On Copyright, the EFF Will Say Anything to Scare You

Are you gifted in the art of bullshit, but the popular conspiracy theories just aren’t for you? Do you enjoy riling people up about threats that are demonstrably false, but you just can’t get comfortable with QAnon or election deniers? Well, maybe you should consider an exciting career with the Electronic Frontier Foundation writing about copyright law. It seems they’re always looking for eager young folks with good writing skills and no scruples. For instance, you can learn how to write blog posts like Stop the Copyright Creep, posted this week by Katherine Trendacosta, and which begins as follows:

In 2020, two copyright-related proposals became law despite the uproar against them. The first was the unconstitutional CASE Act. The second was a felony streaming proposal that had never been seen or debated in public. In fact, its inclusion was in the news before its text was ever made public. The only way to find it was when the 6,000-page year-end omnibus was published. We want to make sure that doesn’t happen again.

Here’s how that opening paragraph would read if it stated the facts and concluded with a more honest declaration of EFF’s position:

In 2020, two copyrightrelated proposals bills became law. despite the uproar against them. The first was the unconstitutional CASE Act. The second was a the Protect Lawful Streaming Act (PLSA). felony streaming proposal that had never been seen or debated in public. In fact, its inclusion was in the news before its text was ever made public. The only way to find it was when the 6,000-page year-end omnibus was published. We want to make sure copyright enforcement does not happen anymore. that doesn’t happen again.

That the CASE Act is unconstitutional is a highly speculative opinion which the EFF is free to argue in court one day, and it probably will. That there was much “uproar” against these bills outside the tiny community of anti-copyright wonks is hyperbole (In 2020? Really?). The implication that the felony streaming bill was quietly snuck into law behind closed doors is just a lie. And, of course, the hyperventilating tone meant to scare readers is standard EFF style, which often makes the organization indistinguishable from any other conspiracy-monger.

The reason I let that statement stand about news being ahead of the text of the felony streaming bill is because it might be half true. The text of the Protecting Lawful Streaming Act (PLSA) was introduced on December 10, 2020, so it definitely appeared late in the session—but not because its provisions came out of the blue, were secretive, or were written without debate. On the contrary, one reason the bill was introduced so late is that various stakeholders were still debating the language into December. And if the EFF did not directly engage at the time, there is no way it was unaware of these negotiations because the issue itself was hardly new.

For more than a decade before introduction of the PLSA, various parties had been addressing the fact that large-scale piracy remained a misdemeanor under the statute rather than a felony as long as the pirate enterprise streamed material rather than made it available for download. Here’s Senator Klobuchar referring to the issue in 2011 by way of analogy during a hearing about cyber security:

I have been working in the area of some of the streaming issues to try to come up with a way with a number of the other Senators to acknowledge that if someone is standing on a street corner and sells DVDs that are over $2,500 that we already know is a felony, and right now if you do it, if you have a business and you are illegally selling anything—movies, books, music—and you do it maybe $1 million and you are profiting—you have to profit from it under our bill—it is still a misdemeanor. And so we are trying to fix that without, you know, hurting anyone’s rights or teenagers that are simply trying to share some information

Or you can link to just one House IP Subcommittee hearing in which felony streaming was being discussed in 2014. “We should consider today whether there is a need to clarify that felony infringement includes infringement by streaming,” stated Chairman Coble. Or you can review a summary of the legislative history at Copyright Alliance. Or, oddly enough, my satirical post A Guide to Critiquing Copyright in the Digital Age was a response in 2015 to an article published in The Hill complaining about the idea of felony infringement by means of streaming.

The desire to close what many copyright owners, the DOJ, IPEC, the FTC, et al. considered a legal loophole had been present in both official and unofficial records for quite some time before introduction of the “secret” bill in 2020. And unless you’re planning to engage in mass piracy by building an illegal streaming platform, you probably have little reason to know what PLSA is or why it exists.

The implication by EFF that PLSA or CASE or the other copyright provisions mentioned in the blog are somehow a threat to free speech is as unfounded as the allegation that these proposals were ever clandestine. Yet, Trendacosta writes, “Because so many copyright-related bills involve proposals that would harm lawful free expression, they are not the kind of controversy-free proposals that belong in such legislation.” Here, she means that PLSA and CASE should never have been attached to a must-pass omnibus spending bill at the end of the year.

Notably, copyright proponents who worked on the legislation were not exactly thrilled with the rider outcome either; but you know why it happened that way, especially with the CASE Act? Because Senator Wyden, had a solitary hold on that bill, and in the roughly nineteen months between introduction of CASE and December 2020, he neither engaged in good-faith negotiation nor publicly articulated a realistic objection to its provisions. In fact, after telling Oregon constituents in December 2019 that he saw a path to compromise, he then asked for several poisoned pill amendments, and failing that, simply ghosted with his hold intact.

So, if we’re going to talk about shenanigans on the Hill and things that should never happen, I’m of the opinion that one senator should not be allowed to single-handedly kill bi-partisan supported legislation without very clearly and very publicly articulating his passionate and well-reasoned opposition. And I believe Senator Wyden agrees because he co-sponsored legislation in 2011 based on this same general principle.

Meanwhile, aside from the fact that copyright’s alleged conflict with speech is a construct of anti-copyright ideologues—one that finds little purchase in history or law—I would love to know what EFF imagines could be more “controversy-free” than copyright legislation? It happens to be one of the very few subjects where we see Democrats and Republicans collaborating and voting in large bi-partisan numbers.

That is not only significant in the current climate, but I am told by at least one colleague who has worked on the Hill in less turbulent times that nothing controversial survives the frenzied process of attaching riders to must-pass legislation. “The leaders of both parties from both Houses have to agree, as well as the chair and ranking members of both the House and Senate Appropriations Committees,” he says. So, that seems like a resounding override of Senator Wyden’s hold and a confirmation that the hold was the only reason the copyright bills were passed in this manner.

What I think EFF really means to say is that because they fervently believe that copyright enforcement is always a threat to speech, they don’t like it when nobody on the Hill agrees with that premise. And these days, it is just so damn easy to allege that when Congress or a court or an investigative journalist or a federal agency doesn’t agree with your trumped-up narrative (it writes itself), then some dark arts must clearly be at work. So, if you’re into sowing conspiracies but can’t go full InfoWars, writing about copyright for the EFF just might be your next career move. Good luck!

Photo by: mrwed54

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