Tag: masnick

Techdirt Dissembles on FOSTA in Rebuke of Kristof

In a recent post on Techdirt, Mike Masnick calls columnist Nicholas Kristof a hypocrite based on a narrative Masnick just plain made up.  On December 12, Kristof published a brief column in The New York Times with a picture of a 12-year-old girl who is starving to death as a victim of the US-backed, Saudi-Arabian war in Yemen.  The girl is naked but for a diaper and a bandage on her foot, and the image of her skeletal, wasting body is truly humbling, which is why Kristof says he devoted so much of the page to the image itself.  

After the story was posted on Facebook, the social platform apparently kept deleting the photograph, which prompted the following tweet from Kristof on December 16:

Facebook seems to have repeatedly blocked the photo of Abrar that went with my column:  Come on, Facebook! If you want to end these horrifying images of starving children in Yemen, then help end the U.S.-backed Saudi war that causes the starvation.

Kristof’s complaint was then seized upon by Masnick, who concocted a typically sarcastic “gotcha” on the premise that because Kristof backed the counter-sex-trafficking legislation known as FOSTA (Fight Online Sex Trafficking Act), he has no right to “whine” about Facebook removing this photo for its “sexual content.”  True to form, Masnick smugly alleges that Kristof knew nothing about how FOSTA worked, despite the fact that Masnick grotesquely misrepresents the law, as well as the nature of Facebook moderation, in his post.

Without even getting into FOSTA, anyone who has been on Facebook for the past decade or so knows that the platform has often removed images—even fine art—that some moderator believed violated its “community standards.”  Facebook has been making these, often laughable, mistakes since long before anyone introduced the legislation that became FOSTA and which passed into law in April of this year.  In fact, Masnick’s recent post cites one of his other posts from 2016 criticizing Facebook for censoring the iconic, Pulitzer Prize winning photo of the naked Vietnamese girl running from a napalm strike.  

Notably, the removal of that famous photograph was actually mentioned in the documentary The Cleaners, which I wrote about in November, and which profiles the Philippines-based  moderators to whom Facebook has outsourced most, if not all, of its “community standards” oversight.  The documentary reveals a melange of human fallibility in the decision-making behind content moderation, and Kristof’s photo might have been repeatedly removed for being “disturbing” rather than “sexual.” 

Regardless, the broader point is that millions of images a day are processed by these young moderators—and they are required to meet quotas—whose culture is not grounded in American principles of speech, press, etc., and it is almost impossible to generalize about their motivations and judgment calls.

At the same time, even if, in the most depraved imagination, someone could identify Kristof’s photo of this poor child as “sexual,” then it would simply violate child pornography laws, which predate FOSTA, predate Facebook, and even predate the birth of Mark Zuckerberg.  Yet, somehow The New York Times published the image, which nobody seems to have confused with pornographic exploitation.  All of which is to say that neither the Facebook moderation regime nor Kristof’s specific complaint about the photo, which no sane person could confuse as “sexual,” has anything to do with FOSTA.

As explained in several posts, what FOSTA does is affirm that no internet service provider is automatically immunized against criminal or civil allegations of contributing to sex-trafficking.  FOSTA does not mean that a plaintiff who brings a claim has any less burden to prove a platform’s culpability in that crime.  (Y’know, the way the law works.)  In fact, all one needs to do is look at the volume and nature of the evidence gathered against Backpage to see that proving a contributory role in sex-trafficking takes a hell of a lot more than hosting some “nudity.”

While it is possible that, in an abundance of caution after passage of FOSTA, attorneys at Facebook recommend simply removing anything that can even remotely be deemed “sexual,” it is also evident that the platform was generally doing this long before FOSTA.  Next, the platform will, and should, remove material that is patently child pornography.  And finally, the attorneys at Facebook are well aware that hosting content which may be used as evidence of “contributing to sex-trafficking” is a distinct and high bar for a would-be plaintiff to meet.

So, it is a leap and a half to allege that platforms are now over-censoring as a result of FOSTA, to say nothing of the current reality that Facebook has way bigger content moderation problems right now.  In this regard, I think the folks at Techdirt, and everyone else, ought to be more concerned that Facebook cannot seem to distinguish between a third-party like The New York Times and just some other account holder.

It ought to be a simple enough, internal practice to determine that if a mainstream news company—which is also not immunized against allegations of illegal conduct—can publish an image without legal jeopardy, then Facebook can safely host the same image.  Why this does not appear to be the case has everything to do with the platform’s overall management and nothing to do with FOSTA.  

I’ll leave it to the judgment of the reader to consider Masnick’s labeling Kristof as having a “savior complex” for his interest in starving children and trafficking victims.  But given the choice between a guy who wants to save kids and a guy who wants to save legal liability shields for mega-corporations, well, let’s just say Mike may not make the Nice list this Christmas.

Masnick Makes a Hash of Fair Use & Censorship

Photo by Pond5
Photo by Pond5

In an effort to conflate president-elect Trump’s rhetoric on censoring the press with copyright protection, Mike Masnick at Techdirt accuses the News Media Alliance of seeking to “whittle down” fair use. He further says this will only leave journalists vulnerable to the kind of censorship Trump has threatened by amending libel laws.  There are too many holes in Masnick’s post to address efficiently, so I’ll stick with the main point about fair use doctrine. The Newspaper Association writes the following:

“Fair use” should be reoriented toward its original meaning. Under current copyright law, a person that does not own a copyright may still use a copyrighted work if it is consistent with the “fair use” factors, which assess: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion taken, and (4) the effect upon the potential market. The courts, unfortunately, have dramatically weakened this test by finding a fair use any time a new use could be seen as “transformative.” This test has undermined the integrity of the long-established fair use factors. As part of any Copyright Act rewrite, we support refocusing the fair-use test on its original purpose to prevent courts from undermining the Constitution’s encouragement of compensation to entities that generate creativity and productivity.”

For starters, this statement isn’t asking anyone to “whittle down” fair use. Instead, the News Media Alliance is simply asserting what many copyright experts and rights holders have observed, which is that the “transformative” standard is in fact a relatively new and often-vague principle that has become something of a vestigial fifth factor not codified in the 1976 Copyright Act.  In fact, “transformativeness” began as a measurement of creative transformation in the landmark case Campbell v Acuff-Rose but has since been applied in broad contexts in which uses are “transformative” of something other than the original work to create a new expression.  

So, “transformativeness” can exceed the original free-speech motivations for codifying fair use into the federal law in the first place.  And that in itself is not inherently bad; we want law to be elastic to a certain extent, otherwise copyright itself could not have adapted to changing market and technological conditions. 

Having said that, however, the “transformative” standard has come dangerously close to asserting that simply using a work in a new context—like posting it on social media—is “transformative” enough to make the use fair.  So, the Alliance is not attacking fair use doctrine at all, as Masnick asserts, but is rather seeking to mitigate what many rights holders view as an irrational expansion of the doctrine until it ceases to be an exception at all.  

The part where Masnick accuses the Alliance of playing into Trump’s censorship hands is just a malarky cocktail well spun.  He writes the following:

“While [Trump] was specifically talking about libel laws, as we’ve seen over and over again, copyright is an amazing tool for censorship as well. In fact, the Supreme Court itself has noted that fair use is the necessary “safety valve” on copyright’s free speech stifling powers. So for newspapers to basically gift wrap to Trump a way in which he can pull back a tool that protects their free speech — just as he’s been promising to attack their free speech — is ludicrous.”

Masnick is mashing up unrelated topics to argue the interests of OSPs like Google and taking the opportunity to use the words copyright and censorship in the same sentence. As a general statement, it is true that fair use is a free-speech-based exception to copyright, but most speech-related, or press-related, uses almost always relate to other forms of expression, including journalism, and they rarely implicate the “transformative” standard being referred to by the News Media Alliance. 

For instance, I noted in a past post that a FOX Network initially sought to argue that its use of another news agency’s photograph was “transformative” simply because it was posted on their Facebook feed.  That argument didn’t get very far, but it’s the kind of argument rights holders are nervous about arriving in the courts; and it has nothing at all to do with legitimate concerns about a president threatening to use libel laws to silence the press. For another perspective on how the “transformativeness” standard can come very close to effectively obliterating copyright, see this post about TVEyes v FOX News.  

As usual, the internet industry and its advocates behave as though their platforms, which make unlicensed uses of all manner of works, are synonymous with free speech or freedom of the press.  From that premise, they argue that a desire to maintain boundaries and contours around the fair use doctrine is synonymous with trying to kill the doctrine outright.  That is ludicrous.

Copyright, copyright everywhere…

There is certainly no shortage of copyright in the news these days, and readers of this blog might wonder about my silence on subjects like the Supreme Court’s ruling in Kirtsaeng or the testimony before Congress by Register of Copyright Maria Pallante calling for the next great overhaul of the law. For starters, when I began writing IOM, I never intended for it to overemphasize copyright as a topic; and I have stated repeatedly in posts and comments that there are plenty of sites (see blogroll) hosted by legal experts in Intellectual Property, which I do not presume to be. In fact, one of my ongoing criticisms of the Web is that its mechanisms tend to bring out the armchair expert on all subjects, regardless of their complexity, which invariably reduces even the most intricate matters to popular sentiment based on prejudices already held before discussion began.  An illusion of discourse heading in no particular direction.

I write this blog from two main perspectives — as an artist working to navigate a changing career in the middle of tremendous upheaval and churn; and as a citizen with a measure of socratic humility, admitting that my observations are limited and that there are always experts who know more than I about many things. I bet if I walked into my local diner and talked to the 50+ crowd, I could gather a smattering of opinions on say North Korea but probably receive blank stares on copyright.  If I did the same thing with a bunch of local sixteen year-olds, I might get blank stares on North Korea and an earful on the evils of copyright.  Odds are, of course, few of these opinions will be grounded in quality journalism, let alone first-source expertise.  Yes, the Internet makes it possible to cut through bumper-sticker politics and acquire expert information, but it’s also a great tool for repeating the bumper stickers, which is why amateurs can make a whole career out of repeating what people want to hear, regardless of substance. So it is with copyright.

If uninformed, declaratives about copyright are the froth in your latte, then TechDirt is the site for you. I read Mike Masnick’s post, for instance, concerning Pallante’s testimony, and the typical blogger thing to do would be for someone like me to critique that post fallacy by fallacy; but the prospect of doing so is almost as tedious as it is futile.  After all, both Masnick and I are about as expert on copyright law as we probably are on plumbing.  Those opposed to strong copyright protections already agree with his post, and those in favor will agree with mine. Meanwhile, I’m betting a large segment of the American population neither knows nor cares to know about the inner workings of these laws; so I often find myself wondering about the value of us amateurs arguing via blog over some of the more fleeting and granular aspects of a legal system that will likely take several years to evolve into its next incarnation.

So, for anyone who reads this blog and is not knee-deep in the gore of the copyright battle, the big picture as I see it this:  I believe the copyright system will change over the next decade or so, but if that change is predicated too much on the self-serving premises of its tech-industry antagonists, the results for artists in particular, and for society in general, will be regressive rather than progressive. It would be like allowing the oil industry to overly influence emissions policy.  Copyright stifles innovation is a popular meme and a cornerstone premise of the entire cabal aligned against the system, but this assertion is never supported by solid examples or data, which leads one to conclude that innovation describes what is contemporary and popular, regardless of whether or not it is economically progressive or, dare I say, fair.  We generalists could boil down the details to  a few fundamental questions when considering the future of copyright:  Is enterprise-scale piracy innovation or exploitation? Is the right of the author a civil right or a government handout?  Is copyright relevant for the individual or just a tool for big corporations?

These may be questions my kids’ generation will have to answer, but in order to do so honestly, they will need to come to terms with certain practical realities that don’t require legal scholarship.  First, they’ll need to recognize that the Internet is not an extension of themselves, but a technological piece of infrastructure over which just a few corporations wield unprecedented power.  Next, they’ll need to see past the selfish habit of acquiring media for free and accept that there is no such thing as an economy based on free stuff, that someone always pays and who pays makes a difference.  They’ll need to recognize that no matter what they believe about big media companies and lobbyists, flesh-and-blood, independent artists and small creative businesses are experiencing tangible and measurable harm. In fact, as I write this, musician and activist David Lowery, speaking at the Canadian Music Week’s Global Forum, just said the following: “The first week our new Camper Van Beethoven album came out, I watched one seed on BitTorrent distribute more copies than we sold.” I think you have to be both daft and depraved to describe this as innovation, and this kind of spin has no business informing the future of copyright.

I was asked the other day by a gadfly baiting me on Twitter if a “win” for me would be the triumph of the RIAA and the MPAA. I don’t know what that means, and neither does the gadfly; but these implicit accusations are typical of the associative politics to which neither conservatives nor progressives are immune.  Such interactions are circular, boring, and meaningless. And the hypocrisy is off the charts. I won’t pretend I’m a legal scholar, but the number of tech utopians who presume to lecture the creative community about how to make albums, motion pictures, and other works is truly staggering.

As I say, this blog was never intended to be all about copyright, and it occurs to me that part of its intent was to share observations from the perspective of developing new film projects in the current landscape. I admit that I am too easily attracted to the broad discussion, and I shall make an effort to steer this blog to be a little more film project focused, if for no other reason than film is next and may be more vulnerable than music.  It’s been a long time since Lars Ulrich was pilloried on the steps of Napster, and today we see musicians, from fairly obscure to the biggest names, coming forward to talk about artists’ rights in the digital age, and not without reason.  The truth is I don’t care if I or one of my colleagues develops a new film as a self-produced project, a deal with a Netflix, a traditional studio, or an established indie production company — whatever best serves the work.  But there is not one of these paths that is not founded on the right of the author to retain first choice in the process by establishing a precedent of ownership in the work.  Beyond that fundamental reality are many intricate details for professionals to work out and a whole lot of amateur-hour bullshit that deserves once and for all to be moved to the fringes of the debate.