In the News: Sarah Jeong, “Fake News”, & Fair-Use

It’s another one of those weeks when there’s stuff happening faster than I can write about any one thing. So, here’s a summary of a few items of note …

Anti-Copyright Ideologue Named Tech Writer at NYT

Twitter lit up yesterday with accusations that The New York Times has named a “racist” to its editorial board, citing anti-white tweets made by technology writer Sarah Jeong, who is Asian. These complaints read like a lot of whinging nonsense, taking Jeong’s comments out of the context in which she was apparently responding (albeit ill-advisedly) to racist or sexist remarks directed at her. (God, I love Twitter for the way it brings out our better angels.)

What is notable about Jeong as the Times’s new “lead writer on technology” is that she is an anti-copyright ideologue, who has written various articles and posts in a familiar, ill-informed style akin to Cory Doctorow. In February of 2016, I wrote a fairly extensive response to several errors she made in a Motherboard editorial predicting that copyright law might enable the Chinese government to disappear the famous “Tank Man” photograph from the internet.  It’s still online of course.

So, while I truly doubt Sarah Jeong is a racist and think the people labeling her as one should get a grip, I am equally skeptical that future NYT editorials on the intersection of technology and copyright will be well-balanced—or even accurate.

New Paper on Why People Share “Fake News”

Related to the above, I notice that the National Review site has two top stories featuring Sarah Jeong, the second of which is headlined “Yes, Anti-White Racism Exists.” This dumb and bogus narrative is what academic Alice E. Marwick would identify as a “deep story” in her new paper titled Why Do People Share Fake News? A Sociotechnical Model of Media Effects. Unable to fully answer that question yet, Marwick provides a complex nuanced framework for further discussion, identifying socio-cultural factors that cannot be overpowered by solutions like fact-checking.

Although the volume of what Marwick calls problematic information is greater among the contemporary “right” at present, the contemporary “left” is by no means immune to the underlying reasons why people are apt to believe and spread “fake news,” hoaxes, and other forms of disinformation. I’m working on a longer post summarizing Marwick’s paper, but for those interested, her full paper is here.

TVEyes Files for Cert at Supreme Court

Filing a petition for Supreme Court hearing in its ongoing litigation with FOX News, TVEyes hopes to get another shot at presenting arguments that failed in the Second Circuit in February of this year. Eriq Gardner for The Hollywood Reporter writes, “TVEyes’ attorney tells the Supreme Court that the 2nd Circuit decision conflicts with precedent and ‘creates a circuit split over a question of exceptional importance, including the proper balance under copyright law between the interests of a copyright holder and the First Amendment right to criticize and comment upon the copyright holder.’”

There is no brief to review yet, but that statement alone, taken from a request for an extension to file, does not seem to bode well for the Supreme Court granting cert for a couple of reasons. The first, as detailed in this post, is that the same appellate court that ruled in favor of Google Books also drew sharp distinctions between that case and TVEyes (ergo, maybe not so much of a split). The second reason is that it is consistent with precedent to hold that the First Amendment rights of users of a service do not automatically make the service itself non-infringing. This is a chronic argument made by tech-industry players, and as described in this post, courts generally take a dim view of corporations that attempt to “stand in the shoes” of their customers.

I’ll be surprised if SCOTUS agrees to review this case, but if it does grant cert, expect a storm of amicus briefs to follow.

EFF Honors Itself With Its Own Award

In a July 30 announcement, the Electronic Frontier Foundation named Stephanie Lenz, creator of the “Dancing Baby” video, among the recipients of this year’s Pioneer Award. “Stephanie Lenz’s activism over a home video posted online helped strengthen fair use law and brought nationwide attention to copyright controversies stemming from new, easy-to-use digital movie-making and sharing technologies.” Many of us will never experience the injustice of having a video removed and then restored to YouTube, but in that silent interval, when people could not watch Lenz’s baby boy dancing in the kitchen, her world—indeed the whole world—was just a little bit darker.

I wrote a post in October of 2016 summarizing the narrative of this decade-long EFFishing expedition; but suffice to say this award-earning “activism” did not even begin as a fair use case; “Fair-Use Champion” Stephanie Lenz stated her own ambivalence about the video remaining on YouTube; the fair use/DMCA argument itself is razor thin; and I would bet anything that, beyond us copyright watchers, “nationwide attention” sounds something like this: Oh yeah, didn’t Prince sue some mom? And that didn’t even happen.

So, in the same way that Stephen Carlisle described Stephanie Lenz as the “nominal plaintiff” in Lenz v. UMG, it seems reasonable to call her the nominal recipient of this award, which should rightly go to the EFF’s own Corynne McSherry for Outstanding Achievement in PR Through Boondoggle Litigation.

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