Tag: Featured

I Never Met a Verse (Quoth the Raven)

Once upon a blustery gray morn, while eyes wandered, red and worn,
'cross many a scant and useless postings of the social roar--
While I emojied, barely reading, suddenly there came a greeting,
As of someone gently pleading, pleading like a friend of yore.
"'Tis some outsider," I assumed, "greeting me like friend of yore--
     Only this and nothing more.

It was surely in late October, and I was doubtless still hungover,
And each withering leaf of ochre dissolved to mulch outside the door.
Futilely, I blessed the season--vainly had I hoped for reason
From those who had engendered treason--treason from within our shores--
Lest the rare and delicate nation devolve to dire civil war--
     Faithless here for evermore.

But then, my session nearly ended, I acquiesced to be new friended
And thus, appeared a surly Zuckbird, oh so smugly as before.
Not the least attention paid me, neither Like nor Love he gave me,
But with air of heir apparent deigned he to pretend we had a fine rapport--
Sat upon his throne of billions, presumed we had a fine rapport--
     Winked and grinned and nothing more.

Then this arrogant bird ensnaring my dour fancy into sharing,
By the complacent and insincere demeanor that it wore,
"Though his control of Algorithm assumes we must all be with him--
Weaselly snide and craven man-child programming us to deplore--
Tell me what his worldly aim be, what it is he searches for!"
      Quoth the Zuckbird, "Ever more."

How I marveled the shameless bird could hold itself blameless,
With its answer all but aimless--no acknowledgement it bore;
One can only gape and wonder at such blindness to a blunder,
And all that had been torn asunder, no intention to restore--
But to speak the same old cautious words insisting we ignore.
     And thus, provide it ever more.

Still the Zuckbird, nested safely in its gilded cage, spoke bravely,
Only of unfairness, namely all the leaks of information it abhorred.
Little else did it yammer--and one could hardly help but stammer--
Or even quite forgive the grammar, when rather than ideas explore,
The shrouded boy only upped the ante, as his flock had always done before.
     Quoth the Zuckbird, "Ever more."

Trump Claims “Absolute Immunity” in Eddy Grant Copyright Suit

When I wrote about the Grant v. Trump copyright case on October 1, I was wrong about one thing:  that Team Trump would quickly settle the matter as a relative storm in a teacup within the legal tornadoes swirling around the ex-president. But I should know better. Because of course the law works in mysterious ways in Trump’s mind, including one important theory he continues to advance against all claims civil and criminal—namely, that having attained the presidency, he is henceforth immunized against all liability for the rest of his life.

After failing to obtain a dismissal in musician Eddy Grant’s copyright infringement claim against Trump and the campaign, Trump’s answer filed on October 18 asserts five affirmative defenses including “absolute presidential immunity.” Yes, Donald Trump throws this expression around like he’s flinging holy water at vampires because he has never quite shown that he understands the distinction between the office and the office holder. In a Lawfare article explaining why the former president should not be immunized against civil suits arising out of the Jan. 6 insurrection, Dayna Zolle writes, “The Supreme Court has stated that the president’s power to act ‘must stem either from an act of Congress or from the Constitution itself.’”

As a matter of law, there is a separation between the official duties of an incumbent and his reelection campaign. West Wing fans may remember that Sorkin’s President Bartlett was such a stickler for this rule that he refused to call potential campaign donors from within the Oval Office. And although Trump has consistently tried to erase the line between campaigning and governing, he has no reason to expect that any court will be persuaded that the use of “Electric Avenue” by Trump for President was encompassed within the “outer perimeter” of the official duties of then President Trump.

Nevertheless, the fact that the absolute immunity defense was even presented in Grant reprises the discussion I began in my first post about this case, when I asked whether unlicensed uses of works for political messages should tilt away from fair use under factor one in deference to the copyright owner’s speech rights. Because regardless of the legal veil that exists between a campaign and an office holder, that separation is muddier in the lingua franca of politics in general. And this is one reason why Trump in particular provoked an unprecedented number of musical artists to demand that he not use their songs at his rallies.

Although Trump is wrong as a matter of law about his eternal immunity, it is true that campaigns are about official policy, even if they are not official acts—especially campaigns by incumbents. Thus, to the extent that a Trump 2020 rally was an extension of the administration, that is all the more reason why songwriters or artists have an inherent moral right to assert their non-participation, if that’s how they feel. As Mick Jagger told the BBC about demanding that Trump stop using “You Can’t Always Get What You Want,” to close rallies, “It’s a funny song for a play-out song—a drowsy ballad about drugs in Chelsea. It’s kind of weird.”

The weirdness of Donald Trump notwithstanding, moral rights is a subject of IP law, which is more explicitly codified in various copyright statutes around the world than in the U.S. The one exception is the section of the American statute called VARA (Visual Artists Rights Act), which includes certain prohibitions against destruction of visual works and/or uses of those works in ways that may harm the artist’s reputation.

Moral rights encompass those aspects of copyright which are intertwined with the author’s identity, and although the U.S. is not strictly a moral rights jurisdiction, I would argue that the essence of those protections is baked into the exclusive rights under §106 because the author does not need a reason to reject a license to use a work. Simply disapproving of a proposed use—including the possibility that the author hates the breathing guts of a political figure—is sufficient grounds to deny the would-be user a license. And the rightsholder need not explain himself.

Further, if Trump were correct that campaigning is coextensive with governing, then unlicensed uses of works would be tantamount to compelled speech—at least in principle—because the campaign related conduct would meet the standard of state action necessary to implicate the First Amendment. Whether the use of music at a rally or synched with a video would be considered using the speech of the author(s) without permission is arguably a case-by-case consideration. But music is an especially powerful medium in this regard. When a sound recording is played at an event to animate a crowd into action which the artist passionately opposes, the offense may be deeply personal and has nothing to do with the economic utility of the artist’s copyrights.

So, I doubt Trump’s immunity answer in this case will do him any good, and perhaps the campaign will ultimately settle with Grant since the damage award would still be a tiny slice of the Trump defense fund pie chart. But even the folly of the argument contains a little slice of truth—that the boundary between campaign and official conduct by an elected official is often hazy and semipermeable. But if that is relevant at all, it is grounds to afford authors greater, not lesser, protection against involuntary participation through uses of their expressive works for political purposes.

On Fixing Social Media: Why Fear Unintended Consequences?

In an excellent post on the blog Librarian Shipwreck, the author reminds us to take a more expansive view of the so-called Facebook problem. The article lands direct hits on most of the big nails (for instance, that we cannot trust Facebook to fix Facebook), but perhaps its most critical observation is the one about a difficult conversation we are not having at all.

As mentioned in my recent post, it is hard to imagine that Congress will not soon adopt legislation prohibiting social platform practices which are believed to directly aggravate health hazards among teens and tweens. That’s where the “Big Tobacco” analogy holds up, but also (I suspect) where it ends. Mitigating specific dangers, like algorithms that foster platform addiction or removing disinformation and conspiracy peddlers, is all necessary, but also low-hanging fruit on the edges of a dense, untamed grove into which few of us wish to venture. As Librarian puts it:

Too often it seems that we are singling out companies like Facebook for invective so that we don’t actually have to talk about our society’s reliance on computers and the Internet. Thus, Facebook gets held up as the scoundrel that is responsible for quashing the utopian potential of computers and the Internet—a potential that will be surely redeemed by the arrival of Web3. Yet the fantasies about Web3 sound very similar to the fantasies that originally surrounded Web 2.0 which in turn sounded a heck of a lot like the fantasies that had surrounded the original Web which in turn sounded a heck of a lot like the fantasies that were first spun out about personal computers which in turn sounded a heck of a lot like the fantasies that were first spun out about computers. The danger here is that we are vilifying Facebook (villain though it surely is), to save us from having to think more deeply about computers and the Internet.

If I may be so rude as to compress that:  Librarian makes the unimpeachable argument that Bullshit 3.0 is just a faster version of Bullshit 2.0. The bullshit in this case is the belief that the internet is, or ever was, something transcendent. Because at the same time that Barlow was scribbling the hubristic Declaration of the Independence of Cyberspace, money—a lot of money—was changing hands on the promise that somehow, someday, networked computers would be a more efficient way to sell soap. 90s-era conversations about targeted advertising asked whether consumers would tolerate the privacy invasions necessary to achieve those aims, and eventually, Google and Facebook proved that our transition into that brave new world could be almost frictionless.

The dream of an internet that operated ethically, yet beyond the laws of “weary nations”—a dream the utopians lament as having died sometime in the last several years—was never alive in the first place. That supposed goldilocks period, often referred to as the wild west, was not a brief glimpse of the web as it was meant to be, but an interlude of disarray and experimentation on the backend, while a whole generation played the role of lab mice on the frontend. And, sure, it seemed idyllic; the digital natives were all children.

It turned out that we were not very resistant to the internet crawling into our private lives while teaching the machines to “know us better than we know ourselves,” as former Google chairman Eric Schmidt liked to say. And arguably, we crossed that threshold so easily for two main reasons:  1) because the features and conveniences these companies provided were initially cool and then indispensable; and 2) because we did not believe, or even imagine, how hazardous the bargain would be.

It is an understatement to say that we are currently brimming with proposals to “fix” social media—especially Facebook—and that overstuffed suggestion box naturally provokes the industry lobbyists and “digital rights” groups to rally in defense of the status quo and to warn against “unintended consequences” that could result from one mandate or another. But this fearful narrative is predicated on the assumption that the status quo is acceptable, if not very good. On the contrary, social media’s CV comprises a dark litany of unintended consequences with virtually no oversight of the people running the experiment. And the items in bold on that list are nothing short of disastrous.

Who really anticipated that when we started connecting with old friends and sharing snapshots, that we were feeding data into a machine that could, and would, be used to foment a genocide in Asia or animate enough conspiracy theory to rattle the foundations of liberal democracy worldwide? Every problem caused by social media is an unintended consequence. At least it better be. As whistleblower Frances Haugen opined in her testimony on Capitol Hill, “I don’t think at any point Facebook set out to make a destructive platform.”

That’s probably true. So, if the toxic results of social media are unintended, let’s not be too timid about whatever new unintended consequences may result from efforts to address those problems. To Librarian’s point, we should instead step back, rewrite the premise, and have that “deeper conversation about computers and the internet” by rejecting the belabored lexicon of superlatives used to describe cyber life as something approaching the spiritual. It isn’t. It never was. And as a putative catalyst to “make democracy work better,” it’s a total bust. But to be fair, it is a pretty sophisticated way to sell soap.

Photo by: evgenyyjamart