Tag: Featured

Really, Cory? Then how the hell did we get to now?

“One of the reasons Hamilton found the word democracy so offensive was because he realized that the vast majority of American citizens had not the dimmest understanding of what he was talking about.”  – Joseph Ellis –

Proving that it is easier to be a futurist than a historian, Cory Doctorow contributed a bit of soothsaying to a New York Timesseries the editors describe as follows:

… science fiction authors, futurists, philosophers and scientists write Op-Eds that they imagine we might read 10, 20 or even 100 years from now.

So, Doctorow projected himself ten years into the future, gazed back at the present, and decided that the heedless error we are making is not ignoring climate change or precipitating a completely avoidable war with Iran or even committing mass child abuse at the southern border.  No, what Doctorow considers the potential misstep of the moment could be a decision to amend the policy of zero-liability for web platforms.  That will be the decision we will regret ten years from now:  telling internet companies that they may no longer give people the finger, even when they are directly responsible for injury.  He writes …  

“Bit by bit, the legal immunity of the platforms was eroded — from the judges who put Facebook on the line for the platform’s inaction during the Provo Uprising to the lawmakers who amended section 230 of the Communications Decency Act in a bid to get Twitter to clean up its Nazi problem.”

The only point on which Doctorow and I might agree is that the reaction against Big Tech—including the chatter about regulation and possibly amending the liability shield in Section 230—is that lawmakers, the press, and the public may be responding to the wrong stories.  The efficacy with which Facebook removes unpalatable content is not the major issue. For one thing, they apparently already filter out so much garbage we never see that some of the moderators who dosee it have suffered from PTSD.  Additionally, I would agree with Doctorow that so long as these platforms are used, a certain amount of ugly is going to persist, and we are going to have to learn to deal with that as a society.

But the first order of business in addressing the immunity paradigm for websites is actually fairly low-hanging fruit from a statutory perspective.  As discussed in this post, there are websites that trade in material that, in any other context, would be sued out of existence, yet remain shielded for no reason other than the fact that they operate online.  Sites that purposely host material that is libelous, defamatory, inciting violence, vengeful, infringing, etc. is not comparable to Facebook and Twitter stumbling in their efforts to maintain civil online communities.  And Doctorow is being ridiculous when he lumps it all into one regulatory narrative. 

Individuals and businesses who are injured online through conduct that is unquestionably illegal in real space should not be left to crash into the Section 230 wall when pursuing their legal rights to relief.  It would be a major step in the right direction, and relatively easy legislative work, to make clear that websites that intentionally trade in material, which would ordinarily be actionable, no longer enjoy automatic immunity from litigation.  Done.  No draconian censorship needed, as Doctorow seems to imply. 

Why Not Tweak the Experiment?

Meanwhile, Doctorow can hardly claim that the laissez-faire approach to the internet has produced many of the benefits he seems to think will be lost if we revise our policies.  As I say, it is easier to be a futurist than a historian, and he seems to have forgotten history when he writes, “Democracies aren’t strengthened when a professional class gets to tell us what our opinions are allowed to be.”  

Perhaps not what our opinions are allowed to be, but that’s Cory being Cory—sowing fear of censorship rather than considering the more subtle effect the internet has on the valueof opinion-making.  It is not merely chance that the rapid expansion of “internet culture” coincided with the erosion of trust in professionals (i.e. experts), who have some damn good reasons to recommend what our opinions oughtto be on a number of important topics.  The aforementioned shrugging at climate change comes to mind.  

The democratization of opinion-making, leading to the inevitable folly that all opinions have equal value, may be seen by historians as a major catalyst to explain how the putative leader of all democratic republics, the United States, managed to achieve its present state of freefall on such a wide range of policies.  At no time in living memory has the federal government been manned by such a large group of temp-job hacks without a single credential to recommend them for the departments they run. 

The most powerful and extensive military force in the world has not had a legitimate Secretary of Defense since the day seven months ago that one of the most qualified commanders we have resigned because he considered the administration’s policy too incoherent to follow.  And whether they will admit it publicly or not, every serious Republican on the Hill paled at the news of Mattis’s departure but would not say so for fear of being instantaneously thrashed on Twitter by mobs of citizens who haven’t got a clue what they’re talking about.  If the free-for-all internet is so good for society, Cory, how and the hell did we get to now?  

I know what Doctorow and his friends like to say. Don’t blame the internet for the degradation of statesmanship, intelligence, common sense, and decency.  But why not?  The relatively novel introduction of social media, adding an unprecedented scope of direct democracy into the process, has been an experiment.  It is neither logical to assume, nor evident to observe, that the experiment has yielded only positive results.  So, we should not be afraid to adjust the conditions of the experiment.  I can certainly imagine looking back ten years from today and regretting plenty of policy decisions, but I don’t think holding internet companies responsible for their actions is going to be on that list.  

Petitioner Asks SCOTUS to Hear ReDigi Case

A new business called OmniQ has filed an amicus brief urging the Supreme Court to grant cert in ReDegi v. Capitol Records, alleging that the Second Circuit’s opinion in December 2018 effectively brings an end to the First Sale doctrine.  The company is developing a patent pending model that (presumably) would facilitate an online market for “used” and hard-to-find motion pictures.  Its brief contends that the lower court erred in its plain text reading of “reproduction” under the copyright law and would permanently “outlaw” the kind of technology they propose to introduce.

It is unlikely the Supreme Court will agree to hear ReDigi, not least because, as Hollywood Reporter’sEric Gardner rightly notes, “The issue of whether the First Sale Doctrine has survived the digital age may make for good scholarly articles, but is the Supreme Court really going to devote its limited bandwidth to technology that’s already outdated?”  ReDigi proposed to facilitate trade in “used” digital music files at the same time that subscription streaming was on the rise and may, therefore, be considered obsolete at inception. But in its brief, OmniQ implies that its business model fulfills an unmet need in the market by addressing what it claims is dwindling access to classic motion pictures …

…the public has already lost access to vast libraries of motion pictures and other audiovisual works, simply because modern technological solutions like the one at issue here are lacking.

…the breadth of choice in movies was many times higher 20 years ago than it is today.

I personally find the brief’s argument about the lower court’s interpretation of “reproduction” somewhat persuasive when it states “there is no ‘reproduction’ without the multiplication of copies.” If in fact a file can be moved from my hard drive to your hard drive so that you now have it and I do not, then it there is a plausible argument to be made that “reproduction” has not occurred.  But from there, I think OmniQ’s claims overreach, blaming copyright protections for phenomena fostered solely by the market and technological change.

First Sale Probably Does Not Survive the Digital Age

Even if the Supreme Court were to agree with OmniQ that the Second Circuit misread “reproduction” in ReDigi, this would not rescue the fact that the proposed business model exceeded the purpose of the First Sale doctrine because it would create a “used” market in name only—one that could theoretically become a substitute for the primary market.  In 1908, the Supreme Court held…

“It is not denied that one who has sold a copyrighted article, without restriction, has parted with all right to control the sale of it. The purchaser of a book, once sold by authority of the owner of the copyright, may sell it again, although he could not publish a new edition of it.”

And for the next century, physical copies of books, records, DVDs, etc. were sold in second-hand stores, garage sales, or rented through outlets like Blockbuster.  But the fact that a “used” digital file is identical to a “new” digital file is a technological reality that reshapes the meaning of “second-hand” material, and this at least alters—if it does not outright extinguish—the First Sale principle.  

Further, the potential for a transaction facilitator (which OmniQ presumably aspires to be) to foster a parallel trade in “used” digital files operating at internet scale is a vastly different consideration from the scope and nature of the secondary market that emerged between 1908 and the digital age. 

Finally, these same technological changes have spawned a primary market that (despite persistent complaints that all media should be free) is both cheaper and more abundant than the primary market of 20 years ago.  For example, The Criterion Collection, while perhaps not wholly satisfying to all film buffs, allows an account-holder to stream a library of motion-picture classics for about 27 cents a day—access that was unthinkable 20 years ago.  

In the still-evolving digital market, therefore, a petitioner like OmniQ should at least be required to demonstrate that its purpose is to facilitate a “second-hand” trade in material that is not likely to become available via licensed distribution systems—whether online or as physical copies.  And in this regard, the brief makes an emotional and cultural plea that fails to present a problem caused by copyright law.  

“1960 Doesn’t Exist on Netflix”

To demonstrate the market need for its business model, OmniQ relies almost entirely on one article written by Zach Schonfeld in 2017 for Newsweek.  It is an engaging piece on the theme that motion pictures from the oeuvres of Hitchcock, Truffaut, Fellini, Kubrick, et al are disappearing from mainstream cultural literacy.  The spirit of the piece which focuses almost exclusively on Netflix, is well captured when Schonfeld quotes blogger Nora Fiore (a.k.a. The Nitrate Diva) …

“If you’re the biggest name in film streaming services, the less you offer in classic movies, the more you imply that classic movies have less to offer.  It’s a terrible message to put out there.”

Perhaps this is a fair observation about contemporary culture and the movies, but the reasons for these changes have little or nothing to do with copyright law and everything to do with the inevitability that Netflix was going to transition to become a producer of new material. 

Before I go on, I have to interject that it is curious that in one moment, copyright is alleged to be a framework for nostalgic fuddy-duddies who don’t understand the future, but in the next moment, it is the nostalgic fuddy-duddies who are blaming copyright for stifling connection to the past.  Or I might also note that one of the complaints about copyright terms is the false allegation that creators will not produce anything new as long as they retain copyrights on older material they can keep reselling.  Maybe there are forces at play that are not really about copyright?

Speaking as one nostalgic fuddy-duddy who would rather watch Day for Night than Game of Thronesany day, the problem (if we agree it is a problem) with the apparent loss in status of classic films in the cultural mainstream is not a licensing issue.  Netflix could make all these films available tomorrow, and I predict that younger audiences will, by and large, think they’re being told to eat their vegetables.  

It isn’t copyright’s fault that a whole generation has been feasting on a steady diet of short-attention-span, handheld video clips for more than a decade.  The young mind does not easily transition from TikTok to Tarkovsky, and availability of the latter alone is not going to fill the apparent gap in cinematic literacy. Piracy statistics bear this out year after year as even illicit access worldwide continues to favor major, contemporary works like blockbuster movies by substantial margins.  

As an observer of culture and a cineaste, I would love to join Schonfeld and the film historians, academics, and buffs he cites for a drink to mourn the apparent loss of interest in the classics, but this was to be expected in a market destined to expand and become more segmented.  It should be little surprise in a world where we can have “liberal news” and “conservative news,” that entertainment is going to be even more distinctly subdivided.  

On the plus side, we get a diverse range of material and subject matter because investors are not restricted to appealing to the safe middle every time.  On the negative side, we no longer share a common film culture as we once did.  But this is a change borne of technological innovation in distribution systems that has nothing to do with copyright per se. 

Further, I think Schonfeld’s article is unduly harsh on allNetflix offerings as being substandard when he writes, “The universal power of boredom guarantees that any piece of Netflix programming will be watched by millions simply by virtue of being plastered across the Netflix homepage.”  This complaint that Netflix does not host a library of classics that Schonfeld et al believe it should is not especially helpful to OmniQ’s purpose.  After all, this is familiar territory. When David Lynch’s Blue Velvet was released in 1986, the box-office winner that year was Top Gun. It was ever thus.

Which Market is OmniQ Really Trying to Serve?

Serious film buffs have long been a niche audience who, by and large, have had to spend extra resources in the pursuit of their passion.  In many ways, I can only imagine that film-buffery is easier today because one can enter a title into various search tools and locate, for instance, a used DVD someone is willing to sell.

Presumably, OmniQ wants to facilitate the same kind of one-to-one transactions in titles that would-be sellers own as digital files on hard drives rather than plastic disks.  And it is not an unreasonable premise to claim that First Sale should apply to this kind of trade so long as the number of copies in circulation remains fixed and never increases.  A problem arises, however, when an enterprise facilitates this trade at scale in works that are available through licensed channels; and it is not clear which market OmniQ proposes to serve.

If OmniQ is focusing on the serious collector looking to obtain a digital file of a hard-to-find title by Ernst Lubtisch, they may have a reasonable legal argument, but possibly not a viable business.  If instead, the company is responding to a declining interest in classics like The Apartmentor Spartacus (both named in the Schonfeld’s introduction), availability is not the underlying cause of this cultural phenomenon.  These and other popular classics are widely available through existing channels, including streaming, and this weighs against OmniQ’s claim that First Sale remains relevant in the digital age.  

As mentioned, it seems highly unlikely the Supreme Court will hear ReDigianyway, but even if it were to overturn the Second Circuit opinion on “reproduction,” I suspect OmniQ would still have a lot of homework to do in order to prove that its business operates within the spirit of First Sale.  I do not think one magazine article, no matter how much I personally agree with the spirit of its commentary, is going to support OmniQ’s argument with regard to copyright law.  

Flipping the Narrative on the Effects of Social Media

Many years ago while still in college, I was on the train to New York City—a beautiful ride along the eastern banks of the Hudson River.  Several rows from me sat a family of American tourists who caught my attention when I heard the dad say, “Look kids, there’s Alcatraz.”  

Reasonably confident that Alcatraz sits on an island in San Francisco Bay, I glanced over to see the man pointing across the river and his two children gazing at the fortress of the Military Academy at West Point.  The layers of incorrectness in this guy’s armchair tour-guiding is more or less the kind of “information age” social media has amplified at an unprecedented scale.  And I remain unconvinced that there is a policy, either public or private, that can do much about it. 

In her June 13 article on FastCompany, former Google VP of Communications Jessica Powell recommends a behavioral and cultural shift whereby those who work for Silicon Valley join, rather than scorn, the conversation about regulatory and practice changes in her industry …  

… we tend to close ranks when our industry is criticized. We view an attack on Facebook’s handling of content moderation, for example, as something that might threaten all the legal protections given to platforms—and if we’re Twitter, YouTube, Reddit, or any other social platform, we tend to go silent. Rather than providing a more nuanced critique about what Facebook may be doing wrong (or right), we attack the outsiders as Luddites who want social media apps to remove all speech we don’t like or demand that platforms like Facebook should hire a million humans to moderate controversial content. 

Kudos to Powell for identifying the habits of her colleagues and for proposing the very reasonable notion that “Some of the best ideas about how to sensibly regulate tech can probably be found in the Valley….”  Fair enough.  And by all means, cooperation would be a refreshing change coming from that industry. But what if it is necessary to flip the narrative on the nature of what we’re really talking about?  

Powell does not acknowledge in her article the Olympian hubris with which Silicon Valley has proclaimed its innovations to be so universally beneficial for society that the critics should shut up and thank them for their largesse. Remember that all proposals, even those seeking to mitigate new forms of tech-enabled crime, have generally been rebuffed with some variation on the caveat that we must avoid stifling the greatest tool for democracy ever created.  

That premise continues to distort the nature of the conversation, and it is probably false.  Rather than assuming a platform like Facebook is a positive social force with a few negative effects that need mitigating, it may actually be the case that it is a negative social force with a few nice qualities.  We can wish one another Happy Birthday, keep up with our friends, and even have some very substantive discussions; but what if social media as an information source is fundamentally toxic to democratic institutions and we have to address it in those terms?   That would be a very different conversation from the one being had right now, and I cannot imagine “the Valley” Powell describes would be eager to table the premise that much of what they do is, on the whole, destructive.  

In a blog post for Luminate, an organization that funds and supports efforts to improve democratic institutions around the world, David Madden writes about tackling Digital Threats to Democracy …

“Over the last nine months, three of the world’s biggest countries have held elections: Brazil, Nigeria, and Indonesia….Social media posed a clear threat to the elections of all three countries.

 “…a video on Facebook three days before the polls suggested that the [Brazilian]Workers’ Party Candidate Fernando Haddad was planning to distribute ‘gay kits’ to child care centers. 

… a rumor that [Nigerian]President Buhari was dead and that a body double was serving in his place. This rumor was so widely shared that President Buhari had to publicly deny that he had been ‘cloned’.

Online “hoaxes” increased dramatically during the [Indonesian]campaign and the deadly violence that followed the announcement of the election result was the natural conclusion of the incendiary battle fought on social media and WhatsApp.”

These, and many stories like them, are the reason the conversation is finally being had about platform moderation and/or regulation.  Congress just last week held hearings on the subject of “deepfakes” because it is clearly the next technological innovation about to be weaponized and aimed at democratic institutions.  But this kind of purposeful disinformation, as devastating as it has proven to be, may be more easily mitigated than the ordinary, subtle effect the new “commons” has in steadily eroding the delicate fabric that holds liberal democracies together.  

For instance, because it’s in my wheelhouse, I’ll note a recent blog post published by my friends at Creative Future on the topic that Google has funded academics who just happen to espouse anti-copyright views.  When I scrolled by their post on Facebook yesterday morning, there were 260 comments, so I took a peek.  I know. Never read the comments.  But the problem with that rule of thumb is that the comments are us.  Bots and trolls notwithstanding, they are an anthology of what we think and why we think it, except that we are perhaps just egomaniacal enough that we like to believe the peanut galleryis everybody else.  

Just in response to this one blog post, commenters unpacked their views on liberals, conservatives, capitalism, socialism, climate change, and academia overall, plus at least one reference to Nazis and, of course, one guy reciting Scripture.  It’s like a Richard Scary book illustrating Crazytown, where the village hosts a public forum on one topic, and a literal food fight would be a step forward in thoughtful discourse.  Whether in agreement or not with a given post—even just straight reportage—the subject is too-often subsumed by other matters about which the commenters seem equally uninformed. Look kids, there’s Alcatraz! 

We are all ignorant about a great many things.  Even the most gifted astrophysicist who knows way more than you and I about the cosmos is still searching for what she does not know.  But with regard to the kind of informed public that is understood to be essential for the survival of a democratic society, the capacity of social media to amplify misinformation is not only unprecedented, but it is not limited to the most obvious forms of chicanery.  The effects are subtle and mundane.  The simple act of typing and publishing a misinformed comment more deeply etches a false narrative into one’s world view.  Multiply this phenomenon across every story on every topic, and it is little surprise that democratic institutions are in dire straits. 

As others have noted, one of the greatest hazards posed by “deepfakes” technology is the prospect of  universal plausible deniability—the opportunity for anyone to claim that video evidence of them saying or doing something is fake when it is not.  Anticipating that environment feels as though we are standing on the edge of an event horizon different from the technological singularity predicted to occur when the machines become self-aware.  In this scenario, the singularity is caused by the paradox of infinite doubt—a gravitational force from which reliable information cannot escape because there is no longer sufficient consensus as to what a reliable source looks like.  

That may be needlessly pessimistic, but to the extent that we already see evidence of this phenomenon having tangible and devastating effects, social media must be recognized as an underlying cause of the problem, which means that it is unlikely to be its own antidote. Certainly not without a very different conversation that begins with Jessica Powell’s friends and colleagues dropping their making the world better rhetoric.  Because it seems abundantly clear that they are doing no such thing.