Tag: Featured

The Mask of Zuckerberg’s Zeal

Right after Mark Zuckerberg delivered his 40-minute address at Georgetown University on October 17, articulating his views on the speech right and the role of Facebook, several very good editorials appeared almost immediately. Most recognized the speech for what it was—PR for a corporation by a CEO who has no particular reason to be expounding on constitutional rights or history.  

Julia Carrie Wong, writing for The Guardian, rejected Zuckerberg’s arrogant presumption that he and his company “gave people voices,” … 

“Human beings have voices whether or not they are on Facebook. What Facebook has done for its 2.4bn users is not to give them a voice, but to give them access to an audience – and to manipulate and shape what this audience looks like through obscure algorithms that are tuned to maximize behaviors of Facebook’s choosing.”

Andrew Marantz, in The New Yorker, called out Zuckerberg’s lies of omission, taking credit for the benefits of Facebook while offering neither contrition for, nor even acknowledgement of, his platform’s uniquely catalytic role in causing political havoc on a global scale …

 “Now that the list of countries suffering under proto-autocratic leadership has grown to include India, the Philippines, Brazil, and the United States—and given that this is no random quirk of history but one attributable, in large part, to Facebook itself—it’s long past time for Zuckerberg to come up with a new ideology, or at least a new branding strategy.”

And after Facebook announced that it would knowingly host political ads that were patently spreading false information, Aaron Sorkin, screenwriter of The Social Network, penned a popular response to Zuckerberg explaining why Facebook’s policies have nothing to do with speech …

“…right now, on your website, is an ad claiming that Joe Biden gave the Ukrainian attorney general a billion dollars not to investigate his son. Every square inch of that is a lie and it’s under your logo. That’s not defending free speech, Mark, that’s assaulting truth.”

While it is certainly good to see that fewer people are willing to buy Zuckerberg’s bullshit, let alone his credentials for holding forth on political philosophy, his attempt to reboot the premise that created his (and our) problems in the first place seems to be more or less where the internet industry has landed over the last year or so.  After a brief period of navel-gazing and half-hearted promises to “do better” in 2016, Silicon Valley’s wizards seem to have come to the conclusion that they were right all along—a theme that could easily be the subtitle of Zuckerberg’s Georgetown speech. 

 “Throughout history,” he says, “we have seen that more people being able to share more experiences and more perspectives has always been necessary to build a more inclusive society.” This is not exactly true as a historic statement, and it has certainly not proven to be an axiom that can applied to the effects of social media.  Most importantly, what Zuckerberg is really doing there is reprising a theme that social media platforms sit on timeline that traces a smooth arc from the Gutenberg press to Facebook. 

File that under the general talking point that everything internet companies do is inherently progress by virtue of novelty alone; but more acutely, Zuckerberg misrepresents the tire-squealing hard turn into uncharted territory that social media really was.  Remember that Facebook’s mantra was “Move fast and break things.”  Well, they did.  Unfortunately, those things include the foundations of democracy, and it is in no way clear that those things can be repaired.  

That old cliché that says you are entitled to your own opinion but not to your own facts could not withstand the gale forces of the digital age.  It turns out you are entitled you your own facts, and Silicon Valley is only too happy to commoditize that dystopian disaster and call it “free speech.”  In Federalist 1, Hamilton warned the prospective new Americans against populists, writing …

 “…a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidding appearance of zeal for the firmness and efficiency of government.  History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people, commencing demagogues and ending tyrants.” 

But is there any way to eject from the paradox?  I suppose we could abandon the platforms, but only if we do so in at least millions if not tens of millions.  Otherwise, Zuckerberg can make all the dumb speeches he wants, mangle history almost as badly as Donald Trump, Jr., and adopt a company policy that openly monetizes disinformation.  Because where are we going to criticize him for his conduct?  Exactly. 

Zuck’s recycled promise that social media can only be a fillip to democracy is the trickle-down economics of the digital age.  It is Silicon Valley’s version of the worn-out theme that corporate giants are primarily in the business of investing in a new and improved world—for our sake.  

Except the techbros are not speaking in the familiar, aspirational hyperbole of advertising; their patter is a sincere and insane presumption that were right to reprogram the liberal world order.  Techno-utopianism is not an expression.  They are not kidding.  And what Zuckerberg’s Georgetown speech says most of all is that he and his buds were right all along—that it’s our fault for losing faith.  He concludes …

“I believe that more people’s voices will eventually help us work through these issues together and write a new chapter in our history — where from all of our individual voices and perspectives, we can bring the world closer together.”

Absolutely, Zuck.  More of the same will definitely make things better.  

Photo by mshmeljov

CASE Act noise gets louder. And sillier.

After the CASE Act passed the House (410-6) on October 22 and moved onto the Senate, the various groups opposed to this copyright small-claim bill turned up the volume on the eerie headline that says Share a Meme.  Lose $30,000!  I and others responded that this allegation is simply not grounded in reality, and to this, Meredith Rose of PublicKnowledge replied with the tweet below …

What’s going on there is a subtle but wicked-important sleight of hand in the service of a multi-layered falsehood.  But that’s why it’s effective.  The lie is complex.  Though, oddly enough, Rose could not have picked a better example to demonstrate how disingenuous the anti-copyright groups are being about the CASE Act.  In fact, the logic is so convoluted, it is reasonable to wonder whether these people are not so much ideologues as just bad attorneys.  Who can say for sure, but here are some facts you are free to verify for yourself …

To begin, the infringement claim to which Rose links in that tweet may lack merit because it was filed by a known copyright troll, which is one reason I assume she selected this example—hoping to imply that trolling will get much worse after passage of the CASE Act.  So, I shall try one more time to describe how the Copyright Claims Board (CCB) will actually look to the copyright troll, whom the bill was specifically designed to discourage.

Whether or not that particular claim has merit, Rose’s citing it only emphasizes the fact that weak or invalid claims can be filed ad infinitum in Article III courts; and it can cost the named defendant quite a lot of money just to argue that the complaint should be dismissed.  This is precisely how an unscrupulous attorney (not just a copyright troll) uses the threat of even invalid litigation to scare settlements out of people.  By contrast, the Copyright Claims Board (CCB) provides no such mechanism of intimidation.  

Because the small-claim tribunal is meant to be used by regular people without the aid of attorneys, the CCB must review every claim for merit before it can even be considered “active” and served upon a respondent. (And yes, claims will be served, not emailed as EFF and others have alleged.)  Further, any party who files as few as two warrantless claims, will not only have those claims rejected, but will also have all other active claims vacated by the CCB on the assumption that the filing party is abusing the system. 

Then, as mentioned many times in other posts, repeat abusers of the CCB face a potential $5,000 fine and/or may be barred from access to the small-claim tribunal for up to one year. And, finally, any respondent can opt out without providing a reason. So, Rose has unwittingly highlighted why the CCB will be a barrier to claims like the one she cited.

Okay, but are memes infringing?

The next noteworthy fact about the case Rose cited is that it does not actually involve a meme.  The accused infringer apparently published a photograph to her website without license, and if that is the only evidence available, there is likely no legal ambiguity there.  Publish anything to a site you control, and you are responsible for any potential infringement claim, whether or not the claim is filed by an unscrupulous attorney. 

This goes to the next layer of nonsense in Rose’s tweet, which is really two falsehoods working in tandem.  The first is that she is conflating conduct (e.g. publishing vs. sharing) with a genre we call “memes;” and the second is the implication that posting a visual work anywhere online that has in some way been altered makes it a “meme,” which automatically makes the image itself—and the posting of it—a fair use.  Spreading this kind of confusion is a disservice to many of the people PublicKnowledge claims to defend.  

A so-called meme based on the use of someone else’s visual work can be a fair use, but it is false to believe that every alteration, like placing some text on a photo, automatically makes it a fair use.  It is of course impossible to say, on a case-by-case basis, which of the gazillion “memes” out there are probable fair uses and/or which among these images even lives in public consciousness long enough to attain the status of a “meme.”  But that ambiguity is central to the aforementioned fallacy of conflating this popular internet genre with the conduct of “sharing” memes.

What the anti-copyright folks really want you to believe is that if you see a meme on Facebook or Twitter and click “Share” or “Retweet,” you will be at greater risk for an infringement claim if the CASE Act passes.  (And then of courseyou will be subject to the maximum penalty of $30,000.)  This scare-tactic relies on the fact that all that sharing we do on social platforms does occur in a somewhat gray area of the law—that although nobody gets sued for re-sharing something that was already on, say, Facebook, this does not mean such a suit could never be filed or that a claimant could never win.  With the law, it’s best never to say never.  But …

Having said that, there are both statutory and caselaw reasons why a claim of infringement for clicking “share” on material that is already on a social platform would be very difficult to support in federal court—and, therefore, even more difficult to allege via the CCB, even if such a claim were ever filed.  The reason it would more difficult at the CCB is because that Board will not have the authority to adjudicate such an untested and delicate question of infringement.  Absent clear statuary or precedential guidance, the Board would have to reject the claim and insist that the complainant file in court. (Note, that this is an opinion and prediction based on observation.)

In addition to the legal complications, there are many practical reasons we do not see these lawsuits right now—why we are not being sued by parties, who can afford it, for sharing those memes—and these reasons have nothing to do with the absence of the CASE Act.  Probably the most common reason is that online sharing is so pervasive that many authors of works have, for better or worse, made their peace with a certain amount of remix and contributory distribution of their material.  There is no practical means of sifting through all that to determine what is and is not fair use, most of it is harmless, and the list goes on …

Small-Claim Copyright Reality 

Behind all that noise, actual independent copyright owners, whom the CASE Act was designed to serve, have neither time, interest, nor resources to explore whether or not your  “share” of a so-called meme made from their image might be an infringement.  It is simply not practical to pursue such a claim, even if it were desirable.  If Disney isn’t suing you for sharing that princess meme, you can be sure that Joanna Photographer can hardly afford to do so, even at the CCB.

The independent copyright owner, like the visual artist who makes between $30,000 and $70,000 a year from her creative work, does not have an unlimited supply of $250 filing fees to throw at copyright enforcement.  Depending on her cost-of-living needs, just four filings with an upfront cost of $1,000 can be a substantial outlay in a given year.  While it is true that one or all of those four claims could yield damage awards well worth the price of the filing, there are barriers to this outcome, not least being that an alleged infringer can opt out of the tribunal.

So, it is only common sense that the independent, small-business copyright owner is going to file claims against willful, direct infringers who clearly should have licensed the work in the first place—and usually for commercial purposes.  These are the claims that will hold up best and have the greatest likelihood of yielding a justifiable damage award—not your silly little meme share on Facebook. 

Troll Art by cosmic_fellow

No, Mike, it’s that you’re just wrong about the CASE Act.

I had to stop myself from responding on Twitter to Masnick’s comments about the CASE Act because I do not like to devolve to pure ad hominem as a form of argument.  Yet there are few things as offensive as outright nonsense disguised to sound like thoughtful consideration.  To wit, I present the following … 

Nobody has “ignored” those considerations; they just don’t make any damn sense.  Moreover, those tweets reflect an astounding degree of cognitive dissonance from a guy who is one of the loudest cheerleaders on the Tech-Utopian Squad.  Mike will dutifully turn sarcasm into a sublime choreography whenever someone thinks to criticize the design, values, policies, functions, or effects of internet companies, but he accuses supporters of the CASE Act of foolishly believing that the copyright small-claim provision will never be used improperly. Really?

For someone who cries “straw man” with some frequency, Mike will have a devil of a time finding a CASE Act advocate who has actually predicted that no bad actor will ever attempt to use the Copyright Claims Board for unmeritorious purposes.  Nobody involved with the provision is that naïve.  Create any system, and somebody somewhere will at least try to use it improperly.  No shit. That’s why the statute anticipates bad-faith use.

Unlike the major internet companies, whose founders intentionally “disrupted” our social, economic, and political world with smug disregard for any of the potential negative consequences, provisions like the CASE Act actually do imagine improper conduct.  It’s in black and white right there in the statute for all to read.  For instance, the $5,000 fine for intentionally filing bad-faith claims with the Copyright Claims Board (CCB) is the antithesis of a blind assumption that everyone will always act in good faith. See how that works?

Nevertheless, Mike believes we’re all mad not to recognize that the small-claim copyright tribunal will inevitably be used to either 1) silence someone; or 2) shake them down for cash.  Let’s consider that shall we?

On the silencing thing, imagine I want to silence Mike Masnick (just sayin’).  He has the right and ability to post hundreds of comments a day on social media, or write posts on Techdirt, and the vast majority of all that speech will not use works that implicate anyone’s copyrights.  So, as a would-be censor, I have to wait in the tall virtual grass for him to make an infringing use of one of my copyrighted works; then pay a fee and file a claim with the CCB; pace the house for several weeks while that process runs its course; and then, if Mike does not opt out of the voluntary tribunal, I will MAYBE get a judgment in my favor, IF my claim of infringement has merit.  That seems like a damned inefficient way to silence someone.

Conversely, I think the data shows that if you really want to silence a person these days, your best bet is to rally the trolls and self-righteous techbros into doxxing and harassing the hell out of them until, in some cases, they are actually forced to flee their homes and jobs for their own safety.  But Mike thinks we should worry about someone weaponizing the Copyright Office.  

In that regard, Mike’s use of the word “shake down” is provocative, but just a tad overstated.  Imagine trying to mug somebody while armed with nothing more than an index card that says, “Please, give me your wallet.”  The target of this improbable assault says, “Nah,” and walks on.  That is roughly how effective the CCB will be as a means to “shake someone down.”  

If anything, the fact that the CCB will be a voluntary dispute resolution alternative has been criticized as a potential weakness of the entire proposal, but it has to be voluntary in order to be constitutional.  Still, as I discussed in this post about a case that, for no good reason, went to the Fourth Circuit Court of Appeals, it is quite possible to anticipate real scenarios in which both claimants and defendants would want to avail themselves of the CCB—especially in conflicts where federal litigation seems likely. 

Mike and the rest of the Tech-Utopian Cheerleading Squad really need put down their pom poms, take a time-out, and ­think about what they’ve done.  Perhaps in a moment of quiet introspection, they will recognize some different systems that, despite the good intentions of those who designed them, have been abused by some pretty bad actors to truly hideous effect.  I don’t want to give it away, though.  Catharsis must come in its own time.