Tag: Donald Trump

Trump Claims “Absolute Immunity” in Eddy Grant Copyright Suit

When I wrote about the Grant v. Trump copyright case on October 1, I was wrong about one thing:  that Team Trump would quickly settle the matter as a relative storm in a teacup within the legal tornadoes swirling around the ex-president. But I should know better. Because of course the law works in mysterious ways in Trump’s mind, including one important theory he continues to advance against all claims civil and criminal—namely, that having attained the presidency, he is henceforth immunized against all liability for the rest of his life.

After failing to obtain a dismissal in musician Eddy Grant’s copyright infringement claim against Trump and the campaign, Trump’s answer filed on October 18 asserts five affirmative defenses including “absolute presidential immunity.” Yes, Donald Trump throws this expression around like he’s flinging holy water at vampires because he has never quite shown that he understands the distinction between the office and the office holder. In a Lawfare article explaining why the former president should not be immunized against civil suits arising out of the Jan. 6 insurrection, Dayna Zolle writes, “The Supreme Court has stated that the president’s power to act ‘must stem either from an act of Congress or from the Constitution itself.’”

As a matter of law, there is a separation between the official duties of an incumbent and his reelection campaign. West Wing fans may remember that Sorkin’s President Bartlett was such a stickler for this rule that he refused to call potential campaign donors from within the Oval Office. And although Trump has consistently tried to erase the line between campaigning and governing, he has no reason to expect that any court will be persuaded that the use of “Electric Avenue” by Trump for President was encompassed within the “outer perimeter” of the official duties of then President Trump.

Nevertheless, the fact that the absolute immunity defense was even presented in Grant reprises the discussion I began in my first post about this case, when I asked whether unlicensed uses of works for political messages should tilt away from fair use under factor one in deference to the copyright owner’s speech rights. Because regardless of the legal veil that exists between a campaign and an office holder, that separation is muddier in the lingua franca of politics in general. And this is one reason why Trump in particular provoked an unprecedented number of musical artists to demand that he not use their songs at his rallies.

Although Trump is wrong as a matter of law about his eternal immunity, it is true that campaigns are about official policy, even if they are not official acts—especially campaigns by incumbents. Thus, to the extent that a Trump 2020 rally was an extension of the administration, that is all the more reason why songwriters or artists have an inherent moral right to assert their non-participation, if that’s how they feel. As Mick Jagger told the BBC about demanding that Trump stop using “You Can’t Always Get What You Want,” to close rallies, “It’s a funny song for a play-out song—a drowsy ballad about drugs in Chelsea. It’s kind of weird.”

The weirdness of Donald Trump notwithstanding, moral rights is a subject of IP law, which is more explicitly codified in various copyright statutes around the world than in the U.S. The one exception is the section of the American statute called VARA (Visual Artists Rights Act), which includes certain prohibitions against destruction of visual works and/or uses of those works in ways that may harm the artist’s reputation.

Moral rights encompass those aspects of copyright which are intertwined with the author’s identity, and although the U.S. is not strictly a moral rights jurisdiction, I would argue that the essence of those protections is baked into the exclusive rights under §106 because the author does not need a reason to reject a license to use a work. Simply disapproving of a proposed use—including the possibility that the author hates the breathing guts of a political figure—is sufficient grounds to deny the would-be user a license. And the rightsholder need not explain himself.

Further, if Trump were correct that campaigning is coextensive with governing, then unlicensed uses of works would be tantamount to compelled speech—at least in principle—because the campaign related conduct would meet the standard of state action necessary to implicate the First Amendment. Whether the use of music at a rally or synched with a video would be considered using the speech of the author(s) without permission is arguably a case-by-case consideration. But music is an especially powerful medium in this regard. When a sound recording is played at an event to animate a crowd into action which the artist passionately opposes, the offense may be deeply personal and has nothing to do with the economic utility of the artist’s copyrights.

So, I doubt Trump’s immunity answer in this case will do him any good, and perhaps the campaign will ultimately settle with Grant since the damage award would still be a tiny slice of the Trump defense fund pie chart. But even the folly of the argument contains a little slice of truth—that the boundary between campaign and official conduct by an elected official is often hazy and semipermeable. But if that is relevant at all, it is grounds to afford authors greater, not lesser, protection against involuntary participation through uses of their expressive works for political purposes.

What Happens When the Biggest Troll on Twitter is the President?

This week, as Twitter CEO Jack Dorsey emerges a champion of truth in a world of truthiness, we must not lose sight of the fact that the folly of conflating the speech right with social media platforms has played a major role in leading us to this absurd moment of conflict between Trump and Twitter.

By now, almost everyone is aware that Dorsey took responsibility for Twitter fact-checking a couple of Trump’s tweets about mail-in ballots. The tweets were not taken down, mind you, but flagged as untrue because, well, they’re not true. In response, the president cried “censorship,” echoed accusations of “liberal bias” in Silicon Valley, and by end of business yesterday, signed an Executive Order putting platforms on notice that their liability shield under Section 230 of the Communications Decency Act (1996) may be vitiated due to their alleged partisan nepotism.

I’ll get to the EO in a moment. But what I fear Trump may have just done is to give Big Tech an effective talking point to use in opposition to legitimate and measured proposals to amend Section 230—proposals that have been in discussion since before the election of 2016. Suffice to say, the internet industry likes its liability shields (both 230 of the CDA and 512 of the DMCA) just the way they are, and the major platforms will fight for the status quo with everything they’ve got. Now, one thing they’ve got is an opportunity to run headlines and memes shouting Don’t Let Trump Destroy the Internet! Or variations on same.

I figured it might come to this. About five minutes after the election of 2016, one could imagine that the already complicated debate about platform responsibility was going to be further muddied by fact that the president uses platforms like Twitter to make false statements and to commit acts of libel and harassment. Trump’s complete disregard for statesmanship, the truth, or the rule of law are all assets in the wilds of social media, where doxing, mob-harassment, and threats have silenced the speech of individuals with far less armor than a President of the United States.

Platform operators, who have historically been oriented toward leaving everything online, today find themselves in the unprecedented position of hosting some pretty crazy shit written by the highest elected official in the nation. At a certain point, it has to feel irresponsible not to put a warning label on an official announcement that happens to be false. At the same time, we might just as reasonably shrug at Twitter’s decision as give Dorsey a high five for it. As a practical matter, the majority of Americans do not believe anything Trump says, and only some portion of his secure voting base believes everything he says. So, Twitter’s decision may be somewhat moot, as it is a relatively small gesture in the scheme of things.

The Executive Order signed yesterday is political theater with an ironic twist. On the one hand, the order’s animating principle (i.e. threat) is predicated on a misstatement of how Section 230 actually works. It alleges that in order to remain shielded from civil liabilities stemming from users’ content, the service provider must be a neutral party—i.e. keep mitts off all user content. But that’s exactly the opposite of what Section 230 says. The section known as the “Good Samaritan Clause” was written expressly to encourage sites to engage in…

“… any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;”

Note how broad that language is. The provider is urged to make judgment calls and to decide, for instance, what content is “otherwise objectionable.” And of course this is how 230 would have to work because the First Amendment prohibits the government from determining what community standards a platform may establish for its use. The EO erroneously alleges that because social sites are biased against “conservative” politics, and engage in muting one party’s viewpoints, this invalidates their “neutrality,” which abrogates the 230 protection.

The problems with the EO are that the bias allegation itself is without merit, and the legal theory is a misrepresentation of Section 230. In addition to the sane person’s observation that misstatements of fact should not be called “conservative” just because they come from Donald Trump, “there is no empirical basis for the claim that conservative viewpoints are being suppressed on social media,” according to a recent paper by scholars Mary Anne Franks and Danielle Keats Citron. As part of their discussion about improperly conflating the speech right with Section 230, Franks and Citron note that an independent audit was led by former Senator Jon Kyl and found no evidence supporting this allegation.  

What we do as a nation with the fact that “conservatism” has devolved to the circus of Trumpism is an existential problem; but as a cyber-policy matter, what this little bruhaha may have done is to further complicate a fledgling discussion (and a bipartisan one) about meaningful Section 230 reform. Because the ironic twist I mentioned above is that the misread of Section 230 applied in the EO echoes the same rhetoric that has been used for years by the internet industry in order to justify its laissez-faire approach to platform stewardship.

The major internet platforms, with substantial help from “digital rights” organizations like the EFF, have done an exceptional PR job—invoking both Section 230 and the First Amendment (and improperly conflating the two)—in order to sell the message that social platforms are like steroids for the speech right. And until 2016, most people across the political spectrum seemed to buy that claim, even though it was legally and constitutionally unfounded.

It would be impossible to calculate the number of editorials and amicus briefs written to denounce the removal or demotion of so much as a syllable of “speech” online, and the platforms have generally supported this view because it’s good for business. More content means more traffic and more data to mine. It is only in recent years that some members of Silicon Valley’s leadership have revealed a moral reluctance to host everything—even if it’s harmful—under the bogus claim that they are defending speech.

Meanwhile the victims of some of the worst conduct online, like non-consensual pornography and other forms of harassment, have seen the courts overbroadly interpret Section 230 in ways anathema to anything Congress intended in 1996. The internet industry, along with briefs filed by organizations like EFF and ACLU, has invoked 230 as grounds to avoid removing even non-consensual pornography, which could not be more absurd given the anti-obscenity origins of the legislation. Thus, it is only recently, thanks in large part to women like Franks, Citron, and attorney Carrie Goldberg, that both parties in Congress have finally undertaken review of Section 230 for possible legislative fixes to address these unintended consequences.

As such, it does not strike me as very helpful to the purpose of sober review that Section 230 has been brought into the foreground by this latest presidential outburst. The EO itself may be a worthless piece of paper Trump signed to make himself and a few of his fans feel good, but now that he’s stamped his brand of partisanship on this narrative, one can imagine any number of ways this non-partisan discussion can become needlessly mired in the muck. As mentioned, I can certainly imagine the industry using this story as leverage to stymie legitimate review.

Of course, the maddening irony of this dustup is that all the speech extremism of the last 10-15 years, combined with misrepresentations of Section 230, is a big part of how we managed to raze the landscape of reality so that someone with absolutely no moral compass could become President of the United States. It may have taken this shock to the system for people to finally want platform stewardship like fact-checking and enforcement of community standards, but the dark irony of the EO is that it isn’t all that different from the rhetoric tech-utopians have been using for years.

Sirius XM Takedown of Stern/Trump Interviews Is Not Censorship

The implication that copyright is fundamentally a tool of censorship is a favorite theme among its critics.  They rarely miss an opportunity to ring this particular bell when the chance presents itself; and most recently, Cyrus Farivar, writing for Ars Technica, reported that Sirius XM filed a DMCA notice to have an archive of interviews between Howard Stern and Donald Trump removed from the blog site factba.se.  On cue, Mike Masnick at Techdirt was quick to describe this as “yet another situation where copyright law is being used to censor information that is in the public interest.”

Or maybe not exactly.

As a general note, it’s a pretty easy target, whenever material is arguably of historic or newsy significance, to make an emotional claim that the exigencies of copyright stand between the public and its right to know. But the hyperbole that is so often employed (e.g. Masnick’s saying the interviews are now in a “memory hole”) invariably suggests that copyright enforcement is tantamount to erasing information or sequestering it permanently from any form of public access.

In this regard, and for the discussion that follows, it’s important to note that just about every major news organization in the world maintains archives of works of historic significance and will license the use of this protected content for any purposes that require licensing. So, Sirius issuing a DMCA takedown notice in this case does not mean they’ve locked the content away for good.  In the meantime, if the public is desperately in need of insight into Donald Trump’s character, it seems amply covered.

Masnick states that the Ars Technica article cites “a bunch of lawyers” offering theories as to whether factba.se’s hosting of the radio interviews might be fair use. This bunch is actually four lawyers, all who have publicly espoused varying degrees of copyright skepticism, with opinions siding 3 to 1 that factba.se’s use would likely be held fair use.   Masnick then offers a mini analysis of his own, theorizing that hosting Sirius’s content in this manner would favor a finding of fair use under the first, second, and fourth factors.  And since neither Mike nor I are actually attorneys, let’s do this…

First Factor:  Purpose and Character of the Use

Under the first factor, Masnick states, “…the newsworthy nature of it and the purpose of the archive push it pretty strongly towards being transformative….”  I disagree.  In fact, what factba.se did was to make available exactly the same content that Sirius has the exclusive right to exploit under copyright.  Factba.se did not build upon the work to produce commentary or a new creative expression; and neither did it produce a transformative use akin to the Google Books research tool.  As was re-affirmed recently in the KinderGuides case, the fact that a rights holder has not yet made these works available does not forfeit the protection and allow another party to exploit the works in any matter normally protected by copyright.

Second Factor:  Nature of the Copyrighted Work

Under the second factor, Masnick notes the relative lack of “originality” in works that comprise interviews between Howard Stern and Donald Trump.  This is perhaps the strongest argument favoring a finding of fair use, although a court would have to do a more detailed analysis of the interviews themselves.  But as long as we’re making assumptions, there is ample precedent to demonstrate that copyright protects “original” works of a factual nature (e.g. all journalism); and given the irreverent and creative style that made Howard Stern the star he is, it’s very hard to imagine that a court would not find that these interviews meet the “creativity” standard for protection under copyright.

Third Factor:  Amount and Substantiality of the Work

We can assume that even the staunchest critic of copyright will agree that this use would likely fail under the third factor analysis because of course factba.se used the entire work.

Fourth Factor:  Effect of the Use on the Potential Market

Masnick states that this use “clearly” does not harm the market for the Howard Stern Show, thus implying analysis would tilt toward fair use under the fourth factor.  But here, he is either purposely or carelessly applying the wrong standard and adding more noise to the galloping confusion about fair use these days.  In a case like this, the court would hardly consider whether or not the use of Sirius’s archival material may cause harm to the market for current Howard Stern programs.

The court would instead consider whether or not the unlicensed publication of these archival materials threatens the potential market for Sirius to exploit these precise works under the exclusive rights of copyright.  For example, if Sirius wants to release a special boxed-set of the Stern/Trump interviews, it has the exclusive right to do so; and a use like the one made by factba.se would almost certainly be seen as threatening that potential market.  This concept of the rights holder’s potential market is often the most overlooked aspect of the fourth factor when it’s described in articles and blogs for general readers.  But potentiality is paramount to how the analysis is generally applied.

Once again, to stress the emphasis made by Judge Rakoff in his KinderGuides opinion, copyright’s exclusive bundle of rights is not a use-it-or-loose it proposition.  Simply because Sirius has not yet made these interviews available in this way does not grant factba.se or any other party the right to do so.  That the works may be considered newsworthy or historic does not substantially alter this underlying principle.

As is often the case, critics like Masnick are looking for censorship where it doesn’t exist.  At least not yet.  Yes, the fact that Trump is now president does elevate the historic significance of these interviews, but it is false to assert that this circumstance then demands an immediate release by a party that had nothing to do with producing the works.  If there were a substantive revelation in one of the interviews pertaining to matters of state, one could make a solid fair use argument for using that interview or portion in reportage.  But as we’re talking about Howard Stern and Donald Trump, I’m going out on a limb and guessing that the full archive is about 80% “locker-room” talk. And while the audience that wants to hear these works as news or entertainment is entitled to do so, the creators who produced them are entitled to exploit them like any other protected work.