Promoting Progress in the Digital Age

progress

Over the past three years since the internet industry first had to respond to the so-called “Techlash,” various comments on the theme that “the internet didn’t turn out like we expected” have generally shared one common flaw—a failure to acknowledge that the expectation itself was folly.  Whether parties are debating the amount of moderation that should or should not be done by a platform like Facebook; or whether breaking up the internet giants to foster competition would ameliorate the negative effects; or whether curtailing liability shields and treating platforms like publishers would do the trick, the big lightbulb that has not dimmed nearly enough is the original assumption that more people expressing, sharing, posting more stuff could only benefit the world.  All evidence points to the contrary.

When I started this blog in the Summer of 2012, I was partly motivated to advocate artists’ rights (copyrights) against the agenda of Silicon Valley, but I was also skeptical that the underlying assumption justifying the abrogation of those rights—that the information age was fulfilling its promise—was true in any meaningful way.  I asked at the outset whether the internet, as it was shaped since the 90s, was in fact empowering our better angels and ushering in a second Enlightenment grounded in science; or whether it was more effectively aggravating our worst instincts and undermining the pillars of republican democracy.  

In this context, I use the word science in its broadest sense to encompass the principle of a politics rooted in knowledge and reason, and this expansive reading is roughly how we have interpreted Madison and Pinckney’s use of the word science in writing the constitutional clause that gave Congress the authority to adopt copyright law.  This is why the tech-utopian assumption that the internet would bring about the aforementioned second Enlightenment is directly tied to the anti-copyright agenda. 

What authors of works see as the protection of their rights, the digital-age copyright critics characterized as barriers to access, rent-seeking mechanisms, and corporate gatekeeping, all of which results in what they call “artificial scarcity” of expressive and informative works.  Hence the critic’s logic that “free” digital distribution inherently abridges—if it does not simply obliterate—the original purpose of adopting copyright as an incentive to produce and distribute works of science.   

Bizarrely, this utopian narrative persists despite the fact that the United States has now arrived at an existential crossroads.  Mired in what some observers have gravely termed a “cold civil war,” we are officially a nation divided and sub-divided into separate realities; and relatedly, our so-called “age of information” is witnessing an unprecedented volume of brain-drain at the highest levels of government and public service.  While the owners of the major platforms double down on their idealistic talking points, the real world increasingly resembles the worst corners of cyberspace, complete with mob-like assaults on expertise, professionalism, and patriotism for the sake of what can only be described as the cult of Trump.  

In the space of two years, the Republican Party has abandoned its own core principles, sloughing off actual conservatives, and even going so far as to faithlessly attack the characters of career service professionals who have risked their lives for American interests.  And all because they are afraid of being the targets of a presidential tweet.  “We shall nobly save, or meanly lose, the last best hope of earth,” Lincoln wrote to Congress in 1862.  So, is it really conceivable that a century and a half since the Civil War, the party that used to call itself “the party of Lincoln” will allow the Republic to falter because an illiterate mean-girl wearing a tinfoil crown has a Twitter account?  Talk about going out with a whimper.

It is presently unavoidable to blame the GOP for this particular moment of history-altering fecklessness but also worth remembering that thanks in no small part to social media, my friends on the left helped loosen the bolts on many of the same girders this administration is now dismantling.  It may be shocking to watch Members of Congress disrespect public servants like Lt. Col. Vindman, Dr. Hill, or Ambassador Tayor, but it was not very long ago (2014) that, for example, Naval War College professor Tom Nichols, wrote for the decidedly-conservative Federalist, “I fear we are witnessing the ‘death of expertise’: a Google-fueled, Wikipedia-based, blog-sodden collapse of any division between professionals and laymen, students and teachers, knowers and wonderers – in other words, between those of any achievement in an area and those with none at all.”

To a great extent, Nichols seemed to be addressing a progressive-leaning constituency of netizens who, just like many latent Trump supporters, dismissed authority, expertise, and experience as “elitist.”  And they still do.  So let’s not pretend the GOP is alone in amplifying and weaponizing internet conspiracy theories like the “deep state.”  Mainstream media, the intelligence community, the military—even the U.S. Copyright Office!—have all been generically maligned as “the government” by disparate constituencies—as if the government did not already comprise thousands of people just like Vindman, Hill, and Taylor. 

By contrast, all that ebullient swooning a few years ago over data-dumpers like Assange, spraying their cans of sunlight, was naïvely perceived as leaking truth to power.  But what that illusion of access really achieved was an erosion of faith in the same professionals now having their patriotism questioned for political gain.  Likewise, bloviators like Reps. Jordan and Nunes may be the most prominent figures calling the mainstream media “puppets” and “enemies,” but let’s be real: the word mainstream as a pejorative has been used across the political spectrum to justify dismissing any career journalist who reports something that some constituency doesn’t want to hear. 

Suffice to say, the battlefield was well-softened for armies of disinformation trolls to start what former State Department official Richard Stengel calls a full-scale information war we are not winning:  

“Governments, nonstate actors and terrorists are creating their own narratives that have nothing to do with reality,” Stengel writes. “These false narratives undermine our democracy and the ability of free people to make intelligent choices. The disinformationists are aided by the big-platform companies who benefit as much from the sharing of the false as from the true. The bad guys use all the same behavioral and information tools supplied by Facebook, Google and Twitter. Just as Nike buys your information to sell you sneakers, the Russians bought your information to persuade you that America is a mess.”

Having dutifully fulfilled the trolls’ prophecy—because America is certainly a mess now—it is a pretty harsh referendum on the information age to watch the GOP respond to clear evidence that the President of the United States abused his office, asserting a combination of internet conspiracy theory and the eccentric proposal that Trump is too incompetent to break the law (see Sen. Graham comments).  That’s one hell of a rationale to pitch to the American people about their president, but it is astoundingly effective thanks to the “democratization of information.” 

So, no, the second Enlightenment did not happen. Science is now a choose-your-own-adventure game you can play on your mobile device, and the “illusion of agency”* provided by social media is being moderated by some over-caffeinated, professional rat-fucker in St. Petersburg.  All that being the case, perhaps the tech-industry activists who still insist that copyright is a gremlin sabotaging the promise of the internet, might find some better targets for their censure than the authors and artists of the world.


*All credit to Neil Turkewitz for this expression.

Unicorn illustration by julos.

YouTube Adpocalypse is No Surprise

YouTubers call it the adpocalypse.  It’s a word is used to describe the steady erosion of YouTube’s support for small and independent creators by demoting or demonetizing their channels in favor of more traditional, mainstream material.  Julia Alexander at the The Verge wrote in April of this year …

“Between 2011 and 2015, YouTube was a haven for comedians, filmmakers, writers, and performers who were able to make the work they wanted and earn money in the process…. In 2016, personalities like Philip DeFranco, comedians like Jesse Ridgway, and dozens of other popular creators started noticing that their videos were being demonetized, a term popularized by the community to indicate when something had triggered YouTube’s system to remove advertisements from a video, depriving them of revenue.”

While not directly related to copyright, I would include the adpocalypse in a chapter about the broader copyright debate because one of the underlying premises of the “copyright is obsolete” narrative is that the new opportunities created by the internet could replace traditional licensing regimes with legacy “gatekeepers.”  With an evangelical zeal, some of the loudest copyright critics sermonized that the internet was replete with untapped sources of revenue for creators, and YouTube was their Zion—a place where creators could slough off tired notions of ownership, share their work with the world, and earn a living from Google’s advertising machine.  

The fact that people were making a business out of being YouTubers—ranging from profitable side-lines to multimillion-dollar payouts for a handful of stars—was sufficient anecdotal evidence to bolster the talking point that concepts like copyright were anachronistic and regressive.  The lecture at old creators was a general theme that they should stop “whining” about lost sales, piracy, devaluation and embrace the unprecedented prospects before them.  

This theme was even reiterated in Steven Johnson’s too-ebullient 2015 New York Times Magazine Feature, The Creative Apocalypse That Wasn’t.  More sober than most, Johnson still cited the YouTube opportunity as evidence that the post-Napster market is rosy for creators, despite what they may be saying.  In my long rebuttal to that article, I stated that Johnson “… can only see the short-term empowerment of some creators via these new technologies, but not the long-term, predatory nature of a brand new group of extraordinarily powerful, corporate masters.”  

That was a theme my fellow luddites kept reiterating—that YouTube will “empower” new creators until it is no longer in its business interest to do so, at which point the company will change the rules without warning or transparency.  That was the underlying absurdity of the entire line of argument against creators’ rights—the illusion that a company like YouTube was liberating new creators, even making them feel a sense of ownership in the platform itself and that this apparent symbiosis would last indefinitely.  “The golden age of YouTube — the YouTube of a million different creators all making enough money to support themselves by creating videos about doing what they love — is over,” writes Alexander.

Perhaps.  But I wouldn’t think of it as the party is over so much as a party to which most YouTubers were never going to be invited in the first place.  The promise of millions becoming YouTube entrepreneurs was never attainable, or at least sustainable.  “96.5 percent of all of those trying to become YouTubers won’t make enough money off of advertising to crack the U.S. poverty line,” stated a 2018 article at Fortune.com. YouTube was always a casino, and Google is the House.  Yet, this did not stop the pundits and tech-utopians from insisting that it is restraints like copyright the “stifle” the potential growth of YouTube—or even more naively, imaginary platforms that might one day compete with the Google-owned giant. 

More than a few of my fellow luddites have mentioned that YouTube’s monetization in not about creators, and never has been.  As composer Kerry Muzzy describes in a sit-down interview with Neil Turkewitz, “So far I have identified 97 million views of videos with my music in them, representing 303 million minutes of watch time. Those 97 million views happened before Content ID located my music in them and under YouTube’s policies, I can’t monetize them retroactively — so YouTube and the uploader made a small fortune in ad sales on those videos, but I got nothing.”

This post is not a gloat.  I legitimately empathize with most creative people, and YouTubers are no exception; but one thing the “old” creator can tell the “new” is that very few favorable tides last a lifetime, which is one reason owning copyrights in successful works can be so critical for so many creators.  Like the aging jazz musician whose royalties in a pre-1972 sound recording just might be her medical bills for the year.  

With that in mind, the comment I found most striking in Alexander’s article was not really about revenue so much as it was how YouTube’s opaque policies for demoting or demonetizing was making YouTubers feel.  “These perceived, secretive changes instilled creators with a distrust of the platform. It also led to questions about their own self-worth and whether the energy they were spending on creating and editing videos — sometimes north of 80 hours a week — was worth it.”

Self-worth connected to the labor of creative expression and the value placed on that labor.  Sound familiar?  To the cynics who say that copyright is merely a mechanism of commerce, Alexander’s observation above may be one of the most on-point rebuttals I have read to date.  And perhaps the new creators (if not the pundits) might begin to understand how it feels to have work uploaded and monetized by a giant tech platform without permission and to have the value of that work diminished as a result.  

When YouTube was bought by Google in 2007, the platform had grown to scale on a very large volume of piracy.  In 2012, when Viacom v. YouTube was reviewed at the Second Circuit Court of Appeals, 60% of the material on the platform was copyrighted work, of which 10% was licensed.  In 2017, Canadian singer/songwriter Miranda Mulholland delivered a speech reporting the 82% of YouTube users access the platform for music, a large volume of which continued to be uploaded without license.  So, the “old” creators know how the “new” creators feel, especially because YouTube’s capacity to monetize the “new” was built on the backs of the “old” without permission or compensation.

Yes, money is a very big piece of the puzzle for anyone—we all have to eat—but as Alexander describes, having one’s work devalued is personal and ontological in any context.  This is precisely why, throughout copyright’s history, and despite many disputes over its mechanisms, the foundation of its existence remains a matter of first principle—that what one creates is one’s property.  And the way the YouTubers are apparently being made to feel about the adpocalypse suggests that this principle is no more obsolete in the digital age than in any previous era.   

CASE Act noise gets louder. And sillier.

After the CASE Act passed the House (410-6) on October 22 and moved onto the Senate, the various groups opposed to this copyright small-claim bill turned up the volume on the eerie headline that says Share a Meme.  Lose $30,000!  I and others responded that this allegation is simply not grounded in reality, and to this, Meredith Rose of PublicKnowledge replied with the tweet below …

What’s going on there is a subtle but wicked-important sleight of hand in the service of a multi-layered falsehood.  But that’s why it’s effective.  The lie is complex.  Though, oddly enough, Rose could not have picked a better example to demonstrate how disingenuous the anti-copyright groups are being about the CASE Act.  In fact, the logic is so convoluted, it is reasonable to wonder whether these people are not so much ideologues as just bad attorneys.  Who can say for sure, but here are some facts you are free to verify for yourself …

To begin, the infringement claim to which Rose links in that tweet may lack merit because it was filed by a known copyright troll, which is one reason I assume she selected this example—hoping to imply that trolling will get much worse after passage of the CASE Act.  So, I shall try one more time to describe how the Copyright Claims Board (CCB) will actually look to the copyright troll, whom the bill was specifically designed to discourage.

Whether or not that particular claim has merit, Rose’s citing it only emphasizes the fact that weak or invalid claims can be filed ad infinitum in Article III courts; and it can cost the named defendant quite a lot of money just to argue that the complaint should be dismissed.  This is precisely how an unscrupulous attorney (not just a copyright troll) uses the threat of even invalid litigation to scare settlements out of people.  By contrast, the Copyright Claims Board (CCB) provides no such mechanism of intimidation.  

Because the small-claim tribunal is meant to be used by regular people without the aid of attorneys, the CCB must review every claim for merit before it can even be considered “active” and served upon a respondent. (And yes, claims will be served, not emailed as EFF and others have alleged.)  Further, any party who files as few as two warrantless claims, will not only have those claims rejected, but will also have all other active claims vacated by the CCB on the assumption that the filing party is abusing the system. 

Then, as mentioned many times in other posts, repeat abusers of the CCB face a potential $5,000 fine and/or may be barred from access to the small-claim tribunal for up to one year. And, finally, any respondent can opt out without providing a reason. So, Rose has unwittingly highlighted why the CCB will be a barrier to claims like the one she cited.

Okay, but are memes infringing?

The next noteworthy fact about the case Rose cited is that it does not actually involve a meme.  The accused infringer apparently published a photograph to her website without license, and if that is the only evidence available, there is likely no legal ambiguity there.  Publish anything to a site you control, and you are responsible for any potential infringement claim, whether or not the claim is filed by an unscrupulous attorney. 

This goes to the next layer of nonsense in Rose’s tweet, which is really two falsehoods working in tandem.  The first is that she is conflating conduct (e.g. publishing vs. sharing) with a genre we call “memes;” and the second is the implication that posting a visual work anywhere online that has in some way been altered makes it a “meme,” which automatically makes the image itself—and the posting of it—a fair use.  Spreading this kind of confusion is a disservice to many of the people PublicKnowledge claims to defend.  

A so-called meme based on the use of someone else’s visual work can be a fair use, but it is false to believe that every alteration, like placing some text on a photo, automatically makes it a fair use.  It is of course impossible to say, on a case-by-case basis, which of the gazillion “memes” out there are probable fair uses and/or which among these images even lives in public consciousness long enough to attain the status of a “meme.”  But that ambiguity is central to the aforementioned fallacy of conflating this popular internet genre with the conduct of “sharing” memes.

What the anti-copyright folks really want you to believe is that if you see a meme on Facebook or Twitter and click “Share” or “Retweet,” you will be at greater risk for an infringement claim if the CASE Act passes.  (And then of courseyou will be subject to the maximum penalty of $30,000.)  This scare-tactic relies on the fact that all that sharing we do on social platforms does occur in a somewhat gray area of the law—that although nobody gets sued for re-sharing something that was already on, say, Facebook, this does not mean such a suit could never be filed or that a claimant could never win.  With the law, it’s best never to say never.  But …

Having said that, there are both statutory and caselaw reasons why a claim of infringement for clicking “share” on material that is already on a social platform would be very difficult to support in federal court—and, therefore, even more difficult to allege via the CCB, even if such a claim were ever filed.  The reason it would more difficult at the CCB is because that Board will not have the authority to adjudicate such an untested and delicate question of infringement.  Absent clear statuary or precedential guidance, the Board would have to reject the claim and insist that the complainant file in court. (Note, that this is an opinion and prediction based on observation.)

In addition to the legal complications, there are many practical reasons we do not see these lawsuits right now—why we are not being sued by parties, who can afford it, for sharing those memes—and these reasons have nothing to do with the absence of the CASE Act.  Probably the most common reason is that online sharing is so pervasive that many authors of works have, for better or worse, made their peace with a certain amount of remix and contributory distribution of their material.  There is no practical means of sifting through all that to determine what is and is not fair use, most of it is harmless, and the list goes on …

Small-Claim Copyright Reality 

Behind all that noise, actual independent copyright owners, whom the CASE Act was designed to serve, have neither time, interest, nor resources to explore whether or not your  “share” of a so-called meme made from their image might be an infringement.  It is simply not practical to pursue such a claim, even if it were desirable.  If Disney isn’t suing you for sharing that princess meme, you can be sure that Joanna Photographer can hardly afford to do so, even at the CCB.

The independent copyright owner, like the visual artist who makes between $30,000 and $70,000 a year from her creative work, does not have an unlimited supply of $250 filing fees to throw at copyright enforcement.  Depending on her cost-of-living needs, just four filings with an upfront cost of $1,000 can be a substantial outlay in a given year.  While it is true that one or all of those four claims could yield damage awards well worth the price of the filing, there are barriers to this outcome, not least being that an alleged infringer can opt out of the tribunal.

So, it is only common sense that the independent, small-business copyright owner is going to file claims against willful, direct infringers who clearly should have licensed the work in the first place—and usually for commercial purposes.  These are the claims that will hold up best and have the greatest likelihood of yielding a justifiable damage award—not your silly little meme share on Facebook. 


Troll Art by cosmic_fellow