Tag: EFF

The EFF Taking on Big Tech?

Last week, CreativeFuture CEO Ruth Vitale wrote a post wondering whether she had stepped into a parallel universe upon reading a June 27 missive by the EFF’s Mitch Stoltz. Related to my last post on the theme of tech-utopians doing policy pirouettes in the current climate we call the “techlash,” Stoltz declared Big Tech too big, with “extraordinary power to censor and surveil.” Really? Welcome to the resistance, Mitch.

I know what Vitale means of course. The EFF has consistently endorsed policies that bolster the interests of Big Tech, namely internet companies, so Stoltz’s post does look like a staggering about-face begging for a jab in the ribs.  But taking his statement at face value, Stoltz’s main point is that the lack of competition in the internet market is dangerous, and he primarily advocates a re-invigorated approach to antitrust law as a solution. He writes…

“Restraining Internet giants’ ability to squash new competitors can help allow new services and platforms to arise, including ones that are not based on a surveillance business model. We also need new ways to measure and describe the harms of censorship and loss of privacy as a basis for antitrust analysis. Where these harms flow from abuse of monopoly power, or improper attempts to gain or maintain such power, regulators may need to consider breaking up companies as well.”

While I don’t see anything wrong with the EFF throwing its resources behind antitrust action against any big tech corporation, where it’s appropriate, I still maintain that certain web platforms are natural monopolies for which is there no public policy solution. Ain’t none of us got time for two Facebooks, so Facebook will retain its dominant position unless we all either migrate en masse to a platform we like better, or just bail on these types of platforms because we lose interest. In general, I suspect the challenges inherent to consolidation, combined with the prospects of automation, are far more complex and unprecedented than anything antitrust law was ever designed to address. But that’s another topic for another day.

Taking on Big Tech?  Really?

Meanwhile, a subsection of Stoltz’s post caught my attention because he mentioned that among the legislative reforms necessary to mitigate corporate dominance by the majors is Section 1201 of the DMCA. These are the statutes which provide for technical protections of copyrighted material and prohibit tampering with those protections for the purpose of infringing copyrighted material. But in the context of Stoltz’s new post, it has to be noted that the EFF in particular has advocated policy views on Section 1201 which, in some cases, would amount to a gift to Google—one of the aforementioned “too big” corporations Stoltz now says needs to be reined in.

For instance, in the Summer of 2016, there was a big row over the FCC’s proposal known as the “Set Top Box” Rule. If passed, it would have forced the TV cable companies to make programming and data available to third-party manufacturers of new boxes—naturally Google was in the lead among these—they would sell to consumers. The problem for TV producers was that the programming would, by federal mandate, have been made available to Google et al without any kind of licensing regime, thus bypassing the complex network of licensing among producers and distributors of TV programming that actually gets the show-makers paid.

The EFF, specifically Stoltz, declared that the proposed FCC Rule had “nothing to do with copyright” despite the fact that the proposal had a lot to with copyright, including the implication of Section 1201 because the current cable boxes we use are one form of technical protection of all those licensing deals that result in TV shows getting made.

Meanwhile, this “nothing to do with copyright” message re. the TV boxes was articulated by the EFF at about the same time that the organization filed suit against the government to have the entire statute declared unconstitutional. The EFF has a longstanding beef with 1201 (which is not without flaws), but both the EFF lawsuit and its public messaging on the subject tends to omit a considerable amount of complexity in the issue, seeking to draw readers toward the talking point that “copyright is standing in the way of…innovation, safety, consumer fairness, etc.”

That was essentially how the “Set Top Box” narrative was portrayed, even though it cannot be denied that passage of the FCC Rule would have been a major gift to Google, expanding both its market presence and its capacity to exploit what Stoltz described above as a “surveillance business model.” All while exploiting billions of dollars worth of programming without paying a cent in license fees.

Declaring 1201 Unconstitutional

In the Summer of 2016, when the EFF announced this litigation, I wrote a long post describing why I believed their case against 1201 was flawed—or at least why it was portrayed over-simply for public consumption. In general, complaints about this section of the DMCA seep into public perception as a prohibition against fixing our own cars or other devices because 1201 prohibits tampering with the tech that protects the software that runs so many products today. And then copyright in general gets a bad rap, which groups like EFF are happy to exploit in their messaging.

In fact, during that same period, PublicKnowledge launched an all-out smear campaign against the USCO, and then register Pallante, in part accusing the agency of favoring rightsholders with regard to its triennial Rulemaking process, which considers exemptions to 1201 protections for petitioners who file requests. In that case, PK actually vilified the USCO for deferring to other federal agencies that have an interest—in fact a more acute interest—in device tampering than copyright owners.

As explained my post at the time, the Register’s report revealed the opposite attitude of which it was accused—that not only was the USCO highly sympathetic to “good-faith researchers” seeking exemptions, but that the major hurdles to some of the exemptions being sought came from agencies outside the purview of the Copyright Office, including the Environmental Protection Agency, the Department of Transportation, and the Department of Justice. Suffice to say, the subject of device tampering is not simply a DMCA issue, and the DMCA is often a minor player in a bundle of regulations designed for consumer protection, environmental protection, etc. As a June 28, 2018 letter from DOJ counsel recommending some amendment to 1201 exemptions states …

“… the DMCA is not the sole nor even the primary legal protection preventing malicious tampering with such devices, or otherwise defining the contours of appropriate research. The fact that malicious tampering with certain devices or works could cause serious harm is reason to maintain legal prohibitions against such tampering, but not necessarily to try to mirror all such legal prohibitions within the DMCA’s exemptions.”

In other words copyright may be a factor with regard to device tampering—either for illegal or legal purposes—but it is quite often not the factor. To the extent DMCA may be inappropriately intertwined with other federal protections, that is a matter for Congress to consider, but that exploration seems unlikely to implicate the unconstitutionality of 1201 as a copyright protection regime. In the meantime, it is unhelpful when EFF acolytes like Cory Doctorow fire off misleading blurbs that distill the complexity of the Rulemaking process down to crazy shit like “copyright is the reason diabetics can’t get generic insulin.”

The EFF may yet demonstrate ways in which DMCA 1201 is helping to keep Big Tech too big (i.e. stifling competition), but the organization tends not to mention ways in which the statute has fostered innovation. For instance eReaders would not exist without technical protection measures that provide publishers and authors a reason to license digital versions of their books; and DRM these days is generally invisible to consumers, playing a role in the innovation called streaming. In this regard, if the EFF truly intends to take on Big Tech for anti-competitive practices, then welcome to the party; but their chronic assault on copyright law alone has only helped to foster and sustain the market dominance of some of the major companies now allegedly in their sights.

In the News: Sarah Jeong, “Fake News”, & Fair-Use

It’s another one of those weeks when there’s stuff happening faster than I can write about any one thing. So, here’s a summary of a few items of note …

Anti-Copyright Ideologue Named Tech Writer at NYT

Twitter lit up yesterday with accusations that The New York Times has named a “racist” to its editorial board, citing anti-white tweets made by technology writer Sarah Jeong, who is Asian. These complaints read like a lot of whinging nonsense, taking Jeong’s comments out of the context in which she was apparently responding (albeit ill-advisedly) to racist or sexist remarks directed at her. (God, I love Twitter for the way it brings out our better angels.)

What is notable about Jeong as the Times’s new “lead writer on technology” is that she is an anti-copyright ideologue, who has written various articles and posts in a familiar, ill-informed style akin to Cory Doctorow. In February of 2016, I wrote a fairly extensive response to several errors she made in a Motherboard editorial predicting that copyright law might enable the Chinese government to disappear the famous “Tank Man” photograph from the internet.  It’s still online of course.

So, while I truly doubt Sarah Jeong is a racist and think the people labeling her as one should get a grip, I am equally skeptical that future NYT editorials on the intersection of technology and copyright will be well-balanced—or even accurate.

New Paper on Why People Share “Fake News”

Related to the above, I notice that the National Review site has two top stories featuring Sarah Jeong, the second of which is headlined “Yes, Anti-White Racism Exists.” This dumb and bogus narrative is what academic Alice E. Marwick would identify as a “deep story” in her new paper titled Why Do People Share Fake News? A Sociotechnical Model of Media Effects. Unable to fully answer that question yet, Marwick provides a complex nuanced framework for further discussion, identifying socio-cultural factors that cannot be overpowered by solutions like fact-checking.

Although the volume of what Marwick calls problematic information is greater among the contemporary “right” at present, the contemporary “left” is by no means immune to the underlying reasons why people are apt to believe and spread “fake news,” hoaxes, and other forms of disinformation. I’m working on a longer post summarizing Marwick’s paper, but for those interested, her full paper is here.

TVEyes Files for Cert at Supreme Court

Filing a petition for Supreme Court hearing in its ongoing litigation with FOX News, TVEyes hopes to get another shot at presenting arguments that failed in the Second Circuit in February of this year. Eriq Gardner for The Hollywood Reporter writes, “TVEyes’ attorney tells the Supreme Court that the 2nd Circuit decision conflicts with precedent and ‘creates a circuit split over a question of exceptional importance, including the proper balance under copyright law between the interests of a copyright holder and the First Amendment right to criticize and comment upon the copyright holder.’”

There is no brief to review yet, but that statement alone, taken from a request for an extension to file, does not seem to bode well for the Supreme Court granting cert for a couple of reasons. The first, as detailed in this post, is that the same appellate court that ruled in favor of Google Books also drew sharp distinctions between that case and TVEyes (ergo, maybe not so much of a split). The second reason is that it is consistent with precedent to hold that the First Amendment rights of users of a service do not automatically make the service itself non-infringing. This is a chronic argument made by tech-industry players, and as described in this post, courts generally take a dim view of corporations that attempt to “stand in the shoes” of their customers.

I’ll be surprised if SCOTUS agrees to review this case, but if it does grant cert, expect a storm of amicus briefs to follow.

EFF Honors Itself With Its Own Award

In a July 30 announcement, the Electronic Frontier Foundation named Stephanie Lenz, creator of the “Dancing Baby” video, among the recipients of this year’s Pioneer Award. “Stephanie Lenz’s activism over a home video posted online helped strengthen fair use law and brought nationwide attention to copyright controversies stemming from new, easy-to-use digital movie-making and sharing technologies.” Many of us will never experience the injustice of having a video removed and then restored to YouTube, but in that silent interval, when people could not watch Lenz’s baby boy dancing in the kitchen, her world—indeed the whole world—was just a little bit darker.

I wrote a post in October of 2016 summarizing the narrative of this decade-long EFFishing expedition; but suffice to say this award-earning “activism” did not even begin as a fair use case; “Fair-Use Champion” Stephanie Lenz stated her own ambivalence about the video remaining on YouTube; the fair use/DMCA argument itself is razor thin; and I would bet anything that, beyond us copyright watchers, “nationwide attention” sounds something like this: Oh yeah, didn’t Prince sue some mom? And that didn’t even happen.

So, in the same way that Stephen Carlisle described Stephanie Lenz as the “nominal plaintiff” in Lenz v. UMG, it seems reasonable to call her the nominal recipient of this award, which should rightly go to the EFF’s own Corynne McSherry for Outstanding Achievement in PR Through Boondoggle Litigation.

Wait, Boing Boing Is Not Clickbait?

So, maybe you heard, or didn’t—or you don’t really care—that Playboy is suing Boing Boing (parent company Happy Mutants, LLC) for contributory copyright infringement. There are a couple of serious points to make about this case, but I want to address the funny part first because it actually informs the not funny parts.

The funny began when I read TorrentFreak’s* article highlighting the fact that Playboy’s complaint calls Boing Boing a clickbait site.  It just so happens that I read the TF post after I read EFF’s motion to dismiss on behalf of Boing Boing, referring to the site’s enterprise as journalism. And that’s pretty funny because the example below is a typical “news article” on Boing Boing. This one happens to be about Andrew McCabe stepping down as Deputy Director of the FBI:

As you see, the “journalist” in this example has typed 69 words conveying the barest information he learned from a real news source; he’s shared a quote from NBC only slightly shorter than his own content; and he’s used a photo from the Reuters News Agency that’s bigger than all the text. In fact, by area, the “article” occupies roughly the same page space as the banner ads while providing the reader with a fraction of the information he could get from a news site—adding neither commentary nor insight nor color to the most rudimentary facts. And for extra funny, Boing Boing asserts a Creative Commons license even though one would be hard-pressed to find any protectable elements in an example like the above—the author having written five sentences so common in vocabulary and structure that I doubt even the site’s limited claim of protection under Creative Commons would hold up.

A sample like this is not journalism by any reasonable definition of the term so much as it is a time-wasting diversion for a reader who might actually want substantive news or commentary about McCabe’s imminent resignation. I know, one man’s meat and all that, but it seems fair to assert that this Boing Boing post, and many just like it, exist solely for the purpose of grabbing traffic to generate ad impressions while providing no distinctive value to the visitor.

But if Boing Boing and friends bristle at the term clickbait to describe this business model, perhaps they’d prefer Wasteful Aggregators of News and Knowledge. Y’know, WANKs. For practical purposes, let’s define a WANK as any site that functions as a tollbooth—a needless step between, for instance, a social media feed and a robust source of content like a news site. Rather than operate as creators of original content, WANKs harvest Pavlovian responses to headlines in order to funnel traffic through their tollbooths, generating revenue in the form of ad impressions. Sorta, like…clickbait.

A Quick Note on Contributory Infringement

Simply put, liability for contributory infringement exists when a party knowingly induces or encourages infringement, with or without prospective financial gain. In this particular case, I would assert that profiting from traffic is the only reason for the existence of WANKs like Boing Boing; but even if we were to broaden the meaning of journalism to encompass these sites, this does not change the legal analysis because the most serious journalists in the world can still infringe a copyright or be liable for contributory infringement—even while producing far more original work than a typical Boing Boing post.

Playboy Entertainment v. Happy Mutants

So what happened with Playboy was that somebody uploaded every playmate centerfold dating back to April 1960 (477 images) to the site Imgur. And upon discovery of this trove of unlicensed photos, Boing Boing’s intrepid news team produced one of its Pulitzer-melting articles with a headline cleverly titled “Every Playboy Playmate Centerfold Ever.” At issue is the fact that the article contained two links—one to the Imgur pages, the other to a YouTube video, made by someone who’d arranged the photos into a slide show. But lest you think this was just a cheap opportunity to leverage a third-party infringement just to drive traffic, note that the reporter did stay up late to write the following:

“Some wonderful person uploaded scans of every Playboy
Playmate centerfold to imgur. It’s an amazing collection,
whether your interests are prurient or lofty. Kind of amazing to
see how our standards of hotness, and the art of commercial
erotic photography, have changed over time.”

The EFF calls the publication of these words “transformative,” asserting that even if there were grounds for contributory infringement, which they insist are not present, this perceptive insight, with its melodic repetition of the word amazing, serves as the cornerstone of a fair use defense under the first factor. I know it seems like I’m still on the funny part, but this is the serious legal stuff and is central to Boing Boing’s defense that all they did was link to infringing content while commenting on it “as journalists.”

Now, my opinion of Boing Boing’s value doesn’t technically matter. And the opinion of a court should not matter either. We certainly do not want the courts or any other branch of government deciding what is and is not journalism (especially these days). And it is also true that the prospect of incurring liability simply by linking to content can imply potential hazards, though certainly not the existential threat to the internet that EFF and its colleagues seem to proclaim with relentless consistency.

At the same time, it is not reasonable for WANKs, or any other platform, to avoid liability for intentionally exploiting third-party infringement merely by means of attaching a glib comment and calling it “news reporting” protected by fair use. By EFF’s standards, I could post unlicensed photos on this blog with captions that say little more than, “This one’s my favorite!” and call it “transformative.” And that just ain’t right.

Again, even if we were generous enough to consider Boing Boing’s 44-word “standards of hotness” post a form of journalism, it still should not pass as “transformative” under the fair use test because the post does not actually use the original work to create a new expression by adding something new. Technically, the post could stand alone without the links. It would still be lame, but it wouldn’t be infringing. As it is, the central communication of the post is, “Dude, you should look at these photos, and here are the links.” Which sounds kinda contributory.

Of course, the real key to Boing Boing’s liability has less to do with the text in the post and more to do with the headline. When the unambiguous words Every Playboy Playmate Centerfold Ever appeared in social media feeds, the goal was to trigger the aforementioned Pavlovian response whereby users click the link expecting to see exactly what the headline promises. The brief interlude when the user might read the diminutive post does not serve to shield the fact that, as indicated by the headline, Boing Boing advertised, and then provided access to, infringing content for the sole purpose of drawing traffic to its pages.

This conduct should be more than sufficient to allege contributory infringement and allow this case to proceed. Meanwhile, I actually agree with Boing Boing’s defenders that this case gets to the heart of the internet—namely the heart of what sucks about the internet, which is populated by too many opportunistic platforms that do very little other than manipulate users and exploit work somebody else has produced. If WANKs like Boing Boing cannot operate without blanket immunity from responsibility—a dysfunctional policy that real journalists have never enjoyed—then the enterprise should fail. What society would lose in that bargain is impossible to imagine.

*POST CORRECTED:  As first published, I called the TF post “defensive,” a reading into the article based on its headline, the editorial leanings of that site, and the anti-copyright views expressed by many of its readers’ comments.  Upon hearing from TF and further review, it’s fair to say that Andy’s post is much more neutral than I first described.