Category: Culture

Can U.S. States Infringe Copyrights with Impunity?

If the Supreme Court agrees to hear Allen v. Cooper, copyright owners and constitutional scholars will both be watching closely.  The practical matter for copyright owners is whether a U.S. State, or agents of a State, may freely use copyrighted works without permission and remain immune from claims for infringement.  As of now, the Fourth Circuit Court of Appeals contends that a State entity (e.g. a university) may use or make available an author’s music, photography, film clips, etc. without compensation or permission, and the rightsholder has no remedy whatsoever.  First, some background as condensed as I can make it …

June 10, 1718, the pirate Edward Thatch a.k.a. “Blackbeard” grounds his flagship Queen Anne’s Revenge off the coast of North Carolina at what is today called the Beaufort Inlet.  Fast-forward past the Revolution to the tenuous founding period when the newly-independent States separately debate ratification of the Constitution.  

For instance, July 1788, nearly 300 delegates from the counties of North Carolina gather for several days  in Fayetteville and devote more than two of those days debating Article III and the fears that the the federal judiciary will preempt the authority of state courts.  September 17, 1789, the U.S. Constitution is ratified including, of course, Article I, Section 8, Clause 8, granting Congress the power to write federally uniform IP laws, and the first Copyright Act is passed in May of 1790.

But …

In 1793, anti-Federalist fears are realized in Chisolm v. Georgia, when the estate of Alexander Chisolm of South Carolina successfully sues the State of Georgia in the U.S. Supreme Court for monies owed for supplies provided during the war for independence.  State obligations for the war debts are already a heated issue, and now a citizen of one State has sued the government of another State in the brand new federal court system, thereby vitiating the State’s authority over its own courts.  In response, we get the Eleventh Amendment on February 7, 1795, establishing the doctrine known as state sovereign immunity, to wit …

The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

As an interesting side note, North Carolina Federalist, James Iredell, serving as Supreme Court Justice was the one dissent in Chisolm; and in the aforementioned 1788 debate in Fayetteville had declared, “The propriety of having a Supreme Court in every government must be obvious to every man of reflection. There can be no other way of securing the administration of justice uniformly in the several states. There might be, otherwise, as many different adjudications on the same subject as there are states.” 

Fast way-forward to November 1990.  Congress passes the Copyright Remedy Clarification Act (CRCA) to affirm that, indeed, States, instrumentalities of States, and officers and employees of States acting in their official capacity, are subject to suit in Federal court by any person for infringement of copyright… 

Then …

On November 21, 1996, an exploration company called Intersal, Inc. locates the wreck of Blackbeard’s Queen Anne’s Revenge, and the State of North Carolina engages Rick Allen’s Nautilus Productions to produce documentary motion picture material of the wreck, its recovery, etc.  At some point, a dispute arises between Nautilus and the State over certain uses of the footage, and the State settles the claims for a fee of $15,000.  But subsequent to that settlement, in 2015, North Carolina passes a remarkably narrow law “requiring that all recordings and other documentary evidence of a derelict vessel or shipwreck in the custody of any agency of the North Carolina government be a public record,” to quote Hugh Stephens from his excellent coverage of this case.  This law is colloquially referred to as “Blackbeard’s Law.”

Next …

North Carolina resumes infringing uses of the documentary footage, and Rick Allen files suit.  The District Court finds for the plaintiff, but on appeal, the Fourth Circuit reverses, holding that the 1990 CRCA is unconstitutional, finding that state sovereign immunity means that no copyright owner may hold any State (or its agents) liable for copyright infringement.  

P.S.  That this particular case happens to involve a literal pirate is almost as nerdishly satisfying as the fact that the name of Blackbeard’s ship Queen Anne’s Revenge shares the eponym with what is typically considered the first authorial copyright law, England’s Statue of Queen Anne of 1710.

Copyright Owners Should Be Concerned

Copyright infringement by State actors is an ongoing and growing concern, especially in a time when university librarians et al seem too eager to make everything available via the internet. Although the Fourth Circuit holding is consistent with precedent rulings, an amicus brief filed in this case argues that the Supreme Court should grant cert in Allen, in part because those precedent rulings are deeply flawed.

“If the Fourth Circuit’s decision stands, there will be few (if any) remedies available to compensate authors for their losses. This is not what Congress intended,” states the brief written by David Nimmer* in collaboration with Professor Ernest Young and book author Michael Bynum.  Bynum is an exemplary victim of the growing State infringement problem.  After he provided an advance-copy of a new book to the Athletic Department of Texas A&M for the purpose of fact-checking, the university instead made the work available on the internet and claimed sovereign immunity in its defense. 

The Nimmer brief is excellent reading for any copyright/constitutional law geeks out there who want an overview of the various components related to this case, which I cannot adequately summarize here.  But one point the brief makes that may strike many readers as especially compelling is the argument that, at the nation’s founding, the Framers recognized the necessity for a uniform, federal copyright law concurrent with the need to protect the individual right of free speech.  And because there is evidence in both the record of the founding period, and in subsequent caselaw, that copyright is meant to be an “engine of free expression,” the Nimmer brief argues quite rationally …

“The Framers could not have intended for States to retain immunity against claims for copyright infringement, as such immunity deters the creation of artistic expression and allows States to interfere with the author’s speech, including how he wishes to publish and use his work.”

This is an aspect of copyright that many casual critics often overlook:  that by forcing an author to make work available in a manner anathema to her intended expression—including her right to express nothing at all—the use may abridge her speech right.  When that kind of use is made by a citizen or private entity, the First Amendment is not implicated; but when such a use is made by a State actor, the First Amendment is absolutely implicated.  This is just one of several reasons why it is nonsensical to conclude that the Eleventh Amendment could ever have been intended to prevent an individual citizen from exercising a constitutionally-protected right when that right is infringed by a State actor.  As the Nimmer brief states quite succinctly, “Sovereign immunity should not be a license to steal.” 

Also see Nautilus Productions’s own blog post on this case.

* David Nimmer is the co-writer, with Melville Nimmer, of the authoritative treatise Nimmer on Copyright.

Section 230: Fix It or Lose It?

In 2015, Rep. Jackie Speier (D-CA) introduced a bill that would make it a federal crime to engage in what is generically called “revenge porn.”  I say generically because “revenge” alludes to a specific motive, usually that of a disgruntled ex-boyfriend who decides to get back at a former girlfriend by distributing intimate or sexually explicit images of her online.  There are revenge porn websites dedicated to hosting this type of material, and in some cases, site operators have engaged in extortion, demanding money from victims in exchange for removing their images. 

Naturally, the usual suspects responded to Rep. Speier’s proposal with the usual hand-wringing jitters, asserting that any implication of platform responsibility for almost anything will only lead to eroding the proper functioning of the internet.  (Is it functioning properly?)  As quoted in my 2015 post, Mike Masnick at Techdirt stated, regarding the Speier bill, “Trying to accurately describe what ‘revenge porn’ is for the sake of criminalizing its posting, will almost certainly have chilling effects on third parties and undermine the very intent of the CDA’s Section 230.”  [Emphasis added]

But legislation like this does not undermine the intent of Section 230 of the Communications Decency Act, and saying otherwise grossly misrepresents—in fact inverts—the goal of that liability shield when it was written into law in 1996.  Section 230 of the CDA was specifically enacted to encourage content moderation by platform owners to remove unlawful or harmful material.  Unfortunately, this “safe harbor” provision has since been reimagined by the internet industry, web activists, and some jurists as a legal foundation to avoid content moderation—even when ordered to do so by a court of law.  That is an aberration of what CDA230 was meant to achieve.

To date, forty-one states plus Washington D.C. have criminalized non-consensual use of sexually explicit or intimate visual material, and New York is poised to join this company with a new bill now proceeding through the State Assembly.  Notably, the language in this bill (similar to Speier’s federal proposal) suggests to me that identifying the criminality of this particular conduct is not so far outside the scope of legislative capacity as Masnick implied in 2015.  The New York bill states, “…with intent to cause material harm to the emotional, financial or physical welfare of another person …”  That doesn’t seem very complicated.  If the goal is to hurt someone, regardless of why, then criminal conduct may be present.  

Of course, the tech pundits don’t really mind criminalizing the behavior of the individuals who commit “revenge porn.”  I won’t accuse Masnick, the EFF, et al of supporting the people who engage in this type of conduct because they certainly do not.  What they do claim to be concerned about are the broader implications for internet platforms if they can be held liable under the criminal code, or even just directed by court order to remove material as a form of injunctive relief for victims.  Here, the critics rely on the well-worn generality that any gap in the great wall of Section 230 will only result in reactionary responses by well-meaning web platforms, which will then censor otherwise protected speech.  

Maybe I lack imagination, but it is actually impossible to fathom how providing a relatively narrow path to legal remedies for the victims of this singular crime can chill anything related to the normal functioning of most online activity. Someone wins a revenge porn case, and what?  We won’t be able to read the New York Times or buy sneakers on Amazon or watch Hulu?  Bullshit.  

As usual, the pundits tend to overlook the fact that due process is still required—that an alleged victim still has to prove her case and demonstrate how a named platform may be criminally or civilly liable for harm.  And in many cases, a platform may be responsible for nothing more than removing content without facing any further liability whatsoever.  Meanwhile, people have already been held criminally and civilly liable for various types of revenge porn, and material has been removed from various site, and the internet is still functioning.  In fact, one audacious law firm in Brooklyn, NY focuses on exactly these issues under the direction of attorney Carrie A. Goldberg, who says she became the lawyer she needed herself after an ex-boyfriend threatened to post naked pictures of her online.  

Since then, Goldberg’s firm has removed over 20,000 images on behalf of its clients—a number that simultaneously demonstrates there is efficacy in criminalizing non-consensual uses of material, but it also proves my point about due process and the narrowness of this focus.  In short, the socially-beneficial aspects of the internet really can endure the removal of many thousands of illegal or harmful files without the rest of us feeling a thing, and it is preposterous to believe otherwise.  Or as part of Goldberg’s Twitter bio explains:  F*uck your overbroad reading of CDA230.

I liked that slogan so much, I asked her for coffee mug with the words printed on it.  I guess it’s just the kind of nerd-moxie that makes my day, and Golberg’s firm certainly appears to have moxie to spare, as exemplified by this declaration on their website …

We are done living in a world of abuse and we are not afraid to sue the *&%$ out of schools, tech companies, and employers who tolerate it.  There are many ways to get justice for our clients – economic justice, restraining orders, advocacy in Campus Disciplinary proceedings, exposing a predator, getting the piece-of-shit thrown in jail.

To the extent this take-no-prisoners attitude accurately sums up a general shift in public sentiment (i.e. that some form of platform responsibility is mandated), I suspect the whinging chorus of internet activists may soon need to find a new cross to die on other than their adamantine devotion to the sanctity of Section 230.  In fact, it is conceivable that if the tech giants do not get on board and help tweak—or at least don’t stand in the way of tweaking—the application of this liability shield, they just might lose it altogether.

Apropos my last post about the implications of deepfakes, this universe of criminal conduct will likely become more complicated as parties willing to cause harm can more easily manufacture visual material that appears to reveal the intended target(s) engaged in embarrassing, or even illegal, activity.  For instance, most, if not all, of the revenge porn statutes criminalize visual material that depicts the “intimate parts” of the plaintiff bringing a claim, and this language would seem to fall short of criminalizing a deepfake in which the victim’s face has been seamlessly grafted onto someone else’s body.  Hence, the criminal codes may already be lagging behind the technology.

And, of course, the implications here are much broader than non-consensual pornography.  Just look at the consequences (in this case almost certainly deserved) for Virginia Governor Ralph Northam over a 1984 yearbook in which he appears at least adjacent to, if not depicted in, racist and demeaning photographs. Those photos are real, and Northam must deal with the consequences, but we are now well past the point when far more sophisticated imagery than yearbook photos can be fabricated out of thin air by someone with rudimentary skills.  Combine the level of destruction that can be so easily achieved with precedent application of Section 230 (e.g. Yelp refusing to remove a handful of libelous reviews), and it seems to me that change is coming, and the big platforms may want to get on board.  

As I posted last July, a new development in this narrative—and one I consider unfortunate—is the addition of partisan politics to the mix.  Some conservative Republicans in Congress have at least hinted at eradicating Section 230 in response to allegations that web platforms promote left-leaning content over right-leaning content.  Clearly, this specific complaint implies a tangled mess of a debate that nobody should want; but if the legislative Venn diagram encompasses those who want to kill 230 with those who want to carve out reasonable remedies for online harm, Google and Co. may need to change their revisionist narrative on the purpose of that liability shield, or risk losing more than symbolic battles.    

Deepfakes & The Choice to Be Deceived

Immediately after the 2016 election, many Americans discovered just how much fake news they were sharing via social media.  And for about ten minutes, the term fake news had a specific and literal meaning; it referred to fabricated stories made to look like news, and which serve either as clickbait to generate ad revenue or as mischief to fan the flames of political discord.  But then, the president co-opted the term as a way to dismiss any reportage that does not jibe with his myriad, fact-challenged narratives, and fake news no longer means anything at all. 

Now, the unreal is about to get a lot more real—and more dangerous.  The technology known as “deepfakes” enables fairly unsophisticated users to produce video evidence of events that never happened.  As highlighted in this CNN report on the subject, Senator Marco Rubio (R-FL) raises the very plausible fear that, in this next election cycle, we are going see video clips showing elected officials and candidates doing and saying things that are entirely fake, but which look absolutely real. “I believe this is the next wave of attacks against America and western democracies,” Rubio stated in a hearing with the Director of National Intelligence.

And that’s not necessarily the worst effect of deep fakes, at least with regard to news and politics.  As, Hany Farid, a digital forensics expert interviewed in that CNN report, observes, an equal—if not worse—hazard confronts us when people inevitably cry “deepfake” on visual evidence that is indeed factual.  Think about how often President Trump changes his story on just about everything and is then checked against his own prior statements captured on video.  All he, or his spokes-minions, have to do is recite the incantation “deepfake,” and the record is expunged in the minds of millions.  Not that this same folly will not occur among other segments of the electorate, but Trump provides the most obvious, stark, and timely reference in this regard.

Naturally, the anticipation that deep fake technology will be used as a weapon of information warfare leads to the assumption that the remedies will also be technological.  The Pentagon has already called the potential abuse of deepfakes a threat to national security, and Farid makes the logical prediction that social media platforms like Facebook and YouTube will need to deploy deepfake detection software to warn viewers.  But it also stands to reason that faking software will only improve, quite possibly to the extent that it cannot be detected by counter-fake technology.  And even then, can any kind of technical metering overwhelm the psychological instinct to believe what we want to believe?

The truth about our fallibility, as filmmaker Errol Morris’s tells us, is that believing is seeing, and not the other way around.  While images can inform, they just as often lie like crazy, not only because we are hardwired to see what we want to see in recorded images but also because, as Susan Sontag writes,  “…the camera’s rendering of reality must always hide more than it discloses.”

Consider the recent story that began with a viral video clip that appeared to show MAGA hat-wearing teenagers openly mocking a Native American at a rally in Washington D.C. Then, a second video capturing the same events revealed a much broader context that at least alters the original narrative about those kids’ behavior, and possibly undermines it altogether.  Either way, it is impossible to imagine how the addition of deepfakes into this already-volatile environment will not make matters worse.  So, what is the solution to this new form of sophisticated, weaponized information?  

No doubt, there is more than one answer to that question, but, as I’ve opined in the past, I think the only hope is a cultural shift in us as information consumers and not a technological fix on the part of the platform owners.  This might mean, as it did for me, abandoning social platforms as a primary source for “curated” information.  But no matter how we choose to filter information, we have to stop pouncing on every photograph and video clip as evidence to support our “deep stories.”  At the same time, professional journalists must stop trying to keep pace with the shrieking frenzy of social media.

For instance, I initially heard about that D.C. clash on CNN, when they cited the first viral video as evidence that a mob of teenagers had indeed assaulted a Native American elder.  The anchor reporting the story even editorialized with a scornful word or two about the kids’ conduct.  But then, CNN followed up, reporting that a second video shows a “different side of the encounter,” and they hosted an interview with Nathan Phillips (the Native American), which also skews the story considerably from the way it was originally reported.  But does CNN’s follow-up do enough to build any kind of consensus around the truth?

When I first started this blog, the trending videos at that time were coming from the cellphones of Occupy Wall Street attendees, usually depicting apparent acts of police brutality against allegedly peaceful protestors.  Clearly, such incidents did occur, but at the same time, the omnipresence of cameras—especially at a movement that quickly devolved to activist tourism—helped to foster an illusion that the people’s images are the “real” truth, even to the extent that citizen journalism has eroded trust in professional journalism.  

This is not to say that amateur video cannot tell us anything.  Surely it can.  But the inexorable deployment of deepfakes, which will probably be most effective when disguised as citizen journalism, will be all the more hazardous if we cannot trust real journalists to provide context, corroboration, or correction for what we think we’re seeing.  In this regard, CNN’s own deepfakes reporting might serve as a cautionary tale to its main news desk (and every other news organization) that the visual “evidence” they obtain via social media and other outside sources should be treated with a level of scrutiny as though it were mere rumor.  And, as consumers, we should begin to do the same.

Photo by kiosea39