Tag: electronic frontier foundation

On Copyright, the EFF Will Say Anything to Scare You

Are you gifted in the art of bullshit, but the popular conspiracy theories just aren’t for you? Do you enjoy riling people up about threats that are demonstrably false, but you just can’t get comfortable with QAnon or election deniers? Well, maybe you should consider an exciting career with the Electronic Frontier Foundation writing about copyright law. It seems they’re always looking for eager young folks with good writing skills and no scruples. For instance, you can learn how to write blog posts like Stop the Copyright Creep, posted this week by Katherine Trendacosta, and which begins as follows:

In 2020, two copyright-related proposals became law despite the uproar against them. The first was the unconstitutional CASE Act. The second was a felony streaming proposal that had never been seen or debated in public. In fact, its inclusion was in the news before its text was ever made public. The only way to find it was when the 6,000-page year-end omnibus was published. We want to make sure that doesn’t happen again.

Here’s how that opening paragraph would read if it stated the facts and concluded with a more honest declaration of EFF’s position:

In 2020, two copyright–related proposals bills became law. despite the uproar against them. The first was the unconstitutional CASE Act. The second was a the Protect Lawful Streaming Act (PLSA). felony streaming proposal that had never been seen or debated in public. In fact, its inclusion was in the news before its text was ever made public. The only way to find it was when the 6,000-page year-end omnibus was published. We want to make sure copyright enforcement does not happen anymore. that doesn’t happen again.

That the CASE Act is unconstitutional is a highly speculative opinion which the EFF is free to argue in court one day, and it probably will. That there was much “uproar” against these bills outside the tiny community of anti-copyright wonks is hyperbole (In 2020? Really?). The implication that the felony streaming bill was quietly snuck into law behind closed doors is just a lie. And, of course, the hyperventilating tone meant to scare readers is standard EFF style, which often makes the organization indistinguishable from any other conspiracy-monger.

The reason I let that statement stand about news being ahead of the text of the felony streaming bill is because it might be half true. The text of the Protecting Lawful Streaming Act (PLSA) was introduced on December 10, 2020, so it definitely appeared late in the session—but not because its provisions came out of the blue, were secretive, or were written without debate. On the contrary, one reason the bill was introduced so late is that various stakeholders were still debating the language into December. And if the EFF did not directly engage at the time, there is no way it was unaware of these negotiations because the issue itself was hardly new.

For more than a decade before introduction of the PLSA, various parties had been addressing the fact that large-scale piracy remained a misdemeanor under the statute rather than a felony as long as the pirate enterprise streamed material rather than made it available for download. Here’s Senator Klobuchar referring to the issue in 2011 by way of analogy during a hearing about cyber security:

I have been working in the area of some of the streaming issues to try to come up with a way with a number of the other Senators to acknowledge that if someone is standing on a street corner and sells DVDs that are over $2,500 that we already know is a felony, and right now if you do it, if you have a business and you are illegally selling anything—movies, books, music—and you do it maybe $1 million and you are profiting—you have to profit from it under our bill—it is still a misdemeanor. And so we are trying to fix that without, you know, hurting anyone’s rights or teenagers that are simply trying to share some information

Or you can link to just one House IP Subcommittee hearing in which felony streaming was being discussed in 2014. “We should consider today whether there is a need to clarify that felony infringement includes infringement by streaming,” stated Chairman Coble. Or you can review a summary of the legislative history at Copyright Alliance. Or, oddly enough, my satirical post A Guide to Critiquing Copyright in the Digital Age was a response in 2015 to an article published in The Hill complaining about the idea of felony infringement by means of streaming.

The desire to close what many copyright owners, the DOJ, IPEC, the FTC, et al. considered a legal loophole had been present in both official and unofficial records for quite some time before introduction of the “secret” bill in 2020. And unless you’re planning to engage in mass piracy by building an illegal streaming platform, you probably have little reason to know what PLSA is or why it exists.

The implication by EFF that PLSA or CASE or the other copyright provisions mentioned in the blog are somehow a threat to free speech is as unfounded as the allegation that these proposals were ever clandestine. Yet, Trendacosta writes, “Because so many copyright-related bills involve proposals that would harm lawful free expression, they are not the kind of controversy-free proposals that belong in such legislation.” Here, she means that PLSA and CASE should never have been attached to a must-pass omnibus spending bill at the end of the year.

Notably, copyright proponents who worked on the legislation were not exactly thrilled with the rider outcome either; but you know why it happened that way, especially with the CASE Act? Because Senator Wyden, had a solitary hold on that bill, and in the roughly nineteen months between introduction of CASE and December 2020, he neither engaged in good-faith negotiation nor publicly articulated a realistic objection to its provisions. In fact, after telling Oregon constituents in December 2019 that he saw a path to compromise, he then asked for several poisoned pill amendments, and failing that, simply ghosted with his hold intact.

So, if we’re going to talk about shenanigans on the Hill and things that should never happen, I’m of the opinion that one senator should not be allowed to single-handedly kill bi-partisan supported legislation without very clearly and very publicly articulating his passionate and well-reasoned opposition. And I believe Senator Wyden agrees because he co-sponsored legislation in 2011 based on this same general principle.

Meanwhile, aside from the fact that copyright’s alleged conflict with speech is a construct of anti-copyright ideologues—one that finds little purchase in history or law—I would love to know what EFF imagines could be more “controversy-free” than copyright legislation? It happens to be one of the very few subjects where we see Democrats and Republicans collaborating and voting in large bi-partisan numbers.

That is not only significant in the current climate, but I am told by at least one colleague who has worked on the Hill in less turbulent times that nothing controversial survives the frenzied process of attaching riders to must-pass legislation. “The leaders of both parties from both Houses have to agree, as well as the chair and ranking members of both the House and Senate Appropriations Committees,” he says. So, that seems like a resounding override of Senator Wyden’s hold and a confirmation that the hold was the only reason the copyright bills were passed in this manner.

What I think EFF really means to say is that because they fervently believe that copyright enforcement is always a threat to speech, they don’t like it when nobody on the Hill agrees with that premise. And these days, it is just so damn easy to allege that when Congress or a court or an investigative journalist or a federal agency doesn’t agree with your trumped-up narrative (it writes itself), then some dark arts must clearly be at work. So, if you’re into sowing conspiracies but can’t go full InfoWars, writing about copyright for the EFF just might be your next career move. Good luck!

Photo by: mrwed54

EFF Hits New Low in Response to Child Sexual Abuse Online

According to a September 2019 story in the New York Times, the volume of online content described as “child sexual abuse material” grew from 3,000 reports in 1998 to 45 million in 2019. What used to be called “child pornography,” which was bad enough, needed a broader term to encompass material that increasingly contains photographic and video content depicting torture and rape of children under the age of ten. And those numbers are the reported incidents. 

“An investigation by The New York Times found an insatiable criminal underworld that had exploited the flawed and insufficient efforts to contain it. As with hate speech and terrorist propaganda, many tech companies failed to adequately police sexual abuse imagery on their platforms, or failed to cooperate sufficiently with the authorities when they found it.”

Yet the scope and nature of this story does nothing to temper the propagandist tone adopted by the good folks at the Electronic Frontier Foundation. Once again, they seek to warn the public that congressional response to these staggering revelations is yet another “dangerous threat to free speech, innovation, and security.” Their latest call to action in response to a new bill introduced last week is truly something to behold—even for the EFF.

The post is illustrated with a black eagle set against a gray, film-scratched background meant to conjure the mood of a Nazi propaganda film. Cracking a microphone (speech) with one talon and a key (private security) with the other, the bird’s menacing wings bracket a masonic, all-seeing eye. And below this subtle iconography, the EFF begins its dark prophecy, “Senators Lindsey Graham and Richard Blumenthal are quietly circulating a serious threat to your free speech and security online.” Notice how it always begins with a conspiracy with these guys? In truth the proposal to which the EFF refers is no more being “quietly circulated” than any other bit of legislation on the Hill. In fact you can read the text of the new bill right here. 

When the EFF pulls this crap in response to a copyright enforcement proposal, it’s merely obnoxious bullshit.  But now we’re talking about confronting a growing online market for videos and photos of raped and tortured children.  So maybe, just maybe, we could have the conversation without the EFF trying to silence it at the first syllable? Nope. “We must stop this dangerous proposal before it sees the light of day,” says their call to action.  

Before it sees the light of day? Not consider its pros and cons? Not a sober assessment of the provisions and any potential pitfalls? Nope. Kill the bill and its purpose. To hell with the child victims. End of discussion. So say the self-appointed guardians of the Electronic Frontier. But stay tuned for future blog posts in which the EFF says something cringy like, Child sexual abuse is really, really bad. We don’t like it one little bit. But this bill is the wrong solution. Or some such disingenuous blather. Because that’s what they say about every proposal to address criminal conduct online. 

What is the EARN IT Act 2020?

In response to the stunning growth in online child sexual abuse material (a 1.5 million percent increase since 1998), the Senate Judiciary Committee decided that perhaps Big Tech was not doing quite enough to help address the problem. And just maybe, thought the bipartisan group of senators, this is because Big Tech lacks the incentive to help, due to the fact that they have enjoyed blanket immunity for liability under the provisions of Section 230 of the Communications Decency Act of 1996. (Note the word help, not solve. Nobody expects Big Tech to outright solve the crime of child sexual abuse.)  

So a bill sponsored by Senators Graham and Blumenthal called the EARN IT Act was introduced on March 5th of this year.  The acronym, derived from Eliminating Abusive and Rampant Neglect of Interactive Technologies, intentionally declares that if internet service providers want to continue to avail themselves of the liability shield under 230, they will have to earn that privilege by complying with the conditions set forth in this new legislation. If it becomes law.

The bill calls for the establishment of a commission to develop best practices for identifying and eliminating child sexual abuse material online. Service providers, especially the major platforms that host vast amounts of user-uploaded material, will have to meet the new guidelines established by the commission in order to remain shielded by Section 230. If that sounds like a fairly sober approach to address a very serious type of criminal activity, expect the major platforms to strenuously oppose this bill. And the EFF to be right by their side.

Exploiting Current Politics to Sustain a Harmful Status Quo

Seeking to obfuscate the real narrative that the EARN IT Act is solidly bi-partisan, including Democratic co-signers Sheldon Whitehouse and Diane Feinstein, the EFF prominently invokes  Attorney General William Barr for the express purpose of scaring readers. They write, “The Graham-Blumenthal bill would finally give Barr the power to demand that tech companies obey him [by weakening encryption] or face overwhelming liability from lawsuits based on their users’ activities. Such a demand would put encryption providers like WhatsApp and Signal in an awful conundrum….”

As mentioned in a related post, I personally think AG Barr is bananas. I don’t trust him as far as I can throw him, which would not be very far. But one way or another, he will not be at DOJ forever, and will quite possibly be gone before this bill becomes law, the commission it mandates is established, or the best practices are defined. (And that’s if the Internet Association does not succeed in ripping the guts out of the bill behind the scenes.)  

More to the point, this legislation is designed to address a form of criminal conspiracy that predates AG Barr’s fifteen minutes in the spotlight as well as the incoherent administration he serves. The tragic reality of exploited children will persist long after the Trump circus has packed up its tents and gone. Meanwhile, for the EFF to imply that the EARN IT Act is merely an extension of Barr’s authoritarian impulses is so grotesquely irresponsible and cold-hearted that one can reasonably ask what makes them think they stand on any higher moral ground.

The victims of child sexual predators must remain in the foreground of any discussion about this bill. They should not be treated as an abstraction to be sublimated by the EFF’s latest claim that online speech is threatened—again. The fact that they are willing to use these tactics to try to kill the debate itself on this particular issue is truly a new low for them.  After all, if we can’t even have a conversation about how the internet helps people destroy children for profit, we’re hardly a society with any principles worth defending. I don’t actually think that’s who we are. But apparently it’s who the EFF thinks we ought to be.

Streamlined 1201 Rule-Making Procedure & EFF’s Constitutional Challenge

In July of 2016, the Electronic Frontier Foundation filed a lawsuit alleging that Section 1201 of the Digital Millennium Copyright Act (DMCA) is unconstitutional.  More recently, in September, Cory Doctorow announced the EFF’s “Project Apollo” vowing to “end DRM within a decade.”  I personally tend to think of such high-drama tilting at windmills as mostly a fund-raising strategy for EFF, and one detail from the Copyright Office’s Final Report on the Seventh Triennial Proceeding demonstrates why.

For review, Section 1201 of the DMCA contains the statutes prohibiting the circumvention of technical protection measures (TPM) used to protect copyrighted works stored on digital media.  Also known as Digital Rights Management (DRM), technical measures generally means encryption software used to prevent access to digital files like movies stored on DVDs or the software running systems in our cars.  

By law, the USCO must conduct a triennial review of Section 1201 and consider petitions for exemptions to its prohibitions.  Petitioners are grouped into various “Classes” based on proposed rationales for exemptions.  For instance, exempted classes have included researchers, who want to circumvent TPM in order to test safety or security systems; teachers, who want to “rip” film clips from DVDs for use in classroom instruction; or creators like documentary filmmakers who circumvent TPM in order to copy segments of motion picture clips for their films. 

Does the New Streamlined Process Militate Against the Constitutional Challenge?

A key allegation in EFF’s constitutional challenge to 1201 is that because the triennial review is slow and cumbersome, the process amounts to a prior restraint on otherwise protected speech.  In particular, the need for an exempted class to re-petition the USCO every three years places a substantial burden on parties wishing to engage in conduct protected by the First Amendment—and which has previously been exempted by the Copyright Office. 

But, as alluded to in my July post, one flaw with this challenge on First Amendment grounds is that the USCO actually agreed with the complaint about the re-application process and so implemented a new rule mandating that previously exempted classes need not reapply unless new objections are raised that require fresh review, for instance based on a change in law or market practices.

This most recent rulemaking procedure was the first implementation of the new streamlined process, and it appears to have had the desired effect.  Nine Classes of exemptions were renewed, including seven sub-categories in the Audio-Visual Class.  So, for instance, the teachers exempted three years ago are still exempted without the need to reapply.  In another example, the Motor & Equipment Manufacturers Association has now endorsed the exemption it objected to during the last rulemaking process, now referring to the USCO decision “as striking an appropriate balance between encouraging marketplace competition and innovation while mitigating the impact on safety, regulatory, and environmental compliance.”  

Another notable detail from this review, relative to EFF’s lawsuit, is that the Acting Register of Copyrights recommended expanding an exemption originally made for documentary filmmakers to now include a “subset of fictional filmmakers” who wish to use small portions of existing motion pictures in ways that would likely be considered fair uses.  In its lawsuit, the EFF hihglighted the USCO’s prior failure to include any “narrative” filmmakers in the last rule-making process as evidence of 1201’s “adverse impact on speech.”

One broad expansion of 1201 exemptions sought by EFF and others in this recent rulemaking procedure was a “Single Overarching Exemption for Purposes of Comment and Criticism.”  This proposal was rejected by the Acting Register, who found the petitioners’ approach too broad relative to the case-by-case analysis applied when considering fair use.  Characteristic of most parties determined to vitiate copyright, this proposal looks like yet another attempt to imply that copyright’s exceptions should be so overreaching as to render its protections meaningless.  

The USCO/LOC filed its Final Rule in this triennial procedure with the US District Court for the District of Columbia, and the EFF filed a response offering to provide a supplemental brief to support its allegation that 1201 is a “speech-licensing regime.” Otherwise, there has been no movement in the past two years on this litigation. 

On that score, even if the EFF’s 1201 case does proceed, I maintain that the decade or more of its prospective journey represents another anti-copyright boondoggle—a PR campaign akin to Lenz v. UMG—designed to keep donors and supporters active while achieving nothing.  As I mentioned in 2016, it seems absurd for EFF to dedicate its resources to this improbable constitutional challenge to 1201 rather than collaborate with the USCO, which continues to demonstrate a nuanced approach to balancing copyright’s protections with important exceptions to those protections.