Tag: EFF

EFF Manufacturing Scandal in the Service of Google

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On October 25, four days after the unprecedented removal of the Register of Copyrights from her office, the Electronic Frontier Foundation released a post on its Deeplinks Blog asserting rather stridently that the Copyright Office never would have reviewed the FCC “set-top-box” proposal if not for the urging of the MPAA.  I think we can now say that there is officially no line EFF will not cross, no lie it will not tell, in the service of Google’s interests over the public interest, which the organization claims to serve.  The thesis of the blog post boils down to the following syllogism:

1. We have argued that the FCC “set-top-box” proposal does not implicate copyright law.

2.  Because we are obviously correct in this view, the Copyright Office should have agreed with us.

3. Therefore, the only explanation for the Copyright Office disagreeing with us is that they must have been pressured by the MPAA.

And so, the EFF went looking for proof of the motion picture industry’s clandestine influence on the Copyright Office via a FOIA request, and they released supporting documents with their blog post that they know most people won’t bother to read.  If anyone does read the super secret emails betwixt FCC, MPAA, the Copyright Office, and the USPTO, they will discover (hold your breath) requests for meetings to discuss issues of concern with regard to the FCC proposal!  Ah ha! Meetings!

I know this may be a shocker, but there is nothing illegal or improper about any stakeholder, operating above board, requesting meetings to discuss concerns they may have with a proposal by any federal agency.  And emails to arrange meetings—I mean literally communications as banal as, “Hey, does next Tuesday work for you?”—are not subject to any rules regarding disclosure because they’re not substantive.  Nowhere in the “exposed” communications presented by the EFF is there any evidence of motion picture representatives drawing conclusions for Register Pallante that she would not have come to on her own with regard to the FCC “set-top-box” proposal.  The FCC proposal, like any other federal agency proposal, allows for comments from multiple stakeholders that become part of the public record and which members of any other agency may read and consider.  It is also neither illegal nor improper for a stakeholder to send an email to a member of an agency to say, “This is our statement for your consideration.”

The broader point is that one does not need to be an expert at the level of Maria Pallante or MPAA’s attorneys to consider that any proposal which fundamentally alters a licensing paradigm between producers and distributors—as the FCC proposal clearly does—is going to have at least some copyright implications.  Had the EFF made a more nuanced argument, that would be one thing, but to assert that the Copyright Office simply never would have entertained a copyright angle without pressure from the MPAA is just an outright lie.  What the EFF doesn’t like is that their position on the FCC proposal is wrong, and so they’ve tried to manufacture a scandal on the heels of Pallante’s unprecedented and bizarrely orchestrated removal from office.  Why?  Presumably, because they know that at least a segment of the public will find the Hollywood-intrigue narrative easier to follow and far more dramatic than the more complex, but less interesting, truth.

On the other hand …

If a hint of scandal is what the reader wants, consider the October 25th notice from the Campaign for Accountability, which asked FCC Counsel to investigate emails between the FCC Chairman Tom Wheeler and Google VP Vint Cerf.  What’s the problem? Unlike innocuous emails requesting meetings, the FCC’s rules require disclosure of ex parte communications that amount to substantive comments on policy.  In its letter to counsel, the CFA cites an April 8th email from Mr. Cerf to Chairman Wheeler expressing his substantive views with regard to the commission’s April 1 notice on protecting consumer privacy within the ambit of the “set-top-box” proposal. In case you’re not following the bouncing ball, Google likes to harvest user data and doesn’t have great track record on the privacy thing.

See what happened there is that a Google executive expressed a relevant, policy-focused comment via email pertaining to the FCC proposal, and the FCC was supposed to disclose the comment and didn’t.  At least that’s CFA’s view.  Whether or not there are more communications of this nature remains to be seen, but against the backdrop of Google’s now well-documented influence throughout the current administration, it’s hard to imagine that anyone is still believing the narrative that “Hollywood” is pulling the strings with regard to the FCC proposal.

Perhaps more significantly is that while the EFF pitches a non-scandal in an effort to erase the copyright implications of the FCC proposal, they seem remarkably unconcerned about those privacy implications, which one would think should to take precedence for an organization claiming to defend consumers in the digital market.  Why?  Assume for the moment that the producers are wrong about the proposal undermining the investment model that creates television shows. That would still leave the privacy concerns with regard to what kind of data Google would be allowed to harvest from the magic TV box it wants to put in your home.  The EFF’s overplayed hand on the copyright issues combined with their silence on the privacy issues related to the FCC proposal suggest that this organization largely cares about one thing:  whatever Google wants.

Backpage Execs Arrested Because Pimping Isn’t Speech

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On October 6, the CEO of Backpage.com Carl Ferrer, along with former executives Michael Lacy and James Larkin, were arrested in California on charges alleging involvement in prostitution, including conspiracy to commit pimping of a minor.  The classified ad site had been under investigation by the California DOJ for three years and on the radar of anti-human-trafficking advocates for at least a decade.  Citing the importance of these arrests, Polaris has recorded nearly 2,000 incidents of sex trafficking that involved Backpage and further states that the National Center for Missing and Exploited Children told a Senate subcommittee “that 71 percent of all suspected child sex trafficking reports that it receives have a link to Backpage.”

Despite numerous claims—including by prominent digital rights activists—that Backpage has exclusively operated as a neutral site hosting user-generated classified ads in both “adult” and non-“adult” categories, the arrest warrant highlights include the following:

  • that well over 90% of Backpages’s tens of millions of dollars in revenue came from the “Adult” ads, which have clear links to both consensual and forced prostitution.
  • that Backpage became known by those in the commercial sex trade to be the “online brothel.”
  • that Ferrer and his associates purposely grew the “Adult” ad trade both domestically and abroad.

Perhaps the most damming evidence is that Ferrer and his associates allegedly used Backpage data to create what the warrant calls “escort directories,” sites that are in no way user-generated, but which are designed solely to drive customers for commercial sex to Backpage ads. Additionally, 7 of the 8 witnesses interviewed about their use of Backpage ads were identified in the warrant as “victims of trafficking,” some forced into prostitution before the age of 14.

Section 230 of the Communications Decency Act

Section 230 of CDA, which was passed in 1996, is the legal statute which states that online service providers shall not be treated as “publishers.” Site operators acting in good faith, and which are driven in part or in whole by user-generated content, are shielded from litigation stemming from material posted by a third party that might otherwise be actionable. In a nutshell, what the DMCA “safe harbor” does for OSPs and copyright infringement, CDA 230 does for just about every other kind of content.

In regard to a 2015 civil litigation filed against Backpage by three women—all allegedly victims of trafficking—the Electronic Frontier Foundation argued that CDA 230 required the dismissal of their claim against the site. As stated by Sophia Cope on September 8, 2015, “Where a website clearly participated directly in developing the alleged illegal content, immunity from suit is properly lost. But in cases like this, where the provider has allegedly colluded by the apparent implications of website design and content policies, Section 230 requires that the complaint be dismissed.”

Although this was not the EFF’s only statement on the matter, it was the crux of that organization’s defense of 230 in regard to the Backpage litigation.  This view was upheld in Massachusetts District Court and in the First Circuit Court of Appeals but was rejected by the Washington State Supreme Court, which allowed the civil suit to proceed.

When the EFF argued that CDA 230 was grounds for dismissal of the plaintiffs’ civil suit against Backpage this a) was within the purview of that organization’s mission; and b) stopped well short of defending Backpage itself when there was a reasonable probability that the ongoing criminal investigation could reveal that the owners were implicated in illegal activity.

Taking the Free Speech Thing Too Far

Where the EFF crossed that line, it appears, was on July 6, 2015, when director of activism Rainey Reitman strayed far beyond the scope of judicial application of CDA 230 and engaged in speculation to defend Backpage on free speech grounds. This was in response to a decision by major payment processors—Visa, Master Card, & Amex—deciding in that month to cease processing transactions for Backpage.  Reitman called this “caving to government pressure,” accusing the processors and law enforcement of stifling free speech.  She wrote …

“We don’t need Visa and MasterCard to play nanny for online speech. Payment processors and banks shouldn’t be in the position of deciding what type of online content is criminal or enforcing morality for the rest of society. For one thing, their businesses haven’t been designed to analyze the legal and societal issues at play in various forms of online expression.”

She further states (and this is the paragraph that gets me):

“Backpage.com can be used to sell an old refrigerator, find a new apartment, post about new community workshops, find a job, and offer many other services and goods. It also hosts an “adult” section of the site, where some people advertise escort services or try to connect with people who have similar sexual interests. This “adult” section requires visitors to confirm they are at least 18 years of age and allows users to get resources for reporting cases of suspected sexual exploitation with one click.”

Not only does Reitman engage in unfounded speculation about Backpage’s innocence—which seems like an unnecessarily dumb move for the EFF to make—but she actually implied that the site was helping to curb exploitation.  This particular rhetoric will sound familiar to copyright interests who’ve been listening to the Holy Trinity of infringement defenses for years.  1) We don’t know what’s happening on our site. 2) We host material that isn’t infringing.  3) Anyway, we’re helping you.

As the arrest warrant states, the non-“Adult” section of Backpage—the part innocently selling refrigerators and such—is mostly supported by free ads while the “Adult” section is supported by paid ads.  The warrant further states that from January 2013 to March 2015, 99% of the site’s revenue (which is in the tens of millions) came from the “Adult” section but that this ratio dropped to 90% in May of 2015, apparently after the major payment processors pulled their accounts.

Any reasonable person could deduce that the paid part of Backpage’s business was worth money while the free part was not; any reasonable person could observe that Backpage hosted a very large volume of ads for the commercial sex trade; any reasonable person could know that at least a portion of the commercial sex trade involves trafficked victims, including minors; and any reasonable person could know that the company was under investigation.  Given these plainly observable data, it’s hard to fathom that the EFF would allow Ms. Reitman to publicly assume Backpage’s fundamental innocence in the service of its chronic argument that everything online is protected speech. But it isn’t that hard to fathom.

Going back to the topic of “cultural capture” for a moment, I’ll stop short of accusing the EFF of knowingly defending alleged human traffickers, but I won’t stop short of accusing them of being so neck deep in their own PR bullshit, that they ended up defending alleged human traffickers for no reason.

Where Reitman really went too far down this road was when she described the “Adult” section as a place where users “try to connect with people who have similar sexual interests.”  As if Backpage were more like Tinder than the “online brothel” that everyone in the commercial sex trade seems to know that it is.  Those tech-utopian words connect and interest are just so friendly and Googley and social, one would never think to associate them with 13-year-olds forced by violence and threats of violence into the commercial sex trade.

Even if the folks at EFF could have reasonably convinced themselves that the owners of Backpage were not knowingly profiting from the commercial sex trade—and by extension trafficking—I think they were foolish to stray beyond commenting on anything other than the relevance of CDA 230 in a civil lawsuit.  To declare, as Reitman did, that, “Backpage, however, is not engaged in human trafficking. It shouldn’t be treated as if it were,” was an assumption that not only stepped outside the EFF’s wheelhouse, but it was also an absurd logical leap that appears to have been entirely wrong.

The point, of course, is not really the EFF itself but the message they promote, which assumes that all site owners naturally maintain a veil of ignorance about the content of their sites and that all online activity is protected speech.  Neither is true.  At the very least, site owners can certainly know where their money is coming from, and protected speech largely pertains to state action, not private enterprise.  I get why it’s easy to play this PR game with copyright infringement—because it seems like a victimless crime and because there is an amount of infringement in the digital age that rights holders are going to have to accept as unstoppable.  But I should hope that there is no percentage of for-profit, violent, human exploitation that we are willing to tolerate because we’ve lost perspective on what free speech is and why it is protected.

FCC Set-Top Box Proposal Is About Copyright

Let’s clear one thing up right off the bat. Consumers are not entitled to high-quality TV programming.  It’s a business. If that business doesn’t make sense, the shows won’t be produced.

I know that seems obvious, but as with so many arguments made by technology companies seeking to hijack the distribution of works for themselves, this latest one  seems to proceed from a typical assumption that the “content” will just be there no matter what.  As I said in an earlier post on this same subject, if the producers and distributors are correct in their criticisms, the FCC set-top box proposal could provide consumers with new methods of acquiring a lot less content over time.

In a nutshell, the TV programming we enjoy is made available because the producers (copyright owners) enter into licensing agreements with distributors, referred to as Multichannel Video Programming Distribution (MVPDs). Generically we tend to call MVPDs “cable providers,” but MVPDs include satellite and various other ways to receive television programming that has been licensed from the copyright owners.  These licenses sit on top of a network of other licenses between the producers and their suppliers, advertisers, etc. For instance, the actors on a show not only receive fees for their performances but also have residuals and health & pension plans paid through SAG from those licensing fees that are paid by the MVPDs.

Not to say it’s complex, but Register of Copyrights Maria Pallante, in her 17-page August 3rd letter to the FCC, referred to “a constellation of arrangements between MVPDs and program producers.”  Pallante further states …

“… the copyrighted works that make up an MVPD’s multichannel video programming are produced and made available to the public only as a result of complex, private negotiations between content owners and MVPDs, and on the understanding that the MVPDs will make works available to the public in accordance with the terms of the resulting licenses. Typically, a violation of the license terms will constitute either copyright infringement or breach of contract.”

What the FCC says it wants to do is to unchain consumers from the dreaded box — that thing we rent from the cable companies to unscramble the channels, and which symbolizes whatever frustrations we might feel with the service, the pricing, or the lack of competition in the pay TV market.  I feel these frustrations myself, so on the surface, Chairman Wheeler’s proposal to give me options to watch TV more flexibly—through tablets, smart TVs, and other products sounds appealing.  But there’s a bug.

The proposal would mandate that the MVPDs make their programming and data available to third-party manufacturers of devices (surprise, Google is one of these), who would not pay license fees but would be free to distribute, brand, and monetize with advertising as they see fit.  The producers and the MVPDs have argued that this circumvents the aforementioned network of complex and costly licensing; and some producing interests have also raised the concern that because these third-parties operate on web platforms, a more seamless integration between legal and illegal viewing may exacerbate the adverse effects of piracy on the market.

The Electronic Frontier Foundation asserts that none of the criticisms of the FCC proposal made by producers and MVPDs implicate copyright law at all.  Mitch Stoltz of the EFF this week argued that the proposal is exclusively about allowing new technology products to come to market and to provide consumers with new choices.  Interestingly, despite his insistence that the proposal has nothing to do with copyright, Stoltz—and Cory Doctorow in a companion EFF post—refers to one of the most important copyright cases to support this position.

Sony v Universal (aka the Betamax case) is the reason consumers may use recording devices for “time-shifting” TV programs for their personal use; and these proponents of the FCC proposal appear to be arguing that Sony provides the only precedent needed to reject any further consideration of copyright in this matter.  Stoltz writes …

“Copyright gives rightsholders power to control copying, but not technology design. In fact, that sort of control is the antithesis of copyright’s purpose. Over thirty years ago, in Sony v. Universal, the Supreme Court refused to allow movie studios to “extend [their] monopoly” into “control over an article of commerce”—the videocassette recorder—“that is not the subject of copyright protection.” Today, you can search all 280 pages of the Copyright Act, and you won’t find anything that says a copyright holder has the power to control search functionality, or channel placement, or to decide who can build a DVR or video app.”

But here’s what Register Pallante says about Sony in her letter to the FCC:

“Sony itself focused on the distribution of an article of commerce where the seller had no ongoing relationship with the purchaser after the sale, and no connection to the content being exploited.  Nor did the Court address fair use where the device distributor was itself engaged in copying activities, as opposed to private home users. Both of these factors could conceivably be present with respect to devices and services under the Proposed Rule.  Nor have courts gone so far as to obligate rights holders to provide content in a manner that would facilitate time-shifting or other non-infringing uses.” 

So, maybe the FCC proposal has a little to do with copyright.  And that word obligate is an important one, referring back to my opening note that there is no right to TV programming.  Its production has to make sense as a business, and that only works because of copyright.

A rights holder of any work has the discretion to make decisions about the manner in which that work is distributed.  This is in fact fundamental to copyright’s purpose.  If you write an autobiographical novel about a serious subject, for instance, not even your publisher may blithely repackage it with a steamy romance cover (unless you sign those rights away) because they think it will sell better.  But that’s basically what the third-party manufacturers want to do.  They want the federal government to compel MVPDs to deliver programming and data to them, for which they will not pay a license fee but will be allowed to distribute, package, and advertise against the works in any way they see fit.

The implications of that business model go well beyond the scope of mere gadget-making, clearly falling into the purview of copyright law.  Kevin Madigan on Mister Copyright summarizes the distinction between the device and the model thus:

“The difference with the current navigation device manufacturers is that they will receive copyrighted TV programs to which they’ll have unbridled liberty to repackage and control before sending them to the in-home navigation device. The third-party device manufacturers will not only be able to tamper with the channel placement designed to protect viewer experience and brand value, they will also be able to insert their own advertising into the delivery of the content, reducing pay-tv ad revenue and the value of the license agreements that copyright owners negotiate with pay-TV providers.”

That’s not what VCR’s (and now DVRs) do, and I’d be surprised if any court had much patience for a party relying heavily on Sony to support the FCC proposals. Additionally, as reported, the EFF recently took the bold step of suing the federal government on the grounds that Section 1201 of the DMCA is unconstitutional. Perhaps their assertion that the FCC proposal has “nothing to do with copyright” presumes that they have already won this argument because Register Pallante recognizes a “tension” between the FCC proposal and the 1201 anti-circumvention measures in the DMCA ….

“The Proposed Rule would inhibit the ability of MVPDs and content programmers to develop, improve, and customize technological solutions to protect their content in the digital marketplace.  It would do so in part by requiring MVPDs to give third-party actors access to copyrighted video content and associated data according to one or more security standards prescribed by an outside organization rather than through their preferred (and potentially more secure) protocols negotiated between copyright owners and the MVPDs. In addition, the Proposed Rule suggests that the FCC might allow third parties to self-certify their compliance with whatever security standards are adopted.  The Proposed Rule would thus undermine content creators’ ability to choose how best to protect their content in the marketplace, as Congress intended in enacting DMCA.”

Between Stoltz’s latest editorial and the recent suit over 1201, it seems the EFF is increasingly uninterested in working with copyright law and is focused on efforts either to abolish it or simply pretend it doesn’t exist.  This post is not meant to suggest that I can endorse every business practice of every MVPD, but the EFF’s assertion that these parties are “cloaking” anti-competitive practices in false claims about copyright is misleading.  Moreover, it should be abundantly clear by now that if the name Google is on the list of providers seeking a new regime from a federal agency, then customer choice and free-market competition are likely not at the forefront of that effort.