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Crying Wolf in the Section 230 Debate

After the 2016 election and news began to break about the amount of fake information and manipulative content that was being financed by various parties, it seemed clear that Section 230 of the Communications Decency Act (1996) would soon be the number-one cyber policy issue in the United States. Recently, in response to the latest horror show of back-to-back spree shootings—and after it was reported that the El Paso shooter posted his white-supremacist manifesto on the basement-dwellers’ board 8Chan—the subject of platform liability once again blew up across news outlets large and small.

Defenders of the online service provider (OSP) liability shield known as Section 230 insist it is the keystone legislation that makes the internet as we know it possible. But this only begs the first question for framing any reasonable discussion about the broader issue: Who said the internet as we know it is ideal?

Naturally, the folks who make billions from the web’s current design think it’s perfect in much the same way those who make billions in the extractive industries think the environment is doing just fine. And the network of organizations and academics who receive substantial funding from Silicon Valley also like to promote the message that we have Section 230 to “thank” for all the wonderful things the internet does for us. But how true is that statement?

Even before addressing the statute itself, it is important to remember that 100% of internet services that do not depend upon users publishing content to a public platform have nothing to do with Section 230. In other words, most e-commerce, navigation, reading news, downloading e-Books, streaming movies and music, making travel reservations, emailing, document sharing, and searching databases and archives, etc. are all benefits of digital life that owe little or nothing to the existence of Section 230. So, when the pundits repeat the imperative, “Save the internet as we know it” this is a tad overwrought because the statute concerns one form of internet use—and not necessarily its best use by a long shot.

Facebook, YouTube, Twitter, WordPress, Reddit, Yelp!, and similar providers are entirely dependent upon user-generated content (UGC); and many platforms that are not wholly dependent on UGC (e.g. The New York Times) still consider it beneficial to host comments by their readers. Even this blog hosts comments, and I would certainly not want to be liable for inadvertently “publishing” material by a third party that could trigger some cause of action. And that’s where the Section 230 saga begins—with an anonymous user posting defamatory comments on a financial bulletin board in 1995.

“They were drunk on youth, fueled by greed, and higher than kites.” – Jordan Belfort –

The Martin Scorsese film Wolf of Wall Street, starring Leonardo DiCaprio, dramatizes the memoir of Jordan Belfort, who co-founded the sham investment firm Statton Oakmont in 1989 to engage in pump-and-dump schemes—manipulating stock prices and defrauding investors while making millions for Stratton’s employees. Belfort and his partner Danny Porush were indicted in 1999 for securities fraud and money laundering, but four years earlier, while still riding high in every sense of the word, they were ballsy enough to sue online service company Prodigy because somebody on the “Money Talk” chat board opined that the Stratton guys just might be criminals.

In Stratton Oakmont v. Prodigy, the Supreme Court of New York held that because the platform exercised editorial control over “Money Talk,” this meant the company was a “publisher” of users’ comments and, therefore, liable for any cause of action stemming from those comments. (On a side note, I am curious as to how the comment(s) met the standard of defamation when Stratton Oakmont was under almost constant scrutiny by securities officials, but older state court records can be hard to locate, and I cannot find the original complaint.)

The important point about the Prodigy case for cyber policy is that the fledgling internet industry justifiably freaked out at the decision. At that time, Congress was still drafting the CDA, which was designed to encourage — not discourage — platform responsibility and moderation. For instance, among the stated goals of the provision …

(5) to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

So, how is it that Section 230 came to actually shield sites that either refuse to mitigate some of that conduct, or worse, purposely profit from that conduct? Well …

The “Good Samaritan Clause”

In response to the Prodigy ruling, early internet developers and entrepreneurs presented a very reasonable complaint: If the government wants service providers to moderate content, but the courts find that moderation will make them liable for users’ material, nobody will ever invest in the development of internet platforms that rely on user-generated content. The potential liability is just too great, and nobody can effectively scrutinize millions of inputs every hour.

Thus, the ‘Good Samaritan’ Clause was drafted as a statutory remedy to ensure that good-faith efforts to moderate content would not trigger liability. Specifically, the statute refers to material that users or providers may consider “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

In other words, platforms were encouraged to maintain what is often referred to now as “community standards,” and in return, the government made it clear that enforcement of such standards would not render the service provider liable for harmful material posted by their users. From the statute …

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,

(2) Civil liability No provider or user of an interactive computer service shall be held liable on account of—

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).[1]

The Current Reality

That was twenty years ago. The publicly available internet was new and nobody could be quite sure what kind of platforms would emerge as the industry leaders. Over the intervening years, the courts largely interpreted Section 230 as a blanket immunity for service providers, often citing the statute as grounds to dismiss almost any complaint against almost any service provider. Consequently, the platform owners enjoyed the financial bounty that comes from hosting EVERYTHING while characterizing their reluctance to remove even harmful material as an ethical mandate to “protect free speech.”

The predatory, monetize-everything culture of Silicon Valley, supported by Section 230, is how Facebook wound up supporting (and receiving money from) Russian agents targeting the American electorate with disinformation campaigns. It is how Cloudflare rationalized hosting 8Chan until this month, when the troglodytic chat board was identified in the mainstream media as a crucible for hate-mongering, and where the El Paso shooter published his pre-assault “manifesto.”

But remember that the statute expressly reminds service providers that it is not their job to protect free speech; and this is just a clue as to how the internet industry, with the help of the courts, turned the intent of Section 230 inside out. Rather than use the government grant of a broad liability shield to engage in responsible moderation, many platforms asserted 230 as absolute immunity and, therefore, shirked moderation—even where clear harm is being done. Then, to further aggravate matters, the industry promoted this laissez-faire policy as a public benefit.

Section 230 is the statutory support for conduct like revenge porn, or (perhaps most ironically) it is the law that enables a website to intentionally trade in defamation as a business enterprise. That’s right. A Congressional response to a bad defamation ruling in 1995 now protects a site owner who literally uses defamation as salacious content to generate advertising revenue. That’s how screwed up the current application of the law is.

If Stratton Oakmont was emblematic of the financial-sector corruption that typified the 1980s and 90s, today’s big-ticket hucksters are the internet companies selling the story that our interests are best served by their unfettered ability to monetize not just every bit of content—but our data profiles. And while many citizens and lawmakers have lately seen through that charade, the tech-utopians will continue to say that recent calls for greater platform responsibility is a “moral panic,” that we have been overreacting to events since 2016.

As the drumbeat grows louder for revision for of Section 230, the vast and well-funded industry voices will cry wolf once again. They will once again declare that the internet faces an existential threat, and they will once again not clearly define what they mean by “the internet.” Because, frankly, the companies that will spend the most capital defending Section 230 are the ones whose platforms are not doing the world nearly so much good as they like to believe.

The Facebook scandals that have unfolded since early 2016 demonstrate clearly that user-dependent sites like social media platforms are opaque in their operations; and there is no evidence whatsoever to indicate that more online “engagement” has produced a more enlightened, rational, civilized, or thoughtful discourse in the collective management of the Republic. On the contrary, if anyone thinks social media has not been the primary catalyst driving people apart, I’ve got some old Stratton Oakmont positions to sell you. So, let’s maintain a little perspective as we approach what seems like an inevitable debate over Section 230 reform.

The People the CASE Act Critics Don’t Want to Mention

“We are all authors now.” This has long been a talking point of anti-copyright organizations. I have credited it to Gigi Sohn, co-founder and former director of Public Knowledge because she kept tweeting it during House Judiciary Committee hearings on building copyright consensus in May 2013; but I don’t really know who said it first. I only know that it’s a popular theme that may finally come around to bite the hands that tweet it.

Most of the time, my friends and I respond to this bumper-sticker phrase by criticizing the way in which it is false—namely that just because everyone posts stuff online, this does not make everyone authors of expressive works such that it demands a wholesale reversal of the way we think about copyright law. In plain terms, just because 1.2 billion of us are all chattering, clicking, and sharing on Facebook and Twitter, this does not make the professional creator’s copyrights worth any less than they were before social platforms existed.

On the other hand, there is an extent to which that phrase has an element of truth to it. Internet platforms and digital electronics have created opportunities for new kinds of authors, new forms of expression, and new avenues for entrepreneurism. For several years, the copyright critics of the world have alluded generally to these new opportunities as a reason to prevent copyright enforcement online. And they got away with this proposition by painting a false portrait of who copyright owners really are.

With well-funded resources to flood the blogosphere, the critics have bludgeoned the idea into peoples’ heads that the only copyright owners are either corporate entities or already-wealthy creators, who really should let small infringements go. This false picture of the copyright-owner (and infringer) landscape has enabled entities like FFTF, EFF, and PK to use the kind of shorthand that is so effective on social media, sowing division between Creators and Users.

But as these same digivangelists have preached in the past, many Users are Creators; and to the extent they’ve been right about that, a lot of those User/Creators are also—you got it—copyright owners. What EFF, PK, FFTF et al are not telling these constituencies is that many of the “new” creators empowered by the internet may actually have a lot to gain from the copyright dispute tribunal that will be established by passage of the CASE Act.

The popular YouTuber who has a clip appropriated by a commercial entity can avail himself of the Copyright Claims Board (CCB). The budding cartoonist who is just building a following via Instagram—and who never thought about copyright until she saw one of her characters used without permission—can avail herself of the CCB. The kitchen-table startup who makes unique products to sell on Etsy may find a remedy via the CCB.

A key factor in this particular context is that many creators of these online works do not register copyrights, and often with good reason. And while the CASE critics portray it as a negative that a rightsholder can initiate a claim via the CCB concurrent with filing a registration application, this is actually a significant advantage for the kind of entrepreneurial creators they claim to support. (See post here for more detailed explanation.)

As the entrepreneurism fostered by the internet continues to grow, the “new” creators have started to discover what the “old” creators already knew—that if you make something cool, somebody will probably try to take it for themselves. EFF, Public Knowledge, and Fight for the Future are probably hoping their creator constituents don’t notice this logical flaw in their campaign against the CASE Act. But regardless of what they are thinking (or not thinking), the fact is many of you Users really are Creators and, therefore, copyright owners.

And that brings me to a doozy of a point these critics REALLY don’t want to tell anyone. Their favorite victims—the targets of misused DMCA takedown provision—will have an unprecedented remedy in the provisions of the CASE Act. That’s right. You might make a fair use of a work that is removed by DMCA; or have material taken down by a party misrepresenting itself as the rightsholder; or have commentary or parody removed for reasons that have nothing to do with copyright. And now, instead of just being a statistic for the EFF to blog about, you can affordably pursue a claim against the party for misuse of DMCA via the CASE Act.

Perhaps on this point most of all, the EFF, FFTF, PK would rather not talk about such pesky details because they might start to look as irrelevant to copyright policy as they are chronically dishonest about it. Let’s face it. For all the noise they make on subjects like wrongful DMCA takedown, what do they really do for any of those users other than capitalize on the problem as a way to maintain their own relevance and fundraising? CASE Act provides an accessible, affordable remedy. And maybe that’s the thing the critics hate most of all.

How to Avoid Copyright Infringement

After the CASE Act passed the Senate Judiciary Committee* on Thursday last week, the critics hit “Publish” on the blogs they had written with the intent to scare users—doubling down on the narrative that the Copyright Claims Board (CCB) for small claims will lead to a whirlwind of infringement judgments against ordinary and innocent users. I and others have explained the many technical reasons why this allegation is unsupportable under the new statutes, but folks out there will still be frightened by blogs like the one from the oxymoronically-named Center for Democracy and Technology. Stan Adams writes …

“You may be thinking, ‘I won’t infringe copyright, I’ll just make sure not to use any protected works.’ Here’s why that will not be as easy as you might think. First, copyright is automatic. This means that when someone snaps a new photo, they immediately hold the rights to it. If you found a photo or other work that you wanted to use, you would need to get permission from the rightsholder. In some cases, determining who to ask is relatively easy.”

Actually not infringing copyright is easier than Adams wants you to think. Believe it or not, many of the most prolific authors and users of works since 1978 (when copyright became automatic) have been not infringing copyright rather effectively throughout their careers. Not just the wealthy stars of the entertainment world, but regular middle-class creators (like the ones the CASE Act is designed to help) have been not infringing one another’s copyrights in the production and reproduction of millions of works. How they achieve this miracle is really quite simple, and the basic steps are implicit in Adams’s paragraph above. To avoid infringing copyrights, do the following:

Step 1: Do not use work that is not yours.

Step 2: If you want to use work that is not yours, do a little homework and make sure you have a plausible legal basis for using the work; or obtain a license for use of the work.

Step 3: If you are unable or unwilling to make the effort in Step 2, return to Step 1.

When the CDT, EFF, et al write posts like the one by Adams, there is a sleight of hand afoot (if you will). He is purposely, albeit subtly, conflating the unintentional user (e.g. someone reposting a meme) with the intentional user (e.g. a blogger or commercial entity posting editorial or promotional material). It is neither affordable, nor technically possible, under the CASE provisions for a small claimant to go after myriad unintentional users like re-tweeters et al. But the intentional users, who will be the subjects of claims brought via the CCB, really can avoid infringing by following the basic guide above.

Whether you are advertising a business, making a political statement, promoting an event, writing a blog, etc., the moment you consciously decide you want a photograph, illustration, video clip, or music to accompany the message, your responsibility to not infringe copyright is both reasonable and entirely achievable. There are many low-cost options to avoid infringing copyright, including, in some cases, asking the copyright owner for permission to use the work. I know. It’s downright uncivilized. Permission.

One reason these organizations get away with scaring people about CASE is that we have normalized copyright infringement (to say nothing of permission in other contexts) to the extent that infringement is portrayed as a form of civil disobedience rather than what it usually is—a complete lack of courtesy toward individual people. Because what happens in real life is that some business owner, perhaps a local insurance broker, builds a web page for his company, and because the refrain grab it off the internet has been playing in his head since middle school, he does not stop to think that the photograph of the family buying a car requires a license for use.

That is the kind of infringement CASE is designed to address for the independent creator; and frankly, the commercial infringer should be grateful for the small-claim option as well. As we saw in Brammer v. Violent Hues, a commercial user who really should have known better wound up costing himself a lot of money in federal court defending an indefensible use of one man’s photograph. That was an archetypal example of an intentional user hastily making use of a photo he “found online,” knowing full-well that he had other options, including lower-cost stock photos or taking his own picture.

Just because the internet makes copyright infringement a bit too easy, this does not mean that not infringing copyright is especially difficult. And CASE does not change anything about the parameters of copyright law, except that it may perhaps remind certain users that, no, everything online is not there for taking. If intentional users simply pause to think about what they are doing and to what purpose, making legal and/or fair uses of works is not so mysterious as Adams et al would have you believe. After all, if you are building a web page, writing a blog, promoting an event, etc. and not thinking about what you’re doing, you may have bigger problems than potential copyright infringement.

The “wild west” is over. Good riddance.

Beyond copyright matters, I believe the folks at these organizations mean well (mostly), but they should pause and think about their personal moral codes in context to the world view they keep promoting—because it is actually destroying the world. The romance of the “wild west” internet is over, and good riddance because the Wild West is nothing to aspire to as a society. Consequently, it is worth asking why the CDT, EFF, et al are still so eager to promote the illusory value of never thinking about what we do online or to whom we do it.

These groups tend to oppose both platform and user liability for almost any kind of conduct; but whose interests are really served by a free-for-all market devoid of human agency, permission, or responsibility? As we see in daily examples, it is the perfect environment for entrenching the economic and political power of the major web platforms while safeguarding the conduct of predatory actors and trolls, and—I would add—amplifying hateful rhetoric with tangible and dire consequences. I suppose Stan Adams’s organization could change its name to Center for Tyranny-of-the-Mob and Technology, but that’s a bit of a mouthful and probably not good messaging. Yet, bizarrely, it is kinda what they are selling.

*Original publication stated that CASE passed out of the Senate and not just the SJC. Thanks to reader Dave Davis for catching the error.

Photo by conejota.

Category: Culture