Tag: Featured

Section 230 Review: Right Topic, Wrong Administration

I think Senator Blumenthal summed it up about right, as he was quoted in this week in the Wall Street Journal:

“I’ve certainly been one of Congress’ loudest critics of Section 230, but I have no interest in being an agent of Bill Barr’s speech police.”

In the post I wrote right after Trump threw a hissy fit because Twitter fact-checked him, I said that I have been worried about the platform responsibility narrative becoming grossly distorted by the nature of this administration. It’s no surprise that the laissez-faire policies of the major platforms, with regard to content moderation, were set on a collision course with America’s new reality-bending president.

As Trump’s unbridled contempt for facts, his tacit endorsements of hate groups, and his violations of core American principles morphed into official policy, it was inevitable that there would be a clash of conscience for at least some of Silicon Valley’s leaders and employees. They should have seen it coming but chose not to.

Instead, high on their own utopian, guardians-of-democracy rhetoric, and insulated by liability shields like 230, Big Tech refused even to consider how their grand experiment in speech absolutism, and the wisdom of crowds, might create a monster. So, when the beast finally broke out of the lab, they should hardly have been surprised that their futile efforts to contain it would only make it angry.

Of course Trump is demanding platform neutrality. Neutral is exactly what the platforms kept saying they were for years. Silicon Valley wants the platform liability shields left just as they are. And in defense of that status quo, they have long claimed, and largely maintained, a policy of “neutrality” with regard to user uploaded content. But this assertion, already dubious, became both untenable and dicey for Big Tech operators, when the worst abuser of their community standards became the federal government itself.

But let’s be honest. Most Americans, left, right, and center, agreed that neutral was the right gear for Facebook and Twitter et al. Never mind that neutrality is not the aim of Section 230. That’s just a pesky little detail about the law itself. But for years, Big Tech used the protection of 230 to justify “neutrality” and to evangelize that policy as allegedly protecting our speech rights. So, the maddening irony of the moment is that Trump is merely insisting upon the internet that everyone naively said they wanted — and many still say they want, even as the Republic seems to hang by a thread most days. So, stick that in your bong and burble it for a while.

There is no other way to frame the so-called political party conversation now. Anyone with a basic working knowledge of American civics and history knows that the current administration is neither Republican nor conservative by any reasonable definition of either of those terms. When Trump and his flock complain about “censorship of conservative views,” online, what they are referring to is moderation of potentially hazardous lies, conspiracy theories, incitements of violence, and hate speech. If those modalities are truly part of the Republican party’s new brand, we’re going to have a civil war of some kind, at which point there will be no need to worry about nuanced legislation like Section 230.

But as I said before, that’s a problem the Republicans will have to work out for themselves. They’ll have to decide, and soon, whether they are all-in on this cult of galloping ignorance, incompetence, and cruelty. Meanwhile, I see legitimate conservatives tweeting several times a day—and quite often to criticize Trump for what he has done to their party. Bill Kristol’s tweets aren’t being taken down, and last I checked, he’s pretty damned conservative.

In the meantime, what will unfortunately be obscured by all this noise are the very serious reasons why reasonable people of good faith seek amendment to the Section 230 liability shield. These include people like attorney Carrie Goldberg, whose Brooklyn law firm defends real victims of online exploitation and severe harassment, while the platforms enabling those crimes (even intentionally) remain shielded by Section 230. This is the kind of policy conversation we are supposed to be having. And we were having it, until Trump got involved.

It is a tragic irony that whiny old men put Section 230 on the table for their whiny old man purposes, when so many of the real citizens seeking reform happen to be (as usual) vulnerable women. For instance, after years of reasoned debate on ways to address revenge porn online, Senator Hawley introduced an amended bill, dated today, that does nothing for people who have suffered, or may suffer, real harm from the misapplication of Section 230. Instead, the Hawley bill is merely a reaction to claims of “politically biased moderation,” which is a euphemism for removing the toxic, conspiracy-laden bullshit spread by the current president. Because that’s where we are now.

Because many (if not all) of these new, reactionary proposals for 230 revision will seek to punish Silicon Valley for moderating the worst of Trump (and that’s saying something), it seems unlikely that any such legislation will make it through this Congress before the end of the year. By that time, if there is any hope left for America, this national nightmare will end, and the historians can get to work on the Bruegel-inspired pop-up books describing this era.

I have yet to review the June 2020 DOJ report on Section 230, and because that review started before this topic floated all the way onto Trump’s radar, it may contain some reasonable recommendations that go beyond political theater. We’ll see. But now that the 230 conversation has been subsumed by Trump’s personal beef with Silicon Valley, it’s just another side show in the circus. It would be nice if one day, sober heads can resume this important conversation. Now, all we need are some sober heads.

See also: Civil rights groups call for ‘pause’ on Facebook ads.

DMCA Hearings III (Part 2): Independent Creators Must Remain in the Foreground

How many times have comments about copyright included some variation on the theme “I would not pirate, if the revenue went to the artists instead of big corporations.”? Not only is this sentiment a fallacy based on ignorance about how the creative markets work, but these insincere claims to support the real creators ring especially hollow in context to those now advocating the status quo of DMCA Section 512 (a.k.a. the Notice-and Takedown system).

“…authors and small creators who are already struggling against the tide of tech disruption of the creative industries are excluded.”

I highlight these words from the testimony of Douglas J. Preston, President of The Authors Guild, because if the Senate Judiciary Committee hears one message in response to its inquiry about the Notice-and-Takedown system, it is this:  Section 512 provides no viable, sustainable remedy for the independent creator.

American copyright law’s first animating principle is to secure the exclusive rights of the individual author in order to provide an incentive to produce and distribute new works. One glance at Preston’s testimony, listing the number of domestic online platforms that currently support rampant book piracy, and it is easy to understand why no writer—or sole creator in any medium—can possibly afford to pursue infringement at the volume and speed at which it persists.

Google, eBay, Facebook, and LinkedIn are all cited in Preston’s account of the various ways in which authors are confronted with ads, links, or user-generated sources to obtain pirated digital copies of their books. “Google makes it particularly easy to get to these pirate sites and unknowingly buy pirated copies,” Preston states. 

Members of the committee should underline that sentence. Because those words unknowingly buy refer to a customer who does not intend to pirate (is not looking for a freebie) but has been misdirected by Google’s search engine toward the purchase of an infringing copy instead of a legal one. Nevertheless, Google and its industry colleagues have insisted upon the narrowest interpretation of their responsibilities under the terms of DMCA, while asserting in these hearings that Section 512 is working “as intended.”

Testifying on behalf of the Internet Association (an organization founded concurrently with the anti-SOPA campaign of 2011/12), Jonathan Berroya presents a picture of the DMCA operating very well for all parties. “The balance Congress sought to achieve in section 512 in 1998 is not askew,” he states. “Indeed, the legislative intent of fostering collaboration among stakeholders and the growth of a robust and innovative internet has been decidedly achieved, resulting in the development of cutting-edge solutions to infringement and other voluntary measures.”

Berroya could not have used the word collaboration more often in his testimony without it becoming unseemly. But after years in which the major OSPs grew their dominant market positions, partly by refusing even to cooperate with rightsholders, the Internet Association, can, at best, half-heartedly support its “collaboration” claim by pointing to various agreements among OSPs and corporate rightsholders (e.g. YouTube & major labels). And even this hodgepodge of imperfect licensing, tracking, and enforcement arrangements does nothing for independent creators, who lack the resources and opportunities that are available to industrial rightsholders.

This is why Mr. Preston’s presentation, on behalf of book authors, makes what may be the most salient point in the 512 review—that most creators act as their own copyright enforcement departments in addition to doing the work of authorship. Copyright law has always envisioned that the owner would enforce his own rights, but not at a scale of tens of thousands of infringements each year.

As I wrote in my first post about this hearing, the internet industry tends to bring generalizations and a litany of irrelevant talking points to a debate where independent rightsholders present both quantitative and qualitative evidence describing their actual experiences using Notice-and-Takedown. For example, the Internet Association highlights the value of the streaming market to the entertainment industry and consumers, which is true but largely unrelated to the question Congress is asking.

Aside from the fact that the streaming market has some bugs in it (e.g. songwriters are being clobbered by artificially low royalty rates engendered by the imbalance of the 512 immunity regime), the success of popular platforms like Netflix, Hulu, Amazon Prime, et al is not the result the Notice-and-Takedown/immunity provisions of 512. On the contrary, these types of platforms were fostered by Title I, or Section 1201, of the DMCA and are, therefore, a subject for a different hearing. Almost as irrelevant is the Internet Association’s attempt to misdirect the committee’s attention to foreign-based pirate sites …

“… it should be noted that most…infringement occurs overseas, beyond the reach of the U.S. Copyright Act. The U.S. government must keep up its pressure on foreign governments to pursue extraterritorial websites entirely dedicated to piracy and should avoid the temptation to subject legitimate platforms to unduly onerous standards because the most egregious offenders are out of reach.”

Although it is true that pirate sites operating overseas are the largest facilitators of mass infringement, the more relevant issue before the committee remains the substantial amount of infringement facilitated by some of the largest domestic platforms. And this includes facilitating access to foreign-based sites. As Berroya himself notes, the U.S. Copyright Act does not reach these foreign actors, which is one reason rightsholders have proposed various methods to starve these site operators of user access or revenue, or both. But to date, the major members of the Internet Association have spent millions in PR and lobbying dollars opposing every initiative in this regard, both in the U.S. and abroad.  

So, Berroya’s allusion to foreign piracy reads like another round of shell-game—one that is very familiar to rightsholders—in which the internet industry pays lip service to solutions like “keeping up pressure on foreign governments,” which they will then oppose through the very large public megaphones that they themselves own and operate. In some cases, even the aforementioned voluntary anti-piracy measures have been strenuously criticized by the “digital rights” groups whose funding comes from the same companies comprising the Internet Association.

Finally, echoing the sentiments of other critics, the Internet Association repeats the fallacy that the Copyright Office, in its Report on Section 512, neglected to consider “the public” as a stakeholder. Berroya testifes …

“While it is understandable that the Copyright Office would focus on the impact of section 512 on copyright owners and copyright law, an assessment of the DMCA safe harbors is incomplete without meaningful consideration of other values important to users, such as free speech, economic and cultural citizenship, and privacy.”

Although that sounds very pretty, it is more smoke fogging the debate. The speech right is not protected by online platforms, and copyright infringement is not protected speech. It is hardly conclusive that “economic and cultural citizenship” has been vastly improved by digital life for a majority of citizens. And with regard to privacy, most people can easily identify which members of the Internet Association have been caught invading privacy and abusing user data. Certainly, it is not the authors who are harvesting and selling data about millions of Americans. 

So, let us stay focused on the subject at hand, which is whether Notice-and-Takedown is working to balance the needs of OSPs and rightsholders. And let us not be distracted by references to online activity or technological developments that have little or nothing to do with the DMCA. It is hardly surprising that the Internet Association, with its membership of the wealthiest and most powerful OSPs in the world, claims that Section 512 is working as intended. No doubt it’s working beautifully for them.

But it is also not surprising that the members of the Senate Judiciary Committee sound skeptical about the fulfillment of 512. This probably has a lot to do with the fact that instead of merely offering platitudes about the value of creative works, authors present hard data showing how often those works are being pirated and by whom. From this evidence, it is very easy to see why no individual creator stands a chance against that tide, which explains why the internet industry would rather draw everyone’s attention elsewhere.

Photo by: fizkes

DMCA Review III – SJC Sounds Skeptical That Everything Is Fine

Yesterday afternoon, the Senate Judiciary Committee (part of it anyway) held the third hearing in its ongoing review of the Digital Millennium Copyright Act (1998). A handful of senators convened in the Rayburn building while witnesses testified via video conference.  The title of this hearing was Is the DMCA’s Notice-and-Takedown System Working in the 21st Century? Notice-and-Takedown is also referred to as Section 512, or Title II of the DMCA.

Given the extraordinary and terrible events currently gripping the nation, it appears that Big Tech tried to use the atmosphere of crisis in order scuttle this hearing. In the few days leading up to June 2, articles, blog posts, and social media comments began appearing, declaring that 1) Congress had more important matters to address; 2) that this hearing is emblematic of Republican callousness in a time of pandemic and national pain; and 3) that witness Don Henley of the Eagles is already wealthy and just seeking more money for himself.

In response to those accusations, people may take note that while Congress is focused on more urgent matters, they are also tending to a few smaller ones, and DMCA is just one of these. As for the accusation of partisanship, the Senators questioning the witnesses yesterday totaled two Democrats (Coons, & Blumenthal) and one Republican (Tillis), and any observer would be hard pressed to find much daylight between the two parties on this subject. As for accusations that Henley testified for his own sake, rather than, as he stated, “…out of a sense of duty and obligation to those artists, those creators who paved the road for me and my contemporaries, and for those who will travel this road after us,” people are free to read his testimony and decide for themselves what his motives are.

With regard to the substance of the hearing, it is little surprise that Big Tech and its network of shills would try to discredit the process. Because it does not look like their arguments in favor of maintaining the status quo of the Notice-and-Takedown process are finding much purchase with the Committee. Jonathan Berroya, testifying for the Internet Association toed the industry line that the DMCA is working well and working as intended. But none of the senators who spoke seemed terribly convinced that this could possibly be the case when one side of the DMCA equation—the creators—is unanimous in saying that that Notice-and-Takedown is not working.

Further, the parties testifying that the DMCA should be left alone tend to present arguments that are both off topic and, curiously enough, contrary to their own aims. For instance, representing PublicKnowledge, Meredith Filak Rose led off her testimony by reiterating the complaint that the US Copyright Office, in its report on Section 512 of the DMCA, neglected to consider the 229 million Americans who use the internet every day. “In the current pandemic,” she states, “every facet of our lives — from studying and working to buying food and paying utilities — occurs online. Every law that governs individuals’ use of and access to the internet affects all of us.”

While that generalization is true, it is also a distraction in context to the matter at hand because most of the online activity to which Rose alludes has nothing to do with copyright and, therefore, nothing to do with the DMCA. Ordering a pastrami sandwich or doing one’s banking over the internet does not implicate the DMCA, and the Committee is unlikely to be confused about this distinction. More importantly, Rose’s preamble panegyric to the people is there to tee up the alleged amount of takedown abuse that occurs online. “… in our nation’s attempt to reconcile the legitimate needs of artists and digital platforms, what has developed is a legal regime that, for all its good intentions, allows private parties to censor one another’s speech on any online platform, at any time, for any reason,” she stated.

So, not only does Rose, in that sentence, affirm that DMCA was a negotiation between two sides (just like she and others criticized the USCO for saying it was), but if it is true that rampant abusive takedown is a problem, why in the world would PublicKnowledge advocate maintaining the status quo? Credit to attorney Kevin Casini for mentioning this on Twitter last night, and the point cannot be overstated.

If protected speech and legal commerce is chronically being threatened by abuse of the Notice-and-Takedown system, why would parties representing the public interest not want to work with rightsholders to amend the DMCA? Misuse of copyright enforcement for censorship, or to avoid criticism, is a disservice to copyright and, therefore, a disservice to rightsholders. Yet, PublicKnowledge apparently stands in solidarity with the Internet Association, insisting that DMCA is working well and should be left unchanged. This is inscrutable.

As for allegations of DMCA takedown abuse itself, Rose recites the impressive-sounding statistic from an academic study, stating, “After quantitatively examining a set of over 108 million takedown requests, researchers concluded that approximately 30% of the requests were ‘potentially problematic’ and that 4.5 million of those requests were ‘fundamentally flawed.’  Bad notices are, by any measure, pervasive.”

Those stats come from a study done in 2016 by researchers at Berkeley and Columbia; and as I critiqued at the time, the research itself does not quite say, or justify, what Rose and others imply about takedown abuse overall. For instance, the study’s data set only includes takedowns directed at Google Search and does not include, for instance, takedowns directed at YouTube, where works like music are infringed all day long.*

And that brings us to the testimony of composer Kerry Muzzey, who is not rich and famous like Don Henley, and who stated that he was apprehensive about testifying because he feared that Google might retaliate against him by cancelling his Content ID account. (This is because, as many may not realize, not every rightsholder gets a Content ID account.)

Most essentially, Muzzey is the walking definition of the independent creator whose statistical data are not the result of a university study financially backed by either Google or the RIAA. His evidence sums up his own experiences—and those of countless other creators—and it speaks volumes …

“My music was not being used by amateurs to make cute little kitten videos. There were car commercials, ads for luxury hotel chains, pharmaceutical and biotech companies, airlines, Fortune 500 companies, banks, and dozens upon dozens of international television shows that had used my music without licensing it from me. To date, YouTube Content ID has located about 110,000 unlicensed uses of my music in videos hosted on its platform.”

That’s the story in a nutshell. That’s the problem creators have with DMCA Section 512 as it stands. And so far, the Committee seems to get it. Because Congress certainly never intended, nor would it have welcomed, the volume of commercial exploitation Muzzey describes as being facilitated by just one online platform. And one major cost to him, as well as the rest of us, is so clearly stated thus: “I will never know what creativity was lost while policing these thefts.” That is an inversion of the incentive principle in the foundation of copyright. It is, therefore, anathema to say that the section of the copyright act that produces these results is “working as intended.”

I do not mean to ignore the other witnesses and will likely follow up with a response to some of the other arguments presented in this hearing. But the contrast between Rose’s testimony and Muzzey’s highlights a recurring theme about this oft-heated debate. Defenders of the status quo of DMCA Section 512 chronically recite platitudes about the internet in general. And that’s all well and good. But even if every digital-age benefit were flawless (and we know they are not), this still would not address the futility of the Notice-and-Takedown system for tens of thousands rightsholders.

*When one of the authors of that study commented on this site to correct one technical error I had made, she did not quarrel with my overall critique of the study or the way it had been reported on in articles and blogs.