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.

© 2020, David Newhoff. All rights reserved.

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