Tag: Ajit Pai

Public Knowledge Responds to Infringement Claim in Ajit Pai Video

Well, this is interesting.  Ordinarily, Public Knowledge is an organization that sows a lot of confusion—and sometimes outright falsehoods—about copyright law.  As a rule, I group them among the “digital rights” activists who tend to promote their opinion of what the fair use doctrine should be rather than a more realistic description of what it is.  So, it’s interesting that in response to allegations of copyright infringement against people they don’t like, the organization has produced a fairly sober and reasonable analysis of the fair use defense.  For the record, I’m no fan of the video in question either.

After FCC Chairman Ajit Pai reversed the 2015 Open Internet Order, a video featuring Pai, apparently produced  by the Daily Caller, went viral. It shows Pai demonstrating various things people will still be able to do after the hugely unpopular reversal of what is generally called “net neutrality.”  As readers know, I’ve tried to cut through some of the rhetoric on the neutrality issue without fully defending Pai, or certainly the telcos; but I also think the video was a pretty dumb PR move.  Its content may be factual, but its tone and style were begging for ridicule; its association with the odious Daily Caller makes it fatally dismissible; and its use of about ten seconds of the song “Harlem Shake” drew a DMCA takedown and threat of litigation by artist DJ Baauer.

Faced with the dichotomy of hating both Pai’s policy and copyright law, Public Knowledge uncharacteristically published a fairly rational explanation, written by Meredith Filak Rose, of the fair use doctrine along with an analysis of the use of “Harlem Shake” in this video.  Her assessment predicts that the video makes a fair use of the song, though not without sprinkling a bit of anti-copyright messaging along the way.

Rose does a good job of explaining the legal meaning of “parody,” which is one of the more widely misunderstood, colloquial terms invoked to assert a fair use.  I agree with her that the use of “Harlem Shake” in the video does not meet the standard of parody and am glad to see even an anti-copyright organization make an effort to clarify this point.  But from there, I think her fair use analysis is a bit all over the place, straining to make a case for the kind of use Pai and colleagues made, while clearly hating the video itself.

I’ll dispense with the fairly simple analysis under the second fair use factor, which generally considers whether the original work is expressive or factual in nature. Use of the former tends to weigh against a finding of fair use, while use of the latter tends to weigh toward a finding of fair use. Clearly “Harlem Shake” is expressive, and so Rose is correct to expect that this disfavors a finding of fair use under this prong of the four-factor test.

Under the first factor analysis, I agree with Rose that the use of “Harlem Shake”  is not parodic and that it is also non-commercial; but I disagree when she concludes that it is “at least mildly transformative,” thus favoring a finding of fair use. In fact, it is contradictory to conclude that the use of the song is not parody but is transformative. Because this still begs the question as to what has been transformed.

Originally, transformativeness described the creation of a truly new expression, which could not possibly exist without making use of the exact work in dispute. In the video, Pai concludes his list of “post neutrality” activities by saying “You can still do the ‘Harlem Shake’,” and then he dances to the track (and yeah, it’s cringy) with staff members of the Daily Caller.

This use is no more transformative than if the track were synched to the introduction of a promo video made by Pfizer. The use does not produce a new work that directly parodies, comments upon, criticizes, or builds upon the original song itself. In fact, in a subtle way, Pai is telling people, “Don’t worry, you can still randomly infringe various copyrighted works after I reverse the 2015 Order.”  (By the way, transformativeness is a principle that has indeed been applied rather schizophrenically in the courts, but it is organizations like Public Knowledge that continue to promote ever-broadening interpretations of the term.)

The intended communication in the Pai video could have been made by using any number of pop songs. The purpose of the video as a whole was not a work of commentary upon art and culture but was instead a work of PR with the intent to promote a position on public policy. In a fair use assessment, this use should be seen as equivalent to precedent examples in which a creative work is used for general comment or satire (i.e. to comment upon something external to the original work), which are not typically held to be fair uses.

In this context, Rose errs when she considers whether or not it was necessary to use “Harlem Shake” per se in this video.  First she improperly places the question under the third factor—the “amount and substantiality of the use”— rather than the first.  Because the need (or not) to use a specific work underlies the purpose and character of the use, the question belongs under the first factor analysis.  Next, Rose rather bollixes up the principle in her effort to defend “meme culture” by confusing creative necessity with the much broader notion of personal taste.  She writes…

“But judges can also ask whether you could have achieved the same purpose without using the work at all, or using another work. These are borderline existential questions when it comes to memes: did I have to use a copyrighted image of a screaming porg in my Twitter avatar to convey my distaste for the current political climate, or could I have used something else to equal effect?”

Despite the anti-copyright crowd’s love of memes, the test under fair use as to whether a specific work is necessary to create an expression is not so broad as considering the whimsical taste of the user to make some generalized statement.  Under fair use, the resulting new work should, in some way, be unimaginable without making use of the protected work in dispute.  For instance, the seminal case (1994) in which 2 Live Crew parodied the song “Oh, Pretty Woman,” was one in which the new expression relies substantially on a cultural familiarity with the sounds copied from the original. It is understood that the new work is, in part, spoofing the spirit of the original song.

Rose’s reference to her screaming porg avatar errs as an example because she is in no way commenting upon the original photograph.  She’s simply wearing it like a button on a lapel to express her personal state of mind about the current political climate. If she used the same image in a blog post about the political climate, the photographer could take action, and she would almost certainly lose in a fair use defense.

Finally, while Rose’s explanation of the fourth factor is correct, part of her application with regard to the Pai video is odd.  The fourth factor considers the effect of the use on the potential market for the original work.  I certainly agree with her that nobody would ever consider the Pai video to be a substitute for listening to “Harlem Shake,” and I also agree that Pai’s use under this factor favors a finding of fair use.  But then, Rose meanders into other legal territory—namely, moral rights—when she writes, “There is a tenuous (but extant) argument that Pai’s association with the song actually devalues the song.”

Regardless of one’s opinion about moral rights for artists—Rose calls it dangerous—this consideration is not generally applied in a fair use analysis.  In fact it is essential to note that fair use will protect commentary upon a work, even if the commentary itself may harm the market value of the original work.  Correctly applied, the fourth factor only considers whether the new use may act as a substitute for the existing or potential market of the protected work, including a market that the original author may choose to exploit at some point in the future.  So, whether one buys into the argument that Pai’s use of “Harlem Shake” could create a negative association with the song, this is not legitimately a question under the fourth fair use factor.

On instinct, my prediction would be that that the Pai video would fail on the first and second factor analyses, prevail on the fourth factor, and could go either way on the third factor.  Although the video makes very limited use of “Harlem Shake,” the third factor considers whether the portion used represents the “heart of the work.”  One could imagine DJ Baauer making a case that the campy communication intended can only have worked by making use of the “heart” of the song such that it would be instantly recognizable in context.  This would disfavor a finding of fair use, if the use also failed under the first factor analysis.

One way or another, I don’t doubt the infringement claim associated with this particular video caused a bit of dissonance over at Public Knowledge.  And they should be commended for at least trying to discuss fair use as a nuanced principle, rather than the natural right of all netizens.  That said, I think they missed a few key distinctions in an effort to make clear they still really don’t like copyright.

Why I’m Neutral (for now) on Net Neutrality

Let me start by saying I hate this issue. It’s exhausting to research and hardly a page-turner.  Still, I opened my big, cyber maw, suggesting to friends on Facebook that they might calm down about the news that FCC Chairman Ajit Pai intends to reverse the 2015 Open Internet Order, so I feel obligated to dig a little deeper and follow up. But the net neutrality story overflows with complexly tedious details—a potpourri of policy wonks and technical jargon dating back to the 1960s—that not only betray any attempt to identify an engaging starting point, but which also summon Macbeth’s ode to vanity as a tale told by an idiot, full of sound and fury, signifying nothing. 

Because the neutrality story is complicated, nuanced, and dry, it is ideally suited to manipulation through the glib shorthand of social media.  If nothing else, it would be grand if people would stop trying to make policy by meme. On any issue. Ever.  After all, there is little point in coming to terms with Russia’s role in hacking our political process when we are clearly willing to hack ourselves on a daily basis.  The absurdity of sharing “neutrality” woes, which are largely misinformed, on a highly-manipulated platform like Facebook cannot be overstated.

The neutrality narrative doesn’t truly offer any good guys to cheer or bad guys to boo—just huge corporations (think of them all as bad guys if need be) that are variously at odds one moment and in collaboration the next. And though the issue has unquestionably been politicized, it is not a story with any clear lines that can be accurately drawn around the contours of party or ideology. (e.g. How many Dems would guess that their biggest judicial ally favoring the 2015 OIO is the late Justice Scalia?)  In the broadest sense, the debate is not about whether broadband internet access services (BIAS) should be held accountable for non-neutral practices; but rather a question as to whether they should be regulated in anticipation of potential malfeasance by the FCC or responded to upon evidence of malfeasance by the FTC.

In 2007, both agencies agreed that instituting “neutrality” regulation was premature, that the market was too nascent and fast-developing to know whether such regulation would have unintended negative consequences.  For what it’s worth, over the subsequent ten years, none of the major concerns, which are now being described as imminent, manifest in any substantive way.  For instance, many people share the talking point that (also in 2007) Verizon once blocked NARAL’s use of its platform for a mobile text campaign.  But, the salient details in that story are first, that Verizon’s original policy was not ideological—many corporations try to remain neutral on hot-button issues—and second, that Verizon actually backed down rather quickly under public pressure.  This market-based response to Verizon lends credence to the wait-and-see approach adopted ten years ago by both the FTC and the FCC.

Neither the telcos (AT&T et al) nor the major platform providers (Google et al) deserve any benefit of our doubt. Companies operating in both sectors have been guilty at one time or another of non-competitive and non-neutral practices.  The simple way to view these players (and this includes popular platforms like Netflix) is that they’re all vying for our time and money (and personal data) and all looking for an edge over one another. Having said that, the 2015 Order by the FCC presently tilts the regulatory landscape in favor of the Googles of the world, and everyone spreading the word to “save neutrality” is doing the big platforms a big favor. This is folly.  As argued in older posts, I see no reason why Google and Facebook should be free to manipulate our web experiences, which they do almost constantly, while we pretend to have achieved “neutrality” by preemptively regulating BIAS providers, which have not been shown to substantively engage in non-neutral practices to date.

If we are going to have a coherent regulatory framework that protects consumers while encouraging investment in a bigger, better, and faster internet, this will almost certainly require bi-partisan leadership from a Congress willing to engage both the FTC and the FCC in the proposal of new guidelines based on the internet we have—and may realistically have in the foreseeable future. By contrast, there is an extent to which classifying BIAS providers under Title II in the 2015 Order was a politically expedient attempt to shoehorn the unprecedented and dynamic digital ecosystem into early 20th century regulatory guidelines by way of analogy.  And unfortunately, most analogies don’t apply.

Andrew Orlowski, who has been following the neutrality debate for a decade, describes in a 2015 article how unhelpful the usual analogies are to a sensible discussion about the way packet networking (i.e. data flow) actually functions.  “…the assumption that traffic management is the cause of service differentiation is itself a narrow and misleading assumption. If you take away traffic management from a network, the network wouldn’t suddenly become a Garden of Eden-like paradise. It probably wouldn’t work at all,” Orlowski writes.

In short, the network is never neutral.  Or to put it in prosaic terms, when your video stream hitches up, which happens from time to time, how would you know if it’s due to malfeasance on the part of the ISP or the imperfection of data traffic management somewhere on the network—or for that matter, wind in the wires?  Meanwhile, the position of the telcos, with which Ajit Pai agrees, is that the 2015 Order dissuades investment in broadband expansion that would not only make your video stream more reliable, but would bring still-needed connectivity to underserved regions of the country.

Write that off as corporate/Republican double-talk if you want, but stranded, private investment is a tricky animal; and in the U.S., we don’t build public, even in circumstances where perhaps we should. So, the reality we have is that nobody is going to invest billions in a better, faster internet without knowing how that investment will be recouped. In the early 20th century, when the country was first being fully electrified, those stranded investments were guaranteed a return by the government granting monopoly control of power distribution to the handful of investing corporations.

So, if the 2015 Title II Order cuts off certain revenue streams for BIAS providers, which it does, might the incentive to make stranded, broadband investments have come at the cost of some new form of monopolistic guarantee?  I have no idea, and we won’t likely find out; but there is historic precedent for that kind of arrangement. Meanwhile, as a company like Google diversifies to provide access via fiber, which would not be covered by the 2015 Order (even if it were to remain in place), what form of protection do consumers hope will emerge in a model in which a single company is simultaneously ISP and the largest advertiser/data-miner in the world?  Answer:  We’re nowhere near addressing that question.

And of course, the pervasiveness of the network will soon exceed our present experience, as we seem destined for better or worse to live among the “internet of things.”  I doubt there is any kind of reasonable, statutory framework that empowers either the FTC or the FCC to adequately protect consumers in a world where every aspect of daily life is networked through systems built by private enterprise. Perhaps, that’s an argument for the 2015 Order as a first step, but even if that were the case, the “debate” raging on social media is largely looking backward at what never occurred over the past 20 years, rather forward at what might occur over the next 20 years.

Admittedly, the epicenter of this debate is a matter of statutory interpretation with regard to the way ISPs function and the meaning of “information service” vs. “common carrier.”  Until the 2015 Order, BIAS providers (and only cable providers) were classified as “information services” under Title I of the Telecommunications Act.  At the same time, there are reasonable, common-sense arguments (including Scalia’s dissent in the Brand X case of 2005) for reclassifying these services as “common carriers” under Title II.  My own view, after reading Chairman Pai’s 50+ pages of legal argument on this matter, is that because he probably has the statutory argument on his side, this says more about the inadequacy of existing frameworks for effective cyber policy than it does about the current debate over neutrality.  Maybe that’s the issue we should address.

There is much more to this epic tale of mind-numbing minutiae, so the above is just a snapshot of why I’m neutral (for now) about the likelihood that the 2015 Order will be reversed.  Behind the political rhetoric and scary memes, the truth is that nobody really knows what the effects of the Order might have been, but we do know the Order wasn’t in place for the first two decades of our using the internet, and neutrality principles were largely sustained by other forces.  In short, the Title II Order is not in itself net neutrality, so its reversal does not end net neutrality.

How Bad is the FCC Pause on Privacy Rules?

Photo by kentoh

By now, you may have encountered a handful of headlines stating that the new, Trump-appointed FCC Chairman Ajit Pai has temporarily halted new privacy rules passed under Obama’s Chairman Tom Wheeler.  As a general takeaway, you’re also likely to see statements like “Republicans favor corporations over consumer privacy,” and as with all things under the Trump imprimatur, trust is not going to be the default position for many of us. But, then, viewing every issue through the lens of Trumpism is also another way of distorting reality, making ourselves bananas, and failing to compartmentalize issues, which is almost always necessary.

On the subject of consumer privacy and the FCC, any criticism that Wheeler’s policies favored companies like Google and Facebook over other companies should be at least considered.  As readers know, I and others criticized Wheeler’s so-called “set-top-box” proposal as an attempted hand-out to Google at the expense of television creators.  So, when this story about privacy broke, I wasn’t prepared to take every headline at face value just because Pai is a Republican in the Trump administration. He was in the FCC before the election and would likely still be there regardless of who became president.

Let me jump to the main point here:  we consumers want and deserve control over the gathering, selling, and use of our data.  We do not have this control yet. There is no comprehensive, uniform body of law that is adequately protecting privacy in cyberspace for American citizens.  And these facts are central to Pai’s criticisms of Wheeler’s rules of October 2016.

With the adoption of NetNeutrality—another topic for another day—the FCC was empowered to regulate ISPs like AT&T and Verizon in the same way it regulates telephone carriers.  As a result, it was then empowered to establish rules for these ISPs regarding the manner in which they may gather and use consumer data.  This is fine in principle, but critics, including Pai, argued that these FCC rules were not consistent with the rules set by the Federal Trade Commission, which apply to data gathering and use by companies like Google and Facebook, referred to here as “edge providers.”

Because the ISPs hope to compete in online advertising with the “edge providers,” they argued that the disparity in rules creates an unfair advantage for the likes of Google in the market. And that’s when I will at least give these critics some benefit of the doubt. Because as much as I may admire President Obama on a wide range of topics, his administration consistently tilted in Google’s favor across many areas of governance.

In his dissenting opinion regarding the FCC rules now on hold, Pai quoted the Electronic Privacy Information Center in rebuttal to Wheeler’s assertion that providers like Google and Facebook only see a “slice” of our data:

The FCC describes ISPs as the most significant component of online communications that poses the greatest threat to consumer privacy. This description is inconsistent with the reality of the online communications ecosystem. Internet users routinely shift from one ISP to another, as they move between home, office, mobile, and open WiFi services. However, all pathways lead to essentially one Internet search company and one social network company. Privacy rules for ISPs are important and necessary, but it is obvious that the more substantial threats for consumers are not the ISPs.

That certainly jibes with my own experience as a consumer. Regardless of how I get online—whether at home, through my mobile device, or via my local coffee house WiFi—all of my substantive activity occurs on web platforms.  So, yeah, I think privacy rules governing ISPs and “edge providers” should be both robust and consistent. But are they either robust or consistent?

That’s the nitty gritty we’re going have to try to follow in the coming months; and the task is not made easier when editorials fall into the trap of reporting this matter as Republican = corporate favoritism and Democrat = consumer protection.  When it comes to the interests of the Big Data companies, that narrative just does not hold up.  Chairman Pai’s core complaint about Wheeler’s FCC privacy rules is that the providers with the most detailed view of our data (.e.g. Google) would have far more lenient governance than the providers who have less insight into our private lives (e.g. Verizon). So, to the extent that Pai is correct in this assessment, I have to agree that consumer protection is best served by consistent rules governing the entire internet ecosystem.

Stay tuned. Much more to follow I’m sure.