Tag: Featured

The Internet is Not (and never was) Paradise

I was reading an editorial the other day written by Stephen Witt for NPR shortly after the passing of John Parry Barlow in 2018; and it occurred to me that internet activists seem to fit one of two profiles—Mourners and Evangelicals. And both are full of shit.

Witt does an excellent job summarizing the early barefoot wanderings of the college-dropout, Grateful Dead lyricist, turned techno-libertarian prophet who would eventually co-found the Electronic Frontier Foundation …

It was 1985, and Barlow, not a computer person, did not know what “online” was. But he wangled an Internet account out of a Stanford academic — they were not available to the general public at the time — and began to anonymously visit Deadhead forums on Usenet, one of the earliest hosts for Internet discussion. Despite an apparently fatal lack of any STEM education, Barlow grasped the technology’s potential. “I had a religious experience upon encountering what was a very small online environment,” he said. “I felt that what I was looking at was something profoundly different than anything that had happened in the history of the human race.

The spirit of Witt’s article Tech Utopianism And Our Walled Gardens: Is It Time For A Jailbreak? places it among the many laments for the internet as a paradise lost.  Like other articles of its kind, Witt’s homage to Barlow harkens to an ideal that never existed—a cybernetic Eden, where the purity of human mind and spirit might have remained unsullied had it not been for the original sin of commerce that cast us into the hyper-monetized, surveillance-capitalized, barely-civilized landscape dominated by today’s billion-dollar platforms.  

Not surprisingly, Witt alludes to the fact that copyright infringement was a foundational rite of the new cyber-religion evangelized by the prophets; and it is just a little too perfect that, as an ambassador of the Dead (the most famous band to encourage bootlegging its live performances) Barlow and disciples viewed intellectual property theft as a pathway to the promised land …

… if information was instantly reproducible at no cost, only by creating barriers to open communication between private individuals could the now-artificial scarcity of copyright be maintained.  A true cyberlibertarian — and perhaps we should call him an anarchist — Barlow took the extreme position, denying that the state had the authority to limit peer-to-peer communication. This necessitated an abandonment of the concept of intellectual property, even if that proved corrosive to both the profit margins of large corporations and the meager income streams of small songwriters, including Barlow’s own.

I will admit that my cynicism here is colored by the fact that a world resembling an endless Dead show is my own version of Hell, but personal taste is also germane to the broader point that utopias always fail because they presume to impose a monolithic world view on everyone.  (One man’s Paradise is always another’s Purgatory.)  And that presumptuousness is certainly a running theme wherever digital activism embraces the anti-copyright agenda—too often insisting that all artists must adopt the “sharing” attitude espoused by The Grateful Dead, overlooking the nagging bugaboo that choice is the foundation of liberty.  

So, in regard to the internet writ large, Witt’s elegy fits the profile of the Mourner’s view of cyberspace—a resignation to the fact that utopia is gone and can never be rediscovered, and that any hope of building Paradise anew should be abandoned.  We cannot return and so might as well unplug. 

But while the Mourners have discarded the hope of returning to the Eden that never existed, their idealistic rhetoric remains in Activist 2.0—the Evangelicals, who now defend the status quo of the corporatized internet despite the fact that it allegedly destroyed the original garden in the first place.  The Evangelical is easy to spot.  She still clings to that original Barlowian sacrament of “sharing” content and responds to any proposal to protect copyright owners by declaring that [Insert policy here] will destroy the internet as we know it! 

Of course, the whole narrative is a lie—from Barlow’s catharsis to the present battle over the “soul” of the web.  As investigative reporter Yasha Levine states very pointedly…

…the truth is that EFF is a corporate front. It is America’s oldest and most influential internet business lobby—an organization that has played a pivotal role in shaping the commercial internet as we know it and, increasingly, hate it. That shitty internet we all inhabit today? That system dominated by giant monopolies, powered by for-profit surveillance and influence, and lacking any democratic oversight? EFF is directly responsible for bringing it into being.

Hence, the too-common refrain that we might “destroy the internet as we know it” is an odd rhetorical tactic insofar as it is not at all clear, from any point of view, why the internet we have is something worth preserving.  As a general observation, why is it rational to assume that the function of the internet, which has largely been ceded to the management of Google, Facebook, Twitter, et al, is exactly perfect as is and should never be changed?  By what measure, other than Big Tech’s profits, have we supposedly achieved our digital apotheosis?

Never mind the fact that protests against any type of copyright proposal invariably resort to hyperbole and disinformation (see claims that Article 13 will “kill memes”), but even if some new proposal were to change the internet, so what? As naive as I think the Barlow-worshipping purists were/are in the first place, we can at least all agree that their internet is not the internet we have, that the internet we have is dominated by big corporations and, therefore, hardly sacred.

That being the case, contemporary digital activists should drop the quasi-religious overtones when debating policy—stop talking about the internet as though it were holy ground that cannot be disturbed.  It is worth keeping in mind that every time the artists and creators have inveighed against their rights being trampled by the big internet platforms, the digerati have presumptuously lectured them that “change is good.”  Indeed it can be good.  And right now, what needs changing is the internet as we know it.

Fair Use Week Again. But Why?

Well, it’s Fair Use Week again.  Seventh annual.  I suppose one must say something.  Though what I really want to say is Why?  What exactly happened in 2013 to provoke the idea that we needed this celebration?  The fair use doctrine had been part of the federal copyright law for forty years, and its common law precedents began percolating in the mid to late eighteenth century.  So, why did this somewhat arcane aspect of copyright doctrine, which very few people have reason to think about, suddenly demand of a week’s worth of attention?

I get why Banned Books Week is a thing.  It reiterates the need for vigilance against censorship while celebrating authors whose contributions are so transformative or provocative that somebody somewhere wants to silence them.  Notably, it is the free market that so effectively rejects this kind of censorship, and the author’s mechanism of access to that free market is copyright.  “The Framers intended copyright to be the engine of free expression,” wrote Justice O’Connor in 1985 in Harper & Row Publishers Inc. v. Nation Enterprises.  And indeed it is.

While no one should disagree that the fair use doctrine is necessary to the fulfillment of copyright’s purpose to promote progress and be that engine of free expression, I just cannot fathom the connotation of insurgency expressed in the observance of Fair Use Week—as though the principle were under assault.  Of course, eager celebrants might say that fair use is under assault based on a common tactic in politics, which is to first advocate pushing the limits of a principle and then claim that any resistance to, or criticism of, said pushing is tantamount to threatening the principle itself.  

You see, concurrent with the sudden urgency to celebrate fair use, there has also been a considerable effort to broaden the nature of the doctrine far beyond its supporting role as a cog (albeit a large cog) in the engine of expression.  Publicly, this has taken the form of blog posts and social media commentary that invoke fair use, whether it is actually applicable or not.  In the courts, organizations like the Electronic Frontier Foundation, the Computer and Communications Industry Association, and the American Library Association write amicus briefs supporting tech ventures whose fair use defenses overreach so broadly that they would nullify core copyright protections if allowed to stand as precedent.  

Fortunately, as some of the more high-profile cases have moved through the process, the courts have lately reaffirmed fair use, tucking it into its proper context—as a conditional defense for certain types of uses and not a vaguely-defined blank check based on emotion and general disdain for copyright.  Probably the two most important recent decisions in this regard were in Fox v. TV Eyes and Capitol Records v. ReDigi at the Second Circuit Court of Appeals.  In both of these cases, the court re-illustrated essential contours of fair use in a tech-driven market that too-often seeks to conflate generalized “innovation” with the first fair use factor that weighs “transformativeness.”  

As explained in detail in older posts, “transformativeness” (an analytical doctrine written by Judge Pierre Leval in 1990) is not terribly confusing in its original purpose to consider a new creative expression that makes some use of a precedent creative expression.  Where the doctrine threatens to get out of the barn, however, is in its secondary application as applied in Google Books … “a secondary use may be transformative if it provides information about the original, ‘or expands its utility.’”  

That “expands utility” language has provided opportunity for business ventures to come very close to arguing that simply offering a new service is sufficient to warrant fair use of protected works.  This rationale has even fostered minor attempts by some parties to claim that merely posting a work on social media is “transformative,” which, if this were true, would annihilate the authors’ right to make a work available (or not), thereby distorting fair use from a limited, legal exception to a talismanic incantation.  

Second Circuit Restores Reason to Fair Use 

In both TVEyes and ReDigi, the Second Circuit provided essential contours for the “transformativeness” doctrine.  In the former, the Court held that the TV monitoring service, regardless of its innovative value to B2B subscribers, infringed copyright by making full programming available to customers.  In comparing the utility of TVEyes to that of Google Books, this same court, which decided the latter, stated …

This appeal shares feature with our decision in Authors Guild v. Google,Inc.  That case held that Google’s creation of a text-searchable database of millions of books (including books under copyright) was a fair use because Google’s service was “transformative” and because integral features protected the rights of copyright holders.  However, we cautioned that case ‘test[ded] the boundaries of fair use.’  We conclude that defendant TVEyes has exceed those bounds.

That the same court found daylight between the fair use defenses of Google Books and TVEyes is of considerable value to rightholders in a market replete with ventures seeking new ways to exploit copyrighted works without license.  Authors of works have a hard enough time navigating a landscape of legal (Spotify) and semi-legal (YouTube) platforms that have decimated the monetary value of their creative products without also having fair use expanded into a generalized, amorphous license to steal.  

Perhaps future legal experts will find that the most important decision came in the ReDigi case, denying the fair use defense of this business, which sought to create and exploit a market for “used” digital music files.  One reason this decision my be seen as a landmark is that Judge Leval himself wrote the opinion and added further nuance to his own “transformative” doctrine, which has been the cause of considerable confusion in other cases.  Leval writes …

Here, ReDigi hosts a remunerative marketplace that enables resale by purchasers of digital music files, which is a commercial purpose. Especially in view of the total absence (or at least very low degree) of transformative purpose, the commercial motivation here argues against ReDigi with respect to Factor One.

In other words just because ReDigi’s business model would indeed be novel, that doesn’t make it “transformative” in regard to fair use.  The business model offered a substitute for the primary market for creative works, which would threaten the (already low) market value of those works.  (And as mentioned before, the dominance of music streaming implies ReDigi’s obsolescence rather than its novelty.)  

These two decisions in one of the most active copyright circuits provide essential guidance for the kind of fair use defenses that are typical of the digital market.  Hence the appearance of Fair Use Week six years ago is suspiciously contemporary with efforts to expand that secondary application of “transformativeness” in the service of big tech ventures, rather than the production of new forms of expression.

In this regard, I cannot agree with the way in which Peter Jaszi framed his testimony before Congress in 2014, in which he said …

“Fair use, one might say, is like a muscle – it will grow in strength if it is exercised, and atrophy if it is not. But, by the same token, fair use is hardly unusual or exotic today. Everyone who makes culture or participates in the innovation economy relies on fair use routinely – whether they recognize it or not.”

This conflating the original purpose of fair use (i.e. to foster new expression) with the so-called “innovation economy” is emblematic of the persistent confusion in the market today—a chronic inability to distinguish between the creators and the platforms on which they operate—the difference between the YouTuber and YouTube, if you will.  

Internet companies have consistently sought to exploit confusion about fair use.  Just as they conflate our free speech rights with their profit interest in letting all content “flow freely,” they promote that same talismanic notion of fair use in their own pecuniary interest.  And that’s probably why Fair Use Week started six years ago.  Meanwhile, with the jury still out as to whether the “innovation economy” is really an economy at all, at least the Courts of Appeals have restored some order to the application of fair use for the time being.  

Section 230: Fix It or Lose It?

In 2015, Rep. Jackie Speier (D-CA) introduced a bill that would make it a federal crime to engage in what is generically called “revenge porn.”  I say generically because “revenge” alludes to a specific motive, usually that of a disgruntled ex-boyfriend who decides to get back at a former girlfriend by distributing intimate or sexually explicit images of her online.  There are revenge porn websites dedicated to hosting this type of material, and in some cases, site operators have engaged in extortion, demanding money from victims in exchange for removing their images. 

Naturally, the usual suspects responded to Rep. Speier’s proposal with the usual hand-wringing jitters, asserting that any implication of platform responsibility for almost anything will only lead to eroding the proper functioning of the internet.  (Is it functioning properly?)  As quoted in my 2015 post, Mike Masnick at Techdirt stated, regarding the Speier bill, “Trying to accurately describe what ‘revenge porn’ is for the sake of criminalizing its posting, will almost certainly have chilling effects on third parties and undermine the very intent of the CDA’s Section 230.”  [Emphasis added]

But legislation like this does not undermine the intent of Section 230 of the Communications Decency Act, and saying otherwise grossly misrepresents—in fact inverts—the goal of that liability shield when it was written into law in 1996.  Section 230 of the CDA was specifically enacted to encourage content moderation by platform owners to remove unlawful or harmful material.  Unfortunately, this “safe harbor” provision has since been reimagined by the internet industry, web activists, and some jurists as a legal foundation to avoid content moderation—even when ordered to do so by a court of law.  That is an aberration of what CDA230 was meant to achieve.

To date, forty-one states plus Washington D.C. have criminalized non-consensual use of sexually explicit or intimate visual material, and New York is poised to join this company with a new bill now proceeding through the State Assembly.  Notably, the language in this bill (similar to Speier’s federal proposal) suggests to me that identifying the criminality of this particular conduct is not so far outside the scope of legislative capacity as Masnick implied in 2015.  The New York bill states, “…with intent to cause material harm to the emotional, financial or physical welfare of another person …”  That doesn’t seem very complicated.  If the goal is to hurt someone, regardless of why, then criminal conduct may be present.  

Of course, the tech pundits don’t really mind criminalizing the behavior of the individuals who commit “revenge porn.”  I won’t accuse Masnick, the EFF, et al of supporting the people who engage in this type of conduct because they certainly do not.  What they do claim to be concerned about are the broader implications for internet platforms if they can be held liable under the criminal code, or even just directed by court order to remove material as a form of injunctive relief for victims.  Here, the critics rely on the well-worn generality that any gap in the great wall of Section 230 will only result in reactionary responses by well-meaning web platforms, which will then censor otherwise protected speech.  

Maybe I lack imagination, but it is actually impossible to fathom how providing a relatively narrow path to legal remedies for the victims of this singular crime can chill anything related to the normal functioning of most online activity. Someone wins a revenge porn case, and what?  We won’t be able to read the New York Times or buy sneakers on Amazon or watch Hulu?  Bullshit.  

As usual, the pundits tend to overlook the fact that due process is still required—that an alleged victim still has to prove her case and demonstrate how a named platform may be criminally or civilly liable for harm.  And in many cases, a platform may be responsible for nothing more than removing content without facing any further liability whatsoever.  Meanwhile, people have already been held criminally and civilly liable for various types of revenge porn, and material has been removed from various site, and the internet is still functioning.  In fact, one audacious law firm in Brooklyn, NY focuses on exactly these issues under the direction of attorney Carrie A. Goldberg, who says she became the lawyer she needed herself after an ex-boyfriend threatened to post naked pictures of her online.  

Since then, Goldberg’s firm has removed over 20,000 images on behalf of its clients—a number that simultaneously demonstrates there is efficacy in criminalizing non-consensual uses of material, but it also proves my point about due process and the narrowness of this focus.  In short, the socially-beneficial aspects of the internet really can endure the removal of many thousands of illegal or harmful files without the rest of us feeling a thing, and it is preposterous to believe otherwise.  Or as part of Goldberg’s Twitter bio explains:  F*uck your overbroad reading of CDA230.

I liked that slogan so much, I asked her for coffee mug with the words printed on it.  I guess it’s just the kind of nerd-moxie that makes my day, and Golberg’s firm certainly appears to have moxie to spare, as exemplified by this declaration on their website …

We are done living in a world of abuse and we are not afraid to sue the *&%$ out of schools, tech companies, and employers who tolerate it.  There are many ways to get justice for our clients – economic justice, restraining orders, advocacy in Campus Disciplinary proceedings, exposing a predator, getting the piece-of-shit thrown in jail.

To the extent this take-no-prisoners attitude accurately sums up a general shift in public sentiment (i.e. that some form of platform responsibility is mandated), I suspect the whinging chorus of internet activists may soon need to find a new cross to die on other than their adamantine devotion to the sanctity of Section 230.  In fact, it is conceivable that if the tech giants do not get on board and help tweak—or at least don’t stand in the way of tweaking—the application of this liability shield, they just might lose it altogether.

Apropos my last post about the implications of deepfakes, this universe of criminal conduct will likely become more complicated as parties willing to cause harm can more easily manufacture visual material that appears to reveal the intended target(s) engaged in embarrassing, or even illegal, activity.  For instance, most, if not all, of the revenge porn statutes criminalize visual material that depicts the “intimate parts” of the plaintiff bringing a claim, and this language would seem to fall short of criminalizing a deepfake in which the victim’s face has been seamlessly grafted onto someone else’s body.  Hence, the criminal codes may already be lagging behind the technology.

And, of course, the implications here are much broader than non-consensual pornography.  Just look at the consequences (in this case almost certainly deserved) for Virginia Governor Ralph Northam over a 1984 yearbook in which he appears at least adjacent to, if not depicted in, racist and demeaning photographs. Those photos are real, and Northam must deal with the consequences, but we are now well past the point when far more sophisticated imagery than yearbook photos can be fabricated out of thin air by someone with rudimentary skills.  Combine the level of destruction that can be so easily achieved with precedent application of Section 230 (e.g. Yelp refusing to remove a handful of libelous reviews), and it seems to me that change is coming, and the big platforms may want to get on board.  

As I posted last July, a new development in this narrative—and one I consider unfortunate—is the addition of partisan politics to the mix.  Some conservative Republicans in Congress have at least hinted at eradicating Section 230 in response to allegations that web platforms promote left-leaning content over right-leaning content.  Clearly, this specific complaint implies a tangled mess of a debate that nobody should want; but if the legislative Venn diagram encompasses those who want to kill 230 with those who want to carve out reasonable remedies for online harm, Google and Co. may need to change their revisionist narrative on the purpose of that liability shield, or risk losing more than symbolic battles.