Tag: Fight for the Future

Democracy Disrupted

A couple of posts ago, I reported that the organization Fight for the Future had facilitated enough comments sent to the Copyright Office regarding Section 512 of the DMCA that they “crashed” the servers.  In a follow-up email brimming with pride, the organization said this to those who contributed:

“Wow! In a matter of days you and nearly 100,000 other people told the U.S. Copyright Office about the urgent need for better Fair Use and free speech protections in the DMCA.”

I didn’t receive one of these emails, but my friend David Lowery did. And not because he said anything to the Copyright Office about the “urgent need for better Fair Use and free speech protections,” but because he and his colleagues tested the FFTF web form email blaster and published their findings on The Trichordist blog.  They found that the automated system did not verify email addresses or confirm that IP addresses were within the US; it also allowed multiple comments from the same source and as stated in the post, “we managed to post rapid-fire comments (less than three seconds between comments).”

As indicated in my other post, I really do believe you’d have to search long and hard to find 100,000 citizens who could properly explain the DMCA, let alone fair use doctrine; but to compound this nonsense, some astroturf organization floods a government server with automated messages that may represent anything from bots to foreign citizens to minors to the typically pavlovian American, who just clicks stuff that sounds really serious but that he doesn’t understand.  Democracy in action indeed.

I’ve made this point many times, but it’s one worth making often.  This type of automated “political action,” which in this case is funded by a very large industry, should be among the real digital-age phenomena that scares the hell out of people, regardless of the stated issue du jour.  Forget the DMCA for a moment and imagine it’s the pharmaceutical industry or petroleum or Koch Industries using the same exact tools to rally virtual citizens, sock puppets, non citizens, and literally anyone capable of believing a lie and clicking a mouse to flood the EPA or HHS on some matter that disfavors the public interest in the service of one industry’s bottom line. That’s not even coming close to the reason the first amendment affirms the rights of speech and the petition of government. And, yes, there is a history of obfuscation by big business since long before the internet, but automation seems uniquely suited to fostering the illusion that the people are the ones doing the speaking.

In The Trichordist post, Lowery indicates that if FFTF used the type of automation described above to flood government servers, it might have been illegal but was at least a well-funded monopolization of a system meant to allow all parties to comment on an issue. Hence the “crashing” that this organization is so proud of is tantamount to—you got it—chilling free speech.  One could of course say this about any online petition in theory, but isn’t it interesting that the last time we heard about crashing systems like this was over SOPA?  So, does this really happen because there are so many well-informed citizens who care more about “digital rights” than any number of more pressing issues? Or might it have something to do with the fact that the corporate interests in these cases also happen to be the world’s experts in automation and aggregation?  Maybe not.  Maybe there really are more Americans worried about whether or not some YouTube video is a “fair use” than are concerned with the economy, violent crime, security, real civil rights violations, etc.  And if that’s the case, then  there’s truly nothing left of the Republic worth fighting for, is there?

On the positive side, I suspect a lot of this digital reactivism is wasted and that the internet industry may eventually discover that not everything is a numbers game.  For all the megabytes of outrage, what exactly does anyone think the Copyright Office is supposed to do with most of it? Responsibly vetted petitions have an important role to play in public policy.  But in a moment like this, it is the Register of Copyright’s job to consider the views of various stakeholders; and the comments that should be most influential will come from representatives of all sides who submit fairly long and well-reasoned statements based on actual knowledge of the law.

Ultimately, the Copyright Office recommendations to Congress on Section 512 may be 100 pages worth of analysis based on legal precedent going back to the beginning of the country. So, any petition to this particular office only carries so much weight in the first place; but how much attention does Fight for the Future imagine copyright experts will give to some boilerplate whinging about a doctrine they have grossly misrepresented to the signers of said petition?  And even 100,000 verified signatures would be small potatoes in a age when people will click on just about anything.  It probably wouldn’t be that hard to automate 100,000 “signatures” to lobby the White House to appoint Sponge Bob Square Pants as Ambassador to Fiji, but so what?  (Come to think of it, that petition would probably do quite well.)

There are an estimated 5.5 million jobs in the U.S. that directly depend upon the protection of copyrights. Meanwhile, every independent rights holder I have thus far encountered has effectively given up on the DMCA as a tool for protecting creative works online.  That’s a tangible problem, and one that does affect everyone because 5.5 million jobs supports a hell of lot more jobs than that in the overall market.  We could take this reality seriously, or we could keep finding ways to imagine that free speech is under siege and continue to allow the largest companies in the world to manipulate the political process with a little code and a lot of noise.

Astroturf Organizations Typically Hysterical on DMCA

As the deadline approached for public comments to the Copyright Office in anticipation of its review of Section 512 of the DMCA, TorrentFreak reported yesterday morning that 50,000 “citizens” chimed in to protest DMCA “abuse,” apparently enough to “crash” the government’s servers.  Assuming the crash did occur, it’s probably an endorsement for Copyright Office modernization, but to the matter at hand, if there are 50,000 actual, non-attorney citizens who understand DMCA, I’ll eat my hat and the box it came in. This is more SOPA-fying, scare-mongering bullshit, and I really wonder how many times people are going to fall for it.

The TF article quotes this statement by Tiffani Cheng of the Google-funded organization Fight for the Future: “The DMCA affects all Internet users and they should have an opportunity to express their concerns with the ways content is censored from the Internet, causing damage to free speech that can’t be undone.”

To describe DMCA as a tool for censorship is a gross exaggeration that enables major OSPs (Online Service Providers) to use individuals as human shields to cover their profit interest in keeping DMCA ineffective for rights holders. It’s not that DMCA abuse does not occur, but the comparatively few incidents in which an individual or entity purposely misuses takedown should not be allowed to mask the enterprise-scale motives for major OSPs to support, promote, or even condone mass infringement.  That was never the intent of the DMCA.

Millions of copyright stakeholders know first hand that the OSPs have been incentivized by the terms of the DMCA to fabricate an illusion of ignorance with regard to obvious cases of infringement hosted on their platforms, promoted by their search engines, or supported by the access they provide.  Simply put, in order to retain the safe harbor (i.e. neutral) status, which service providers consider essential to their existence, they are supposed to meet certain obligations according to the statutes.  In many cases, large providers either fail to meet these conditions outright (as we saw in Cox v BMG) or they push the boundaries of reason and good faith when it comes to what’s called “red flag” knowledge of infringing or other illegal activity making use of their services.

For instance, among the conditions an OSP must meet to retain safe harbor under DMCA is that it may not benefit financially from infringement.  So, when a user uploads a whole TV episode, let’s say, to YouTube (which nobody disputes is infringing) and YouTube generates ad impressions during the period when the file is online before the rights holder takes it down, that’s revenue.  Why is that transaction not a clear violation of the statutory conditions, which would appear to make YouTube liable for the infringement rather than the neutral party it claims to be?

For obvious reasons, OSPs do not want to change the status quo.  And to be clear, rights holders are not looking to end safe harbor protections or to seek new means of taking down more material that is non-infringing; they have enough challenges just trying to keep a lid on the large volume of undisputedly infringing content.  And make no mistake, the major OSPs could give a damn about your free speech or your remix videos beyond the extent to which defending those things makes them money. (One could make far more compelling arguments that these service providers stifle speech through manipulation of their algorithms than all the DMCA abuse that’s ever been cataloged.) So, with regard to DMCA, these service providers would like to perpetuate the game that earns them revenue and grows their market share without having to bother with the legitimate rights of creators.

Even a Google-funded report released last week on DMCA notice and takedown procedures, conducted by researchers at Berkeley and Columbia Law, indicates that the majority of errors and abuses of the DMCA takedown process occurs among smaller and mid-sized rights holders, OSPs, and plain bad actors.  I may write a more detailed discussion of that fairly large report in a future post. But I mention it here because not even research—at least the anecdotal portion of it—slanted in favor of the internet industry appears to really support the assertion that DMCA takedown is widely abused as a tool to censor your “tweets and videos.” This is a typically hysterical claim that sounds sillier with each passing day that trillions of online expressions are exchanged without incident.  Meanwhile,  the  DMCA remains an inadequate tool for most rights holders of all sizes to mitigate large scale infringement and outright piracy of their works.  And these uses are still not free speech.