Masnick Makes a Hash of Fair Use & Censorship

Photo by Pond5

Photo by Pond5

In an effort to conflate president-elect Trump’s rhetoric on censoring the press with copyright protection, Mike Masnick at Techdirt accuses the News Media Alliance of seeking to “whittle down” fair use. He further says this will only leave journalists vulnerable to the kind of censorship Trump has threatened by amending libel laws.  There are too many holes in Masnick’s post to address efficiently, so I’ll stick with the main point about fair use doctrine. The Newspaper Association writes the following:

“Fair use” should be reoriented toward its original meaning. Under current copyright law, a person that does not own a copyright may still use a copyrighted work if it is consistent with the “fair use” factors, which assess: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect upon the potential market. The courts, unfortunately, have dramatically weakened this test by finding a fair use any time a new use could be seen as “transformative.” This test has undermined the integrity of the long-established fair use factors. As part of any Copyright Act rewrite, we support refocusing the fair-use test on its original purpose to prevent courts from undermining the Constitution’s encouragement of compensation to entities that generate creativity and productivity.”

For starters, this statement isn’t asking anyone to “whittle down” fair use. Instead, the News Media Alliance is simply asserting what many copyright experts and rights holders have observed, which is that the “transformative” standard is in fact a relatively new and often-vague principle that has become something of a vestigial fifth factor not codified in the 1976 Copyright Act.  In fact, “transformativeness” began as a measurement of creative transformation in the landmark case Campbell v Acuff-Rose but has since been applied in broad contexts in which uses are “transformative” of something other than the original work to create a new expression.  

So, “transformativeness” can exceed the original free-speech motivations for codifying fair use into the federal law in the first place.  And that in itself is not inherently bad; we want law to be elastic to a certain extent, otherwise copyright itself could not have adapted to changing market and technological conditions. 

Having said that, however, the “transformative” standard has come dangerously close to asserting that simply using a work in a new context—like posting it on social media—is “transformative” enough to make the use fair.  So, the Alliance is not attacking fair use doctrine at all, as Masnick asserts, but is rather seeking to mitigate what many rights holders view as an irrational expansion of the doctrine until it ceases to be an exception at all.  

The part where Masnick accuses the Alliance of playing into Trump’s censorship hands is just a malarky cocktail well spun.  He writes the following:

“While [Trump] was specifically talking about libel laws, as we’ve seen over and over again, copyright is an amazing tool for censorship as well. In fact, the Supreme Court itself has noted that fair use is the necessary “safety valve” on copyright’s free speech stifling powers. So for newspapers to basically gift wrap to Trump a way in which he can pull back a tool that protects their free speech — just as he’s been promising to attack their free speech — is ludicrous.”

Masnick is mashing up unrelated topics to argue the interests of OSPs like Google and taking the opportunity to use the words copyright and censorship in the same sentence. As a general statement, it is true that fair use is a free-speech-based exception to copyright, but most speech-related, or press-related, uses almost always relate to other forms of expression, including journalism, and they rarely implicate the “transformative” standard being referred to by the News Media Alliance. 

For instance, I noted in a past post that a FOX Network initially sought to argue that its use of another news agency’s photograph was “transformative” simply because it was posted on their Facebook feed.  That argument didn’t get very far, but it’s the kind of argument rights holders are nervous about arriving in the courts; and it has nothing at all to do with legitimate concerns about a president threatening to use libel laws to silence the press. For another perspective on how the “transformativeness” standard can come very close to effectively obliterating copyright, see this post about TVEyes v FOX News.  

As usual, the internet industry and its advocates behave as though their platforms, which make unlicensed uses of all manner of works, are synonymous with free speech or freedom of the press.  From that premise, they argue that a desire to maintain boundaries and contours around the fair use doctrine is synonymous with trying to kill the doctrine outright.  That is ludicrous.

© 2016 – 2017, David Newhoff. All rights reserved.

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  • From that premise, they argue that a desire to maintain boundaries and contours around the fair use doctrine is synonymous with trying to kill the doctrine outright. That is ludicrous.

    We discovered last month that Mike Masnick is indeed ludicrous.

  • Ownership of expression is necessarily not compatible with freedom of expression. It’s either one or the other.

    The only thing that prevents the consequences of really trying to square these two things together is the de facto inability to enforce the law, minus the anecdotes you hear in the media regarding fair use squabbles and rich corporations who can afford the lawsuits. What is hardly talked about is all the infringement that is never followed up on. Hasbro wouldn’t have been able to stop the bizarre “brony” culture and its profiteers if they tried, and we all know it. Though for the sake of free inquiry one has to entertain the thought experiment of the law’s credibility and desirability if Hasbro really did get out the lawyers.

    Usually however, the attitude is “Well they didn’t get out the lawyers, therefore there was no failure, wasn’t there? No need to confront anything, the system works and doesn’t infringe free expression, let’s carry on”. Ben Goldacre the author of Bad Science has made a similar point regarding pharmaceutical trials in that statistics can be shown to make any drug look effective provided you don’t include the many missing figures that show failures. Even the most convincing of data can be found to be fraudulent if significant amounts of inconclusive data is omitted.

    It makes me interested to see what would happen with the Small Copyright Claims Court Bill, where Fair Use really will undergo stress tests if it passed. Then we really could get a better picture of whether the claims of compatibility between ownership and freedom really hold up.

    • Interesting, James, that you chose to cite anything but a comparable example. Freedom of the press is not incompatible with ownership. To the contrary, freedom of the press is meaningless unless that press is professional, and it cannot be professional without substantial investment of labor, expertise, and infrastructure. Please note the “news” disaster everyone suddenly discovered in the wake of the election. That’s what the press looks like without ownership.

      • The current trouble with news and journalism is not a copyright issue, considering how facts discovered through journalism are not protected in copyright, only the expression of those facts. That’s why you don’t see newspapers suing each other for merely talking about the other’s stories in their own manners. That must have occurred to you.

      • The problem identified by the NMA is the appropriation of said expressions by way of a broadening interpretation of fair use that goes beyond expression. That’s not the only problem with journalism writ large, but it’s the problem being addressed by the white paper Masnick is attacking.

      • I don’t accept the premise that appropriation is something that must be stopped. Especially when you have Stalinist students this generation throwing insane accusations around of cultural appropriation everywhere they can for their own privilege gains, based on the same vision that a culture is their intellectual property. Everything from dreadlocks to yoga to pronouns is both liberating and offensive to them, all because *they claim ownership*. And failing to square the circle, they attack free expression in the end. It’s the same mentality.

        The fact that Google and news aggregators inevitably latch on this non-control is to be expected, just like there are only so many customs checks we can do on a country’s parcel traffic. Especially how anyone can falsely claim to own a copyright and give permission. Any small concession is only going to show as lip-service. It’s always amusing to see some critics of cyber-utopianism – a decent cause in itself – suddenly turn into cyber-utopians themselves when they demand Google have even more monopolistic power than it already has in the form of super-AI-programs that can miraculously work out who has the copyright to what, and stamp out any and all clones from every bit of every server to the point where copyright lawyers are put out of a job. That is what’s really cyber-utopian, and Google-worshiping. It also made Amazon the new boss and worse than the old boss when it came to eBook DRM. These algorithms are the maximum punishment of the innocent combined with the minimum deterrent to the guilty, as they always have been.

        It doesn’t take much effort to see how a hash signature can be changed with one bit, and Google profits yet again. Some of these things are self-evidently absurd. But we get no credit for pointing them out.

        I actually agree with the notion that the internet needs to evolve past its troubling flaws, such as cyber-bullying, witch-hunting, insecurity and data consent principles. Plus all out war needs to be waged on digital voting, which Russia might have unsurprisingly exploited last month. I’m all for being part of the revolution within the revolution. Indeed the metaphor of “just as roads were once reckless and lawless but evolved overtime, so too will the internet” is apt. And I think you’ll agree one of those rules is we don’t stop cars at every junction to search their boots for pirated content, which is what these algorithms would have to do for our digital traffic.

        Encryption-as-standard is a bit part of the next step too, but that would defy certain content-ID algorithms now, wouldn’t it?

      • So, let’s not get hung up on the semantics and confuse the social concept of “cultural appropriation” with the legal standard for “appropriation” of copyrighted works. Even if I am inclined to agree with your description of the former, it’s not germane to the topic at hand, which is the press and fair use.

        The central problem I have with the argument predicated on the “cure being worse than the disease” (i.e. that Google or Facebook should write AI to assess infringements) is that this presupposes that various forms of aggregation are actually necessary for consumers. Meanwhile, I think recent events indicate that social media is total train wreck for journalism. If Slate offers good material, nothing in copyright law stops the consumer from visiting Slate, but it might stop some third-party software developer from appropriating Slate‘s content in a manner that serves no purpose other than to siphon traffic from the publisher and drive clicks for ads. Many of the online platforms overstate their value in this regard and then make the argument, “How are we supposed to know what’s infringing?” My answer is don’t assess what’s infringing, just don’t appropriate in most cases. If YouTube were not a monopolistic platform for music, artists and fans would have plenty of options–likely better ones–but Google behaves as though without their platform, there would nothing but silence.

      • I always find it best to think “bottom-up” instead of “top-down” here. If there are many consumers out there who want and use aggregation sites, those sites will be there whether we like them or not. If one falls, another will fill in the new gap in the market. You can’t disperse a crowd like this.

      • That may be very sad if true. Over the last decade or so one has witnessed a huge fall in the quality of the news we receive. It has mirrored the general fall in music quality where most pop has become retro samey. Every thing is reduced to shallow snippets. They say it is a golden age of TV I disagree, the quantity of high quality drama, sitcoms, anf factual programs have greatly diminished over the years. Sure there are still gems, but you won’t find them hour after hour, or even night after night. Probably no more than a handful a week. The rest is reality TV, game shows, and repeats of TV programs from 20-30 years ago.

    • Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

      I think there are a number of mental gymnastics involved in order to pronounce that if copyright disallows the independent manufacture, marketing, and sale of ‘My Little Pony’ fleshlights (yes these are a thing) then there is violation of the above ammendment. Are they part of some religion? Are they essential for a free press, peaceful assembly, or to petition the government to redress a grievance? What freedom of speech has actually been abridged?

      Addressing the general point few have issue with someone reexpressing a news story in their own words, the issue here is the scraping of news reports and programatic trimming to the first few words or sentences. One can currently get the gist of most news stories by scanning the aggregation sites. For most people there is no need to read the full article.

      None of this is actually news from Google or Bing

      Even with specific examples such “trousers and handbags” there is no need to visit any other site.

      We see them doing this with images, where they provide an image search and then obfuscate as much as possible any one from actually visiting the site that the image came from.

      As with the fleshlights this isn’t freedom of speech, religion, assembly or anything other than parasitism.

      • John, despite your longtime loyalty as a reader and respondent, I may never forgive you for bringing to my attention the “My Little Pony” fleshlight. It’s going to take a while–and maybe quite a lot of vodka–for me to get over that one.

      • I picked My Little Pony precisely because of its insanity as you mentioned. You would think it’d be open season for Hasbro’s lawyers.

      • “One can currently get the gist of most news stories by scanning the aggregation sites. For most people there is no need to read the full article.”

        I really, really don’t get the hysteria around this. Folk walk into shops and glance the headlines on the shelf’s newspapers without paying for the full articles all the time. Even the photos.

      • @David >:)

        @James There really a difference, you don’t walk into a shop every 10 or 20 minutes, and you only get to see the headlines on the front page articles, not the articles on page 94. Years ago one might have wondered into a big newspaper/magazine store and browsed the mags for a while, it gave you an indication of current trends etc. But every now and then you put aside a couple to purchase. If you didn’t do that you tended to get asked to leave on your next visit.

      • The analogy would hold up if Shop A put merchandise only available in Shop B in its window in order to effectively steal Shop B’s traffic. But separate from that, there’s no getting past the fact that news has been atomized past mere sound bytes to non-verbal grunts at this point.

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