Tag: Featured

Deepfakes & The Choice to Be Deceived

Immediately after the 2016 election, many Americans discovered just how much fake news they were sharing via social media.  And for about ten minutes, the term fake news had a specific and literal meaning; it referred to fabricated stories made to look like news, and which serve either as clickbait to generate ad revenue or as mischief to fan the flames of political discord.  But then, the president co-opted the term as a way to dismiss any reportage that does not jibe with his myriad, fact-challenged narratives, and fake news no longer means anything at all. 

Now, the unreal is about to get a lot more real—and more dangerous.  The technology known as “deepfakes” enables fairly unsophisticated users to produce video evidence of events that never happened.  As highlighted in this CNN report on the subject, Senator Marco Rubio (R-FL) raises the very plausible fear that, in this next election cycle, we are going see video clips showing elected officials and candidates doing and saying things that are entirely fake, but which look absolutely real. “I believe this is the next wave of attacks against America and western democracies,” Rubio stated in a hearing with the Director of National Intelligence.

And that’s not necessarily the worst effect of deep fakes, at least with regard to news and politics.  As, Hany Farid, a digital forensics expert interviewed in that CNN report, observes, an equal—if not worse—hazard confronts us when people inevitably cry “deepfake” on visual evidence that is indeed factual.  Think about how often President Trump changes his story on just about everything and is then checked against his own prior statements captured on video.  All he, or his spokes-minions, have to do is recite the incantation “deepfake,” and the record is expunged in the minds of millions.  Not that this same folly will not occur among other segments of the electorate, but Trump provides the most obvious, stark, and timely reference in this regard.

Naturally, the anticipation that deep fake technology will be used as a weapon of information warfare leads to the assumption that the remedies will also be technological.  The Pentagon has already called the potential abuse of deepfakes a threat to national security, and Farid makes the logical prediction that social media platforms like Facebook and YouTube will need to deploy deepfake detection software to warn viewers.  But it also stands to reason that faking software will only improve, quite possibly to the extent that it cannot be detected by counter-fake technology.  And even then, can any kind of technical metering overwhelm the psychological instinct to believe what we want to believe?

The truth about our fallibility, as filmmaker Errol Morris’s tells us, is that believing is seeing, and not the other way around.  While images can inform, they just as often lie like crazy, not only because we are hardwired to see what we want to see in recorded images but also because, as Susan Sontag writes,  “…the camera’s rendering of reality must always hide more than it discloses.”

Consider the recent story that began with a viral video clip that appeared to show MAGA hat-wearing teenagers openly mocking a Native American at a rally in Washington D.C. Then, a second video capturing the same events revealed a much broader context that at least alters the original narrative about those kids’ behavior, and possibly undermines it altogether.  Either way, it is impossible to imagine how the addition of deepfakes into this already-volatile environment will not make matters worse.  So, what is the solution to this new form of sophisticated, weaponized information?  

No doubt, there is more than one answer to that question, but, as I’ve opined in the past, I think the only hope is a cultural shift in us as information consumers and not a technological fix on the part of the platform owners.  This might mean, as it did for me, abandoning social platforms as a primary source for “curated” information.  But no matter how we choose to filter information, we have to stop pouncing on every photograph and video clip as evidence to support our “deep stories.”  At the same time, professional journalists must stop trying to keep pace with the shrieking frenzy of social media.

For instance, I initially heard about that D.C. clash on CNN, when they cited the first viral video as evidence that a mob of teenagers had indeed assaulted a Native American elder.  The anchor reporting the story even editorialized with a scornful word or two about the kids’ conduct.  But then, CNN followed up, reporting that a second video shows a “different side of the encounter,” and they hosted an interview with Nathan Phillips (the Native American), which also skews the story considerably from the way it was originally reported.  But does CNN’s follow-up do enough to build any kind of consensus around the truth?

When I first started this blog, the trending videos at that time were coming from the cellphones of Occupy Wall Street attendees, usually depicting apparent acts of police brutality against allegedly peaceful protestors.  Clearly, such incidents did occur, but at the same time, the omnipresence of cameras—especially at a movement that quickly devolved to activist tourism—helped to foster an illusion that the people’s images are the “real” truth, even to the extent that citizen journalism has eroded trust in professional journalism.  

This is not to say that amateur video cannot tell us anything.  Surely it can.  But the inexorable deployment of deepfakes, which will probably be most effective when disguised as citizen journalism, will be all the more hazardous if we cannot trust real journalists to provide context, corroboration, or correction for what we think we’re seeing.  In this regard, CNN’s own deepfakes reporting might serve as a cautionary tale to its main news desk (and every other news organization) that the visual “evidence” they obtain via social media and other outside sources should be treated with a level of scrutiny as though it were mere rumor.  And, as consumers, we should begin to do the same.

Photo by kiosea39

EFF Observes (Anti) Copyright Week

So, it turns out it’s Copyright Week.  I had no idea, and it’s already Copyright Hump Day. What with the government shutdown, the Barr confirmation hearings, the litany of breaking stories in the Russian-interference investigations, I just didn’t notice.  But then I saw a post by the Electronic Frontier Foundation recognizing Copyright Week, including an obligatory “SOPA lead” as recommended in the IOM Guide to Critiquing Copyright in the Digital Age.  Because, of course, for the EFF, it’s Anti-Copyright Week.

Initially, I thought there is no way to respond to the EFF’s post other than a) citing dozens of thoughtful experts who know how copyright works; or b) quoting the eminent attorney Vincent (Joe Pesci) Gambino’s entire opening argument in the murder trial of his cousin:  “Everything that guy just said is bullshit.”*

But that prompted a different thought.  After more than six years banging out this blog, I feel confident about saying that there are two very different kinds of copyright critics in the grand debate; and unfortunately—because any area of law is usually arcane for most of us—it is the least honest critics who wield the most public influence.  In yesterday’s response to Professors James Boyle and Jennifer Jenkins, you won’t find me accusing them of dishonesty, only questioning their ideas.  But with the EFF, Public Knowledge, Fight for the Future, Cory Doctorow, and Mike Masnick, it’s a different story.  These voices consistently misrepresent the law and history in the service of their policy agendas.

This latest post by EFF is PR disguised as copyright criticism—comparable to health information sponsored by Big Tobacco or environmental reports funded by Big Petroleum. There may be kernels of truth, but they are well hidden in a fog of obfuscation and outright falsehoods.  Here are a few classic examples featured in the five main topics EFF says it is focusing on this Copyright Week:

Monday: Copyright as a Tool of Censorship. Freedom of expression is a fundamental human right essential to a functioning democracy. Copyright should encourage more speech, not act as a legal cudgel to silence it.

You will not find a remotely-qualified copyright advocate who does not criticize the misuse of copyright to remove, or otherwise silence, material that is not properly the subject of copyright infringement.  Yes, people who don’t know what they’re doing abuse systems like the DMCA notice & takedown procedure in order remove material they should not.  The irony here is that the EFF is often responsible for the kind of copyright confusion that leads to a variety of mistakes online.  This is a classic example of the anti-copyright crowd’s “few bad apples” approach to public policy, advocating that the exception should change the rule.  Because here’s a pro-tip:  it is really hard to find a copyright-owning artist who is opposed to freedom of expression.

Tuesday: Device and Digital Ownership. As the things we buy increasingly exist either in digital form or as devices with software, we also find ourselves subject to onerous licensing agreements and technological restrictions. If you buy something, you should be able to truly own it–meaning you can learn how it works, repair it, remove unwanted features, or tinker with it to make it work in a new way.

Here, the EFF refers to Section 1201 of the DMCA and its non-circumvention protection of the copyrighted software that runs devices and machines.  What they tend not to mention is that this is a much more complex conversation that extends way beyond the realm of copyright.  For instance, “tinkering” with tractors and other machines has environmental and safety implications that are the purview of federal regulatory bodies that have little to no relationship with the U.S. Copyright Office.  

Sure, the products we buy belong to us, but that doesn’t mean we get to disable catalytic converters or safety features; and even where the right to “tinker” may seem reasonable, copyright may not be the legal barrier in play. Your beef could be with the DOT.  Relatedly, the EFF fails to mention that the Copyright Office has generally agreed with petitioners seeking to circumvent TPM for research and other types of fair uses.  On TPM and 1201, EFF is often guilty of committing lies of omission in order scapegoat copyright; and this includes failing to mention that, absent these provisions, popular means of consuming creative works on digital devices would not exist.

Wednesday: Public Domain and Creativity. Copyright policy should encourage creativity, not hamper it. Excessive copyright terms inhibit our ability to comment, criticize, and rework our common culture.

Granted, the word “excessive” is an opinion and not a false statement.  Though, as pointed out numerous times, including in yesterday’s post, nobody has yet demonstrated with empirical data that current terms are doing any harm to creativity.  To the contrary, creative activity—both amateur and professional—has grown since passage of the CTEA in 1998.  Still, in the body of the EFF post, it says the following:

“In an example of how large media and entertainment companies successfully make copyright laws for themselves, they prefer to have control of things long after the people who actually created them have passed away. They successfully lobbied to have the term of copyright extended, essentially keeping the public domain from growing for decades.”

THAT is a lie.  Yes, the big studios et al did favor the 20-year term extension of 1998, but it was not remotely a law they “made for themselves.”  This is a matter of record, and you can even can look it up using this thing called the internet.  The U.S. term extensions were solely a matter of America catching up with terms adopted, in some cases more than 100 years ago, by European and other trading nations. The EU added 20 years in 1993, so the U.S. did likewise five years later.  I know it’s boring because there’s no villain in that story, but that’s how it happened.

Thursday: Safe Harbors. Safe harbor protections allow online intermediaries to foster public discourse and creativity. Safe harbor status should be easy for intermediaries of all sizes to attain and maintain.

Apropos what I just said about the term extension, Section 512 of the DMCA was a copyright provision the online service providers “made for themselves,” and in the late 1990s, when AT&T, Verizon, et al sought this liability shield it was not an unreasonable request.  But during the two decades since that time, platforms like YouTube (speaking of corporate giants) have been at liberty to monetize the unequivocal and chronic infringement of copyrighted works solely because of the “safe harbor” provision.  And every attempt to correct that aberration of Section 512’s original intent has been met with hysteria by the EFF and others, declaring that the internet will break, free speech will die, and other tales of terror.  And, ironically enough, that brings us to EFF’s Friday bullet point …

Friday: Filters. Whether as a result of corporate pressure or regulation, overreliance on automated filters to patrol copyright infringement presents a danger to free expression on the Internet.

You know what’s funny about EFF’s (and others’) shuddering at the prospect of “filters” to identify copyright infringement?  It was exactly what the OSPs proposed in the 1990s as a counter-balance to the aforementioned safe harbors they were seeking!  I’ll take the liberty of paraphrasing, but they essentially said, We should not be responsible for our users’ infringements, and if granted this liability protection, we will work to develop technical measures to weed out and mitigate infringements.  That’s not just my opinion. As a direct result of the OSPs’ reference in this regard, Congress fully expected rightholders and service providers to collaborate to develop “standard technical measures.”

But now that we’re more than 20 years down the road, and the major internet platforms are insanely wealthy and powerful, the technical measures their OSP forebears proposed (and which were never implemented, by the way) are now deemed by EFF et al as a threat to the internet and free expression.  And not surprisingly, some of those chickens are lately coming home to roost, as we see the paragons of digital-age creativity—the YouTubers—discover that they don’t really like their work being ripped off either. And so YouTube responded how?  By implementing a new technical measure called Copyright Match.

If you’re looking for a competition of ideas on copyright, then read the various scholars who debate its core principles and mechanisms.  If you’re looking for basic facts, check the Copyright Office website.  And if you’re looking for PR messaging that misleads, confuses, and frightens the hell out of people for no reason, then by all means the EFF is the goto source for you. Because what they really hope one day to celebrate is Copyright Weak.  (Speaking of which, when is National Dad Joke Day?)

*From the motion picture My Cousin Vinny (1992).

How Valuable Are Works That Have Lost Value?

Picking up on one of the big copyright themes of the month—the re-opened public domain*—scholars James Boyle and Jennifer Jenkins were hosted last week by Joshua Johnson on his show 1A, produced by public radio station WAMU in Washington, D.C.  Boyle and Jenkins are leading members of the Center for the Study of the Public Domain at Duke University Law, and, as one might guess, advocates for shorter terms of copyright protection.  A number of topics unrelated to the public domain were covered, but I want to focus on the central theme the professors bring to the discussion.

Using the metaphor of the iceberg, Boyle and Jenkins tell us that better than ninety percent of works under copyright have lost market value—that, in fact, most works lose their market value well within twenty years after publication.  Based on these data—assuming we can take them at face value—they assert that copyright’s term of protection serves some “two percent” of works while doing a disservice to society by “locking up” the lion’s share of works that no longer even generate revenue for their authors.  

From these premises, they derive the conclusion that copyright is failing in its purpose to “promote progress” by sequestering a vast trove of material that might be used to produce new creative works and/or may be useful for libraries and archives. In this regard, I believe they overstate the value of the public domain for new authors while taking the wrong approach to solving a legitimate challenge for librarians.

The Public Domain and New Authorship

The view promoted by Boyle and Jenkins is over-reliant on the generalization that creators build upon works that have come before.  This is certainly true, but not necessarily in ways that can be taken so literally as to assume that authors need a certain volume of works in the public domain the way a farmer needs a certain amount of nutrients in the soil.  

Only a segment of creators at any given moment seek to use existing works in ways that implicate copyright; and a portion of those uses can still be accomplished through licensing.  Add to this the lion’s share of creative production that neither considers nor conflicts with existing copyrights, and it’s little wonder that what data we have reveal a general increase in creative output, even after the term extension of 1998. 

The “shrinking public domain” narrative with regard to new creation is hard to reconcile with, for instance, IIPA reports that continue to show growth year after year in the core copyright sectors.  And, as noted in my last post on this topic, when it comes to enforcement, copyright critics never fail to mention that we’re enjoying more creative output than ever before. So, clearly, authors are not choking on the lack of PD material in the air.

Mapping the Works Under Copyright

Meanwhile, if there is value to the “iceberg theory” Boyle and Jenkins present, it begs important questions on its own. The reality that most works produced in any given period (regardless of copyright) lose market value fairly quickly is both obvious and, quite possibly, irrelevant.  For instance, out of that large mass of submerged iceberg, how many works are so inherently transient as to be of little to no discernible cultural value?  How many diet books, romance novels, auto-repair manuals, self-help guides, exercise DVDS, etc. comprise the ninety-plus percent of “locked up works”?  I don’t know that answer either, but it should be addressed before anyone slings around big numbers for dramatic effect.

In his book (and I admit to not yet reading the whole thing), Boyle insists upon the need for empirical evidence thus:

“I want to offer a suggestion that in any other field would be stunningly obvious, boring even, but in the funhouse mirror of intellectual property appears revolutionary. We should make our policy based on empirical evidence of its likely effects and there should be a formal requirement of empirical reconsideration of those policies after they have been implemented to see if they are working.” 

That being the case, Boyle should agree that it is not sufficient to refer generically to “what creators might do” with works that fall into the public domain that they might not otherwise have done while the same works were under copyright.  Most articles and blogs on the subject tend to be tautological.  Look at what could be in the public domain!  Copyright on a work could last over 120 years!  Copyright terms started as 14 years with a 14-year renewal in 1790!   All of these sparkly bullet points, or tweets, are attractive to the already copyright skeptical, but none of these statements demonstrates how the current term is too long.

Addressing a Real Need

All that said, there is indeed a subset of zero-market-value works under copyright for which there is a clear social interest, and which Boyle and Jenkins address in their overall advocacy.  Where libraries or archives have obtained an interesting collection of works—say a body of obscure sound recordings from the 1930s and 40s—the institutions are frustrated by the fact that the uncertain copyright status of these works makes them apprehensive about building what could be a very useful online archive.

The inability to identify the rightholders in these cases (a.k.a. the “orphan works” problem), combined with the duration of copyright leaves the library or institution stranded.  And, as per the “iceberg” metaphor, these works aren’t making anybody any money anymore, so the fact that they’re captured by copyright functionally contradicts copyright’s purpose to “promote progress.”

I agree with this complaint in principle, and so do many copyright advocates.  But focusing on the length of terms to solve the issue is both wrongheaded and a needless waste of resources.  If we first acknowledge that the librarians’ problem in this case is actually the result of a relatively new opportunity (i.e. making works widely available online), this reframes the conversation in context to historic precedent whereby carve-outs in the statute have been made specifically for libraries, archives, and other non-commercial, public-serving institutions. 

Because American copyright terms match those of the 175 other signatories to the Berne Convention treaty, a stubborn agenda aimed at shortening those terms is almost certainly a futile exercise; and even if some incremental “victory” were achieved (i.e. reverse the 20 years since the CTEA), this would not entirely solve the uncertainty/orphan problem for all those works the libraries and archives would like to make available.  It is politically and pragmatically more realistic to collaborate with copyright interests with the aim of carving out a new, digital-age exception based on the class of user rather than the duration of copyright on the various works in question.  

Likewise, returning to Boyle’s and Jenkins’s iceberg narrative, it would probably be easier, and more useful, to advocate a new statutory exception for libraries et al than to attempt to correctly map the universe of non-market-value, copyrighted works and then try to demonstrate—other than by leap of faith—how those tide pools of sequestered material are in fact stifling the creative growth of the nation.  As stated, it’s a very hard case to make against the backdrop of the visible part of the iceberg—a body of works under copyright, and with market value, that is already larger than the average person can experience in a lifetime.

*January 1 was the first day that copyrighted works entered the public domain since passage of the term extension in 1998.