Tag: electronic frontier foundation

Should Bot Disclosure Be Required by Law?

Recently, California legislators introduced the B.O.T. Act of 2018, which, as the Electronic Frontier Foundation summarizes, “would make it unlawful for any person to use a social bot to communicate or interact with natural persons online without disclosing that the bot is not a natural person.” The EFF describes the proposed bill as an understandable but over-broad response to Russia’s use of bots to influence the 2016 election as well as the use of spambots to commit online fraud. While it is tempting to accuse the EFF of defending bot rights, they haven’t quite taken that position, though they do come close.

As would be expected, the EFF alleges that the California bill can “chill the use of bots for protected speech activities,” and although the post written by Jamie Williams alludes to some interesting areas to explore vis-a-vis bots and speech, one important flaw in her summary of the bill is that it leaves off an important condition that says, “with the intention of misleading.” There may be circumstances in which intentionally misleading consumers, constituents, fans, voters, etc. can be considered protected speech, but it seems reasonable to assume that most actors who intentionally mislead are doing something harmful, and probably illegal.

It is characteristic of the EFF to trivialize a legitimate problem by imagining hypothetical negative consequences of the legislation proposed to address that problem. Even the couple of Twitter-feed examples Williams cites* as speech that may be chilled do not appear to be bot uses that would necessarily run afoul of the California law.

The first of theses is @soft_focuses, which is essentially a bot-generated version of fridge-magnet poetry. The second, rather interesting, example is @censusAmericans, which interprets anodyne census data and turns lines of information into “real” people. So, a typical tweet says, “I live with my father. He works. I speak German at home. I have never been married.”

If indeed both of these examples are protected speech, neither appears to “intentionally mislead” anyone. To the contrary, both the bot-generated poetry and the bot-generated census characters seem to be a) obviously the “speech” of bots; and/or b) harmless to the rare viewer who might somehow mistake either as the expression of a natural person. Correspondingly, even if either feed were required to more explicitly “label” its use of bots, the speech in question would not be in anyway diminished.

Do Bots Have Free Speech Rights?

I certainly hope we never come to the conclusion that they do. But a distinction I would make between the two examples presented by EFF is that the poetry Twitter account, although owned by a human (or humans), does not appear to communicate much protectable speech at the direction of that human. It simply produces random combinations of words that sound kinda like poetry.

Assuming that is correct, each tweet is a an example of purely bot-generated content, which should not be protected because machines do not have natural rights. One could argue that the human’s decision to present the whole twitter feed constitutes an artistic statement in itself, though not a very original one and not one that would likely differ in character from another feed doing exactly the same thing. Hence, the amount of protected speech would seem to be very thin and, therefore, not likely to be infringed by the California proposal. (This dovetails with the discussion of AI’s owning copyrights.)

By contrast, although each tweet in the census example may be partly the result of data-interpretation by a bot, the output is not random words. In fact, human authors have clearly set certain rules like the imposition of the pronoun “I” to generate first person statements as well as the basic subject-verb-object structure of English sentences. The cumulative result is a mosaic of fictional characters that represents real Americans in a Twitter-only narrative, not unlike the way in which characters in a movie or play represent real people. Thus, the owner of @censusAmericans is the natural person exercising a free speech right by presenting this collage to the public, which constitutes creative and politically-substantive speech.

Bot Speech is the Least of Our Worries

Beyond sci-fi wish-fulfillment, I’m not sure why it is necessary or beneficial, in many cases, to want bots to behave more like humans in the first place. Granted, I’m not bringing a smart device into my home like an Alexa or a Duplex because I’ve read my Huxley, Orwell, and Bradbury; but if I did own such a device, I’d want a giant wall of separation between me and the machine, lest I find myself locked out of the house one day and the thing telling me why it can’t “afford to jeopardize the mission.” (It’s bad enough when the toast pops up too late.)

Meanwhile, as the EFF opposes what amounts to a consumer-protection bill on highly-speculative free speech grounds, I have to say that, at present, I’m more concerned with humans behaving like bots than the other way around. Let’s face it, every time one of us clicks “Like” or shares a post or article based solely on the headline, we’re pretty much doing bot-work. The right keywords appear in front of our little sensors, and CLICK!—we pass it on to our circles of bots, who pass it on to their circles of bots.

And that doesn’t even account for the volume of ingrained misconception across the political spectrum on a wide range of issues boiled down to a few buzzwords. The folks at EFF are, in fact, expert at exploiting this phenomenon, at triggering Pavlovian responses to keyword conclusions on otherwise complex topics. Remember how the IP provisions in the TPP were going to chill speech on the internet? Is that claim any less absurd than the current administration’s rationale for pulling out of the most important trade deal in recent history? Stare at that Venn diagram for a while and try not to lose your mind.

My point is that we are already treading water in sea of externally and internally inflicted deceptions and obfuscations written by human beings. So, to the extent California’s bot “warning label” might diminish the amplification of all that noise, I think it’s a can’t hurt/might help proposition. At the same time, if, under very specific circumstances, this law could be invoked to chill someone’s speech, that’s for the court to address on a case-by-case basis.

The relatively narrow circumstances in which this law might be misapplied and also implicate speech does not make it “constitutionally flawed,” as the EFF claims. One can misapply a wide variety of laws we have right now to chill someone’s speech, which is why we appeal to courts to address such conflicts. Meanwhile, it seems reasonable to conclude that the intent to deceive, whether by bot or any other means, is rarely benign.

* The post cites three examples, but the third links to a dead URL.

Image by graphicwithart

How the “Dancing Baby” Case Went Crazy

Last week, both the Electronic Frontier Foundation and Universal Music Group filed petitions with the United States Supreme Court in regard to what is commonly known as the “Dancing Baby” case.  The “baby” in question is about 11 years old now, and for those who might not know how a mundane home video became the focus of a multi-year, federal litigation now begging the attention of the Supreme Court, let’s review …

In February of 2007, Holden Lenz of Pennsylvania was just 18-months-old when his mother Stephanie video taped him dancing to the Prince song “Let’s Go Crazy” and then posted the video on YouTube—a platform that was just six months older than Holden. Because Prince was especially guarded about all uses of his music—and was justifiably critical of YouTube in particular—the Lenz video was one of several targets added to a list of DMCA takedown notices to be filed by Universal Music Group on the artist’s behalf. The “Dancing Baby” video was removed on June 5, 2007, and according to an ABC News story published in October of that year, Lenz stated that she was initially “frightened” about having her video removed from YouTube, concerned that UMG might file suit against her, and then the fear of said litigation made her “angry.”

So between the Summer and Fall of 2007, the public version of this story had already begun to stray from the relevant facts in the case. For starters, Ms. Lenz, on her own, had immediately sent an incorrectly filled-out DMCA counter notice on June 7 seeking to restore her video. But if she were truly frighted about a lawsuit by UMG, that would have been the moment for her to proceed with caution because a DMCA counter notice can, in some cases, trigger legal action by a rightsholder. Subsequently, at the advice of an attorney friend, Lenz contacted the Electronic Frontier Foundation to better understand her options, believing at the time that UMG might have infringed her First Amendment right of free speech.

PR by Litigation

Keeping in mind that nearly ten years ago, when this adventure began, it was easier for organizations like EFF to promote the message that DMCA takedown was widely abused and, therefore, chronically chilling speech. They still promote this message, of course, but in recent years, both research data and anecdotal evidence from numerous rightsholders indicate that takedown abuse is the exception while rampant infringement without recourse under DMCA is the rule.

On June 27, 2007, the EFF sent a correctly filed counter notice on Lenz’s behalf. YouTube restored the “Dancing Baby” video by mid July, and the EFF then filed its initial complaint against UMG on July 24, 2007. From there, both the public story and the court records suggest that Stephanie Lenz became, as Stephen Carlisle of Nova Southeastern University puts it, the “nominal plaintiff” who provided an ideal opportunity for the EFF to embark on an odyssey of PR by litigation—a lawsuit looking for an injury. After all, the video itself, as anyone can see, could not be more harmless; it has an actual baby in it!

In part, what we know about the motives and strategies driving this case is due to Ms. Lenz’s own carelessness as plaintiff when she revealed enough information, via emails and social media, that in 2010, she lost her attorney/client privilege to specific portions of her communications with the EFF. The casual communications cited in the record suggest that the EFF was determined to “get” UMG for something—Lenz uses the expression “salivating over getting their teeth into UMG”—even if they had to keep changing strategies to figure out what exactly UMG had done wrong.

Shifting Rationales

Technically, the Lenz case is pretty boring. A mom had a home movie taken down from YouTube and then that home movie was restored to the platform via the DMCA counter notice procedure, which is exactly the process Congress envisioned when it wrote the statutes. Had there been no expectation of occasional error or flaw on the part of rightsholders, there would not be a statutory counter notice “put back” procedure in the first place. The fact that the Lenz video was offline for a period of six weeks was due neither to a particular flaw in the DMCA nor to any action taken by UMG.

Moreover, the extent to which Ms. Lenz felt “injured” by the removal is unclear since in one of her emails, she stated, “I don’t care if YouTube doesn’t want to host it. Not like I’m paying them.”  This was reported by CNET in a February 2011 article in which EFF attorney Corynne McSherry is cited promoting the message that copyright owners are frequently “careless in sending notices” and, therefore, “interfering with free speech.”

But although Lenz stated that her initial belief was that UMG had infringed her First Amendment rights—and this story has often been referred to in the press and on social media as a free speech issue—the fact is that even the EFF would eventually concede that the temporary removal of the video did not implicate the First Amendment. This is because neither UMG nor YouTube is a state actor, and because the content of the video did not contain political speech, criticism, parody, or newsworthy content of any kind.

According to email communications made by Lenz, it appears the EFF considered a few avenues to pursue litigation, including a California State breach of contract complaint, which suggests that Lenz’s story did not immediately present itself as a constitutional or DMCA case in EFF’s mind. In fact, the initial complaint filed in July of 2007 was for “tortious interference,” which was dismissed.

Additionally, in a June 14, 2007 email to her mother (10 days before the first complaint was filed), Lenz states that EFF’s pro bono “fees” would be covered by “the settlement.” This may just be a layman misspeaking because an expectation of a settlement would be a very odd strategy for a rights advocacy organization that is supposedly taking a case on principle. After all, a settlement by the litigants generally means the court does not rule on whatever principle is being argued.

The EFF amended its complaint to argue that UMG had violated §512(f) of the DMCA, which states that a plaintiff may seek damages if a takedown notice filer “knowingly and materially misrepresents that the material or activity is infringing.” And that is how Lenz v UMG became a fair use case. A plaintiff does not have to have suffered financial loss in order to prove that an injury has been caused, but absent an abridgment of Lenz’s First Amendment rights, the EFF’s argument now rests solely on the sheer wrongness that the video was removed at all—that it was, in their words, “censored for six weeks.”

As indicated above, given that Ms. Lenz chose, in error, to investigate the First Amendment implications, and that the EFF chose to take the time to transform this minor event into a major case—and in light of the fact that the OSP (YouTube) is responsible for restoring files at its discretion—the six-week interval cannot be considered the responsibility of the defendant. In general, whatever factors result in a file being restored, either within hours, days, or weeks, are not in the control of the original takedown notice-sender; and as the UMG petition states, the Lenz video was ultimately restored via the counter notice procedure. In other words, Lenz’s and EFF’s time spent exploring both tort and constitutional violations—both of which fail—is neither UMG’s fault nor its responsibility to pay for.

Lenz Becomes a Fair Use Case

So, the only way for the EFF to argue that UMG had “knowingly misrepresented” that the “Dancing Baby” video was infringing was to prove via testimony that the company had not “instructed its employee to consider fair use” before filing the takedown notice. And that’s where we are today. In September 2015, the 9th Circuit Court of Appeals agreed that a rights holder must “consider fair use” before sending a takedown notice but stopped well short of agreeing with EFF’s assertion that such a consideration must be made based on an “objective” standard.

The EFF has tried to argue—indeed it can only argue—that a failure to “objectively consider fair use” is tantamount to “knowingly and materially misrepresenting that the material or activity is infringing.” As an amusing side note, in an early email to a friend (June 12, 2007), Lenz stated, “Mine’s not a fair use case at all.” Granted, she cannot be expected to know the law per se, but in context to the other comments and court records, this early email does seem to support the view that this entire case has been a fishing expedition—a lawsuit looking for an injury.

As argued in the UMG petition, a “subjective” standard with regard to all considerations is the reasonable and correct interpretation of the DMCA statute, which requires a takedown notice-sender to have a “good faith belief” that a use is infringing. The plain meaning of “good faith belief” is clearly subjective; and fair use doctrine is the most subjective aspect of copyright law—a multi-faceted assessment for which the precedent caselaw provides myriad, conflicting and narrow outcomes.

Hypocrisy Undermines the Intent of DMCA 

So, even if the most experienced copyright attorney in the country were instructed to make an “objective” fair use assessment, she might ask how exactly this would be achieved. While it’s true that attorneys can make very solid fair use assessments—especially where precedent provides guidance—an “objective” standard applied to DMCA takedown notices would only further disenfranchise the independent rights holder who is no more an expert than Ms. Lenz was. This implies the need for counsel which contradicts the extra-judicial purpose of DMCA.

The truly galling hypocrisy here is that the indie rights holder would be expected to know with certainty when a use is fair while users remain free to infringe with impunity, and large OSPs are free to monetize those infringements on the basis that they “cannot know” what’s infringing or what isn’t. For the small rights holder DMCA is already toothless, but EFF would like to make it voiceless as well.

In Lenz, absent a ruling by the Supreme Court that fair use can be considered “objectively,” the foundation that UMG was ever in violation under §512(f)—that it “knowingly and materially misrepresented” that the “Dancing Baby” video was infringing—should fail. Consequently, the argument that any non-pecuniary injury was caused should also fail. Perhaps, the EFF will succeed in getting the $1,275 in pro bono “fees” Lenz theoretically owes the EFF for filing the counter notice in 2007, which would make this case landmark indeed—getting the Supreme Court to adjudicate a small claim.

Finally, it’s worth noting that in the same October 2007 ABC News story cited above, Gigi Sohn, then head of Public Knowledge, opined, “I think the large copyright holders believe that if they do not police every single use of their copyrighted work — no matter how benign — that somehow that will open the floodgates to massive piracy.”

Whether this observation was acutely naive or just cutely dismissive, the fact remains that over the next several years after Sohn said this, YouTube would go on to earn fortunes by hosting diluvian proportions of infringement by its users. In light of the immeasurable losses to working authors, who have almost no power under the DMCA to protect their rights, the EFF should frankly be ashamed of themselves for spending nearly a decade in federal courts fighting to protect absolutely nothing.

EFF says Section 1201 of the DMCA is Unconstitutional?

Last week, the Electronic Frontier Foundation filed suit against the federal government, naming the DOJ and the Copyright Office as defendants.  The EFF filed on behalf of plaintiffs Dr. Mitchell Green, a computer scientist and researcher at Johns Hopkins; Andrew Huang, an engineer and inventor; and Huang’s company Alphamax LLC.  The crux of the suit argues that Section 1201 of the DMCA, which prohibits circumventing technical protection measures (TPM), or trafficking in devices used for circumventing these measures that are designed to protect copyrighted works violates the First Amendment and is, therefore, unconstitutional.

The most common type of TPM consumers tend to be aware of are applications like the software on a DVD that prevents or mitigates illegal copying of the contents; but TPM are increasingly used in a broad range of devices and products because, of course, computers and software increasingly run everything we touch. For this reason, 1201 applies to a wide range of classes of copyrightable works, including software itself, and so the debate over the law invariably conflates movies and medical devices or cellphones and tractors, which means the public dialogue can be rather confusing for most of us.

We read a brief assertion in an article by Cory Doctorow—or even an opposing view—and the nitty-gritty may be ten pages of complex analysis by the Copyright Office that few people will read let alone fully understand.  Meanwhile, consumers should keep in mind that absent the provisions in 1201, products like DVDs, iPods, and Kindles would simply not exist because rights holders would not have licensed their works for distribution on these platforms. And it is characteristic of the EFF and its colleagues to focus on the restrictive aspects of a legal framework while ignoring the productive ones.

In simple terms, it is illegal to circumvent TPM, whether the copyrighted material being protected is entertainment media like an eBook or it’s the software that runs a medical device or the systems in your car. The EFF’s criticism weighs heavily on the fact that it is a violation of 1201 to circumvent TPM even if the intent is not to infringe copyright, but there are also permanent and termporary exemptions in force, recommended by the Register of Copyrights, that allow for circumvention in a number of circumstances. Every three years, the Copyright Office reviews applications for exemptions, though this process itself has been called “onerous” by the EFF and others and is likewise implicated in the question of constitutionality of the 1201 statute.

As mentioned, there are three named plaintiffs in this suit, though one can think of Andrew Huang and his company Alphamax as representing the same interests.  But in an effort to keep this post under 2,000 words, I’ll focus on the complaint regarding Dr. Green and EFF’s broad complaint that the Copyright Office triennial review process is itself stifling free speech.

That Dr. Matthew Green’s Security Research is Being Stifled

Likely, the most compelling and easiest to understand complainant is that of Dr. Green, who conducts important research into, among other things, the security systems of automobiles. This was the focus of his application for an exemption to 1201 during the last triennial session.

Dr. Green explains on his blog that because the Copyright Office failed to grant the exemptions he applied for, that a project underway in the Fall of 2015 had to be conducted in a manner less efficacious and less thorough than the best method available. He also implies that the opposition to his application from the Business Software Association might have carried undue, industry weight in the decision-making process.  But a review of the Register of Copyright’s analysis and conclusions regarding the relevant class of exemptions reveals that the Copyright Office was substantially more sympathetic to the testimony of Dr. Green and his co-applicants than it was to the opposition arguments of either the software or automotive industries.

In fact, the Copyright Office, in its Final Rule issued on October 28, 2015, recommended a broad exemption for “good faith” research like the work being conducted by Dr. Green, but it also recommended a 12-month waiting period to implement this exemption.  Although this delay may be a source of frustration for researchers and the EFF, it was not proposed due to industry opposition to the exemptions. Instead, the Copyright Office recommended the one-year delay in deference to various federal agencies that had weighed in with concerns regarding some of the proposed exemptions.

For instance, the EPA stated that certain aspects of the work to be conducted could “slow or reverse gains made under the Clean Air Act.”  How?  I have no idea.  But neither does the Copyright Office because they’re not authorized to have an opinion about the environment. So because some of the concerns raised are outside copyright’s purview, the Register proposed  the delay in order to give other federal agencies time to review. That’s what they’re supposed to do, and neither Dr. Green nor the EFF appear to acknowledge that there is an extent to which this research is being slowed by federal agencies which have nothing to do with copyright or Section 1201.

Moreover, the timing of EFF’s big play to argue the unconstitutionality of the entire law is odd in light of the fact that the Copyright Office is largely in agreement with applicants like Dr. Green. In fact, the Copyright Office could not have been more clear in its agreement that the current permanent exemptions for security research are not sufficient to protect Dr. Green and his colleagues from liability.  But when the office called for recommendations to 1201 in the beginning of this year, neither the EFF nor any of its sister organizations filed comments with a view toward amending these permanent exemptions.

So, one question worth asking is why the EFF does not use its considerable resources to seek amendment(s) to the permanent exemptions rather than work toward the less likely outcome that the entire statute will be declared unconstitutional?  After all, as a practical matter, if the real interest is enabling people like Dr. Green to work at his best as soon as possible, fixing the permanent exemptions is a far more practical enterprise than the prospect of having the Supreme Court vitiating all of 1201 several years from now. This seems especially true when the Register already agrees that the current statutes are inadequate.

That the Triennial Review Process is Stifling Speech

Roughly one-third of the EFF’s complaint focuses on the alleged inadequacy of the triennial review process itself. Their contention is that the process is so cumbersome and slow that it fails to fulfill its purpose to provide an adequate counter-balance to 1201’s restrictions and also constitutes a prior restraint on speech by delaying applicants’ ability to engage in otherwise legal, non-infringing research or publication.

Two things seem odd about this section of the complaint.  The first is that it focuses on 1201’s alleged, broad infringement of the speech of filmmakers* and teachers despite the fact that the named plaintiffs in the lawsuit applied for exemptions having nothing to do with filmmaking or teaching.  The second is that the Copyright Office actually did recommend exemptions for a large number of requests pertaining to filmmakers and teachers, though, apparently these did not go far enough for the EFF, which scorns rejections—like an exemption for “narrative filmmakers”—as evidence that 1201 is stifling speech.  Of course, considering this particular class of filmmaker begs detailed analysis because the majority of narrative film uses are not generally fair uses. So, this part of the complaint begins to sound like EFF may be making its usual free speech mountain out of a copyright molehill.

Also, with regard to the alleged onerousness of the review process, the public should note that the process is a rather large task resulting in decisions that have far-reaching implications throughout the market.  Exemptions apply to everyone, not just the applicants.  So, when the CO said that it’s cool for a K-12 teacher to “rip” film clips from his DVD collection to bring into class to teach film or cultural studies, that circumvention is now kosher for all teachers doing the same thing across the country. So, because these rulings are not narrow decisions (like fair use judgments), it seems reasonable that reviews happen triennially and that applicants bear some substantial burden to argue their cases for various exemptions.  The CO’s complete review of the last round of applications is over 400 pages long.  How frequently should the agency engage in that level of detailed analysis and make recommendations that have considerable effect in the market, and which must conform to existing laws beyond the scope of copyright?

And once again, the timing of this complaint is curious because the Register earlier this year recommended that, going forward, all successful petitions not opposed in the next review cycle need not be re-litigated.  This is relevant because the EFF specifically cites the need to re-apply for exemptions every three years as evidence of undue burden, but it ignores the fact that the Copyright Office acknowledges the issue and is making recommendations to mitigate the problem.  So, the big question reprises:  Why is EFF more eager to try to strike down the entire law than it is to work with the Copyright Office to address some of the very flaws the Register agrees exist?

Based on just the complexities I have tried to articulate here—and which only scratch the surface—it seems unlikely the First Amendment complaint will make as much progress as it will make noise. Yes, we want to protect fair use for expression and the ability of researchers to ensure our safety and security while living with our computerized products. But the record indicates that the Copyright Office is in synch with these views.  We’ll see what the courts say.