Tag: censorship

A Strange Anecdote of DMCA Abuse?

I was told by a colleague who attended the Section 512 round tables in San Francisco that a consistent response from representatives of the OSPs was that anecdotes about harm to rights holders from piracy or YouTube-style infringement are not sufficient.  “We need data,” was apparently an oft-repeated imperative.  This is funny because that same crowd loves anecdotes about abuse of DMCA, and well they should because the anecdotes are likely to be more compelling than the data on that matter. But sometimes, the anecdotes are downright bizarre, as with this story reported yesterday in The Guardian by Alex Hern.  It is in fact the story of the DMCA abuse that wasn’t there.

At first reading, one assumes that this is a typical story about some non-copyright holding entity misusing the DMCA in order to attempt to censor criticism of its business.  In a nutshell, a UK citizen named Annabelle Narey had a bad experience with a UK building company called BuildTeam, and she consequently posted a negative review on a parents’ news and comment site called Mumsnet.  Her initial post prompted a thread of other users sharing their own bad experiences with the same company, which apparently prompted BuildTeam to try to have the negative reviews removed, even initimating possible defamation.  But then, Hern writes this:

“Mumsnet received a warning from Google: a takedown request had been made under the American Digital Millennium Copyright Act (DMCA), alleging that copyrighted material was posted without a licence on the thread.

As soon as the DMCA takedown request had been filed, Google de-listed the entire thread. All 126 posts are now not discoverable when a user searches Google for BuildTeam – or any other terms. The search company told Mumsnet it could make a counterclaim, if it was certain no infringement had taken place, but since the site couldn’t verify that its users weren’t actually posting copyrighted material, it would have opened it up to further legal pressure.”*

Initially, this description sounded odd to me for several reasons, not the least of which is that it would take about 30 mintues or less for Mumsnet to review 126 posts of this nature, which are usually quite short.  More than that, though, under the DMCA, a properly filed notice has to identify the Allegedly Infringed Work (AIW) and state under penalty of perjury that the filer is the owner, or agent of the owner, of that work. As such, what work was the filer alleging had been infringed in a thread of comments?  Because if the notice just said something as generic as “contains infrininging material,” then the notice should have been rejected by Google.  More confusing still, as Hern goes on to describe, the filer of the take down request wasn’t even BuildTeam.  Who it was is not quite clear.

Hern describes a strange sequence of events in which a guy named Douglas Bush plagiarized Narey’s original post, published it on a “spammy website,” and also pre-dated the post to a day three months prior to the day Narey had originally published it.  Then, it appears that the registered owner of said spammy website, a Mr. Ashraf of Pakistan, may have been the one to send the DMCA takedown notice pertaining to the original thread.  It sounds a bit like a ham-handed attempt at a copyright scam; but suffice to say, there is nothing legit about the take down request, and Google should not have processed it at all. Moreover, under these circumstances, Mumsnet should not have had any fear of restoring the material via counter notice, as Hern suggests they might.  He writes the following:

“Whoever sent the takedown request, Mumsnet was forced to make a choice: either leave the post up, and accept being delisted; fight the delisting and open themselves up to the same legal threats made against Google; or delete the post themselves, and ask the post to be relisted on the search engine.”  

What?? There is no such thing as “whoever sent the request.”  This DMCA filing clearly fails to meet statutory requirements, and the apparent sender is apparently in Pakistan! Mumsnet should have had no concern regarding litigation from anyone as a result of restoring this material. But then, Hern reports this:

Mumsnet deleted the post, and asked Google to reinstate the thread, but a month later, they received final word from the search firm: “‘Google has decided not to take action based on our policies concerning content removal and reinstatement’ which (it turned out) meant that they had delisted the entire thread”. 

Again, what in blazes is going on in this story?  Because it looks an awful lot like Google just plain messed up. Yet, for all its muddy details, Hern is presenting this tale as a prime example of how copyright becomes censorship on the internet, blaming the law itself for his own conclusion that “ … sites like YouTube, Twitter and Google … are forced to develop a hair-trigger over claims of copyright infringement, assuming guilt and asking the accused to prove their innocence.”

That’s a familiar refrain that rings hollow with legitimate rights holders who make proper use of DMCA.  Meanwhile, Google has often fought tooth, nail, and elbow against delisting search results, asserting past refusals to do so as a matter of principle. And that’s in cases involving clearly infringing links.  Why is the search giant, as Hern states, suddenly on a “hair trigger” to delist this little thread of consumer comments about a building service, where a copyright infringement is highly unlikely to exist?  And why should rights holders who have an interest in legitimate take down requests continue to have those interests denigrated by the general characterization that DMCA is so often used as a tool for censorship?

The potentially compelling part of this story is the matter of what Mr. Ashraf was actually intending. If he was the one to publish someone else’s post as his own and then use DMCA to attempt to assert an infringement claim against the original, what did he hope to achieve?  Is this a new kind of scam, general mischief, or a third-party exercise in censorship? It seems to me all the parties involved, including Google, should want an answer to this question, rather than settle on the familiar but misguided conclusion that copyright itself is the villain.

*It should be noted that Mumsnet does not use an internal search tool for its comment threads, but in fact uses Google Search. This would appear to be a factor in this story.

Sarah Jeong Pitches Copyright Conspiracy Thriller

In what sounds like an homage to Tom Clancy, Sarah Jeong, a contributing editor to Motherboard, presents us with a cautionary action thriller in which the Chinese government could theoretically disappear one of the most famous and politically significant photographs ever taken. And all because of American copyright law.  You know the photo. It’s the image that comes immediately to mind when you think of the 1989 Tiananmen Square protest—the still-unidentified young man who stood in front of a column of four Peoples Liberation Army tanks, taken by AP photographer Jeff Widener.

In her recent editorial, Jeong speculates that a Chinese company called Visual China Group may now own the copyright on the iconic image as the result of its purchase of a collection of works that had belonged to Bill Gates.  Jeong states that she does not know if the Widener photo is among the works purchased—there are other “Tank Man” images—and she further mentions that VCG has entered into a licensing partnership with US-based Getty Images.  Nevertheless, Jeong insists that her hypothetical censorship scenario is “not entirely implausible”, citing unpredictability of the Chinese government and proposing a scenario in which the photo may be widely removed from the Internet by means of DMCA takedown procedures.  In asserting that this already multi-hypothetical circumstance would be entirely the fault of American copyright law, the deus ex machina in Jeong’s plot hinges on the following supposition:

“As owners of the copyright to the photo, Visual China Group could easily launch a massive censorship campaign across the internet. The group only needs to send a notice under the DMCA to upstream service providers that host the Tank Man photo—Google, WordPress, Amazon Web Services, Wikimedia, Facebook. If a DMCA notice is valid, a service is required by the law to take down infringing content—or else it can become liable for copyright infringement.”

Of course, nothing she describes reflects an accurate portrayal of how DMCA works, even if Chinese authorities did currently have their hooks into this particular photo.  As rights holders know all too well, an individual notice must be sent in regard to each alleged infringement.  One may not simply send a blanket notice to WordPress and say, “Take this off every WP blog.”  Then, as explained in considerable detail in my last post, the counter notice is still the final word under DMCA provisions, after which the rights holder must litigate in order to pursue removal.  But apparently undaunted by her basic misunderstanding of this aspect of copyright law, Jeong presses on with the following:

“Although fair use could cover use of the photo, thus giving a service provider an excuse not to honor the DMCA notice, that’s by no means a certain defense. See, for example, Fox News’ legal troubles over a copyrighted photograph of firefighters on September 11th—although the news organization cited fair use, a judge denied its motion for summary judgment on the issue, and Fox News ultimately settled the issue out of court.”

It’s a little hard to tell if Ms. Jeong is writing carelessly here or simply doesn’t understand the safe harbor provisions in the DMCA, but nobody should be confused into thinking that it would be the OSPs like Google, WordPress, et al who would be asserting any kind of fair use defense in a theoretical infringement claim of this nature. It’s the individual uploader of the material who is the actual recipient of a takedown request processed through the OSP, and it is he or she who may decide to argue that the use is non-infringing.  The safe harbor shielding OSPs is predicated on the idea that they don’t see nothin’, they don’t know nothin’, and they don’t say nothin’ ‘bout no infringements by its users.

To make matters…worse?  Stranger? Sillier?  I don’t know.  Jeong randomly points to a case in which Fox News’s motion for summary judgment based on a weak fair use claim was appropriately rejected by a district judge; and she cites the example as if this one case is evidence that fair use defenses just don’t work.  Well, tell that to the same Fox News, which has thus far lost to TVEyes on the latter’s somewhat questionable fair use defense.  But as long as Jeong is already wet, she dives all the way into the deep end with this inscrutable speculation:

Journalistic usage of the Tank Man’s photos—which persist in newsworthiness and historical value for the public—should be obviously covered under fair use, but the actual copyright analysis isn’t much different from the Fox News lawsuit. And if that’s the case, perhaps copyright law is broken.

It is possible, of course, that Ms. Jeong doesn’t realize that news networks, photojournalists, reporters, etc. are all copyright holders and that these folks do not make a habit of poaching one another’s intellectual property on the grounds that they are doing the noble work of reporting the news. (This would be rather circular logic for infringement of journalism.)  But for sure, she either did not read—or does not remotely understand—the facts in the Fox News case to which she refers because the network’s fair use defense in that instance hinged on its argument that its use of North Jersey Media Group’s image on its Facebook page was “transformative” simply because it was hosted on a social media platform.

Perhaps one day a court will agree with a TV network or General Motors or Pfizer that its Facebook page is indeed a little haven of fair use, at which point we can ball up the fair use doctrine and toss it in the fire.  But for now, it is nearly impossible to imagine whence Jeong conjures the idea that her tens of thousands of hypothetical conflicts over the Widener image might each resemble the “analysis” applied in this one Fox News case. In fact, I’m not sure the district judge analyzed the fair use argument all that carefully so much as he just summarily called “bullshit” on it.

Naturally, the subplot in this Sino-censorship-via-American-copyright story is the implication that passage of the Trans Pacific Partnership will make matters worse by way of exporting DMCA-like procedures to US trading partners.  But even if Jeong’s censorship concerns were well-founded, what they might have to do with this trade deal is a mystery.  As far as China goes, when that government wants to censor something, I think they just censor it the old fashioned way.  And with regard to the US, nothing in the TPP would make her already exaggerated scenario work any better because the trade deal doesn’t implicate any change to domestic IP law.  But the real irony I just can’t let go is that while Jeong generalizes her concern that the “American government is exporting strict copyright law” to other countries, she may not be aware that it is Google and other major OSPs that have pushed as hard as anyone to export DMCA notice-and-takedown procedures abroad because its safe harbor provisions serve their interests.  To quote from an Internet Association statement on Tumblr,  “The Internet Association continues to push for strong policies such as DMCA to be incorporated explicitly in the TPP treaty itself to ensure a strong, robust Internet ecosystem.”

Finally, I think Ms. Jeong and her readers might want to breathe into a bag for a while before getting too stressed about China making its human rights record disappear into Santayana’s axiom by way of US copyright law.  I remember where I was at that time in 1989; I was watching CNN broadcasting its very dramatic video footage of this brave young man facing down the tanks—footage CNN still owns and that can still be licensed for educational and other uses.  This is to say nothing of the myriad uses of the Widener photo that no entity is likely to stuff back into the bottle—let alone stifle legitimate fair uses.

Above all, this chronic hyperventilating over the prospect that copyright makes things disappear is not only carelessly reasoned but also places way too much value on social media and other ephemeral Web platforms as repositories of important information.  As Jeong herself proves with this particular article, anyone can put anything on the Internet without the burden of even a good faith effort to be accurate.  And this is probably a more effective a way to burn the proverbial history books than anyone’s attempt at censorship.

Is Speech Preserved by More Speech Alone? – Part I

“The more speech the merrier,” was the central argument made by Justice Scalia in writing the majority opinion on Citizens United, but that case suggests, at least to many of us, that the mechanism of the speech matters a great deal. Yes, in many ways, money can be speech; but at the same time, I think Scalia conjured an illusion of more, which obscures the practical reality that the SCOTUS ruling ultimately provides a bigger voice for a privileged minority.  So, what about speech delivered via the mechanisms of social media and other networked communications? Nobody can argue that there is more of it. But does placing too much emphasis on volume alone risk overlooking the complex, even occasionally painful, ways in which speech, as we define it in the U.S., is preserved?

“The value of intellectual freedom is far from self-evident,” writes George Packer in his New Yorker editorial Speech Crisis.  “It’s hardly natural to defend the rights of one person over the feelings of a group; to put up with all the trouble that comes with free minds and free expression; to stand beside the very people who repel you.” Even among free nations, the United States is unique in policy and in its sustained public support for the absoluteness of speech.  But as networked communications alter our relationship to speech, new social dynamics emerge that can produce as many new forms of censorship as new forms of expression.  Quoting Packer again, he cites Joel Simon thus:

“Joel Simon, the executive director of the Committee to Protect Journalists, argues in his book ‘The New Censorship’ that the explosion of data in digital media keeps us from seeing how extensively information is controlled. ‘Repression and violence against journalists is at record levels,’ he writes, ‘and press freedom is in decline.’”

Interestingly, Packer begins his article with the description of a brutal murder of a Bangladeshi blogger, but his main thesis is a warning against the pitfalls of self-censorship, even here in the tolerant United States. Quoting Packer again:

“But, in some ways, an even greater danger than violence or jail is the internal mute button known as self-censorship. Once it’s activated, governments and armed groups don’t have to bother with threats. Here self-censorship is on the rise out of people’s fear of being pilloried on social media. In Russia, Vladimir Putin has been masterful at creating an atmosphere in which there are no clear rules, so that intellectuals and artists stifle themselves in order not to run afoul of vague laws and even vaguer social pressure.”

Packer’s assertion that self-censorship is “on the rise out of people’s fear of being pilloried on social media” exemplifies why I would caution against overemphasizing volume of speech in order to insure its universality as a right.  Personally, I believe that only when we uphold the right of the minority speaker above the majority’s capacity to silence that speaker, is speech as a right actually sustained.  Yes, this means American Nazis were given permission to march through the Jewish Village of Skokie, and it means Fred Phelps repeatedly made a public performance out of disrespect for grieving military families.  But such examples, when filtered through populist media like Twitter, seem to confuse support of the minority voice with unwavering tolerance of the offensive; the two are not necessarily intertwined. The offensive can also be the silencing mob.

Take the chronic occurrence of rape and death themes that flare up like herpes on Twitter when a woman says something a particular group of men doesn’t like. Setting aside actual threats, which are already criminal, wishing for sexual assault upon someone is offensive yet protected speech.  We the majority of ordinary citizens must, in the name of speech, tolerate the minority of apes, who have nothing better to do than tweet “I hope somebody rapes you,” to Ashley Judd because she dissed their basketball team or Emma Watson because she commented on women’s rights. But while speech defendants rush to make this point clear in these instances, we don’t seem to pay much attention to the potential or actual self-censorship of the original speaker.   Naturally, if the speaker is a celebrity, she has resources that inoculate and empower her to speak back, but not every individual with something to say is so blessed; and one consequence of this round-the-clock, global speech-a-thon we call the Internet is that it can certainly make almost anyone famous or infamous for a day.  Thus, one of the pitfalls of placing too much faith in more speech as a preservative of speech istelf is that both the dynamics and the economics of social media foster new types of crowds and new types of minority speakers. And the only real difference between a crowd and a mob is whether you’re with it or against it.

Meanwhile, the notion of tolerance itself, the basic idea that the health of speech depends on allowing or even embracing unpalatable ideas, seems to be changing online and in our national dialogue.  Paradoxically, from quarters like academia, one hears the refrain of what sounds like a new orthodoxy of “tolerance,” which is of course a form of censorship.  More on that in Part II.