Tag: Featured

Some People Will Say Anything to Hurt Creators

You know how it’s offensive when a certain president uses a trope like “Do Nothing Democrats” to sling mud in lieu of articulating some kind of coherent, let alone moral, policy on any issue? Well, this same tactic is even more offensive when it’s used by people who should know better, especially people who believe they’re standing up for something. I try not to get personal about some of the copyright arguments, but this time it’s impossible. Mike Masnick is full of shit. And he should know better. In fact, I suspect he does know better.

Masnick doesn’t like copyright. Fine. Whatever. If he wants to advocate for the status quo of the DMCA, let him make a merit-based argument. Instead, his latest post criticizing congressional review of the DMCA (which began in February), he uses America’s overlapping, heartbreaking crises, and divisive politics, to justify this title:

In The Midst Of A Pandemic And Widespread Unrest, Senate Republicans Think It’s Time To Use Copyright To Make The Richest Musicians Richer

Perfect. That is ideally designed to generate maximum social media virality and teeth-gritting outrage. Except for one tiny problem: it ain’t true. For one thing, DMCA review is just one of many bipartisan, legislative processes, already underway, that were slowed but not entirely stopped by the pandemic. Next, and more importantly, it is not Republicans who suddenly put this on the agenda ahead of more pressing matters. Republican Senator Tillis is leading the Senate Judiciary Committee DMCA review, but in collaboration with Democrats you might know like Senators Coons and Leahy. They both support copyright and creators, but why mention that in a time when we can sow more discord?

Believe me, I’m pissed at Republicans right now for a whole lot of things. But that does not excuse Masnick, or anyone else, for trying to frame a solidly bipartisan issue as a “Republican” agenda, let alone to use national tragedies as a smokescreen. But in this case, Masnick tore a big ol’ page from the Trumpian playbook and led off his post by citing a statement of Senator McConnell’s from two weeks ago, when he said that he didn’t any see urgency in responding to the pandemic. Now, I would not give Mitch McConnell the time of day, but that statement is only connected to DMCA review in Masnick’s imagination. Only that isn’t even true. Mike isn’t stupid. He knows exactly what he’s doing and why it’s effective. And it’s immoral.

By a similar sleight of hand, Masnick wants everyone to feel that it’s wrong that Don Henley of the Eagles is set to testify tomorrow. He writes, “…this is the same Don Henley who has been attacking the internet for at least a decade, when he whined that it was all copyright infringement that anyone might take any of his songs and build on it in doing a remix or a mashup.”

Again. Masnick should feel free to articulate why he thinks Henley’s views are incorrect and why he thinks he shouldn’t be testifying, but he doesn’t do that. It’s just more personality politics because that’s what we need more of right now.  And let’s not pretend that if a less well-known singer/songwriter had the same set of issues with YouTube (and they do!) that Masnick would give those complaints any more consideration.

Two days ago, I said I was concerned that Silicon Valley, and its network of well-financed mouthpieces, would leverage Trump’s fight with Twitter to push back on any proposed review of the liability shields enjoyed by internet platforms. Well, interestingly enough, Section 512 of the DMCA is another liability shield Silicon Valley will fight tooth-and-nail to keep intact (as though it was perfect in 1998). It’s the part of the DMCA that nearly all rightsholders do not like about the current application of the law—especially creators who are way smaller than Don Henley. And unless I miss my guess, based on some of the comments appearing on Twitter, and a Washington Post article that’s basically a longer version of Masnick’s post, this is looking a bit like a coordinated effort to stymie DMCA review by framing it as a “Republican” initiative in a time when that message just might work.

In truth, the protection of copyright has long enjoyed bipartisan support in Congress, even before there was a Congress! So, let’s get in a lather about some other issues. We have plenty. At the same time, I might point out that the shoe doesn’t look so good on the other foot. In a time of pandemic and gut-wrenching scenes in our city streets, Silicon Valley’s minions want to make sure that Google & Co. get to keep screwing over artists and creators? Nice.

Is It Finally Time to Boycott Facebook?

It is impossible to look at the landscape of America, at this burning city on a hill, and not weep. Or scream.

Because this blog advocates the legal rights of creators (copyrights), and because those rights historically enjoy bipartisan support, I have tried to maintain a politically balanced tone when writing about most policy matters. That was a lot easier before Donald Trump became President. It is not my fault the Republican party is presently stuck with a leader about whom the kindest thing one can say is that he’s a moron. That’s a problem real conservatives and Republicans are going to have to work out for themselves. And if they don’t, these fires are not going to be extinguished for a very long time.

With regard to the broader editorial focus of this blog—the one that questions the value of the digital-age experiment and the industry behind it—it is now impossible to discuss that topic without placing Trump, and his supporters, squarely in the column of an unqualified evil—an enemy of humanity and republican democracy. Not that anyone would accuse me of being particularly kind about Trump in other posts, but today, there is a more acute question that needs to be asked:  if we want to end this dystopian circus of an administration, would it help to boycott Facebook? 

Ever since the 2016 election and revelations of data manipulation and fake news, we have been inundated by editorials opining as to what social media platforms should or should not do about various forms of toxic content on their sites. The utopian narrative that “all content is speech, and platforms owe a duty to the speech right” has been cracking under the weight of its own folly for three years, and it finally snapped last week when Twitter and Facebook took divergent paths on the matter of fact-checking the President.  

Apropos Trump’s largely-theatrical spat with Twitter and the toothless Executive Order he signed on Thursday, scholar Zeynep Tufeckci, writing for The Atlantic, expounds on some of the reasons why Trump really has no intention of tightening the legislative screws on Silicon Valley—even if he could. In particular, Tufekci notes the symbiosis that exists between Trump and Facebook …

“The relationship is so smooth that Trump said Zuckerberg congratulated the president for being ‘No. 1 on Facebook‘ at a private dinner with him. Bloomberg has reported that Facebook’s own data-science team agreed, publishing an internal report concluding how much better Trump was in leveraging ‘Facebook’s ability to optimize for outcomes.’ This isn’t an unusual move for Facebook and its clients. Bloomberg has reported that Facebook also offered its ‘white glove‘ services to the Philippine strongman Rodrigo Duterte, to help him ‘maximize the platform’s potential and use best practices.”’

When Zuckerberg appeared on Fox News and criticized Twitter for fact-checking a handful of Trump’s tweets, most of the response I saw was well-earned mockery. I shared the meme that said “Mark Zuckerberg—Dead At 36—Says Social Media Sites Should Not Fact Check Posts.” I mean, that’s pretty funny.

All sneering aside, though, Zuckerberg’s statement on Fox only repeated the same rhetoric that has been nodded at for years by internet users across the political spectrum—all buying the bullshit that these platforms make democracy work better. “I just believe strongly that Facebook shouldn’t be the arbiter of truth of everything that people say online,” Zuckerberg said. And that is not news. It’s the same gibberish that Big Tech, the EFF, the ACLU, PublicKnowledge, Techdirt, and every other techno-utopian voice has been repeating for more than a decade. 

It is ultimately necessary that people understand why Zuckerberg’s position is misguided outside the context of fact-checking the most dangerous president in modern history. But in the meantime, if the goal is to stymie Trump’s assault on America, then one thing we could do is to stop giving Zuckerberg so much of our time and data for free. Every post, especially every substantive post, feeds the data machine that, according to Tufekci’s statement above, team Trump happens to be so good at leveraging. And for which team Facebook is apparently congratulating them. Further, Tufekci tells us …

“In 2016, Facebook’s own internal research team found that ’64% of all extremist group joins are due to our recommendation tools’ and, if left unchecked, Facebook would feed users ‘more and more divisive content in an effort to gain user attention and increase time on the platform.’ The same research team also found that fake news, spam, clickbait, and inauthentic users inevitably included ‘a larger infrastructure of accounts and publishers on the far right than on the far left.’”

So what do we do with this information? Because the data seem to suggest that Americans who want to disarm Trump—and that happens to be most Americans—should in fact deny Facebook their voluntary input. Far more meaningful than refusing to patronize a business because one does not like the CEO’s politics, if the lion’s share of Americans simply bailed on Facebook, that would seriously mess up Zuckerberg’s game and, by extension, Trump’s game. We could just MySpace that shit. But can we?

I know. It’s like we’re all teenagers again (okay, in my generation) talking to that girlfriend or boyfriend, saying, “No, you hang up first.” It’s why Zuckerberg really doesn’t care if we call him a smug pinhead on his own platform. As long as we don’t leave, he’s laughing all the way to a very large bank. Our real friends and family are on Facebook. It’s the only way some of us keep in touch at all, even without the restrictions imposed by a pandemic. So, unless we all say “One, two, three, go,” and hang up simultaneously, it ain’t gonna happen. One friend over the weekend posted a simple statement that seems to sum up how many are lately feeling …

“It’s a tough question. My friends are all here and I use it to keep track of photos and promote [my work]. But yes evil and destroying our culture so … ???”

Evil and destroying our culture. Who would hesitate to abandon such a service? And how distinct is that sentiment from Facebook’s original tech-bro imperative motto, Move fast and break things.? Anyone who reads this blog knows that I believe social media does more harm than good for democratic societies. In between the connections and the celebrations, it is almost impossible to avoid feeding on a steady diet of outrageous content—much of which is not only untrue but has been purposely crafted by professional trolls working to exacerbate division and hate.

Add to this mix the real racists, anti-semites misogynists, and accelerationists—and a president who unrepentantly throws fuel on all those fires—and we need to understand that there is no way for the rest of us to entirely avoid feeding the riot as long as we remain part of the data set. Twitter may be the medium we think of as Trump’s favorite propaganda toy, but it looks like Facebook is the most powerful weapon in his arsenal. And like it or not, we are all providing the ammo.

On the other hand, the point of a boycott (even if it were possible) is not necessarily to shut down a business, but to force it to change its practices. And that’s the larger question—not whether we need to leave Facebook per se, but to ask what kind of cultural and policy changes are necessary in order to maximize the positive effects of social platforms and minimize the harm they cause. The techno-utopian faith that the good will overwhelm the bad (i.e. the wisdom of crowds) has proven false. A minority of bad actors online, like a few bad cops or a few violent protestors, can inflict permanent damage. And the challenges presented are systemic—cultural, legal, and economic. 

The folly of Trump’s Executive Order, oddly enough, points to the first step:  recognizing what the EO does not—that social platforms are not defenders of the speech right, and that the speech right itself has been grotesquely distorted thanks, in large part, to social platforms. If we can begin with the premise that not everything posted to the internet is protected speech–and that even if it is protected speech, platforms have no obligation to support it–we might be able to recognize that the plan for better social platform governance is not so novel as the industry tries to make it seem. The developers ebulliently call their spaces “communities” but have thus far rarely looked to community for guidance. 

It may be arduous in practice to weed out the hate mongers and provocateurs, but it is not so complicated in principle as Silicon Valley and its PR machine have made it sound. Facebook is no more obligated to host a white supremacist page than my local cafe is to put a KKK poster in its window. Communities say No to bad actors all the time. Facebook, Twitter, Reddit, et al can do the same thing, and it is long past the moment when they should stop wringing their hands each time they finally make a moral decision. Like when Cloudflare dropped The Daily Stormer in 2017, and one of its team members wondered if that was “the day the internet dies.” Time to grow up. 

It is a tragic reality for the nation that far too much material that fits the descriptions misleading, violence-inciting, hate-mongering, and harassing has been mislabeled “conservative” because the President uses social media to amplify that kind of content. Consequently, I get why Facebook feels it has a Trump problem, but that’s tough shit for Zuckerberg. We all have a Trump problem. He is a moral hazard. A berserker in a nation trying to hold civilization together with its bare hands. And Zuckerberg’s alleged neutrality does not make him a principled actor. It makes him an arms dealer profiting from both sides of a war. 

What Happens When the Biggest Troll on Twitter is the President?

This week, as Twitter CEO Jack Dorsey emerges a champion of truth in a world of truthiness, we must not lose sight of the fact that the folly of conflating the speech right with social media platforms has played a major role in leading us to this absurd moment of conflict between Trump and Twitter.

By now, almost everyone is aware that Dorsey took responsibility for Twitter fact-checking a couple of Trump’s tweets about mail-in ballots. The tweets were not taken down, mind you, but flagged as untrue because, well, they’re not true. In response, the president cried “censorship,” echoed accusations of “liberal bias” in Silicon Valley, and by end of business yesterday, signed an Executive Order putting platforms on notice that their liability shield under Section 230 of the Communications Decency Act (1996) may be vitiated due to their alleged partisan nepotism.

I’ll get to the EO in a moment. But what I fear Trump may have just done is to give Big Tech an effective talking point to use in opposition to legitimate and measured proposals to amend Section 230—proposals that have been in discussion since before the election of 2016. Suffice to say, the internet industry likes its liability shields (both 230 of the CDA and 512 of the DMCA) just the way they are, and the major platforms will fight for the status quo with everything they’ve got. Now, one thing they’ve got is an opportunity to run headlines and memes shouting Don’t Let Trump Destroy the Internet! Or variations on same.

I figured it might come to this. About five minutes after the election of 2016, one could imagine that the already complicated debate about platform responsibility was going to be further muddied by fact that the president uses platforms like Twitter to make false statements and to commit acts of libel and harassment. Trump’s complete disregard for statesmanship, the truth, or the rule of law are all assets in the wilds of social media, where doxing, mob-harassment, and threats have silenced the speech of individuals with far less armor than a President of the United States.

Platform operators, who have historically been oriented toward leaving everything online, today find themselves in the unprecedented position of hosting some pretty crazy shit written by the highest elected official in the nation. At a certain point, it has to feel irresponsible not to put a warning label on an official announcement that happens to be false. At the same time, we might just as reasonably shrug at Twitter’s decision as give Dorsey a high five for it. As a practical matter, the majority of Americans do not believe anything Trump says, and only some portion of his secure voting base believes everything he says. So, Twitter’s decision may be somewhat moot, as it is a relatively small gesture in the scheme of things.

The Executive Order signed yesterday is political theater with an ironic twist. On the one hand, the order’s animating principle (i.e. threat) is predicated on a misstatement of how Section 230 actually works. It alleges that in order to remain shielded from civil liabilities stemming from users’ content, the service provider must be a neutral party—i.e. keep mitts off all user content. But that’s exactly the opposite of what Section 230 says. The section known as the “Good Samaritan Clause” was written expressly to encourage sites to engage in…

“… any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected;”

Note how broad that language is. The provider is urged to make judgment calls and to decide, for instance, what content is “otherwise objectionable.” And of course this is how 230 would have to work because the First Amendment prohibits the government from determining what community standards a platform may establish for its use. The EO erroneously alleges that because social sites are biased against “conservative” politics, and engage in muting one party’s viewpoints, this invalidates their “neutrality,” which abrogates the 230 protection.

The problems with the EO are that the bias allegation itself is without merit, and the legal theory is a misrepresentation of Section 230. In addition to the sane person’s observation that misstatements of fact should not be called “conservative” just because they come from Donald Trump, “there is no empirical basis for the claim that conservative viewpoints are being suppressed on social media,” according to a recent paper by scholars Mary Anne Franks and Danielle Keats Citron. As part of their discussion about improperly conflating the speech right with Section 230, Franks and Citron note that an independent audit was led by former Senator Jon Kyl and found no evidence supporting this allegation.  

What we do as a nation with the fact that “conservatism” has devolved to the circus of Trumpism is an existential problem; but as a cyber-policy matter, what this little bruhaha may have done is to further complicate a fledgling discussion (and a bipartisan one) about meaningful Section 230 reform. Because the ironic twist I mentioned above is that the misread of Section 230 applied in the EO echoes the same rhetoric that has been used for years by the internet industry in order to justify its laissez-faire approach to platform stewardship.

The major internet platforms, with substantial help from “digital rights” organizations like the EFF, have done an exceptional PR job—invoking both Section 230 and the First Amendment (and improperly conflating the two)—in order to sell the message that social platforms are like steroids for the speech right. And until 2016, most people across the political spectrum seemed to buy that claim, even though it was legally and constitutionally unfounded.

It would be impossible to calculate the number of editorials and amicus briefs written to denounce the removal or demotion of so much as a syllable of “speech” online, and the platforms have generally supported this view because it’s good for business. More content means more traffic and more data to mine. It is only in recent years that some members of Silicon Valley’s leadership have revealed a moral reluctance to host everything—even if it’s harmful—under the bogus claim that they are defending speech.

Meanwhile the victims of some of the worst conduct online, like non-consensual pornography and other forms of harassment, have seen the courts overbroadly interpret Section 230 in ways anathema to anything Congress intended in 1996. The internet industry, along with briefs filed by organizations like EFF and ACLU, has invoked 230 as grounds to avoid removing even non-consensual pornography, which could not be more absurd given the anti-obscenity origins of the legislation. Thus, it is only recently, thanks in large part to women like Franks, Citron, and attorney Carrie Goldberg, that both parties in Congress have finally undertaken review of Section 230 for possible legislative fixes to address these unintended consequences.

As such, it does not strike me as very helpful to the purpose of sober review that Section 230 has been brought into the foreground by this latest presidential outburst. The EO itself may be a worthless piece of paper Trump signed to make himself and a few of his fans feel good, but now that he’s stamped his brand of partisanship on this narrative, one can imagine any number of ways this non-partisan discussion can become needlessly mired in the muck. As mentioned, I can certainly imagine the industry using this story as leverage to stymie legitimate review.

Of course, the maddening irony of this dustup is that all the speech extremism of the last 10-15 years, combined with misrepresentations of Section 230, is a big part of how we managed to raze the landscape of reality so that someone with absolutely no moral compass could become President of the United States. It may have taken this shock to the system for people to finally want platform stewardship like fact-checking and enforcement of community standards, but the dark irony of the EO is that it isn’t all that different from the rhetoric tech-utopians have been using for years.