Tag: copyright

NYS Assembly Led Down the Primrose Path on eBooks Again

NYS Assembly

In December 2021, New York Governor Hochul recognized that she must veto a bill that would have prescribed the manner in which publishers may provide eBooks to public libraries. It isn’t necessary to rehash the details of that legislation—I wrote several posts about eBook bills—but only to restate the reason for the veto:  the law was unconstitutional. Why? Because state laws proposing to dictate terms for making in-copyright works available, even for libraries, is preempted by federal law.

Nevertheless, Assemblyman Angelo Santabarbara has introduced a new bill (A10544) that, although its mechanisms are different from the 2021 bill, is still unconstitutional. In fact, the operative part of the bill which, for instance, prohibits digital rights management (DRM) technology, would have the effect that a library is free to make eBooks available in any manner it sees fit and without limits of any kind. This plainly violates the Copyright Act. Even if the purpose of the proposal were well-founded in service to the public—and it is not—the states are simply not permitted to pass their own laws governing the terms under which copyright owners may distribute works to the market.

In addition to Gov. Hochul’s clear-eyed veto in 2021, related eBook bills have been proposed, litigated, and shot down in several states, begging the question as to why lawmakers seem determined to die on this meaningless hill. As discuss in this post examining the mid-sized library system serving my region in New York, there is no evidence suggesting that the public is underserved or that the current licensing regimes are so onerous as to harm the operation of libraries. Frankly, even if licensing were onerous, these laws would still be unconstitutional, but the combination of federal preemption and pointlessness does make one wonder–but not really.

These eBook bills are all variations on the same thematic effort by the same lobbying groups seeking to push an anti-copyright agenda using the Trojan Horse of the public library. Copyright antagonists couldn’t prove DRM, governed under DMCA Section 1201, was unconstitutional, so they try chipping away at the principle through state legislatures, masked beneath the white hats of institutions we all love. And indeed, because I do love libraries, I continue to hope that they will stop running interference for organizations that have neither libraries’ nor readers’ nor certainly authors’ best interests at heart. If nothing else, continuing to introduce bills that run afoul of Article I Section 8 is a waste of everybody’s time.

Photo by: vasiliybudarin

Small-Batch Micro-Blog (100% GAI Free)

illusion of more

The Illusion of More blog was started in 2012 based on three interrelated premises: 1) that disinformation is toxic to democracy; 2) that Big Tech’s assault on copyright rights was both a disinformation campaign itself and a catalyst for more disinformation; and 3) that technology should serve humans and not the other way around. The difficulties posed by tech-enabled disinformation are more challenging today than they were twelve years ago, and to be sure, the myriad harms being done to basic reason cannot be remedied by copyright law.

Copyright cannot address the fact that Fox News amplifies utter gibberish about facts and law in the “hush money” trial. Copyright cannot address the findings by the Center for Countering Digital Hate that Facebook makes no distinction between Groups discussing concern about the war in Gaza and Groups hosted by antisemites advocating another Holocaust. Copyright does not address nonconsensual deepfake pornography or the many potential uses of generative artificial intelligence (GAI) to expand the fun-house labyrinth of cyberspace into a dizzying kaleidoscope of alternate realities.

To paraphrase the comedian Ron White, copyright can’t fix stupid. And unsurprisingly, Big Tech has shown that stupid is a multi-billion-dollar industry. To mitigate how arrogant that sounds, social media induces educated, thoughtful people to behave stupidly all the time, so it is little surprise that it whips the uneducated and not so thoughtful into a cacophony. And no, copyright law can’t fix any of that. It cannot resolve either the volume of misinformation or the profit motives of platform operators who nurture and thrive upon outrage and divisiveness. In fact, because copyright protects creative expression, it even protects utter gibberish the moment it is “fixed in a tangible medium.”  It’s a tough paradox to swallow.

In Article I Section 8 Paragraph 8 of the Constitution (often called the Progress Clause), the rights of “authors” maps to the word “science.” I discuss the meaning of the clause in my book, and I believe there is little doubt that the American framers viewed copyright much as they viewed the speech and press rights—as essential to fostering a more literate society that could debate the subtleties of its own lofty civics. If that dream has not been obliviated by social media toys, it is not for lack of trying by the toymakers.

Twelve years and about 1,000 articles ago, I started writing The Illusion of More wondering whether there would be much to say after the first few months. Today, the convergence of copyright assault and rampant misinformation (at the intersection of GAI) is complex to the point of dismaying. Nevertheless, thanks for reading this blog, and assuming I keep writing it, I promise to inform, amuse, provoke, or anger readers organically — 100% GAI Free.

If you have thoughts, I ‘d love to hear them. If you wish to support IOM, I have added a button for that purpose. Thanks for reading!

Site-blocking: can the U.S. finally get it done?

site-blocking

The Motion Picture Association (MPA) has prefaced a renewed interest in site-blocking legislation to combat piracy. Will things be different this time?

When the internet industry killed the antipiracy bills SOPA and PIPA in January 2012, I was a newbie blogger but guessed at the time that those parties had totally blown their wad on that campaign. First, there was the boy-who-cried-wolf limitation suggesting that Google & Co. had deployed too much hyperbole to ever again sound the “death of the internet” alarm. Next, the general belief that “the internet” is inherently a force for good was a notion that waned perceptibly after 2012 and then fell off the cliff circa 2016. Today, neither the general public, the government, nor the press fawns over the “white knights” of Silicon Valley as they did when those bills were scuttled.

None of that addresses the fact that the “Stop SOPA” campaign was a tidal wave of disinformation, but it would be naive to think that facts would win today any more than they did twelve years ago. When new site-blocking proposals begin to make headlines, and the network of tech-funded groups howl BEWARE SOPA 2!!, it will be interesting to see whether the same, or similar, false talking points are effective in an environment that is more skeptical of Big Tech in general.

What is site-blocking and why do It?

Site-blocking today would probably work much as it was intended back in 2011. A complainant would have the burden to prove to a court that a platform is principally engaged in illegal activity (e.g., media piracy) and is operating outside the reach of U.S. law enforcement. With sufficient evidence, the complaining party(ies) would obtain an injunction to deny the platform access to the U.S. market. The basic mechanisms are not much more complicated than that, though we can expect the same network of “digital rights” groups to sharpen the rhetorical pitchforks and again stoke allegations that this process will “break” the internet or that it violates the speech right.

Of course, neither claim is true. Site-blocking is employed as a remedy throughout the democratic world where the internet still functions, and speech rights are not infringed (at least not because of site-blocking). There is no more a speech implication to blocking a criminal web platform from access to the U.S. than there would be by interdicting a cargo ship full of counterfeit electronics. On that subject, the need for site-blocking legislation today is more urgent than it was in 2011, and not just for movies and music.

Although the MPA et al. will naturally focus on sites illegally hosting and/or streaming pirated entertainment, establishing a broader rationale for site-blocking—i.e., getting past unfounded ideological opposition—will serve other business and private interests. Online predators of every type have continued to adapt since 2012; evidence shows that media piracy is integrated with a broad spectrum of cybercrime; and the U.S. lags behind the EU et al. in adopting this basic mechanism of protection.

For instance, small-business owners making creative products sold on eCommerce platforms lack the resources to combat, or the margins to absorb, the pace of counterfeiting by foreign actors. Advancements in small-batch production methods and drop-shipping offer new flexibility for counterfeiters to flood the U.S. market with cheap knockoffs, harming both legitimate producers and consumers. Meanwhile, media pirate sites are delivery platforms for malware used for cyber extortion (including sextortion), identity theft, and direct theft of private and sensitive material from personal and business networks.

So, although the MPA will likely be the most prominent advocate of site-blocking legislation, there are many disparate parties—from small-business owners to advocates fighting online sexual abuse—who may see the value in the U.S. finally adopting a remedy the EU et al. have had in place for a decade or more.

An Interesting Moment

In 2011, it was easy to spread the message that site-blocking was only about “Hollywood” protecting its wealth to the detriment of speech on the internet. It wasn’t true then, of course, but it will be interesting to see whether some form of the same rhetoric will gain traction in the coming years. Specifically, a whole generation has grown to young adulthood since then—kids who never heard the proverbial boy cry wolf the first time. Notably, Torrentfreak reports that GenZ exhibits a high rate of pirate site access, citing familiar rationales that streaming subscriptions are too expensive and/or that interest in one title militates against subscribing to the necessary channel.

But what will really be interesting to watch over the next few months will be GenZ’s susceptibility (or not) to the “Save TikTok” campaign already underway. On April 24, President Biden signed a solidly bipartisan law stating that TikTok will be banned in the U.S. unless, within nine months, owner Bytedance sells the platform and, thereby, severs all ties to the Chinese Communist Party (CCP). Bytedance, in addition to vowing it will fight the law in U.S. courts, has already launched a PR campaign, including social media messages that will tap into the same emotional triggers used during the “Stop SOPA” campaign.

As Google & Co. did in 2011/12, Bytedance will use its addictive interface to promote the message that its business interests are synonymous with their users’ rights, only this time, the rhetoric isn’t coming from Big Tech filtered through the Electronic Frontier Foundation—it’s a psyop of the CCP. The efficacy of the “Save TikTok” campaign will be telling, not only about the viability of site-blocking legislation, but about the hoped-for savvy that “digital natives” might reveal about navigating the perils of cyberspace.

In 2011, it was frightening to watch the platforms use the insidious power of the platforms to advocate the policy interests of the platforms. Now, that same playbook is being run by a foreign adversary targeting 170 million 18-29-year-olds, and it is an anxious moment, to say the least, waiting to see how they respond. Regardless, the underlying rationale for site-blocking is sound, and I hope that both copyright and non-copyright interests see it as a necessary protection of American enterprise and security.

Photo by: tommoh29