Tag: Featured

Can We Hope to Sensibly Reform Section 230?

In a paper published in 2020, [1] scholars Danielle Keats Citron and Mary Anne Franks advocate a relatively modest and elegant approach to amending Section 230 of the Communications Decency Act of 1996—changes that would directly help the statute’s unintended victims—but it is difficult to imagine how any nuanced consideration of the 230 issue will make headway in the current political climate.

At one extreme, the Former Republican Party (FRP) has amped up “Repeal 230” into a buzzy talking point with no practical or legal merit whatsoever; while shouting from the other side of the vortex is the internet industry and its network of supposedly progressive groups, who insist that the status quo of 230 is the keystone in the entire internet ecosystem. One behavior these seemingly opposite forces have in common is that both have exploited the misconception that Section 230 has something to do with viewpoint neutrality. It does not. Neither by the letter nor the spirit of the law.

To recap, there are two main parts to Section 230 under the “Good Samaritan” clause. The first states that online service providers will not be considered “publishers” of material provided by other parties. So, whether you or I or the NYT posts something on Facebook that is potentially harmful, and also unprotected speech (e.g. defamation), Facebook is shielded from potential liability resulting from that material. The second part states that when a platform engages in moderation and removes “objectionable material,” this does not render the platform a potentially liable “publisher” either. And it does not matter whether “objectionable material” comprises illegal content (e.g. child porn) or simply material the platform proscribes according to its own terms of service.

Nothing in the 230 statute states, or even implies, that service providers are limited by the speech right—indeed, as private entities, it is their First Amendment right to moderate as they wish—or that they are obligated to maintain viewpoint neutrality as a condition of the liability shield. That said, it was the platform operators themselves who promoted the false narrative that social media sites are the shiny new “engines of speech” right up until 2016, when “objectionable material” (mostly in the form of dangerous misinformation) steadily became the largest plank in the platform of what used to be the Republican party. Meanwhile, the real victims of Section 230’s unintended consequences may continue to be ignored amid the storm of insanity encircling this one fragment of cyber law.

Simply put, Section 230 is the reason why online platforms may not be held liable when their operators host, or even encourage and monetize, any of the following:  nonconsensual pornography, child sexual abuse material (CSAM), libel and defamation, hazardous misinformation, organized hate groups, harassment, or incitements of violence. And while vested interests play rhetorical games with the allegedly blurry lines between speech and any of that material, Citron and Franks first advocate clarifying that ambiguity by striking the word information from part one of the statue and replacing it with the word speech.  “The revision would put all parties in a Section 230 case on notice that the classification of content as speech is not a given, but a fact to be demonstrated,” states their paper.

Unlike “information,” protected “speech” has a legal definition rooted in case law, and at least some of the aforementioned categories of material would never qualify as speech under legal scrutiny, while others (e.g. hate speech) would be subject to review on a case-by-case basis. Perhaps most importantly, what this single word change likely accomplishes for, say, victims of harassment, is that it would more frequently induce a platform to remove harmful material, either voluntarily or by court order, rather than choose to litigate to try to prove that the harmful content is protected speech. As things stand, almost everything online is presumed to be speech. So, if a party uses any intermediary, from Twitter to a dating app, to cause even severe harm to another party, the intermediary is under no obligation to provide relief by removing the content. And most courts have held that 230 supports this position.

Under this one-word revision, if a platform knowingly continues to host allegedly actionable material, the platform voids its presumption of immunity, which does not mean it is necessarily liable for any harm. A complainant still bears the burden to prove the merits of a complaint just like any other case, but the platform would not automatically be indemnified at the summary judgment phase of a case. Meanwhile, the only form of relief many complainants ever want is removal of the harmful content, and not necessarily a damage award from a platform that otherwise does the right thing.

In that regard, if a platform unknowingly hosts potentially actionable content, as almost any platform inevitably does, Citron and Franks advocate another modification to 230, requiring that a platform demonstrate that it maintains a “reasonable,” ongoing practice of removing objectionable material upon notice or independent discovery of the problematic content. [2] “If adopted,” their paper states, “the question before the courts in a motion to dismiss on Section 230 grounds would be whether a defendant employed reasonable content moderation practices in the face of unlawful activity that manifestly causes harm to individuals.”

This reasonableness standard would presumably accomplish two things:  first, it would provide the many platforms operating in good faith with the kind of liability protection intended by Section 230; and second, it immediately voids the liability shield for those platforms that intentionally operate as Bad Samaritans. Sites that purposely trade in libel and defamation, nonconsensual pornography, harassment (and quite possibly hate-speech and incitements to violence) would no longer be able to duck behind the Vibranium shield they have been wielding to avoid being named parties in a litigation. In many cases, this requirement to demonstrate a “reasonable” moderation policy would probably obliterate the business models for sites that intentionally profit from the misery of others, and I fail to see a downside in that outcome.

Of course, amending 230 requires an act of Congress, and there’s the rub. Not only will Silicon Valley throw its considerable resources at campaigns to leave the statute untouched until doomsday, but step one proposed by Citron and Franks—replacing information with speech—runs head-first into the existential crisis we currently face as a nation. Political speech is paradigmatically protected speech, arguably the most sacred of all forms of protected speech. But at present, one party has decided that its political speech shall embrace an insurrection of lies, outlandish conspiracy theory, and even violence against the very foundation on which the speech right itself is written. Whether we survive that paradox is a much bigger question than internet governance, but for the everyday victims of Section 230, it would be grand if we could address what is legitimately wrong with this law.

[1] “The Internet as Speech Machine and Other Myths Confounding Section 230 Reform,” University of Chicago Legal Forum (12/01/2021). https://legal-forum.uchicago.edu/publication/internet-speech-machine-and-other-myths-confounding-section-230-reform

[2] As the paper states, this proposal originates with Citron and colleague Benjamin Wittes.

Vortex image by: sondem

About Quoting Song Lyrics in Books

As a member of the Authors Guild, I occasionally peek at the discussion board, and any topics pertaining to copyright naturally get my attention. It appears that a common question among authors of both fiction and nonfiction is whether they may quote song lyrics in their books. Further, it seems that a typical experience for many writers is that they will seek permission to quote the lyrics, but upon doing so, are presented with licensing fees so high that they wind up removing the quotes from their manuscripts.

Don’t get me wrong. I am obviously an advocate of permission and licensing when appropriate. But quoting lyrics, or anything else, in a literary work at least implies a consideration of fair use, and it would be a shame if book authors consistently avoid perfectly good quotations for fear of being sued. So, with the understanding that fair use is a case-by-case analysis, I offer the following general thoughts (i.e. not legal counsel) for authors to consider, organized according to the four-factor fair use test.

Factor One – Purpose of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.

Right off the bat, assume the purpose of your book is commercial. Do not fall into the trap of thinking that a textbook or guide to cheesemaking or whatever is “educational” in a fair use context and, therefore, not commercial. If it’s going to have a price tag on it, it’s commercial. If not, ask your attorney. Though this is not the primary consideration with regard to quoting lyrics.

More importantly, factor one of the fair use test happens to pose the first question that any author should ask herself when quoting lyrics in the first place:  Why am I doing it? Interestingly enough, the legal considerations here can be instructive to the writing. For instance, do you or your characters comment in some way upon the lyrics (e.g. their meaning, lack of meaning, cultural influence, loss of relevance over time, etc.)? If so, commentary is a paradigmatic purpose of fair use. So, if you (in a nonfiction work) or your character (in a fictional work) speculates as to whether there might be, say, euphemistic meaning in the lyrics of “Spaceball Ricochet” by T Rex, that purpose favors a finding of fair use.

A purpose that may be less favorable to a fair use defense would be a use in which you are over-reliant upon the lyrics to do the heavy lifting in your writing. For instance, if your characters enter a party and instead of simply writing, “Low was playing on the stereo,” you write out several lines of that song’s lyrics as a mood-setter (almost like a soundtrack in a film), the rightsholder of that song could argue that this not a fair use under factor one because you are relying on the songwriter’s expression without adding anything new like commentary. (I also just implicated factor three, but let’s not jump ahead.)

Factor Two – The nature of the copyrighted work.

At least with respect to the jurisprudence on copyright to date, factor two is very straightforward for the book author quoting song lyrics. Principally, this factor asks whether the work being used is expressive or informational. By definition, even the most informative jingle is expressive because lyrics are arranged in the form of verse. In a fair use analysis, this one likely goes to the songwriter every time, but since factor two is often treated like the red-headed stepchild of the fair use test (inappropriately so in many cases), it would likely be weighed as null with regard to quoting song lyrics in most cases.

Factor Three – The amount and substantiality of the portion used in relation to the copyrighted work as a whole.

This would likely be the most important factor in a fair use consideration in this context, but may also be controlled by the fact that, as a writer, you probably do not want to quote too much of a songwriter’s work. While there is no standard percentage of copying that favors or disfavors fair use, the factors to consider are: how much you quote relative to the entire work, whether you quote the least amount necessary to your purpose, and whether you have quoted the “heart” of the work.

To expand on that, quoting a line or two from a typical song is very likely in your favor under factor three. But, going back to why you’re quoting the song in the first place, it is worth asking, both legally and creatively, whether you’ve quoted only the amount needed to meet that purpose. Finally, think of the “heart” of a song as the most widely recognizable aspect of it, which is often going to be the refrain or some portion of the refrain. That does not mean the heart of the work is off limits for fair use; but it is worth keeping in mind that you could copy the heart of a song with a relatively short quote.

Factor Four – The effect of the use upon the potential market for or value of the copyrighted work.

Good news! Just like factor two would almost always favor the songwriter, factor four almost always favors you. In fact, it is nearly impossible to imagine how quoting lyrics in a book could serve as a market substitute, or otherwise harm the value, for a license in a song. But do not confuse “harm the value” with “adverse effect” on the market for the original work. You could write a scene in a book in which you quote a lyric and comment upon it in a way that harms market interest in the song, and that is NOT what the fourth factor in the fair use analysis looks for. If your criticism, through fiction or nonfiction, turns readers sour on another creative work, that may piss off the other creator, but it is in no way actionable under copyright law. (And as long as you don’t commit libel or defamation, it isn’t actionable at all.)

Other Limits on Copyright

Although factor three weighs the “amount used” question under fair use, there are other limits under copyright that are related to amount used, and which may also protect the author quoting song lyrics. De minimis use literally means that you use such a small amount of a work that there is no need even to consider infringement or a fair use defense.

Short phrases are not properly a subject of copyright protection. So, what lines do you intend to copy, and how original are those lines standing alone, if you did not tell your reader that a song is present in the scene? You might write the words love stinks in a context that evokes a song by that name such that the phrase has double meaning in your writing, and that should not implicate a need for a license from the songwriters.

Finally, scenes a faire is the doctrine that commonly used elements are not protectable. So, when I wrote above that factor two is “treated like the red-headed stepchild,” the estate of Warren Zevon has no grounds for a complaint just because almost that exact line appears in his song “Dirty Little Religion” (which is definitely not about the fair use doctrine). “Red-headed stepchild” is a commonly used metaphor which nobody may own through copyright.

While book authors should be judicious when quoting song lyrics—and this rule probably applies more to the writing than the legal questions—it should not be necessary that the writer’s default is to abandon an otherwise clever or poignant use of a lyric quote out of fear of litigation. One problem is that once you ask an agent or anyone whose job it is to collect fees, you’re probably going to get a price quote, but that party may not have any idea how you are using the lyrics.

Before even approaching the copyright owners in this situation, it may be worthwhile to get an analysis from qualified counsel in your corner in order to make informed decisions about what to quote and how; and you might even consider having a fair use analysis written to keep on file in case of potential conflict or to present to a publisher. After all, songwriters’ attorneys are well aware that their clients rely on fair use all the time. So, why shouldn’t book authors?

Blue Q Making the World a Happier Place

If you’ve ever wandered into an independent bookshop or specialty retailer and discovered a rack of socks with fun designs, proclaiming things like “I’m a Delicate Fucking Flower” or “Quiet I’m Introverting,” those are products made by Blue Q, a Pittsfield, MA company whose motto is We just want you to be happy. At the very least, something in their line of socks, oven mitts, dish towels, personal care products, or bags will probably make you smile. Or more to the point, when you discover Blue Q’s stuff, you’re likely to think, “I know exactly who needs this.” And that’s the whole idea.

This year’s World IP Day focuses on small and midsize enterprises (SMEs) and the role intellectual property plays in these important ventures. Small businesses generate approximately 44% of U.S. economic activity,[1] and COVID-related job loss has spawned new entrepreneurial ventures, many of which are apt to rely on one or more type of intellectual property. For instance, Blue Q owns hundreds of copyrights in the graphic designs that appear on its sassy and sardonic products, and that IP is the foundation of a thriving, fun, diverse, and highly supportive place to work. After all, how dour and corporate can you be while shipping out products with statements like “This Meeting is Bullshit”?

Accidentally in the Gift Business

“We were originally going to make home lighting fixtures,” says co-founder Seth Nash, who was looking to start a business with his brother Mitch in 1988. “We rented a studio in Boston, and we happened to have this cardboard cat on the floor that we made by cutting out a photograph from a print ad for the Canon Cat word processor and then backing the image with cardboard and attaching a little easel to it so it would stand up. All our friends who came over to look at our lighting ideas kept saying how real the cat looked.”

Blue Q’s first product.

And that led to what Nash calls the “stupid idea” to make a bunch of cutout cats, which they could sell and then invest the proceeds into the lighting business. The brothers tracked down the photographer, Manny Denner, who had shot the Canon ads and bought the license for one of the outtake photos, which Nash says Denner was happy to sell cheap because he thought the cat idea was so dumb. “We printed 40,000 and took them to the New York Stationery Show, and suddenly, we were in the gift business, we just didn’t realize it yet.” It wasn’t long before Seth and Mitch quit their jobs to answer phones and fulfill the number of orders they were getting for the product they had dubbed “Flat Cat.” It was the only product for the first 6–8 months of the business, and today, visitors to the Blue Q website can download materials and instructions to make their own “Flat Cat” or “Flat Fido.”

Thirty years later, Blue Q employs sixty-five people working in an airy, music-filled environment, and about twenty percent of the staff comprises persons with disabilities who work in assembly and packaging. The company offers profit-sharing, 401K plans, and health insurance; and a percentage of its sales from three product categories—socks, bags, and kitchen accessories—are converted into donations to Doctors Without Borders, The Nature Conservancy and other environmental initiatives, and hunger relief programs throughout the world. And everyone in the company is involved in the creative process.

First the Words

Much like TV writers’ rooms, Blue Q wordsmiths gather for summits to kick around ideas until they come up with long lists of aphorisms, epigrams, and zingers they think consumers might enjoy, selecting an average two phrases for every fifty to go into production. Meanwhile, the company is constantly searching the work of contemporary artists whose styles might complement the new copy and the product offerings for an upcoming season. “Nearly all the artwork is done by independent artists located all over the world,” says Bill Wright, company photographer and second in charge of operations. “It’s a marriage between the creative artist, the creative writer, and then everyone in the company gathering and seeing what goes best together.”

LEFT: Blue Q HQ, Pittsfield, MA. RIGHT: Members of the assembly and packaging team.

“Using outside artists wasn’t always our model,” says Nash, “but we realized that working with independent artists is the best way to keep the line fresh and flexible.” To support this process, Blue Q enters into a variety of license, royalty, and work-made-for-hire agreements, which means that although they are almost always the rightsholder of the final designs, there is usually an independent artist counting on the success of the products for part of her income.

“This Meeting is Bullshit” Men’s Crew Socks

Blue Q’s off-beat, occasionally foul-mouthed, but always lighthearted products sell to over 5,000, mostly independent, retailers in the U.S. and Canada, and the company sells internationally via distributors in multiple markets overseas. Although quirky design with attitude is what attracts Blue Q’s customers, it’s the quality of the products themselves that keeps them. These are not one-off gag gifts. The pair of socks with the private little joke hiding behind your cuffs also happens to be quite comfortable because Blue Q’s designs are woven into quality foot ware rather than printed onto cheap fabric.

“Socks began for us in 2013, and that was the category that really put us at the big kids’ table as a company,” says Paul Boulais, who works in sales. “They really increased demand from retailers for the Blue Q brand.” At the same time, however, socks are a category that is particularly vulnerable to counterfeiting via eCommerce platforms because it’s so easy to download and copy the designs and then print on-demand to make a quick buck at low volume. “You can’t easily copy one of our bags and sell those at low volume and make money,” says Nash, “but cheap, poor-quality socks are really easy to make and fulfill five at a time, if you want.”

As one would expect, Blue Q counterfeits are almost always produced and sold by Chinese operators, hosting retail “storefronts” on Amazon, eBay, Alibaba, etc. They invariably use Blue Q’s product shots, offering knockoffs at a fraction of the retail price, and quite often, the customer believes they’re buying the real thing. “Without a lengthy, expensive process,” says Boulais, “we don’t have the power to stop these people who ship counterfeits to Amazon, which then fulfills the orders. The customer thinks they’re getting something legit, and then what shows up is a very poor facsimile. And then we get negative feedback for it.”

Fortunately, Blue Q has two advantages when it comes to dealing with the potential PR fallout caused by counterfeits. The first is its base of loyal customers who “deputize themselves as IP agents,” reporting counterfeits the company does not have the time and resources to discover on its own. The second is a policy of making customers happy, like the motto says. “Even though we may not have been the ones to make you unhappy, we don’t want you to walk away and think anything bad about Blue Q,” Boulais says. “But Nash adds, “if they don’t already know Blue Q, it’s unfortunate. Socks are not a very expensive item, so customers don’t always know they’ve bought a knockoff. It’s worth it to make someone happy who’s been bamboozled, but we have to know about it.”  

Blue Q socks at Cocoon, New Paltz, NY

Because the vast majority of Blue Q’s business is wholesale—deep B2B relationships with brick-and-mortar retailers—they don’t see counterfeiting in the B2C online retail environment as a major threat to their bottom line. But that doesn’t mean they let it go. “We don’t want it to get out of hand and spread,” says Nash, “so we do spend considerable time, effort, and money shutting down infringements as we discover them.” In collaboration with their attorney,* Blue Q devotes resources just about every month to filing takedown notices or sending Cease & Desist letters to counterfeiters. And some of the most galling ones, Boulais notes, are the copyists who try to pass off Blue Q’s products as their own. “Just do your own thing, man,” he says, “We put a lot of time into coming up with that.”

And that is why copyright is essential for a company like Blue Q to exist at all. There is no IP that protects the idea of making products with fun designs and smart-ass comments on them. There is no trade secret to protect in the business model. No IP protects the capital or sweat investments themselves. And any good copyright nerd knows you generally may not copyright short phrases. Only the copyrights in the complete pictorial works gives Blue Q the exclusive right to exploit the output from their investments, and without that, the entire operation—which is clearly a major economic driver—simply would not exist. So, as far as my socks are concerned, “IP is No Bullshit for SMEs.”

[1] U.S. Small Business Association 2019.

*I happen to know Blue Q through their attorney, who is a personal friend.