders, there would not be a statutory counter notice “put back” procedure in the first place. The fact that the Lenz video was offline for a period of six weeks was due neither to a particular flaw in the DMCA nor to any action taken by UMG.

Moreover, the extent to which Ms. Lenz felt “injured” by the removal is unclear since in one of her emails, she stated, “I don’t care if YouTube doesn’t want to host it. Not like I’m paying them.” This was reported by CNET in a February 2011 article in which EFF attorney Corynne McSherry is cited promoting the message that copyright owners are frequently “careless in sending notices” and, therefore, “interfering with free speech.”

But although Lenz stated that her initial belief was that UMG had infringed her First Amendment rights—and this story has often been referred to in the press and on social media as a free speech issue—the fact is that even the EFF would eventually concede that the temporary removal of the video did not implicate the First Amendment. This is because neither UMG nor YouTube is a state actor, and because the content of the video did not contain political speech, criticism, parody, or newsworthy content of any kind.

According to email communications made by Lenz, it appears the EFF considered a few avenues to pursue litigation, including a California State breach of contract complaint, which suggests that Lenz’s story did not immediately present itself as a constitutional or DMCA case in EFF’s mind. In fact, the initial complaint filed in July of 2007 was for “tortious interference,” which was dismissed.

Additionally, in a June 14, 2007 email to her mother (10 days before the first complaint was filed), Lenz states that EFF’s pro bono “fees” would be covered by “the settlement.” This may just be a layman misspeaking because an expectation of a settlement would be a very odd strategy for a rights advocacy organization that is supposedly taking a case on principle. After all, a settlement by the litigants generally means the court does not rule on whatever principle is being argued.

The EFF amended its complaint to argue that UMG had violated §512(f) of the DMCA, which states that a plaintiff may seek damages if a takedown notice filer “knowingly and materially misrepresents that the material or activity is infringing.” And that is how Lenz v UMG became a fair use case. A plaintiff does not have to have suffered financial loss in order to prove that an injury has been caused, but absent an abridgment of Lenz’s First Amendment rights, the EFF’s argument now rests solely on the sheer wrongness that the video was removed at all—that it was, in their words, “censored for six weeks.”

As indicated above, given that Ms. Lenz chose, in error, to investigate the First Amendment implications, and that the EFF chose to take the time to transform this minor event into a major case—and in light of the fact that the OSP (YouTube) is responsible for restoring files at its discretion—the six-week interval cannot be considered the responsibility of the defendant. In general, whatever factors result in a file being restored, either within hours, days, or weeks, are not in the control of the original takedown notice-sender; and as the UMG petition states, the Lenz video was ultimately restored via the counter notice procedure. In other words, Lenz’s and EFF’s time spent exploring both tort and constitutional violations—both of which fail—is neither UMG’s fault nor its responsibility to pay for.

Lenz Becomes a Fair Use Case

So, the only way for the EFF to argue that UMG had “knowingly misrepresented” that the “Dancing Baby” video was infringing was to prove via testimony that the company had not “instructed its employee to consider fair use” before filing the takedown notice. And that’s where we are today. In September 2015, the 9th Circuit Court of Appeals agreed that a rights holder must “consider fair use” before sending a takedown notice but stopped well short of agreeing with EFF’s assertion that such a consideration must be made based on an “objective” standard.

The EFF has tried to argue—indeed it can only argue—that a failure to “objectively consider fair use” is tantamount to “knowingly and materially misrepresenting that the material or activity is infringing.” As an amusing side note, in an early email to a friend (June 12, 2007), Lenz stated, “Mine’s not a fair use case at all.” Granted, she cannot be expected to know the law per se, but in context to the other comments and court records, this early email does seem to support the view that this entire case has been a fishing expedition—a lawsuit looking for an injury.

As argued in the UMG petition, a “subjective” standard with regard to all considerations is the reasonable and correct interpretation of the DMCA statute, which requires a takedown notice-sender to have a “good faith belief” that a use is infringing. The plain meaning of “good faith belief” is clearly subjective; and fair use doctrine is the most subjective aspect of copyright law—a multi-faceted assessment for which the precedent caselaw provides myriad, conflicting and narrow outcomes.

Hypocrisy Undermines the Intent of DMCA

So, even if the most experienced copyright attorney in the country were instructed to make an “objective” fair use assessment, she might ask how exactly this would be achieved. While it’s true that attorneys can make very solid fair use assessments—especially where precedent provides guidance—an “objective” standard applied to DMCA takedown notices would only further disenfranchise the independent rights holder who is no more an expert than Ms. Lenz was. This implies the need for counsel which contradicts the extra-judicial purpose of DMCA.

The truly galling hypocrisy here is that the indie rights holder would be expected to know with certainty when a use is fair while users remain free to infringe with impunity, and large OSPs are free to monetize those infringements on the basis that they “cannot know” what’s infringing or what isn’t. For the small rights holder DMCA is already toothless, but EFF would like to make it voiceless as well.

In Lenz, absent a ruling by the Supreme Court that fair use can be considered “objectively,” the foundation that UMG was ever in violation under §512(f)—that it “knowingly and materially misrepresented” that the “Dancing Baby” video was infringing—should fail. Consequently, the argument that any non-pecuniary injury was caused should also fail. Perhaps, the EFF will succeed in getting the $1,275 in pro bono “fees” Lenz theoretically owes the EFF for filing the counter notice in 2007, which would make this case landmark indeed—getting the Supreme Court to adjudicate a small claim.

Finally, it’s worth noting that in the same October 2007 ABC News story cited above, Gigi Sohn, then head of Public Knowledge, opined, “I think the large copyright holders believe that if they do not police every single use of their copyrighted work — no matter how benign — that somehow that will open the floodgates to massive piracy.”

Whether this observation was acutely naive or just cutely dismissive, the fact remains that over the next several years after Sohn said this, YouTube would go on to earn fortunes by hosting diluvian proportions of infringement by its users. In light of the immeasurable losses to working authors, who have almost no power under the DMCA to protect their rights, the EFF should frankly be ashamed of themselves for spending nearly a decade in federal courts fighting to protect absolutely nothing.

Are Candidates Even Talking About the 21st Century Economy?

It’s very common to encounter broad complaints saying things like, “Copyright law should not stop me from fixing or altering my technology.” Often, this generalization is made by people who don’t necessarily know they’re referring to Title I of the DMCA but who have read somewhere that copyright law prevents reverse engineering, maintenance, jail-breaking, and overall tinkering with products ranging from personal small electronics to cars, trucks, and tractors.

But as I first discussed in this post, the whole concept of ownership of many of our core products may be waning faster than these apparent conflicts with intellectual property law might ever be addressed. This transformation is highlighted by what seems to be an inexorable march toward an autonomous vehicle transportation system—a change that comes with consequences far more relevant than the matter of a “right” to fiddle with the gadgets we purchase.

With the announcement last week that the federal government officially endorses the development of driverless vehicles, it is noteworthy that no candidate running for any office seems likely to address the radical social and economic implications of this seismic shift in the transportation sector. Although I cannot bring myself to compare and contrast Donald Trump with any other prospective candidate for office, for the purposes of this post, suffice to say that between Trump’s version of trickle-down economics and Hillary Clinton’s version of focusing on the middle-class, it seems to me that neither candidate is talking about the same 21st century economy in which Wall Street is investing.

Candidates across the political spectrum keep referring to fair trade deals as a common scapegoat as a prelude to their myriad promises to “bring jobs back” to America. This is already a fallacy, pretending that we can reverse globalization through tax policy alone, or without a specific plan for investments—either public or private—that might actually grow domestic jobs. Meanwhile, VCs, Wall Street, and the tech firms are placing big bets on a more generally automated future; and nobody seems to want to talk about the jobs we are, therefore, poised to eliminate over the next decade or two. Not outsource through trade. Just eliminate right here at home.

For instance, a truly driverless future would probably wipe out a minimum of 10 million jobs, beginning with an estimated 8.5 million who work as drivers and at least a few million who work in some capacity related to the current ground transportation industry. Granted there would be jobs created in order to build and maintain a new, driverless infrastructure, but only a fraction of the number that would be lost. And equally if not more challenging is the question of whose investment would build this new infrastructure?

Let’s face it. The United States is bipolar when it comes to great building projects, which I think explains why our infrastructure is antiquated in contrast to other developed—and even developing—nations. As if to emphasize our duality in this context, it’s notable that the two eras when most American infrastructure was built happen to have been based on antithetical models. The first era was a period of unfettered capitalism, which built the foundations of the country’s industrial capacity from the mid-19th to the early 20th; and the second era was a brief period of outright socialism—the New Deal—which built highways, buildings, dams, etc. most of which is still in use today, even if it’s looking a little rusty.

Now that the Obama administration has given a federal fist-bump to the driverless vehicle—and if this does mark a tipping point when we can say this transition is inevitable—then we’re going to have to address the question of ownership (i.e. whose investment it’s going to be). Would Americans allow Google, Uber, Ford, Lyft, and Tesla (GULFT) to own the entire transportation infrastructure for the nation? Or would we build the infrastructure as a public work? Because historically, allowing private industry to make that kind of stranded investment in exchange for monopoly control has not been particularly good for consumers or innovation.

When the nation was first being electrified, there was debate over whether we should build a distributed versus a centralized system. A distributed system of smaller, co-generating plants would have been safer, more energy efficient, and less monopolistic. So, naturally we built a centralized system. This meant massive, stranded investments by the utility companies for which they could only be compensated through monopoly control of the market until those monopolies were finally busted up in the 1990s. Meanwhile, consumers (a.k.a. “rate payers”) had no competitive choices, and the utility owners had zero motivation to innovate. As a result of this legacy, the United States remains a follower rather than a leader in advancing new, non-carbon-based, energy solutions.

So, now we fast-forward a decade or two in the world of ground transportation. We no longer own cars. We hail a driverless vehicle to take us to the grocery store where the goods on the shelves have all been delivered by a driverless cargo vehicle from a distribution center serviced by hundreds of other driverless cargo vehicles. Accidents are very rare, the air is cleaner, and (in theory) consumer costs come down. We no longer have car payments or auto insurance, and the lower cost of transportation could lower the cost of goods.

But those benefits may easily be diminished if we haven’t considered how to address the massive shift of 10-plus million people formerly employed in ground transportation-related jobs. Plus, we now have a more thorough consolidation of transportation service than the railroad monopolies controlled at the turn of the 20th century. Every vehicle trip is now part of a vast, networked system that relies very little on human labor. So who owns that system? We have to assume that the capitalists currently investing in the model expect they will own it. That’s a lot of control to give to GULFT.

Wall Street, Silicon Valley, and now the Obama administration are all projecting a future in which the transportation sector simultaneously sheds millions of jobs and centralizes control of the lifeline of the entire nation—and not one candidate from any party thinks this is significant enough to talk about. Instead, they’re campaigning on traditional, and at times absurd, promises that they know best how to bring 20th century jobs “back.” In this one regard, maybe the future is already here because it doesn’t seem to me like anybody’s driving the bus.

Category: Culture