Tag: academia

A Response to “Weaponizing Copyright” by Cathay Y. N. Smith

Last week, I stuck my toe into a little debate on Twitter about the word weaponize, when Professor Cathay Y. N. Smith[1] defended her use of the expression “Weaponizing Copyright.” Smith was citing the title and subject of her own draft paper, and because I still hate Twitter for discussing complex issues, I read the 73-page draft over the weekend. While I disagree with several important aspects of Professor Smith’s approach, it is a thoughtfully written paper so far, highlighting more than one point of view, and despite the choice of a loaded term like weaponize, it is not as thoroughly hostile to copyright as its title suggests.

Professor Smith’s main thesis is that the use of copyright enforcement for “noncopyright purposes,” which is how she defines “weaponizing copyright,” is increasing, though she does not contend that all alleged “weaponization” of copyright is necessarily a bad thing. She identifies, “five common noncopyright objectives that copyright owners seek to achieve through weaponization: to silence and erase facts, suppress criticism and speech, punish and retaliate, protect reputation and moral rights, and preserve privacy.” For each of these five categories, Smith cites various examples, some of which I would argue do not belong in her data set, even as anecdotal evidence. But I’ll get to those in a moment.

Defining the Purpose of Copyright

The premise of Weaponizing Copyright begs some fundamental questions that are either not answered or not answered correctly in my view. First, how are we defining copyright’s purpose? Second, is “weaponizing” an appropriate term for noncopyright enforcement action? And third, is copyright “weaponization,” even if we accept the term, truly increasing? And perhaps a subordinate of question three is to ask how successful are “weaponized” copyright enforcement actions?

Smith does not answer the latter questions at all. Her paper describes several enforcement examples, but even if all these examples properly fit the definition of “noncopyright objectives,” a handful of anecdotes is not a sufficient body of data to show whether the types of legal actions described are increasing. But even before that, I would argue that not every example cited serves noncopyright ends because Smith begins with a too-narrow definition of copyright’s purpose, one which elides non-pecuniary (or non-market) reasons for enforcement. She writes, “Copyright grants authors exclusive rights in their works, which allows authors to realize financial and economic gains for their works.” True but incomplete.

It is the view of many copyright skeptics that copyright should never serve any purpose other than to protect an author’s financial interest in her works, but this opinion is inconsistent with history, case law, and a basic sense of fairness. As Professor Jane Ginsburg observes in a paper from 1990, both the natural rights (French) and utilitarian (English) rationales for copyright were alive at America’s founding period.[2] And without going into a long history discussion, suffice to say that non-pecuniary reasons for protecting authorial rights have been part of our philosophical consciousness since before modern copyright existed, and these rationales are still part of the copyright narrative. Sometimes, we simply call it justice.

Non-Financial is Not Noncopyright

Because copyright protects works of creative expression, the exclusive right of the author to license the use of a work naturally anticipates that the author might reject certain uses, regardless of financial consideration. I doubt very much, for instance, that Ta-Nehisi Coates would allow the exploitation of his literary works by the KKK, even if they offer him millions of dollars. And if such a group infringed his works, I imagine he would file suit for the same reasons that he would have rejected a license in the first place. This non-pecuniary motive is not in any way inconsistent with the purpose of copyright and, therefore, should not be considered an example of “weaponizing” copyright, if we are to use that term at all.

So, although I agree that Professor Smith alludes to some noncopyright examples of enforcement, I would argue that her incomplete definition of copyright’s purpose encompasses other examples that properly manifest the purpose of copyright. For instance, Matt Furie’s attempt to litigate against white supremacist and fascist groups for mass appropriation of his Pepe the Frog character should not be included in Smith’s discussion in my view. Furie’s complaint is wholly consistent with the purpose of copyright, responding to appropriations that obliterated the value of his work in every sense. Pepe was simultaneously damaged as a work of expression and as a work of potential market value, and it is copyright’s purpose to protect both.

Likewise, Professor Smith should not include William Greenblatt’s efforts to stop the gun wielding McCloskeys from using his photograph as a holiday card. Although Smith acknowledges that Greenblatt might have several motives and she is, therefore, hesitant to call his enforcement “weaponization,” none of that matters. When an author says Do not reproduce my photo as your holiday card, this demand fits squarely within the purpose of copyright, and Greenblatt’s motives, while we can probably guess what they are, are irrelevant to a discussion about noncopyright purposes.

Where I am more intrigued by Professor Smith’s inquiry is when she cites an example like The Weinstein Company attempting to use copyright law to stop Ronan Farrow from exposing evidence to support the sexual assault allegations against Harvey Weinstein. I think we all agree that trying to stifle news of compelling public interest is well beyond the purpose of copyright, and in the Weinstein example—a bare-knuckle fight with a bully—it seems appropriate to use a term like “weaponize.”

On the other hand, Weinstein’s attempt to frighten Farrow with the specter of copyright litigation was not successful, which brings the conversation back to the need for a broader data set, if we are to consider whether Professor Smith is truly examining a subject that needs addressing or citing anomalies that are simply unavoidable in legal battles. No doubt, just about every area of law has been misused in some way by someone, but that does not mean we necessarily amend or scorn the body of law itself.

Related to this need for more robust data, when Professor Smith cites examples adjacent to Weinstein, in which celebrities seek to protect reputation and/or privacy by enforcing copyrights in images, video clips, or even emails and other written material, I believe the conversation becomes more nuanced, and I would again question whether “weaponize” is a proper term. Almost everyone would agree that the public has a compelling interest to know the facts about a business mogul who may be a sexual predator, a fraud, a drug abuser, etc., but the presumed “right to know” probably does, and certainly should, diversify our views when it comes to the merely gossipy and prurient.

For instance, Smith is right that it is not very close to the soul of copyright to enable Hulk Hogan to sue for the unauthorized release of his sex tapes, but neither is it generally beyond the purpose of copyright to protect the author’s right to not publish a work. Granted, the word author in regard to a sex tape is a bit much, but the legal principle is the same. Copyright enforcement is the remedy when unpublished works are made available without license. And again, it does not matter whether the works are unpublished because the author would be embarrassed by them or because she decides not to publish for any other reason.

Correspondingly, does the public really have the right to see Hulk Hogan’s, or anyone else’s, sex tape? Or some celebrity’s secret wedding photos? If a person of influence has a sex tape (or gets married), perhaps the public has a right to know the facts (because the facts may be relevant to the subject’s public role), but that does not extend to a right to see the works per se. Samuel Warren and Louis Brandeis, who wrote the seminal paper on privacy in American law, would agree with this, and when they began seeking a foundation for privacy, they turned first to copyright law and the protection of unpublished works.[3] So, once again, I would personally disqualify some of Smith’s examples as standing far outside the penumbra of copyright’s purpose and, therefore, deserving the term “weaponize.”

As stated above, Professor Smith does not necessarily reject every noncopyright purpose of enforcement as a negative use of copyright. For instance, she entertains the idea that perhaps copyright should serve to protect privacy. But my point is that there is an extent to which copyright always has protected privacy with the protection of unpublished works, so it is not necessarily a novel principle, even if the digital age has provided so many new opportunities for privacy to be invaded. At the same time, I think Smith poses a thoughtful question when she writes the following:

… if we are content with copyright being used for purposes of protecting privacy, reputational or dignitary interests, could the law become complacent in holding back important and necessary reforms of laws, such as in the areas of privacy, Section 230, and others?

I believe many legal authorities, including copyright advocates, would prefer to see, for instance, Section 230 no longer protect websites that trade in nonconsensual pornography, rather than have victims use DMCA takedown as a half-measure to remedy this form of harassment. Copyright enforcement is a workaround—a partial solution to a very ugly crime, and DMCA takedown is inadequate relative to the kind of damage inflicted or the motives for this crime to be committed in the first place. That said, I very much doubt the copyright stopgap solution will stand in the way of improving other areas of law, where improvement is possible. We seem to be making progress toward a federal prohibition against nonconsensual distribution of intimate images, and I don’t believe anyone has seriously suggested that DMCA takedowns obviate the need for this legislation.

On the subject of the DMCA, I think Professor Smith accurately describes certain uses of the takedown provision on platforms like YouTube to occasionally silence criticism or speech, or to punish. And she is also not wrong that DMCA takedown can be a relatively simple means to achieve these ends. But, on a side note, I also believe that inquiries in this area should compartmentalize sites like YouTube due to the intramural nature of copyright enforcement on the platform. Meritorious claims are in the mosh pit with unmeritorious claims, mixing it up with the ever-changing motives of YouTubers, and all of this chaos is administered by a corporate landlord with its own systems, interests, and dynamic rules while it adjudicates both takedown notices and counter-notices. YouTube is its own special copyright circus.

But more acutely, one of Smith’s key YouTube examples, citing gamer/YouTuber PewDiePie, reveals once again that she is working with an incomplete definition of the purpose of copyright. Once the highest paid YouTuber in the world, PewDiePie gained internet stardom with videos of himself playing popular games while joking, critiquing, or commenting as he played. In general, the game developers saw this use of their materials as good marketing, but in 2017, PewDiePie’s star fizzled a bit when he made racist and sexist remarks in several of his videos. Suddenly, “Pewds” was no longer a positive association for every game developer.

Professor Smith describes game developer Campo Santo’s takedowns as serving the noncopyright purpose of seeking to “punish” PewDiePie for being a jerk. But this is an error in my view. Because PewDiePie’s uses of gaming material likely would not be protected by fair use,[4] any of the gaming companies’ decisions not to issue takedowns should be understood as unwritten licenses to allow PewDiePie to use their works. But these are conditional licenses. As long as the use is good for the brand, the use is allowed. If the user is no longer good for the brand (just like an actor on a TV show whose public words or deeds become a liability), the company may revoke its unwritten license.

In other words, once again, there is nothing tangential to copyright’s purpose in Campo Santo’s decision to file the takedown notices—even if it turns out to be a financially detrimental decision, as Smith indicates it might be. Rightsholders grant unwritten, conditional licenses all the time (especially on the internet), simply by allowing uses they discover, and without any kind of formal agreements. But if the conditions of a particular use change, the copyright owner reserves the right to revoke that unspoken license. In fact, this is categorically a purpose of copyright.

I cannot address every example or aspect of Professor Smith’s paper in a single post, and my critiques here do not deny the fact that, in powerful hands, even the threat of copyright enforcement can be used as a weapon against a less powerful individual or entity for purposes outside the spirit of copyright’s intent. Smith is not wrong when she describes the attributes of copyright law that make it well suited for certain parties to try to silence criticism or erase information or perhaps even punish. And I think she is particularly thoughtful in exploring how and whether copyright is properly used to defend against powerful aggressors, even in contexts not typically thought of as fulfilling the spirit of copyright.

But recognizing that just about any legal framework may be used in a way we’ll call unconventional, questions remain as to how often that applies to copyright, and how often owners truly achieve noncopyright ends, regardless of whether those ends are ill or good. Meanwhile, before such an inquiry can provide useful insight, the examples considered should be based on a more complete definition of the purpose of copyright, and consequently a much narrower definition of what it means to weaponize.

[1] Associate Professor of Law, University of Montana Blewett School of Law.

[2] https://scholarship.law.columbia.edu/faculty_scholarship/620/

[3] https://www.cs.cornell.edu/~shmat/courses/cs5436/warren-brandeis.pdf

[4] Using portions of a video game in a video revie would likely be fair use, but using hours of game play as a major component In your for-profit entertainment vehicle would disfavor a finding of fair use.

Puzzle source image by: AndreyPopov

 

Is Google Buying Policy Through Academia?

Image by nicholashan

This week, the Wall Street Journal reports that Google has been funding academic research papers worldwide and, unsurprisingly, the conclusions in these papers tend to support Google’s policy interests.  This is familiar territory of course. Most obviously, we remember that Big Tobacco funded all manner of “research” that produced alternative facts about the health hazards of smoking. This is not to say that every author or study implicated in this story represents poor scholarship, or a quid-pro-quo scenario; but the sheer volume alone likely has a considerable effect on policy.

Perhaps the most significant question to consider is this: What happens when the industry that bankrolls self-interested academia happens to be in the information business?  Because not only does Google have the financial resources to fund millions of dollars worth of studies, but they also own the most pervasive platform we use to find information.  So, what are the odds a citizen will yield Google search results linking to news articles that cite Google-funded studies that support Google’s policy views? Maybe a little too likely.

In fact, The WSJ cites a report conducted by the Campaign for Accountability, which identified over 300 papers, published between 2005 and 2017, on the issues of anti-trust, intellectual property, and general regulatory policy. “The 329 Google-funded articles that we identified were cited nearly 6,000 times in more than 4,700 unique articles,” according to the report summary. “Overall, our analysis suggests that Google is using its sponsorship of academic research, not to advance knowledge and understanding, but as an extension of its public relations and influence machine.”

To be sure, the report pulls no punches, calling Google’s capacity to influence policy through academia “pernicious.”  “The number of Google-funded studies tended to spike during moments when its business model came under threat from regulators—or when the company had opportunities to push for regulations on its competitors,” write the authors.  The CFA report further states that the majority of the views in these papers are consistent with Google’s policy interests and that two-thirds of the studies did not disclose that Google had been a source, or the source, of funding.

Of the total number of papers listed, roughly one third (114) address the subject of copyright; and several of the authors—Ammori, Band, Springman, Urban, Lemley, Heald—have been consistently cited by anti-copyright bloggers, organizations, and the mainstream press, in articles promoting the general message that copyright is outdated, broken, draconian, or just plain wrong for the digital age. Still, it would not be fair to many of the authors of these papers to conclude from this report that every name on it is a so-called Google shill.  In fact, that’s exactly the kind of ad hominem generalization employed by the anti-copyright crowd all the time, and it’s not a reasonable response.

This point brings to mind one example of how effective this academic funding can be, and I refer back to March of 2016 and the request for public comments to the USCO regarding possible revision to Section 512 of the DMCA.  In the final weeks leading up to the April 1 deadline, stories broke in both the blogosphere and in the mainstream press with headlines announcing that “30% of all DMCA takedown requests are questionable.”

The source of those headlines was a study (listed among CFA’s 329) from Berkley and Columbia, co-authored by the above-named Jennifer Urban.  In fairness to Urban (who is very nice) and her colleagues, that study did not actually say what the careless reporting claimed it said. As discussed in detail in this post, the study did not support anything close to justifying the provocative 30% headlines that had gone viral. In fact, readers can see that when Urban herself wrote a few very cordial comments in response to that post, she did not really take issue with the overall thesis that the press and bloggers had misrepresented her study’s conclusions.

As a result of that study, though, reporters wrote stories based on the following logic:  the big rights holders send tens of millions of automated takedown notices; this new study says 30% of notices are questionable; the major rights holders must be sending millions of questionable notices; therefore, the major rights holders must be stifling a lot of speech.  Except the report itself doesn’t support that narrative at all, and one cannot accuse its authors of making such a claim—because they absolutely did not.  In fact, notices sent by major rights holders were not even part of that study’s data set.

But this one example of one study did produce some very effective—and innacurate—headlines that were probably rather helpful to Google’s interests leading up to the USCO’s hearings on Section 512. Odds are, most tech and copyright reporters didn’t read the whole report (and certainly didn’t try to unpack it’s findings); so by the time their misleading conclusions became tweets and other blurbs, a biased narrative about the DMCA was being repeated that even the report itself, in some areas, contradicts.

I chose this example specifically to illustrate that authors of a report, even while industry-funded, may still apply reasonable academic rigor and simultaneously produce results that can be very useful to the funding industry—especially when conclusions are taken out of context.  The extent to which the authors of a particular report can be blamed for finding the results their funding industry is looking for can only be considered on a case-by-case basis. Usually, the scholarship, or lack thereof, speaks for itself; but this demands that the people who do the reporting about the reports actually read them and try to understand them.  And in the digital market, ain’t nobody got time for that.

So, ultimately, the smoking gun in this particular story may be one of volume.  The company or industry that can afford to fund a lot of academic studies will invariably yield the most results favorable to its interests. Some will be, as the CFA says, “…little more than thinly veiled opinion articles dressed-up as academic papers, outlining the beliefs of an author on Google’s payroll with little or no supporting evidence.”  But even if all 114 papers mentioned were thoughtfully critical of specific areas of copyright law, and then supported 2,000 half-baked articles that in-turn generated 20 million tweets, it stands to reason that, in this grand game of Telephone we’re playing, the general public winds up getting the gist of exactly what Google wants them to believe.

Free Speech III – Are Today’s Liberals Killing It?

Because there are laws against certain expressions of neo-Nazism in Germany, and because my history-buff son and I are slightly amused by the satire inherent in that otherwise understandable fact, we will jokingly conjure the image of some official kicking a would-be fascist and screaming, “You vill be tolerant!”  But if you really like your irony served thick and over-salted, consider the likelihood that if I made that same joke on an American college campus today, not only might it be utterly misunderstood, but it might get me into actual trouble — especially with anyone unfamiliar with the satire of Mel Brooks.  In fact, in a recent reply to my last post about free speech, the respondent suggested that I have made comments on this blog that would get me fired from American colleges today; and he or she is probably right. Because if this article by Kristen Powers for The Daily Beast is an accurate portrayal of today’s “liberal” college students, they really don’t get free speech at all.

In the context of this blog, I keep insisting that the Internet is not the greatest tool for free speech ever invented. But I should clarify.  The more accurate thing to say is that it doesn’t actually matter if the Internet is the greatest tool for free speech ever invented, if in fact a whole generation of American university students don’t understand free speech in the first place — why we have it, and the often painful experiences through which it has been preserved. “… the politically correct university is a world of land mines, where faculty and students have no idea what innocuous comment might be seen as an offense,” writes Powers.  She also cites an article from Atlantic in which attorney and free speech advocate Wendy Kaminer states, “The belief that free speech rights don’t include the right to speak offensively is now firmly entrenched on campuses and enforced by repressive speech or harassment codes. “

I don’t know if Powers is cherry-picking exceptions and making them sound like rules. She may be pointing to a phenomenon rather than a trend. The article references her book The Silencing:  How the Left is Killing Free Speech, and she identifies as a liberal, so I assume this is not just some Bill O’Reilly-style attack on liberals in general. Additionally, what she says does jibe with anecdotal evidence I hear through acquaintances and that I have read in some online commentary by contemporary college students. And if this is truly what is happening to the liberal tradition of socratic disciplines in higher education, then it is impossible not to sneer every time the heralds of Silicon Valley declare that freedom of speech is the motive behind whatever policy they seek to enact or destroy. I don’t want to suggest that these voices don’t ever mean what they say, or at least think they mean it, but rather how empty their gestures are in contrast to the censoring trends that their wonderful tools of speech have helped create.  After all, Powers’s description of the self-righteous mob shutting down ideas based solely on some hair-trigger offense at the speaker’s choice of words sounds a hell of a lot like life imitating social media to me.

So, let Google & Co. abuse the concept of “chilling” free speech by chucking every artist’s takedown request into the “Chilling Effects” database and tell the kids they’re standing up for the First Amendment.  Whatever.  If Powers’s article is a fair reflection, the kids don’t understand free speech anyway. It’s a lost cause. The irony, of course, is that what preserves both the right of speech and the intellectual rigor to use speech is the conscious choice to be Jacob and wrestle with the damned Angel, to welcome the confrontation and turn it into something new rather than to silence it or pretend it isn’t there. And isn’t it funny that this is exactly what artists do?  We’re just barely victorious over conservatives banning creative works or investigating artists for “obscenity” or some other offense to our half-Puritan nature. Are self-proclaimed liberals now going to write their own black lists and host their own Bradburyian bonfires?

Maybe not.  But Powers does quote comedian Chris Rock who says that playing colleges isn’t fun anymore because people are so easily offended.  And this is truly a sign of the intellectual apocalypse:  when we no longer have the mental fortitude or cultural literacy to be able to laugh at our own folly, to satirize our worst selves, we breed fanatics who would smother genius in a ball of coexist bumper stickers.  I have no idea what the ultimate solutions are to the new rise in racial tensions in this country, but understanding why Chris Rock is funny would probably be a step in the right direction.  It’s sad to think about the fact that Lenny Bruce was arrested for obscenity in the 1960s, that Richard Pryor had racially mixed audiences pissing their pants together by the 1970s, but that a legacy of those two comedians can’t get a smile out of college kids in 2015. I’m not sure that’s progress toward any kind tolerance at all.