Category: Culture

Does Masnick Not Know That The Public Is Not An Online Service Provider?

Signaling one of the talking points I expect we’ll be seeing quite often as the DMCA fight brews—and it is brewing—Mike Masnick and others have declared that the Copyright Office, in its newly released report on DMCA Section 512, neglected to include the public among the stakeholders with a vested interest in the 1998 addition to the copyright law. In his first post on the topic, Masnick asks rhetorically Does the U.S. Copyright Office Not Know That Copyright’s Main Stakeholders Are The Public? Never mind that this is a retread of an unsupportable theme of his, but the premise sets up a false dichotomy that will be used as a pretense to campaign for the status quo of Section 512 — especially because the USCO has recommended a few areas for possible revision.

Let us first keep in mind that we, the public, are always the beneficiaries (or not) of policies relating to the interests of both copyright owners and online service providers (OSPs). Or, as my friend Neil Turkewitz puts it, “The public interest is always affected by decisions made by private actors. Indeed, it’s fair to observe that the public interest is itself a contrivance, and represents the constellation of interests of individual members of the public.”

We enjoy the benefits created by internet platforms just as we enjoy the works produced by rightsholders. Because the public interest is intertwined with the interests of both sides in this narrative, the legislative history (despite what Masnick claims) does not point to a triad of stakeholders in which the public is one prong. The DMCA was negotiated by two sides (both representing large, corporate interests) hammering out a deal in the late 1990s, at a time when nobody could have predicted how the consumer-based internet might evolve.

On the OSP side, when AT&T and the other telcos sought a shield against liability for the inevitable copyright infringements by the public, the primary rationale (and a reasonable one) was that investors would shun internet prospects if the service providers would be vulnerable to expensive and ongoing litigation. These companies did not lead with homilies on free speech or the fair use exception in copyright law. It was about business. So, let us not be blinded by the fallacy of presentism. When the Copyright Office says that 512 was intended to balance two competing interests—rightsholders and OSPs—that statement is neither inaccurate nor indicative of a disregard for the public.

One reason I imagine we will be hearing this rhetorical accusation about the allegedly missing public is that it softens the ground for declarations like this one:  “… the report mainly focuses on large internet providers liking the safe harbors, and copyright holders wanting it to be worse…and then claims that since only one side is ‘upset’ clearly that means things are out of balance,” writes Masnick. See what’s happening there?

By pretending that Section 512 is not the result of a two-sided arrangement, Masnick is able to make a mathematically impossible statement, implying that when one side of an agreement feels it isn’t working, this is somehow not evidence of an imbalance. Even if one has contempt for a particular side—and I think copyright critics’ contempt for authors is a matter of record at this point—if one side says an agreement is not working, this is the definition of “unbalanced.” Further, the implication that 512 is working just fine for the public is political theater. Not only could most of the public likely not explain what Section 512 does, but the public also does not enjoy any kind of liability shield under the terms of the DMCA.

It is frankly disingenuous to suggest that the public is ever represented as a whole constituency. And it is as arrogant as it is futile when people like Masnick presume to speak for the public. Which public would that be exactly? Are millions of creators of copyrighted works not part of the public? What about the millions of people whose livelihoods are dependent upon the creative industries? Or what about the public that simply enjoys creative works, which is pretty much everybody? John and Jane Q Public are not nearly so confused about the relationship between copyright and the works they enjoy as many critics like to suggest. And the conflicts inherent to Section 512 were, and remain, conflicts between rightsholders and online service providers. Period.

It is not wrong to maintain that the public has an interest in the implementation of Section 512, and in future posts, I’ll get into some of the proposed amendments that may or may not be considered by Congress. But because those forces hellbent on maintaining the status quo of 512 decided, as a first volley, to lob this allegation that the public was overlooked by the Copyright Office, I will insist that this is neither supported by the content in the report, nor remotely instructive to the purpose of legislative review.

Meanwhile, as long as Masnick et al insist upon conflating the public interest with that of the OSPs, we might want to keep in mind that the public has not exclusively benefitted from the catalytic effects of internet platforms over the last 20 years. We don’t see any headlines saying Songwriters Sell User Data to Troll Farms or Photographers Tied to Election Fraud or Poets Fueling White Supremacy Worldwide. Which force is more responsible for InfoWars, copyright or YouTube?

I know. Don’t blame the internet for every problem in the world. But a little common sense is called for, no? Is it a coincidence that platform expansion is concurrent with rampant ignorance raging through Western civilization like a forest fire? Huge swaths of the public are evidently so howling-at-the-moon stupid (thank you Aaron Sorkin for the expression) that they are willing to believe anything. So, I think we have reasonable cause to look askance at the dawn of the so-called information age and ask where we went wrong.

In that spirit, let us also remember that the purpose of copyright, as expressed in the constitutional clause, is to “promote science.” While “science” has long since been expanded to encompass the creative arts, the notion of enlightenment still lives in the doctrines of copyright. And to the extent the Copyright Office seeks to preserve that principle, it is unquestionably serving the public.

Georgia v. Public Resource: Much Ado About Very Little

I was on the fence with regard to commenting on Georgia v. Public Resource. Its details are arcane, rather dull, and, despite rising to the level of a Supreme Court decision, is generally inapplicable to copyright law. In essence, the Court succeeded in commenting on a matter of contract law because the upshot of this will be that States seeking to hold copyrights in the kind of works at issue in this case will simply amend their relationships with the private third parties that produce such works. I think my biggest resistance to this story was summarizing the facts because holy moly are they boring! So, here they are, cut and pasted from the SCOTUS Syllabus:

The Official Code of Georgia Annotated (OCGA) includes the text of every Georgia statute currently in force, as well as a set of non-binding annotations. The annotations typically include summaries of pertinent opinions of the state attorney general, and a list of related law review articles and other reference materials.  The annotations were produced by Matthew Bender & Co., Inc. a division of LexisNexis Group, pursuant to a work-for-hire agreement with the Code Revision Commission, a state entity composed mostly of legislators.  

Respondent Public.Resource.Org (PRO), a nonprofit dedicated to facilitating public access to government records, posted the OCGA online and distributed copies to various organizations and Georgia officials. The Commission sued for copyright infringement; PRO argued that the entire OCGA, including the annotations, fell in the public domain. The District Court held that the annotations were eligible for copyright protection. The Eleventh Circuit reversed.

So, to clear up one possible confusion about this case, what was NOT at issue, despite some murmuring you may get from the blogosphere, was any question that the law can be copyrighted. It cannot. That question was generally settled in the very first copyright case considered by the United States Supreme Court in 1834 known as Wheaton v. Peters. At issue here were those annotations, the descriptive summaries of either case law or statutes; and there is no controversy as to whether annotations in general can be the subject of copyright. They can. So, what was the big whoop in Georgia v. Public Resource?

The not-so-big whoop came down to the majority’s opinion, written by Justice Roberts, about the relationship between Georgia’s Code Revision Commission and the private party, Matthew Bender, hired to produce the annotations. “Under the agreement, Lexis drafts the annotations under the supervision of the Commission, which specifies what the annotations must include in exacting detail. The agreement also states that any copyright in the OCGA vests in the State of Georgia, acting through the Commission.”

What that boils down to is that because Lexis was contracted under a Work Made For Hire (WMFH) agreement, the Commission is the “author,” and is, therefore, barred by this decision from owning copyright on the grounds that the Commission is acting in its official capacity as an extension of the state legislature. At least that’s what the majority held, albeit after a longwinded tour through the nineteenth century meaning of “author” that I frankly cannot be bothered to summarize here because it hardly matters.

Suffice to say the Georgia decision changes nothing in the longstanding doctrine that works written by judges and legislators, as part of their official duties, may not be copyrighted. But if you read the mercifully crisp dissent written by Justice Ginsburg, joined by Justice Breyer, the distinctions she describes about annotations makes one thing abundantly clear—they are optional. “Annotations aid the legal researcher, and that aid is enhanced when annotations are printed beneath or alongside the relevant statutory text,” Justice Ginsburg writes. “But the placement of annotations in the OCGA does not alter their auxiliary, nonlegislative character.”

States have to make their statutes and court opinions freely available to the public, but they are not obligated to hire a company like Matthew Bender to create annotations that serve as a convenience to the reader. Somebody has to get paid to do the annotating work, and the State’s copyright in the OCGA was just one way to skin that particular cat.

One possible outcome of this decision could be that some states get out of the “official” annotation business, leaving a company like Lexis to still do the work but also own the copyrights. Or the states could simply restructure the way they work with third parties, like dropping the approval process and/or revising the contracts. Or they could just stop producing annotations altogether. So, all in all, much ado about nothing for the Supreme Court, but perhaps a nice respite from larger storms brewing.

Still, Mike Masnick at Techdirt seemed to feel there was a lot to say about this case, presumably because he does present it in his post as a matter in which the state was “locking up its laws under copyright.” That would be a big deal if it were true, but the error explains why Masnick characterizes Justice Ginsburg’s dissent as exemplary of what he calls her “copyright maximalism.” I still maintain, as I wrote years ago, that I have no idea what a copyright maximalist is, but if RBG is one, sign me up. Because just maybe there is a correlation between Justice Ginsburg’s notorious support for authors’ rights and her no-bullshit distillation of this nothing of a case.

Thanks Big Tech. But We’ll Still Need to Talk.

About ten minutes after the world went into self-quarantine, and we all instantaneously became more dependent on internet platforms, you could almost hear the keyboards clacking, as various pundits raced to announce that the techlash is officially over. And that it never should have happened.

For instance, Ryan Bourne of the libertarian CATO institute said as much. Writing on April 9 for The Telegraph, he declared, “In many ways, our current crisis is seeing the promise of Big Tech fulfilled. The value of greater online connectivity – tech ‘bringing us together’ – has never been clearer. HD quality video calls allow the elderly to continue to see grandchildren while in isolation.”

Cue montage for every anthemic Google TV spot we can expect to see in the near future. And to be fair, we cannot deny that internet platforms do provide resources and capabilities that, in an emergency like the present, go from being merely important to absolutely essential. We do not need to list the many ways in which digital technologies and internet platforms are sustaining many basic functions and some semblance of commerce at the moment. We’re all living those examples every day. 

In case you happen to be unfamiliar with the term techlash, it is shorthand for describing the general shift in attitude, beginning in early 2016, when the public, the media, and lawmakers all, rather suddenly, opened up to the idea of holding the major platforms responsible for some of the content they host and/or the data they abuse. This change in mood was of course sparked by revelations that Russian agents had meddled in the 2016 U.S. election, that troves of Facebook user data was used by political manipulator Cambridge Analytica, and that our social platforms were full to bustin’ with “alternative facts.” 

While many pundits, and the internet companies themselves, will continue to burnish Big Tech’s image against the contextual stone of COVID-19, there were some rather important policy discussions just beginning to take meaningful form when the microbes hit the fan.  And we should most certainly not, as Bourne proclaims, “… put the crude ‘reining in Big Tech’ agenda straight into the policy dustbin.” Granted, he is primarily responding to anti-trust action in the EU and murmurings of same in the U.S., arguing, “The benefits of winner-takes-most competition right now are clear.” And while the breaking-up Big Tech discussion deserves its own forum, there are other matters on the table.

As a general statement, Bourne’s conclusion is irrational, given the impetus for its writing. The more a private industry proves itself to be of vital public interest, the more it deserves fair but rigorous public scrutiny. It would be preposterous to decide, now that we’ve seen how much we rely on Big Tech, that these companies should be allowed to do whatever the hell they want. Though I get why a libertarian would say otherwise. 

Specifically, there was a very critical policy debate (long overdue) that was finally taking place, thanks in part to the so-called techlash. And if we were to take Bourne’s dustbin comment seriously, we would only succeed in sweeping whole dust bunnies of unresolved problems back under the rug. That conversation is whether all platforms should continue to enjoy absolute immunity from civil liability for harm caused by means of certain content they host and, quite often, monetize. 

Harassment victims, whose troubles are exacerbated by the liability shield, Section 230 of the Communications Decency Act, will still have a complaint or two when this crisis is over. Likewise, creators, whose music, photos, films, etc. are chronically pirated via platforms immunized by Section 512 of the Digital Millennium Copyright Act, are hardly finished having that conversation. After all, it only began in earnest on February 11, when the Senate Judiciary Committee held its first hearing in what was scheduled to be a yearlong review of the DMCA. 

When those hearings resume, I imagine we will see a lot of post-crisis inspired enthusiasm for Big Tech seep into testimony on the Hill and the talking points of Silicon Valley’s network of activist/PR agencies. It is easy to anticipate, for instance, declarations like, COVID-19 revealed just how essential internet access is for everyone, and, therefore, no provision should ever bar that access. 

In context to the DMCA, this would be a swipe at §512(i), which requires that a platform wishing to avail itself of the “safe harbor” provision, must implement an effective termination policy for repeat copyright infringers. COX Communications is now the poster child for what happens when an ISP implements a Potemkin termination policy, having lost a one-billion-dollar lawsuit in December 2019.  In its amicus brief on behalf of COX, the EFF cited access to education, employment, and government services as rationales; so it is a safe bet these same arguments, though unpersuasive to date, will be reinvigorated by the coronavirus experience.

Naturally, if the ISPs were persuasive that access is a human right, this could abrogate the “repeat infringer” provisions of Section 512. And while there is reason to be skeptical that the ISPs can successfully argue the “access as right” principle as a matter of law, the generalized “importance of the internet” trope has been used for years to militate against holistic enforcement of the statutes as they are written. (Also, I would not expect the access providers to take the human right principle so far as to offer free access to all during a crisis, though I would applaud them if they did.)   

As noted in my post about the second DMCA hearing, Professor Justin Hughes observed that §512(j), which provides for injunctive relief by means of site blocking, has hardly been implemented in the United States. And despite a preponderance of evidence that site-blocking has been effective in other jurisdictions in combating piracy without harm to speech rights, I imagine we can expect a litany of headlines and memes saying things like, Imagine your child can’t get her homework done during the next crisis. Tell Congress no site-blocking.

Of course the homework thing (and related examples) will have nothing to do with implementing §512(j), but trivial realities have never stopped the “digital-rights activists” from engaging in this kind of hyperbole before. Why would they restrain themselves in a climate of renewed ebullience for Big Tech that will probably follow the ebb of this pandemic? 

By all means, let us share a golf clap in recognition of the fact that, thanks to internet platforms and related technology companies, many of us can adapt to functioning at a distance in this strange and difficult moment in history. But let’s not trip over ourselves in fawning adulation. These encomiums to Big Tech are typically overbroad, presuming to conclude that the benefits of an industry obliterate the public interest in holding that same industry accountable for any potential harms. No corporate entity deserves that much free rein. Not ever. When this crisis subsides (and I hope it subsides), we will all need to heal in one way or another, and after thanking Big Tech for all it can do, and has done, we’ll still need to talk about a few things.

Photo by: Ansonlu